by Mike Leasor
In Fry v. Napoleon Cmty. Sch., No. 15-497 (U.S. Feb. 22, 2017), the U.S. Supreme Court, in an 8-0 ruling, held that the exhaustion of the IDEA’s administrative remedies is unnecessary where the gravamen of the plaintiff’s lawsuit is something other than the denial of the IDEA’s core guarantee of FAPE.
E.F. suffers from cerebral palsy and was prescribed a service dog (Wonder) to assist her with everyday tasks. Her school, which provided her with a human aide as part of her Individualized Education Program (IEP) under the IDEA, refused to permit her to bring her service dog to school.
The Frys then began homeschooling E.F. and subsequently filed a complaint with the U.S. Department of Education’s Office for Civil Rights (OCR) under the ADA and §504 of the Rehabilitation Act. Two years later, in May 2012, OCR found that the school’s refusal to permit Wonder to attend school with E.F. was a violation of the ADA. At that time, without accepting the factual or legal conclusions of OCR, the school agreed to permit E.F. to attend school with Wonder starting in the fall 2012. The Frys then filed suit pursuant to Title II of the ADA and §504, seeking damages for the school’s refusal to accommodate Wonder between the fall of 2009 and the spring of 2012.
The Frys alleged the following particular injuries: denial of equal access to school facilities, denial of the use of Wonder as a service dog, interference with E.F.’s ability to form a bond with Wonder, denial of the opportunity to interact with other students at Ezra Eby Elementary School, and psychological harm caused by the defendants’ refusal to accommodate E.F. as a disabled person.
The district court granted the defendants’ motion to dismiss, finding that the IDEA’s exhaustion requirements applied to the Frys’ claims and dismissed the claims. The court noted that although the Frys did not specifically allege any flaws in E.F.’s IEP, if she were permitted to attend school with Wonder, that document would almost certainly have to be modified in order to articulate the policies and practices that would apply to the dog. Therefore, the Frys’ request for permission for E.F. to attend school with Wonder “would be best dealt with through the administrative process,” and exhaustion was required. Because the Frys had not exhausted IDEA administrative remedies, the district court dismissed their suit. The Frys timely appealed.
A U.S. Court of Appeals for the Sixth Circuit panel, in a 2-1 decision, affirmed the lower court’s decision dismissing the §504 and ADA claims. The panel’s majority concluded that the IDEA’s exhaustion requirement applied to the Frys’ claims. It stated that “the nature of the Frys’ claims required them to exhaust IDEA procedures before filing suit under the ADA and the Rehabilitation Act.” Crucial to the majority’s conclusion that exhaustion of administrative remedies was required, was its determination “in effect that E.F.’s school’s decision regarding whether her service animal would be permitted at school denied her a free appropriate public education.” Again, the Frys timely appealed.
The Supreme Court in its decision advanced two positions: (1) To bring a suit under IDEA, the plaintiff must seek relief for the denial of FAPE because that is the only relief available under IDEA; and (2) “[I]n determining whether a suit indeed ‘seeks’ relief for such a denial, a court should look to the substance, or gravamen, of the plaintiff’s complaint.”
According to the opinion, a determination of whether the exhaustion requirement applies must go beyond the surface of the complaint to examine the substance. The Court pointed to two “clues” to discovering whether the gravamen of a complaint concerns denial of FAPE or, instead, focuses on disability-based discrimination addressable under Title II of the ADA or §504: First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school—say, a public theater or library? And second, could an adult at the school—say, an employee or visitor— have pressed essentially the same grievance?
The Court concluded that if the answer to both is yes, then it is unlikely that the complaint concerns FAPE. However, if the answer to both is no, it is probable that the complaint does concern FAPE.
The Court stated further that another sign that the gravamen of a complaint involves the denial of FAPE is when the history of the proceedings reveal that the “plaintiff … previously invoked the IDEA’s formal procedures to handle the dispute—thus starting to exhaust the Act’s remedies before switching midstream.” She noted that “prior pursuit of the IDEA’s administrative remedies will often provide strong evidence that the substance of a plaintiff’s claim concerns the denial of a FAPE, even if the complaint never explicitly uses that term.”
Turning to the Frys’ complaint, the Court pointed out that it might not require exhaustion, but that there was important information missing that required remanding the issue to the Sixth Circuit. It pointed out that the complaint contains no allegation about the denial of a FAPE or about any deficiency in E. F.’s IEP. The Court also noted that the complaint “does not accuse the school even in general terms of refusing to provide the educational instruction and services that E. F. needs.” It concluded that nothing in the nature of the Frys’ suit suggests any implicit focus on the adequacy of E. F.’s education. It conjectured that “the Frys could have filed essentially the same complaint if a public library or theater had refused admittance to Wonder.” Thus, the Supreme Court determined that administrative remedies did not need to be exhausted based on the information at hand, but then remanded the case back to the Circuit Court to determine if the Frys had ever pursued administrative remedies in the first place.
Although confusing, this case is instructive as it gives school districts guidance as to when a “failure to exhaust administrative remedies” argument might be a waste of energy and resources. Unfortunately, the decision could also be read as providing a roadmap on how to package a claim to avoid an otherwise suitable administrative remedy. This could have the effect of dramatically increasing the number of cases that end up being litigated in federal courts, as opposed to the (relatively) more efficient due process hearings system. If you or your staff have additional questions on this issue, or just require further information, the attorneys at Leasor Crass stand ready to assist.
by Dean Micknal
The U.S. Supreme Court issued an opinion today that expressly rejects “merely more than de minimis” as the standard for measuring whether an IEP is reasonably calculated to provide FAPE under the IDEA. Instead, the Court has held that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”
In Endrew F. v. Douglas County School District, the Court overturned the 10th Circuit’s interpretations of IDEA and the Supreme Court’s previous ruling in Board of Education of Hendrick Hudson School District, Westchester City v. Rowley (“Rowley”) as only requiring an IEP to be reasonably calculated to enable a student to make some progress, as long as the progress is more than de minimis. The leading case in the 5th Circuit, Cypress-Fairbanks Indep. Sch. Dist. v. Michael F. applied a similar interpretation, explaining that the educational benefit to which the [IDEA] refers and to which an IEP must be geared cannot be a mere modicum or de minimis; rather, an IEP must be “likely to produce progress, not regression or trivial educational advancement.”
While the opinion makes it clear that the “more than de minimis” standard is unacceptable, the new standard is anything but definite. This should not be viewed as an oversight, though. In fact, the Court expressly refused to establish a bright-line rule on what “appropriate” progress means, explaining that “[t]he adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.”
The frustrating reality of this ruling is that it leaves districts (and their legal counsel) in the position of knowing what FAPE isn’t, but not knowing what FAPE is. That determination is going to have to be developed through litigation, a fact that the Court seemingly acknowledged when it cautioned future courts that “[t]his absence of a bright-line rule” should not be mistaken as “an invitation…to substitute their own notions of sound educational policy for those of the school authorities which they review.”
This affirmation that the legal presumption of appropriateness is still standing is one of the two areas in which districts might find some measured solace. The second is that the Court flatly declined to adopt the standard asserted by the Petitioners that IDEA requires “an education that aims to provide a child with a disability opportunities to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded children without disabilities.”
So what should districts do in response to the new ruling? First, take a deep breath. The “more than de minimis” standard may have been the law, but in reality the overwhelming majority of districts have always committed to providing much more than the bare minimum to their special education scholars. Next, recommit to emphasizing the importance of ensuring that an IEP is truly individualized and based on a student’s Present Level of Academic Achievement and Functional Performance (PLAAFP). The fact that the new standard is directly tied to “the unique circumstances of the child” means that a well written PLAAFP statement is more crucial now than ever.
Finally, acknowledge that the ruling raises the bar, but stops well short of requiring the district to issue a blank check. IEP development is a collaborative process and sometimes disagreement is inevitable. The IDEA provides parents with the right to file for a due process hearing in these instances. When that happens, remember that the Court chose to close this decision with the following message:
The nature of the IEP process, from the initial consultation through state administrative proceedings, ensures that parents and school representatives will fully air their respective opinions on the degree of progress a child’s IEP should pursue. By the time any dispute reaches court, school authorities will have had a complete opportunity to bring their expertise and judgment to bear on areas of disagreement. A reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.
If you should have any questions or concerns about what the new decision means for your district, please do not hesitate to contact the school attorneys at Leasor Crass, P.C.
by Dean Micknal
The Attorney General has finally responded to TEA’s March 11, 2016 request for an expedited opinion regarding the construction of Texas Education Code section 29.022. Unfortunately, it is not the response most Districts (or TEA) were wanting. A copy of the opinion is available here.
Back in March, Commissioner Morath asked the AG four questions:
- Whether TEC 29.022(a) could be interpreted to only require video surveillance in one self-contained instructional setting;
- Whether TEC 29.022(a) could be interpreted to allow a requestor to limit a request for video surveillance to one or more specific instructional settings;
- Whether the term “staff member” as used in TEC 29.022(a) could be construed to mean only a campus employee who is assigned to a self-contained instructional setting subject to surveillance and certain campus supervisors; and
- Whether TEC 29.022(b) allows a district to discontinue video surveillance if the circumstances surrounding the request have changed substantially.
The Attorney General emphatically disagreed with the suggested interpretations…stating that “[t]he plain language of the statute does not allow for the reasonable limitation that you suggest, and this office cannot rewrite the statute.”
What does this mean for districts? Prior to yesterday’s Opinion, there was a sliver of hope that the AG would interpret the statute so as to allow TEA to revise the rules it adopted last month to limit the scope of a request and/or allow for surveillance to be discontinued. This Opinion would seem to firmly shut that door. Consequently, with respect to questions 1, 2, and 4, the current Rules will probably remain in effect. Specifically:
- TAC 103.1301(a) requires cameras to be placed, operated and maintained in self-contained classrooms or other special education settings in accordance with TEC 29.022, which has been interpreted to mean all qualifying self-contained classrooms and other special education settings;
- TAC 103.1301 does not include any provision allowing a Requestor to limit a request to one or more specific settings; and
- TAC 103.1301(g)(6) requires campuses to “continue to operate and maintain any video camera…for as long as the classroom or setting continues to satisfy the requirements in TEC §29.022(a).”
However, TEA may end up having to change the definition of “staff member” set out in TAC 103.1301(b)(2). In the AG’s opinion, TEA “exceeded its rulemaking authority by adopting a definition more restrictive than the plain language of the statute.” In other words, the AG believes that if the Rules were challenged, a court would likely conclude that the statute allows any staff member to request video surveillance. That being said, the current, narrower definition of “staff member” remains in force until TAC 103.1301(b)(2) is revised or overturned in court.
Ultimately, this means that any hope for “reasonable limitations” to TEC 29.022 will most likely require action on the part of the Legislature. As many districts have warned, and the AG explicitly acknowledged, as currently written, the statute “could create significant costs for school districts.” We now know that relief from those costs won’t be coming from Ken Paxton’s office. At best, the AG’s explicit admonishment of the authors of SB 507 for believing that “TEA can clarify these concerns through rulemaking” and pointed reference to the Texas Supreme Court’s holding that “reasonableness is not the standard for eschewing plain statutory language” will be received as a call to legislative action.
Leasor Crass, P.C. will continue to monitor this issue and provide guidance as new information becomes available. In the meantime, please do not hesitate to contact our office should you have questions or concerns regarding the existing law and the implications it may have for your district.
by Dean Micknal
It may be hard to believe, but summer is almost over. This means that students will soon be returning to classrooms, which, according to the Department of Education, is where they need to stay.
Earlier this month, the Office of Special Education and Rehabilitative Services (OSERS) issued a strongly worded “Dear Colleague Letter” addressing concerns regarding the use of short-term removals as a disciplinary measure for children with disabilities. A copy of the guidance can be accessed here.
The guidance states that recent data regarding short-term disciplinary removals “strongly suggest” that IEPs aren’t being implemented appropriately. In response, OSERS is reminding schools that IDEA requires the provision of appropriate behavioral supports to children with disabilities who require such supports. Failure to do so could result in violating the Least Restrictive Environment mandate and/or denying such students a free, appropriate public education.
What does this mean for the upcoming school year? Districts should anticipate that the use of any exclusionary disciplinary measures involving students with IEPs may come under greater scrutiny than before. While this doesn’t mean that disciplinary removals cannot be used, it is imperative that districts document the consideration, development, and implementation of positive behavioral interventions and supports in response to behavior that may otherwise be subject to disciplinary consequence.
The guidance raises two other important points for consideration. First, districts are expected to understand that the obligation to provide positive behavioral interventions and supports extends to any student with an IEP, regardless of whether the behavior is a manifestation of the student’s disability. For example, a student with a hearing impairment has the same right to receive positive behavioral interventions and supports as a student with an emotional disturbance.
Second, OSERS is openly questioning the legitimacy of what is commonly referred to as the “10 FAPE Free Days” rule. The DCL does not explicitly contradict the authority to impose short-term removals for code of conduct violations that is found at 34 CFR §300.530. However, OSERS is expressing concern that characterizing that authority as providing 10 “free days” may “discourage school personnel from considering whether behavioral supports are needed to address or improve patterns of behavior that impede learning before, during, or after short-term disciplinary removals are implemented.” In other words, short-term disciplinary removals may not constitute denials of FAPE, but they still require the behavioral interventions provided by the IEP to be reviewed and/or revised as necessary.
As a practical matter, the guidance does not impose any new laws or requirements. However, it does suggest that current disciplinary practices are going to be facing increasing scrutiny. Administrators should be aware of this fact and take steps to ensure disciplinary procedures are properly followed and documented. If you have questions about the new guidance, or student discipline in general, the attorneys at Leasor Crass, P.C. are ready to help.
by Dean Micknal
Yesterday afternoon the Commissioner of Education took action to formally adopt rules for implementing Texas Education Code §29.022. The adopted new rule, which becomes effective August 15, 2016, can be viewed here.
Technically, the rule isn’t new at all. Rather, the Commissioner has adopted the rule that was first proposed in April, with a handful of changes that were made at adoption in response to public comment. Several of these changes significantly alter what was proposed in April. Most notably, by substituting the word “or” with “and” the Commissioner significantly restricted what constitutes an “incident” for purposes of triggering access to surveillance video. As adopted, an event or circumstance will only constitute an “incident” if it:
“involves alleged “abuse” or “neglect,” as those terms are described in Texas Family Code, §261.001, of a student by an employee of the school district or charter school or alleged “physical abuse” or “sexual abuse,” as those terms are described in Texas Family Code, §261.410, of a student by another student”
“allegedly occurred in a self-contained classroom or other special education setting.”
Other notable changes include:
- Requiring surveillance to be conducted in settings in which extended school year services are provided, rather than leaving the decision to local discretion;
- Requiring the adoption of written policies that include procedures for responding to a request for video surveillance;
- Clarifying that procedures must be adopted for providing advanced written notice to campus staff and parents of students assigned to a setting in which surveillance will be conducted;
- Replacing the required statement regarding the “roles and responsibilities” of individuals who will have access to cameras and recordings with a statement “regarding the personnel who will have access…for purposes of operating and maintaining the equipment or recordings”:
- Removing the word “routine” as a qualifier on the prohibition against using recordings for teacher evaluation or monitoring;
- Clarifying that only administrators need be trained in de-escalation and restraint techniques for purposes of viewing a video recording in response to a complaint or an investigation of an incident;
- Clarifying that a report must be submitted if abuse or neglect is suspected; and
- Adding a provision that requires a recording believed to document a possible violation of school district policy to be released for viewing to the employee who is the subject of the disciplinary action at the request of the employee.
Undoubtedly, what districts may find most interesting/concerning are revisions that were not made to the proposed rule. For example, TEA expressly declined to interpret the law as establishing a timeline for installing video equipment after a request has been received, leaving districts with the discretion to determine what constitutes “a reasonable time period.”
Most importantly, the text of the rule and TEA’s response to public comments make it clear that TEA interprets “the express language in TEC, §29.022(a)” to mean that “a single request requires that video surveillance be conducted districtwide.” TEA notes that it has sought guidance on this interpretation from the Attorney General (referring to its March 11th request for an expedited opinion) and will modify the rule as necessary upon receipt of the Texas Attorney General’s opinion.
Similarly, TEA has refused to revise the rule to include a provision to clarify another issue that was raised in the request for an expedited opinion…when and/or if video surveillance may be discontinued. Currently, the rule requires a campus to continue to operate and maintain a video camera “for as long as the classroom or setting continues to satisfy the requirements in TEC §29.022(a).” Again, TEA’s comments assure districts that it will modify the rule as necessary.
In sum, the rules as adopted have a distinctively “work-in-progress” feel. Unfortunately, this appears to be a reflection of well-intentioned, but poorly executed legislation, and is unlikely to change between now and the beginning of school. Leasor Crass, P.C. is ready and willing to assist your district in deciphering and making a good-faith effort to comply with these frustrating mandates.
by Dean Micknal
As you know, the passage of Senate Bill 507 added Section 29.022 to the Texas Education Code. Beginning with the start of the 2016-2017 school year, this new law requires districts to take certain steps in response to requests from parents, trustees or staff members for video surveillance of self-contained classrooms or other special education settings. Intentions aside, the ambiguities and uncertainties created by the poorly drafted statute has caused immense frustration not only for school districts, but the parents who advocated for the legislation, the teachers who may become subject to video surveillance, and the legislators who have openly criticized the law for not expressing their intent.
It would probably be fair to add TEA’s Rulemaking Unit to that list. These are the folks in Austin who have been given the unenviable task of drafting rules to implement and administer the new law. Rulemaking can be incredibly contentious even when the underlying statute is well drafted. Because of the complications created by the language of SB 507, TEA has essentially been asked to not only implement the law, but “fix” some of the more controversial and ambiguous provisions. This may be impossible because the Commissioner’s rulemaking authority is expressly limited to adopting rules that are authorized by and consistent with statutory authority. In other words, the Commissioner cannot legally adopt a rule that is inconsistent with the plain meaning of the statute. Any action to adopt rules that impose additional burdens, conditions or restrictions in excess or inconsistent with those statutory provisions is unlawful and unenforceable.
As you may remember, the Commissioner requested an expedited opinion from the Texas attorney general regarding the interpretation of several ambiguous provisions in the statute in mid-March. Faced with a lack of response to this request, the Commissioner moved forward with issuing a set of proposed rules on April 8, 2016. If these rules had been adopted as proposed when the public comment period ended on May 9th, they were set to become effective on June 16, 2016. However, the rules were not adopted at the close of the public comment period. Rather, the last action taken by TEA regarding the proposed rules was to hold a public hearing regarding the proposed rules on May 19, 2016.
I spoke with a representative in TEA’s Rulemaking Unit earlier this week to get some input on the current status of the rule making process. My understanding is that TEA has just recently begun the process of reviewing and responding to the public comments and testimony that has been submitted. Once those comments have been reviewed, the Rulemaking Unit will present an analysis to the Commissioner and he will make a decision to either adopt or revise the rules as they were proposed in April.
Based on my conversation with TEA, I believe it is unlikely that this decision will be made prior to the end of June. If the proposed rules are adopted without change at that time, Texas Government Code §2001.036 imposes a 20-day waiting period before the rules become effective. This means that even if no changes are made, it would be extremely unlikely for the proposed rules to become effective before mid to late July.
On the other hand, if the Commissioner decides that the public comments merit changes, the Rulemaking Unit would revise the rules and then submit the revised proposed rules for publication. This, in turn, would trigger another public comment period. Assuming that the revised proposed rules are adopted when this public comment period ends (probably sometime in late July), they would become effective until 20 days later.
In short, at this time we simply do not know what rules might be adopted or when those rules might be effective.
Another factor that could further complicate and/or delay the adoption of rules is that request for an expedited attorney general opinion that was mentioned earlier. If the attorney general’s advice significantly contradicts the rules that have been developed, TEA could be required to revise them to cure any inconsistency. If this happens while the rules are in development and/or during the public comment period, it could delay the adoption of the rules. If a contradictory opinion is issued after the rules have been adopted, TEA has indicated that they would continue to enforce the rules as adopted while reviewing and/or developing a proposal for revision.
This uncertainty raises a number of important issues for districts with respect to implementing TEC 29.022. First, any benefit from developing, reviewing or adopting policy based on the currently proposed rules is entirely contingent on a number of unknown factors. That being said, the law itself will become effective at the beginning of the 2016-2017 school year. If the Commissioner has not adopted rules to implement the law at that time, each district would become the agency responsible for interpreting and implementing the statute. Consequently, each district would need to have policy in place prior to the beginning of the school year…but that policy would need to be aligned to each district’s interpretation of the statute itself rather than the proposed rules.
Given the tremendous amount of uncertainty involved, it may be prudent to wait until July to take any further action on adopting policies related to video surveillance. Based on information provided by TEA, there appears to be a good chance that we will know whether the current proposed rules will be adopted by the first full week of July. If the Commissioner indicates that TEA will move forward with adopting the proposed rules without change, it would be advisable to move forward with finalizing local policy to ensure it complies with the Commissioner’s rules with the goal of adopting the policy at the July or August Board meeting.
If the Commissioner proposes revised rules instead, we would recommend moving forward with developing policy that aligns with those proposed rules. Unfortunately, it is likely that any July Board meetings will have passed before the subsequent public comment period has expired. If revised rules are adopted at the end of the public comment period, districts would have the local policy ready for the August Board meeting. However, if TEA has not proposed, but not adopted rules prior to the August Board meeting, districts will still need to be ready to implement the new law at the beginning of the school year. This may mean making a decision as to whether to adopt a policy based on the revised proposed rules or a policy that is aligned solely to the District’s interpretation of TEC 29.022.
The attorneys at Leasor Crass, P.C. appreciate how frustrating it is to have so much uncertainty looming over an otherwise promising summer break. Please do not hesitate to contact us if you have questions or concerns as this situation continues to evolve.
by Dean Micknal
On November 30, 1975, President Gerald Ford signed into law the Education for All Handicapped Children Act (“Act”). One of the cornerstones of the Act was a requirement that all students with disabilities be educated to the maximum extent possible with their nondisabled peers. This “Least Restrictive Environment” (“LRE”) mandate has remained largely unchanged over the past 40 years, as the Act has transformed into the current version of the Individuals with Disabilities Education Act (“IDEA”).
Over the past five years approximately one-fifth of the special education due process hearings decided in Texas involved disputes relating to LRE. Thankfully, four decades of jurisprudence provides a pretty clear roadmap to help your district prevail in a dispute regarding this issue.
First, every decision made by an ARD Committee regarding student placement must be based on the student’s Individualized Education Program. Unless you time travel back to November 29, 1975, placement decisions based on disability (as opposed to an individual’s needs resulting from a disability) are not allowed.
Second, a regular education classroom on the student’s home campus, with appropriate supplementary aids and services to facilitate the placement, must be the first placement option considered by the ARD Committee. If you think the requirement to default to this “regular educational environment” conflicts with District administration being solely responsible for making decisions regarding the physical location in which a student receives instruction, you are correct. IDEA does provide school administration with the flexibility to assign a child to a particular school or classroom…but only if that determination is consistent with the ARD Committee’s decision regarding placement
Consequently, the ARD Committee must provide written evidence that clearly explains each and every decision to move a Student to a more restrictive placement. At a minimum, this documentation must include:
- a description of the ARD Committee’s consideration of educating the student in a general educational environment and the reason this option was rejected;
- a description of any previous efforts to educate the student in the regular educational environment and why those efforts were not successful;
- a description of the ARD Committee’s consideration of the potential harmful effects of removing the student from the regular educational environment;
- if applicable, a description of why the student’s behavior management program cannot be implemented in the general educational environment;
- a description of the instructional methods or the curriculum the student needs and why it cannot be implemented in the general educational environment; and
- a description of the student’s disabling condition(s) and educational needs and an explanation of why they require a more restrictive placement than the regular educational environment.
Third, compliance with the LRE mandate is an ongoing obligation. IDEA requires decisions regarding placement to be reviewed “at least annually.” This is because LRE must be based on a student’s individualized and ever changing needs as they are identified and addressed in the IEP.
Evidence of compliance with these requirements is crucial to prevailing in a dispute regarding placement. The attorneys at Leasor Crass, P.C. welcome the opportunity to help your District ensure continued compliance with this fundamental component of IDEA.
by Joe Tanguma
The United States Department of Education, Office of Special Education and Rehabilitative Services, issued a Dear Colleague letter on October 23, 2015 relating specifically to dyslexia, dyscalculia, and dysgraphia. The Office of Special Education and Rehabilitation Services (OSERS) issued this guidance after receiving input from parents, advocacy groups, and national disability organizations, who stated their belief that State and local educational agencies are reluctant to reference or use dyslexia, dyscalculia, and dysgraphia in evaluations, eligibility determinations, or in developing the individualized education program (IEP) under the IDEA. OSERS clarified in this Dear Colleague letter that any reluctance or refusal to consider a child with dyslexia, dyscalculia, or dysgraphia for possible evaluation, eligibility and an IEP under IDEA based solely on the label of the suspected disability was not supported by the IDEA and should not be used as a basis for denying consideration for special education services.
What Does this Mean for Us as a Practical Matter?
Dyslexia, dyscalculia, and dysgraphia are not taboo terms, prohibited from discussion, consideration, or reference under the Individuals with Disabilities in Education Act (IDEA). These conditions or diagnoses are not automatically disqualifying towards special education considerations, including those involving evaluations, eligibility, or Individualized Educational Program development and documentation made under the IDEA. Basically, schools should continue to consider the child’s individualized educational needs, without regard to the label presented, and understand that the U.S. Department of Education has confirmed that these conditions could qualify a child as one with a specific learning disability under the IDEA.
OSERS also clarified that the list of conditions provided under the IDEA’s definition of a “specific learning disability,” (which includes dyslexia, but not dyscalculia or dysgraphia), was not exclusive or an exhaustive list of those conditions which could qualify a child as a student with a specific learning disability.
On the other hand, OSERS did not state that these conditions serve as automatic qualifiers for special education services under the IDEA. Rather, the focus remains on the individualized, educational needs of the child, and schools should continue to consider whether or not the education of a child with dyslexia, dyscalculia, or dysgraphia can be met without the need for special education. To that end, OSERS reiterated that the IDEA does not dictate the services or accommodations to be provided to individual children based solely on the disability category in which the child has been classified, or the specific condition underlying the child’s disability classification.
OSERS acknowledged that for those students who may need additional academic and behavioral supports to succeed in a general education environment, schools may choose to implement a multi-tiered system of supports (MTSS), such as response to intervention (RTI) or positive behavioral interventions and supports (PBIS). OSERS clarified however that children who do not, or minimally, respond to interventions must be referred for an evaluation to determine if they are eligible for special education and related services, and those children who simply need intense short-term interventions may continue to receive those interventions. OSERS reminded educational agencies about its previous guidance specifying that a parent may request an initial evaluation at any time to determine if a child is a child with a disability under the IDEA, and the use of MTSS, such as RTI, may not be used to delay or deny a full and individual evaluation of a child suspected of having a disability.
ARD personnel should be made aware of this guidance as they meet to review and consider evaluations, eligibility and possible IEP development for students with dyslexia, dyscalculia, or dysgraphia so that they do not make statements or decisions that run contrary to OSERS guidance.
Finally, the guidance directed State educational agencies to review their policies and procedures to ensure that they were not prohibiting the use of the terms dyslexia, dyscalculia, or dysgraphia in special education determinations, so we may eventually see new proposed rules or guidance from the Texas Education Agency on this subject as well if it is determined to be necessary.
We are here to help!
If you find yourself dealing with these issues, please feel free to contact the attorneys at Leasor, Crass, P.C. We have the experience to help you navigate through this complicated process.
Thank you to the Leasor Crass team for providing the differentiated ARD training with a mock ARD and Due Process Hearing. Thank you to GPISD administrators and diagnosticians for being engaged in the intended learning. Thank you to the actors: New AP, Anne Hartfield – “very likable” (according to our MVP); general education teacher, Rachel Tedesco; very smart diagnostician, Amy McSwain; “very disrespectful” (according to our MVP); Special Education teacher, Donnie Bartlett – as the “take control” principal who always chairs the ARD; Jerrold Jackson – as himself, Lead SLP; Cynthia King – as herself, Lead LSSP; Rhonda Crass – as herself, GPISD Special Education attorney; and Christie Hobbs – as the Special Education Advocate. And, starring Dean Micknal as the MVP – Most Valuable Parent.
~ Grand Prairie ISD “Daily Message”
by Rhonda Crass
In a case out of Kentucky and decided by the Sixth Circuit Court of Appeals on August 18, 2014, N.W., by and through his parents, brought an action under the Individuals with Disabilities Education Act (“IDEA”) arguing that the Boone County Board of Education and an assortment of individual defendants (collectively, “the District”) had failed to offer a “free appropriate public education” (“FAPE”) to N.W., as required by the IDEA. The district court ruled against N.W., but it nonetheless ordered the District to reimburse N.W.’s parents for the costs incurred as a result of N.W. attending a private school while the litigation played out.
N.W. is a nine-year-old, autistic child, born in 2004, who has been diagnosed with apraxia. In 2007, N.W.’s parents enrolled him in the District’s schools when he was three years old. An Admissions and Release Committee (“ARC”) (ARD meeting in Texas) determined that N.W. qualified for special-education services and placed him at St. Rita’s School for the Deaf under an individual education program (“IEP”). At St. Rita’s, a private school in Cincinnati, N.W. participated in a special program for children with apraxia, which included learning sign language.
In June 2010, N.W.’s parents became dissatisfied with the program at St. Rita’s, removed N.W. from the school, and unilaterally placed him at Applied Behavioral Services (“ABS”), another private school in Cincinnati. N.W.’s parents requested that the District reimburse them for the tuition and transportation costs of N.W.’s attendance. The District convened an ARC in October 2010 and generated a new IEP. The District and N.W.’s parents, however, could not  agree on placement—the District maintained that it could educate N.W. in its schools; N.W.’s parents wanted N.W. to remain at ABS.
The district court, like the hearing officer, found that N.W. had not established that the District’s offer of placement at New Haven, a District elementary school with an autism-specific classroom, was inappropriate. However, the district court also found that N.W.’s operative placement under which he was actually receiving instruction at the time the dispute arose was ABS. Consequently, the district court ordered the hearing officer’s stay-put ruling to be upheld and the District to reimburse N.W.’s parents for the cost of N.W. attending ABS. The District appealed the ruling of the district court.
The IDEA states that “[it] does not require a local educational agency to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made [a FAPE] available to the child and the parents elected to place the child in such private school or facility.” 20 U.S.C. § 1412(a)(10)(C)(i). More specifically,  If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary school or secondary school without the consent of or referral by the public agency,  a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment  if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment. § 1412(a)(10)(C)(ii) (emphasis added).
Before the Sixth Circuit, N.W.’s parents offered little response to the statutory argument discussed above; rather, they contended that the more-specific “stay-put” provision, 20 U.S.C. § 1415(j), in the IDEA governs this case. Based on the text of § 1415(j) and its accompanying regulations, as well as the consequences of N.W.’s parents’ reading of the IDEA, the Court concluded that they are mistaken.
Section 1415(j) states that during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child, or, if applying for initial admission to a public school, shall, with the consent of the parents, be placed in the public school program until all such proceedings have been completed. See also 34 C.F.R. § 300.518. N.W.’s parents contended that stay-put is mandatory; that N.W.’s “current educational placement” is ABS; and that because the IDEA allows N.W. to stay at ABS, the district court was correct to order the District to reimburse N.W.’s parents for the cost of attendance and transportation while N.W.’s parents challenged this action. The trouble with N.W.’s parents’ argument (and the district court’s decision) is the second step.
The problem with this finding and the district court’s reliance upon older case law is the fact that the Department of Education has defined “placement” in its regulations. See 34 C.F.R. § 300.116. This regulation states:
(b) The child’s placement
(1) is determined at least annually;
(2) is based on the child’s IEP; and
(3) is as close as possible to the child’s home . . . .” § 300.116(b).
Moreover, “the placement decision . . . is made by a group of persons, including the parents, and other persons knowledgeable about the child, the meaning of the evaluation data, and the placement options.” § 300.116(a). These definitions indicate that the school district must, in some fashion, approve of the placement decision and that the parents cannot unilaterally decide upon which school will serve as the child’s “placement.” Otherwise, there would be no reason to promulgate a regulation stating that the parents must have some involvement in determining the child’s placement, see § 300.116(a), and that the placement will be “based on the child’s IEP,” see § 300.116(b).
Under this definition of “placement,” which requires the school district to approve of the educational setting at some point, ABS did not qualify as N.W.’s “current educational placement.” The District never agreed to N.W. attending ABS in an IEP, though the 2010 IEP notes that he was attending ABS. Moreover, the District maintained at all points in the dispute that New Haven Elementary, or another one of its schools that had an autism-specific classroom, would offer a FAPE. Thus, the district court erred in ordering the District to reimburse N.W.’s parents under the IDEA’s stay-put provision.
In summary, N.W. did not qualify for stay-put protection (and reimbursement) because his parents unilaterally enrolled him in ABS without the District’s approval. Under IDEA and its accompanying regulations, the District’s approval is necessary for N.W. to be “placed” at a school. Because N.W. was not “placed” at ABS, the district court erred in concluding that he qualified for stay-put reimbursement. Thus, this case offers some clarification to the “stay put” rule for school districts and parents.
If you have additional questions about “stay put” or other IDEA issues, please do not hesitate to contact one of the school law attorneys at Leasor Crass, P.C.
[The Supreme Court may be taking this situation up soon, see below:
In Ridley v. M.R., as Parents of E.R., (http://www2.ca3.uscourts.gov/opinarch/124137p.pdf) the parents unilaterally placed the student, the Hearing Officer validated the placement, but two years later the District won on appeal. The 3rd Circuit affirmed that decision. The parents sued for reimbursement to cover the private tuition and the 3rd Circuit held that the parents had secured the right to reimbursement when the Hearing Officer ruled in their favor notwithstanding the school district’s successful appeal of the administrative decision.
The District appealed to the Supreme Court, and a response to their Petition is due August 27th. SCOTUSblog says there is a circuit split regarding the stay-put provision…the D.C. & 6th Circuits say that stay-put terminates upon entry of final judgment by state or federal trial court in favor of the school district, but 3rd and 9th Circuits say it continues until completion of any subsequent appeal. http://www.scotusblog.com/case-files/cases/ridley-school-district-v-m-r-as-parents-of-e-r-a-minor/]