Case Law History Cynthia Quetsch


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  • The act also requires, in addition to educational benefit, the provision of related services.
  • Case Law History Cynthia Quetsch

    1. 1. Case Law History Cynthia Quetsch Legal Counsel Division of Special Education
    2. 2. The Federal Statutes <ul><li>Elementary & Secondary Education Act of 1965 </li></ul><ul><li>Education for All Handicapped Children Act 1975 </li></ul><ul><li>Individuals with Disabilities Education Act </li></ul><ul><ul><li>2000 </li></ul></ul><ul><ul><li>2004 </li></ul></ul>
    3. 3. State Statutes <ul><li>Section 162.670 – 162.999 </li></ul><ul><ul><li>All children with disabilities under the age of 21 are entitled to a free and appropriate public education </li></ul></ul><ul><ul><li>Establishes Missouri School for the Blind, Missouri School for the Deaf and State Schools for the Severely Handicapped soon to be Missouri Schools for the Severely Disabled </li></ul></ul>
    4. 4. State Regulations <ul><li>5 CSR 700 series sets forth the regulations for special education </li></ul><ul><li>The State Plan provides detailed instruction on the IDEA as applied in Missouri </li></ul>
    5. 5. The Court’s Interpretations <ul><li>Board of Education v. Rowley , 102 S. Ct 3034 (1982) </li></ul><ul><ul><li>Deaf child in regular ed kindergarten </li></ul></ul><ul><ul><li>1 st grade IEP </li></ul></ul><ul><ul><ul><li>Regular classroom </li></ul></ul></ul><ul><ul><ul><li>Hearing Aid </li></ul></ul></ul><ul><ul><ul><li>Tutor for the deaf 1 hour per week </li></ul></ul></ul><ul><ul><ul><li>Speech therapist 3 hours per week </li></ul></ul></ul><ul><ul><li>Parent’s request sign language interpreter in all classes and school declines </li></ul></ul>
    6. 6. <ul><li>Due process hearing </li></ul><ul><ul><li>No interpreter needed because Amy is achieving educationally, academically and socially without assistance. </li></ul></ul><ul><li>Commissioner of Education affirms </li></ul><ul><li>District Court </li></ul><ul><ul><li>Free and appropriate public education (FAPE) was not provided because there was a gap between her achievement and her potential due to her handicap- school must provide interpreter </li></ul></ul>
    7. 7. <ul><li>2 nd Circuit Court of Appeals affirms </li></ul><ul><li>U.S. Supreme Court </li></ul><ul><ul><li>FAPE was provided because there was personalized instruction with support services that permitted the child to benefit educationally </li></ul></ul><ul><ul><li>The law does not guarantee a particular outcome- just an educational benefit </li></ul></ul><ul><ul><ul><li>Passing marks and advancement is an educational benefit </li></ul></ul></ul><ul><ul><li>Law only requires an open door for disabled students to be educated with nondisabled peers </li></ul></ul>
    8. 8. The Rowley Standard <ul><li>An appropriate education does not mean maximal service- but must convey some educational benefit </li></ul><ul><li>The amount of benefit varies depending on the child and the disability </li></ul><ul><li>This standard had been cited by the courts regularly since 1982 </li></ul>
    9. 9. Irving Independent School District v. Tatro , 104 S. Ct. 3371 (1984) <ul><li>School health services are related services </li></ul><ul><ul><li>Services provided by a qualified school </li></ul></ul><ul><ul><li>nurse or person other than a physician </li></ul></ul><ul><li>Health services are supportive services to assist the disabled child to remain in school to benefit from special education </li></ul><ul><li>School provides clean intermittent catheterization every 3 to 4 hours </li></ul>
    10. 10. Cedar Rapids Community School District v. Garrett F ., 119 S.Ct. 992 (1999) <ul><li>Child was ventilator dependent and needed nursing services during school hours </li></ul><ul><li>School district not required to provide medical services but must provide related services </li></ul><ul><ul><li>Medical services require a physician </li></ul></ul><ul><ul><li>Related services enable a child to remain in school </li></ul></ul><ul><li>A district a cannot consider costs in making the decision on whether to provide the service. </li></ul>
    11. 11. School Committee of Burlington v. Department of Education of Massachusetts , 105 S.Ct. 1996 (1985) <ul><li>Tuition reimbursement case </li></ul><ul><li>Parent's can be reimbursed for a unilateral private placement if </li></ul><ul><ul><li>the district’s IEP fails to offer FAPE </li></ul></ul><ul><ul><li>AND the parents choice was appropriate </li></ul></ul><ul><li>Court warned – parents who place children in private schools do so at their own financial risk </li></ul>
    12. 12. Florence County School District Four v. Carter, 114 S.Ct. 361 (1993) <ul><li>Tuition reimbursement can be obtained even if the placement was to an unapproved private agency (does not comply with IDEA standards) </li></ul><ul><li>Total reimbursement may not be available if the cost was not reasonable </li></ul>
    13. 13. Board of Education of the City School of the City of New York v. Tom F ., 128 S. Ct. 1 (2007) <ul><li>Student attended private school since kindergarten </li></ul><ul><li>IEP team recommends placement at public school </li></ul><ul><li>Parent’s reject the IEP and stay in private school and file for a due process hearing requesting tuition reimbursement </li></ul><ul><li>Hearing officer awards reimbursement </li></ul>
    14. 14. <ul><li>State review officer affirms </li></ul><ul><li>District court reverses holding that where a child had not previously received special education from a public agency there is no authority to reimburse tuition expenses for a unilateral placement </li></ul><ul><li>2 nd Circuit parents can be reimbursed if they give the district reasonable notice that they reject the IEP and plan to enroll the child in private school </li></ul>
    15. 15. <ul><li>Supreme Court- by a 4 to 4 decision upholds the 2 nd Circuit (parents get reimbursed) </li></ul><ul><li>Because it is a tie decision it is not binding on Missouri schools or courts </li></ul><ul><li>Anticipate either statutory change or future cases to resolve the issue </li></ul>
    16. 16. Zobrest v. Catalina Foothills School District , 113 S. Ct. 2462 (1993) <ul><li>The provision of a sign language interpreter by a local school district in a private school does not violate the US Constitution </li></ul><ul><li>The district provided the interpreter to the student (a neutral action) and the parents decided where that would be used (private school) </li></ul><ul><li>The role of an interpreter is different than an instructor or guidance counselor </li></ul>
    17. 17. Missouri law on services in private /parochial schools <ul><li>Foley v. Special School District of St. Louis County , 153 F3d 863 (8 th Cir. 1998) </li></ul><ul><ul><li>IDEA permits (but does not require) the provision of services at a private school but the Missouri Constitution does not </li></ul></ul><ul><ul><li>Private school student has no individual right to special education services </li></ul></ul><ul><ul><ul><li>Are only eligible for the proportionate share provisions from the district </li></ul></ul></ul>
    18. 18. Schaffer v. Weast , 126 S.Ct. 528 (2005) <ul><li>The burden of proof to show a violation of the IDEA is on the party bringing the action. </li></ul>
    19. 19. Winkleman v. Parma School District , 127 S.Ct. 1994 (2007) <ul><li>Parents have rights under the IDEA and can prosecute claims on their own behalf without the assistance of an attorney </li></ul><ul><li>Court did not address whether non-attorney parents can represent their child in a due process hearing. </li></ul>
    20. 20. Fitzgerald v. Camdenton R-III School District , 437 F.3d 773 (8 th Cir. 2006) <ul><li>A school district cannot require the special education evaluation of a private school student when the parents refuse to consent to an evaluation, privately educate the child and expressly waive all benefits under the IDEA </li></ul>
    21. 21. School Board of Independent School District No. 11, Anoka-Hennepion v. Rennollett , 440 F.3d 1007 (8 th Cir. 2006) <ul><li>A district’s failure to develop a Behavior Intervention Plan was a procedural error but it did not result in a denial of FAPE because appropriate behavior intervention were implemented </li></ul><ul><li>Procedural error must cause a denial of FAPE to prevail in an IDEA hearing </li></ul>
    22. 22. M.M. v. Special School District No. 1 , 512 F.3d 455 (8 th Cir. 2008) <ul><li>“ When a child’s primary disability is a behavioral disorder, the school district does not violate IDEA simply because the child failed to achieve the IEP’s behavioral goals.” </li></ul><ul><li>“ When a parent and the school district’s educational professionals agree that a child with a behavior disability needs a change of placement but a cannot agree on an appropriate alternative, the school district must maintain the current, admittedly inappropriate placement under the stay-put IEP until the due process proceedings have concluded, unless the parties agree to an interim alternative placement.” </li></ul>
    23. 23. <ul><li>“ the school district should not be liable if the parent … has rejected both the offer of an appropriate change of placement setting and the offer of interim home schooling services during suspension authorized by the school’s disciplinary policies and consistent with the stay-put IEP.” </li></ul>
    24. 24. Van Duyn v. Baker School District 5J , 502 F.3d 811 (8 th Cir. 2007) <ul><li>A minor failure in implementing an IEP is not an automatic violation of IDEA </li></ul><ul><li>A material failure is a violation </li></ul><ul><ul><li>Material failure = more than a minor discrepancy between services provided and IEP requirements </li></ul></ul><ul><ul><li>No need to show educational harm resulted from the failure </li></ul></ul>
    25. 25. John M. v. Bd. Of Education of Evanston Township High School , 502 F.3d 708 (7 th Cir. 2007) <ul><li>Under stay put the district must implement the IEP as written </li></ul><ul><li>Methodologies used do not have to be maintained if not set forth in the IEP </li></ul><ul><li>But the “educational experience” must be maintained </li></ul>
    26. 26. How did the parents and district get to court? <ul><li>The Complaint Process </li></ul><ul><ul><li>Child Complaints </li></ul></ul><ul><ul><ul><li>Anyone can file alleging the district has failed to follow the law </li></ul></ul></ul><ul><ul><ul><li>Investigated by DESE staff to determine if the IDEA has been followed </li></ul></ul></ul><ul><ul><ul><li>Remedy- district is told to comply- no court action involved </li></ul></ul></ul>
    27. 27. Due Process Complaints <ul><ul><li>Parent or public agency can file concerning </li></ul></ul><ul><ul><ul><li>Denial of FAPE or </li></ul></ul></ul><ul><ul><ul><li>An action to initiate or refuse to initiate or change the identification, evaluation or educational placement of a child </li></ul></ul></ul><ul><ul><ul><li>Evidentiary hearing before a 3 person panel </li></ul></ul></ul><ul><ul><ul><li>Written order issued on legal questions </li></ul></ul></ul><ul><ul><ul><li>Unhappy party can appeal to the courts </li></ul></ul></ul>
    28. 28. Ways to avoid going to court <ul><li>Follow the advice of your attorney </li></ul><ul><li>Follow the law </li></ul><ul><li>Make use of the mediation process </li></ul><ul><li>Reach an agreement during the resolution process </li></ul>
    29. 29. OSEP letters <ul><li>Child find </li></ul><ul><ul><li>District must include students who are parentally placed in a for profit school in the child find information but they are not entitled to proportionate share </li></ul></ul><ul><ul><li>The LEA where a private school is located must conduct the initial evaluation of all parentally placed private students (even those whose parents live in a different state) </li></ul></ul><ul><ul><li>The LEA of the parent's residence must provide FAPE unless the parents make it clear they intend to keep the child in a private placement </li></ul></ul>
    30. 30. <ul><li>Compensatory Services </li></ul><ul><ul><li>Personnel providing compensatory services must meet the standards for providing services to regular education students </li></ul></ul><ul><ul><li>If a child or provider is absent the need for compensatory services is determined by the IEP team on a case by case basis if FAPE has been denied </li></ul></ul>
    31. 31. <ul><li>Stay put </li></ul><ul><ul><li>Need to conduct IEP meetings every year including during a pending due process hearing even though the placement cannot be changed </li></ul></ul><ul><ul><li>Transition from Part B to Part C </li></ul></ul><ul><ul><li>Public agencies may, but are not required to , continue the early intervention services provided in Part C pending the resolutions of a due process hearing filed under Part B </li></ul></ul>
    32. 32. Legislative changes in 2008 <ul><li>New name for schools </li></ul><ul><ul><li>Missouri Schools for the Severely Disabled </li></ul></ul><ul><ul><li>Alternative Teacher Certification </li></ul></ul><ul><ul><li>Does not apply to Special Education </li></ul></ul>
    33. 33. <ul><li>Any questions? </li></ul><ul><li>Cynthia Quetsch Legal Counsel </li></ul><ul><li>Division of Special Education </li></ul>