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  • 1. The Cook County Public Guardian Presents: An Update on Special Education Presented by: Brooke R. Whitted - whittedlaw@aol.com Neal E. Takiff – ntakiff@wct-law.com Whitted, Cleary & Takiff, LLC 3000 Dundee Rd, Suite 303 Ph. 847-564-8665 Fax 847-564-8419 www.wct-law.com August 8, 2007 1:30 p.m. – 4:30 p.m. At the Cook County Juvenile Court 1100 South Hamilton Avenue Chicago, IL 60612 1
  • 2. AGENDASPECIAL EDUCATIONI. Introduction A. History of the Special Education System B. Current Structure of SystemII. Definitions: What is a Disability under IDEIA and the Illinois School Code? A. Social maladjustment: A disability? B. What about conduct disorder? C. A note on prevalence of disability in juvenile/corrections populationsIII. Obligations of School Districts: A. To actively seek out and serve disabled students (“Child Find”) 1. Affirmative duty, not passive 2. What to do when a school district declines eligibility (as for a suicidal child) 3. Use of experts in this area B. To provide services appropriate to the unique needs of each student 1. The Rowley case a. What does this case stand for? b. What are the “Rowley Questions?” 2. The K.L. case and Rowley footnotes 3. Other decisional case law and a discussion of IEPs, the “blueprint” of the special education system 4. State learning standards and IEPs 5. The 2004 IDEIA Amendments C. To provide services in the Least Restrictive Environment (“LRE”) 1. The “Home School” 2. The Tatro case: Health services and LRE 3. The Beth B. case: “Maximum extent appropriate” 4. The Lindsey R. case: Enough is enough! 5. The “full continuum of alternative services” mandate: Still valid 6. The Light v. Parkway case: an extreme example 2
  • 3. D. To provide “related services” according to the needs of the student, i.e., any service necessary to enable a student to benefit from special education 1. What is a “related service?” Can these be “medical” or “health related” in nature? 2. The Tatro case (again!) and the 7th Circuit Max M. case 3. The Garret F. case: the U.S. Supreme Court settles the issue and gives parents more leverage in the process 4. Private schools 5. Illinois funding scheme 6. A note on “methodology”E. To ensure that students and their parents receive procedural protections 1. The due process system a. Characteristics and definitions b. The “stay-put” clause: Strong leverage c. The various steps in the hearing system d. The use of attorneys and advocates e. The 2004 attorney fee amendments f. The limitations statute: 2 years g. Sample DP complaint (to be handed out) h. “Not yet eligible” children: Do they have any rights? 2. Student discipline a. Regular education (Goss v. Lopez) b. Special education: The dual system 1. Honig v. Doe – exceptions! 2. 1997 and 2004 amendments 3. Manifestation determinations 4. The stay-put clause: How to use it for Leverage in disciplinary cases 3
  • 4. IV. Other Issues A. Non-custodial parents B. Short-term minor guardianships for school purposes C. Healthcare POA Rider (to be handed out) D. Other forms E. School Student Records ActV. How to Advocate for a Special Education Child A. Top 5 tips for parents/advocates B. Preparing for IEP meetings C. Effective communication with child’s school 1. Letters (short!!!) 2. E-mails (they are forever and discoverable) 3. Phone calls 4. “Theatrical” strategies 4
  • 5. Table of Contents1. COVER PAGE 12. AGENDA 2-43. TABLE OF CONTENTS 5-64. HOW TO DISMANTLE SPECIAL EDUCATION 75. HYPOTHETICALS 8-156. SPECIAL EDUCATION IN A NUTSHELL 16-207. COMMON MISTAKES 21-238. DEFINITIONS 24-289. SOCIALLY MALADJUSTED CHILDREN AND SPECIAL EDUCATION SERVICES 29-3510. SUMMARY OF RESEARCH ARTICLES: PREVALENCE OF CHILDREN WITH DISABILITIES IN THE JUVENILE DELINQUENT/CORRECTIONS POPULATION 36-4511. WHAT HAPPENS WHEN A SCHOOL DISTRICT FAILS TO RESPOND TO THE NEEDS OF A SUICIDAL CHILD? 46-5212. THE ROWLEY CASE: WHAT DOES IT REALLY MEAN? 53-6313. THE K.L. CASE: IS ROWLEY STILL THE LAW OF THE LAND? 64-6914. IEPs AND THE ATTENDANCE OF REGULAR EDUCATION TEACHERS 70-7615. 2004 IDEIA REAUTHORIZATION GRID 77-9116. IS EDUCATION AT THE “HOME SCHOOL” A FEDERAL MANDATE? 92-9617. “FULL INCLUSION” – IS THIS A LEGAL TERM? 97-10918. PROVIDING HEALTH RELATED SERVICES TO MEDICALLY INVOLVED CHILDREN 110-12619. THE FINAL WORD ON HEALTH SERVICES: CEDAR RAPIDS v. GARRETT F. 127-13020. SERVICES AT PRIVATE SCHOOLS: OBLIGATIONS OF SCHOOL DISTRICTS 131-13921. ILLINOIS FUNDING SCHEME 140-141 5
  • 6. 22. METHODOLOGY 1. COCHLEAR IMPLANTS 2. AUTISM SPECTRUM 142-15023. ATTORNEY FEES, EXPERT FEES, AND COSTS IN IDEA CASES 151-15424. SUSPENSION, EXPULSION, AND DISCIPLINE 155-17025. SUSPENSION/EXPULSION/DISCIPLINE FEDERAL REGS AND ILLINOIS STATUTE 171-17526. NON-CUSTODIAL PARENTS: LEGAL ISSUES 176-18427. SHORT-TERM MINOR GUARDIANSHIPS 185-18628. FORMS 187-19529. OBTAINING SPECIAL EDUCATION SERVICES FOR STUDENTS WITH EMOTIONAL DISTURBANCES 196-20730. SCHOOL STUDENTS RECORDS ACT 208-214 6
  • 7. HOW TO DISMANTLE SPECIAL EDUCATION(1) Make the position of special education "teacher" disappear. Instead, respondingto "market forces", offer only non-categorical training and certification, and make itsgraduates consultants, inclusion facilitators, IEP managers, managers of paper (with allsorts of titles), co-teachers (almost always subordinate to the "real" teacher), aides orassistants to "real" teachers, et. Make the job unappealing, make it have nothing to dowith really specialized and intensive teaching, and then wonder why there is such a crisisand such a shortage.(2) Talk about a "unified system" or an IEP for EVERY child, or a seamless web ofsupports, or state that your goal is for EVERY child to be proficient on the Statetests/EVERY student will attend college/EVERY student will pass a high school exit test.Then decry special education because ALL of the students it serves do not meet thesegoals.(3) Give all the money to local schools (or States) to spend as they choose. Thecurrent Hagel-Harkin "full funding" amendment to IDEA in ESEA (H.R. 1) allows 100%of new IDEA funds to be spent in any way a local school wants to spend it (spending notone dollar on especial education if it so chooses). Now the Governors have endorsed"full funding" but ONLy if the States get the same freedom to spend IDEA money at theState level that Hagel-Harkin offers local schools at the local level. What happened tospending IDES funds on students needing special education? Now the NEW, AASA(administrators), NASB (school borads), and CEC are running joint ads across thecountry asking, "Will Congress keep its promise?" What promis and to whom? The adstates "Guaranteed full funding for special education", but Hagel-Harkin has absolutelynothing to do with guaranteed full funding for special education.(4) Deny disability exists. As Hallahan & Mercer state, "disability as a socialconstruction that is based on incorrect and immoral assumption about differences."(5) Actively ignore our history. As has been pointed out, no one advances bypointing to historical fact, but instead by advocating the NEW mill3enium, the currentchange, and the fashionable bandwagon.(6) Have those of us who have the most knowledge, and positions of potentialinfluence, do little or nothing because of fear of reprisal, or of the political process, or ofdisfavor from colleagues or of grant givers.What is dismantled eventually is rebuilt if it is needed, but many students and teacherswill lose out in the meantime._______________________________________________________Beverly E. JohnsP.O. Box 340, Jacksonville, IL 62651 Whitted, Cleary & Takiff, LLCPhone: 217/245-7174 x233 (Office), 217/245-5781 (Home) 3000 W. Dundee Road, Suite 303Fax: 217/243-7596, Email: bevjohns@juno.com Northbrook, IL 60062 (847) 564-8662 (847) 564-8419 Fax Website: www.wct-law.com 7
  • 8. Hypotheticals1. Zelda2. Jim 8
  • 9. OPG CASE SCENARIO Zelda Wapsapitopitoe is a 13 year-old DCFS ward whose mother abandoned heron the streets of Bangkok, Thailand right after Zelda was born. She has never known aconsistent home environment and the identity of the parents and their medical historiesare unknown. A Lake Forest family first adopted Zelda, but within the first few years, sheproved too much to handle and parental rights were surrendered to DCFS. Since thesurrender, Zelda has been in multiple foster homes and has been variously diagnosed withreactive attachment disorder; ADD/HD; intermittent explosive disorder; oppositionaldefiant disorder; Dysthymia; and schizoaffective disorder. She is, on occasion,promiscuous when it serves her purposes, as her full scale IQ is 130 with a verbal scoreof 144 and a performance score of 101. She has outstanding skills in math, music andtheater. Zelda is also active with the Juvenile Court on the delinquency side, havingcommitted an act of battery against a Chicago Public Schools police counselor. Sh hasalso accused the same person of sexual impropriety. For this reason, as well as arepetitive set of other behavioral incidents, the staff at the Ray School in Hyde Park arenot very fond of Zelda and have been pestering the juvenile probation officer to take herinto custody or residentially place her elsewhere, at least anywhere but at their school. The Chicago Public Schools for some reason completely failed to classify this girlinto the special education system. In fact, she seems to have fallen through the cracks, asshe has not even been declared eligible for a Section 504 accommodation. Every time aDCFS worker or probation officer or representative from the public guardian’s office haspointed out that she could be eligible for special education, CPS representatives say thatshe is a child welfare case; that she is a corrections problem; and, that any placement thatshe might require would not be for “educational” reasons anyway, as she is “too smart tobe eligible for special education” or in the alternative, she’s merely “sociallymaladjusted.” As a representative of the Office of the Cook County Public Guardian, you haveattempted to repeatedly to get DCFS to advocate for the educational rights of this ward.You were astonished and appalled to learn that the DCFS educational advocacy divisionhas manifested efforts, which could be described as lethargic at best. As an assistant public guardian, you have decided that something must be done.Your first step, in any “undeclared” case, is to request a case study evaluation. 1. How would you go about doing so? What if the DCFS guardian is uncooperative? 2. What leverage do you have, i.e., does this child enjoy special education rights even though she is not identified as a special education student? 9
  • 10. 3. What is your time frame? 4. If CPS drags its feet, what are your options for motivating them? 5. What should you be doing while awaiting the results of the case study evaluation? While awaiting the results of the case study evaluation, you have decided to retainthe services of Dr. Phinneaus Bleetwig, a well respected child and adolescentpsychiatrist, who is always appearing on the television where he is requested to renderopinions on topics both within and outside his areas of expertise, has a great mediapresence, and further has expressed an interest in working pro bono with children servedby OPG. You also have the opportunity of having him come to the detention center, sinceZelda has recently been held in custody for another battery and is pending a V.O.P.petition. Dr. Bleetwig interviews Zelda and, based on this and his review of the files,determines that she has an extremely severe learning disability that should have beenattended to by the school district from her very earliest elementary years but has beenlargely ignored. Dr. Bleetwig is outraged that (a) CPS has done nothing her all theseyears and, (b) DCFS has not offer any kind of assistance either. 1. In looking at the facts so far, are you surprised at this determination? 2. What information, if any, is in the file that you have that would reveal the presence of LD to you instantly? 3. What do you do, in working with Dr. Bleetwig, to ensure that his report (for submission to the school district) is properly worded? 4. What is the number one finding that Dr. Bleetwig needs to have in his report for the local school district? 5. What other clinical personnel might be appropriate to assist in your preparation for an upcoming meeting with CPS to determine whether Zelda is eligible for special education? 6. Are there other avenues available for residential funding for Zelda, and if so, (a) which ones, and (b) how should Dr. Bleetwig’s report be modified for them? Zelda has now been discharged from detention and has returned to the RaySchool. In eighth grade, she has trouble getting along with both teachers and studentsand, due to her high verbal skills, isn’t very patient with people who can’t follow alongwith what she is saying. In fact, she becomes abusive and occasionally assaultive. Youhave recently received a notification form that Zelda has been suspended for the next 10school days and that she will be scheduled for expulsion by the board, due to an assault to 10
  • 11. a fellow student. As she is not yet declared eligible for special education services, whatdo you do? 1. What is your best leverage at this point? 2. How can you use the Juvenile Court to assist you and increase your leverage? 3. What is the rule on children who are not yet identified as special education students? 4. What is the best way to obtain a private sector placement, possibly residential, for Zelda at this point? You have done everything you can to convince the Chicago Public Schools thatZelda is eligible for special education services. Yet at a recent meeting, they said she wasa conduct disorder; that the reasons for residential placement were “noneducational” andwere more “correctional” in nature; and that the best they could do was place Zelda in anonpublic therapeutic day school; that a residential placement would cost too muchanyway; that DCFS or the Juvenile Court should pay for it; and that they don’t doresidential placements in any event because they are “too restrictive.” You respond with arequest for a due process hearing. 1. What do you put in your hearing request? 2.. What happens after Arne Duncan receives your request? 3. What’s the best way to prepare for the hearing? 4. Do you agree to nonbinding mediation? 5. What about a “resolution session?” 6. Is discovery available? 7. Do the rules of evidence apply? 8. If you win, are attorney fees recoverable? Experts costs? 9. Who pays for the transcript? 10. What are the options and timelines if you lose? After ten days of hearing, you lost on all counts. You still belive your case is agood one, because the hearing officer (a) ignored all of your arguments; (b) engaged in exparte conversations with opposing counsel; (c) was always sarcastic with you durin gthe 11
  • 12. hearing but acted like she had a crush on opposing counsel; (d) never sustained any ofyour directions but sustained all of apposing counsel’s objections; (e) lost her workingfile and blamed you for it; (f) ignored large amounts of evidence that you submitted. 1. What is your appeal timeline? 2. Where do you file? 3. What is your litigation strategy? 12
  • 13. SUSPENSION – EXPULSION HYPOTHETICAL Jim is a 17 year old high school student who, according to the staff of ZeroTolerance High School (hereafter “ZTHS”), has become increasingly dangerous,unpredictable, and uncontrollable over the past several months. Jim is very tall andmuscular and is active on the ZTHS wrestling team. He is diagnosed with ADHD,asthma, allergies, and a heart arrhythmia and has received special education servicessince 4th grade. Jim first enrolled in ZTHS at the start of the 2000-2001 academic yearafter being home schooled for grades 7 and 8 due to his prior experience – according tothe mother – of “conflict and frustration in public education.” The parents complied withall home schooling requirements during grades 7 and 8 and assert there were never anybehavior problems during that time. In August 2000, ZTHS convened a meeting for the purpose of developing an IEPfor Jim, which, when finalized, provided 1075 minutes of special education instructionper week, as well as counseling services. Jim’s eligibility category under IDEA wasOther Health Impaired (“OHI”), based on the previously described set of medicalconditions. In the case study materials it was noted that Jim has “problems with angermanagement” but no Functional Behavioral Analysis or Behavior Intervention Plan wasdeveloped because this was Jim’s first contact with the public education system in twoyears, and the parents did not indicate the presence of any behavioral problems. On September 28, 2000 in a speech class, Jim said, “I feel like I want to killsomeone” and “Will I get suspended if I fight someone in the halls?” Pursuant to policy,ZTHS suspended Jim for 5 days and convened a Threat Assessment Team (hereafter“TAT”) to consider whether these remarks might lead to a reasonable conclusion that Jimcould pose a threat to himself or others. It was determined that Jim should be referred fora psychological evaluation. In preparation, teachers were asked to fill out brief surveyforms on Jim, and most of them remarked that while Jim could become angry andfrustrated, they had no behavioral concerns at this time. The school psychologist’sevaluation stated that Jim “harbors much anger, feels quite anxious, and has poor selfesteem.” However, the psychologist concluded Jim had adequate impulse control andrecommended that he return to school, with counseling as appropriate. On October 4, 2000 Jim emptied a hole punch onto the floor of a classroom and,after being asked twice to clean it up, he said he would do it “when he was ready.” Theexchange continued between Jim and the teacher until, according to ZTHS staff, it“became disruptive,” whereupon Jim gathered his belongings and walked out of the class.As he was leaving the room, he threw one of the books he was carrying against the wallhard enough to make a loud sound. Jim was assigned to ASD (after school discipline) forinsubordination for two days during October. On November 8, 2000 Jim failed to attend school and was picked up by localpolice in the company of another student. Jim’s companion was detained for possessionof marijuana and Jim was returned to school at about 11:30am. For this incident, Jimreceived ASD on November 14th and 15th. 13
  • 14. DISCIPLINE HYPOTHETICAL PAGE 2 In November, Jim also received his 3-year reevaluation. The social workercommented in her report that Jim “can anger easily if he feels he is being treatedunfairly” and further, that he “needs to improve his ability to respond appropriately tofigures of authority.” Jim was, in the updated case study, found to be functioning withinthe average range of intelligence, and further that he “hates everything about” school –even though many of his teachers expressed a very positive perception of Jim’s in-classbehaviors and attitude. Services in the IEP were left unchanged. On December 1, 2000 Jim said to a female teacher’s assistant: “High schoolsucks, The only way high school wouldn’t suck is if I could get laid.” The TA found thiscomment from a 17year old boy offensive and reported it, and Jim received ASD onDecember 5th and 6th for vulgar language. On February 28, 2001 Jim was seated at his usual table in front of the ZTHSlunchroom. He had apparently overheard a comment by the dean of students that he wasconsidered to be a dangerous student. There were about 180 students in the lunchroom atthe time. Jim rose from his table and went to a table in the middle of the room, steppedon the top of the table, and yelled for quiet. The lunchroom fell silent. Jim shouted thathe wanted to see the dean of students – he became very agitated, swearing, andrepeatedly stating he want to see the dean, NOW, at the table on which he was standing.He also yelled that the dean was “a liar” and was spreading rumors that Jim “had a gun.”One teacher, a female, who had a good relationship with Jim, went to the table andextended her hand, asking him to step down. Jim yelled, “Don’t f___in’ touch me” andremained on top of the table. The students in the lunchroom began cheering for Jim, buthe pointed a finger at them and yelled, “And YOU…….” whereupon they fell silent.Then Jim said: “Where’s the Dean? F____ him. He’s saying I’m going to shoot up theschool. Get him! I ain’t gonna shoot anyone! F____ him!” The dean then arrived,asked Jim to get down from the table, to which request he complied quietly, and Jim andthe dean left the room together. Jim was suspended for two days, during which time aTAT was convened, which concluded that this incident was a “more serious threat” thanthe October incident and recommended an IEP meeting to consider whether Jim’s currentplacement was appropriate. After serving his 2-day suspension, Jim was“administratively excused” from classes for three more days so the IEP meeting could bescheduled for March 12th. 14
  • 15. DISCIPLINE HYPOTHETICAL PAGE 3 On Monday, March 12th, the IEP team – after hearing from everyone includingJim and his parents, recommended that Jim needed a more intensively supervised setting.This might include one of three alternatives, all of which were opposed by the parentsand (more vocally and angrily) by Jim. Parents felt that in light of the small amount oftime remaining in the sch ool year, Jim should return to school, as they were certain hewould not repeat his misbehavior. The IEP team said sorry, he could NOT return to hisprior placement and one of the three other alternatives (only one of which was on schoolgrounds – but self contained) must be chosen. Parents said they needed time to think andthe team said they should take their time & get back to the IEP coordinator when theyhad made a decision. No mention was made about what Jim should do for the rest of theweek. The family went home and began searching for a lawyer, with whom they met onFriday, April 6th. The attorney immediately drafted a Due Process Request which parentsdelivered to the Superintendent on the same day. At this point, Jim had been out ofschool for a total of 29 days cumulatively for the school year. Seven of these wereofficial suspension days. Three of these were “administratively excused.” The rest of thedays missed had no designation – and ZTHS contends these were missed at the choice ofthe parents.QUESTIONS 1. What, if anything, happens on Monday? 2. How is Jim’s behavior, in your opinion, to be categorized? Is he truly likely to cause harm to himself or others? 3. Describe the requirements for an “administratively excused” absence for a disabled student? 4. Has ZTHS met all of the IDEA procedural requirements? What are these? 5. Can Jim be unilaterally removed by the school? If not, how can the school get him out of their building? Are they justified in wanting him out? THIS FACT PATTERN FORMULATED BY: BROOKE R. WHITTED WHITTED, CLEARY + TAKIFF, LLC 3000 DUNDEE ROAD, SUITE 303 NORTHBROOK, IL 60062 847-564-8662 whittedlaw@aol.com 15
  • 16. SPECIAL EDUCATION IN A NUTSHELL: A BRIEF GUIDE TO THEPROCESS AND PROCEDURES 16
  • 17. I. Referral for Initial Case Study Evaluation (“CSE”) Made A. A referral for a Case Study Evaluation may be made for any child suspected of having a disability. Every school district must develop and publicize procedures by which an evaluation may be made (“child find” procedures”) B. Referrals may be made by “any concerned person”, however, referrals are typically made by school district personnel, parents, other persons having primary care and custody of the child, other professional persons having knowledge of the childs problems, the Illinois State Board of Education ("ISBE"), and even the child them self. C. Parent is defined as a natural, adoptive, or foster parent; A guardian (but not the State if the child is a ward of the State.); An individual acting in the place of a natural or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives), or an individual who is legally responsible for the child’s welfare; or an individual assigned by the State Board of Education as a “surrogate” parent. D. Parental safeguards notification should always be provided to parents upon initial referral.II. District Decides Whether to Conduct CSE A. The school district must decide whether or not to conduct the CSE. They may use screening data and conduct preliminary procedures to assist in making this determination. If they decide not to conduct a CSE, the district must notify the parents, in writing, and explain their reasoning. A parent may request a due process hearing to contest the district’s refusal to conduct the CSE. B. Parental consent for initial CSE required prior to CSE. The date consent is obtained starts the 60 day timeline in Illinois. The district may seek a due process hearing to override a parent’s lack of consent. The new federal statute reauthorizing the IDEA has changed this timeline from a previous 60 school days in Illinois to 60 calendar days. It appears that Illinois is likely to adopt the 60 calendar day timeline, therefore most Districts are already applying it, even though Illinois regulations have not been finalized. C. "Consent" is defined to acknowledge that parents can revoke consent, but such revocation is not retroactive. Revocation of consent can be done either verbally or in writing. If done verbally, the district must confirm the request in writing by letter to the parents within five days. 17
  • 18. D. If a child is a ward of the State and is not residing with the child’s parent, the school district shall make “reasonable efforts” to obtain the informed consent from the parent of the child for an initial evaluation. However, the district is not required to obtain consent from the parent if the district cannot discover the parent’s whereabouts, following “reasonable efforts,” the parent’s rights have been terminated or “the parental right to make educational decisions has been subrogated by a judge and given to an individual appointed by the judge to represent the child.”III. CSE Conducted and Conference Held To Determine Eligibility A. The 2000 IEP Regulations state that the “IEP Team” determines both which relevant “domains” must be evaluated and the actual assessments to be utilized. Existing data must be considered. All IEP meeting must be scheduled at a mutually convenient time for both the school and the parents. B. The CSE and CSE review conference to determine eligibility must be completed within 60 days from the date of referral. C. The "date of referral" in order to start the 60-day timeline is the date on which the parent(s) sign consent for the CSE. D. According to current Illinois regulations, when a student is referred for an evaluation with less than 60 days left in the school year, eligibility must be determined and, if necessary, an IEP developed prior to the first day of the next school year. This requirement may be deleted when the new Illinois regulations are implemented. E. Parent shall be provided with a copy of the team’s report at the conclusion of the IEP meeting. A separate written statement may be provided by a team participant who wishes to be on record as disagreeing with the conclusions of the team. Within 10 days of the conference, parents shall receive written notice from the district as to the eligibility determination reached for the child.IV. Initial Special Education Eligibility Determined A. Eligibility is based on the federal and state definitions of a disability and is determined by a majority of team members. The existence of a DSM disability will not necessarily mean the child has a special education disability, unless the disability impacts the child’s education.V. Initial IEP Developed by IEP Team 18
  • 19. A. If the child is eligible for special education service under a disability category, then an IEP is drafted. The IDEA requires that specific individuals be present at the IEP team including the parent, a regular education teacher, a special education teacher an individual from the school district capable of making decisions and committing district resources. B. An IEP must be developed within 30 days of the eligibility determination.VI. Initial Special Education Placement Decision Made A. Placement decision must be based on measurable IEP goals. The 2004 IDEA reauthorization no longer requires districts to draft objectives with goals, except for severe/profound students. District may choose to draft objectives with goals. Districts should use caution if deciding not to use objectives, as goals must still be measurable. B. Parental consent for initial placement must be obtained by the school district prior to placement. According to the new IDEA reauthorized statute, School Districts may not file for a due process hearing to override a parents’ lack of consent for an initial special education placement. Note: the current Illinois consent rules promulgated in 2003 are unclear whether a District may file for a due process hearing if a parent did provide consent for an initial placement and then revoked consent. C. The school district must wait 10 days before placement may occur, although parents may waive this waiting period. In no case should placement occur later than the beginning of the next school semester.VII. Annual Review of IEP A. A review of the IEP must be held at least annually. B. 10-day parental notification required for all IEP meetings, or a record of reasonable attempts to notify parent required by the district prior to any IEP meeting. Parents may waive 10-day notice. C. A parent may request an IEP meeting at anytime (within reason) if desired. The district has 10 days after receipt of such a request to either agree to convene the meeting or notify the parents in writing of its refusal. 19
  • 20. VIII. Three-Year Reevaluation A. A reevaluation of the student may be conducted at anytime, but must be conducted at least every three years. B. Parental consent for all reevaluations must be obtained. C. The IEP team is now authorized to review the child’s existing record in order to determine whether any new evaluations are unnecessary or whether the team may rely on existing data. D. The domain determinations completed for initial evaluations must also be conducted for reevaluations. E. The new IDEA and regulations clarify that reevaluations shall not occur more than once per year, unless the parties agree otherwise.IX. Transfer Students A. Same state: A transfer student enrolling in a school district with an IEP must be enrolled immediately. The new district must provide services comparable to those in the existing IEP, in consultation with the parents, until the new district adopts the existing IEP, or develops and adopts a new IEP. Presumably, the new IEP should be based on the student’s previous needs and evaluations. B. Out-of-state: As with in-sate transfers, transfer student enrolling in a school district with an out-of-state IEP must be enrolled immediately. The new district must provide services comparable to those in the existing IEP, in consultation with the parents, unless the new district conducts its own evaluation of the student and develops a new IEP.X. Miscellaneous A. The IDEA requires prior written notice to parents whenever a district proposes to change, or refuses to change, a child’s evaluation, identification, placement or the provision of the free and appropriate public education (“FAPE”) program. B. Parents are entitled to request a due process hearing whenever they have a complaint regarding the evaluation, identification, placement, or the provision of FAPE of the child. C. The new IDEA establishes a two-year statute of limitations for filing a due process hearing following the date the parent or district knew or should have known of a violation. 20
  • 21. Common mistakes can lead to courtBrooke R. Whitted School districts as well as parents often to vent and to conclude that you are Common mistake #3:is a partner with make common mistakes that result in sympathetic and able to lend a sup- Categorical treatmentthe Chicago law formal hearings or court cases that could portive ear. manifested as "zero tolerance"firm of Whitted & be avoided. These repetitive issues thatCleary LLC. He arise when disputes between parents and Common mistake #2: Not following through Often, parents appear in therepresents a school districts reach official levels The most frequent complaint to lawyers office and say they approachednumber of child could be avoided by following some parent legal representatives is that the an educator for a service and were told,welfare agencies practical advice. school district has not been com- "We dont do that." Or, "Children withand professional Common mistake #1: municating and/or has not done what it your childs disability all go to the XYZassociations as Failure to make sufficient said what it was going to do. Nine times Program." Or, "Its my way or thewell as private use of interpersonal out of 10, when a school district has highway."schools, schools skills failed to follow through, the parents also Categorical treatment, within whichfor disabled chil- In about half of the cases, disputes voice frustration with an almost zero tolerance falls as a subset, is adren and several are really personality conflicts, resulting immediate defensive denial on the part sure-fire way to drive parents insane. Apublic school dis- when interaction between school staff of the administrator involved: "Thats not better idea is what federal and state lawstricts in the area of and a parent becomes so strained that what I meant to say" or " I never said say a school district must do: treat eachspecial education. there is no room for compromise. School that!" situation on a case-by-case, staff in the field are the best equipped to These parents are often met with an individualized basis. This way, identify "high maintenance/high risk" unequivocal denial that the commitment parental confidence in the ability of the families: those whose sufficient anguish was ever made or that a service was ever school district to meet the individual and may lead to anger and frustration promised, rather than an apology and a unique needs of their children will be directed squarely at school district quick, direct correction of the mistake. raised, and a greater rapport will be personnel. Just as with disabled children, This infuriates already frustrated parents, established between district and parents. disabled families need a special who admittedly are under pressure (and Moreover, any educator should approach. Listening goes a long way. often angry) by the time they get to the recognize that, with young children at Not listening and power struggles cause office of an attorney. Better to face up to the early elementary level, they are disputes. an error (if there was one) and move on likely to be compelled to work with This is the easiest category of than to deny the error ever occurred, these families for at least another six or mistakes to avoid. When listening to incurring the hostility and wrath of the seven years. To start off the relationship parents, give them the opportunity parents. in a hostile fashion only allows it to fester through the years, building hostility rather than happiness. 21
  • 22. With good interpersonal skills, can continue to have confidence terms and avoid $10 words or vague however, staff can turn potential parental that communications are open and acronyms. Offer further explanation enemies into some of the districts top honest. To say nothing fosters when parents seem confused. Avoid supporters. suspicion. Suspicion fosters officious behavior. lawsuits. Common mistake #4: Refusal to provide a mandated Often, parents will appear in the attorneys office and say, "The school district service completed their case study in 61 school days. Can I sue them" The answer is The courts become quite upset with usually no, because a procedural violation, to be actionable, must be serious. A school districts that blatantly refuse to provide a service the law clearly delay of a few days is human, not serious. A delay of a year or two is serious mandates. Not only does this cause and actionable. A delay of months -or years - without explanation or even a disputes, but it risks incurring personal simple phone call to the parents is likely to be serious. liability against school board members and administrators for not providing the clearly mandated service. Many examples in decisional case law exist in which personal liability has been Common mistake #6: Sometimes parents can make mistakes imposed for this reason. Secretive behavior as well. Secretive behavior includes refusals Common mistake #5: to be open with parents about what is Common parental mistake #1: Graphic procedural violations going on in their childs program. Desire to fight for Often, parents will appear in the Restrictive visitation/observation rules, attorneys office and say, "The school resisting discussions of methodology the sake of fighting district completed their case study in 61 and/or doctrinaire adherence to a Often, parents are so angry and school days. Can I sue them?" The particular methodology are all good frustrated over a childs difficulties that answer is usually no, because a examples. they want to displace their anger procedural violation, to be actionable, In a classic example, the parent of a squarely on the district, sometimes for must be serious. cochlear implant child might think oral no apparent reason. Often, even after an A delay of a few days is human, not education is better. The district restricts attorney obtains everything the parents serious. A delay of a year or two is visitation of the proposed program by are seeking without a hearing (and this is serious and actionable. A delay of the parent so she wont see the extent to the attorneys duty if at all possible), months - or years - without explanation which ASL is really being used. This is parents then become angry that they or even a simple phone call to the deceptive and fosters suspicion. And, as have not had their "day in court," or that parents is likely to be serious. mentioned, suspicion fosters disputes. they have to pay attorney fees. If a school district knows it has Likewise, use of fuzzy bureaucratic These families will want to fight incurred such a procedural violation, the terms or acronyms that parents cant regardless of what you do. Nothing will best policy is to communicate with the understand falls within the please them. At some point, it is nec- parents immediately and offer a truthful "secretiveness" category. If parents dont essary to draw the line, grit your teeth explanation as to why there has been a understand what is going on, they will and conclude that the family will never delay. This way, school districts can be become suspicious. Rule of thumb: be happy, even when the educators as transparent as possible and the parents communicate in simple, understandable efforts to satisfy the needs of the childJULY - AIGUST 2001 / THE ILLINOIS SCHOOL BOARD JOURNAL 22
  • 23. can be described as Herculean, as was miscalculation, hold to the deal approach with families that manifestdone by a judge in one case. youve made. this kind of dysfunction will usually engender respect, although there canCommon parental mistake #2: Common parental mistake #3: be times when such a plan mightGreed Not listening, or taking backfire. Use your judgment! Sometimes, school districts enter everything as a promise into an amicable settlement, either Sometimes events are visualized orally or in writing, for a reasonable by members of a family under severe retroactive reimbursement. However, stress - or with a multitude of bor- on the day the agreement is supposed derline personality disorders - which to be finalized, the parents ask for never occurred. These families also more! From a school district tend to thrive on conflict, so it is of no perspective, this should not be use to engage in confrontations. tolerated in very many cases. The best approach is to pin down If everyone has bargained in every communication with written good faith, there is no reason to correspondence (return receipt) to reverse positions just because of clarify the communication and ensure greed. Without some very compelling that all communication is accurate reasons, or a significant and, of course, truthful. A firmer BROOKE R. WHITTED WHITTED, CLEARY & TAKIFF LLC 3000 Dundee Road Suite 303 Northbrook, IL 60062 Phone: 847-564-8662 Fax: 847-564-8419 Website: www.wct-law.com Email: bwhitted@wct-law.com 23
  • 24. DEFINITIONS BROOKE R. WHITTED WHITTED, CLEARY & TAKIFF LLC 3000 Dundee Road Suite 303 Northbrook, IL 60062 Phone: 847-564-8662 Fax: 847-564-8419 Website: www.wct-law.com Email: bwhitted@wct-law.com 24
  • 25. SPECIAL EDUCATION: ELIGIBILITY AND DEFINITIONS WHITTED, CLEARY & TAKIFF LLC 3000 Dundee Road-Suite # 303 Chicago, Illinois 60062 Phone: (847) 563-8662 Fax: (847) 564-8419 Website: www.wct-law.com 25
  • 26. SPECIAL EDUCATION: ELIGIBILITY AND DEFINITIONS 23 ILLINOIS ADMINISTRATIVE CODE CH. I, S.226.75 SUBTITLE A SUBCHAPTER f Disability: Any of the following specific conditions: Autism: A developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three, that adversely affects a child’s educational performance. (A child who manifests the characteristics of autism after age 3 could be diagnosed as having autism if the other criteria of this Section are satisfied.) Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a child’s educational performance is adversely affected primarily because the child has an emotional disturbance. Deaf-Blindness: Concomitant hearing and visual impairments, the combination of which causes such severe communication and other developmental and educational needs that they cannot be accommodated in special education programs solely for children with deafness or children with blindness. Deafness: A hearing impairment that is so severe that the child is impaired in processing linguistic information through hearing, with or without amplification, that adversely affects a child’s educational performance. Domain: An aspect of a child’s functioning or performance that must be considered in the course of designing an evaluation. The domains are health, vision, hearing, social and emotional status, general intelligence, academic performance, communication status, and motor abilities. Eligible: Identified in accordance with this Part as having any of the disabilities defined in this Section and needing special education and related services. Emotional Disturbance: (includes schizophrenia, but does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance): A condition exhibiting one or more of the following characteristics over an extended period of time and to a marked degree that adversely affects a child’s educational performance1: 1Educational Performance: A student’s academic achievement and ability to establish and maintainsocial relationships and to experience a sound emotional development in the school environment. 26
  • 27. An inability to learn that cannot be explained by intellectual, sensory, or health factors; An inability to build or maintain satisfactory interpersonal relationships with peers and teachers; Inappropriate types of behavior or feelings under normal circumstances; A general pervasive mood of anxiety or unhappiness or depression; or A tendency to develop physical symptoms or fears associated with personal or school problems.Hearing Impairment: An impairment in hearing, whether permanent orfluctuating, that adversely affects a child’s educational performance but that isnot included under the definition of deafness.Mental Retardation: Significantly subaverage general intellectual functioning,existing concurrently with deficits in adaptive behavior and manifested duringthe developmental period, that adversely affects a child’s educationalperformance.Multiple Disabilities: Concomitant impairments (such as mental retardation-blindness, mental retardation-orthopedic impairment, etc.), the combination ofwhich causes such severe educational needs that they cannot be accommodatedin special education programs solely for one of the impairments (does notinclude deaf-blindness).Orthopedic Impairment: A severe orthopedic impairment that adverselyaffects a child’s educational performance; includes impairments caused bycongenital anomaly (e.g., clubfoot, absence of some member, etc.), impairmentscaused by disease (e.g., poliomyelitis, bone tuberculosis, etc.), and impairmentsfrom other causes (e.g., cerebral palsy, amputations, and fractures or burns thatcause contractures).Other Health Impairment: Limited strength, vitality or alertness, including aheightened sensitivity to environmental stimuli, that results in limited alertnesswith respect to the educational environment, that: is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, and sickle cell anemia; and adversely affects a child’s educational performance. 27
  • 28. Specific Learning Disability: A DISORDER IN ONE OR MORE OF THEBASIC PSYCHOLOGICAL PROCESSES INVOLVED INUNDERSTANDING OR IN USING LANGUAGE, SPOKEN OR WRITTEN,THAT MAY MANIFEST ITSELF IN AN IMPERFECT ABILITY TOLISTEN, THINK, SPEAK, READ, WRITE, SPELL, OR DOMATHEMATICAL CALCULATIONS, INCLUDING SUCH CONDITIONSAS PERCEPTUAL DISABILITIES, BRAIN INJURY, MINIMAL BRAINDYSFUNCTION, DYSLEXIA, AND DEVELOPMENTAL APHASIA. (THETERM DOES NOT INCLUDE LEARNING PROBLEMS THAT AREPRIMARILY THE RESULT OF VISUAL, HEARING, OR MOTORDISABILITIES, OF MENTAL RETARDATION, OF EMOTIONALDISTURBANCE, OR OTHER ENVIRONMENTAL, CULTURAL, ORECONOMIC DISADVANTAGE.) [105 ILCS 5/14-1.03(a)]Speech or Language Impairment: A communication disorder, such asstuttering, impaired articulation, a language impairment, or a voice impairment,that adversely affects a child’s educational performance.Traumatic Brain Injury: An acquired injury to the brain caused by an externalphysical force, resulting in total or partial functional disability or psychosocialimpairment, or both, that adversely affects a child’s educational performance.The term applies to open or closed head injuries resulting in impairments in oneor more areas, such as cognition; language; memory; attention; reasoning;abstract thinking; judgment; problem-solving; sensory, perceptual, and motorabilities; psychosocial behavior; physical functions; information processing; andspeech. The term does not apply to brain injuries that are congenital ordegenerative or to brain injuries induced by birth trauma.Visual Impairment: An impairment in vision that, even with correction,adversely affects a child’s educational performance (includes both partial sightand blindness). 28
  • 29. SOCIALLY MALADJUSTED CHILDREN AND SPECIAL EDUCATION SERVICES Brooke R. Whitted  WHITTED, CLEARY + TAKIFF, LLC  3000 W. Dundee Road, Suite 303  Northbrook, IL  60062  (847) 564‐8662   (847) 564‐8419 Fax  Email:  Whittedlaw@aol.com    29
  • 30. "SOCIALLY MALADJUSTED" CHILDREN and SPECIAL EDUCATION ELIGIBILITYBy: Brooke R. Whitted Sara Silverton The distinction between "socially maladjusted" and "seriously emotionallydisturbed" children is hard to determine at first glance. Under current decisional caselaw, one category receives special education services (seriously emotionally disturbed),while the other receives none. The IDEA definition of seriously emotionally disturbed20 U.S.C. 1400 et.seq has specific characteristics that must be manifest for a student tobe considered "eligible". Yet socially maladjusted children often exhibit similarbehaviors. The dividing line seems to be whether the behavior affects the studentseducation performance.I. WHO IS AN "ELIGIBLE" IDEA STUDENT? In order to be seriously emotionally disturbed, a child must be determined tohave a condition exhibiting one or more of the following characteristics over a longperiod of time and to a marked degree that adversely affects a childs educationalperformance. The student must demonstrate: An inability to learn which cannot be explained by intellectual, sensory, or health factors; -or- An inability to build or maintain satisfactory interpersonal relationships with peers and adults (the federal definition uses teachers instead of adults, 34 C.F.R. § 300.5 (b)(8)); -or- Inappropriate types of behavior or feelings under normal circumstances; -or- A general pervasive mood of anxiety, unhappiness, or depression; -or- A tendency to develop physical symptoms or fears associated with personal or school problems. 30
  • 31. Note: This term includes schizophrenic children, but does not include children who are "socially maladjusted" unless it is determined that they are also "seriously emotionally disturbed" within the IDEA definition.II. HOW IS "SOCIAL MALADJUSTMENT" DEFINED? "Socially maladjusted" had many different definitions. Two such definitions are: (1) a child who has a persistent pattern of violating societal norms with truancy, substance abuse, a perpetual struggle with authority, is easily frustrated, impulsive, and manipulative, Doe v. Board of Education of the State of Connecticut, (D. Conn. Oct. 24, 1990); or (2) a child who is incapable of fully profiting from general education al programs of the public schools because of some serious social or emotional handicap but who is expected to profit from special education, Springer by Springer v. Fairfax County School Board, 27 IDELR 367 (1998). In Doe v. Sanders, the Illinois State Board took the position that children whose functioning was impaired by reason of dependency or addiction to alcohol or other substances were not "maladjusted" and therefore not eligible for special education funding. The term "maladjusted" was not defined in the school code but is commonly defined in the dictionary as poorly or inadequately adjusted; lacking harmony with ones environment from failure to reach a satisfactory adjustment between ones desires and the conditions of ones life. This definition has evolved over the years. In 1947 "maladjusted children" meant children who were "truant, incorrigible, delinquent or in need of special education facilities designed to prevent their becoming truant, incorrigible, or delinquent." In 1961, the definition was changed to include children "who because of social or environmental problems are unable to make constructive use of their school experience and require the provisions of special services designed to promote their educational growth and development." Doe v. Sanders, 189 Ill. App. 3d 572 (September 29, 1989).III. WHO IS ELIGIBLE? Determining which children are actually "emotionally disturbed" is no easy task, often relies heavily on the definition and criteria used, and is not always the same in every case. Almost everyone exhibits some variety of inappropriate behavior. However, the frequency, intensity, duration, and context must be considered in determining the presence of an emotional disturbance. Many teachers would say that 10% to 20% of their students have "emotional problems" while the actual number of those with severe and or chronic problems is closer to 2% to 3% of the school age population. Currently less than one-half that number are formally identified and receive special education services. Robert H. Zabel, ERIC Digest #454 Emotional Disturbances; ERIC Clearinghouse on Handicapped and Gifted Children, Reston, VA. 31
  • 32. A. Example of a Finding of Ineligibility The U.S. Court of Appeals for the 4th Circuit recently found a conduct-disordered child not eligible for special education services. Springer bySpringer v. Fairfax County School Board, 27 IDELR 367 (1998). The parents ofan eleventh grader requested reimbursement for their unilateral placement oftheir child. The hearing officer found their sons truancy, alcohol and drugproblems were related to his conduct disorder, not to an emotional disturbance.Three separate psychologists examined their son and all three stated he was notseriously emotionally disturbed. His parents testified that he go along well witheveryone, and it was determined his failing graders were related to his truancyand drug use, not his inability to learn. The court held that a "bad conduct"definition of serious emotional disturbance might include almost as many peoplein special education as it excluded. Therefore, this court upheld the decisions ofthe hearing officer and the district court, denying the parents the reimbursementthey sought.B. Finding of Eligibility In two cases the child was found to be SED and received specialeducation services or a 504 plan. In another, the child could be SED if aphysical exam showed the disabilities did not result from a health issue. 1. West Chester Area School District, 18 IDELR 802 (March 21,1992). The parents of a thirteen-year-old student with anxiety and separation disorders was found to be seriously emotionally disturbed. The hearing officer determined that her disability did not substantially limit a major life activity (most notably learning). Experts on both sides stated that she needed individual therapy in order to maintain regular attendance, but there was no proof that she needed individual instruction. Therefore, she was eligible under section 504 to receive the necessary related services, but she was not eligible under IDEA. 2. Township High School District #211, 24 IDELR 1059 (June 3, 1996). Parents of a high school student unilaterally placed their child in a residential placement and were seeking reimbursement from the district. The district refused to pay because she was not seriously emotionally disturbed, according to their test results. However, the residential placement staff found that she was in fact SED. The overwhelming evidence was that she was either unhappy or depressed over a considerable length of time, that this mood affected all of her behavior, and that her emotional state affected her scholastic performance. The review officer affirmed 32
  • 33. the decision requiring the district to pay room and board from January 23, 1996 until it is shown that a less restrictive environment is appropriate. 3. Cornwall Central School District Board of Education, 17 EHLR 10239 (June 6, 1991). The parent of a fourteen-year-old child appealed a decision that their child was not seriously emotional disturbed. The review officer held that the childs emotional difficulties had, in fact, impacted significantly on his education performance even though the child had not failed any courses. The child also experienced physical symptoms at school. The hearing officer determined that the child met the criteria for SED but due to the fat that no observations had been done in the classroom, a final decision on his eligibility would have to wait until the observations were complete. These observations would provide information about the childs learning style, his educational strengths and his weaknesses enabling the school to develop an appropriate individualized educational plan ("IEP").C. Other Finding of Ineligibility In other instances the hearing officer has overruled the labeling of a childas SED. In the City Sch. Distr. Of NYC, 20 IDELR 727 (December 6, 1993),the parents of a child request a due process hearing to challenge the schooldistricts classification of their daughter as SED. The state review officer heldthat a classification of emotionally disturbed cannot be basis for excludinghealth factors as a source of the child academic difficulties. It was ordered thatwithin thirty days a physical examination must occur and a newrecommendation as to classification and placement be made. More often than not, the schools and then the hearing officers find thechild does not qualify as seriously emotionally disturbed because they are only"socially maladjusted." Therefore, no services are provided for those students.The following cases summarize the holding of some of those decisions. Morgan Hill Unified Sch. Dist., 19 IDELR 557 (November 5, 1992). The parent of a twelve-year-old student wanted their son placed in a residential setting. However, their son was found to be learning disabled, not emotionally disturbed. The hearing officer found the child did not met the criteria of SED because he was socially maladjusted and therefore not entitled to special education services. The hearing officer rejected the districts proposal and directed the IEP team to meet and determine an 33
  • 34. appropriate day treatment program that would include therapeutic individuals as well as family counseling.Corpus Christi Independent Sch. Dist., 18 IDELR 1281 (August 7, 1992). The parent of an eighteen-year-old student wanted their son placed residentially because he was SED. The hearing officer held for the district because it was determined the child was learning disabled and socially maladjusted, not emotionally disturbed. The officer stated that if a child is SED and socially maladjusted, then he qualifies as SED, and his social maladjustment does not preempt the SED as a qualifying disability for special education and related services. The duty of special education is not to force socially maladjusted children to school by residentially placing them if they chose to remain truant. Therefore, the child (should he choose to attend school) would have his needs met through the proposed IEP.Fauqueir County Pub. Sch., 20 IDELR 579 (August 11, 1993). The parents of nine-year-old wanted their daughter classified as seriously emotionally disturbed so she could receive special education services. The hearing officer held for the district and denied placement in special education. The hearing officer found that the child did exhibit rage and behavioral problems as home and was categorized as "asocial" but she was making significant progress in school. The officer also found her to be well adjusted in the school setting. Therefore, the child was benefiting from the regular education program and this is where she would remain.Bessemer City Board of Education, 19 IDELR 652 (December 16, 1992). The parent of a student who was expelled form school for fighting brought this action claiming their son was "socially maladjusted" and therefore could not be expelled from school. The school said that even if the child was socially maladjusted, he would have to meet the IDEA criteria for SED before becoming ineligible for expulsion. The hearing officer then found that the child did not meet the definition of socially maladjusted, therefore, he was not protected by the state law guarantees for exceptional children, and his expulsion had not been improper.A. E. v. Independent School District #25 of Adair County, Oklahoma(10th Cir. June 10, 1991; 17 EHLR 950). 34
  • 35. Parents of a child sought to have their daughter classified as emotionally disturbed so she could receive special education services. This court affirmed the ruling of the trial court in finding the child was not emotionally disturbed. The testimony present in the case supported the finding that A.E. suffered from a conduct disorder, but was not SED within the federal definition. A.E. would continue to receive services for her learning disability in math, but not services for the SED diagnostic category. Doe v. Board of Education of the State of Connecticut, (D. Conn. October 24, 1990; 17 EHLR 37). The parents of a child with emotional problems brought an appeal from the hearing officers decision. Although it was confirmed the child had some emotional difficulties, it was determined that these did not impede or adversely affect his educational performance. The district court affirmed the decision of the state board of education that Doe was not SED and therefore was not entitled to special education services.IV. CONCLUSION Special educators have renewed their debate over how to define children withemotional disturbances who qualify for special education when the new IDEA wasproposed. The new IDEA did drop the word "serious" from emotionally disturbed butthis change will not have an effect on the definition. Until an entirely new definition iscreated listing specific behaviors that can be observed in interviews and in socialsettings, this area of law will continue in the direction of denial of services. 35
  • 36. SUMMARY OF RESEARCH ARTICLES:Prevalence of Children withDisabilities in the Juvenile Delinquent/Corrections PopulationBrooke R. WhittedLara A. ClearyWhitted, Cleary & Takiff LLC3000 W. Dundee Road, Suite 303Northbrook, IL 60062847/564-8662 847/564-8419 FaxEmail: Whittedlaw@aol.com 36
  • 37. Summary of Research Articles: Prevalence of Children with Disabilities in the Juvenile Delinquent/Corrections Population1. Robinson, T.R., Rapport, Jane K. Providing Special Education in the Juvenile Justice System. Remedial and Special Education 20 (1), 19-26. (1999). A. Purpose: This article discusses the pertinent issues in providing special education services in the juvenile justice system. It addresses the prevalence rates, problems with correctional facility personnel, recent developments, and recommendations for facilitating special education programming in correctional institutions. B. Findings: “Congress has made it clear that the responsibility for educating youth with disabilities does not terminate upon incarceration.” Although state agencies are mandated to provide appropriate educational services to youth with disabilities who are incarcerated, evidence suggests that many receive substandard programs. “Numerous data sources indicate that the prevalence of juveniles with disabilities in correctional facilities far exceeds the prevalence noted in the general population.” The most commonly occurring disabilities within correctional facilities are learning disabilities, behavioral disorders, and mental retardation. Although no conclusive evidence supports any single theory regarding why delinquency occurs, social deficits seem to be a superceding factor. The courts have held that correctional facilities must provide juveniles with appropriate educational services in an expedient manner. Also, the Department of Justice is required to make a good faith effort to identify and serve youth with disabilities. Despite the legal mandates, few programs have been developed to serve the educational needs of incarcerated juveniles with disabilities. On an already overburdened juvenile justice system, responsibility for administration and cost of special education services is a controversial issue because numerous agencies are often involved in providing services. The right to a free and appropriate public education in the least restrictive environment does not entitle students with special needs to avoid the legal consequences of their actions. For safety reasons, the least restrictive environment for inmates has to be somewhat restrictive. Conclusion: The fact that all children and youth, including incarcerated juveniles, with disabilities are entitled to a free and appropriate public education has been affirmed by a number of courts located throughout 37
  • 38. the nation. The problem is that incarcerated youth with disabilities are frequently not receiving the services for which they qualify according to the Individuals with Disabilities Education Act.2. Leone, Peter E., Ph.D., et. al. Understanding the Over Representation of Youths With Disabilities in Juvenile Detention. 3 D.C. L. Rev. 389. (1995). A. Purpose: Youths with disabling conditions are grossly over represented among those detained and confined in juvenile correction systems. The authors note that while only 7% of all public school students in the United States have been identified as having disabilities such as mental retardation, emotional disturbance, and learning disabilities, in the juvenile justice systems the prevalence rate is estimated to be between 12% to 70%. Some jurists, court personnel, and counsel representing youths charged with delinquency may not have a good understanding of the behaviors associated with disabling conditions. Therefore, such behaviors may be misinterpreted by officials in the juvenile justice system and contribute unnecessary detention. This article examines the detention of youths with disabilities in juvenile corrections, and tries to discover what, if anything, professionals can do to provide equitable treatment to youths with disabilities. B. Findings: The authors examined the characteristics of some juveniles with disabilities that may make them more susceptible to detention prior to adjudication. Such characteristics include communication problems and poor comprehension. They noted that across the disability categories such characteristics cause the children with disabilities to appear “uncooperative,” “disrespectful,” “angry,” and “irritable,” and act to increase the likelihood that these youths will have negative encounters with the juvenile justice system. C. Conclusion: Professionals in the juvenile justice system must be aware of the characteristics attributed to the different disability categories, and must be able to discriminate between behaviors stemming from disabilities that pose little or no threat and those that are true indicators of dangerousness. In addition to learning to identify children with disabilities, juvenile justice professionals must also learn how to provide appropriate special services. Given the disproportionate numbers of youths with disabilities entering the juvenile justice system, the authors suggest that “basic information 38
  • 39. and skills should become a mandatory part of training for juvenile justice professionals.”3. Brier, Norman. The Relationship Between Learning Disability and Delinquency: A Review and Reappraisal. Journal of Learning Disabilities 22 (9), 546-553. (1989). A. Purpose: This article reviews research on the prevalence of learning disabilities among delinquent populations. The author describes and evaluates three hypotheses explaining the “link” between learning disability and delinquency. The author also covers the general risk factors for the onset of delinquency. B. Findings: “Individuals with learning disabilities have been noted to comprise a disproportionately large segment of juvenile delinquent populations.” The prevalence rates have varied widely, ranging from 12% or less to 70% or more. Three hypotheses have been proposed to explain why individuals with learning disabilities are more likely to become delinquent than non-learning-disabled individuals. All three explanations view a learning disability as the single or primary cause of delinquency. The susceptibility hypotheses proposes that the neurological and intellectual difficulties of learning disabled individuals directly contribute to antisocial behavior. The school failure hypotheses proposes that the school failure typically experienced by learning disabled individuals is a first step in a sequence that culminates in delinquency. The differential treatment hypotheses raises three questions: 1. Are individuals who are learning disabled more likely to be picked up by the police than non-learning disabled individuals for comparable levels of delinquent activity? 2. Are individuals with learning disabilities who are charged with a violation at greater risk of adjudication than non-learning disabled individuals? 3. Are individuals who are learning disabled more likely to receive a severe disposition from juvenile court than non- learning-disabled youngsters? The data clearly exhibited that individuals with learning disabilities are treated differently by the judicial system. There are three factors thought to predispose youngsters towards delinquency; Low IQ; psychopathology in the parent; and difficulties in parent management. C. Conclusion: The presence of a learning disability does seem to place a youngster at an increased risk of a delinquent outcome. Three 39
  • 40. hypotheses have been proposed to explain why individuals with learning disabilities are more likely to become delinquent. Research is still needed to test these proposed relationships. With such knowledge, youngsters who are at a high risk can be identified early and provided with preventative intervention. Also targeted treatments can be established for those individuals with learning disabilities who are already delinquent.4. Grande, Carolyn G. Delinquency: The Learning Disabled Student’s Reaction to Academic School Failure? Adolescence 23 (89), 209-219. (1988). A. Purpose: This article reviews research regarding delinquency as the learning disabled student’s reaction to academic school failure. The author also defines a target population for experimental research in this area. B. Findings: The author examined studies concluding that there is a correlation between disruptive or delinquent behavior and academic achievement. Research regarding the failure-delinquency relationship focuses on factors such as socioecomonic status, sex, and age. Dropout rate has also been related to unsuccessful school experiences. The author examined studies for defining a target population for experimental research regarding delinquency as the learning disabled student’s reaction to academic school failure. One study investigated the relationship between successful (70% and above) and failing (below 70%) daily grade notifications and school disciplinary offenses of six 9th- grade learning disabled males. It was determined that a moderate negative correlation existed between success and school disciplinary offenses for the students. A comparative analysis of male and female delinquency revealed that males tend to commit offenses at a higher frequency than females. Statistics consistently demonstrate that male adolescents, overall, tend to commit a majority of crimes. There was no direct correlation assessed concerning socioecomonic status and delinquency. C. Conclusion: Research results lead to the conclusion that a link between learning disabilities and juvenile delinquency is established. Learning disabled male adolescents are targeted as likely candidates for delinquent involvement and are, therefore, described as the target population for experimental research. Whether delinquency is the learning disabled student’s reaction to failure remains to be demonstrated. 40
  • 41. 5. Larson, Katherine, A. A Research Review and Alternative Hypothesis Explaining the Link Between Learning Disability and Delinquency. Journal of Learning Disabilities 21 (6), 357-363. (1988). A. Purpose: 1. This article reviews and evaluates current hypotheses that attempt to explain the link between learning disabilities and juvenile delinquency. The author notes that the high prevalence rate of children with disabilities in the juvenile delinquent population indicates the need to synthesize historical and current data and evaluate empirical support of existing causal hypothesis. Estimates of prevalence of learning disability among delinquents range from 26% to 73%. Children with learning disabilities are adjudicated at about twice the rate as non- learning youth, and LD youth have greater recidivism and parole failure. 2. The article examines three main hypotheses; 1) The School Failure Hypothesis, which postulates that learning disability leads to school failure, which leads to a negative self-image, which in turn results in school dropout and delinquency; 2) The Differential Treatment Hypothesis, which proposes that children with learning disabilities and non disabled peers engage in the same rate and kind of delinquent behaviors; however, police, social workers, and other officials treat children with LD differently so as to increase incidence of arrest and/or adjudication; and 3) The Susceptibility Hypothesis, which contends that learning disabilities are frequently accompanied by “a variety of socially troublesome personality characteristics.” The author also suggests a different approach called the Alternative Hypothesis. B. Findings: First, the author examined each of the three theories and rejected all of them, stating that the research has not indicated a connection between any of the theories and the LD/juvenile delinquent link. She noted that both the school failure and differential treatment hypotheses are not supported by empirical evidence. The susceptibility hypothesis lacks empirical testing, and the concept of susceptibility appears to be too global to be systematically testable. Finally, the author suggests that an alternative theory may be able explain the link. This approach postulates that ineffective social cognitive problem-solving skills increase risk for delinquency in learning disabled youth. C. Conclusion: The author notes that more research, specifically that which tests relationships within the hypothesis, is needed to further 41
  • 42. validate the alternative approach. Because delinquency is of such serious concern to contemporary society, this type of research is of vast importance.6. Murphy, Donna M. The Prevalence of Handicapping Conditions Among Juvenile Delinquents. Remedial and Special Education 7 (3), 7-17. (1986). A. Purpose: This article reviews and summarizes the literature regarding the prevalence of disability conditions among juvenile delinquents, because such information is scattered throughout various educational and correctional journals, and institutional and governmental reports. The author notes that interest in this area began with the implementation of Section 504 of the Vocational Rehabilitation Act of 1973, and the Education for all Handicapped Children Act of 1975, but has recently intensified following national surveys revealing that an extraordinary number of delinquents have disabilities. B. Findings: The overall prevalence rates of children with disabilities in the juvenile delinquent population, based both upon large-scale official estimates of disabilities among delinquents and upon direct examination of the records of selected samples of delinquents, range from nearly 30% to more than 60%. In contrast, the Office of Special Education Programs (OSEP), found that only 10.76% of children in the general population have disabilities. The research also indicated that the prevalence of some disabilities among juvenile delinquents, particularly emotional disturbance, learning disabilities, and mental retardation, are extremely disproportionate to the prevalence estimates of non-disabled youths. The author pointed out that the instability among prevalence rates may be attributed to a number of factors, including inconsistency between official definitions, no uniform criteria for identifying disabilities, and differences in terminology between the states. C. Conclusion: Although the research in this area has yielded inconsistent results, the studies do indicate that a disproportionate percentage of young offenders have disabilities, and the prevalence of certain disabilities may be much greater among this population than among the general population of children and youth. The author noted that all of the research, taken together, constitute an “urgent call for a comprehensive, interdisciplinary approach to the systematic identification of young offenders with disabilities, consistent provision of appropriate special education services by qualified 42
  • 43. personnel, and regular monitoring of responsible agencies for compliance with state and federal laws.”7. Keilitz, Ingo & Dunivant, Noel. The Relationship Between Learning Disability and Juvenile Delinquency: Current State of Knowledge. Remedial and Special Education 7 (3), 18-26. (1986). A. Purpose: The background, research, and results of a multi year project, the Learning Disability-Juvenile Delinquency Project (LD-JD Project) were examined in this article. The LD-JD project, initiated in 1976, was designed to research whether a link existed between learning disabilities and juvenile delinquency, and, if so, what the nature of this link was. The researchers also wanted to examine five theories/hypotheses that had recently been advanced to explain the relationship between learning disabilities and juvenile delinquency. B. Procedures: The research of the LD/JD study consisted of three studies. The two main studies were an age cross-sectional study and a longitudinal study. These were conducted in an effort to determine whether LD is related to delinquency and, if so, to determine the nature of that relationship. The age cross-sectional study was based on a sample containing a cross-section of age groups, measured at a single point in time. The sample was composed of 973 teenage boys from the public schools of Baltimore, Indianapolis, and Phoenix, who had no prior record of official delinquency, and 970 boys from the juvenile courts and youth correctional facilities in the same three cities. The longitudinal study was an investigation of 351 boys from the cross-sectional sample who had no history of official delinquency. C. Analysis of Results: Both studies indicate that adolescents with learning disabilities had significantly higher rates of general delinquent behavior and they engaged in more violence, substance abuse, and school disruption than non-learning disabled adolescents. Additionally, the likelihood of arrest and adjudication was substantially higher for adolescents with learning disabilities. The research indicated that children with learning disabilities make up a significant percentage of those who have been officially adjudicated, with most estimates falling in the 30-50% range. The studies also confirmed the existence of three of the five theories/hypotheses that attempted to explain the link between LD and juvenile delinquency. These theories were the school failure theory, the susceptibility theory, and the differential treatment theory. 43
  • 44. D. Conclusion: The results of the JD/LD Project have established that a link between learning disabilities and delinquency exists. The authors noted that adolescents with learning disabilities are at a relatively high risk for delinquency. This implies that juvenile justice, human services, and educational agencies should target special prevention and rehabilitation programs for this population.8. Winter, Bill. Learning Disability: The Young Offenders Curse. 63 Apr. ABA J. 427. (1983). A. Purpose: This article, printed in the American Bar Association Journal, briefly described the findings reported at a recent, mid-year ABA meeting. The topic of discussion at this meeting was the issue of children with disabilities and juvenile delinquency. B. Findings: According to the chief of psycho-educational services at the Children’s Evaluation and Rehabilitation Clinic, at the Albert Einstein College of Medicine, in New York City, it is estimated that 75% of all juvenile delinquents have learning disabilities. This expert also noted that the symptoms of learning disabilities include impulsiveness, lack of control, lack of reflection, hyperactivity, poor attention, and the inability to acquire proficiency in basic learning skills. This expert also noted that 80% of all children with learning disabilities are boys. Other experts present at this meeting placed the responsibility for children with learning disabilities in juvenile courts, on the juvenile court judges. It was alleged that many juvenile justice systems are guilty of “criminal” neglect in ignoring this problem and actually are at odds with school systems over what to do. C. Conclusion: Finally, it was suggested that courts need to be aware of the administrative processes that can be used to obtain services for a child with a learning disability. Under Federal Law a “free and appropriate education” can be ordered for LD children. A judge can be the first person to initiate the process by identifying a child as LD and requesting an evaluation.9. Morgan, David I. Prevalence and Types of Handicapping Conditions Found in Juvenile Correctional Institutions: A National Survey. The Journal of Special Education, 13 (3), 283-295. (1979). 44
  • 45. A. Purpose: This article summarizes the findings of a comprehensive national survey of all juvenile offenders with disabilities committed to state correctional facilities throughout the United States. The stated purpose for this survey was to collect “information useful to educators, correctional administrators, and legislators alike in their efforts on behalf of incarcerated children, both from the standpoint of possible preventative interventions in elementary and secondary educational systems.” B. Survey Procedures: Questionnaires were sent to state juvenile correctional administrators in 50 states and 6 U.S. territories. The total number of responding institutions was 204, representing every state and all but one of the territories. The main part of the survey requested the total number of children in each disability category at the facility. The categories of disabilities were derived directly from P.L. 94-142, the controlling federal law at the time the survey was conducted. Additional statistical information derived from the survey included educational participation, teacher-pupil ratios, and fiscal expenditures. C. Analysis of Results: The survey revealed an excessive number of juveniles with disabilities in the correctional institutions. 42.4% of delinquent children committed to correctional facilities were found to have some type of disability. In the general population, however, the incidence of children with disabilities is only 12.3%. The disability categories with the highest incidence rates were emotional disturbance (16.23%), learning disabilities (10.59%), and educable mental retardation (7.69%). D. Conclusion: After listing the statistical information by state, and conducting a brief literature review of previous research in this area, the author emphasized the need for further research on the reasons behind the high prevalence of children with disabilities in the juvenile corrections population. He cautioned against a strict reliance on the statistics collected, noting that there could be many explanations for why such an extremely high prevalence rate was reported, including administrative policies and broad interpretations of category definitions.(Emphasis added in text where appropriate.) 45
  • 46. What Happens When a School District Fails to Respond to the Needs of a Suicidal Child? WHITTED, CLEARY & TAKIFF LLC 3000 Dundee Road Suite 303 Northbrook, IL 60062 Phone: 847-564-8662 Fax: 847-564-8419 Website: www.whittedclearylaw.comm Email: bwhitted@whittedclearylaw.com 46
  • 47. Potential Liability Risks for a School Districts Failure to Act When it has Knowledge of a Suicidal Child in its Population By Brooke R. Whitted, Malcolm C. Rich This presentation will deal with special education liability and personal liability ofschool district officials when a district fails to act when it has knowledge of a suicidalchild in its population.Special Education Liability A school district can be held liable when it fails to serve a student within itspopulation when it has knowledge that a student is or has been suicidal. This was the case in the March 2002 impartial due process hearing decision incase of KJE vs. Oakwood Community Unit School District #76 (Case No. 25-553). Facts KJE had been diagnosed since October 1999 with a number of mental illnesses.In October of 1999, the parents of KJE reported to the school principal that their daughterhad informed them that she had planned to kill herself. The principal failed to request oreven suggest a case study evaluation for special education services or to offer anyservices whatsoever to KJE. In December 1999, KJE once again threatened to kill herselfand also threatened to kill her mother after becoming violent with her parents. She wassubsequently hospitalized and diagnosed with major depression. On December 31, 1999,KJE attempted to commit suicide a second time. She subsequently informed the schoolprincipal that she was continuing to have suicidal feelings. Soon thereafter, she made athird suicide attempt and was admitted to an inpatient psychiatric unit. After her thirdpsychiatric hospitalization, KJE’s parents met with the school principal and informed herof the suicidal history of their daughter. The principal offered no services to KJE and didnot refer her for a case study evaluation. At age 14, KJE was eligible to attend the schooldistricts high school, which also refused to provide appropriate special educationservices. The parents were forced to home school KJE while they searched for anappropriate residential placement. In November 2001, the school district conducted an IEP meeting to discussspecial education eligibility and placement. Despite an overwhelming amount ofevidence that KJE suffered from a severe emotional disturbance, the school district teamdecided that KJE was ineligible for special education services. During the session, theteams social worker presented a letter describing KJE as being a "very real risk toherself." But the team made no mention of KJEs four suicide attempts, history of 47
  • 48. psychotic behavior, or socialization problems, but instead stressed that she had receivedpassing grades in 7th and 8th grade. In determining that KJE was not eligible for specialeducation services, the meeting notes stated that it was not possible to determine anadverse effect on educational performance since KJE was not attending classes full-timeat a regular education high school setting. The parents filed for a due process hearing andmoved KJE to a residential facility. Issues 1. The school district, as its defense, claimed that KJE was not "seriously emotionally disturbed" and she was therefore not entitled to special education services. 2. The school district also claimed that KJE was not entitled to special education services because she was not failing her courses and was progressing from year to year. 3. The district further claimed that it was not required to provide a case study evaluation because the parents failed to request it. Analysis The School District Had Adequate Knowledge To Establish That KJE Was Seriously Emotionally Disturbed The basic tenets of IDEA are that all applicable laws and regulations require aschool district to demonstrate that it properly identifies the nature and severity of astudents suspected disability and offers the student a free appropriate public education inthe least restrictive environment. In so doing, a district must act consistently withprocedural safeguards. Part of these safeguards is that a school district has an affirmativeduty to actively seek out and identify children in need of special education services. The hearing officer in the KJE case emphasized the fact that the school was awareof KJEs suicide attempts, psychiatric hospitalizations, and telephone conversations thatwere made between the parents and the middle school principal and the school districtssocial worker. According to Federal Regulations (34 C.F.R. Sec. 300.7(a)), in order to beidentified as an emotionally disturbed student, a child must be determined to have acondition exhibiting one or more of the following characteristics over a long period oftime. A student must demonstrate: Inability to learn which cannot be explained by intellectual, sensory, or health factors; or An inability to build or maintain satisfactory interpersonal relationships with peers; or Inappropriate types of behavior or feelings under normal circumstances; or A general pervasive mood of anxiety, unhappiness, or depression; or 48
  • 49. A tendency to develop physical symptoms or fears associated with personal or school problems. The hearing officer, in determining that the student met the requirements of thedefinition of severely emotionally disturbed, stated: "Had the local school districtproperly investigated the students academic performance, it is clear to the hearing officerthat an investigation would have led to the conclusion that the student met therequirements." The hearing officer rejected the school districts notion that because KJEwas not failing academically, she did not meet the emotional disturbance criteria. In Township High School District #211, 24 IDELR 1059 (June 3, 1996), parentsof a high school student unilaterally placed their child in a residential placement andsought reimbursement from the district. The district refused to pay because she was not"emotionally disturbed," according to their test results. A hearing officer found,however, that there was overwhelming evidence that she was either unhappy or depressedover a considerable length time, and that her emotional state affected her academicperformance. In KJEs case, it was clear that she had been seriously depressed, and that thisdepression had affected her behavior -- KJE had attempted suicide on four separateoccasions. Furthermore, it was clear that this depression had affected her scholasticperformance. She was not failing her academic courses only because she possessedhigher cognitive ability, however not how our regulations define a "educationalperformance": Educational Performance: A students academic achievement and ability to establish and maintain social relationships and to experience a sound emotional development in the school environment (emphasis added, 23 IAC 226.75). The hearing officer rejected the notion that the school could ignore its knowledgeof KJE’s suicidal tendencies and other serious emotional difficulties simply because shewas not failing her academic courses, as this conveyed a profound ignorance of theregulatory definition.. There is No Requirement That a Student Must Be Failing Academically Before He or She is Entitled to Special Education Services In the Rowley case, 458 U.S. 176, 102 S.Ct. 334, 73 L.Ed. 2nd 690 (1982), theU.S. Supreme Court noted that Amy Rowley was a deaf student who performed "betterthan the average child in her class and is advancing easily from grade to grade." 73 L.Ed.2nd at 699. In fact, Amy was receiving As and Bs in her classes but under the IDEA, theschool district nevertheless found her eligible for special education services. TheSupreme Court ruled that while the education system does not have to maximize thepotential of each handicapped child, the school systems commitment to children withdisabilities requires that these children must have access to specialized education and 49
  • 50. related services. And, these services must be individually designed to provide significanteducational benefits to each handicapped child. A child cannot be excluded from special education services just because he or sheis not failing academically. The Supreme Court stated: "We do not hold today that everyhandicapped child who is advancing from grade to grade in a regular public schoolsystem is automatically receiving a free appropriate public education. 73 L.Ed. 2nd at1710. Hearing officers and judges have concurred in cases throughout the country. InCornwall Central School District Board of Education, 17 E.H.L.R. 10239 (June 6, 1991),the parent of a 14-year-old child appealed a decision that their child was not seriouslyemotionally disturbed. The review officer held that the childs emotional difficulties had,in fact, impacted significantly on his educational performance even though the child hadnot failed any courses. The child also experienced physical symptoms at school. Thehearing officer determined that the child met the criteria for SED, but due to the fact thatno observations had been done in the classroom, the final decision on his eligibilitywould have to wait until observations were complete. In Manhattan Beach Unified School District, 34 IDELR 249 (March 14, 2001), anadministrative hearing officer ruled that the parents of a 16 year old with seriousemotional difficulties who was unilaterally placed in a private facility were entitled toreimbursement by the school district. In this case, as in the case of KJE, the student hadnever been found eligible for special education. At the time of the hearing she was livingin a therapeutic boarding school. When the student was in eighth grade she beganexhibiting disturbing behaviors that were in many ways similar to those exhibited byKJE. She, like KJE, was hospitalized in a psychiatric facility and had made a suicideattempt. The school district in Manhattan Beach found that the student did not meet theeligibility criteria for special education in part because in the districts view, she wasdoing well academically. The hearing officer in Manhattan Beach disagreed with the school district, findingthat the student was seriously emotionally disturbed in light of the fact that shedemonstrated a general pervasive mood of unhappiness and depression; exhibitedcharacteristics of emotional disturbance for over 6 months; exhibited these characteristicsin home, school and therapy environments; and was not achieving "mastery" in herclasses -- her class work was sufficiently affected by her disability. The hearing officerconcluded that because the school district did not find the student eligible for specialeducation, it did not provide a free appropriate public education and ordered the schooldistrict to reimburse the parents for their unilateral private residential placement. Two other cases establish the principle that a student need not be failingacademically before he or she is entitled to special education services: 1) In Yankton School District vs. Schramm, 93 F. 3rd 1369, 24 IDELR 704 (8thCir. 1996), a child with Cerebral Palsy who was achieving high marks in school still 50
  • 51. qualified as a child in need of special education under IDEA, when the child continued toneed specially designed instruction and related services; 2) In Schoenfield v. Parkway School District, 138 F. 3rd 379, IDELR 845 (8th Cir.1998), a court found that academic performance at or above age level does notnecessarily mean a child is not disabled or that the education satisfies the standard ofappropriateness. A School District Must Provide a Case Study Evaluation Even If Parents Do Not Request It The hearing officer in KJE rejected the notion set forth by the district that the theywere required to provide a case study evaluation "because the parents did not requestone." The hearing officer found that by failing to investigate KJEs special needs, theschool district “failed to comply with the most elementary requirements of “child find” asoutlined in the Illinois Administrative Code. Under the "Child Find" provision, eachschool district is responsible for actively seeking out and identifying all children frombirth through age 21 within the district who may be eligible for special education andrelated services. The hearing officer therefore ordered the school district to pay forprivate residential placement. In general, the KJE case shows that knowledge by a school district of a student’ssuicidal ideation and other serious emotional difficulties is enough to require a case studyevaluation. Moreover, a school district will be found liable should it choose to ignorethese therapeutic problems simply because a child is progressing from grade to grade.Personal Liability of School Officials There are two relatively recent cases which establish that it is possible to assignpersonal liability to selected school officials when serious behavioral difficulties areknown to the school district, but are ignored. In November 2000, the Superior Court in Connecticut awarded more than$67,000.00 to a special education student who was attacked by another special educationstudent, based on the evidence that the assistant principal had reason to know of thepotential harm to the victim. Kendall B. West Haven Department of Education, et. al., 33IDELR 270 (Conn. Superior Ct). In this case, a special education student suffered fromfrequent harassment and bullying from another student. The student told his parentsabout the harassment, and they told him to inform school officials. The student told theassistant principal of the other students actions, which included racial epithets, spitting,and pushing. The assistant principal stated that would take care of the matter, but shetook no action. She did not inform other school officials and she left the premises for theday shortly after meeting with the student. Later that day, the student was attacked by theother student in the cafeteria. The student victims head hit the floor, knocking out histwo front teeth and breaking his jaw on both sides. 51
  • 52. The court found that because the assistant principal was informed of the previousattacks, she had an affirmative duty to take action to prevent further attacks. The courtnoted that "the evidence unambiguously establishes that she did nothing." Given thenature of the inaction, the assistant principal was not shielded by the doctrine ofgovernmental immunity. She knew of "likely imminent harm to an identifiable person,"and was therefore liable for negligence. In a Federal District Court action, a judge has ruled that a Santa Barbara highschool district administrator was personally liable for damages under Section 1983 of theFederal Civil Rights Act for violating a mothers right to obtain a free appropriate publiceducation for her special needs son, as required by IDEA. Goleta Union ElementarySchool District vs. Andrew Ordway, CD 99 – 07745 (CD CAL, verdict December 5,2002). The mother of the special needs student alleged that the director of studentservices for the Santa Barbara High School District placed her son in a new schoolwithout investigating whether the new school met the students special education needs. The school official had moved for summary judgment, maintaining that she couldnot be held personally liable under Section 1983 for a violation of IDEA, because "merenegligence on the part of a government official is insufficient to support such a claim."The court held that a showing of heightened culpability is not required to establish aviolation of IDEA -- "…all that is required to establish a Section 1983 claim is proof of aviolation of IDEA under color of law." The court determined that the official denied thestudent a free appropriate public education by failing to offer him an appropriateplacement. This officials conduct constituted a violation of IDEA. A trial on the parentsrequest for damages has been scheduled.Conclusion Once a determination is made that a school district violated IDEA by not actingupon knowledge that it had in relation to special needs of a student – such as suicideattempts or suicidal ideation -- there is school liability and, in certain instances, personalliability of school education personnel for damages resulting from the misconduct. 52
  • 53. THE ROWLEY CASE: WHAT DOES IT REALLY MEAN? Prepared by: Whitted, Cleary & Takiff LLC 3000 W. Dundee Road, Suite 303 Northbrook, IL 60062 (847) 564-8662 (847) 564-8419 FAX Email: WhittedLaw@aol.com 53
  • 54. THE ROWLEY CASE: WHAT DOES IT REALLY MEAN? By Brooke R. Whitted Whitted & Cleary, LLC INTRODUCTION The case of Rowley v. Hendrick Hudson School District1 was the U.S. SupremeCourts first interpretation of what was then called the Education for All HandicappedChildren Act (now the Individuals with Disabilities Education Act, “IDEA”). Thisimportant decision is required reading for anyone working in special education. The caseconcerned a hearing impaired girl named Amy Rowley, who was a student at the FurnaceWoods School in Hendrick Hudson Central School District, Peekskill, N.Y. Amy hadminimal residual hearing and was an excellent lip reader. During the year before shebegan attending school, a meeting between her parents and the school administratorresulted in a decision to place her in a regular kindergarten class. Several administratorsprepared for Amys arrival by attending a course in sign language interpretation, and ateletype machine was installed in the principals office to facilitate communication withher parents, who were also deaf. At the end of the trial placement it was determined thatAmy should remain in the kindergarten class, but that she should be provided with an FMtransmitter. Amy successfully completed her kindergarten year. As required by the Act, an IEP was prepared for Amy during the fall of her firstgrade year. The IEP provided that Amy should be educated in a regular classroom,should continue to use the FM device, and should receive instruction from a tutor for thedeaf for one hour each day and from a speech therapist for three hours each week. TheRowleys agreed with parts of the IEP, but insisted that Amy also be provided a qualifiedsign language interpreter in all her academic classes in lieu of the assistance proposed inother parts of the IEP. Such an interpreter had been placed in Amys kindergarten classfor a two-week experimental period, but it was reported that Amy had no need for thisservice. This conclusion was reached after consultation with the school districts“Committee on the Handicapped,” which had received expert evidence from Amysparents on the importance of an interpreter. The Committee also received informationfrom Amys teacher and other persons familiar with her academic and social progress,and visited a class for the deaf. When their request for an interpreter was denied, theRowleys demanded and received an administrative hearing. After receiving evidencefrom both sides, the hearing officer agreed with the administrators determination that aninterpreter was not necessary because "Amy was achieving educationally, academically,and socially" without such assistance. The examiners decision was affirmed on appealby the New York Commissioner of Education. The Rowleys then brought an action inthe United State District Court for the Southern District of New York, claiming that theadministrators denial of the sign language interpreter constituted a denial of the "free1 Board of Education of the Hendrick Hudson Central School District, et. al. v. Amy Rowley, et. al., 458 U.S. 176, 102S.Ct.3034 (1982). 54
  • 55. appropriate public education" guaranteed by the Act. (Excerpt from the courts owndescription at 458 US 176 at 183) The holdings in the Rowley case have become the standard of analysis for everysubsequent special education case arising in the Federal and State courts.Consequently, a working knowledge of the fundamental analysis developed by theSupreme Court justices is important when evaluating any special education matter. Inthis paper, this analysis will be examined in detail. Any practitioner or educator lookingat a special education file should keep this analysis in mind at all times. Since all othercourts do this as well, the questions asked by the Rowley court are instructive even today,well over twenty years later.The Rowley Questions: These are best presented in the form originally developed by the Supreme Court: Therefore, a courts inquiry in suits brought under §1415(e)(2) is twofold. First, has the State complied with the procedures set forth in the Act? [FN27] And second, is the individualized education program developed through the Acts procedures reasonably calculated to enable the child to receive educational benefits? [FN28] If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more. (458 US 176, 204) (Emphasis added.) As the analysis goes, if the school district has not complied with the Federallymandated procedures, and if the violation resulted in some form of significant harm tothe student, all educational decision making from the point of the violation forward issuspect. What this means is that judges will be more likely to step in and substitute theirjudgment for that of the educators, given a significant procedural violation. If, on theother hand, the school district has complied with all of the procedures in the Act, then theanalysis requires asking the second "Rowley question." The Supreme Court, however, first examines the priorities assigned by Congressto procedural requirements: But although we find that this grant of authority is broader than claimed by petitioners, we think the fact that it is found in §1415, which is entitled "Procedural Safeguards," is not without significance. When the elaborate and highly specific procedural safeguards embodied in §1415 are contrasted with the general and somewhat imprecise substantive admonitions contained in the Act, we think that the importance Congress attached to these procedural safeguards cannot be gainsaid. It seems to us 55
  • 56. no exaggeration to say that Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at every stage of the administrative process, see, e.g. §§1415(a)-(d), as it did upon the measurement of the resulting IEP against a substantive standard. We think that the congressional emphasis upon full participation of concerned parties throughout the development of the IEP, as well as the requirements that state and local plans be submitted to the Secretary for approval, demonstrates the legislative conviction that adequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP. (458 US 176, 204; emphasis added.)"Significant" Violations: A recurrent problem is whether a procedural violation under Rowley is"significant." In 2002, a district was held (at 38 IDELR 85) to have violated "several"procedural requirements of the IDEA but even so, the student received all of his IEPservices. The court therefore concluded that there was no resulting denial of a freeappropriate public education under IDEA. The procedural violation, therefore, mustactually result in some harm to the student before it becomes "significant."Adverse Educational Impact: Another recurrent problem is the issue of a student passing from grade to gradeand still remaining eligible for services. Amy Rowley herself got good grades, and thecourt held that she was not entitled to a sign language interpreter as requested by herparents. This did not mean that she was ineligible for other special educationservices, as she was still hearing impaired and met the definitional requirements. In fact,the court itself in Rowley said: We do not attempt today to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act. Because in this case we are presented with a handicapped child who is receiving substantial specialized instruction and related services, and who is performing above average in the regular classrooms of a public school system, we confine our analysis to this situation. (458 US 176 at 202; emphasis added.) In the Cornwall case (17 EHLR 10239/1991) the court held that there was asignificant impact on educational performance even though the child had not failed anycourses. In Yankton (93 F. 3rd 1369, 8th Cir. 1996), a cerebral palsy child was getting 56
  • 57. high grades but was still entitled to specially designed instruction and related services.In Schoenfield (8th Cir. 1998) the court held that academic performance at or above agelevel does not necessarily mean a child is not "disabled," or that the education satisfiedthe standard of appropriateness under Rowley. It can be seen, then, that while Rowley holds that passage from grade to grade isone important indicator of whether an educational benefit has been conferred, it is not thesole criterion but should be "in the mix" of other considerations. It is a fatal mistake fora school district to declare that a child is ineligible solely because he or she isreceiving passing grades.Educational Benefits: The courts own language serves to explain this prong of the Rowley test with thegreatest skill: Implicit in the congressional purpose of providing access to a "free appropriate public education" is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicapped child. It would do little good for Congress to spend millions of dollars in providing access to a public education only to have the handicapped child receive no benefit from education. The statutory definition of "free appropriate public education," in addition to requiring the States to provide each child with "specially designed instruction," expressly requires the provision of "such…supportive services…as may be required to assist a handicapped child to benefit from special education." §1401(17). We therefore conclude that the "basic floor of opportunity" provided by the Act consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child. [FN23] (458 US 176 at 200, emphasis added). And this analysis is extended to the provision of a FAPE for eligible children: When the language of the Act and its legislative history are considered together, the requirements imposed by Congress become tolerably clear. Insofar as a State is required to provide a handicapped child with a "free appropriate public education," we hold that it satisfies this requirement by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. Such instruction and services must be provided at public expense, must meet the States educational standards, must approximate the 57
  • 58. grade levels used in the States regular education, and must comport with the childs IEP. In addition, the IEP, and therefore the personalized instruction, should be formulated in accordance with the requirements of the Act and, if the child is being educated in the regular classrooms of the public education system, should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade. [FN26] (458 US 176 at 202, emphasis added.) The question of how to deal with students who are not capable of obtaining passinggrades under any circumstances is not clearly answered by the Supreme Court in Rowley.However, the footnotes make reference to the required full continuum of alternativesettings, and the need for some students to be placed in settings other than the mainstream.It is clear, especially in light of decisional case law subsequent to Rowley, that when achild is placed in a more restrictive setting, the decision must be driven by the unique needof the student and not by administrative convenience or other factors (see, e.g., Beth B. v.Mark VanClay and School District #65 (Federal Appellate Case Decided March 5, 2002)[2002 WL 341017, 36 IDELR 121 (7th Cir.). 58
  • 59. Selected Case Footnotes(Emphasis is Added) 25. We do not hold today that every(73 L.Ed.2d 710) handicapped child who is advancing from grade to grade in a regular public school system is automatically receiving a "free appropriate public education." In this case, however, we find Amys academic progress, when considered with the special services and professional consideration accorded by the Furnace Woods School administrators, to be dispositive.But see footnote 23! 28. When the handicapped child is being educated in the regular classrooms of a public(73 L.Ed.2d 712) school system, the achievement of passing marks and advancement from grade to grade will be one important factor in determining educational benefit. See Part III, supra.This note is from the Dissent: 1. The Courts opinion relies heavily on theJustices White, Brennan, and statement, which occurs throughout the legislativeMarshall history, that, at the time of enactment, one million of the roughly eight million handicapped children in the United States were excluded entirely from the public school system and more than half were receiving an inappropriate education. See, e.g., ante, at 189, 195, 196-197, 73 L Ed 2d, at 701, 705, 706. But this statement was often likened to statements urging equal educational opportunity. See, e.g., 121 Cong Rec 19502 (1975) (remarks of Sen. Cranston); id., at 23702 (remarks of Rep. Brademas). That is, Congress wanted not only to bring handicapped children into the schoolhouse, but also to benefit them once they had entered.(Footnote 23) "With proper education services, many would be able to become productive citizens,THIS NOTE devotes substantial contributing to society instead of being forcedspace and time to the concept of to remain burdens. Others, through suchself-sufficiency and this should be services, would increase their independence, 59
  • 60. pointed out to any hearing officer, thus reducing their dependence on society." S.administrator, or attorney who Rep, at 9. See also HR Rep, at 11. Similarly, oneinsists that the opinion stands for of the principal Senate sponsors of the Act statedthe rigid proposition that "any" that "providing appropriate educational servicessatisfactory grade record will do. now means that many of these individuals will beMoreover, the presence of relaxed able to become a contributing part of our society,grading standards (i.e., giving and they will not have to depend on subsistencepassing grades just for trying) does payments from public funds." 121 Cong Recnot assist the pupil in the permanent 19492 (1975) (remarks of Sen. Williams). Seeand long-range development of self- also id., at 25541 (remarks of Rep. Harkin); id., atsufficiency skills. 37024-37025 (remarks of Rep. Brademas); id., at 37027 (remarks of Rep. Gude); id., at 37410 (remarks of Sen. Randolph); id., at 37416 (remarks of Sen. Williams). The desire to provide handicapped children with an attainable degree of personal independence obviously anticipated that state educational programs would confer educational benefits upon such children. But at the same time, the goal of achieving some degrees of self-sufficiency in most cases is a good deal more modest than the potential maximizing goal adopted by the lower courts. Despite its frequent mention, we cannot conclude, as did the dissent in the Court of Appeals, that self-sufficiency was itself the substantive standard, which Congress imposed upon the States. Because many mildly handicapped children will achieve self-sufficiency without state assistance while personal independence for severely handicapped may be an unreachable goal, "self-sufficiency" as a substantive standard is at once an inadequate protection and an overly demanding requirement. We thus view these references in the legislative history as evidence of Congress intention that the services provided handicapped children be educationally beneficial, whatever the nature or severity of their handicap.(Footnote 21) The use of "appropriate" in the language of the Act, although by no means definitive, suggests thatThe second recognition herein that Congress used the word as much to describe the 60
  • 61. some "mainstream" settings, while settings in which handicapped children should beless restrictive, are simply not educated as to prescribe the substantive content orappropriate for the education of supportive services of their education. Forsome handicapped children. Again example, § 1412(5) requires that handicappedin opposition to reflexive LRE and children be educated in classrooms with non-"full inclusion" arguments used by handicapped children "to the maximum extentmanagement attorneys. appropriate." Similarly, § 1401(19) provides that, "whenever appropriate," handicapped children should attend and participate in the meeting at which their IEP is drafted. In addition, the definition of "free appropriate public education" itself states that instruction given handicapped children should be at an "appropriate preschool, elementary, or secondary school" level. § 1401(18)(C). The Acts use of the word "appropriate" thus seems to reflect Congress recognition that some settings simply are not suitable environments for the participation of some handicapped children.73 L.Ed.2d 708 – from the body of We therefore conclude that the "basic floor ofthe opinion: opportunity" provided by the Act consists of access to specialized instruction and relatedThis Note is one of the most services which are individually designed tosignificant parts of the opinion, as it provide educational benefit to the handicappedexplains what the Court IS and IS child. 23NOT deciding. While "self-sufficiency" is not the exclusive 23. This view is supported by the congressionalfactor, it is an important factor in intention, frequently expressed in the legislativedetermining if an educational history that handicapped children be enabled tobenefit has been "conferred." achieve a reasonable degree of self-sufficiency. After referring to statistics showing that many(73 L.Ed.2d 709) handicapped children were excluded from public education, the Senate Report states: "The long range implications of these statistics are that public agencies and taxpayers will spend billions of dollars over the lifetimes of these individuals to maintain such persons as dependents and in a minimally acceptable lifestyle."The language of "educational 15. The only substantive standard, which can bebenefit." The root of this language implied from these cases, comports with the 61
  • 62. is not just that the child must standard implicit in the Act. PARC states thatreceive "any" benefit: the benefit each child must receive "access to a free publicmust be "received" within the program of education and training appropriate tocontext of the childs unique needs, his learning capabilities," 334 F. Supp, at 1258not the needs of the agency. The (emphasis added), and that further state action isorigin of the language is explained required when it appears that "the needs of thein this note – as a way of providing mentally retarded child are not being adequatelyhandicapped children with an served," id., at 1266 (emphasis added). Mills alsoinviolable access to educational speaks in terms of "adequate" educational services,services, which provision this court, 348 F Supp, at 878, and sets a realistic standardreads very strictly (see Honig v. of providing some educational services to eachDoe, 484 U.S. 305, 308 (1988)). child when every need cannot be met.(73 L.Ed.2d 704) The inadequacies of the District of Columbia Public School System whether occasioned by insufficient funding or administrative inefficiency, certainly cannot be permitted to bear more heavily on the exceptional or handicapped child than on the normal child." Id., at 876.While the EHA does not mandate 21. In seeking to read more into the Act than itsmaximization of benefits under language or legislative history will permit, thethis decision, note that settled United States focuses upon the word "appropriate,"decisional case law provides that arguing that "the statutory definitions do notstates which choose to grant greater adequately explain what [it means]." Brief forrights than the Federal mandate United States as Amicus Curiae 13. Whateverrequires must do so uniformly – Congress meant by an "appropriate"and the state standard will in such education, it is clear that it did not mean acases prevail. potential maximizing education.(73 L.Ed.2d 706) The term as used in reference to educating the handicapped appears to have originated in the PARC decision, where the District Court required that handicapped children be provided with "education and training appropriate to [their] learning capabilities." 334 F Supp, at 1258. The word appears again in the Mills decision, the District Court at one point referring to the need for "an appropriate education program," 348 F Supp, at 879, and at another point speaking of a "suitable publicly supported education," id., at 878. Both cases also refer to the need for an "adequate" education. See 334 F Supp, at 1266; 348 F Supp, at 878. 62
  • 63. Independence and Self Sufficiency: At 20 U.S.C. 1400 (c)5(E)ii, it is indicated that 20 years of research under the oldIDEA has demonstrated that training people through high quality intensive professionaldevelopment ensures that these personnel have the skills to enable children to beprepared to lead productive, independent, adult lives to the maximum extentpossible. This language in the "purposes" clause of Rowley appears to provide apotential argument that the Rowley standard of requiring districts to provide "adequate"services might have been elevated. In addition, at Section 1400(d), under purposes (1)A,one of the purposes of the IDEA is to enable individuals to meet their unique needsand prepare them for employment and independent living. This is reminiscent of thefootnote discussion in the Rowley case. It is clear that one of the purposes of the Act isto prepare students for independence to the extent that their abilities permit.Conclusion: Special educators should take special notice of the Rowley case, as it is still goodlaw and it acts as the blueprint for all cases to follow. The two Rowley questionsemphasizing procedural compliance and the benefits of the IEP should be committed tomemory. Finally, the focus of the decision on what is “appropriate” for special educationstudents should be given special emphasis, especially in light of the social emphasis onso-called “inclusion” in recent years. 63
  • 64. The K.L. Case: Is Rowley Stillthe Law of the Land? BROOKE R. WHITTEDWHITTED, CLEARY & TAKIFF LLC Suite 303 3000 Dundee Road Northbrook, Illinois 60062 847/564-8662 847/564-8419 (FAX) whittedlaw@aol.com www.wct-law.com 64
  • 65. The K.L. Case: Is Rowley still the Law of the Land? By Brooke R. Whitted There have been a number of bulletins about the K.L. matter2, a recentWashington State case in the Federal District Court there. K.L. is seventeen years old, ofaverage intelligence, and is challenged by severe learning disabilities in reading andwriting (otherwise known as dyslexia). She was in public school through grade 3, privateschool through grade 5, and again in public school beginning in grade 6. Prior to her 10thgrade year, the parents enrolled her at the Landmark School, a very well regarded schoolfor learning disabled children in Pride’s Crossing, MA. The parents, claim they weredenied adequate IEP participation and further, that the IEPs were not IDEA compliant,thereby denying their daughter a Free Appropriate Public Education (“FAPE”). At the end of grade 8, K.L. scored in the second percentile on her Iowa tests andfailed the Washington State Assessment in reading. A June 2003 report was prepared bythe school district, reflected all of the girl’s severe difficulties, and was never shared withthe parents. This report said the girl accomplished none of her writing objectives and onlytwo of four objectives in reading. Yet the 9th grade IEP was essentially unchanged fromthe 8th grade IEP. She accomplished none of her writing objectives, and her reluctance tolearn increased while her self-esteem decreased. The 10th grade IEP proposed special education instruction in reading, writing,math, and study skills. However, there was no time allotted to each area and there wereno instructional methodologies specified. At the IEP, there was no general educationteacher present. The District then paid for an independent evaluation by a neuropsychologist. Thispsychologist found that there were severe phonological (sound to letter) andmorphological (word families) deficits. These deficits, she recommended, requiredintensive instruction. The evaluator also said that the student had a “mood disorder.” Therecommendation in the independent evaluator’s report was Landmark School and soonthereafter, the parents placed her there. In September of 2004, the IEP team met with the evaluator and agreed with someof her conclusions but not the Landmark recommendation. In November of 2004 theschool district again funded an evaluation by a team from the local children’s hospital.The psychologist from this new evaluation team said there was no language basedlearning disability and the psychiatrist said there was no mood disorder. In March 2005, the District held a “pre-meeting” prior to the IEP without theparents. Then the IEP was convened and that team adopted some of the recommendations2 K.L. and M.L. et. al. v. Washington Island, Washington School District, #C06-494P decided on 12-08-06in the U.S. District Court of the Western District of Washington at Seattle. 65
  • 66. of the parent’s evaluator and all of the evaluative findings of the Children’s Hospitalteam. Some “accommodations” were listed but again, no methodology or time allocationfor each instructional area were specified. At this point, the parents requested an administrative special education hearing,which consisted of twelve hearing days. The parents lost on all points and appealed to theDistrict Court. The court characterized the Administrative Law Judge’s (hereafter “ALJ”)findings as “thorough but not careful.” The court observed that the ALJ “misunderstoodthe intention of IDEA, misapplied the statute and failed to uphold its requirements.” The Judge then cited a 6th Circuit case, Deal v. Hamilton County,3 stating “theintent of Congress has been to require a program providing a meaningful educationalbenefit toward the goal of self sufficiency.” The Judge’s first holding in the K.L. casewas that the IEPs that were drafted by the school district failed to focus on self-sufficiency and that this was therefore a denial of FAPE. In her analysis, the Judge stated that the Education for All Handicapped ChildrenAct passed in 1975, and up to about ten years ago, was intended to provide mere “access”to special education. However, in 1997, Congress was “satisfied that the goal of ‘access’”had been reached and restated a new intent of the law:4 Equality of opportunity Full participation Independent living Economic self-sufficiencySince the Rowley5 case preceded the 1997 amendments, the ALJ’s reliance on it was“misplaced.” The court held that Rowley has been superseded by later legislation andfurther held that any citation to pre-1997 case law on special education is “suspect.”The court went on to quote directly from the regulations: “…IEPs for children must… focus on providing instruction and experiences that enable the child to prepare herself for later educational experiences and for post school activities, including formal education, if appropriate, employment and independent living.”6 Consequently, according to the judge, the ALJ has “completely missed the point.”Amusingly, the court then quotes the dictionary definition of “meaningful: (emphasis isthe Court’s)”3 Deal v. Hamilton County Bd. of Educ., 392 F.3d 840(6th Cir. 2004)4 20 U.S.C.§1400(c)15 Bd. of Educ. of the Hendrick Hudson Central School Dist., Westchester County v. Rowley, 458 U.S.176 (1982)6 64 Federal Regulations 12470, 12474 66
  • 67. 1. “Having meaning, function or purpose;” 2. “Fraught with meaning, significant.”The judge went on to hold that providing a “meaningful educational benefit” under IDEArequired programs and results that reflect the act’s emphasis on preparation for self-sufficiency. The court, in further dicta7 says the language from Rowley utilized by theALJ is not the language or standard of the 1997 IDEA, which is not concerned with mere“access” that is “more than de minimis.” The court says that the school district and theALJ have “set the bar too low,” and goes on to point out that it is not enough to simply“escort” a student through the school system without increasing skill levels. For example,as in this case, having someone read to the student does not fulfill the mandated self-sufficiency goal. In fact, the District had a dismal outlook for this young girl. They claimed (withno citation to expert authority) that so-called “accommodations” were a lifelongrequirement for “incurable diseases” like dyslexia. The Federal judge rejected this claimand ordered that the ALJ write a corrected opinion and mandated that she must considerthe progress the student at the Landmark School8 in assessing (a) whether the prior IEPswere adequately developed and implemented and (b) what an appropriate placementwould be. The court also points out that some compensatory education is in order here, aswell as an award of attorney fees. It should be noted that in a phone conversation with Howard Powers, the lawyerwho brought this Washington case, he indicated that he was extremely careful not to askthe court to overrule the Rowley case. He wanted the analysis of Rowley to stay in placebut he wanted the “floor of opportunity” raised. He felt that the district court judgeaccomplished this goal. The Judge, in assisting the ALJ on remand, further went on to hold that the IEPsdid not comply with IDEA. Furthermore, the statute required the District to provide stafftraining in this case: “The language [of IDEA] speaks to attainment of goals set for eachchild, not merely progress toward them.” Thus, IEPs must contain: Time for each service; Methodology; Indications whether goals are attained; A way of measuring self-sufficiency. The conclusion, taken directly from the court case, is as follows: The IDEA calls for disability education programs which guide the student toward post education independence and7 This is a discussion by a court that is not necessarily part of the formal holding but supports the holding.8 Progress at the private school selected by parents is allowed to be considered in determining whether therecommendation of the school is appropriate. See, for example, Anne Marie Angevine v. Andrew Jenkins,752 F. Supp. 24 (DDC 1990) 67
  • 68. self sufficiency. In pursuit of that goal, students such as K.L. must receive educational opportunities which significantly advance them toward that end. The IEPs developed in accordance with this scheme must specifically delineate the methodologies to be used to achieve these goals and the time to be allotted to each of the services employed to that end and further must be geared toward the achievement of enumerated goals. Where a previous years IEP has fallen short of the marks it set, the succeeding IEPs must identify the means to advance the student further. (emphasis added) There are certain logical questions that follow from a close reading of this case.However, it should also be noted that Mr. Powers, again in a recent conversation, advisedthat the court will soon issue an amended opinion, as the issue of reimbursement for thecost of Landmark was inadvertently omitted form the original decision. The parties arenow awaiting the amended opinion and Mr. Powers states that it is likely the case will beappealed by the school district. Questions: 1. Do we still ask the two Rowley questions? A. Yes. Given Mr. Powers’ statements about not wanting Rowley overruled and given the fact that this is a District Court opinion and not in the appellate system yet. The Rowley case, a U.S. Supreme Court case, is still good law. 2. What is the extent of parental involvement? A. Parental involvement must be maximized. The Rowley case clearly indicated this in 1982 and subsequent decisions, legislative changes, and the most recent 2004 amendments all agree. 3. How is “educational benefit” defined? A. This term is still defined by the Rowley case, with, of course, the opportunity to cite this new Washington case. However, until the K.L. case makes it to the appellate level, it likely carries less weight than any state appellate, federal appellate, or U.S. Supreme Court case. 4. Do school districts have to provide the “best” educational setting? 68
  • 69. A. No. Rowley is still good law on this issue and as long as they provide an “adequate” setting, they are in compliance. However, in the transition area, there is a good argument that the 2004 amendments require maximization.5. Has K.L. changed the way at parents and educators must look at special education situation? A. Only slightly. The Rowley analysis, as indicated above, is still a good analysis. The Washington case simply starts a judicial conversation about where the floor of opportunity should be under the traditional Rowley analysis. The attorney in the Washington case has already indicated that he was very careful not to ask the court to overrule Rowley, but simply to raise the floor of opportunity under the “educational benefit” definition. 69
  • 70. IEPs and the Attendance ofRegular Education Teachers BROOKE R. WHITTED WHITTED, CLEARY & TAKIFF LLC 3000 Dundee Road Suite 303 Northbrook, IL 60062 Phone: 847-564-8662 Fax: 847-564-8419 Website: www.wct-law.com Email: bwhitted@wct-law.com 70
  • 71. MEMORANDUMTo: Whitted, Cleary & Takiff ClientsFrom: Lara Cleary; Brooke WhittedDate: December 12, 2007Re: Requirements of Regular Education Teachers’ Participation atIEP Meetings================================================================== The requirement that regular education teachers be present at IEP meetingsis a fairly new requirement in special education practice. This memorandum isdesigned to provide an overview of the requirement and provide a brief summaryof the necessary compliance. One common area that school districts struggle withis the question of which regular education teacher to invite when the childparticipates or will be participating in a variety of mainstream regular educationclasses. This information is discussed in greater detail. The other commonquestion is in what aspects of the IEP formulation should the regular educationteacher participate. Overview of Regulatory Language 1. Federal Regulations The IDEA federal regulations at §300.344(a)(2) and 300.346(d) repeat thestatutory provisions regarding the role of the regular education teacher indeveloping a child’s IEP. Those provisions read as follows: §300.344 IEP Team (a) General. The public agency shall ensure that the IEP team for each child with a disability includes -- (2) At least one regular education teacher of the child (if the child is, or may be, participating in the regular education environment); §300.346 Development, Review, and Revision of IEP (d) Requirement with respect to regular education teacher. The regular education teacher of a child with a disability, as a member of the IEP team, must, to the extent appropriate, participate in the development, 71
  • 72. review, and revision of the child’s IEP, including assisting in the determination of -- (1) Appropriate positive behavioral interventions and strategies for the child; and (2) Supplementary aids and services, program modifications or supports for school personnel that will be provided for the child, consistent with§300.347(a)(3)OSEP Interpretation In addition, Appendix A to Part 300, Notice of Interpretation, providesadditional clarification to the regular education requirement at questions 23, 24,25, and 26. These questions address which regular education teachers should bepresent as well as the role of that teacher at the meeting. The specific provisionwhich addresses which teacher should be present if a child has a variety of regulareducation teachers is underlined at question 26.Question No. 23: For a child with a disability being considered for initial provision of special educationand related services, which teacher or teachers should attend the IEP meeting? A child’s IEP team must include at least one of the child’s regular education teachers (if the child is, or may be participating in the regular education environment) and at least one of the child’s special education teachers, or, if appropriate, at least one of the child’s special education providers (§300.344(a)(2) and (3)). Each IEP must include a statement of the present levels of educational performance, including a statement of how the child’s disability affects the child’s involvement and progress in the general curriculum (§300.347(a)(1)). At least one regular education teacher is a required member of the IEP team of a child who is, or may be, participating in the regular educational environment, regardless of the extent of that participation. The requirements of §300.344(a)(3) can be met by either: (1) a special education teacher of the child; or (2) another special education provider of the child, such as a speech pathologist, physical or occupational therapist, etc., if the related service consists of specially designed instruction and is considered special education under applicable state standards. Sometimes more than one meeting is necessary in order to finalize a child’s IEP. In this process, if the special education teacher or special education provider who will be working with the child is identified, it would be useful to have that teacher or provider participate in the meeting with the parents and other members of the IEP team in finalizing the IEP. If this is not possible, the public agency must ensure that the teacher or provider has access to the child’s IEP as soon as possible after it is finalized and before beginning to work with the child. 72
  • 73. Further, (consistent with §300.342(b)), the public agency must ensure that each regular education teacher, special education teacher, related services provider and other service provider of an eligible child under this part (1) has access to the child’s IEP, and (2) is informed of his or her specific responsibilities related to implementing the IEP, and of the specific accommodations, modifications, and supports that must be provided to the child in accordance with the IEP. This requirement is crucial to ensuring that each child receives FAPE in accordance with his or her IEP, and that the IEP is appropriately and effectively implemented. Question No. 24: What is the role of a regular education teacher in the development, review and revision of the IEP for a child who is, or may be, participating in the regular education environment? As required by §300.344(a)(2), the IEP team for a child with a disability must include at least one regular education teacher of the child if the child is, or may be, participating in the regular education environment. Section 300.346(d) further specifies that the regular education teacher of a child with a disability, as a member of the IEP team, must, to the extent appropriate, participate in the development, review, and revision of the child’s IEP, including assisting in -- (1) the determination of appropriate positive behavioral interventions and strategies for the child; and (2) the determination of supplementary aids and services, program modifications, and supports for school personnel that will be provided for the child, consistent with 300.347(a)(3) (§300.344(d)). Thus, while a regular education teacher must be a member of the IEP team if the child is, or may be, participating in the regular education environment, the teacher need not (depending upon the child’s needs and the purpose of the specific IEP team meeting) be required to participate in all decisions made as part of the meeting or to be present throughout the entire meeting or attend every meeting. For example, the regular education teacher who is a member of the IEP team must participate in discussions and decisions about how to modify the general curriculum in the regular classroom to ensure the child’s involvement and progress in the general curriculum and participation in the regular education environment. Depending upon the specific circumstances, however, it may not be necessary for the regular education teacher to participate in discussions and decisions regarding, for example, the physical therapy needs of the child, if the teacher is not responsible for implementing that portion of the child’s IEP. In determining the extent of the regular education teacher’s participation at IEP meetings, public agencies and parents should discuss and try to reach agreement on whether the child’s regular education teacher that is a member of the IEP team should be present at a particular IEP meeting, and if so, for what period of time. The extent to which it would be appropriate for the regular education teacher member of the IEP team to participate in IEP meetings must be decided on a case-by-case basis.Question No. 25: If a child with a disability attends several regular classes, must all of the child’s regular educationteachers be members of the child’s IEP team? 73
  • 74. No. The IEP team need not include more than one regular education teacher of the child. If the participation of more than one regular education teacher would be beneficial to the child’s success in school (e.g., in terms of enhancing the child’s participation in the general curriculum), it would be appropriate for them to attend the meeting.Question No. 26: How should a public agency determine which regular education teacher and special educationteacher will be members of the IEP team for a particular child with a disability? The regular education teacher who serves as a member of a child’s IEP team should be a teacher who is, or may be, responsible for implementing a portion of the IEP, so that the teacher can participate in discussions about how best to teach the child. If the child has more than one regular education teacher responsible for carrying out a portion of the IEP, the LEA may designate which teacher or teachers will serve as IEP team member(s), taking into account the best interest of the child. In a situation in which not all of the child’s regular education teachers are members of the child’s IEP team, the LEA is strongly encouraged to seek input from the teachers who will not be attending. In addition, (consistent with §300.342(b)), the LEA must ensure that each regular education teacher (as well as each special education teacher, related services provider, and other service provider) of an eligible child under this part (1) has access to the child’s IEP, and (2) is informed of his or her specific responsibilities related to implementing the IEP, and of the specific accommodations, modifications and supports that must be provided to the child in accordance with the IEP. In the case of a child whose behavior impedes the learning of the child or others, the LEA is encouraged to have a regular education teacher or other person knowledgeable about positive behavior strategies at the IEP meeting. This is especially important if the regular education teacher is expected to carry out portions of the IEP. (Emphasis added.) Similarly, the special education teacher or provider of the child who is a member of the child’s IEP team should be the person who is, or will be, responsible for implementing the IEP. If, for example, the child’s disability is a speech impairment, the special education teacher on the IEP team could be the speech-language pathologist. 2. Illinois Regulations Additionally, the new Illinois special education rules, 23 Ill.Admin.Code 226.210(b), states that the IEP team must include at least one regular education teacher “if thechild is participating or may participate in the regular education environment.” (Emphasisadded) In addition, 226.210(b)(1), elaborates on this requirement by requiring that theregular education teacher be one who “is or may be responsible for implementing a 74
  • 75. portion of the IEP.” Finally, 226.210(b)(1)(A) & (B), basically mimic the federalregulations, and indicates that the “responsibilities” of the regular education teacher“shall” include assisting in: (A) the determination of appropriate behavioral interventions and strategies for the child; and (B) the identification of supplementary aids and services, program modifications, and supports for school personnel, consistent with 34 CFR 300.347(a)(3). Finally, 23 Ill.Admin.Code 226.210 (b) (3), which is a regulation apparentlyclarifying the mandate at 226.210 (b) that the IEP team include a regular educationteacher, specifically states that for a child of less than school age, the team shall includean individual qualified to teach preschool children. This can be interpreted to mean thatthe regular education teacher should be one who is qualified to teach preschool children.Speech & Language Only – Special Rules Question # 24 (above) of Appendix A, states that a regular education teacher neednot participate in all decisions made at an IEP meeting, or even attend all meetings, andfurther states: Depending upon the specific circumstances, however, it may not be necessary for the regular education teacher to participate in discussions and decisions regarding, for example, the physical therapy needs of the child, if the teacher is not responsible for implementing that portion of the child’s IEP. Thus, it is our position that for a child who solely receives speech-languageservices and no regular education teacher is responsible for providing any part of thatchild’s IEP, the team may not always be required to include a regular education teacher. In addition 226.210 (c) states that while the team must include a special educationteacher, if the child is receiving only speech and language services, the speech andlanguage pathologist shall fulfill this role. Summary While the regulations do not provide specific guidance regarding exactly which ofa child’s teachers must be in attendance for a child with more than one regular educationteacher, a good rule of thumb is to invite a teacher who is: 75
  • 76. (1) One of the child’s academic subject teachers;(2) Knowledgeable about the specific child;(3) Capable of providing information regarding the child’s regular education needs, including the child’s ability for mainstreaming, accommodations, modifications, and behavior intervention strategies. 76
  • 77. Client Alert To: Whitted Cleary & Takiff Clients From: Brooke R. Whitted and Lara A. Cleary Date: April 5, 2005 (updated July 20, 2006) Re: IDEA Re-Authorization The new Individuals with Disabilities Education Improvement Act of 2004(“IDEIA 2004”) was signed into law by the President on December 3, 2004. TheAct went into effect on July 1, 2005, with the exception of a few sections9 whichwent into effect immediately. A full version of the IDEA, with changeshighlighted, can be found at http://www.copaa.net/IDEA/IDEA97-04COMP.pdf. To date, both the U.S. Department of Education and the Illinois State Boardof Education have promulgated draft regulations in response to the reauthorization.Both are in review session. We won’t likely see a final version of the Illinoisregulations until the final federal regulations are issuedA summary of the most significant changes in IDEIA follows.9 These sections are highlighted in the following pages. 77
  • 78. SUMMARY OF IDEA 2004 CHANGESSection Change ImpactPurpose: (20 U.S.C. 1400 § 601) Adds language “to the maximum extent Congress has changed the standard for possible” in several sections of the purpose special education students from merely of IDEA. providing “appropriate” services to providing “maximum” services. However, it should be noted that states are still only mandated to provide the current standard of “Free and Appropriate Public Education” (“FAPE”)Definitions: (20 U.SC. 1400 § 602) Adds language to include foster parents Releasing information to “other relatives”“Parent” and “or other relative with whom the child of a child could be a disaster under current lives or who is legally responsible for the state confidentiality laws. Districts will child’s welfare…” have to be diligent to ensure the information they are releasing to “other family members” who claim to be responsible for the child are in fact within all federal and state exceptions.Pilot Paperwork Reduction Project: Adds text to allow the U.S. Department of Should Illinois be one of the 15 states(20 U.SC. 1400 § 609) Education to “grant waivers of statutory involved in this pilot program, it is requirements of, or regulatory requirements difficult to imagine how it will be possible relating to, Part B for a period of time not to decrease the amount of paperwork to exceed 4 years with respect to not more related to special education while still than 15 states based on proposal submitted preserving procedural safeguards. by State to reduce excessive paperwork and non-instructional time burdens that do not assist in improving educational and functional results for children with disabilities.” (continued on next page) 78
  • 79. Section Change Impact Pilot Paperwork Reduction Project: Likely the only true “paperwork (20 U.SC. 1400 § 609) (cont’d) reduction” is the change in when a district must provide the written notification of procedural safeguards to parents – which is upon the initial referral for special education, one time per year, upon the first occurrence of a due process request filing, and upon the request of the parent. Related Services: Changed previous text of “school health The exclusion of “a medical device that is (20 U.SC. 1400 § 602(26)) services” to “school nurse services.” Also surgically implanted” is thought to relate to added “interpreting services,” and Cochlear implants, which is a field of special specifically excluded “a medical device education litigation that has increased that is surgically implanted, or the significantly in the last few years. Much of the replacement of such a device.” current case law requires school districts to pay for the mapping10 of a child’s Cochlear implant, not the implantation itself. Child Find Requirements: Adds new language stating that districts are now This new language regarding child find 20 U.SC. 1400 § 612(a)(1)(C) required to provide child find servcies for requirements suggests that local school homeless children and children who are wards districts have to pay for some services for of the state. Also provides that districts are now private school children in their area, responsible for “child find” requirements for all despite the fact that the child’s parents are private schools in their geographic area, and that not residents of that school district. they must meet with private school employees Current law in Illinois states that the local “throughout the year” to discuss with these school district of a child in a private representatives “types of services” “how such placement does have to serve these services will be appropriated if funds are children, however the school district in insufficient to serve all children,” and “how and which their parents reside has to pay for when these decisions will be made.” those servcies. It will be interesting to see (continued on next page) how this affects current residency law.10 The “mapping” of a cochlear implant is a procedure often conducted by a child’s audiologist which sets the sound parameters on each electrode at the appropriate, comfortablelevels as indicated by the recipient. This procedure is required to be performed for children with Cochlear implants at least annually, with more visits needed immediately afterimplantation. 79
  • 80. Section Change Impact Child Find Requirements: Districts also are required to submit a form See page 3 20 U.SC. 1400 § 612(a)(1)(C) to ISBE11 that the private school (cont’d) administrator has signed indicating their child find requirements have been satisfied. If a private school is not satisfied with the services the local school district is offering, they are allowed to file a complaint to the State educational agency. Early Intervening Services: States that school districts can take up to 20 U.SC. 1400 § 613(a)(9) 15% (as opposed to the 5% allowed previously) of Part B special education funds “to develop and implement coordinated, early intervening services” for children K-12 who have not been identified for services but who need additional academic and behavioral support to succeed in a general education environment. Also states these funds can be used for professional development, educational and behavioral evaluations, services and supports.11 Despite Congress’ statement that one of the goals for the 2004 reauthorization was to decrease paperwork requirements for districts, this is the first of twelve new paperworkrequirements for districts. A list of these new paperwork requirements is attached. 80
  • 81. Section Change Impact Teacher Certification: States that all teachers must meet the While most school districts are already in 20 U.S.C. 1400 § 612(a)(14)(C) “highly qualified” requirements of the No the process of changing their teacher Child Left Behind Act (“NCLB”)12 and requirements due to NCLB, this most must hold at least a bachelor’s degree. significantly impacts school districts who have opted out of NCLB. This now means that even those districts must comply with NCLB requirements for special education teachers. Mandatory Medication: New language has been added which Parents of children with ADHD who 20 U.SC. 1400 § 612(a)(25) specifically prohibits school districts from choose not to medicate cannot be treated refusing educational services to parents differently. who choose not to medicate their children. Timeline for Initial Case Study Evaluation: The new section states that school districts Illinois rules state that school districts (“CSE”) must complete CSE’s within 60 calendar have 60 school days to complete CSEs. 20 U.SC. 1400 § 614(a)(1)(C)(i)(I) days, however this section does provide This should apply, however most school that states may utilize their own timelines if districts are taking a conservative they have a timeline. approach and doing CSEs in 60 calendar days. Draft Illinois regulations change the timeline to the federal 60 calendar days.12 The requirements in Illinois to be considered “highly qualified” include for teachers to have a valid Illinois teaching certificate in the area of specialty (elementary, secondary or special education) and meet one of the following options: 1) pass the elementary/middle grades test or the content-area test for the areaof teaching responsibility, 2) have a major or coursework “equivalent to a major,” 3) have a master’s degree or other advanced degree/credential, 4) be certified by theNational Bard of for Professional Teaching Standards, and 5) Have an endorsement or its coursework equivalent that is sufficient to meet the Illinios maximumrequirements for the area of teaching responsibility, have teaching experience in the area and have engaged in relevant continuing professional education. 81
  • 82. Section Change Impact Reevaluations: New language has been added to the effect 20 U.SC. 1400 § 614(a)(2)(B) that reevaulations cannot be performed more than once a year unless the school and parent agree otherwise. Eligibility Determination: Language added states that children are not This additional language suggests 20 U.SC. 1400 § 614(a)(5) to be found eligible for special education children can no longer be found eligible services if the determinate factor is a lack for a Learning Disability if they have not of appropriate instruction in the essential previously specifically received reading components of reading instruction (as instruction based on phonics. This is the defined in the NCLB13). first time that the IDEA has ever identified (and required school districts to use) specific teaching methodologies. Eligibility Termination: New language includes a provision that Many comments have expressed that this 20 U.SC. 1400 § 614(c)(5)(B)(ii) school districts have to provide “a requirement may be troublesome. The summary of the child’s academic proposed federal regulations so far achievement and functional performance, provide no guidance as to the form or including recommendations on how to content of this summary and many school assist the child in meeting… postsecondary districts are struggling over what goals,” upon discontinuing special information should be contained. A model education services for a child (including form, drafted by CEC, is available on the graduation and aging out of the special internet and is being adopted by many education system) districts.13 The “essential components of reading instruction” as defined in NCLB include: a) phonemic awareness, b) phonics; c) vocabulary developments, d) reading fluency,including oral reading skills, and e) reading comprehension strategies. 82
  • 83. Section Change ImpactSpecific Learning Disabilities Eligibility: A school district is not required to take into This language dispels the belief that just20 U.SC. 1400 § 614(b)(6)(A) consideration whether the child has a because a child has a “severe discrepancy” severe discrepancy between achievement between IQ scores in certain areas they are and intellectual ability in oral expression, automatically found eligible for special listening comprehension, written education services under the LD category. expression, basic reading skill, reading The proposed Federal regulations appear comprehension, mathematical calculation to establish more specific criteria for LD or mathematical reasoning. Instead, a eligibility, which may be helpful if these school district “may” use a process that criteria remain in the final regulations. determines if the child responds to scientific, research-based intervention as part of the evaluation procedures. (RTI – Response to Intervention)IEPs: Adds text to allow 15 states (which have While this initially was shocking to parentMulti-Year IEP Determination Pilot yet to be identified) to develop “multi- attorneys and advocates, the languageProgram: year” IEPs (every three years) as opposed included in this section still requires(20 U.S.C. 1400 614(d)(5)(A) to the current annual reviews required by parental consent before implementing a law. States must submit a proposal to the “multi-year” IEP. In addition, annual Federal government in order to be goals are still required for the IEP and “an considered part of this program. annual review must be conducted to determine the child’s progress toward the annual goals.” If the child is not progressing toward the goals, then the IEP must be redrafted. The IEP must also be reviewed at the request of a parent. As such, it appears that this provision will have little to no impact on the current standards for IEPs, in districts where parents are adequately informed. 83
  • 84. Section Change ImpactIEPs: This section omits the requirements for It will be more difficult for parents andShort term objectives: short-term goals, and instead states that districts to prove definitively whether the20 U.SC. 1400 § 614(d)(1)(A)(i)(I)(cc) IEPs must contain “a statement of child is meeting annual goals, as measurable annual goals, including “measurable objectives” are no longer academic and functional goals…” Districts required. may use benchmarks or objectives however, objectives are still necessary for Also note that the present levels of those students who are receiving alternative performance statement is now called the assessments. present levels of “academic achievement and functional performance.” Note that neither the new statute nor the proposed regulations provide a definition of “functional performance.”IEPs: New language discontinues the need for While most Illinois elementary and highStudent progress: quarterly progress reports, and instead only schools do issue progress reports and20 U.SC. 1400 § 614(d)(1)(A)(i)(III) issues a suggestion for the progress reports report cards more than once a year, a to be issued “concurrent with the issuance district could potentially only have an of report cards.” obligation to track a special education child’s progress toward goals annually. If more frequency is desired, it appears it will be the responsibility of the parents to request that it be written into the IEP that the district provide more frequent reports.Section Change Impact 84
  • 85. IEPs: The new language pushes the requirement This new language significantly increasesTransition Services: for transition services planning from 14 to the requirements for transition planning,20 U.SC. 1400 § 614(d)(1)(A)(i)(VIII) “beginning not later than the first IEP to be but raises the age when the District has to in effect when the child is 16…” It also begin the process. The current rules in requires the team to draft “appropriate Illinois still require the process to begin at measurable postsecondary goals based age 14, but is likely to change per the draft upon age appropriate transition regulations. assessments related to training, education, employment, and, where appropriate independent livings skills.” It also must list “the transition services (including courses of study) needed to assist the child in reaching those goals.”IEPs New language states that if a required IEP This might potentially mean that districtsIEP Attendance and Excusal: team member’s “area of curriculum or could have only one representative (the20 U.SC. 1400 § 614(d)(1)(C)(i), (ii) and related services I not being modified or LEA representative) present at an IEP(iii) discussed in the meeting” and if the parent meeting as long as summary reports are and district agree the attendance of a provided by all other participants. mandatory IEP participant is not necessary, Remember, an advance report by the then that member does not have to absent participant will be required if the participate. Requires written agreement by person’s area of curriculum or related the parent. services is at issue, and written parent agreement must always be obtained prior In addition, even if the required team that individual’s excusal. Districts must be member’s “area of curriculum or related careful about excusing a regular education services” is being modified or discussed, teacher’s participation, as the new IDEIA that person may be excused “in whole or in has strengthened the role of the regular part” from attending an IEP meeting if: 1) a education teacher at IEP meetings – parent agrees in writing, and 2) “the requiring that teacher to help “determine member submits, in writing to the parent the appropriate behavior interventions and and the IEP team, input into the strategies, and supplement aides and development of the IEP prior to that services that are necessary for their meeting.” classrooms.” (§ 1414(d)(3)(C))Section Change Impact 85
  • 86. Procedural Safeguards: This new language now assigns a uniform Although it was never specifically includedStatute of Limitations: statute of limitations (two years before the within Illinois’ rules and regulations, case20 U.SC. 1400 § 615(f)(3)(D) date the parents or public agency “knew or law has affirmed that the statute of should have known”) regarding IDEA limitations is generally a two-year period, so cases. not a real change for Illinois.Due Process Complaint Notice and New language indicates that after a party When IDEA was originally created, theAmended Complaint Notice: files for due process, the party receiving the due process provision was created in order20 U.SC. 1400 § 615(f)(3)(B), (D) and (E) request has 15 days to object to the for parents to be able to represent theirand 20 U.SC. 1400 § 615(o) sufficiency of the request. If the receiving own children at hearing, so they did not party does not object to the request, then it have to pay for lawyers. With the addition is “shall be deemed sufficient.” If the of this language, it could be argued that a receiving party does object to the request, hearing officer could dismiss a due then the hearing officer assigned to the case process complaint on its face without an will determine if the request meets legal opportunity for the parent to correct the requirements. complaint. While parents are allowed to file a separate complaint with new issues This provision also states that the party listed, they might not be savvy enough to filing the due process request may not raise properly word their complaint and could additional issues other than those listed in be left with no remedy. One impression of the request, at hearing, unless the other this provision is that it could lead to “full party agrees. employment for lawyers.” A parent may file an amended due process The complaint noticed (due process complaint only in two circumstances: 1) if request) must contain the child’s name and the other party consents in writing, and 2) address, the school the child attends, a if the hearing officer grants permission. description of the problem alleged, including the facts of the situation, and a However, another new provision indicates proposed resolution. A parent filing the that nothing precludes parents from filing a request must send it to the school district separate due process complaint for issues superintendent and it is then the district’s not listed on previous complaints. responsibility to forward the request to the ISBE within 5 days for the appointment of a hearing officer.Section Change Impact 86
  • 87. Response to Due Process Complaint: Another provision has been added that Important new ten-day timeline! It is20 U.SC. 1400 § 615(c)(2)(B)(ii) once a party has received a due process unclear whether an IEP which addresses request, they are required to answer or the issues in the complaint may suffice as respond to the specific issues listed in that a “response.” request within 10 days. ISBE has issued a guidance memo, which contains some information regarding the content of this notice. This memo is available on the ISBE website. If a hearing officer has been assigned, he or she must also receive a copy of the response. If a hearing officer has yet to be assigned, then it must also be sent to ISBE.Resolution Session: After a district receives a request for due It is believed that this provision was added20 U.SC. 1400 § 615(f)(1)(B)(ii) process, it is mandated to convene an “IEP to encourage resolution without the need meeting” to try to resolve the complaint for involvement of attorneys or hearing within 15 days unless both parties agree to officers. waive this meeting. The section further states that if a parent does not attend the This provision also brings into question meeting with an attorney, then the whether parents will be able to bring district’s attorney cannot be present at nonlegal “advocates” with them (as the meeting. This is not intended to be an opposed to attorneys) without the district IEP meeting (although it arguably may) but being able to also be represented. must include the parents, a district representative, and members of the IEP The parties may agree to use the state team that have “knowledge of the request.” mediation procedures in the place of a resolution session. (continued on next page) 87
  • 88. Section Change ImpactResolution Session: If both parties agree to hold the meeting Currently, ISBE has taken the position20 U.SC. 1400 § 615(f)(1)(B)(ii) (cont’d) and resolve the situation amicably, then that the 45-day due process timeline does this agreement will be considered a legally not start until the 30-day “resolution binding agreement between both parties. session” timeline is exhausted, but a few However, the agreement can be voided by Illinois hearing officers area already either party within three days of execution. disagreeing. Thus, different hearing officers may utilize different timelines If both parties have not reached a unless a court provides precedent. settlement within 30 days after the due process request was filed, then the hearing timelines commence.Attorneys Fees: A new provision has been added stating While this section first appeared shocking20 U.SC. 1400 § 615(i)(3)(D)(ii) that a court may award attorney’s fees to a to most parents, it is believed that to prove district “against the attorney of a parent” a case is “frivolous, unreasonable or who: 1) files a complaint that is frivolous, without foundation” will (as is now the unreasonable or without foundation and 2) case in all litigation) be extremely who continues to litigate after the litigation difficult. However, if a school district clearly became frivolous, unreasonable, or pursues a parent under this section, even if without foundation. the parent wins, the resources utilized to defend the claim are unduly burdensome A district can also be awarded attorney’s to most families. fees from a parent or a parent’s attorney if the complaint was brought for “any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.” The provision also states that “at the discretion of the state” attorney’s fees can be awarded for mediation, however they cannot be awarded for a lawyer’s attendance at a resolution session. 88
  • 89. Section Change ImpactDiscipline: This provision states that a special education20 U.SC. 1400 § 615(k)(1)(D) child who is removed from his or her educational placement for more than 10 school days in one academic year must be provided FAPE and must also receive a functional behavioral assessment and behavior intervention services and modifications.Manifestation Determination: This provision poses new questions the IEP It is believed the amended language makes20 U.SC. 1400 § 615(k)(1)(E) team must consider when determining it easier for a school district to determine whether a child’s behavior was or was not a that a child’s behavior was not a manifestation of their disability: 1) If the manifestation of his/her disability. conduct in question was caused by or had a direct and substantial relationship, to the child’s disability, or 2) if the conduct in question was the direct result of the school district’s failure to implement the IEP. (The previous questions were: 1) If a child’s disability impaired the ability of the child to understand the impact and the consequences of the behavior, and 2) if the child’s disability impaired the ability of the child to control the behavior)Determination that Behavior was a This is a new section and states that if a This new section offers parents theManifestation: district does find a child’s behavior to be guarantee that if their child is suspended20 U.SC. 1400 § 615(k)(1)(F) related to his or her disability, then it is for more than 10 days in a year, that a required to: 1) create and FBA and BIP for FBA and BIP will be drafted. the child (if one was not already completed), 2) revise a child’s FBA and BIP if one was already completed and 3) return the child to his or her previous educational placement. 89
  • 90. Section Change Impact45-Day Removal: New language specifies that a child’s Taking into consideration that a typical20 U.SC. 1400 § 615(k)(1)(G) and removal may now be implemented for 45 school year is approximately 180 school(k)(1)(H)(2) school days, as opposed to 45 calendar days, removal for 45 days constitutes days. about 25 percent of the school year. A third reason for removal of a child has There will also be considerable debate also been added, which is for “inflict[ing] regarding the language “serious bodily serious bodily injury upon another person injury.” The section states that the while at school, on school premises, or at a definition is defined as it is in the U.S. school function under the jurisdiction of criminal code (18 USC §1365(3)(h), the school district.” which defines it as: “(A) a substantial risk of death; The new code has also changed the (B) extreme physical pain; parental appeals process for these 45-day (C) protracted and obvious disfigurement; or (D) protracted loss or impairment of the removals. The new language now states function of a bodily member, organ, or the child’s placement will remain at the mental faculty.” alternative placement during the pendency of the dispute. In addition, the timeline for From this definition, it appears that it will be completion of an expedited due process difficult for school districts to define a child’s hearing to overturn the decision to remove actions as “serious bodily injury,” however case the child has been extended. Formerly, the law will have to determine what is requirement was for the hearing and considered “serious.” opinion to be completed within 15 calendar days of a hearing being requested by the The new timeline set for “expedited” due parents. The new language changes this process hearings is now more in favor of from 15 calendar to 30 school days. districts, since 30 school days translates to about 45 calendar days.Section Change Impact 90
  • 91. Protections for Children Not Yet Eligible New language states that a school district is New language has significantly restrictedfor Special Education and Related deemed to have “knowledge” that a child what is considered “reasonable notice” toServices: has a disability if, before the behavior the school district that a child may have20 U.SC. 1400 § 615(k)(5)(C) occurred: 1) the parent of a child expressed had a disability. Former language would concern, in writing, to the district, 2) the allow for a child’s “behavior or parent requested a CSE, or 3) a teacher of performance” to be sufficient notice, the child or other school district personnel however the new language places added expressed specific concerns about a pattern burden on the parents of a child who may of behavior to the director of special have a disability to be well informed of education or “other supervisory personnel.” their rights and assertively insure that concerns are brought to the school district prior to the child displaying behavior. Training is needed in this area. Also, a child may not be considered to be a “not yet eligible child” if the District had performed a CSE and an IEP and the parent refused consent for the initial placement.Preschool Grants: The new language now allows for states to If Illinois chooses to create such a policy,20 U.SC. 1400 § 635(c) have the option of creating a policy which then parents who choose these services would allow parents to choose to continue will not be afforded the protections early intervention services “until such offered under IDEA for special education children… enter kindergarten,” as opposed students until they are placed into to having the responsibility rest solely on kindergarten. the school district upon age three. 91
  • 92. IS EDUCATION AT THE "HOME SCHOOL"A FEDERAL MANDATE? WHITTED, CLEARY & TAKIFF LLC 3000 Dundee Road Northbrook, Illinois 60062 (847) 564-8662; Facsimile (847) 564-8419 www.wct-law.com WhittedLaw@aol.com 92
  • 93. LRE HOME SCHOOL NOT A MANDATEMurray vs. Montrose County School District (Colorado)51 F.3d 921; 1995 U.S. App. LEXIS 7567 (4/20/95) This case involved a twelve year old boy with multiple disabilities due toC.P: mental and physical problems, as well as speech difficulties. In 1987-88,Tyler was tested prior to entry into kindergarten classes and the neighborhoodschool at this time was not accessible, but a school ten miles further away wasaccessible. The neighborhood school served mild to moderately impaired pupils,the other served severe to profound populations. The MDC first determined thechilds needs could be met at the neighborhood school and he spent K-1 inregular first grade there, with substantial services. In January, 1990, another MDC led to the recommendation that Tyler besent to the other school, ten miles away - parents were opposed to this, as theywanted Tyler to be with his friends. It was, however, ultimately recommended, ina close vote, that Tyler attend the distant school due to "lack of accessibility" atthe closer school. The Director of Special Education was the tiebreaker. It wasundisputed that the IEP was appropriate, and that Tyler should spend most of histime outside of the regular classroom. A due process hearing was requested and this occurred in March 1991 -the holding was that the home school was appropriate. The district appealed,and the second level holding was that Tyler had not achieved any meaningfulprogress at the "home" school, thus reversing Level I and ordering placement atthe distant school, per the original district recommendations. The administrative decision was challenged in district court by the parents,and this was affirmed. Parents appealed from dismissal of their federal claim.Tyler was at the home school for the entire relevant time period, and in 11/93, aMDC determined that his needs could be met there. The question of mootnesswas discussed, and rejected in part by the appellate court. 93
  • 94. COURTS DISCUSSION Citing Rowley, the Court asks the two standard questions, 14 then moves toLRE - and distinguishing mainstreaming from inclusion, the latter meaning tothis court no alteration of the regular education class to accommodate the child.(Citing West Edlaw Reporter 88 Educ L. Rep. 541 article) and adding thatRowley does not give a standard for LRE analysis other than the statute itself.I. LRE ANALYSIS A. Discussion of the various LRE tests: - Daniel R.R. 874 F.2d 1036 (5th 1989): 1. Can education in regular class be achieved satisfactorily? a. Steps taken to accommodate? b. Will pupil benefit from regular education? c. What is the childs overall experience in regular education? d. What is the effect on the classroom of the childs presence in it? (874 F.2d at 1048-49) and noting that Greer allows cost considerations (950 F.2d 697) - if education not achievable, then ask: 2. Has the school district mainstreamed to the maximum extent appropriate? B. The DAN. R.R. test has been adopted by the 3rd, 5th, and 11th federal appellate circuits, - below, the RONCKER test has been adopted, by the 4th, 6th, and 8th circuits (700 F.2d 1058-6th Cir.): 1. Are the "superior" services available at the self contained site transferable to the public school setting? (700 F.2d at 1063) 2. Consider these factors:14 Has the District followed mandated procedures and is the IEP reasonably calculated to confer an educational benefit? 94
  • 95. a. Benefits of special vs. regular education classroom. b. Whether child would be disruptive in regular education. c. Cost of putting child in regular classroom. C. Finally, the Ninth Circuit has a hybrid of both, a balancing test, as established by the Holland case: 1. Educational benefits of full time regular education; 2. Non-academic benefits; 3. Effect of child on teacher and children; 4. Costs of mainstreaming child. (Sacramento v. Rachel H., 14 F.3d 1398, 1404) (1994) (the "Holland"case).II. STANDARD OF REVIEW The court then discussed the "modified de novo review standard" for IDEAcases - 1. Independent review of evidence 2. New evidence if necessary 3. "Due weight" to administrative level 4. Decide on preponderance standard ("more likely than not" - 51%).III. RATIONALE Here, the appellate court reviewed the district courts grant of the districtsMotion for Summary Judgment - this case involves a single legal issue: whetherLRE mandates a presumption in favor of the "neighborhood" school - and thecourt held that IT DOES NOT. In affirming the District Court in favor of the District, the Court said: 1. This interpretation "strains the plain meaning of the statute," which is silent on removal from neighborhood schools; 2. Regulations only express a preference which considerations of appropriateness can cancel; 95
  • 96. 3. The Court expressly disagrees with any of the Oberti courts language to the contrary; 4. The legislative history of IDEA does not come right out and say anything in favor of "close to home" being a mandate.And note this language: A school district accordingly is NOT obligated to fully explore supplemental aids and services before removing a child from a neighborhood school. Here, there was never any objection concerning the extent to which Tylerwas removed from regular education classrooms - only to removal from the"neighborhood" school. This was thus a narrow, single issue case. 1515 See Also: Urban by Urban v. Jefferson County School District R-1, (D. Colo.) 12/3/94 Sparr, District Judge. 96
  • 97. Beth B.: FAPE or LRE?Brooke R. WhittedWHITTED, CLEARY + TAKIFF, LLC3000 W. Dundee Road, Suite 303Northbrook, IL 60062(847) 564-8662 (847) 564-8419 FaxEmail: Whittedlaw@aol.com 97
  • 98. MEMO To: Friends and Clients of Whitted, Cleary + Takiff, LLC From: Brooke R. Whitted, Lara A. Cleary Date: March 7, 2002 Re: Beth B. v. Mark VanClay and School District #65 (Federal Appellate Case Decided March 5, 2002) [2002 WL 341017, 36 IDELR 121 (7th Cir.) I would like to alert you to a recent Seventh Circuit opinion, Beth B. v. Mark VanClayand School District #65. We have attempted to highlight the salient portions of the opinionwhich, in our opinion outlines a much more common sense reading of the Rowley case, i.e., itreads the least restrictive environment provision in a way that was intended by Congress. The history of this case is that the parents were desirous of mainstreaming theirdaughter at all costs, much as in the case of Light v. Parkway16. Their argument was that theirdaughter, who suffered from Rett Syndrome, was receiving "benefit in the mainstream” andtherefore the school district was prohibited from changing her to a self contained placement. TheAppellate Court disagreed with parents, stating that they had misread relevant legal provisions.In fact, the court said that Beths parents… confused the FAPE side of the coin with the LRE side. They contend that Beths current placement satisfies the Rowley standard because she received an educational benefit at Lake Bluff Middle School. So long as the regular classroom confers "some educational benefit" to Beth, they argue, ……the school district cannot remove her from that setting. This language is misplaced. The Rowley holding applies only to the school districts responsibility to provide a FAPE – a requirement that analyzes the appropriateness of the districts placement – not the appropriateness of the ELS alternatives including the regular education classroom. (Emphasis added) The court goes on to say that the preference for mainstreaming demands "a hard look anda careful analysis" of the education the student was receiving at the middle school. The parentsrely on "misplaced language from Rowley" to argue that so long as she was receiving .16 Light v. Parkway, 515 U.S. 1132 (1995) 98
  • 99. MemorandumBeth B. v. Mark VanClay and School District #65Page 2any benefit at all, her removal would "violate the LRE requirement." The court disagreed. It saidthat by applying this kind of reasoning to the LRE directive and arguing that the school districtcant remove a student from the regular classroom if she receives any benefit there, the parentsturn the "some educational benefit" language upside down. Instead of granting flexibility toeducators, such a view places an extreme restriction on their authority and the deference they areowed pursuant to decisional case law. Essentially, such an approach would limit districtsauthority to place any disabled children in separate special education settings. The courtrecognizes in this opinion that "neither Congress nor the Supreme Court intended such result."The court then incorporates the Rowley footnotes, wherein the U.S. Supreme Court says infootnotes four and twenty-one that Congress clearly recognized that some students would simply notbe suitable for education in the mainstream. Rowley started with common sense, but some of the decisions that have interpreted itsLRE requirement in as in this case, have totally missed the point. The operational word in theLRE language is "appropriate," and that is an easy word to understand. The reasoning is ascommon sense as in the 8th Circuit Wayzata case, decided on August 3, 2001.17 In that case, thehearing officer held that the child needed to be in a "secure" residential setting and the schooldistrict appealed the decision. Yet, the Wayzata court held that the childs truancy and defianceof authority result from a genuine emotional disturbance rather than from a "purely moralfailing," and therefore the child was eligible. Further, the Wayzata court held that if anyproblem prevents a child from receiving educational benefits, what difference does it makewhere the problem came from or whether it is "educational" or "cognitive" or not? The realquestion, according to that court was, Does the problem need to be addressed in order for the child to learn?And with regard to LRE, the court held that the Federal statute requires mainstreaming only tothe maximum extent appropriate, not to the maximum extent possible (citing Burlington). Finally, with regard to the Beth B. case, a close look should be given to the repetitivelanguage in the opinion that school authorities are better suited than Federal Judges todetermine educational policy. The court systems are required, in their independent evaluationof evidence in individual cases, to give due deference to the results of the administrativeproceedings, due to the greater expertise of the educators. Remember: the U.S. Supreme Courtsinquires in Rowley prevail in all special education cases. If there has been no significantprocedural violation, the decision-making of the educators receives due deference. If there hasbeen a significant procedural violation which does harm to the student, the decisions by theeducators then become suspect and subject to much closer scrutiny than if the proceduralrequirements had been followed.17 Independent S.D. #284, Wayzata Area Schools, v. A.C. 2001 WL 872913 (8th Cir. 2001) 99
  • 100. MEMO Enclosed please find an insurance claim case involving the underlying Beth B.case, General Star Indemnity Company v. Lake Bluff School District No. 65 et al. Thisis an Illinois appellate case which starts out by describing the underlying action whichwe are all familiar with. When the Beth B. case was active, the school board had aliability policy with plaintiffs and immediately notified them of a claim pursuant to thepolicy. The General Star Liability Company denied any obligation to provide a defenseover a $50,000 cap because the action did not involve “damages” as required by thepolicy. In order to obtain a judicial interpretation of the policy’s terms, the insurancecompany filed an action for declaratory relief and Lake Bluff counterclaimed fordeclaratory and other relief. The court began by outlining the policy’s apparent exclusion for special educationmatters which were contained among a list of other potential matters under the generalrubric of “non-monetary relief”. The trial court held that the insurance company owedthe school district a defense in the underlying complaint as to the ADA and section 504claims but not as to the IDEA claim beyond the $50,000 cap. Likewise, the insurancecompany was obligated to pay the district’s attorney fees and defense costs in federaldistrict court and through the appellate level, but not the petition for certiorari before theU.S. Supreme Court (ultimately denied) which solely related to the IDEA claim. The appellate court determined that the issue was whether the family asked forrelief that might bring their claims within full coverage of the policy and not under thedamages limitation. The appellate court examined the decisional case law establishing relativelyclearly that a duty to defend may not be based on “speculation” as to a court’s inherentpower to award damages when none are requested. The appellate court then decidedthat the school district’s argument of a potential for an award of damages was withoutmerit, and based on other decisions, concluded that the trial court committed a legalerror by basing its grant of partial summary judgment in favor of the school district onthe federal judge’s discretion to award monetary damages. The court, however, thenwent on to say that it had independent authority to determine whether the family in theunderlying case sought relief that is catagorizable within the “damages” definition. 100
  • 101. You should be reminded here that the B. family lost on every in the underlyingcase. Thus, the analysis is not what was obtained by the family but what theyrequested at the beginning of the case in their pleas for relief. The court even notesthat the family would have been entitled to payments for reimbursement of the cost ofmedical evaluation and for the cost of independent clinician services. The question waswhether the relief requested, not the relief obtained, fell within the damages definition. In its discussion, the court states that when it is considering whether an insurerhas a duty to defend, both the underlying complaint’s allegations and the relevant policyprovisions must be liberally construed in favor of the insured. The court then refers tothe dictionary, (Webster’s and Black’s Law) and holds that the “reimbursement” soughtby the family for doctor evaluations and clinician services would come directly throughmonetary payments, and that this was enough to bring it within the “damages” definitionand therefore outside of the exclusionary language of the policy. Other cases weredistinguished as concerning solely injunctive relief while the IDEA claim forreimbursement in the Beth B. case fell within the “liberally construed” language ofcontract interpretation in favor of the insured. Thus, the school district received anappellate court decision in its favor with full coverage of defense costs outside of thecap on damages. I enclose a full copy of this case for your review. 101
  • 102. The Lindsey R. Case:Increased Stability forParents and Districts BROOKE R. WHITTEDWHITTED, CLEARY & TAKIFF LLC Suite 303 3000 Dundee Road Northbrook, Illinois 60062 847/564-8662 847/564-8419 (FAX) whittedlaw@aol.com www.wct-law.com 102
  • 103. The 7th Circuit Appeals Court has brought stability to certain important areas of specialeducation law. This stability will benefit parents, districts, and students in the future. We would like to call your attention to the Seventh Circuit Federal Appellate Courtdecision of Board of Education of Township High School District 211 v. Michael and DianeRoss et al., decided on May 11, 2007. This was an appeal of Federal court decision filed by theHon. Matthew Kennelly on August 15, 2005, in which the school district prevailed on a so-called“full inclusion” issue. The administrative hearing phase of this case took forty-two days over aspan of seven months, resulting in a written Administrative decision in excess of sixty pages.There were over 10,000 pages of transcripts and a like amount of documentary evidence. TheAppellate Court referred to this case as “Ross I” because shortly after the issuance of JudgeKennelly’s opinion in favor of the school district, the family, on behalf of the student who had bythen reached her majority, sued the parties again. This second case was decided by JudgePlunkett, again in favor of the school district and was also appealed, resulting in a secondopinion by the Appellate Court, issued the same day as Ross I, and labeled by the Court as “RossII.” The appellate panel in both Ross I and Ross II held in favor of the school district, howeverthe decisions solidified areas of the special education law that will favor both parents anddistricts going forward. In this case, we represented School District #211 and the central issue was the “full inclusion”of a profoundly delayed student with severe disabilities. It is our understanding that Ross I wasthe longest special education hearing ever held in any state, even though the record is repletewith numerous attempts by the school district to settle the matter.18 The Appellate Court inRoss I held that trial Judge Matthew Kennelly was correct in his support of the administrativehearing officer’s detailed and comprehensive decision in favor of the school district. The Appellate Court outlined the facts of the case, stating that the student is a girl with RettSyndrome, the effects of which are apraxia (speech, hand, and gross motor movements) andsignificant and profound cognitive delays. She is nonverbal and requires appropriate assistivetechnology for communication. The student also suffers from numerous medical ailments, someof which require periodic hospitalization. Uncharacteristic to Rett Syndrome generally, thestudent was also unintentionally aggressive to herself and other staff members, resulting infrequent and significant injuries. As can be seen in the attached decision, which is similar to the Beth B. Federal appellatedecision, the school district went to extraordinary measures in an attempt to defer to the parents’wish to have their daughter educated in a mainstream environment. However, after nearly threeyears of trying, due to the student’s extensive and unique disabilities, district staff determinedthat she desperately required more intensive programming than could be provided in thetraditional high school classes preferred by the parents. The district decided to take a principledposition over and above parental objections and recommended that she be placed in a self-18 For example, the parents rejected numerous offers of full payment for private facilities both on and off the ISBE stateapproved list of nonpublic facilities nationwide, stating they wanted their daughter to be “fully included” rather than placed in aprogram geared to intensively teach the functional skills the district personnel sincerely felt she needed to learn. 103
  • 104. contained, multi-needs classroom, at full district expense, after numerous offers of appropriateprivate placements were rejected. The parents disagreed with this recommendation, asserting thatthe school district should create an appropriate program for the student in her “home school,”and insisted that she be educated “within her own community.” This was a classic “fullinclusion” dispute. The Appellate Court described the staff’s ethical expression of conscience that was presentedat an IEP meeting in August 2003:19 By the end of her ninth grade year…staff members who worked closely with Lindsey sincerely believed she was receiving virtually no educational benefit in the mainstream. Based on these beliefs, public school personnel recommended a placement at a separate school designed to appropriately meet Lindsey’s needs. [T]he belief among District #211 staff that Lindsey is not being appropriately served in the mainstream still exists…However, staff is also advised by legal counsel that the settlement agreement continues to control and therefore they will in good faith implement whatever IEP is agreed upon today. Were it not for the settlement agreement, as a matter of conscience, public school personnel would continue to recommend an appropriate public or private self-contained setting. The parents interpreted this statement as a “predisposition” of the IEP by school staff. In fact,the Appellate Court took it as it was: a sincere expression of concern on the part of the staff thatthe controlling settlement agreement was forcing them to make a recommendation that they feltethically they could not make without explanation. At the conclusion of the exceptionally lengthy administrative proceedings, the hearingofficer thoroughly considered all of the evidence and held for the District that a self containedmultiple needs program was the minimally restrictive and appropriate placement where thestudent could receive a free and appropriate public education. Subsequent to publication of thecase by LRP, parents appealed at the Federal court level, and Judge Matthew Kennelly, in awritten opinion, supported the hearing officer, dismissing the parents’ claims.20 Parents thenappealed the decision to the Seventh Circuit, which resulted in the attached opinion.21 Inparallel with Lindsey I, another lawsuit was filed against District 211 and certain individualsshortly after the trial level decision was filed by Judge Kennelly. This action was ostensibly onbehalf of the student, who had reached her majority and allegedly had decided to proceedindependently, even though there were serious questions about her capacity to do so. JudgePlunkett, in another written opinion, also held for the school district on the basis that they hadalready had their day in court in Lindsey I and shouldn’t be given another bite of the apple.22This decision was also appealed by the student and her parents, which resulted in a second19 This statement was drafted by Brooke Whitted during a break in the IEP meeting after staff expressed their heartfelt concernthat their decisionmaking was being guided by an active settlement agreement which was compelling them to recommend aplacement they did not feel was appropriate.20 Board of Educ. of Tp. High School District No. 211 v. Ross, 105 LRP 40802 (N. D. Ill. Aug. 15, 2005)21 Board of Educ. of Tp. High School District No. 211 v. Ross, 2007 WL 1374919 (7th Cir. 2007)22 Ross v. Board of Educ. of Tp. High School Dist. 211, 2006 WL 695471 (N. D. Ill. Mar. 14, 2006) 104
  • 105. Appellate Court decision in favor of the school district.23 Both cases are significant for parentsand schools for the reasons examined below.Implications of Ross II – Finality of Settlement Agreements Shortly after the District Court issued its opinion in Ross I, Lindsey and her parents fileda second federal suit against the school district, its Director of Special Education, and a medicalexpert who appeared in the administrative hearing for the district. Damages were sought,however the second case arose from the same facts as the first case. The only difference was thatLindsey had reached her majority, and was ostensibly suing on her own behalf with her parentsas her next friends. Judge Plunkett held in favor of the school district based on claim preclusionand the Appellate Court in Ross II affirmed. The Ross II case is a positive development for both parents and school districts in specialeducation cases. In the case of parents as plaintiffs, often school lawyers are reluctant to settlespecial education matters because, they argue, a student can reach his or her majority and sue thedistrict all over again on his or her own behalf. The Ross II case puts this argument to rest andconforms this issue to the well established federal policy of encouraging non-court resolution ofspecial education disputes. Likewise, school districts need no longer worry (in this jurisdiction)about the adult former student coming after them even after the parents have sued previously. Inother words, Ross II benefits both parents and school districts by bringing increased stability andfinality to settlement agreements entered into by parents on behalf of their children. The SeventhCircuit has made it clear that once parents bring such actions, the student is precluded fromhaving another bite of the litigation apple once he or she becomes an adult. Current case law nowmore strongly encourages amicable settlement in conformity with the IDEIA policy.Implications of Ross I – Parental Participation and LRE The Ross I case is quite complex due to its chronology and the controlling settlementagreement that led to the administrative hearing being held, pursuant to a Federal court order, inthe first place. We will not summarize the full chronology of the case here but suggest a closereading of the attached opinion for those who are interested, especially pages 4-9. The courtmentions that the administrative hearing officer (hereafter “IHO”) held that the parents weremaximally involved in the IEP process, including its implementation and modification – contraryto the position of the parents. This is in full compliance with the Rowley case in which the USSupreme Court required, as far back as 1982, that parent involvement must be maximized. Thecourt compares the facts in Ross I with the Target Range case (where the IEP was preparedwithout any parent participation) and concludes Ross I is a “far cry” from Target Range. The court also makes short work of the parents’ arguments that the school district wasbiased from the beginning due to the statement of conscience (outlined above) as well as the factthat the district had a lawyer positioned at the courthouse and ready to file, depending on whatthe IEP participants decided. The court felt that the statement of conscience was just that, and23 Ross ex rel. Ross v. Board of Educ. of Tp. High School Dist. 211, 2007 WL 1374863 (7th Cir. 2007) 105
  • 106. that the lawyer-at-the-courthouse argument did not have the sinister meaning the parents attachedto it. Finally, the court deals with the least restrictive environment (“LRE”) issue in whichparents argued that as long as Lindsey is receiving “some benefit” she must be kept in themainstream. The court said this was not enough, and instead asked whether education in theconventional school was satisfactory, and if not, whether reasonable measures would have madeit so. The court listed some examples of how the school district attempted in good faith to serveLindsey educationally, concluded that these were proper attempts, and that the decision to movethe student to a more restrictive setting complied with relevant statutes and decisional case law. It is clear that in this jurisdiction, with Ross I and the Beth B. cases, the LRE definition isnot education with nondisabled students to the maximum extent possible. LRE in the SeventhCircuit means education to the maximum extent appropriate, with appropriate being thecontrolling term.Conclusion Ross I and Ross II bring increased stability to two special education areas. In the LREarea, the Seventh Circuit takes a common sense approach and unequivocally rejects thecomplicated multi-tiered tests developed in other circuits. An LRE analysis is now simpler andmore concrete and easy for both educators and parents to comprehend and implement. In thepublic policy area, Ross II lays to rest the possibility that a student whose parents haveprosecuted a hearing or settled a special education claim on his or her behalf could, uponreaching majority come back after a school district on the same issues. This lends stability todecisions made by hearing officers and judges and encourages settlement agreements because allclaims will be fully resolved with no doubts about the future. Both cases are therefore quitebeneficial for all parties in special education cases going forward. One final point deserves mention. While these cases concern a public school district, thereasoning is consistent with cases involving private schools, where plaintiffs seek to force theseinstitutions to change in some fundamental way. Courts will not generally support such effortsin either the public or private sector as long as the facility is otherwise legally compliant. Wefeel the Ross cases help to bring clarification and stability to both public and private sectors onthis issue. 106
  • 107. LIGHT v. PARKWAY:WHEN A SCHOOL DISTRICTBENDS OVER BACKWARDS TO ACCOMMODATE"INCLUSIONIST" PARENTS: NO GOOD DEED GOES UNPUNISHED WHITTED, CLEARY & TAKIFF LLC 3000 Dundee Road Northbrook, Illinois 60062 (847) 564-8662; Facsimile (847) 564-8419 www.wct-law.com WhittedLaw@aol.com 107
  • 108. Martin Light v. Parkway District C-2, (8th Cir. 1/11/95 St. Louis) 41 F.3d 1223. Lauren Light, a 13 year old with SED, PDD, BD, MMR, autistic features,language impairment, and organic brain syndrome - she is impulsive, unpredictable,and aggressive. She kicks, bites, hits and throws objects. During 1993-1994, she was in a self contained classroom, and parents obtaineda transfer to a less restrictive setting. Her IEP then required two on one staffing at alltimes! She received, consequently, one additional full time teacher, and one aide,totally dedicated, in addition to the regular class teacher. Also, the teachers at the newschool were specially trained; the district hired a consultant selected by the family;Lauren in addition to instruction received S/L; OT; PT; adaptive PE; living skillsinstruction; and "weekly community access." Teachers kept daily logs which wereregularly provided to the parents; Lauren participated in PE, art, computer lab, homeeconomics, and library - all "full inclusion." She participated in extracurricular activities.Also, she was given music therapy. No other student in the school received thisservice. Lauren committed 11 to 19 aggressive acts per week, including biting, hitting,kicking, poking, throwing objects, turning over furniture. During 30 of these (over a twoyear time line), the attention of the nurse was required. This behavior had a negativeeffect on the progress of the five other students in the program. The class was rarelyable to complete a lesson plan. One student required supplemental support tocompensate for Laurens behavior - and all the parents were quite upset. In November, 1993, the multidisciplinary team re-evaluated the situation. In afull-day IEP meeting on March 23, 1994, a change of placement was recommended.Parents requested a hearing and invoked "stay-put." On April 12, 1994, Lauren attacked another pupil, hitting her three times on thehead - and the principal suspended her for ten days. Parents immediately filed infederal district court to have this lifted and the district counterclaimed to remove Laurenfrom the program during pendency of the proceedings. The district claimed asubstantial risk of injury to self or others, and further argued that parents were notpresent at informal hearing prior to suspension and Lauren had no capacity to representher interests, thus, there were procedural violations. The trial court held for the parents, found that they had been denied due process,and lifted the suspension. Then there were more hearings and the same court reverseditself, holding for the district. The court further declined to inquire into what placementwould be appropriate, or into the districts efforts to accommodate Laurens disabilities. 108
  • 109. Courts Discussion 1. "The IDEA seeks to guarantee the educational rights of disabled children by requiring policies of inclusion" - then cites LRE language, and Obertis "strong preference" language. 2. Discussion of required procedural protections, with emphasis on Honig v. Doe standard of substantial likelihood of injury. Parents argument that underlying, the child must "intend" injury was rejected. The purpose of removal is not punishment but maintaining a safe learning environment for all students. (41 F.Rep.3d at 1228). Also, "removal" does not terminate a placement. 3. The Court also outlined a second test for removal: The district must show that it has made reasonable efforts to accommodate the childs disabilities so as to minimize the potential for injury to self or others. This boils down to whether the district has made reasonable use of supplemental aids and services. This may give rise to the argument they must actually be tried before more restrictive placement is implemented.(Quote from 41 FR.3d 1228 n. 4, 5): Where injury remains substantially likely to result despite the reasonable efforts of the school district to accommodate the childs disability, the district court may issue an injunction ordering that the childs placement be changed pending the outcome of the administrative review process. There was a substantial likelihood of injury; parents arguments that these were merely "nuisance" behaviors were rejected.Holdings: 1. A child need not first inflict serious injury before being deemed "substantially likely" to do so. 2. The district took reasonable steps to minimize the risk of injury. 3. Removal of child from program was proper. 109
  • 110. PROVIDING HEALTH- RELATED SERVICES TO MEDICALLYINVOLVED CHILDREN WHITTED, CLEARY & TAKIFF LLC 3000 Dundee Road Northbrook, Illinois 60062 (847) 564-8662; Facsimile (847) 564-8419 www.wct-law.com WhittedLaw@aol.com 110
  • 111. PROVIDING HEALTH-RELATED SERVICES TO MEDICALLY INVOLVED CHILDREN by Brooke R. WhittedI. STATUTORY AUTHORITY The IDEA is the controlling statute. The relevant sections of IDEA and itsimplementing regulations state in pertinent part: Statute 1. Any state receiving federal funds under the IDEA must provide its students with a free appropriate public education. 20 U.S.C. 1412(1). 2. The term "free appropriate public education" means special education and related services that have been provided at public expense. 20 U.S.C. 1401(18). 3. "Special Education" means specifically designed instruction at no cost to parents or guardians, to meet the unique needs of a child with a disability including instruction conducted in the classroom, home, hospitals and other settings. 4. "Related Services" means transportation, and such developmental, corrective, and other supportive services ... (including medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education. 20 U.S.C. 1401 (17) (emphasis added). REGULATIONS 5. "Related services" for handicapped children include "school nurse services." 34 C.F.R. 300.13(a). 6. "School nurse services" are services provided by a qualified nurse or other qualified person. 34 C.F.R. 300.13(b)(10). 7. "Medical services" are services provided by a licensed physician. 34 C.F.R. 300.13(b)(4). 111
  • 112. II. CAPSULE SUMMARY The school district will be obligated to provide a particular health-related service ifservice at issue constitutes a "related service" as provided by IDEA, as opposed to a"medical service" as provided by IDEA. Therefore, in every case summarized below,the primary question before the court is whether the disputed health-related serviceconstitutes a "related service" or a "medical service."III. CASE LAW A. Irving Independent School District v. Tatro, 104 S.Ct. 3371 (1984) Facts: Amber Tatro was an eight-year-old severally orthopedically impaired girl with spina bifida. Her health problems included a neurogenic bladder which prohibited her from emptying her bladder, resulting in the need for her to be catheterized every three-four hours to prevent injury to her kidneys. The catheterization procedure could be performed in a few minutes by a lay person who received less than one hour of training. Held: Catheterization constitutes a related service because it is a supportive service required to assist a handicapped child to benefit from special education, as provided in 20 U.S.C. § 1401(17). Reasoning: * In creating the Act, 24 Congress sought primarily to make public education available to a handicapped child and to make such access meaningful [Rowley]. * The Act makes specific provision for services, such as transportation for example, that do more than enable a child to be physically present in class. * School nurses have long been part of the education system and one can reasonably conclude that school nursing services are not the sort of burden Congress intended to exclude as a "medical service."24 "The Act" refers to the IDEA or its predecessors. 112
  • 113. * The definition of "medical services" in the regulations suggests that Congress intended to spare schools from an obligation to provide a service that might well prove unduly expensive and beyond the range of their competence.* By limiting the "medical services" exclusion to the services of a physician or hospital, both of which are far more expensive than the catheterization procedure, it is permissible to conclude the catheterization services do not constitute a "medical service" excludable under the Act.* The obligation to provide services that relate to both the health and educational needs of handicapped students does not create an undue burden on the school districts. Several limitations within the statute and regulations minimize the burden. The limitations are: 1.) To be entitled to "related services" the student must be handicapped so as to require special education. (20 U.S.C. 1401 (1), 34 C.F.R. 300.5). 2.) Only those services necessary to aid a handicapped child to benefit from special education must be provided, regardless of how easily a school nurse or lay person could furnish those services. For example, if a child required an insulin shot one time a day and the shot could be administered at night, the school would not be required to provide those services. 3.) School nursing services must be provided only if they can be performed by a nurse or other qualified person, not if the service must be 113
  • 114. performed by a physician. (34 CFR 300.13(a), (b)(4), (b)(10)).B. Tokarcik v. Forest Hills School District, 655 F.2d 443 (3rd Cir. 1981) Facts: A fourth grade girl, also named Amber, was also born with spina bifida, and required intermittent catheterization every four hours. Held: For the child under reasoning similar to Tatro. Reasoning: * Because special education specifically contemplates instruction in a regular classroom (see 20 U.S.C. § 1401), "related services" necessarily include what is required within reason to make such a setting possible for a child who can benefit from it. * An appropriate education for a physically handicapped child with normal intellectual ability aims at promoting achievement roughly equivalent to that of her non- handicapped peers. Special educational for Amber should entail classroom instruction, for the nature of her handicap is not so severe as to preclude the possibility of education in a regular environment. Such a placement would demand in terms of related services, only that the school make the classroom physically accessible to Amber and reasonably provide for health needs that might otherwise interfere with classroom performance which is exactly what catheterization would accomplish. * The definition of related services (20 U.S.C. §1401(17)) foreclosed the argument that related services pertains only to services directly linked to the effort to educate, and excludes therapeutic services contributing to other than educational needs. * Related services need not be education-specific and may be critical outside the formal educational setting. The regulations clarify that related services includes 114
  • 115. school health services (34 C.F.R. 300.12(a)). In light of the findings that catheterization can require no more than a few minutes a day, and no expenditure of funds if performed by the school nurse already required to be on staff at every school district, or very little expenditure of funds if performed by a part-time nurse, such services constitute a related service.* Even if school did not have a nurse or nurses aid to catheterize, the school would still be obligated to provide Amber with an appropriate education (presumably, it would then have to hire someone to provide these services).* The regulations place realistic limits on the nature of school health services to be provided under the Act. (See limits in Tatro). Drastic medical services that only a doctor can perform are excluded by the Act.* In this case, the court is not confronted with difficult value choices between placing the burden of fiscal limitations on handicapped children as opposed to school districts, or between advantaging a handicapped child by mainstreaming rather than enhancing the education of her nonhandicapped students by excluding her.* The alternatives of a special classroom or at home instruction are less cost beneficial. NB: Notice how the court states that the responsibility to provide related services is limited to "what is in reason," and how the court emphasizes that the disputed services are inexpensive, relatively easy to provide, and do not harm the education of other students. This reasoning represents the courts own value judgment and interpretation of the law. No where do 115
  • 116. the statutes or regulations provide for this interpretation.C. McKenzie v. Jefferson, 566 F.Supp. 404 (1st Cir. 1983) Facts: A very intelligent, but severally emotionally disturbed girl spent a year in a psychiatric facility where she received residential care. The girl attended school at the facility. The school agreed to pay for the educational placement, but disputed the residential hospitalization services, claiming they were not related services under the Act. Held: For the district. Reasoning: * The services at issue are clearly medical in nature and do not fall within the related services category as set forth under the Act. * The hospitalization services are not something a layman with training can provide -- here, there must be doctors. * The only type of medical service a school is obligated to provide a handicapped student are those that are for diagnostic and evaluative purposes. (20 U.S.C. 1401(12)0.D. Detsel v. Board of Education of the Urban Enlarged City District, 637 F.Supp. 1022 (N.D. N.Y. 1986) Facts: Melissa, a seven-year-old with severe physical disabilities, required constant respirator assistance, a continuous supply of 40 percent oxygen, and constant observation by an individual trained to monitor her health. The individual would have to know how to check Melissas vital signs, administer medications through a tube, perform a "P, D and C" procedure, which calls for the ingestion of saline solution into the childs lungs and suctioning of the childs lungs, and perform CPR. 116
  • 117. Held: For the District. The required services are not related services. The school is not required to provide a severely disabled child with constant in-school nursing care. Reasoning: * The care Melissa requires is complicated and requires the skill of trained professionals. * In Tatro, the Supreme Court clearly considered the extent and nature of the [related] service to be performed. * Here, the provision of the disputed services undoubtedly enables Melissa to attend school during the day. However, it does not necessarily follow that because Melissa can attend school only with the assistance of the services, that they must be provided by the school. * The disputed services do not fall squarely within the terms of the "medical services" exclusion because they need not be performed by a physician. Nor do they qualify as simple school nursing services. * Because of the ongoing and extensive nature of the disputed services, they closely resemble "medical services" and are thus precluded under the Act. NB: Notice again how the court is further carving out an exception to the obligation to provide related services when the student requires continual care from a highly skilled individual (but not a physician).*This case abrogated on 3/3/99 by the U.S. Supreme Court in Cedar Rapids case* 117
  • 118. E. Max M. v. New Trier High School, 859 F.2d 1297 (7th Cir. 1988) Facts: Max M. sought attorney’s fees based on the passing of the Handicapped Children’s Protection Act (“HCPA”). His case was pending on July 4, 1984 and was not resolved until March of 1986. The Act was passed in August 1986 as an amendment to the education for All Handicapped Children Act. The district court awarded Max attorney’s fees and the school district appealed on the grounds that the HCPA amendment was unconstitutional and inapplicable. The school district argued that Max had not filed his request within 90 days of the judgment in compliance with Local Rule 46. Max argued that it was impossible to have met the 90 day rule as the HCPA amendment had not yet been passed. Held: The district court held that although the time frame should be shortened to facilitate intelligent decisions about appeals, the 90 day rule governed. The district court reduced the amount of fees Max had been awarded to reflect the lack of success on other issues. The decision was affirmed by the Seventh Circuit. Reasoning: The district court opinion dealt with the substantive issue of whether “psychotherapy” was a related service. The holding was in the affirmative, along the lines of the Garret F. case. The court simply asked whether the service was capable of being delivered by a non-physician; answer was yes. The district had to reimburse the parents at the cost level of a non- physician. [Author’s case on the administrative level.] F. Macomb County Intermediate School District v. Joshuas, 715 F.Supp. 824 (U.S. Dist. 1989) Facts: A severely multiple impaired student with a tracheostomy required constant monitoring from a trained individual. The school refused to pay for those services during the childs transport to and from school. The issue on appeal was whether the school must monitor the students medical needs during transport (not during the school day). Held: For the student. 118
  • 119. Reasoning: * Both Detsel and Bevin refused to acknowledge the Supreme Courts directive in Tatro. Instead, Detsel and Bevin incorrectly held that "extensive therapeutic health services" not requiring administration by a physician were medical in nature. This is an incorrect expansion of the medical services definition under the IDEA. * No evidence was presented to suggest the disputed services had to be performed by a licensed physician. Therefore, the services do not fall within the medical services exception. * While disagreement exists as to whether a trained lay person could adequately service the students needs, Tatro supports the conclusion that use of a medical professional, other than a physician, if necessary to safely transport the student, is a “related service.”G. Three Villages Central School District Board of Education, 18 IDELR 938 (New York, 1991, Level II) Facts: A minor with cervical spine injury, quadriplegic, recurrent urinary tract infection, neurogenic bowel and bladder, and scoliosis, required assistance with catheterization and tracheostomy care. The minor required continual care by a person trained and certified in the use of ventilator equipment. Held: For the school under reasoning similar to Detsel.H. Granite School District v. Shannon M., 787 F. Supp. 1020 (U.S. Dist. 1992) Facts: Shannon was a six-year-old with congenital neuromuscularatrophy and severe scoliosis. She was confined to a wheelchair, breathed through a tracheotomy tube which required suctioning five times during a three hour school day, and ate through a nasogastric tube. Sometimes she required a portable ventilator. Held: For the school. 119
  • 120. Reasoning: * The Tatro decision cannot be read as an endorsement of the proposition that all school health services performed by persons other than licensed physicians are related services under the Act, regardless of the amount of care, expense, or burden on the school system, and ultimately on the other school children. * Following subsequent interpretations of Tatro by a majority of courts, the issue of whether a school health service is a related service or excludable medical service must depend on the amount of care required, the cost of the care, and the other children. * In dicta, the court indicated that the facts might be different if the state regulation did not allow home bound instruction.I. Barnegat Township Board of Education, 19 IDELR 724 (N.J. 1992, Level I) Facts: A six-year-old with cerebral palsy was placed in full leg casts for three to four weeks, during which time she required repositioning throughout the day to prevent medical complications. Held: For the child. Reasoning: * Repositioning services can be performed by a school nurse, physical therapist, or other school employee with little, if any, additional training. * The student would not be able to attend school while she remained in the leg casts but for the repositioning performed on a daily basis during school hours. Thus without the services, the child would not receive the special education to which she is entitled. 120
  • 121. J. Neely v. Rutherford County School, 68 F.3d 965 (6th Cir. 1995) Facts: Samantha, a seven-year-old girl, had a medical condition requiring a tracheostomy, resulting in the need for regular suction of her throat, nose and mouth to avoid serious and life threatening consequences. She required continuous care by a well-trained individual to provide respiratory care. Held: For the school. Reasoning: * This case is distinguishable from Tatro. In Tatro, the service required was not unduly expensive or beyond the schools range of competence. * A school district is not required to provide every service which is medical in nature. * The services required here are too burdensome. *This case abrogated on 3/3/99 by the U.S. Supreme Court in Cedar Rapids case* K. River Forest School District. No. 90 v. Illinois State Board of Education, 1996 U.S. Dist. LEXIS 4988 (N.D. Ill. 1996) Facts: Christopher D. was diagnosed as having Landau-Kleffner Syndrome, a severe form of communication disability, which is a developmental neurological disorder marked by autistic behaviors and epilepsy. To treat his seizure activity, Christopher had two major brain surgeries. His doctor said the second surgery was his only chance of recovery. In February 1994, after the first surgery, the district determined Christopher to be eligible for special education services and developed an IEP which identified nine annual goals, including improvement of his language skills. The district recommended private placement of Elim Christian Day School (“Elim”). At the beginning of the 1994-95 school year, the district did not have all the supplemental related services outlined in the IEP in place at Elim. Christopher’s 121
  • 122. mother requested a Level I due process hearing and inNovember 1994, she notified the district that Christopherwould be undergoing a second brain surgery due to a “pre-operational loss of some critical cognitive functions.”Following surgery, the district planned to return Christopherto Elim and reportedly failed to increase Christopher’s relatedservices to the extent necessary as a result of the secondsurgery. Christopher’s mother placed him on the inpatientunit of the Rehabilitation Institute, a hospital specializing inthe rehabilitation of brain injured patients, from Januarythrough March 1995. At the Rehabilitation Institute,Christopher receive intensive daily speech and languageservices, occupational and physical therapy, and a one-to-oneaide.Upon his discharge from the Rehabilitation Institute,Christopher received services from Cognitive RehabilitationServices (“CRS”) for speech, language and occupationalservices. The district offered CRS an unacceptable,significantly reduced payment rate and in March 1995, thedistrict informed Christopher’s mother that CRS was not an“approved” state board special education facility. It furtherstated the placement was “medical, not educational,” and thatit would not pay for the placement. The district did agreed toprovide a one-to-one aide as a related service for the timeChristopher was at CRS. Christopher’s program at CRSconsisted of speech and language therapy, occupationaltherapy, and monitoring by the medical staff.In July 1995, Christopher was transferred to RehabilitationInstitute and received services similar to those provided atCRS.A Level I due process hearing was held in April and May1995, and the hearing officer found that Elim was not anappropriate placement. The district was ordered toimmediately convene a MDC to consider the CRS as a privateplacement, to reimburse the parent for occupational andspeech therapy at the Rehabilitation Institute, as well as fordaily transportation to CRS, and to maintain the employment 122
  • 123. of the one-to-one aide. The holding was later affirmed at a Level II due process hearing.Appeal: Medical v. Educational Placement On appeal, the district argued that the placement at the Rehabilitation Institute was medical, rather than educational in nature. The court gave due deference to the hearing officers’ decisions and stated the services were “educational” because Christopher received therapy in order to facilitate his ability to communicate. Christopher’s “most pressing service need is for a highly structured integrated educational program which will be directed at restoring former functional levels in communication, sensory motor skills, and daily living skills.” Furthermore, as noted in the Babb case, The concept of education under the Act clearly embodies both academic instruction and a broad range of associated services traditionally grouped under the general rubric of ‘treatment.’ Any attempt to distinguish academics from treatment when defining ‘educational placement’ runs counter to the clear language of the Act. Looking specifically at Christopher’s unique situation, the court said: Christopher’s severe communication disability precludes academic learning. Simply because a child is so severally disabled that he is unable to participate in reading, writing and arithmetic lessons does not mean that his treatment is ipso facto medical.Reim-bursement: After determining that Elim was an inappropriate placement and that the Rehabilitation Institute was appropriate, the court ordered the district to reimburse the parent for the rehabilitation services. However, the court followed the 123
  • 124. holding of Max M. v. Thompson, 25 592 F.Supp. 1437 (N.D. Ill. 1984) and stated the district was limited to reimbursing the occupational and speech therapy at the customary rate the district pays to such personnel. State Board Responsi- bility: The school district argued that the State Board of Education was financially responsible for the placements at the rehabilitation facilities, because pursuant to regulation, the district is precluded from placing students at non-state-board- approved placements. The state board pointed to relevant state regulations and argued that because the district failed to submit any undisputed facts establishing it took the necessary steps with the parent or the state board to provide Christopher with a comprehensive program following his second brain operation, the parent was compelled to unilaterally place Christopher at non-approved private facilities. The court found the State Board’s argument persuasive. L. Cedar Rapids Community School District v. Garret F., 1999 WL 104410 (U.S. Supreme Court, March 3, 1999) Facts: Garret F. was a wheelchair-bound and ventilator dependent student. He requires, in part, a responsible individual nearby to attend to certain physical needs during the school day. Held: The Individuals with Disabilities Education Act (IDEA) required a public school district in a participating state to provide a ventilator-dependent quadriplegic student with one- on-one nursing services during school hours. Garret F.’s continuous care is not medical treatment, and therefore must be publicly funded under the IDEA. The school district was required to provide nursing service to Garret F. Reasoning: * The Court affirms and employs the reasoning in its previous decision of Irving Independent School District v. Tatro, 104 S.Ct. 3371 (1984). The services25 Handled at Levels I and II by Brooke Whitted. 124
  • 125. at issue had to be provided if the student was to remain in school. Under the statute, relevant Supreme Court precedent, and the purposes of the IDEA, the school district was required to fund such “related services” in order to help guarantee that disabled students were integrated into the public schools.* Most of the requested services were already provided by the school district to other students. Further, the in- school care necessitated by the student’s ventilator dependency did not demand the training, knowledge, and judgment of a licensed physician, and did not fall within the “medical services” exclusion.* The continuous character of certain services associated with the student’s ventilator dependency had no apparent relationship to whether they were “medical” services. Continuous services might be more costly and require additional school personnel, but they were not thereby more “medical.”* A rule limiting the medical services exemption to physician services is a reasonable and generally workable interpretation of the statute.* Finally, although the school district raised legitimate concerns about the financial burden that it would be required bear to provide the services that the student needed to stay in school, IDEA did not employ cost in its definition of “related services” or excluded “medical services.” Accepting the school district’s cost-based standard as the sole test for determining the scope of the provision would require the Supreme Court to engage in judicial lawmaking without any guidance from Congress, and would create tension with the purposes of IDEA. 125
  • 126. IV. CONCLUSIONS The U.S. Supreme Court has now adopted the Tatro “bright line” test: if a relatedservice is required to enable a qualified disabled pupil to remain in school, it must beprovided as long as it is not a purely “medical” service. And the determination of“medical” is provider controlled, that is, if the service can only be provided by a licensedphysician, it is an exempt “medical” service unless it is needed for diagnostic orevaluative purposes. If, however, the service is capable of being delivered by a non-physician, it must be provided by school districts regardless of any financial or staffingburdens the services might impose. The Supreme Court has again - and quite predictablyin light of the Honig case on expulsion - read the Act for its plain, simple meaning andhas again declined to “read in” exceptions are not present in the statute. 126
  • 127. THE FINAL WORD ON SCHOOLHEALTH SERVICES: THE U.S. SUPREME COURT DECISION IN CEDAR RAPIDSCSD v. GARRET F. Brooke R. Whitted Lara A. Cleary WHITTED, CLEARY & TAKIFF LLC 3000 Dundee Road, Suite 303 Northbrook, Illinois 60062 (847) 564-8662; Facsimile (847) 564-8661 www.whittedclearylaw.com WhittedLaw@aol.com 127
  • 128. THE FINAL WORD ON SCHOOL HEALTH SERVICES: CEDAR RAPIDS CSD v. GARRET F. by Brooke R. WhittedI. Facts and Case History When he was four years old, Garret’s spinal column was severed in a motorcycleaccident. There was no adverse effect on his mental capacities. He is ventilatordependent and needs someone nearby at all times. In 1993, mother requested the schooldistrict to be financially liable for one-to-one school nursing services while Garret was atschool. The school district denied this and thought at that time they were not responsiblefor services they felt were “medical.” Garret was the only ventilator dependent pupil inthis district of 17,500 students. Mother requested a hearing and during the proceedings,the school district admitted the services were capable of being provided by a non-physician. The administrative hearing officer held that the school district had to providethe services, for this reason, according to the Tatro case. The school district thenappealed the hearing officer’s administrative decision in federal court, and the courtupheld the hearing officer’s ruling, granting the parent’s motion for summary judgment.The Court of Appeals affirmed, using the Tatro “bright line” test, since it was undisputedthat Garret could not attend school if the services were not provided.II. The Supreme Court Opinion A. District’s Position In its petition, the school district asked the Supreme Court to overrule the appellatecourt in favor of a ”multi factored” test, not a “bright line” test. The Supreme Court heldin favor of the Appellate Court because, they said, the text of the related servicesdefinition is very clear, and here, the district did not challenge the idea that Garret neededthe services requested. The court further commented in a footnote that they see no reasonto either revise Tatro or rewrite the U.S. Department of Education’s regulations, whichfavor the test used by the Appellate Court. The court therefore held that the in schoolservices, while more extensive and expensive, must be provided, and further that Garret’sneeds were no more “medical” then those needed by Amber Tatro in her case. [1999 WL104410*4.] 128
  • 129. 1. “Continuous” and “Complex” (Translation: Expensive) The school district used an argument that the services were required in a complexform and they were necessarily “continuous.” Yet the court said unequivocally that “thedistrict’s multi factor test is not supported by any recognized source of legal authority.”Just because “continuous” services may be more costly and require more personnel doesnot make them any more “medical” under Tatro. [Footnote 8 at 1999 WL104410*5.] 2. Limitations of “Existing” Staff The court further stated that the “district cannot limit educational access simplyby pointing to the limitations of existing staff. The district must hire specially trainedpersonnel as required by law.” As to this problem of existing school staff being unable tomeet all of their responsibilities and provide for Garret too, the concept was dismissedout of hand. As in Honig, the U.S. Supreme Court declined to read into the law adefinition that was not present. The court was remarkably consistent here. Note alsofootnote 9 (at 1999 WL104410*5) which mentions that Garret had a teaching assistantwho also was a qualified LPN. In Iowa, the State Board of Nursing has held that RN’scan delegate responsibilities to LPNs. The court further held that school districts cannot use cost itself in the definition ofrelated of related services. This would be “judicial law making without any guidancefrom Congress.” Citing Rowley, as courts always do, the court further required thatdistricts must “open the door” of opportunity to all qualified children. There is no“onerousness” exception.III. Summary The analysis in this case is just as simple as that found in the Tatro case: ismeaningful access to the public schools assured? This is not about the “level ofeducation that a school must finance once access is attained.” To be specific, the servicesat issue were as follows: 1. Ventilator checks; 2. Ambubag (manual breathing assistance) when ventilator is being maintained and as needed; 3. Urinary bladder catheterization; 4. Suctioning of tracheotomy tube as needed; 5. Getting Garret into a reclining position five minutes during every hour; and 129
  • 130. 6. Assistance from someone who is familiar with emergency procedures, in other words, at least an LPN. The court held that regardless of how expensive or complex (the dissent points outthat the services will cost the school district $18,000 per year), the services must beprovided if Garret is to remain in school. It was held that the district is required toprovide these services and further, that the Neely and Detsel cases (appellate casesfavoring the approach of the district) have now been abrogated.IV. Conclusion The U.S. Supreme Court has now adopted the Tatro “bright line” test: if a relatedservice is required to enable a qualified disabled pupil to remain in school, it must beprovided as long as it is not a purely “medical” service. And “medical” is providercontrolled, that is, if the service can only be provided by a licensed physician, it is anexempt “medical” service unless it is needed for diagnostic or evaluative purposes. If,however, the service is capable of being delivered by a non-physician, it must beprovided by school districts regardless of any financial or staffing burdens the act ofproviding the services might impose. The Supreme Court has again - and quitepredictably in light of the Honig case on expulsion - read the Act for its plain, simplemeaning and has again declined to “read in” exceptions that are not present. 130
  • 131. SERVICES AT PRIVATE SCHOOLS: OBLIGATIONS OF SCHOOL DISTRICTS FORVOLUNTARILY ENROLLED STUDENTS AND “UNILATERAL” PARENT PLACEMENTS WHITTED, CLEARY & TAKIFF LLC Suite 303 3000 Dundee Road Northbrook, Illinois 60062 (847) 564-8662; Facsimile (847) 564-8419 www.wct-law.com WhittedLaw@aol.com 131
  • 132. PRIVATE SCHOOLS Retroactive Reimbursement Under IDEAI. The Burlington Case A. Introduction Prior to the Burlington case, 26 it was very difficult for advocates to argue on behalf of parents that retroactive reimbursement was a remedy which might be available under IDEA. Nevertheless, in 1985, the Burlington case was decided. A few of the very unusual things about the Burlington case were that (1) it was a unanimous U.S. Supreme Court decision and (2) it was an opinion delivered by Justice Rehnquist. As some of the readers of this article might be aware, unanimous Supreme Court opinions do not occur all that often, and Mr. Justice Rehnquist was not known for his sympathies toward protected groups. These two factors make the Burlington opinion all that much more powerful. B. The Opinion The Burlington opinion involved the parents unilateral placement in a facility, in part during the pendency of proceedings under the IDEA. At the end of the case, since the district noted that the parent had only prevailed partially, the school district sought to be paid back for that period of time during which it felt it had "won" part of this six year case. The U.S. Supreme Court said that the "stay put" or "frozen placement" provision did not work two ways. In other words, the IDEA provision is parent oriented. Thus, it applies only where a parent, in an attempt to provide an appropriate educational setting for his or her child, effects a unilateral placement in an appropriate facility. There was a caveat in the case. Where an appropriate education is shown to have been made available by the district at the time the unilateral placement was made by the parent, the parent placement of the child in a non-public location is at parents own expense. This tracks precisely with the provision in the regulations at 34 C.F.R. 300.403(a) which stated at the time the case was decided:26 Burlington School Committee v. Department of Education of Massachusetts, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). 132
  • 133. If a child with a disability has FAPE 27 available and the parents choose to place the child in a private school or facility, the public agency is not required by this part to pay for the childs education at the private school or facility.II. The Carter Case A. Introduction Once the Burlington case was decided, legal luminaries in the field of parent advocacy were most pleased to advise their clients that this remedy was available, as long as the facility chosen by the parent “met the standards” of the state in which retroactive reimbursement is sought. In Illinois, for example, the state statute provides for the state board to maintain an "approved" list of placements which have met certain state standards. 28 In Indiana, there is no such list and if the proper approvals are obtained in a particular case, any reasonably appropriate facility may be used. States do vary, but advocates did make attempts to steer their clients to "state approved" facilities. B. The Case Facts In 1993, Justice Sandra Day OConnor delivered the Carter opinion. 29 In this case, the pupil in question, Shannon Carter, was classified as learning disabled in ninth grade in 1985 and the schools recommendation was regular education with three resource periods per week. The goal was to get Shannon to progress four months during the entire school year. The parents requested a hearing, and on both administrative levels, the independent hearing officers held (against the parents) that the IEP was adequate. Meanwhile, the parents had placed Shannon privately in a school for disabled LD students, but this school was not "approved" by the state and in fact did not even write Individual Education Plans. Shannon graduated from the school in 1988. In 1986, two years before Shannons graduation, the parents filed suit to challenge the adverse administrative decisions. After a bench trial, the parents won. The court, in the process, appointed an independent27 Free Appropriate Public Education.28 Cite 105 I.L.C.S. 5/14-7.02 (1994).29 Florence County School District Four v. Carter, ___ U.S. ___, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993). 133
  • 134. expert to evaluate Shannons progress and gave great weight to the findings. It was found that she had made "substantial progress" even though the school did not follow all of the state standards. For example, her reading levels rose three grades per year as opposed to the goals designated in the IEP. The appellate court affirmed that the private school was "appropriate," and that the parents were entitled to retroactive reimbursement. It should be noted in this case that the violations generally were not procedural but substantive in nature. A challenge to the substantive basis for the IEP becomes a battle of experts and it is best to use the most highly qualified and reputable experts that a parent can afford. An affiliation with a major center of learning also helps. C. Court’s Holdings The Supreme Court, after reviewing the appellate court and trial records, delivered the following holdings: (1) that the IEP was inappropriate; (2) that the private schools program was reasonably calculated to enable the child to receive educational benefits under the Rowley 30 test; and (3) that retroactive reimbursement to parents when an IEP is found to be inappropriate does not require placement in a state approved program. In somewhat acid tone, Justice Sandra Day OConnor asked why courts should leave the job of "approval" in the hands of the very agency that violated the plaintiffs rights in the first place. This decision was unanimous, as was Burlington, which was heavily quoted in the Carter decision. The case further held that Burlington grants parents a right of "unilateral withdrawal" and placement of their child in a non-approved private facility when a districts IEP is inappropriate. The Court explained that "approval" requirements do not make sense in the context of a parental placement. Note also here that the private school was in fairly severe non-compliance with any state standards. Two faculty members were not state certified, they didnt write IEPs, and the State of South Carolina kept no list of approved private schools but "approved" them on a case by case basis. However, it was pointed out by Justice OConnor that public school officials had previously placed three children at the school.30 Board of Education v. Rowley, 458 U.S. 176, 206-07, 102 S.Ct. 3034, 3051, 73 L.Ed.2d 690 (1982). 134
  • 135. The final holding of the Court is instructive. As support for the proposition that parents need not seek state cooperation in the form of state approval of the parents placement, she noted that "such cooperation is unlikely in cases where the school officials disagree with the need for private placement." Id., 114 S.Ct. at 366.III. Public Law 105-17: The 1997 Revisions to IDEA Limit Carter/Burlington Recovery to Some Degree A. New IDEA Section The new Section 1412(a)(10(C)(iii) mandates that to preserve the parental right to seek retroactive reimbursement under the Burlington and Carter cases, it is necessary that the district be notified at the “most recent IEP meeting” or letter must be submitted to the district, at least ten business days in advance of actually placing the child, of parental intent to place. This means there must be some evidence that the district has actually received the correspondence, and further, the parent theoretically cannot place prior to ten business days having elapsed from date of receipt. The term “business day” includes any regular business day even though that might fall on a school holiday. B. Effects of Amendment The Burlington and Carter cases have thus been limited by IDEA reauthorization. There are certain specific limitations to retroactive reimbursement if parents do not properly comply with their notification duties. For convenience, a sample notification form is attached, “Appendix I.”IV. Preauthorization - “Proportionate Share” A. Decisional Precursor to Reauthorization Fowler v. Unified School District 259, 107 F.3rd 797 (10th Cir. 1997) B. Facts and Holdings of the Courts Parents withdrew their hearing impaired son from a district school and enrolled him in a private school, requesting an ASL interpreter onsite full time for purposes of “increased academic challenge.” The school 135
  • 136. district declined and the parents requested a hearing. The hearing officer held for the parents, with the state level hearing officer reversing against them. The parents then appealed to the federal district court which held for the parents and this case involved the district’s federal appeal of that adverse trial court ruling. The court held there was an obligation for “equitable” participation in FAPE for “voluntarily enrolled” pupils, as there is a difference between children placed in private schools through an IEP and those placed “unilaterally” at parental discretion (as in this case). The court examined K.R. v. Anderson Community School Corp., 81 F.3d 673 (7th Cir. 1996) and Goodall v. Stafford County School Board, 930 F.2d 363 (4th Cir. 1991). Both of these cases held that if FAPE is made available by the district and the parents choose, at their discretion, to enroll the child at a private facility, there is no obligation on the part of the district to give services onsite. The court also looked at Cefalu (103 F.3d 393, 5th Cir. 1997) and Russman (85 F.3d 1050, 2nd Cir. 1996) and Cefalu’s test as follows: “Is onsite provision of services necessary in order for them to be meaningful?” If the answer is yes, according to Cefalu, the student is entitled to some, but not more, benefit than he or she would receive if attendance was at the public school. C. Discussion Most significant about this case is the pre-IDEA reauthorization “proportionate share” language. Here, the court stated that district must calculate the average amount spent per pupil (it is unknown whether this is per handicapped pupil or all pupils) in the public school for the service in question, and make an “equivalent” amount of funding available for any student enrolled in a private school. Later, of course, the U.S. Supreme Court vacated the rulings in Anderson, Russman, and Fowler and ordered the appellate courts to reexamine their holdings in light of the reauthorization of IDEA.V. IDEA Reauthorization - Private Schools (20 U.S.C. §1412(a)(10) et. seq.) A. Enrollment by Parents - §1412(a)(10)(A)(i) (“voluntarily” enrolled children) Districts must provide a “proportionate share” of services, in accord with the following: 136
  • 137. 1. Amounts expended for provision of services by a local education agency shall be equal to a “proportionate amount of federal funds made available under this part.” 2. Such services may be provided to children with disabilities on the premises of private, including parochial, schools to the extent “consistent with law.”B. Children Placed in, or Referred to, Private Schools by Public Agencies -- §1412(a)(10)(B)(i) (i) In general - schools must provide FAPE in private facilities if that was the purpose of making the referral in the first place. (ii) Standards: ► facility and services must meet the LEA standards ► children have the same rights as if directly served by the local education agency.C. Payment for Education of Children Enrolled in Private Schools Without Consent of or Referral by the Public Agency -- §1412(a)(10)(C) 1. (i) In general - there is no requirement for the LEA to pay if it was making FAPE available and the parents elect to enroll the child in a private facility anyway. This is no change from Rowley, Burlington, and Carter. 2. (ii) A district may be liable for retroactive reimbursement if it is found by a court or hearing officer not to have offered FAPE in a timely manner prior to parental enrollment in a private facility. ► This section seems to be limited to children who have previously received special education and related services through a public agency. 3. (iii) Limitation on reimbursement - reimbursement may be reduced or denied (i) if ► (aa) at the most recent IEP meeting the parents did not inform the LEA that they were rejecting its placement, and including a statement of their concerns, as well as their intent to enroll their child in a private school at public expense; or 137
  • 138. ► (bb) parents fail to notify the LEA in writing ten business days in advance of placement of their concerns, prior to their child’s removal from the public schools. (It should be noted here that “business day” includes any school holidays falling on a business day.) See “Appendix I.”D. Exceptions to Limitations - §1412(a)(10)(C)(iv) The above section, imposing certain duties on parents, does not apply if: ► Parent is illiterate and cannot write in English; ► Compliance with the clause would likely result in physical or serious emotional harm to the child; ► The school prevented the parent from providing the required notice; ► The parents have not received a written notice of their own obligation to provide notice under this section. Further limitations or denials pursuant to §1412(a)(10)(C)(iii)(II) can occur, ► If, prior to parent removal from the public school, the LEA informs the parents of its intent to evaluate the child and the parents refuse to make the child available for such evaluation, or ► (iii) upon a judicial finding of “unreasonableness” with respect to the parents. 138
  • 139. UNILATERAL PLACEMENT FORM LETTER (To be Sent to School Superintendent at Least 10 Business Days in Advance of Placement) Date: __________________ Re: (Name and Age of Student): Written Notice of Intent to Place Disabled Child in Nonpublic Facility and Seek Reimbursement from School District Pursuant to Public Law 105-17 at 20 U.S.C. 1412(a)(10)(C)(iii)(I)(bb)Dear Superintendent: Please treat this correspondence as your formal written notification pursuant to the abovecaptioned section of Public Law 105-17. We intend to place our above named child at the__________________ School [address, phone] on ___________, 19____. We will seekreimbursement of costs for that nonpublic facility from your district. As you are aware, Section 1412(a)(10)(C) states as follows: (C) PAYMENT FOR EDUCATION OF CHILDREN ENROLLED IN PRIVATE SCHOOL WITHOUT CONSENT OF OR REFERRAL BY THE PUBLIC AGENCY. (...) (iii) LIMITATION ON REIMBURSEMENT. The cost of reimbursement described in clause (ii) may be reduced or denied -- (I) if -- (aa) At the most recent IEP meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP team that they were rejecting the placement proposed by the public agency to provide a free appropriate public education to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or (bb) Ten business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in division (aa); ... Please treat this correspondence as your formal 1412(a)(10) notice as required by thatsection. Sincerely, __________________________________ Parent(s) 139
  • 140. ILLINOIS FUNDING SCHEMEWHITTED, CLEARY + TAKIFF, LLC 3000 W. Dundee Road, Suite 303 Northbrook, IL 60062 (847) 564-8662 (847) 564-8419 Fax Email: Whittedlaw@aol.com 140
  • 141. PRIVATE PLACEMENTS – EDUCATION FUNDING School District determines that a child District refuses to evaluate, serve or is disabled and in need of special classify child for special education. education service. District suspends/expels disabled child. ↓ ↓ District performs Case Study Parent or chosen representative has an Evaluation, has staffing, agrees to unequivocal right to request a hearing place and pay for the private against School District for purpose of placement. challenging its decision. ↓ ↓ Hearing is requested against School District. District fills out ISBE Form 34-37 & sends The issue is usually whether private day or to Springfield for approval or placement. residential school is an appropriate placement (Residential only – No need for ISBE for the child, or whether it is appropriate to approval for private day school placement.) evaluate child and determine eligibility for special education. ↓ ISBE approves application for placement ↓ ↓ (residential only) and returns to District. Parent WINS – is entitled to Parent LOSES – District gets retroactive reimbursement, to implement its prospective payment for recommendation UNLESS Child is placed at approved private facility parent appeals (this process and 100% of the cost is assumed by the placement and attorney fees. omitted here for simplicity). District, including all transportation to and from the day or residential school. School District pays monthly bills as they are received from the facility and submits vouchers to ISBE - Springfield office. ↓ THE ISBE REIMBURSES THE SCHOOL DISTRICT FOR MONEY IT HAS ACTUALLY EXPENDED ON THE PRIVATE DAY OR RESIDENTIAL PLACEMENTS. TUITION COSTS RESIDENTIAL ROOM & BOARD COSTSDISTRICT MUST PAY UP TO TWO TIMES WHAT IT DISTRICT PAYS BUT IS REIMBURSED BY ISBE AT APAYS PER CAPITA FOR “REGULAR EDUCATION” 100% RATE FOR THESE COSTS. STUDENTS. Also note ISBE pays for transportation costs for private day school students. For anything over 2x per capita tuition 141 costs, the ISBE reimburses Districts historically at an 80% rate, usually within 3-6 months.
  • 142. METHODOLOGY- Cochlear Implants- Autism Spectrum 142
  • 143.   THE CASE FOR ORAL PROGRAMMING FOR CHILDREN WITH COCHLEAR IMPLANTS It is not the traditional Oral – Total ControversyWHITTED, CLEARY + TAKIFF, LLC 3000 W. Dundee Road, Suite 303 Northbrook, IL 60062 (847) 564-8662 (847) 564-8419 Fax Email: Whittedlaw@aol.com 143
  • 144. POSITION PAPER ON COCHLEAR IMPLANTS “The goal is for the hearing-impaired child to grow up in a typical learning and livingenvironment and to become an independent, participating citizen in mainstream society.” DimityDornan, Let’s Hear and Say: A Current Overview of Auditory-Verbal Therapy, The Auricle 16-23 (Fall/Winter 1999). “Cochlear implantation accompanied by aural habilitation (emphasisadded) increases access to acoustic information of spoken language, leading to higher rates ofmainstream placement in schools and lower dependence on special education support services.”Howard W. Francis et al., Trends in Educational Placement and Cost-Benefit Considerations inChildren with Cochlear Implants, Arch Otolaryngol Head Neck Surg. 125, 499-505 (1999). Several studies show the benefits of intensive oral habilitation in young children whohave received cochlear implants. These children, who were once thought to be permanentadditions to special education services in the school systems, and to the so-called deaf culture,are now able to be completely mainstreamed. The key to making this happen is intensive, oralbased education which enables full use of their implants. These children must be placed in theappropriate setting as early as possible so that they can make a successful transition from aspecial education to a regular education setting. “Educational Management of Children with Cochlear Implants” outlines someprocedures for increasing the benefits that profoundly deaf children can achieve with cochlearimplants. J. Moog, A. Geers, American Annals of the Deaf, 136 (2), 69-76 (1991). The CentralInstitute of the Deaf (“CID”) uses an exclusively oral communication program for children withcochlear implants. Although most programs use “total communication” approaches, the CIDbelieves that the more speech the child hears, the easier it is for the child to learn to understandand produce it. When in oral programs, very profoundly deaf children rely exclusively onlipreading and skilled, specially trained teachers to learn to talk. Those in total communicationprograms, however, rely primarily on sign language to communicate. “Studies show that over 90% of parents with normal hearing do not use sign languagebeyond a basic preschool level of competence.” Let’s Hear and Say: A Current Overview ofAuditory-Verbal Therapy at 16. This means that most hearing-impaired children cannotadequately communicate with their parents when their primary mode of communication is signlanguage. Moreover, ASL is closer to a foreign language than it is to standard English. Childrenneed to receive direct, intensive oral training to develop auditory and speech skills. In most oralprograms, this training is an integral part of the entire school day. However, in totalcommunication programs, it is necessary to plan for periods each day when children will workon auditory skills and no signs will be used. This is a far cry from complete immersion in an oralenvironment. A study entitled “Speech Intelligibility of Children with Cochlear Implants” explored therelationship between communication mode and speech intelligibility in children who used oral ortotal communication programs. Mary J. Osberger et al., The Volta Review, 95 (5), 169-180(1994). The results revealed that the speech of children placed in the oral communicationprogram was roughly twice as intelligible as the speech of the children who were in the totalcommunication program. Therefore, children who use total communication programs do not 144
  • 145. reach their potential in terms of speech development because of problems inherent in theirmethod of communication. The primary goal of the oral communication program is to eventually mainstreamhearing-impaired children so that special education services will not be needed. “Let’s Hear andSay: A Current Overview of Auditory-Verbal Therapy” gives an overview of the currentphilosophy and teaching methods of Auditory-Verbal Therapy, which teaches hearing-impairedchildren to become independent of special services and ultimately completely mainstreamed.One of the main differences between the various programs for hearing-impaired children is notwhat the child can do but what is expected for that child. The aim for hearing-impaired childrentaught with the Auditory-Verbal approach is for mainstream education and the elimination ornear elimination of the need for special education services or accommodations. According to “Trends in Educational Placement and Cost-Benefit Considerations inChildren with Cochlear Implant”, “a cost-benefit analysis based on conservative estimates ofeducational expenses show a cost savings with cochlear implantation and appropriate auditoryhabilitation that ranges from $30,000 to $200,000.” Id. at 499. This savings only occurs if thesechildren are given the proper placement in an exclusively oral communication program thatteaches children with implants how to be independent of nontraditional forms of communication,as well as the deaf culture, such as sign language, and mainstreamed instead with the speakingsociety. Additional support of this position may be found in an OSEP Letter to Cohen found at 25IDELR 516 (1996). In this letter, it states, “It is especially important that a full continuum ofalternative placements is made available to meet the unique communications and related needs ofdeaf and hard-of-hearing students.” A full continuum would include providing both total andoral communication programs to meet the individual needs of all students, including implantedstudents. And as the technology advances, the needs of implanted students will be increasinglydifferent from the needs of non-implanted deaf and hearing impaired students. 145
  • 146. A recent due process decision in Illinois changed the former belief that oralcommunication for Cochlear implanted children was a methodology issue. In W.F. v FlossmoorSchool District No. 161 (IL 2002) (38 IDELR 50), the school district for a four-year-old boy whowas implanted at the age of 18 months attempted to place him in a total communicationclassroom rather than a totally oral/aural program. The parents had unilaterally placed this childat a private oral/aural day school one year prior to the due process hearing, and requestedretroactive and prospective placement at the day school. The hearing officer ruled in favor of theparents on all counts and specifically rebutted the dispute as a methodology issue. He stated,instead, that oral programming for children with Cochlear implants was “not a methodologyissue, but rather what the child needs to satisfy the goal of talking.” He further found that “If thegoal for this Student is to use his cochlear implant to learn to talk, he needs a highly intensiveoral-aural approach to reach this goal. The Parents sought a cochlear implant for him becausethey wanted their son to be able to utilize oral language as his sole means of communicating withsociety. For him, to be placed in a different program, would be potentially harmful in that itconsumes valuable time in a narrow window of opportunity.” Therefore, the parents wereentitled to reimbursement for the past year’s tuition, reimbursement for transportation to theprivate school and prospective placement at the private school for at least one year. Two other due process hearing decisions also support the theory that oral communicationprograms are the minimally appropriate education for children with cochlear implants. InEureka Union School District, 28 IDELR 513 (CA, 1998), the school district attempted to placea three-year-old with aided hearing almost equal to the hearing of a nonhearing-impaired child ina total communication class for deaf/hard-of-hearing students. The parents objected, enrolled thechild in an auditory/oral program at a private school, and requested a due process hearing forreimbursement tuition costs. “The hearing officer examined the proposed district program forthe student and concluded that it was inappropriate. The district program was not designed toaddress the student’s need for improvement of his listening and auditory skills and would haverequired him to learn a new form of communication.” (emphasis added.) The district programemphasized sign language, which the student did not need to communicate and would possiblyhave resulted in regression of the student’s listening and speaking skills. The private program,however, provided the student with a free and appropriate public education, since it addressed hislistening and auditory skills. Accordingly, the parents were entitled to reimbursement for thecosts of the private program. In Duarte Unified School District, 26 IDELR 351 (CA, 1997), the school districtrecommended placing an 11-year-old with a cochlear implant in a total communication program.Despite recommendations that the student required extensive therapy to learn how to use theCochlear implant, the district only increased the amount of therapy by an insignificant amount.The parents objected to this placement and requested a more inclusive placement in an oral classand additional speech/language services. The hearing officer agreed that the proposed placementfor the student was not appropriate. He concluded that the student required placement in a classthat was primarily oral, in order to increase the student’s oral communication abilities and toincrease the use of the cochlear implant. The school district was ordered to design a new IEP for 146
  • 147. the student which specified a more inclusive placement and at least three 60-minute sessions aweek of speech/language therapy. The technology of cochlear implants is advancing rapidly in the medical field. As itadvances, the needs of implanted children will be increasingly distinguishable from the needs ofnon-implanted deaf and hard of hearing children. There is no question that an implanted childwho, early on, is provided with a “full immersion, high expectation” 100% oral program is farmore likely to succeed in school and in hearing society. The “up front” investment in oraleducation for implanted children is small when compared to a lifetime of special services andaccommodations. And the complete or near-complete elimination of the need for specialeducation services – with full mainstreaming – is not only a worthy goal, but one mandated,where appropriate, by IDEA. In the case of implanted children, “success” could not be betterdefined. There are cases in which the district prevailed, but each of these is distinguishable. InBrougham v. Town of Yarmouth, 20 IDELR 12 (U.S. District Court, Maine, 1993), although thecourt held for the district, the distinct difference in the fact pattern explains the judgment. Theparents removed their hearing-impaired 13-year-old son from the public school in Maine after hehad been mainstreamed since he first entered public school in 1984. They unilaterally sent himto an out-of-state school for the deaf in Massachusetts and then expected full reimbursement. Hehad a hearing aid, instead of a cochlear implant. Also, this case dates back to 1993, which seemsto be particularly outdated due to recent advancements in hearing technology. In Bonnie Ann F. v. Calallen Independent School District, 20 IDELR 736 (U.S. DistrictCourt, Southern District, Texas, 1993), the district agreed to incorporate an oral approach andcommitted to discontinuing the use of all sign language techniques with the child. The parentsdisagreed with the placement. The district then agreed to place the child in an oral environmentin the district. The parents rejected all of the options and pulled their daughter out of the schoolin the middle of the school year. They transferred her to a private school 300 miles away andasked for reimbursement from the district for the cost. The district prevailed due to theunreasonableness of the parents. In Nicholas R. Petersen v. Hastings Public School, 20 IDELR 252 (U.S. District Court,Nebraska, 1993), a dispute arose from three hearing-impaired children who were taught modifiedsign language instead of exact sign language, which was what the parents wanted. The courtheld that the district had complied with the requirements of the IDEA providing an overallprogram designed to confer an educational benefit on each of the children. This, again, is anoutdated case (1993) which contained nothing concerning cochlear implants or oral v. totalcommunication programs. In Unified School District 512, 22 IDELR 912 (Kansas state, 1995), the district proposedto place the child in a total communication program and the parents disagreed. Although theschool district offered more pull-out time for speech and language services, more auditorytraining, and more mainstream time, the parents, who lived in Kansas, instead placed their child 147
  • 148. at the Central Institute for the Deaf in St. Louis, Missouri. Again, the court held for the districtdenying the parent’s request for reimbursement. CONCLUSION Our primary goal is for hearing-impaired children to no longer be excluded frommainstream society. Cochlear implantation has made this goal achievable so long as theimplanted children get the appropriate educational services. Oral communication programs givehearing-impaired children the skills they need to function in mainstream society. 148
  • 149. MEMO To: Whitted, Cleary & Takiff, LLC Clients From: Brooke R. Whitted Date: June 11, 2002 Re: Autism/Lovaas – Samuel Tyler W. by next friends Harvey W. and Debbie M., Plaintiff, v. Northwest Independent School District, Defendant (36 IDELR 236 U.S. District Court, Northern District Texas – April 22, 2002) This is an appeal from the decision of a special education hearing officer in favor of theschool district in a proceeding filed under the IDEA. The parents of the student claimedreimbursement from the school district for their Lovaas-based in-home training program,claiming that a failure to provide this reimbursement deprived their son of a free, appropriatepublic education. The parents also claimed that the independent hearing officer was "predisposed" to rule infavor of the school district because she had ruled in favor of school districts in 23 of the previous30 cases she had decided. Finally, the parents claimed that the school district had violated theIDEA by failing to have a regular education teacher present at several of the IEP meetings. Citing Board of Education v. Rowley, 458 U.S. 176 (1982), the Texas federal court sawits role as 1) determining whether the State had complied with proper procedures; and 2) whetherthe IEP was reasonably calculated to enable the student to receive educational benefits. Thecourt noted that the free appropriate public education does not have to be the best one possible orone that “will maximize a student’s educational potential. The IDEA guarantees only a “basicfloor of opportunity.”Background At an IEP meeting in June 1999, plaintiff’s parents did not accept the educationalinstruction offered by defendant. They requested at least 25 hours of Lovaas-based weekly in-home training while the school district offered six hours. In February 2000, plaintiff’s parentsfiled their request for a due process hearing.Hearing Officer’s Decision The hearing officer found that the school district had complied with the proceduralrequirements of IDEA and had developed IEPs that allowed plaintiff “to receive educationalbenefits.” 149
  • 150. U.S. District Court Opinion The U.S. District Court first dismissed summarily the allegation of the parents that theHearing Officer was predisposed to rule in favor of the school district simply because she hadruled in favor of school districts in 23 of the last 30 cases she had heard. The Court found thatthe argument “is entirely without merit.” The federal court also dismissed as being without merit plaintiff’s allegation that theschool district had violated the procedural safeguards of IDEA by failing to have a regulareducation teacher present at several of the IEP meetings. The court noted that the student wasnot eligible for regular education services “due to his young age,” and that plaintiff “has nocredible explanation for why the absence of such a teacher materially affected any of theproceedings.” (emphasis added) The court rejected plaintiff’s assertion that “any procedural inadequacy, i.e., technicality,will throw defendant out of compliance with IDEA and make it absolutely liable to fundplaintiff’s private education.” Rather, the court found that “only if the procedural inadequaciesresult in the loss of educational opportunity or seriously infringe the parents’ opportunity toparticipate in the IEP formulation process is FAPE [free appropriate public education] denied.” The Court found that because plaintiff’s parents had removed him from school in favor ofLovaas in home procedures, they did not give a "fair chance" to the school district. This isparticularly true, according to the court, because the student did attend the pre-kindergartenprogram and, according to the court, received significant educational benefit. The Court concluded by finding that the school district had complied with IDEAprocedures; that the IEPs were developed using proper procedures and were calculated to enableplaintiff “to receive educational benefits.” The decision of the Hearing Officer was affirmed andall claims for relief made by plaintiff against the school district were dismissed. 150
  • 151. ATTORNEY FEES, EXPERT FEES AND COSTS IN IDEA CASES Prepared by: Whitted, Cleary + Takiff, LLC 3000 W. Dundee Road, Suite 303 Northbrook, IL 60062 (847) 564-8662 (847) 564-8419 FAX Email: loconnor@wct-law.com 151
  • 152. ATTORNEY FEES, EXPERT FEES AND COSTS IN IDEA CASES Whitted, Cleary + Takiff, LLC The Supreme Court of the United States in Arlington Central School District Board ofEducation v. Murphy, 548 U.S. ____ (2006) held that the Individuals with Disabilities EducationAct (“IDEA”), which does permit the recovery of attorney fees, does not authorize prevailingparents to recover expert fees from school districts. The IDEA Award of Attorneys’ Fees sectionreads as follows: In any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys fees as part of the costs-- (I) to a prevailing party who is the parent of a child with a disability; (II) to a prevailing party who is a State educational agency or local educational agency against the attorney of a parent who files a complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation, or against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation; or (III) to a prevailing State educational agency or local educational agency against the attorney of a parent, or against the parent, if the parents complaint or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation. 20 U. S. C. §1415(i)(3)(B) Expert Fees Parents of Joseph Murphy, a disabled student, prevailed in an action under IDEA in which they asked the school district to pay for their son’s private school tuition. The parents then sought reimbursement for the services of Marilyn Arons, an educational consultant who had helped the Murphys throughout the proceedings. The District Court awarded $8650.00 for the time Arons had spent assisting the Murhpys between the hearing request and the ruling awarding payment of the tuition, and the Second Circuit affirmed. Resolving a split among the Circuit Courts, the Supreme Court reversed, explaining that Congress enacted IDEA pursuant to the Spending Clause of the Constitution, which requires clear notice to states of any conditions attached to money a state might choose to accept. The statute’s fee shifting language does not provide clear notice that a state would be obligated to pay for expert fees. The “plain on its face” language only speaks of “reasonable attorneys’ fees.” Previously, in November of 2003, a decision rendered by the U.S. Court of Appeals forthe Seventh Circuit, changed the law in Illinois regarding the parental right of reimbursement forexpert fees when parents are prevailing parties, and clarified the law regarding reimbursement ofattorneys fees in IDEA cases. T.D. v LaGrange School District No. 102, 40 IDELR 32 (7th Cir.2003). 152
  • 153. Prior to this decision, case law in Illinois and the Seventh Circuit generally allowedparents who prevailed at due process the potential to seek reimbursement of any expert fees theypaid as part of the due process hearing and preparation, including fees for independentevaluations and time for preparation and testimony at their child’s due process hearing. In T.D. vLaGrange, however, the Seventh Circuit forecasted the Supreme Court’s ruling in Murphy anddecided to follow the lead of the Eighth Circuit, and preclude parents’ reimbursement of whatthey call “expert witness fees,” even when parents are clearly prevailing parties. In the T.D. case,the parents had argued that “expert fees” were part of the legislative intent behind the fee shiftingprovision contained within the IDEA. However, the Seventh Circuit disregarded that argumentand quoted from an Eighth Circuit opinion in stating “there is no ambiguity in the statute,” andtherefore “no occasion to look to the legislative history.”Attorney Fees Prior to the Seventh Circuit’s decision in T.D. v LaGrange, many courts accepted the“catalyst theory” which allowed parents of disabled children to be awarded attorney fees if theywere able to secure services through a mutual settlement agreement with their school districts.The parents received attorney fees because their actions served as a catalyst that led to the resultthe parents wanted – making the parents “prevailing parties.” However, in Buckhannon Board & Care Home, Inc. v West Virginia Department ofHealth and Human Services, 532 U.S. 598 (2001), which involved the Americans withDisabilities Act and the Fair Housing Amendments Act, not the IDEA, the U.S. Supreme Courtruled that the “catalyst theory” lacked the “necessary judicial imprimatur,” (formal, publishedapproval). Therefore, despite the fact thatPlaintiff’s lawsuit was the reason or “catalyst” for a change in the state statute, it was not enoughto confer “prevailing party” status. The Court concluded that only a consent decree, a settlementagreement ordered by the court, or an actualdecision rendered could confer such status. Therefore, Buckhannon’s petition for attorney feeswas denied. While the Buckhannon decision did not specifically involve a claim under IDEA, manyschool districts around the country began arguing that because the Buckhannon opinionpertained to an administrative agency, that its definition of “prevailing party” should be extendedto include all cases originating from administrative agencies, including IDEA cases. In T.D. vLaGrange, the Seventh Circuit held that school districts are not “prevailing parties” entitled tothe reimbursement of attorney fees when there has been a settlement between the parties. However, the Seventh Circuit’s opinion, like the Buckhannon decision, did provide onecaveat to collecting attorney fees in some settlement situations – if the settlement is not merelyprivate (between two parties), but is filed and orderedthrough the courts, like a consent decree, then there is an argument that the parents might beconsidered “prevailing parties.” Of course, fees remain available to parents deemed prevailingparties through a due process hearing or court action. 153
  • 154. Impact On one hand, it will now be more financially advantageous for parents to push cases to afull due process hearing instead of trying to reach a pre-hearing resolution, as their attorney feeswould then be reimbursable if they prevail. However, it is extremely difficult for parents toprevail at a due process hearing without the aid of an experienced and credible expert witness. Itaddition, the IDEA limits a parent’s reimbursement of attorney fees in situations where theschool district has offered a settlement agreement that would confer the same benefits a parentcould receive through a due process decision, with the exception of attorneys fees and “expertwitness fees.” In other words, if the district makes an offer and the hearing officer fails to ordermore than what was offered, parents are not entitled to fees.Lara A. Cleary, Esq.Tracy E. Kotlarz, Esq.Whitted, Cleary + Takiff, LLC3000 W. Dundee Road, Suite 303Northbrook, IL 60062847/564-8662; 847/564-8419 Faxwww.whittedclearylaw.com 154
  • 155. SUSPENSION, EXPULSION AND DISCIPLINE WHITTED, CLEARY & TAKIFF LLC 3000 Dundee Road Suite 303 Northbrook, IL 60062 Phone: 847-564-8662 Fax: 847-564-8419 Website: www.whittedclearylaw.comm Email: bwhitted@whittedclearylaw.com 155
  • 156. INTRODUCTION A recent New York City study found that while disabled children constitutethirteen percent of the student body, this minority percentage is responsible for 50.3percent of violent incidents directed against staff. Almost all of these attacks emanatefrom the categories of autism and seriously emotionally disturbed children. Apparentlywith considerations such as these in mind, Congress has structured the 1997 amendmentsto the Individuals with Disabilities Education Act (“IDEA”) so as to encourage stateboards of education to set aside dollars for the purpose of providing direct services tochildren, including alternative programming for children who have been expelled fromschool. 31 It is ironic to observe that state education agencies now have, under§1411(g)(4) of the amendments, the authority to take money away from school districtsthat are currently doing a good job of providing a free appropriate public education(“FAPE”) to students and to reallocate it to those districts who are not. What follows isan attempt to make sense of a number of quite complicated provisions, some of whichhave been added for the first time to IDEA. A serious attempt has been made to writeclearly and simply and to reduce the need for the repeated cross-referencing that isendemic to the amendments. An outline format has also been utilized, again for ease ofreading - and citations to the relevant provisions are in footnote form. It is hoped thatparents and educators alike will find this initial review helpful.I. Procedural Safeguards - 20 U.S.C. §1415 The types of procedures protected by the new IDEA have not changed very much.These include, among others, the following: A. The right to examine all records; 32 B. The right to the appointment of surrogate parents for children who have no known parents or whose parents cannot be located after reasonable efforts; 33 C. The right to written prior notice whenever a school district 1. Proposes to initiate or change, or 2. Refuses to initiate or change, a placement 34 3. Takes action, in any area related to the identification, evaluation, or placement of children, or with regard to the provision of FAPE. 3531 20 U.S.C. §1411(f)(4)(A)(i).32 20 U.S.C. 1415(b)(1).33 20 U.S.C. 1415(b)(2).34 20 U.S.C. 1415(b)(3)(A) & (B).35 20 U.S.C. 1415(b)(3)(C). 156
  • 157. All notices to parents must be in the parent’s native language unless this is “clearly not feasible.” 36II. Administrative Due Process Hearings -20 U.S.C. §1415(f) A. Attorney Fees This section now contains a prohibition against fees for attorneys in IEPconferences unless these have been “ordered” by a hearing officer or judge. Moreover, aschool district is entitled to reductions in fees in one or more of the following instances: 1. Where a parent unreasonably protracts the proceedings; 2. Where the attorney’s hourly charge exceeds prevailing rates; 3. Where the legal services provided were “excessive”; 4. Where an attorney fails to submit a proper due process letter on behalf of the parents, which must contain the following information: name of the child address of the child’s residence name of the school the child is attending description of the nature of the problem including “facts relating to such problem” a proposed resolution of the problem “to the extent known and available to the parents at the time” It should be noted that §1415(b)(8) mandates all state boards of education todevelop model forms to assist parents in filing proper complaints should they choose notto utilize the services of an attorney. 37 And, §1415(i)(3)(g) prohibits any reduction ofattorney fees in favor of the school district where the state education agency or the schooldistrict “unreasonably protracted the final resolution of the action or proceeding.”III. New Discipline Provision/The “Current Educational Placement” - 20 U.S.C. §1415(j) A. Introduction This provision has been changed substantially with respect to certain types of children’s behaviors. The provision is essentially intact in that there is36 20 U.S.C. 1415(b)(4).37 However, enclosed as “Appendix A” is our rendition of what such a letter should looklike. 157
  • 158. still a presumptive injunction enjoining school districts from changing the “current” educational placement during the pendency of all proceedings under the Act. However, new exceptions have been added at 20 U.S.C. §1415(k)(1)(A): B. Placement Changes Allowed School officials may order a change for not more than ten days for a child with a disability to the same extent as would be ordered for those who do not have disabilities and additional removals of not more than ten consecutive school days in that same school year for separate incidents of misconduct (as long as those removals do not constitute a change in placement) 38, and to an appropriate alternative education setting, “another” setting, or a suspension, for the same amount of time a child without a disability would be subject to discipline, but for not greater than 45 days, 39 If: a child carries a weapon to a school or school function, the term “weapon” being defined as: A weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade less than 2 ½ inches in length. 40 -- OR -- the child knowingly possesses illegal drugs or sells or solicits the sale of a controlled substances while at a school or school38 20 U.S.C. §1415(k)(1)(A)(i).39 20 U.S.C. §1415(k)(1)(A)(ii).40 21 U.S.C. §812(c). 158
  • 159. function. 41 Additionally, the appropriate alternative educational setting must be determined by an IEP Team. 42 -- OR -- The child has inflicted serious bodily injury [defined at 18 U.S.C. 1365(3)(h)] upon another person while at school, on school premises, or at a school function. C. “Additional Actions” The above actions can only be taken commensurate with additional actions outlined at 20 U.S.C. §1415(k)(1)(B), which require that either before or not greater than 10 days after taking one of the disciplinary actions, if the school district did not conduct a Functional Behavioral Assessment (“FBA”) and implement a Behavioral Educational Plan (“BEP”), the school district must convene an IEP conference to develop a FBA to address the behavior; 43 -- OR -- D. Child Who Has a BEP If the child already has a BEP, the IEP Team still must meet and review it for the purpose of modifying, if necessary, the IEP to address the behavior which is the subject of the disciplinary action. 44 E. Self/Other Injurious Behaviors For likelihood of injury to self or others, a hearing officer can order a change in the “current” placement to an Appropriate Interim Alternative Educational Setting (“AIAES”) for not more than 45 days if the hearing officer: 4541 20 U.S.C. §1415(k)(1)(A)(ii)(II).42 20 U.S.C. §1415(k)(3)(A).43 20 U.S.C. §1415(k)(1)(B)(i).44 20 U.S.C. §1415(k)(1)(B)(ii).45 20 U.S.C. §1415(k)(2). 159
  • 160. • determines the school district has shown that maintenance of the current placement is substantially likely to result in injury to the child or others; • Considers the appropriateness of the current placement; • Considers whether the school district has made reasonable efforts to minimize the risk including the use of supplemental aides and services; • Considers whether the AIAES meets the requirements of paragraph 3(B) which states that reference to any alternative educational setting in which a child is placed by a school official (for weapons or drugs) or by a hearing officer (with respect to self or other injurious behavior), such placement shall ALSO - be selected so as to enable the child •• to continue to progress in the general curriculum, although in another setting -- AND -- •• to continue to receive all IEP services that will enable the child to meet his IEP goals -- AND -- •• shall include services and modifications designed to address the behavior so it will not occur. 46 F. Manifestation Determination Review (“MDR”) For children who fall into the above described behaviors [”any” behavior; weapon/drugs; self or other injury] where disciplinary action is contemplated for these children, or if disciplinary action involving a change of placement for more than ten days is contemplated for a child with a disability who has engaged in “other” behavior that violated any rule of conduct of the school district that applies to all children:46 20 U.S.C. §1415(k)(2). 160
  • 161. 1. On the date the decision is made, the district must notify the parents of the decision and all required procedural safeguards. However, note that there is no indication in the Act how this notice must occur but only that it must occur on the date the decision is made. 2. “Immediately,” but in no case later then ten school days after the date on which the decision to take action is made, a review shall be conducted of the relationship between the child’s disability and the behavior subject to disciplinary action.47 The individuals to carry out this review shall include the IEP Team and “other qualified personnel.” 48 Moreover, the review shall be conducted by the IEP Team, 49 including “other qualified personnel.” The IEP Team so commissioned can determine that there was no relationship between the disability and the behavior of the child only if that team: first considers all relevant information, including: • evaluative and diagnostic results including all information supplied by the parents; • an observation of the child; • a review of the child’s IEP and current placement.--- After which, the IEP Team then must determine that: the IEP and placement were all appropriate and the following were all actually provided to the child: • special education services; • supplemental aids and services; • behavior intervention strategies.--- And that all of the services which were actuallyprovided were consistent with the IEP and constituted theappropriate placement.47 20 U.S.C. §1415(k)(4)(A)(ii).48 20 U.S.C. §1415(k)(4)(B).49 20 U.S.C. §1415(k)(C). 161
  • 162. Further, the IEP Team, in order to determine that there was norelationship between disability and behavior, must also find that the child’sdisability did not impair his ability to understand the impact andconsequences of the behavior subject to disciplinary action, 50 and further thatthe child’s disability did not impair the ability of the child to control thebehavior. 51 After all of the above listed requirements have been met, according to§1415(k)(5)(A), if a review is conducted pursuant to all of the requirements and there is a“no manifestation” finding, the child may then be disciplined the same as any other child, Except -- The child must continue to receive FAPE as required by IDEA at§1412(a)(1), which provides that states are only eligible to receive federalfunds if they ensure that FAPE is provided and available to all children in thestate age 3 to 21, including children with disabilities who have beensuspended or expelled from school. G. Practical Considerations with Regard to Provision of Services During Suspension and Expulsion As stated in the last section, the law has been changed to provide that school districts must continue services even if there has been a suspension or expulsion, for all disabled children, even where an IEP has determined that there is “no relationship” between the disability and the behavior which is the subject of disciplinary action. On May 30, 1997 the Congressional Research Service submitted a document which painstakingly details the “intent of Congress” in amending this part of IDEA at Public Law 105-17. The memo was dated 5/30/97, just days before P.L. 105-17 was signed and tries to make the argument that the language of the statute runs counter to the “general intent of Congress” to provide more, not less, flexibility to schools in passing the law. The same memo, however, also indicates that the “plain meaning rule” might also apply. This rule provides that “where the words of a statute are clear and free from ambiguity, the letter of the statute may not be disregarded under50 20 U.S.C. §1415(k)(4)(C)(ii)(II).51 20 U.S.C. §1415(k)(4)(C)(ii)(III). 162
  • 163. the pretext of pursuing its spirit. Salvato v. Prudential, 480 A.2d 297, 1981. There is also a letter dated 9/4/97, subsequent to the passage of the amendment, from Judy Heumann from the Education Department, probably relying on the CRS memo and saying that the education department “interprets” the language of the statute not to require the provision of services within the first ten days of any suspension. However, she also goes on to add that this still might be “good practice.” Finally, a more detailed memo from the same individual as well as from Thomas Hehir, Director of OSEP, dated 9/19/97 utilizes the CRS memo and other sources to provide a Q&A document to state education officers. The ED takes the same position that the old Honig rules apply during the first ten days of suspension. Our position is that any test case on this issue will likely utilize the plain meaning rule and will determine that if Congress meant to say something other than what it actually did say in the plain meaning of the Act, it should go back and amend the Act. Thus, in practical terms, it is a better, safer and more conservative practice position to provide services of some kind during the first ten days of any suspension for any disabled child. H. Other Considerations: Records Confidentiality Issues If a school district initiates disciplinary action applicable to all children, it must transmit all of the child’s special education records to the “person making the final determination.” And, those persons must impliedly consider those records in making the decision. 52 Further, another provision requires that any school district reporting a crime must ensure that copies of the special education and disciplinary records are transmitted for consideration by the appropriate authorities to whom it reports the crime. 53 Although this provision is explicitly intended to reverse some of the case law which held that a report to juvenile authorities is an arguable change of placement, the amendment goes too far and in fact would be a direct violation of the mental health confidentiality acts of many states. Certainly, any conveyance of “special education and disciplinary records” without proper consent of the parents and any minor age 12 to 18 would be a clear violation of the Illinois Department of Mental Health and Developmental Disabilities Confidentiality Act, thereby raising the possibility of an award of attorney fees and damages to the parents from the violating district.52 20 U.S.C. §1415(k)(5)(B).53 20 U.S.C. §1415(k)(9)(B). 163
  • 164. IV. What is the Current Placement During Appeals? When a parent requests a hearing to challenge a disciplinary action taken by aschool district for weapons/drugs/risk of injury behavior, and this challenge involves adispute as to the alternative educational setting chosen or the manifestation determinationdecision made, the child must remain in the alternative education setting until theexpiration of the time period in the applicable paragraph, i.e., not more than 45 days. 54 If a child is placed in an Alternative Educational Setting (“AES”) for weapons/drugs/risk of injury behavior and school personnel propose to change the placement after the expiration of the 45 day time period, during the pendency of any challenge to the proposed change, the child must remain in the alternative educational setting.V. Protections for Children Not Yet Eligible for Special Education - 20 U.S.C. §1415(k)(8) A. A child can invoke special education procedures, even if he or she is not yet eligible for special education, if the school district had knowledge that the child had a disability before the behavior in question occurred. The basis of such “knowledge” is as follows: 1. The parent (if not illiterate) has expressed a concern in writing to supervisory or administrative personnel, or a teach of the child, that the child is in need of special education services; -- OR -- 2. The behavior or performance of the child demonstrates a need for such services; -- OR - 3. The parent has requested a an evaluation; -- OR - 4. A teacher or “other school district personnel” have expressed specific concerns about a pattern of behavior directly to the Special54 20 U.S.C. §1415(k)(7)(A). 164
  • 165. Education Director or to other supervisory personnel of the local education agency. 55 There are exceptions that let a school district off the hook: Parent has refused services; Parent has not allowed an evaluation; The child has been evaluated and determined not to be a child with a disability. B. If there is no “knowledge” found to be present, the child is subject to the same discipline rules as others. 56 However, if a request for an evaluation is made during the time the child is subjected to disciplinary procedures, the evaluation must be “expedited.”57 No time period is specified, however. C. It should be noted that this case tracks with the Rodriceius v. Waukegan District 60 case, a Seventh Appellate Circuit, 1996 case which involved a child who in a written confession admitted to stealing the principal’s master key and using it to steal from teacher’s desks. His DCFS worker, after the suspension, requested a Case Study Evaluation and the child’s attorney then requested due process, also invoking the “stayput” clause. The board expelled the child anyway four days later, but a week after that, the student filed suit in federal court to obtain an injunction to return to school. Two months later, the multidisciplinary conference held that the child was ineligible for services and the district court enjoined his removal while the appeal of the multidisciplinary conference decision was pending. By December of 1995, officers at both Levels I and II decided to affirm the school’s decision of ineligibility but the appellate court applied a “reasonable man” analysis and concluded that unlike other cases, there was no basis upon which the district reasonably could have known of a genuine disability. Here, the child’s grades were average and no one ever suggested a need for special education until the expulsion was pending. But the “reasonable man” requirement, as can be seen above, has been incorporated into the IDEA amendments.55 20 U.S.C. §1415(k)(8)(B)(i)-(iv).56 20 U.S.C. §1415(k)(8)(C)(i).57 20 U.S.C. §1415(k)(8)(C)(ii). 165
  • 166. APPENDIX A DUE PROCESS REQUEST FORM (to be hand delivered or sent by certified mail) Date: ______________________________________________, Superintendent______________________________________________ Re: (Name of Student, Age, Date of Birth)Dear Superintendent ______________: Please treat this correspondence as a formal request for a due process hearing pursuant to 105ILCS 5/14-8.02(b), 23 Illinois Administrative Code §226.605(b), and 20 U.S.C. 1415(b)(7).I. Name of Child: The name, age, and date of birth of the child are stated above.II. Address of Child’s Residence: Address: ____________________________________________________ City/State/Zip: ____________________________________________________ Phones: ____________________________________________________III. Name of School the Child is Attending: _____________________________________________________________________ _____________________________________________________________________IV. Description of the Nature of the Problem, Including Facts Relating to the Problem: _____________________________________________________________________ _____________________________________________________________________V. Proposed Resolution of the Problem to the Extent Known and Available at the Present Time: _____________________________________________________________________ _____________________________________________________________________ For the above listed reasons, it is our position that the district has failed to provide our child witha free appropriate public education as required by state and federal law. We will participate in statesponsored mediation efforts. Sincerely, _________________________________________ Parent(s) 166
  • 167. June 22, 2007VIA FACSIMILE AND CERTIFIED MAILDr. George Fornero, SuperintendentTownship High School District 1131040 Park Ave. WestHighland Park, IL 60035-2283 Re: Sam Zuckerman, Age 16, DOB 3-24-91Dear Dr. Fornero, Please treat this letter as a formal request for a Due Process hearing pursuant to105 ILCS 5/14 - 8.02 and 23 Illinois Administrative Code section 226.605(b) as wellas 20 USC 1415(b)(7). I. Name of the Child: Sam Zuckerman, Age 16, DOB 3-24-91 II. Address of Childs Residence: Laura Zuckerman 1260 Taylor Avenue Highland Park, Illinois 60035 III. Name of School the Child is Currently Attending: North Shore Academy 760 Red Oak Lane Highland Park, Illinois 60035 (847) 831-0603 IV. Description of the Nature of the Problem, Including Facts Relating to the Problem: Sam Zuckerman (“Sam”) is a 16 year-old high school sophomore diagnosed with ADHDand Mood Disorder NOS, for which he takes prescribed medications. Sam was adopted fromParaguay at approximately six weeks of age. Sam was a high-energy child who had difficultycontrolling his anger. At age 3, during preschool, Sam started showing signs of distractibility, social/behavioralissues, and he experienced significant behavior management issues. 167
  • 168. After consulting with several private professionals, Sam was diagnosed with ADHD at four yearsof age. Although a pre-school case study evaluation was conducted, the IEPteam determined that Sam was age appropriate and concluded that he was not eligible forspecial education. During first and second grade, teachers reported that Sam was disruptive,inattentive and impulsive. In addition, he displayed poor social skills which were demonstratedby conflict with his peers. Sam continued to display problems during this third grade year. Sam’s teacher raisedconcerns regarding attention and academics. In addition, he reportedly bullied classmates anddisplayed a temper. In February of 2000, Ms. Zuckerman brought Sam to Learning DisabilitySpecialist Barbara S. Rubin, M.A. for an educational evaluation. Ms. Rubin administered theWISC-III which revealed a Verbal IQ of 106, a Performance IQ of 95, and a Full Scale IQ of101. Testing also revealed “[w]eaknesses in visual-motor integration, visual perception ofpart/whole relationship, visual closure, directionality, motor planning and visual memory.” Ms.Rubin reported that “[i]mpulsive responding and inconsistencies were noted throughout thetesting. These weaknesses have impacted Sam’s academic abilities. He is functioning belowgrade level in reading (oral comprehension), math (geometry concepts, written calculation) andwritten language (mechanics). . . . Educational intervention is recommended to remediate theweaknesses noted and to develop compensatory strategies.” On June 2, 2000, after Ms Zuckerman shared Ms. Rubin’s evaluation with the district, itwas determined that a case study evaluation would be conducted in the fall of 2000. During the fall of Sam’s fourth grade year, a case study evaluation was conducted. OnOctober 3, 2000, Sam was found eligible under OHI (Other Health Impairment) for specialeducation services. He was placed in the general education program with special educationresource services ninety (90) minutes per week and social work services/counseling thirty (30)minutes per week. Sam continued to receive special education services throughout elementaryand middle school. Sam did fairly well during his freshman year of high school with continued specialeducation services, but deteriorated during his sophomore year. His grades began to decline, hebegan exhibiting angry outbursts, and he befriended gang members. In April of 2007, Sam wasarrested for unlawful possession of ammunition and a firearm. He was released from juveniledetention on April 30, 2007, and was placed at North Shore Academy by District 113 for a forty-five (45) day diagnostic placement. According to his psychiatrist, Dr. Petronilo Costa, it wasvery important that Sam be placed in a school capable of monitoring his medications. Dr. Costafurther stated in his report thatSam’s needs are too complex to be severable into discrete educational and noneducationalcomponents. In June 2007, private Social Worker, Matthew Selekman, completed a treatmentsummary. Mr. Selekman reported that Sam presents with serious impulse control, attachment 168
  • 169. issues, depression, impaired judgment and poor social skills. Mr. Selekman reported that Sam’sdiagnoses include Intermittent Explosive Disorder, Depressive Disorder NOS and OppositionalDefiant Disorder. Mr. Selekman reported Sam is at great risk of harm to himself and others andthat he has demonstrated increased out of control behavior. In addition, Sam functions like amuch younger child by employing primitive defense mechanisms such as denial, splitting, andprojection. Mr. Selekman made a strong recommendation for long-term residential treatment inorder for Sam to learn mood management and social skills, resolve identity issues, toleratefrustration, develop impulse control, manage anger, establish meaningful and healthyrelationships, and take responsibility for his actions. On June 6, 2007, Sam’s IEP team met to consider the diagnostic information collected atand to determine placement. Dr. Costa’s report was presented to the team during this meeting.The team determined that Sam met the criteria for Emotional Disturbance (“ED”) eligibility.The team reported that Sam has a very difficult time managing his feelings and has becomeviolent and out of control when provoked by minor occurrences. Sam reportedly hasacknowledged a desire to work on his anger problems. Sam reported that he originally became agang member in order to “feel respected and accepted.” However, he now states that he would“do anything to get out of the gang life” and wants to do well in school and stay out of trouble.The team reported that Sam presents with at risk behaviors, poor judgment, social problems, andgang related behaviors, which warrant the implementation of a functional behavioral analysis(“FBA”) and a behavior intervention plan (“BIP”). The team felt that Sam exhibited thesebehaviors because he is unable to problem-solve effectively and engage in prosocial behavior.Sam also acts impulsively, feels rejected, and is paranoid.Dr. Louis Kraus performed a psychiatric diagnostic evaluation for the District and reported, atthe meeting, that Sam fits the criteria for ADHD and depression diagnoses. In addition, Dr.Kraus noted that Sam presents with minor depressive symptomatology, poor coping strategies,low self-esteem and a variety of identity issues in association with his ongoing ADHDsymptomatology. Dr. Kraus reported that Sam presents with a lack of insight regarding hisbehavior and potential repercussions, which is of extreme concern and causes him to be in veryat-risk situations. During a classroom observation, Dr. Kraus reported that Sam had difficultyfocusing on assignments without one-to-one direct interventions. Dr. Kraus recommended “closemonitoring” of Sam’s progress at North Shore Academy with serious consideration forresidential placement in the event difficulties presented.School psychologist John Dominguez performed the psychological assessment. Mr. Dominguezreported that Sam presents with limited social skills, impulsivity, and low self-confidence, whichputs him at risk for continued conduct problems, poor judgment, and social problem-solvingproblems. In addition, Mr. Dominguez reported Sam is more likely than his peers to demonstrateineffective or maladaptive interpersonal behavior. Despite Sam’s statement that he has tried toput his negative affiliations behind him, Mr. Dominguez reported that Sam’s tone, affect, andnonverbal behavioral gestures indicate a great deal of concern regarding retaliation for leavingthe gang. Mr. Dominguez recommended treatment and skills training in the areas of social skills,behavioral issues and impulsivity. School social worker Susan Smith reported that Sam presents with a significant level ofimpairment regarding depression and interpersonal difficulties. Ms. Smith reported that Sam is at 169
  • 170. risk for criminal behavior and gang activity if he does not have strict interventions and support.Ms. Smith further reported that Sam benefits from a therapeutic environment. Due to a time constraint, the team was not able to make placement recommendations anddecided to reconvene on June 20, 2007. At the continued IEP meeting on June 20, 2007, Dr. Costa pointed out that Sam isrunning out of time, and that failure to place Sam now in a safe and appropriate residentialsetting will place Sam at substantial risk. The school district’s psychiatric consultant, Dr. LouisKraus is also in conceptual agreement with the residential placement alternative. The only realdisagreement relates to the timing. At this point, Sam and his mother cannot wait: according toDr. Costa and Mr. Selekman, Sam needs residential placement now, or he will be at risk.V. Proposed Resolution of the Program to the Extent Known and Available at the Present Time: Placement in a nonpublic residential facility that will meet Sam’s unique and complexneeds. Also, retroactive reimbursement for the Red Cliff Ascent Wilderness program, describedin a formal ten-day notice submitted to the Superintendent on May 25, 2007 and again on June 6,2007 to district counsel (See, attached). The family will waive a formal Resolution Session, as the IEP team has just convenedand was not able to resolve the matter. However, the family agrees to participate in state-sponsored mediation. Please direct all correspondence to my attention. Also, please be on notice that should the district fail to appropriately place Sam, Ms.Zuckerman will have no choice but to implement her own placement for her son in anappropriate residential setting that will meet his needs. Please also treat this due process hearingrequest as your formal and continuing ten-day notice. We therefore request retroactivereimbursement for any and all costs incurred for an appropriate residential location subsequent toSam’s short-term stay at the Red Cliff Ascent Wilderness program, during such time as thisproceeding is pending. Sincerely, Brooke R. WhittedBRW:lmocc: Ms. Laura Zuckerman Nancy Krent, Esq. (by facsimile only) 170
  • 171. FEDERAL REGSILLINOIS STATUTE 171
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  • 176. NON-CUSTODIAL PARENTS: LEGAL ISSUES Who Has The Authority To Do What? Brooke R. Whitted WHITTED, CLEARY & TAKIFF, LLC 3000 W. Dundee Road, Suite 303 Northbrook, IL 60062 847/564-8662; 847/564-8419 (Fax) Email: Whittedlaw@aol.com Website: www.wct-law.com 176
  • 177. NON-CUSTODIAL PARENTS By Brooke R. WhittedI. Definitions What is custody? What is guardianship? What legal relationship does astepparent have to a child who lives in the home? What is joint custody? All of thesequestions are asked on a regular basis by education professionals. The context varies:sometimes a residency question is involved. At other times, educators are attempting tounsnarl a complicated thicket of relationships just to figure out who has the authority tosign a form to release information or initiate services. The purpose of this memorandumis to inform the reader with respect to the latter quandary, using relevant statutorydefinitions as well as providing a tool with which to analyze whether an individualasserting that he or she has authority does, in fact, have that authority. The Illinois Probate Act defines "Guardian" as a legal representative of aminor.58 A "representative" is defined in the same act as a standby guardian,temporary guardian, and a guardian.59 These terms are defined by the Probate Act,60as well as a comparatively new addition known as "short-term guardian,"61 which is: §1-2.24. …. a guardian of the person of a minor as appointed by a parent of a minor under Section 11-5.4, or a guardian of the person of a disabled person as appointed by the guardian of the disabled person under Section 11a-3.2. The Juvenile Court Act contains perhaps the best and most comprehensivedefinitions: (7) "Emancipated minor" means any minor 16 years of age or over who has been completely or partially emancipated under the "Emancipation of Mature Minors Act", ... (8) "Guardianship of the person" of a minor means duty and authority to act in the best interests of the minor, subject to residual parental rights and responsibilities, to make important decisions in matters having a permanent effect on the life and development of the minor and to be concerned with his or her general welfare. It includes but is not necessarily limited to: (a) the authority to consent to marriage, to enlistment in the armed forces of the United States, or to major medical, psychiatric, and surgical treatment; to represent the minor in legal actions; and to make other decisions of substantial legal significance concerning the minor;58 755 ILCS 5/1-2.08.59 755 ILCS 5/1-2.15.60 755 ILCS 5/1-2-23, et al.61 755 ILCS 5/1-2.24. 177
  • 178. (b) the authority and duty of reasonable visitation, except to the extent that these have been limited in the best interests of the minor by court order; (c) the rights and responsibilities of legal custody except where legal custody has been vested in another person or agency; and (d) the power to consent to the adoption of the minor, but only if expressly conferred on the guardian in accordance with Section 2-29, 3-30, or 4-27. (9) "Legal custody" means the relationship created by an order of court in the best interests of the minor which imposes on the custodian the responsibility of physical possession of a minor and the duty to protect, train and discipline him and to provide him with food, shelter, education and ordinary medical care, except as these are limited by residual parental rights and responsibilities and the rights and responsibilities of the guardian of the person, if any. (10) "Minor" means a person under the age of 21 years subject to this Act. (11) "Parent" means the father or mother of a child and includes any adoptive parent. ... (13) "Residual parental rights and responsibilities" means those rights and responsibilities remaining with the parent after the transfer of legal custody or guardianship of the person, including, but not necessarily limited to, the right to reasonable visitation (which may be limited by the court in the best interests of the minor as provided in subsection (8)(b) of this Section), the right to consent to adoption, the right to determine the minors religious affiliation, and the responsibility for his support.62 (All emphasis is added) It also tends to be confusing to most people when conflicting statutory definitionsare encountered. For example, the term "minor" is defined above in the Juvenile CourtAct as anyone under 21, yet the Child Care Act defines "child" as follows: § 2.01. Child. "Child" means any person under 18 years of age. For purposes of admission to and residence in child care institutions, group homes, and maternity centers, the term also means any person under 21 years of age who is referred by a parent or guardian, including an agency having legal responsibility for the person pursuant to the Juvenile Court Act or the Juvenile Court Act of 1987. Termination of care for such persons under 21 years of age shall occur no later than 90 days following completion of a public school secondary education program or the individuals eligibility for such a program.6362 705 ILCS 405/1-363 225 ILCS 10/2.01. 178
  • 179. To add to the confusion, the Parental Responsibility Act defines "minor" as aperson between the ages of 11 and 19!64 The same act also defines a "LegalGuardian" as follows: (1) "Legal guardian" means a person appointed guardian, or given custody, of a minor by a circuit court of the State, but does not include a person appointed guardian, or given custody, of a minor under the "Juvenile Court Act or the Juvenile Court Act of 1987".65 (Emphasis added) The School Code, however, defines "parent" as "a parent or legal guardian of anenrolled student of an attendance center [for cities over 500,000]."66 However, forhomeless children the School Code defines "parent" as "the parent or guardian havinglegal or physical custody of a child." (emphasis added)67 It is well established that in most circumstances for school purposes, there mustbe a court order or an actual, legal, or documented connection between the "parent"and the "child." A stepparent, for example, who shows up at a staffing and asserts thathe or she has authority over the child must be questioned. Unless there has been anadoption, court-ordered guardianship, or other document that gives the stepparent legalauthority, there is no authority. Likewise, in the case of a non-custodial parent whoappears at a staffing or in the administrators office and asserts authority over the child.At the very least, a non-custodial parent should sign a document certifying that he orshe has the authority so claimed.II. Introduction to the Problem The issue of what rights a so-called "non-custodial" parent has is cropping upwith increasing frequency. For example, in the case of Navin vs. Park Ridge SchoolDistrict #64,68 the non-custodial parent, who under the divorce decree only had a rightto information and not concerning any educational decision making, requested a dueprocess hearing demanding more services. The hearing officer dismissed the requeston the basis that the father, as the requesting party, was the non-custodial parent andhad no right to request a due process hearing. The District (trial) Court agreed andaffirmed the decision of the hearing officer, but the Federal Appellate Court disagreedand remanded the case to the District Court for further proceedings. In this somewhataberrant opinion, U.S. District Judge Conlon outlines the facts of the case, including theAppellate Courts order (to her) to readjudicate the case. She then concluded that shecouldnt do anything until a hearing officer had actually made a determination of thenon-custodial parents claims of certain procedural violations. Therefore, the DistrictCourt judge who had the case remanded to her again remanded the case down to thehearing officer. The hearing officer was compelled to actually hold a hearing to examine64 740 ILCS 115/2(2)65 740 ILCS 115/2(1)66 105 ILCS 5/34-1.167 105 ILCS 45/1-568 36 IDELR 235 179
  • 180. the non-custodial fathers complaints and from which, if he is aggrieved, he would thenhave a right to again appeal to the District Court, and ultimately to the Appellate Court. Just from precedent set by this one case, then, Illinois hearing officers mustconsider procedural claims made by non-custodial parents even though the decreedoes not give them any right to determine educational programming. Our opinion is thatthis decision creates meaningless work in a very narrow area of non-custodial parentrights, however, now that the opinion exists, it must be followed.III. Questions to Ask in the Majority of Cases A. Source of Authority If you are presented with potential custodial issues, you first need to inquire as to the source of the authority claimed. Usually in domestic relations matters, there is a "decree" which includes a settlement agreement or court order that outlines the duties and responsibilities of the parties. This is always on file in a court clerks office somewhere. If you are ever in any significant doubt with regard to the validity of the authority claimed by a parent, you always have the option of referring to the court file, which is open to public examination. The general rule of thumb here should be, "when in doubt, check the file." However, it is recognized that educators (a) dont have the responsibility to check every court file to verify the truthfulness of parents and yet (b) should have some documented basis for taking what the parent says at face value and moving forward. In this regard, we suggest the attached document entitled "Certification of Authority." Once this document is signed by a so-called non-custodial parent, as indicated in the document, a copy should be forwarded to the custodial parent. A cover letter should accompany the form, indicating to the custodial parent that if the school authorities dont hear from him or her within a week, the form will be accepted as truthful. B. Type of Right Asserted Non-custodial parent rights are divided into two areas: consent for services (in domestic relations, these are usually medical and educational) and consent for release of information. Generally speaking, pursuant to Illinois decisional case law in the mental health area, the non-custodial parent of a child under 12 has the right to the same flow of information as the custodial parent if he or she requests such in writing.69 However, for school records, which are governed by the Family Educational Rights and Privacy Act (FERPA)70, there is no such restriction on the childs age. Therefore, unless the decree states otherwise, the non-custodial parent does not have the authority to consent to the initiation or administration of medical or educational services. This is, of course,69 Dymek v. Nyquist, 128 Ill.App.3d 859, 469 N.E.2d 65970 FERPA, 20 U.S.C. § 1232g; 34 CFR Par 99 180
  • 181. another case for checking the decree which, in addition, can usually be provided by the parent who seeks information or consent authority. 1. Confidential Information: a. School Information: In connection with educational information as defined in the Illinois School Student Records Act, all you need is the consent of one parent, and generally speaking that should be the parent who has custodial authority over the child. For school information only, you do not need the signature of the child at any time. b. Mental Health Information: This is governed by the Mental Health and Developmental Disabilities Confidentiality Act71. Different rules apply to the release of mental health information and these are very specific. The attached form contains a second section, in the same document, for the release of mental health information only. It should be noted that where there is a need to block disclosure of information to any parent, whether custodial or non-custodial, and the information is "mental health" in nature, the refusal of any child age 12 to 18 to sign the form is enough to block the information in the absence of a court order for disclosure. For children below the age of 12, however, both non-custodial and custodial parents have the same right to the flow of confidential mental health information. 2. Services: The issue of consent for services is more complicated. The decisional case lawgenerally requires that the custodial parent authorize services. Cases have shown thatwhen the non-custodial parent attempts to initiate services, the courts have invalidatedthe authorization. Thus, educators should take some steps to verify the authority of thecustodial parent who seeks to authorize initiation, change, or cessation of services.Quite possibly, the attached Certification of Authority would be sufficient if there is anydoubt. However, in cases with serious potential consequences, there is no equal toactually checking the court file.C. Incarcerated Parents When the parent or guardian has been incarcerated, other issues may need tobe considered. Depending on the offense, it is possible that the rights of the parent mayhave been terminated. If such is the case, then there might be a private guardian71 While mental health files also are now subject to the Health Information Portability and Accountability Act(“HIPAA”), any mental health records related to students which are maintained in the student’s permanent ortemporary school records fall under the Family Educational Rights and Privacy Act (“FERPA”) regulations, and aregenerally exempted from HIPAA regulations. 181
  • 182. appointed or, alternatively, the child may be a ward of the state. If the child is a ward ofthe state, the state guardian (DCFS usually, in Illinois) controls decision-making. Ifthere is a private guardian, you can usually ask for the "letters of office" which shouldcontain all of the guardians duties, authority, and responsibilities. It is also possible that an incarcerated parent may have retained parental rights,in which case it would be necessary to correspond with the parent, even thoughincarcerated, for the purpose of obtaining consents. Likewise, an incarcerated parentcontinues have the legal authority to consent to information disclosure unless parentalrights have been fully terminated. 182
  • 183. MEMO To: Friends of Whitted, Cleary & Takiff LLC From: Brooke R. Whitted Date: 06/10/02 Re: Non-Custodial Parent Rights I enclose the opinion in the case of Navin vs. Park Ridge School District #64. In thiscase, the non-custodial parent, who under the decree only has a right to information and not toany educational decision making, requested a due process hearing demanding more services.The hearing officer dismissed the request on the basis that the father, as the requesting party, wasthe non-custodial parent and had no right to request a due process hearing. The District Courtagreed and affirmed the decision of the hearing officer, but the Appellate Court disagreed andremanded the case to the District Court for further proceedings in accord with the AppellateCourts conclusions. In this somewhat aberrant opinion, U.S. District Judge Conlon outlines the facts of thecase, including the Appellate Courts order (to her) to readjudicate the case. The bottom line isthat the Court says it cant do anything until a hearing officer has actually made a determinationof the non-custodial parents claims of certain procedural violations. Therefore, the DistrictCourt judge who had the case remanded to her again remanded the case to the hearing officer.The hearing officer is now compelled to hold a hearing to examine the fathers complaints andfrom which, if he is aggrieved, he would then have a right to again appeal to the District Court. It should also be noted that the court was clearly annoyed with the father for representinghimself in the proceedings and outlined how he was not able to conform his legal drafting withthe courts rules. The upshot of all this is apparently that Illinois hearing officers must consider proceduralclaims made by non-custodial parents even though the decree does not give them any right todetermine educational programming. Our opinion is that this decision creates meaningless workin a very narrow area of non-custodial parent rights. 183
  • 184. If you are faced with a due process request from a non-custodial parent, from here on in,this request needs to be fully processed and will probably need to be fully adjudicated by thehearing officer absent a settlement. In the past, most hearing officers simply dismissed non-custodial parents due process requests, as this one did, to her peril. 184
  • 185. Whitted, Cleary & Takiff, LLC 3000 W. Dundee Road, Suite 303 Northbrook, IL 60062 MEMORANDUM (847) 564-8662 (847) 564-8419 Fax whittedlaw@aol.comTo: ClientsFrom: Brooke R. Whitted; Lara A. ClearyRe: Short Term Guardianships - Outline of Provisions================================================================= SHORT TERM GUARDIANSHIPS OF MINORS1. Overview - 755 ILCS 5/11-5.4, 5/11-13.2 & 5/11-13.3 1. A short term (“ST”) guardianship is a private, short term appointment of a guardian of a minor for up to 60 days. The appointment is done without any court involvement, but can be done while the individual is initiating the formal legal procedure for guardianship. 2. Any parent may appoint a ST guardian for his/her child. Health or ability to care for the child is not a consideration. 3. The ST guardian is guardian of the minor’s person only (care, custody, and control). However the ST guardian may apply for and receive benefits for the minor. The ST guardian may also enroll the child in school. 4. The minor must live with the ST guardian while the ST guardianship is effective.2. Restrictions 1. 755 ILCS 5/11-5.4 (b) states: A parent may not appoint a short-term guardian if the minor has another living parent, adoptive parent or adjudicated parent, whose parental rights have not been terminated, whose whereabouts are known and who is willing and able to make and carry out day to-day child care decisions concerning the minor, unless the nonappointing parent consents to the appointment by signing the written instrument of the appointment. 2. Also, if a guardian of the person has already been appointed by the Court a parent cannot appoint a ST guardian. However the guardian can appoint a ST guardian. 185
  • 186. 3. Requirements 1. Writing 1. A form for appointment of a ST guardian may be used. 2. Any other form or writing meeting the requirements set out in the Act may be used: 1. Writing must be dated; 2. The writing must identify the appointing parent or guardian, the minor, and the person appointed to be ST guardian; 3. The writing must be signed, or at the direction of, the parent or guardian making the appointment; 4. The writing must be signed in the presence of at least two witnesses. The witnesses must be at least 18 years old and must not be the individual receiving the appointment. The witnesses signatures need to be contemporaneous with that of the person making the appointment; 5. The writing must be signed by the individual receiving the appointment indicating acceptance. However this signature does not need to be contemporaneous with that of the person making the appointment; 6. If being made by one parent the writing needs to also be signed by the minors other parent, if applicable. 3. Timeline and activation 1. The appointment will last for 60 days from the date the appointment is effective, unless a shorter term is specified in the writing. 2. The ST guardian’s duties become active immediately upon execution of the writing unless the writing provides otherwise or if the parent obtains an official guardianship change for the child by a court. 4. Revocation 1. The ST guardianship may be amended or revoked by the appointing parent at any time and such intention may be communicated to the ST guardian in any manner. 186
  • 187. FORMS - P.O.A. to Appear for Parent - Health Care P.O.A. Rider - Unilateral Placement - Due Process- Client Authority for Due Process - Release of Information - Protocols Release - Homework for New Clients Brooke R. Whitted WHITTED, CLEARY & TAKIFF, LLC 3000 W. Dundee Road, Suite 303 Northbrook, IL 60062 847/564-8662; 847/564-8419 (Fax) Email: Whittedlaw@aol.com Website: www.wct-law.com 187
  • 188. POWER OF ATTORNEY POWER OF ATTORNEY made this ____th day of _(insert month)_, 2007.1. I, _(insert name of child)_, hereby appoint (insert names of parents), who reside at(insert address), Illinois, as my attorneys-in-fact (my “agents”) to act for me and in my name (inany way I could act in person) to make any and all decisions for me concerning my education. Itis my intention to include full authority by my agents to obtain access to all oral and writtenconfidential mental health, school, and any other information concerning myself. I further intendto authorize my agents to grant consent for disclosure and exchange of such information, and Irealize that I may revoke this grant of authority in writing at any time. My agents shall also havefull authority to request any and all administrative remedies within any mental health, education,or rehabilitation system operational in Illinois, and in their sole discretion, to file for any judicialremedy where appropriate in any court of competent jurisdiction.2. This power of attorney shall become effective on _(insert date)_, 2007, and shall applywhenever I am not available to make a decision or sign required forms to access services orinformation.3. I am fully informed of the contents of this form and understand the full import of thisgrant of powers to my agents. Signed: _________________________________ (Insert name of child) The principal has had an opportunity to read the above form and has signed the form oracknowledged his or her signature or mark on the form in my presence.Date: _______________ Accepted: _________________________________ (Insert Parent/Guardian name)Date: _______________ Accepted: _________________________________ (Insert Parent/Guardian name)Date: _______________ Signed: ___________________________________ Witness Printed name: ______________________________ 188
  • 189. RIDER FOR: (NAME)______________________________________ STATUTORY SHORT FORM POWER OF ATTORNEY FOR HEALTH CARE The undersigned intends for this document to apply to the following specificareas, in addition to the general powers intended: A. Administration of psychotropic medication, voluntary or involuntary; B. Voluntary or involuntary admission to a mental health facility; C. In the case of minor females, grants of authority to apply birth control measures including Depo-Provera, the “patch,” or any other non-surgical form of birth control which would, in the sole discretion of the attorney in fact, serve the best interest and welfare of the minor female; D. Consent for a continuing residential placement; E. Consent for any and all educational services, including evaluations. This provision is intended to grant authority to the attorney in fact appointed by this document to consent to all educational services and to have access to any and all oral or written educational information pursuant to any state statute controlling education and special education records. F. Full and complete access to all oral and written mental health information from any and all of my mental health professional and institutional providers. G. Access under the Health Insurance Portability and Accountability Act (HIPAA) to any and all medical records, including mental health records, by my attorney in fact upon his or her written request. For this purpose, I understand that I have a right to directly inspect and copy any such records myself and by signing below it is my attention to fully assign this right to my attorney in fact. H. All authority granted by this document is intended to be full and complete and without restriction. In addition, it is my intention by signing below that any scanned copies, facsimiles or photocopies of this document shall carry the same legal force and effect as though they were in the original. SIGNATURE:___________________________DATE:________200____ WITNESS: _____________________________DATE________200____ 189
  • 190. UNILATERAL PLACEMENT FORM LETTER (To be Sent to School Superintendent at Least 10 Business Days in Advance of Placement) Date: __________________ Re: (Name and Age of Student): Written Notice of Intent to Place Disabled Child in Nonpublic Facility and Seek Reimbursement from School District Pursuant to Public Law 105-17 at 20 U.S.C. 1412(a)(10)(C)(iii)(I)(bb)Dear Superintendent: Please treat this correspondence as your formal written notification pursuant to the abovecaptioned section of Public Law 105-17. We intend to place our above named child at the__________________ School [address, phone] on ___________, 19____. We will seekreimbursement of costs for that nonpublic facility from your district. As you are aware, Section 1412(a)(10)(C) states as follows: (C) PAYMENT FOR EDUCATION OF CHILDREN ENROLLED IN PRIVATE SCHOOL WITHOUT CONSENT OF OR REFERRAL BY THE PUBLIC AGENCY. (...) (iii) LIMITATION ON REIMBURSEMENT. The cost of reimbursement described in clause (ii) may be reduced or denied -- (I) if -- (aa) At the most recent IEP meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP team that they were rejecting the placement proposed by the public agency to provide a free appropriate public education to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or (bb) Ten business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in division (aa); ... Please treat this correspondence as your formal 1412(a)(10) notice as required by thatsection. Sincerely, __________________________________ Parent(s) 190
  • 191. DUE PROCESS REQUEST FORM (to be hand delivered or sent by certified mail) Date: ______________________________________________, Superintendent______________________________________________ Re: (Name of Student, Age, Date of Birth)Dear Superintendent ______________: Please treat this correspondence as a formal request for a due process hearing pursuant to 105ILCS 5/14-8.02(b), 23 Illinois Administrative Code §226.605(b), and 20 U.S.C. 1415(b)(7).I. Name of Child: The name, age, and date of birth of the child are stated above.II. Address of Child’s Residence: Address: ____________________________________________________ City/State/Zip: ____________________________________________________ Phones: ____________________________________________________III. Name of School the Child is Attending: _____________________________________________________________________ _____________________________________________________________________IV. Description of the Nature of the Problem, Including Facts Relating to the Problem: _____________________________________________________________________ _____________________________________________________________________V. Proposed Resolution of the Problem to the Extent Known and Available at the Present Time: _____________________________________________________________________ _____________________________________________________________________ For the above listed reasons, it is our position that the district has failed to provide our child witha free appropriate public education as required by state and federal law. We will participate in statesponsored mediation efforts. Sincerely, _________________________________________ Parent(s) 191
  • 192. Authorization to File Special Education Due Process Request I have been advised by my lawyers, Whitted Cleary & Takiff LLC, that 20 USC 1400§615(i)(3)(D)(ii) provides that a court may award attorney fees to a district against attorneysand/or their counsel when it is found that a complaint is frivolous, unreasonable, withoutfoundation, or against parties who continue to litigate after the litigation clearly becamefrivolous, unreasonable, or without foundation. The same provision also states that a schooldistrict can be awarded attorney fees from a parent or parent’s attorney if the complaint wasbrought for “any improper purpose, such as to harass, to cause unnecessary delay, or toneedlessly increase the cost of litigation.” We have also been informed that attorneys under Illinois Rule 137 must conductindependent due diligence or risk disciplinary sanctions. In this regard, we have fully cooperatedwith our attorneys in the performance of their due diligence; we have advised them of all factsrelevant to the filing of the due process request that is attached hereto; and further, we have notwithheld anything from them that might be relevant to the assertions contained in the attachedrequest. Likewise, we have not inaccurately portrayed situations relevant to the request and wehave been truthful in all respects with our attorneys in providing the information they needed forthe purpose of filing the attached request. We sign this authority to submit a due process request having been fully apprised of therequirements in the law, having been fully forthcoming with our attorneys, and inlight of the above described facts, herein by our signatures below do fully authorize our attorneysto file the attached request for hearing, on behalf of ourselves and our child. _____________________________ ______________________________ PARENT PARENT The above instruction was accepted in good faith from a bona fide client as an instructionto move ahead with filing the attached hearing request. _____________________________ __________________ ATTORNEY DATE 192
  • 193. CHILD AUTHORIZATION FOR RELEASE OF CONFIDENTIAL AND PERSONALLY IDENTIFIABLE INFORMATION We, the undersigned, do hereby authorize the release of any and all oral and written information concerning our child___________ and our family from any public or private agency, including but not limited to those listed on reverse, to the LawOffices of Whitted Cleary & Takiff LLC, 3000 Dundee Road, Suite 303, Northbrook, Illinois 60062. The information requestedbelow is being released for the purpose of assisting our attorneys in representing the best interests of ourselves and/or our child. Weunderstand that we have the right to limit this consent and choose not to do so at this time. This release authorizes disclosure of any and all oral or written social history, medical, academic, psychological, psychiatric,or educational planning and testing information, including psychological protocols where applicable. In the case of a mental healthfacility, the complete disclosure of medical chart and running record or patient log information is authorized. Medical chartinformation shall include but not be limited to intake and discharge summaries, nursing entries, medical reports, consultations,operating room logs, medication logs, or any other information relating to the above named minor and his/her family. We furtherunderstand our right to inspect, copy, challenge, and/or amend the subject records. In the case of a mental health facility, we understand that should we refuse to sign this release, the requested information willnot be disclosed. We understand that we have a right to inspect and copy all information, and that we have the right to revoke thisauthorization in writing. Being fully apprised of these rights, it is our intent that this release remain in full force and effect untilrevoked in writing by the undersigned parties, or until the expiration date indicated below, whichever comes first, in order that ourattorneys can be fully informed on a continual basis without the necessity for repeated requests. We further intend that carbon, FAX, photocopies, e-mail or any other form of electronic transmittal of this release shall havethe same force and effect as the original, and shall apply to all records requested. REDISCLOSURE: Notice is hereby given to the patient or legal representative signing the Authorization that party releasing records cannot guaranteethat the recipient receiving the requested information will not redisclose any or all of it to others. Notice is hereby given to the recipient that law prohibits theredisclosure of any health information regarding drug/alcohol abuse, HIV, and mental health treatment.PERSONS, AGENCIES OR ORGANIZATIONS TO WHICH THIS RELEASE IS DIRECTED:ILLINOIS STATE BOARD OF EDUCATION, 100 NORTH FIRST STREET, SPRINGFIELD, ILLINOIS 62777-0001;SCHOOL DISTRICT NO. ________, ________________________, ILLINOIS;SIGNED: XX ____________________________________, AGE: _____________ DOB: ____________________ SERVICE RECIPIENT IF 12 OR OLDER (MENTAL HEALTH ONLY)SIGNED AT ______________________________, ILLINOIS ON _______________________________, 20_____________.WITNESS:____________________________________ TITLE:_______________________________ AGE: ____________X __________________________________________ X____________________________________________ PARENT OR GUARDIAN PARENT OR GUARDIANEXPIRATION DATE: ______________________20_______ 193
  • 194. PROTOCOLS PSYCHOLOGICAL PROTOCOLS RELEASETHE ILLINOIS MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES CONFIDENTIALITY ACT STATES, IN PART: Psychological test material whose disclosure would compromise the objectivity or fairness of the testing process may not be disclosed to anyone including the subject of the test ... However, any recipient who has been the subject of the psychological test shall have the right to have all records relating to that test disclosed to any psychologist designated by the recipient.TO: ________________________________________ ________________________________________ ________________________________________ PHONE: __________________________________RE: ___________________________________________, AGE _______ DOB: _________________ PLEASE FORWARD COPIES OF ALL PROTOCOLS AND SCORING SHEETS TO THE FOLLOWING LICENSED CLINICALPSYCHOLOGIST: NAME: _________________________________________ ADDRESS: _________________________________________ _________________________________________ APPROXIMATE DATE TESTING WAS CONDUCTED: ________________________________THIS CONSENT EXPIRES ON: _______________. I UNDERSTAND THAT I HAVE THE RIGHT TO REVOKE THIS CONSENT AT ANYTIME; AND THAT THE MATERIAL WILL NOT BE DISCLOSED IF I REFUSE TO SIGN. I INTEND THAT A PHOTOCOPY OR FACSIMILEOF THIS DOCUMENT SHALL CARRY THE SAME FORCE AND EFFECT AS THE ORIGINAL.DATE: ____________________ X _____________________________________________ SIGNATUREWHITTED CLEARY & TAKIFF LLC3000 DUNDEE ROAD X _________________________________________SUITE 303 SIGNATURE OF MINOR 12 OR OLDERNORTHBROOK, ILLINOIS 60062PHONE: (847) 564-8662 X _________________________________________FACSIMILE: (847) 564-8419 ADULT WITNESS 194
  • 195. HOMEWORK HOMEWORK FOR NEW CLIENTS1. LIST OF ALL EXPERTS Please supply a typed, alphabetical list of all clinicians, including physicians, social workers, psychologists, and other therapists or human services professionals who have had any contact whatsoever with your child. Please supply full phone numbers, area codes, first and last names, and accurate zip codes. The more complete the list, the less time will be charged against your retainer to look up the information!2. RESIDENTIAL PLACEMENT - MENTAL HEALTH Please contact Dr. Patricia Roy with the Illinois Department of Human Services/Office of Mental Health in Chicago [phone 773/794-4856] and request an application for an Individual Care Grant. This department is resistant to dealing with attorneys at the beginning of the process - so do not mention our involvement. Just request the application - you will receive a "financial questionnaire." You should fill this form out as to assets held by your child, not by you. Once the form is complete, please send it to DMH in a plain envelope and keep a copy. Do not reveal any information to DMH personnel concerning any other activities, such as negotiations with the school district.3. RESIDENTIAL PLACEMENT/SCHOOL DISTRICT PLACEMENT Please request, in writing, a copy of your childs records, and make sure you obtain these as soon as possible. Also, if you child is not enrolled, please see that this is accomplished immediately. Please talk to us about any further procedures.4. CHRONOLOGY Please try to jot down all relevant contacts with schools and professionals, if you can remember them. It helps you to organize your thoughts and it helps us in the formulation of the chronology. The following format is most helpful: DATE WHO WAS PRESENT WHAT WAS SAID WHAT WAS DONE OR PROMISED5. Please make copies of ALL RELATED DOCUMENTS you have in your possession, and send them to us as soon as possible.WHITTED, CLEARY + TAKIFF, LLC3000 DUNDEE ROADSUITE 303NORTHBROOK, ILLINOIS 60062PHONE: (847) 564-8662FACSIMILE: (847) 564-8419 195
  • 196. OBTAINING APPROPRIATE SPECIAL EDUCATIONSERVICES FOR STUDENTS WITH EMOTIONAL DISTURBANCES: RIGHTS AND REMEDIES 196
  • 197. The distinction between "socially maladjusted" students and students classified with an“Emotional Disturbance" (“ED”) for the purpose of special education eligibility is hard todetermine at first glance. Under current decisional case law, a child determined to beemotionally disturbed is entitled to special education services, while children deemed simply“socially maladjusted” receive no special services. The IDEA definition of an emotionaldisturbance at 20 U.S.C. 1400 et.seq., as well as the definition in the Illinois AdministrativeCode has specific characteristics that must be manifest for a student to be considered eligible forspecial education services. Yet socially maladjusted children often exhibit similar behaviors.The purpose of this handout is to briefly review special eligibility for students with an emotionaldisturbance and to discuss some of the rights and remedies available to parents and guardians iftheir emotionally disabled child is denied special eligibility.I. WHO IS AN "ELIGIBLE" IDEA STUDENT? In order to be eligible for special education services under the category of “EmotionalDisturbance” (“ED”) in Illinois, a child must be determined to have a condition exhibiting one ormore of the following characteristics over a long period of time (chronicity) and to a markeddegree (severity) that adversely affects a childs educational performance. The student mustdemonstrate: An inability to learn which cannot be explained by intellectual, sensory, or health factors; -or- An inability to build or maintain satisfactory interpersonal relationships with peers and teachers; -or- Inappropriate types of behavior or feelings under normal circumstances; -or- A general pervasive mood of anxiety, unhappiness, or depression; -or- A tendency to develop physical symptoms or fears associated with personal or school problems. Therefore, to be determined eligible for special education under the category ofEmotional Disturbance, the student must manifest at least one of the characteristics listed abovefor an extended period of time (chronicity) and to a marked degree (severity) and it must affectthe student’s educational performance. The Illinois regulations specifically define educationalperformance as: Educational Performance: A student’s academic achievement and ability to establish and maintain social relationships and to experience a sound emotional development in the school environment. 197
  • 198. II. HOW IS "SOCIAL MALADJUSTMENT" DEFINED? "Socially maladjusted" has had many different definitions throughout the history of IDEAcase law. In one of the most frequently cited case regarding this issue, Springer by Springer v.Fairfax County School Board, 134 F.3d 659 (4th Cir.1998), the court did not specifically define“social maladjustment” but instead indicated that the child in this case was not ED because hisdrop in educational performance was “directly attributable” to his behaviors, which includedtruancy, drug and alcohol use, and criminal activities. Moreover, the parents were unable toproduce any satisfactory evidence that the child suffered any sort of “pervasive” “depression” or“sadness.” Therefore, the court felt that the child’s “delinquent behavior appear[ed] to be theprimary cause of his troubles.”III. WHO IS ELIGIBLE? Ultimately, determining which children are actually "emotionally disturbed" is highlyfact specific, and is not the same in every case. Every case ever brought to a due process hearingwill have a child exhibiting some degree of inappropriate behavior. However, the frequency,intensity, duration, and context must be considered in determining the presence of an emotionaldisturbance. The utilization of mental health experts is critical. Many teachers would say that10% to 20% of their students have "emotional problems" while the actual number of those withsevere and or chronic problems is closer to 2% to 3% of the school age population. Currentlyless than one-half that number are formally identified and receive special education services.Robert H. Zabel, ERIC Digest #454 Emotional Disturbances; ERIC Clearinghouse onHandicapped and Gifted Children, Reston, VA (1988). A. Examples of a Finding of Ineligibility In Springer by Springer v. Fairfax County School Board, 134 F.3d 659 (4th Cir.1998), the parents of an eleventh grader requested reimbursement for the unilateral placement of their child at a private facility. The hearing officer found their sons truancy, alcohol and drug problems were the result of a “social maladjustment,” not to an emotional disturbance. Three separate psychologists examined their son and all three stated he was not emotionally disturbed. His parents testified that he got along well with everyone, and it was ultimately determined by the hearing officer that his failing grades were related to his truancy and drug use, not his inability to learn. The court held that a "bad conduct" definition of an emotional disturbance might include almost as many students in special education as it excluded. Therefore, the Eighth Circuit ultimately upheld the decisions of the hearing officer and the district court, denying the parents reimbursement for the private placement. Other language supporting the analysis in Springer can be found in Hoffman v. East Troy Community School District, 38 F.Supp.2d 750 (E.D. Wis. 1999) where a district court determined that a school district was not in violation of its obligation under the IDEA to identify a student, whose most serious problems at the school were “a tendency to sleep in 198
  • 199. several classes and declining grades,” with an emotional disturbance. The court found that the drowsiness was directly attributable to the student working “long hours” at an after school job, and that while the student’s grades were poor, they were passing. In addition the court noted that the student was having problems at home, such as keeping the car out late and fighting with his parents, and that he had some “police contacts.” Finally the fact that the student was seeing a therapist for “depression” did not persuade the court that the school district should have been aware of a potential emotional disturbance.B. Examples of a Finding of Eligibility In Elgin Unit School District 46, 40 IDELR 82 (IL SEA 2003), parents were awarded the costs of a private residential placement by an Illinois hearing officer, based upon a finding that a school district had failed to identify a young woman with an emotional disturbance. In this case, all of the mental health professionals, including a psychologist hired by the school district, agreed that the child was emotionally disturbed, however the school district repeatedly refused special education eligibility. The school district argued that the student’s behaviors, which included running away from home, attempted suicide (which resulted in several psychiatric hospitalizations), promiscuous sexual behavior, school suspensions, school truancy and declining grades were a result of volitional behavior and did not warrant special education eligibility. Moreover, the school argued that the student’s declining grades were primarily a result of incomplete assignments and truancy, and not an inability to learn. Relying heavily on the mental health professionals who testified, the hearing officer stated “it is difficult to understand the apparent belief of the school district teachers and administrators that the student’s behavior was volitional and confined to the home setting.” She then ruled that the student should have been found eligible for special education services as a student with an emotional disturbance. In Manhattan Beach Unified School District, 34 IDELR 249 (CA SEA, 2001), an administrative hearing officer ruled that the parents of a 16-year- old with serious emotional difficulties who was unilaterally placed in a private facility were entitled to reimbursement by the school district. In this case the student never had been found eligible for special education. When the student was in eighth grade she began exhibiting disturbing behaviors, and was ultimately hospitalized in a psychiatric facility following a suicide attempt. The school district found that the student did not meet the eligibility criteria for special education because, in the districts view, she was doing well academically. The hearing officer disagreed with the school district, finding that the student was seriously emotionally disturbed in light of the fact that she 199
  • 200. demonstrated a general pervasive mood of unhappiness and depression; exhibited characteristics of emotional disturbance for over 6 months; exhibited these characteristics in home, school and therapy environments; and was not achieving "mastery" in her classes -- her class work was sufficiently affected by her disability. The hearing officer concluded that because the school district did not find the student eligible for special education, it did not provide a free appropriate public education and ordered the school district to reimburse the parents for their unilateral private residential placement. See also New Paltz Central School District v. St Pierre, 307 F.Supp.2d 394 (N.D.NY 2003) for an excellent legal analysis of a child who was determined to be ED, not socially maladjusted as was argued by the school district and Independent School District No. 284 v. A.C., 258 F.3d 769 (8th Cir. 2001), where the Eighth Circuit affirmed reimbursement for a school district’s failure to identify a student exhibiting “truancy and defiance” with an emotional disturbance as her problems were not “separable from the learning process.” (distinguishing Dale M. v. Bd. of Ed. of Bradley- Bourbonnais H.S. Dist. No. 307, 237 F.3d 813 (7th Cir. 2001).)IV. REMEDIES FOR FAILING TO IDENTIFY A STUDENT WITH AN EMOTIONAL DISTURBANCE A. Reimbursement for Private Placement The most commonly utilized remedy pursuant to the IDEA for children denied special education eligibility by a school district is reimbursement for a unilateral private placement. The right to such reimbursement was first established in Burlington School Committee v. Department of Education of Massachusetts, 471 U.S. 359, 105 S.Ct. 1996 (1985). 1. The Burlington Case Prior to the Burlington case, it was very difficult for advocates to argue on behalf of parents that retroactive reimbursement was a remedy which might be available under IDEA. Nevertheless, in 1985, the Burlington case was decided. A few of the very unusual things about the Burlington case were that (1) it was a unanimous U.S. Supreme Court decision and (2) it was an opinion delivered by Justice Rehnquist. As some of the readers of this handout might be aware, unanimous Supreme Court opinions do not occur very often, and Justice Rehnquist was not known for his sympathies toward protected groups. These two factors make the Burlington opinion all that much more powerful. The Burlington opinion involved a parents unilateral placement in a facility, in part during the pendency of proceedings under the IDEA. At the end of the case, since the district noted that the parent had only 200
  • 201. prevailed partially, the school district sought to be paid back for that period of time during which it felt it had "won" part of this six year case. The U.S. Supreme Court said that the "stay put" or "frozen placement" provision did not work two ways. In other words, the IDEA provision is parent oriented. Thus, it applies only where a parent, in an attempt to provide an appropriate educational setting for his or her child, effects a unilateral placement in an appropriate facility. There was a caveat in the case. Where an appropriate education is shown to have been made available by the district at the time the unilateral placement was made by the parent, the parent placement of the child in a non-public location is at parents’ own expense.2. The Carter Case Once the Burlington case was decided, legal luminaries in the field of parent advocacy were pleased to advise their clients that this remedy was available, as long as the facility chosen by the parent “met the standards” of the state in which retroactive reimbursement is sought. In Illinois the state statute provides for the state board to maintain an "approved" list of placements which have met certain state standards. Not every state maintains an approved list. States do vary, but advocates did make attempts to steer their clients to "state approved" facilities. In 1993, Justice Sandra Day OConnor delivered the opinion in Florence County School District Four v. Carter, 510 U.S. 7, 114 S.Ct. 361 (1993). In this case, the pupil in question, Shannon Carter, was classified as learning disabled in ninth grade in 1985 and the schools recommendation was regular education with three resource periods per week. The goal was to get Shannon to progress four months during the entire school year. The parents requested a hearing, and on both administrative levels, the independent hearing officers held that the IEP was adequate. Meanwhile, the parents had placed Shannon privately in a school for disabled LD students, but this school was not "approved" by the state and in fact did not even write Individual Education Plans. Shannon graduated from the school in 1988. In 1986, two years before Shannons graduation, the parents filed suit to challenge the adverse administrative decisions. After a bench trial, the parents won. The court, in the process, appointed an independent expert to evaluate Shannons progress and gave great weight to the findings. It was found that she had made "substantial progress" even though the school did not follow all of the state standards. For example, her reading levels rose three grades per year as opposed to the goals designated in the IEP. 201
  • 202. The appellate court affirmed that the private school was "appropriate," and that the parents were entitled to retroactive reimbursement. It should be noted in this case that the violations generally were not procedural but substantive in nature. A challenge to the substantive basis for the IEP becomes a battle of experts and it is best to use the most highly qualified and reputable experts that a parent can afford. An affiliation with a major center of learning also helps. Holdings: The Supreme Court, after reviewing the appellate court and trial records, delivered the following holdings: (1) that the IEP was inappropriate; (2) that the private schools program was reasonably calculated to enable the child to receive educational benefits under the Rowley72 test; and (3) that retroactive reimbursement to parents when an IEP is found to be inappropriate does not require placement in a state approved program. In somewhat acidic tone, Justice Sandra Day OConnor asked why courts should leave the job of "approval" in the hands of the very agency that violated the plaintiffs rights in the first place. This decision was unanimous, as was Burlington, which was heavily quoted in the Carter decision. The case further held that Burlington grants parents a right of "unilateral withdrawal" and placement of their child in a non-approved private facility when a districts IEP is inappropriate. The Court explained that "approval" requirements do not make sense in the context of a parental placement. Note also here that the private school was in fairly severe non-compliance with any state standards. Two faculty members were not state certified, they didnt write IEPs, and the State of South Carolina kept no list of approved private schools but "approved" them on a case-by-case basis. However, it was pointed out by Justice OConnor that public school officials previously had placed three children at the school. The final holding of the Court is instructive. As support for the proposition that parents need not seek state cooperation in the form of state approval of the parents placement, she noted that "such cooperation is unlikely in cases where the school officials disagree with the need for private placement." Id., 114 S.Ct. at 366. 3. The 1997 Revisions to IDEA Limit Carter/Burlington Recovery Section 1412(a)(10(C)(iii) of the IDEA mandates that to preserve the parental right to seek retroactive reimbursement under the Burlington and72 Board of Education v. Rowley, 458 U.S. 176, 102 S.Ct. 3034 (1982). 202
  • 203. Carter cases, it is necessary that the district be notified at the “most recent IEP meeting” or letter (a writing) must be submitted to the district, at least ten business days in advance of actually placing the child, of parental intent to place. This means there must be some evidence that the district has actually received the correspondence, and further, the parent theoretically cannot place prior to ten business days having elapsed from date of receipt. The term “business day” includes any regular business day even though that might fall on a school holiday. The Burlington and Carter cases have thus been limited by IDEA reauthorization. This provision allows a hearing officer to reduce or completely deny reimbursement if the parents do not properly comply with their notification duties. For convenience, a sample notification form is attached, “Appendix I.” There are also specific exceptions to the notice requirement contained within the statute, which are: ► Parent is illiterate and cannot write in English; ► Compliance with the clause would likely result in physical or serious emotional harm to the child; ► The school prevented the parent from providing the required notice; ► The parents have not received a written notice of their own obligation to provide notice under this section.4. Example of Reimbursement When a School District Fails to Find ED Eligibility A good example of an Illinois hearing officer awarding private school reimbursement for a school district’s failure to appropriately identify a student with an emotional disturbance is the March 2002 impartial due process hearing decision in case of KJE vs. Oakwood Community Unit School District #76. 37 IDELR 59 (IL SEA 2002) Facts: KJE had been diagnosed since October 1999 with a number of mental illnesses. In October of 1999, the parents of KJE reported to the school principal that their daughter had informed them that she had planned to kill herself. The principal failed to request or even suggest a case study evaluation for special education services or to offer any services whatsoever to KJE. In December 1999, KJE once again threatened to kill herself and also threatened to kill her mother after becoming violent with her parents. She was subsequently hospitalized and diagnosed with major depression. On December 31, 1999, KJE attempted to commit suicide a 203
  • 204. second time. She subsequently informed the school principal that she was continuing to have suicidal feelings. Soon thereafter, she made a third suicide attempt and was admitted to an inpatient psychiatric unit. After her third psychiatric hospitalization, KJE’s parents met with the school principal and informed her of the suicidal history of their daughter. The principal offered no services to KJE and did not refer her for a case study evaluation. At age 14, KJE was eligible to attend the school districts high school, which also refused to provide appropriate special education services. The parents were forced to home school KJE while they searched for an appropriate residential placement. In November 2001, the school district conducted an IEP meeting to discuss special education eligibility and placement. Despite an overwhelming amount of evidence that KJE suffered from a severe emotional disturbance, the school district team decided that KJE was ineligible for special education services. During the session, the teams social worker presented a letter describing KJE as being a "very real risk to herself." But the team made no mention of KJEs four suicide attempts, history of psychotic behavior, or socialization problems, but instead stressed that she had received passing grades in 7th and 8th grade. In determining that KJE was not eligible for special education services, the meeting notes stated that it was not possible to determine an adverse effect on educational performance since KJE was not attending classes full-time at a regular education high school setting. The parents filed for a due process hearing and moved KJE to a residential facility. Issues:4. The school district claimed that KJE was not "seriously emotionally disturbed" and she was therefore not entitled to special education services.5. The school district also claimed that KJE was not entitled to special education services because she was not failing her courses and was progressing from year to year. Analysis: The basic tenets of IDEA are that all applicable laws and regulations require a school district to demonstrate that it properly identifies the nature and severity of a students suspected disability and offers the student a free appropriate public education in the least restrictive environment. In so doing, a district must act consistently with procedural safeguards. Part of these safeguards is that a school district has an affirmative duty to actively seek out and identify children in need of special education services. The hearing officer in the KJE case emphasized the fact that the school was aware of KJEs suicide attempts, psychiatric hospitalizations, and 204
  • 205. telephone conversations that were made between the parents and themiddle school principal and the school districts social worker.The hearing officer, in determining that the student met the requirementsof the definition of emotional disturbance, stated: "Had the local schooldistrict properly investigated the students academic performance, it isclear to the hearing officer that an investigation would have led to theconclusion that the student met the requirements." The hearing officerrejected the school districts notion that because KJE was not failingacademically, she did not meet the emotional disturbance criteria.In KJEs case, it was clear that she had been seriously depressed, and thatthis depression had affected her behavior -- KJE had attempted suicide onfour separate occasions. Furthermore, it was clear that this depression hadaffected her scholastic performance. She was not failing her academiccourses only because she possessed higher cognitive ability.The hearing officer rejected the notion that the school could ignore itsknowledge of KJE’s suicidal tendencies and other serious emotionaldifficulties simply because she was not failing her academic courses, asthis conveyed a profound ignorance of the regulatory definition.In the Rowley case, 458 U.S. 176, 102 S.Ct. 334, 73 L.Ed. 2nd 690 (1982),the U.S. Supreme Court noted that Amy Rowley was a deaf student whoperformed "better than the average child in her class and is advancingeasily from grade to grade." 73 L.Ed. 2nd at 699. In fact, Amy wasreceiving As and Bs in her classes but under the IDEA, the school districtnevertheless found her eligible for special education services. TheSupreme Court ruled that while the education system does not have tomaximize the potential of each handicapped child, the school systemscommitment to children with disabilities requires that these children musthave access to specialized education and related services. And, theseservices must be individually designed to provide significant educationalbenefits to each handicapped child.A child cannot be excluded from special education services just becausehe or she is not failing academically. The Supreme Court stated: "We donot hold today that every handicapped child who is advancing from gradeto grade in a regular public school system is automatically receiving a freeappropriate public education. 73 L.Ed. 2nd at 1710.In general, the KJE case shows that knowledge by a school district of astudent’s serious emotional difficulties is enough to require a case studyevaluation and special eligibility. Moreover, a school district will befound liable should it choose to ignore these therapeutic problems simplybecause a child is progressing from grade to grade. 205
  • 206. B. Personal Liability of School Officials Generally, monetary damages beyond compensatory education and reimbursement for a private placement are not available for IDEA violations. In the past, parents have had a great deal of difficulty maintaining Section 1983 claims, where more punitive type damages may be available, against school districts for IDEA violations. However, there are two relatively recent cases which establish that it is possible to assign personal liability to selected school officials when serious behavioral difficulties are known to the school district, but are ignored. In November 2000, the Superior Court in Connecticut awarded more than $67,000.00 to a special education student who was attacked by another special education student, based on the evidence that the assistant principal had reason to know of the potential harm to the victim. Kendall B. West Haven Department of Education, et. al., 33 IDELR 270 (Conn. Superior Ct , 2000). In this case, a special education student suffered from frequent harassment and bullying from another student. The student told his parents about the harassment, and they told him to inform school officials. The student told the assistant principal of the other students actions, which included racial epithets, spitting, and pushing. The assistant principal stated that would take care of the matter, but she took no action. She did not inform other school officials and she left the premises for the day shortly after meeting with the student. Later that day, the student was attacked by the other student in the cafeteria. The student victims head hit the floor, knocking out his two front teeth and breaking his jaw on both sides. The court found that because the assistant principal was informed of the previous attacks, she had an affirmative duty to take action to prevent further attacks. The court noted that "the evidence unambiguously establishes that she did nothing." Given the nature of the inaction, the assistant principal was not shielded by the doctrine of governmental immunity. She knew of "likely imminent harm to an identifiable person," and was therefore liable for negligence. In a Federal District Court action, a judge has ruled that a Santa Barbara high school district administrator was personally liable for damages under Section 1983 of the Federal Civil Rights Act for violating a mothers right to obtain a free appropriate public education for her special needs son, as required by IDEA. Goleta Union Elementary School District vs. Andrew Ordway, CD 99 – 07745 (CD CAL, verdict December 5, 2002). The mother of the special needs student alleged that the director of student services for the Santa Barbara High School District placed her son in a new school without investigating whether the new school met the students special education needs. The school official had moved for summary judgment, maintaining that she could not be held personally liable under Section 1983 for a violation of IDEA, because "mere negligence on the part of a government official is insufficient to support 206
  • 207. such a claim." The court held that a showing of heightened culpability is notrequired to establish a violation of IDEA -- "…all that is required to establish aSection 1983 claim is proof of a violation of IDEA under color of law." The courtdetermined that the official denied the student a free appropriate public educationby failing to offer him an appropriate placement. This officials conductconstituted a violation of IDEA. The court remanded the parents request formonetary damages for trial. 207
  • 208. SCHOOL STUDENT RECORDS ACTCOLLECTION, MAINTENANCE, INSPECTION, AND DISSEMINATION OF STUDENT EDUCATIONAL RECORDS FOR REGULAR AND SPECIAL EDUCATION STUDENTS BROOKE R. WHITTED LARA A. CLEARY WHITTED, CLEARY & TAKIFF LLC 3000 Dundee Road Northbrook, IL 60062 (847) 564-8662 (847) 564-8419 Fax www.whitteclearylaw.com Whittedlaw@aol.com 208
  • 209. COLLECTION, MAINTENANCE, INSPECTION, AND DISSEMINATION OF STUDENT EDUCATIONAL RECORDS FOR REGULAR AND SPECIAL EDUCATION STUDENTS CAVEAT: A school student records policy must comply with the Family EducationalRights and Privacy Act of 1974 , the Illinois Student Records Act, and all regulations issuedpursuant to such Acts and the rules of the Illinois State Board of Education. This document is anoverview of the required contents of a school student records policy and compliance with therequirements stated herein may not satisfy all applicable laws. Therefore, it is advised that aschool district consult an attorney before adopting a given student records policy.I. NOTIFICATION Upon initial enrollment or transfer of a student to the school, the school shall notify thestudent and the students parents of their rights under the Illinois School Student Records Act, theRegulations thereto and the policies stated herein.II. OFFICIAL STUDENT RECORDS CUSTODIAN Each school shall designate an official records custodian who is responsible for themaintenance, care and security of all school student records, whether or not such student recordsare in his personal custody or control. The official records custodian shall take all reasonable measures to prevent unauthorizedaccess to or dissemination of school student records.III. MAINTENANCE OF PERMANENT AND TEMPORARY RECORDS A. Information contained in or added to a school student record shall be limited toinformation which is of clear relevance to the education of the student. Information added to aschool student record shall include the name, signature and position of the person who has addedsuch information and date of its entry into the record. B. Each school shall maintain student permanent records and the informationcontained therein for not less than 60 years after the student has transferred, graduated orotherwise permanently withdrawn from school. C. No school shall maintain any student temporary record or the informationcontained therein beyond its period of usefulness to the student and the school, and in no caselonger than 5 years after the student has transferred, graduated or otherwise permanentlywithdrawn from the school. Notwithstanding the foregoing, a school may maintain indefinitelyanonymous information from student temporary records for authorized research, statisticalreporting or planning purposes, provided that no student or parent can be individually identifiedfrom the information maintained. D. The principal of each school or the person with like responsibilities or his or herdesignate shall periodically review each student temporary record for verification of entries and 209
  • 210. elimination or correction of all inaccurate, misleading, unnecessary or irrelevant information. Student records shall be reviewed every four years or upon a students change in attendance centers, whichever occurs first, to verify entries and to eliminate or correct all out-of-date, misleading, inaccurate, unnecessary or irrelevant information. E. Upon graduation, transfer or permanent of a handicapped student as defined in the School Code and 23 111. Adm. Code § 226, Subpart A (Special Education), psychological evaluations, special education files and other information contained in the student temporary record which may be of continued assistance to the student may, after five years, be transferred to the custody of the parent or to the student if the student has succeeded to the rights of the parents. The school shall explain to the student and the parent the future usefulness of these records. F. Before any school record is destroyed or information deleted therefrom, the parent shall be given reasonable prior notice in accordance with regulations adopted by the State Board and an opportunity to copy the record and the information proposed to be destroyed or deleted.IV. RIGHT TO INSPECT RECORDS A. A parent or any person specifically designated as a representative by a parent shall have the right to inspect and copy all school student permanent and temporary records of that parents child. A student shall have the right to inspect and copy his or her school student permanent record. B. Whenever access to any person is granted, at the option of either the parent or the school, a qualified professional, who may be a psychologist, counselor or other advisor, and who may be an employee of the school or employed by the parent, may be present to interpret information contained in the student temporary record. C. A parents or students request to inspect and copy records, or to allow a specifically designated representative to inspect and copy records, must be granted within a reasonable time, and in no case later than 15 school days after the date of receipt of such request by the official records custodian. D. The school may charge its reasonable costs for the copying of school student records, not to exceed $.35 per page. V. DISCLOSURE OF RECORDS A. No school student records or information contained therein may be released, transferred, disclosed or otherwise disseminated, except as follows: (1) To a parent or student or person specifically designated as a representative by a parent; 210
  • 211. (2) To an employee or official of the school or school district or State Board with current demonstrable educational or administrative interest in the student in furtherance of such interest; (3) To the official records custodian of another school within Illinois or an official with similar responsibilities of a school outside Illinois, in which the student has enrolled, or intends to enroll, upon the request of such official or student; (4) To any person for the purpose of research, statistical reporting or planning, provided that no student or parent can be identified from the information released and the person to whom the information is released signs an affidavit agreeing to comply with all applicable statutes and rules pertaining to school student records; (5) Pursuant to court order, provided that the parent shall be given prompt written notice upon receipt of such order of the terms of the order, the nature and substance of the information proposed to be released in compliance with such order and an opportunity to inspect and copy the school student record and to challenge their contents pursuant to the procedures set forth in 105 ILCS 10/7; (6) To any person as specifically required by State or federal law; (7) Subject to regulations of the State Board and to 23 Ill.Adm.Code §375.60 (1996), in connection with an emergency, to appropriate persons if the knowledge of such information is necessary to protect the health or safety of the student or other persons; or (8) To any person, with prior specific dated written consent of the parent designating the person to whom the records may be released, provided that at the time any such consent is requested or obtained, the parent shall be advised in writing that he has the right to inspect or copy such records in accordance with 105 ILCS 1015, to challenge their contents in accordance with the procedures set forth at 105 ILCS 10/7, and to limit any such consent to designated records or designated portions of the information contained therein.VI. RELEASE OF RECORDS A. No information may be released pursuant to paragraphs (3) or (6) unless theparent receives prior written notice of the nature and substance of the information proposed to bereleased, and an opportunity to inspect and copy such records in accordance with 105 ILCS 10/5and to challenge their contents in accordance with 105 ILCS 10/7. B. A record of any release of information pursuant to this Section must be made andkept as a part of the school student record and subject to the access granted herein. A record of any release of information must be made and kept as a part of theschool student record and subject to the access granted by 105 ILCS 101/5. Such record of 211
  • 212. release shall be maintained for the life of the school student records and shall be available only to the parent and the official records custodian. Each record of release shall also include: (1) The nature and substance of the information released; (2) The name and signature of the official records custodian releasing such information; (3) The name of the person requesting such information, the capacity in which such a request has been made, and the purpose of such request; (4) The date of the release; and (5) A copy of any consent to such release. C. The school shall grant access to, or release information from, school student records without parental consent or notification: (1) To an employee or official of the school or school district or the state board of education, provided such employee or official has a current demonstrable educational or administrative interest in the student and the records are in furtherance of such interest; (2) To any person for the purpose of research, statistical reporting, or planning, provided that no student or parent can be identified from the information released and the person to whom the information is released signs an affidavit agreeing to comply with all applicable statutes and rules pertaining to school student records.VII. PROCEDURE FOR CHALLENGE TO RECORDS A. Parents shall have the right to challenge the accuracy, relevance or propriety of any entry in the school student records, exclusive of (I)academic grades of their child and (ii) references to expulsions or out-of-school suspensions, if the challenge is made at the time the students school student records are forwarded to another school to which the student is transferring. Parents shall be notified of their right to a hearing challenging entries made in the school student records. B. The request for a hearing shall be submitted in writing to the school and shall contain notice of the specific entry or entries to be challenged and the basis for the challenge. C. Each school shall establish administrative procedures for parents to challenge the contents of student records. Such procedures shall include: (1) An initial informal conference with the parents, within 15 school days of receipt of the request for a hearing. 212
  • 213. (2) If the challenge is not resolved by the informal conference, formal procedures shall be initiated. a) A hearing officer, who shall not be employed in the attendance center in which the student is enrolled, shall be appointed by the school. b) The hearing officer shall conduct a hearing within a reasonable time, but no later than 15 days after the informal conference, unless an extension of time is agreed upon by the parents and school officials. The hearing officer shall notify parents and school officials of the time and place of the hearing. D. The challenging procedures shall provide for a hearing at which each party shallhave: (1) The right to present evidence and to call witnesses; (2) The right to cross-examine witnesses; (3) The right to counsel; (4) The right to a written statement of any decision and the reasons therefor; (5) The right to appeal an adverse decision to an administrative tribunal or official to be established or designated by the State Board; E. A verbatim record of the hearing shall be made by a tape recorder or a courtreporter. A typewritten transcript may be prepared by either party in the event of an appeal ofthe hearing officer’s decision. However, a typewritten transcript is not required in an appeal. F. The written decision of the hearing officer shall, no later than 10 school days afterthe conclusion of the hearing, be transmitted to the parents and the school district. It shall bebased solely on the information presented at the hearing and shall be one of the following: (1) To retain the challenged contents of the student record; (2) To remove the challenged contents of the student record; or (3) To change, clarify or add to the challenged contents of the student record. G. Any party shall have the right to appeal the decision of the local hearing officer tothe Regional Superintendent within 20 school days after such decision is transmitted. If theparent appeals, the parent shall so inform the school and within 10 school days the school shallforward a transcript of the hearing, a copy of the record entry in question and any other pertinentmaterials to the Regional Superintendent. The school may initiate an appeal by the sameprocedures. Upon receipt of such documents, the Regional Superintendent shall examine thedocuments and record to determine whether the school district’s proposed action in regard to the 213
  • 214. student’s record is in compliance with applicable law, make findings and issue a written decisionto the parents within 20 school days of the receipt of the appeal documents. If the subject of theappeal involves accuracy, relevancy or propriety of any entry in special education records, theRegional Superintendent should seek advice from special education personnel. H. A final decision under the procedures established pursuant to 105 ILCS 10/7 maybe appealed to the Circuit Court of the County in which the school is located. I. Parents shall also have the right to insert in their childs school student record astatement of reasonable length setting forth their position on any disputed information containedin that record. The school shall include a copy of such statement in any subsequentdissemination of the information in dispute. 214