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Library of Congress Cataloging-in-Publication Data
Osborne, Allan G. author.
Special education and the law : a guide for
practitioners / Allan G. Osborne, Jr., Charles J. Russo.
— Third Edition.
pages cm
Includes bibliographical references and index.
ISBN 978-1-5063-6131-4 (pbk.)
1. Special education— and legislation—United States. I. Russo, Charles J. author. II. Title.
KF4209.3.O82 2014
344.73′0791—dc23 2013049068
This book is printed on acid-free paper
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Chapter 3
Related Services, Assistive Technology, and Transition Services
Key Concepts in This Chapter
• When Related Services Must Be Provided
• Types of Related Services Required
• Role of Assistive Technology Devices and Services
• Transitioning Students to Postschool Activities
The Individuals with Disabilities Education Act (IDEA)1 requires school boards to provide related, or supportive, services to students with disabilities who need such services to assist them in benefiting from their special education programs.2 The IDEA defines related services as transportation and such developmental, corrective, and supportive services as speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation (including therapeutic recreation), social work services, school nurse services, counseling services (including rehabilitation counseling), orientation and mobility services, and medical services for diagnostic and evaluation purposes.3 Thus, by definition, related services are adjuncts to special education services.
The list of related service is exemplary, not exhaustive, even though Congress placed limits on what can be related services. Medical services are exempted unless they are specifically for diagnostic or evaluative purposes. Further, the 2004 IDEA amendments clarified that the term related services does not include surgically implanted medical devices or their replacements.4 Moreover, the regulations specify that optimization of the functioning, maintenance, or replacement of these devices is beyond the scope of school board responsibilities.5 This does not mean that school personnel lack all responsibility for monitoring devices or making sure that they function properly.6 While these provisions were included to address board responsibilities regarding cochlear implants, they apply to other surgically implanted devices as well.7
In Irving Independent School District v. Tatro,
8 the Supreme Court placed two important limitations on the obligations of school boards to provide related services. First, the Court insisted that “to be entitled to related services, a child must be [disabled] so as to require special education.”9 The Court pointed out that absent a disability requiring special education, “the need for what otherwise might qualify as a related service does not create an obligation under the Act.”10 Second, the Court noted that only services necessary to aid children with disabilities in benefitting from special education must be provided, regardless of how easily such services could be furnished. Thus, students who receive free appropriate public educations (FAPEs) from their special education without related services are not entitled to receive such services. Even though the IDEA does not require school boards to provide related services to students who are not receiving special education, as is explained in more detail in Chapter 9, Section 504 may require boards to furnish such services as reasonable accommodations to students with disabilities that may not necessarily entitle them to special education.
Supportive services may be deemed related services if they assist students with disabilities to benefit from special education. Related services may be provided by persons of differing professional backgrounds with a variety of occupational titles.
The IDEA’s regulations define each of the identified related services in detail.11 To the extent that these definitions are not exhaustive, any services, other than those that are specifically exempted, may be considered related services if they can assist students with disabilities in benefiting from special education. For example, services such as artistic and cultural programs or art, music, and dance therapy could be related services under the appropriate circumstances.12 These related services may be provided by persons of differing professional backgrounds with a variety of occupational titles.
The 1990 IDEA amendments added definitions of assistive technology devices and services. The 1997 and 2004 versions of the IDEA clarified and expanded these definitions. Assistive technology devices are items, pieces of equipment, or product systems used to increase, maintain, or improve the functional capabilities of individuals with disabilities. These devices may include commercially available, modified, or customized equipment13 but, as with related services, do not include a surgically implanted medical device.14 Assistive technology services are designed to help individuals in the selection, acquisition, or use of assistive technology devices.15 Assistive technology services include evaluations of the needs of children, provision of assistive technology devices, training in their use, coordination of other services with assistive technology, and maintenance and repair of devices.16
Interestingly, assistive technology is not specifically included in the definition of either special education or related services, but does fit within the definition of special education as specially designed instruction, and within the definition of related services as a developmental, corrective, or supportive service. Rather than include assistive technology within either of these two definitions, Congress chose to create it as a category separate from both special education and related services. Accordingly, assistive technology can be a special education service, a related service, or simply a supplementary aid or service.17 This is significant because school boards have the duty to provide supplementary aids and services to students with disabilities to allow them to be educated in the least restrictive environment (LRE).18
At the same time, the IDEA requires school boards to provide transition services to students with disabilities to promote movement from school to postschool activities such as employment, vocational training, and independent living. Transition services include related services, instruction, community experiences, and the acquisition of daily living skills.19 School officials must include statements in the individualized education plans (IEPs) of students identifying needed transition services beginning before they turn 16 years of age.20
There has been much litigation, including two cases that reached the Supreme Court, over the related services provisions of the IDEA. Against this background, the first part of this chapter reviews and analyzes litigation over related services. The next two sections address the requirements for providing assistive technology and transition services. The final portion of the chapter offers guidelines for educational personnel in situations where school boards must provide related services or assistive technology.
Related Services
Figure 3.1 summarizes when related services are required. Subsequent sections within this part detail the case law surrounding the different kinds of services schools must make available.
Figure 3.1 When Are Related Services Required?
Related services are required for students with disabilities when
• They are necessary for students to gain access to special education programs or the services outlined in their IEPs.
• They are needed for students to remain physically in educational programs.
• They are necessary for students to make meaningful progress toward the goals and objectives of their IEPs.
• Students’ needs are so intertwined that they require integrated programs of special education and related services.
• Students’ progress toward the goals and objectives of their IEPs depends on the resolution of other needs.
Transportation
It almost goes without saying that students cannot benefit from their IEPs if they cannot get to school. For this reason, transportation is probably the most common related service that school boards offer to students with disabilities. Transportation is typically provided in district-owned and operated vehicles, in vehicles owned and operated by private service providers, and/or via public transportation; in rare instances, boards may enter into contracts with parents to transport their children to school. School officials need to make special transportation arrangements when students are unable to access their usual modes of transportation. The term transportation, as used in the IDEA and its regulations, embodies travel to and from school, between schools, and around school buildings. Specialized equipment, such as adapted buses, lifts, and ramps, is required when needed to provide the transportation.21
The term transportation includes transit from a house to a vehicle ….As important as this related service is, though, door-to-door transportation is required only when a student is unable to get to school without such assistance.
An early case from Rhode Island demonstrates that the term transportation includes transit from a house to a vehicle. When school officials refused to provide assistance for a child who, because he was physically challenged, was unable to get from his home to a school bus without help, his father drove him to school for a period of time. Once the child’s father could no longer take him to school, the child stopped attending classes. The situation was finally rectified, but the court, declaring that transportation clearly was the responsibility of the school committee,22 awarded the parents compensation for their efforts in taking their son to school.23 As important as this related service is, though, door-to-door transportation is required only when students are unable to get to school without such assistance.24
If IEP teams place students in private schools, then these children are entitled to transportation.25 Should students attend residential private schools, they must be transported between their homes and schools for usual vacation periods. Regardless, one court affirmed that a student was not entitled to additional trips home for therapeutic purposes even though improved family relations was a goal of his IEP.26 The court maintained that a hearing officer did not abuse his discretion in deciding that parents were not entitled to reimbursement for more than three annual round trips from their home in Florida to a treatment facility in Georgia, because the school board had met its obligation to provide transportation for the child.
Under the IDEA, an alteration in the delivery of related services can be a change in placement. As discussed in greater detail in Chapter 5, changes in placement occur when students’ programs are altered in such a way that their IEPs cannot be implemented as written or their learning is affected. Even so, in a case from Pennsylvania, the Third Circuit conceded that a minor adjustment to a child’s transportation plan did not constitute a change in placement.27 Recognizing that transportation could have an effect on a student’s learning, the court found that an adjustment that added 10 minutes to the child’s trip home from school did not impact his learning. At the same time, transportation arrangements cannot be unreasonable. For instance, a federal trial court in Virginia ordered board officials to make better arrangements for a student whose ride took more than 30 minutes even though she lived only six miles from her school.28
School boards may not be required to provide transportation when parents elect to send their children to schools other than the ones recommended by school personnel. In such a case, a state court in Florida declared that a board was not obligated to transport a student to a geographically distant facility after she was enrolled there at her parents’ request. The court observed that transportation was unnecessary, since the student could have received an appropriate education at a closer facility.29
In today’s world, many students do not return home after school; instead, they go to afterschool caretakers. In a case originating in Texas, the Fifth Circuit determined that students with disabilities are entitled to be transported to caretakers even when those caretakers live out of a district’s attendance boundaries.30 The court indicated that the parental request for transporting their son, who had multiple disabilities, to his caretaker was reasonable and did not place a burden on the board.
On the other hand, the Eighth Circuit reasoned that a special education student from South Dakota was not entitled to be dropped off at a day care center that was outside of a school’s attendance area. Here the school board’s policy for all students dictated that children could be dropped off only within their school’s attendance boundary. The court, viewing the board policy as facially neutral, adding that the parental request was based on her personal convenience and not her son’s educational needs, affirmed that the board did not violate the IDEA by refusing to transport the child to his day care center.31 More recently, the federal trial court in Maine reached the same outcome. The court agreed that a hearing officer and a federal magistrate properly denied a mother’s request that her son, who had a severe learning disability, be allowed to ride a public school bus home and be met by another adult, since she could not be there to meet him when he returned from school.32 The court specified that the mother was not entitled to have her request granted because it was motivated by her child care arrangements with her ex-husband, with whom she shared custody, rather than her son’s educational needs.
As reflected in the previous paragraph, divorced parents reach a variety of shared custody agreements. In some circumstances, children reside with each parent on a rotating basis under joint custody arrangements. In a case illustrating an arrangement of this type, where a father lived outside of a district’s boundaries, a commonwealth court in Pennsylvania commented that a school board was required to provide transportation on the weeks when the child lived with his mother but not on the weeks when he lived with his father.33 The court wrote that the additional requested transportation did not address the boy’s special needs, but rather served only to accommodate the parents’ domestic situation.
In addition to providing specialized equipment that may be needed to transport students safely, a case from Michigan demonstrates that school boards may have to provide aides on vehicles. A federal trial court ordered a board to provide a trained aide to attend a student, who was medically fragile, when he was being transported.34 The court thought that under the IDEA, students with disabilities were entitled to transportation and incidents thereto.
Counseling, Psychological, and Social Work Services
The IDEA’s regulations define counseling as a service provided by a qualified social worker, psychologist, guidance counselor, or other qualified person.35 The definition of psychological services includes psychological counseling,36 while the definition of social work services includes group and individual counseling.37 On the other hand, the regulations neither use nor define the term psychotherapy. This is important, because while boards in most public school systems provide students with in-house counseling, psychological services, and social work services, there are many situations that call for such services to be provided by an outside vendor. School district employees and families would benefit from clarity in this regard.
Counseling, psychological, and social work services clearly are required related services only when needed by a student with a disability to benefit from special education. These may be required as related services for students with emotional difficulties who may not be able to benefit from their special education programs until their emotional problems are addressed.
One of the controversies that developed over the medical exclusion clause of the related services mandate concerns psychotherapy. Counseling, psychological, and social work services are clearly required related services only when students with disabilities need them to benefit from special education. While psychotherapy can be classified as a psychological service, in some situations it falls within the medical exclusion. Whether psychotherapy is a psychological or medical service depends on individual state laws governing psychotherapy. Put another way, some state laws stipulate that only psychiatrists can provide psychotherapy, while other states allow clinical psychologists to provide psychotherapy. Insofar as psychiatrists are licensed physicians, psychotherapy is an exempted medical service in states that allow only psychiatrists to provide it.
The distinguishing criterion regarding whether psychotherapy is a related service or an exempted medical service is how it is defined in a state law, not by whom it is actually provided. In Illinois, for instance, where state law allows nonpsychiatric professionals to provide psychotherapy, a federal trial court decided that a school board was responsible for the costs of psychotherapy even though the psychotherapy was actually provided by a psychiatrist.38 The court ruled that the criterion, that schools were not required to provide services that must be performed by a physician, did not mean that services that could be provided by a nonphysician, but were in actuality provided by a physician, were excluded. Still, the court indicated that the board was obligated to pay for the services only to the extent of the costs of their being performed by a nonphysician.
Counseling, psychotherapy, or social work services may be required as related services for students with emotional difficulties who may be unable to benefit from their special education programs until their emotional problems are addressed. The Supreme Court of Montana, turning to the dictionary for a definition of the term psychotherapy, found that according to Webster’s, psychotherapy is a psychological service. Thus, the court treated psychotherapy as a related service.39 The federal trial court in New Jersey also categorized psychotherapy as a counseling or psychological service, pointing out that it was a required related service.40
Federal trial courts in Illinois41 and Massachusetts,42 along with the Third Circuit,43 agreed that psychotherapy is a required related service because it assists some children in benefiting from their educational programs. Further, in Illinois, a federal trial court mandated that although psychotherapy is related to mental health, it may be required before a child can derive benefits from education. Similarly, the Third Circuit was persuaded that psychotherapy was an essential service that allowed an emotionally disturbed student in New Jersey to benefit from his educational program.
Since counseling is generally not considered to be a medical service, it may not be an exempted service. For example, the federal trial court in Connecticut was of the opinion that psychological and counseling services that a student with disabilities needed to benefit from his special education program were not embraced within the exempted medical services clause.44 The court posited that insofar as the therapy services offered as part of a residential placement were essential to render the child educable, they were required related services.
An important element in the requirement to provide related services is that they must be necessary for students to benefit from special education services. In a case addressing this issue, the Fourth Circuit remarked that counseling services were not required for a student from Virginia who made great improvement under an IEP that did not include counseling.45
If a therapeutic service can be classified as psychiatric, courts are likely to declare that it falls within the medical exception. The federal trial court for the District of Columbia decreed that the school board was not required to pay for the residential component costs of a placement in a psychiatric hospital and school, because the primary reasons for the child’s placement were medical, not educational.46 In like fashion, a federal trial court in Illinois concluded that psychiatric services are exempted medical services, because psychiatrists are licensed physicians.47 At least four other courts agreed that insofar as psychiatric facilities are medical facilities, school boards are not required to pay for the services that they offer.48 By the same token, the federal trial court in Connecticut asserted that psychiatric supervision to manage a student’s medication regimen was an exempted medical service.49
Psychiatric and other medical services are required as related services when they are for diagnostic or evaluative purposes. In the first of two cases from Tennessee, a federal trial court held that an evaluation by a neurologist was a related service.50 Five years later, another court acknowledged that the limited medical services a student received in a residential rehabilitation facility could not have been used to characterize her entire program as medical.51 The court contended that because medical services were provided to monitor and adjust the child’s medication, they were for diagnostic and evaluative purposes. Similarly, the federal trial court in Connecticut, recognizing that a student had not made academic progress, ordered a school board to conduct a psychiatric evaluation to evaluate his need for counseling.52 Further, the federal trial court in Hawaii was of the view that hospitalization costs were a significant part of a student’s diagnosis and evaluation as having a disability. Even though the student was hospitalized in response to a medical crisis, the court directed state officials to pay for the hospitalization, because it was an integral part of her overall evaluation.53
Whether placement in a facility that provides psychiatric services is primarily for medical or educational reasons may affect the costs that school boards are required to pay. Two cases from the Ninth Circuit, resolved only months apart, illustrate this point. In Clovis Unified School District v. California Office of Administrative Hearings,54 where a student was admitted to an acute care psychiatric hospital when the residential school she attended could no longer control her behavior, her parents unsuccessfully asked their school board to pay for this placement. In comparing the placement to one for a student suffering from a physical illness, the court thought that it had been made for medical reasons. The court was further convinced that the student’s room and board costs were medically related, not educationally related, because the hospital did not provide educational services. In Taylor v. Honig,55 also from California, after a student was placed in a residential school and psychiatric hospital for assaulting a family member, the court found that the residential facility was a boarding school that had the capacity to offer necessary medical services. According to the court, since the placement was made for primarily educational reasons, it was appropriate under the IDEA.
Physical, Occupational, and Speech Therapy
Occupational therapy (OT) refers to services to improve, develop, or restore functions impaired or lost through illness, injury, or deprivation or to improve the ability of students to perform tasks for independent functioning.56 OT also includes services to prevent the impairment or loss of functions through early intervention.
The IDEA’s regulations define physical therapy (PT) simply as the services provided by a qualified physical therapist.57 Speech-language pathology includes the identification, diagnosis, and appraisal of speech or language impairments and the provision of appropriate services for the habilitation or prevention of communication impairments.58
A federal trial court in New York ordered a school board to provide OT over the summer months when it realized that a student would have regressed in the areas of upper body strength and ambulation skills.59 The court added that the child’s ability to perform classroom work and to function in the classroom would have been adversely affected without the summer therapy. Conversely, the federal trial court for the District of Columbia believed that a proposed placement for a student with multiple disabilities was inappropriate, since it did not provide for an integrated OT program as called for in her IEP.60 The court maintained that the child did not need the program because she would not have benefited from her special education program even with this service. Even so, the amount of OT that students receive must be sufficient to confer educational benefit. In a case addressing this issue, a federal trial court in California upheld a hearing officer’s order directing a school board to provide additional OT to a student who had delays in all areas of development.61
Many school boards use the services of OT therapy assistants to provide services. A federal trial court in Tennessee upheld this practice on the basis that the assistants were well trained and helped the child to make progress.62 In addition, the court suggested that school boards are not required to maximize a student’s gains.
In a case from Pennsylvania, the Third Circuit decided that PT is an important facilitator of classroom learning for some children.63 Noting that the IDEA calls for an education that provides meaningful benefit, the court observed that physical therapy is an essential prerequisite for learning for some students with severe disabilities.
Insofar as the inability to communicate can effectively interfere with learning, speech and language therapy, when needed, is considered a related service. Although there has been no major litigation involving the need for speech or language therapy, it is safe to say that courts would likely require its delivery. Most school boards provide extensive speech and language therapy services; in some states it is considered to be a special education service rather than a related service.
Recreation and Enrichment Programs
The IDEA specifically identifies recreation and therapeutic recreation as related services.64 The definition of recreation in the IDEA’s regulations includes assessment of leisure function, recreation programs in schools and community agencies, and leisure education, along with therapeutic recreation.65 Moreover, the IDEA’s regulations specify that school boards must provide nonacademic and extracurricular services and activities to the extent necessary to afford students with disabilities opportunities for participation equal to those given to their peers without disabilities.66 Nonacademic and extracurricular services and activities may include lunch, recess, athletics, recreational activities, special interest groups or clubs, employment, and many of the items listed as related services. These activities must be provided in inclusive settings to the maximum extent appropriate.67
If students with disabilities are unable to participate in general extracurricular programs, school officials may need to provide them with special activities.68 Also, students who meet the eligibility requirements for participation in general extracurricular programs cannot be denied access to them under Section 504 of the Rehabilitation Act.69 School officials may thus need to provide reasonable accommodations to allow students with disabilities to participate in general extracurricular programs. For example, courts may waive eligibility rules that might prevent students from participating due to their disabilities.70
School officials may need to provide reasonable accommodations to allow students with disabilities to participate in general extracurricular programs. If students with disabilities are unable to participate in general extracurricular programs, school officials may need to develop special activities for these children.
A state court in Michigan affirmed that a school board had to provide a summer enrichment program to a student with autism where testimony revealed that he needed a program that included outdoor activities.71 The court directed the board to act in judging that the requested program fell within the parameters of special education and related services since physical education is included in the definition of special education, and recreation is a related service.
In like fashion, a federal trial court in Ohio issued a preliminary injunction ordering a school board to include participation in interscholastic athletics in a student’s IEP. The court relied on evidence that the student’s participation in sports resulted in academic, physical, and personal progress.72 On the other hand, a state court in New York refused to obligate a board to provide an afterschool program when such participation was unnecessary for the student to receive a free appropriate public education (FAPE).73
School Nurse Services
According to the IDEA’s regulations, school nurse services are those performed by qualified school nurses and are designed to enable students with disabilities to receive a FAPE.74 There has been controversy over the provision of health-related services in the schools because of the medical exclusion clause. To the extent that a number of medical procedures can be performed by registered nurses, questions have arisen as to whether selected nursing services fall within the definition of school health services or are exempted medical services. Figure 3.2 clarifies the difference between health services (which are required) and medical services (which are not required), as defined by the IDEA and interpreted by the courts.
Absent a disability requiring special education, the need for related services does not create an obligation under the IDEA. School officials must provide only those services that are necessary to aid students in benefiting from special education.
The United States Supreme Court, in Irving Independent School District v. Tatro,75 held that catheterization was a required related service for a student in Texas who could not voluntarily empty her bladder due to spina bifida. Acknowledging that the student had to be catheterized every three to four hours, the Court pointed out that services designed to allow a child to remain in class during the school day, such as catheterization, are no less related to the effort to educate than those that allowed her to reach, enter, or exit the school. The Court was satisfied that insofar as the catheterization procedure could have been performed by a school nurse or trained health aide, Congress did not intend to exclude it as a medical service, thereby clarifying when related services must be provided to students with disabilities. The Court ruled that absent a disability requiring special education, the need for related services did not create an obligation under the IDEA and that school officials must provide only those services that are necessary to aid students in benefiting from special education. The Court emphasized that a life support service would not be a related service if it did not need to be provided during school hours.
Figure 3.2 Difference Between Medical and Health Services
Medical services are those that can legally be provided only by licensed physicians. Under the IDEA, school boards are not responsible for providing medical services except when such services are required for diagnostic or evaluative purposes as part of the multidisciplinary evaluations that students undergo in the process of deciding whether they are eligible for special education and related services.
Health services are those that can be performed by school nurses, trained health aides, or other trained laypersons. Typically, students receive these services as part of the school nursing services provided by their boards. Other health procedures are included as long as they do not, by law, have to be provided by licensed physicians.
The Ninth Circuit affirmed that the school board in Hawaii was obligated to provide a student with cystic fibrosis with health services attendant to a tracheotomy tube even though the tube became dislodged occasionally and needed to be reinserted and mucus had to be suctioned from her lungs periodically.76 Again, where these procedures could have been performed by a school nurse or trained layperson, the court treated them as required related services.
Pursuant to an order from a federal trial court in Illinois, school boards must also provide nursing services during transportation.77 Previously, a federal trial court in Michigan noted that a board was required to provide an aide on a school bus to attend to a medically fragile student.78 The court observed that the provision of an aide or other health professional did not constitute an exempted medical service.
It is well settled that services that can be provided by school nurses, health aides, or even trained laypersons fall within the IDEA’s mandated related services clause. Even so, many students who attend school are fragile due to medical conditions, requiring the constant presence of nurses. The question has arisen as to whether school boards are required to pay for the services of full-time nurses for single students. Courts, in the past, have disagreed over whether full-time nursing services were more akin to exempted medical services than to required health services.79
The Supreme Court settled the controversy over school nursing services in 1999 in Cedar Rapids Community School District v. Garret F. (Garret F.).80 In affirming that a school board in Iowa was required to provide full-time nursing services for a student who was quadriplegic, the Court reasoned that although continuous services may be more costly and may require additional school personnel, this did not render them more medical. Recognizing that cost was not a factor in the definition of related services, the Court concluded that even costly related services must be provided to help guarantee that students with significant medical needs are integrated into the public schools. Garret F. clearly has the potential to have a major impact on school board budgets in light of the costs associated with the delivery of nursing services, whether for one child or groups of students.81
Diagnostic and Evaluative Services
The proper diagnosis and evaluation of students suspected of having disabilities is an important component of the special education process. Medical evaluations can be part of that process. The IDEA makes it clear that medical services can be related services when used for that purpose.82
In a case from Tennessee, a federal trial court declared that a school board had the duty to pay for a pediatrician-ordered neurological and psychological evaluation for a student.83 School personnel had requested that the pediatrician evaluate the child, who had a seizure disorder, visual difficulties, and learning disabilities, after his behavior and school performance deteriorated. The pediatrician referred the child to a neurologist who subsequently referred him to a psychologist. When a dispute arose over who was responsible for paying for the neurological and psychological evaluations, the court maintained that insofar as the child’s needs were intertwined, these evaluations were necessary for him to benefit from his special education. In language that should be of interest to school officials elsewhere, the court explained that the child’s parents could have been required to use their health insurance to pay for the evaluations as long as they did not incur any costs in doing so. Since the parents’ policy placed a lifetime cap on psychological services that would have been reduced by the amount of the evaluation bill, the court decided that the board was responsible for payment. While no such cap existed for neurological services, the court indicated that the parents were required to use their insurance for that evaluation.
The term diagnostic and evaluative services does not refer only to assessments that may be conducted as part of initial evaluations. According to a federal trial court in Tennessee, the ongoing monitoring of a student’s condition could fall within the realm of diagnostic and evaluative services.84 The court pointed out that insofar as the medical services at issue, which were designed to monitor and adjust the student’s medication, were for diagnostic and evaluation purposes, the school board was responsible for paying for them.
As indicated, the Ninth Circuit upheld an order directing the school board in Hawaii to pay for hospitalization costs that were a significant part of a student’s diagnosis and evaluation as disabled.85 The dispute arose after the child’s stay in the hospital triggered, and was an integral part of, her diagnosis and evaluation. The court ascertained that preplacement medical costs limited to diagnosis and evaluation are recoverable where a student is subsequently found to have qualified for special education services.
Substance Abuse Prevention and Treatment
Conceding that Congress did not intend to create a federal claim for every activity or type of conduct that could impede the ability of students to take advantage of educational opportunities, a federal trial court in California refused to interpret drug prevention treatment as a related service under the IDEA.86 The case arose after a student who attended a private school ingested an illegal substance and his parents unsuccessfully alleged that educational officials tolerated the use of illegal drugs on campus.
School boards are not required to provide substance abuse programs under the related services mandate if these intervention programs follow a medical model.87 The federal trial court in New Jersey decreed that a substance abuse program does not fall within the domain of related services that must be provided under the IDEA, even though it would benefit learning.88 When a special education student who attended a private school was expelled for drug possession, officials informed his parents that their son could return if he attended a substance abuse program. After the board refused to pay for the program, the parents unsuccessfully filed suit. The court rejected the parental claim because the student was not entitled to public payment for the program, since it was medical to the extent that it consisted of psychiatric counseling, physical examinations, and administration of medication.
A substance abuse program that is not primarily medical could be a required related service. The IDEA’s regulations make it clear that insofar as counseling, psychological, and social work services are required related services, a substance abuse program primarily utilizing one of these services could be a required related service.
Habilitation Services
The Fourth Circuit affirmed that in-home habilitation services do not fall within the definitions of special education and related services.89 Parents had requested the services, which were primarily designed to help control their son’s behavior at home, when he returned to the family home in North Carolina after attending a residential program. The court noted that the child made educational progress without the requested services. On the other hand, a federal trial court in Georgia posited that vision therapy is a required related service because the student’s vision problems impacted his future ability to benefit from special education.90 In affirming the initial order, the Eleventh Circuit agreed that without the vision therapy, the child’s problems would have become much worse.
Cochlear Mapping
The IDEA now includes an exception to exclude surgically implanted medical devices or their replacements from its definition of related services.91 Following the passage of the amendments adding this exception, the U.S. Department of Education promulgated regulations excluding cochlear mapping from the definition of related services.92 Shortly after the implementation of those regulations, a federal trial court in Tennessee ruled that a school board was not required to pay for cochlear mapping, observing that the IDEA’s regulations made it clear that programming of cochlear implants was not a service that school boards must provide.93
In a suit challenging the regulations regarding cochlear mapping, the federal trial court in the District of Columbia insisted that the regulation did not contravene the clear meaning of the IDEA.94 The court acknowledged that Congress had not spoken directly to the question of whether cochlear mapping constituted a related service but, nevertheless, thought that the department was entitled to deference regarding its position, since it represented a permissible construction of the statute. The District of Columbia Circuit affirmed, agreeing that the regulations embodied a permissible construction of the IDEA, because they were rationally related to the underlying objectives of the statute.
Physical Plant Alterations
Boards may be required to alter the physical plants of schools in order to allow students with disabilities to participate fully in and benefit from their educational programs. Most of these alterations allow access to school buildings. A case from Texas reflects the notion that modifications may be required to allow students to remain in classrooms. A federal trial court ordered a board to provide an air-conditioned classroom for a student who, due to brain injuries that he suffered in an accident, could not regulate his body temperature and thus required a temperature-controlled environment at all times.95 While the board provided the student with an air-conditioned Plexiglas cubicle, and he achieved satisfactory academic progress, he had a limited ability to socialize and participate in group activities. The court pointed out that the use of the cubicle violated the LRE mandate, because it caused the student to miss out on the class participation and group interactions that were important to his education.
At the same time, boards are not required to make alterations to all school buildings within their districts in order to make them accessible to students with disabilities. In an illustrative case, the Eighth Circuit affirmed that a board in Minnesota complied with the IDEA by offering parents a placement for their daughter in an accessible school that was reasonably close to the family home.96 The parents filed suit on behalf of their daughter, who used a wheelchair, seeking to require the board to modify her neighborhood school to make it accessible. The record revealed that three other schools in the district were wheelchair accessible and that the board offered the parents a placement for their daughter in one that was four miles from her home. The court upheld this arrangement, recognizing that by busing the student to a nearby school, board officials provided her with a fully integrated education and that nothing in the IDEA required officials to place her in the school closest to her home.
Parent Training and Counseling
As defined in the IDEA’s regulations, parent training and counseling means assisting parents to understand the special needs of their children and provide them with information about child development.97 Courts sometimes order residential placements for students who require consistency and support that is not available in the home environment. Less restrictive placements can be appropriate if parents are trained to deal with their children appropriately in their homes, using techniques similar to those that are used at school. Yet, avoidance of a residential placement is not the sole criterion for providing parent training and counseling.
A federal trial court in Texas wrote that an appropriate placement could be provided within a public school setting for a student with severe disabilities if her parents received training and counseling, thereby averting the need for a residential placement.98 The court observed that the child required a highly structured educational program that needed to be maintained year-round. In order to preserve that structure after school hours, the court ordered board officials to provide the child’s parents with training in behavioral techniques. In addition, the court directed educational officials to offer counseling to help relieve the stress of the burdensome demands that the child’s disability placed on her parents. Similarly, a federal trial court in Alabama ordered a board to provide training and counseling to the parents of a student who exhibited academic and behavioral problems.99 Stating that the student’s overall IEP was not appropriate, the court noted that educators ignored a crucial component of a behavioral control program by failing to counsel and instruct the parents in how to reinforce the training the child received at school in their home.
As with all special education and related services, school boards are not required to provide an optimal level of parent training and counseling. Recognizing that a school board was not obligated to provide every possible service or the very best education that might be desired, a federal trial court in Texas found that an IEP that reduced the amount of scheduled at-home parent training sessions did not deny a child with multiple disabilities a FAPE.100
Along the same line, a federal trial court in Connecticut held that the IDEA did not require a school board to provide a 24-hour crisis plan, respite care for the family, and an in-home mentor in the IEP of a student who had a long history of behavior problems.101 The court agreed with a hearing officer that these services were not related services under the IDEA, and that they were not necessary since the student had made academic progress without them.
Residential Placements and Lodging
Many students with disabilities require placements in residential schools or facilities in order to receive a FAPE. In some cases, residential placements are called for, because children need instructional services on a round-the-clock basis in order to receive an appropriate education. In other situations, students who do not necessarily require 24-hour-per-day instruction must remain at such schools on a residential basis, since they are the only facilities that can provide an appropriate education and are not within commuting distance of the students’ homes. Under these circumstances, school boards must still pay for the room-and-board portion of residential placements, as such arrangements are considered to be a related service.
According to the IDEA’s regulations, if a residential program “is necessary to provide special education and related services to a child with a disability, the program, including nonmedical care and room and board, must be at no cost to the parents of the child.”102 This regulation applies whether the residential portion of the placement is needed for educational reasons or access reasons. When students are placed in residential facilities that have a psychiatric component, the medical and educational components often can be intricately intertwined. Nevertheless, in a case from Texas, the Fifth Circuit explained that courts must examine each part of placements and weed out the costs that are reimbursable from those that are not.103
Boards may be required to provide off-campus lodging to students with disabilities if appropriate arrangements cannot be made for them to live at their schools and the schools are located too far from home to commute.104 This can occur when the schools that students attend either do not offer residential components or do not have any room for children in their residential programs but have openings in their day programs.
Residential placements are not considered to be related services if their sole purpose is to provide confinement. Explaining that it stretches the IDEA too far to classify confinement as a related service, the Seventh Circuit decided that a student from Illinois whose problems were not primarily educational did not require a residential placement at public expense.105
Teacher Training
Realizing that the IDEA’s list of related services is not all-inclusive, the Supreme Court of South Dakota refused to order a school board to include specific teacher training in the IEP of a student with autism.106 In so doing, the court rejected the mother’s request to include a provision in her son’s IEP calling for his teachers to be trained in a specified instructional methodology. The court affirmed that insofar as teacher competency is in the control of school administrators, a parent cannot dictate how teachers are to be prepared or how their competency is to be measured.
Assistive Technology
Assistive technology may be provided as a special education service, a related service, or a supplementary aid and service. Assistive technology is required when it is necessary for students to receive FAPEs under the standard established by the Supreme Court in Board of Education of the Hendrick Hudson School District v. Rowley.107 Further, because assistive technology may allow many students with disabilities to benefit from education in less restrictive settings, it may be required under the IDEA’s LRE mandate. Still, school boards are not required to provide assistive technology when students are able to receive meaningful educational benefit, and thus a FAPE, without this service.108
Assistive technology may allow many students with disabilities to benefit from education in less restrictive settings.
IEP teams must consider whether children require assistive technology devices and services in order to receive FAPEs.109 If teams determine that students need assistive technology, then they must write this into the students’ IEPs. Even so, the IDEA does not require teams to document that they considered providing students with assistive technology devices and services but did not think that they were needed.
The IDEA specifically requires school boards to ensure that assistive technology devices and services are made available to students if either or both are required as part of the children’s special education, related services, or supplementary aids and services.110 The IDEA calls for the use of school-provided assistive technology devices in the homes of students if their IEP teams decide that they need access to assistive technology in order to receive a FAPE.111
In explanatory material accompanying the 1999 IDEA regulations, the Department of Education made it clear that school boards are not required to provide personal devices, such as eyeglasses, hearing aids, and braces that students would require regardless of whether they attended school.112 In one case the federal trial court in Connecticut ruled that a school board was not obligated to provide a myoelectric prosthesis for a student who was born with an amputated arm below her left elbow.113 Of course, nothing prohibits boards from providing students with these items. Further, based on federal regulations, students with disabilities are entitled to have access to any general technology that is available to peers who are not disabled. When students with disabilities require accommodations in order to use general technology, educators must make sure to provide these modifications.114
In an illustrative case, a federal trial court in Pennsylvania declared that a school board’s provision of assistive technology to a student with multiple disabilities was inadequate.115 The court was of the view that the student required a laptop computer with appropriate software but that school personnel wasted nearly a year before obtaining and setting up the device. Further, the court faulted the board’s chosen software program and keyboarding instruction. In Maryland, the federal trial court upheld a hearing officer’s order directing board officials to provide a student with appropriate software to use at home and school along with instruction about its use.116 Of course, school personnel often have a variety of options when selecting the type of assistive technology to provide for students. As with the delivery of special education services, the choice of methodology is up to educators.117
A case from New York highlights the point that an assistive technology device should aid students in receiving a FAPE by mitigating the effects of their disabilities but should not circumvent the learning process. Although a student with learning disabilities that affected his ability in mathematics was allowed to use a calculator, educators denied his request to use a more advanced calculator on the ground that doing so would have circumvented the learning process. The Second Circuit affirmed a New York hearing offer’s adjudication that officials provided the student with appropriate assistive technology and that the more advanced calculator was not needed.118
In order to provide appropriate assistive technology, school personnel must conduct timely evaluations to assess student needs.119 An assistive technology evaluation should identify students’ areas of need and assess whether assistive technology is needed to provide educational benefits.120 On the other hand, since assistive technology is required only when needed for students to receive a FAPE, it is unnecessary to assess children for assistive technology when it is clear that they can receive meaningful educational benefit without assistive technology.121
School boards have the duty to provide assistive technology, when needed, and must train all stakeholders to use the devices. However, boards cannot be rendered liable if students fail to take advantage of what has been offered. Courts have refused to impose liability on boards when educators supply appropriate assistive technology but students do not use the devices or services.122 Even so, it is important for boards to provide appropriate training for students and teachers in the use of devices, assist them in using technology properly, and provide follow-up support. If students fail to use the supplied technology due to a lack of training, boards will be accountable.
Transition Services
Pursuant to the IDEA, school boards must provide transition services to students with disabilities in order to facilitate their passages from school to postschool activities.123 Transition services not only involve instruction and training but may also encompass related services.124 While transition plans must be included in the IEPs of all students once they reach the age of 16, the First Circuit affirmed that this requirement does not mandate a stand-alone plan.125 The court agreed that an IEP developed by a school in New Hampshire that integrated transition services throughout a child’s program met the IDEA’s standard.
The federal trial court in Connecticut reasoned that a 20-year-old student was entitled to instruction in community and daily living skills because this instruction fell within the ambit of transition services.126 In Pennsylvania, a federal trial court, observing that transition services should be designed to prepare a student for life outside the school system, recognized that providing him with only vocational evaluations and training was insufficient, as these services did not meet all of his needs.127
In Hawaii, the federal trial court approved a coordinated set of activities that were clearly designed to promote a student’s movement from school to postschool activities. These activities, which were written into the student’s IEP, were aimed at assisting him in completing high school, becoming part of his community, exploring careers and colleges, and meeting with vocational counselors.128 Similarly, a federal trial court in Louisiana found that transition plans detailing desired adult outcomes, including school action steps and family action steps, were appropriate.129
A federal trial court in Wisconsin approved an IEP containing detailed transition statements, including suggested courses of study, instruction, employment, postschool adult living, daily living, community experiences, functional vocational assessments, and related services. Conversely, the federal trial court in Hawaii rejected a transition plan that failed to include measurable postsecondary goals and did not include a statement of transition services needed to assist the student in reaching those goals as failing to comply with the IDEA’s requirements.130
Frequently Asked Questions
Q: Medical services are exempted from the related services provision of the IDEA. When do health-related services become medical services?
A: Medical services, by definition, are those that by law, can be provided only by licensed physicians. State law is important in this regard since it typically dictates the requirements for persons who provide specified services. For example, in some states only psychiatrists may provide psychotherapy while in others clinical psychologists or licensed clinical social workers may do so.
Q: Why are school boards required to provide health services?
A: Health services may be equated to modifications to physical plants that allow students with disabilities to access educational programs: Many students cannot be physically present in classrooms without these services. For instance, students who require catheterization every three to four hours may be unable to attend school for a typical six-hour day unless school officials provide catheterization.
Q: Are school boards required to provide substance abuse programs to students with disabilities who have drug or alcohol problems?
A: Since school boards are required to provide counseling and social work services, substance abuse programs utilizing counseling or social work models could be required as a related service. However, boards are not responsible for any such programs that follow a medical model.
Q: When are school boards obligated to provide special transportation for students with disabilities?
A: School boards must provide special transportation arrangements when the disabilities of students call for such services. If students are able to access regular transportation, special transportation is not required. For example, students with hearing impairments, under most circumstances, should be able to ride regular school buses. On the other hand, students in wheelchairs may need vehicles equipped to accommodate their wheelchairs.
Q: Are school boards required to provide transportation to day care centers or other afterschool caretakers?
A: School boards are required to provide transportation to day care centers or other afterschool caretakers for students with disabilities to the same extent that they provide such transportation to students who are not disabled. Boards should develop policies regarding transportation to locations other than the homes of students. School officials must apply these policies equally to all students, regardless of the students’ disability status.
Q: Are school boards required to provide students with special extracurricular activities?
A: Under Section 504, students with disabilities are entitled to access regular extracurricular activities as long as they are otherwise qualified to participate in them with reasonable accommodations. If participation in extracurricular activities assists students in benefiting from their special education programs, such activities can be a required related service. School officials may need to provide special programs if students are unable to participate in regular extracurricular offerings.
Q: Under what circumstances are school boards required to provide assistive technology to students with disabilities?
A: School boards are required to provide assistive technology when it is necessary for students to receive educational benefit from their special education programs. When boards are able to provide FAPEs without assistive technology, they are not required to add assistive technology to student IEPs.
Q: What types of transition services are school boards required to provide to students over the age of 16?
A: The purpose of transition services is to help students with disabilities move from school to postschool activities. As with special education and related services, the provision of transition services is individualized and must be tailored to the unique needs of each individual student. Transition plans should include goals and objectives along with the specific services to be provided to meet these goals and objectives.
Endnotes
1. 20 U.S.C. §§ 1400–1482 (2012). The IDEA’s regulations can be found at Assistance to the States for the Education of Children with Disabilities, 34 C.F.R. §§ 300.1–300.818 (2013).
2. 20 U.S.C. §§ 1400(c)(5)(D), (d)(1)(A), 1401(3)(A)(i).
3. 20 U.S.C. § 1401(26)(A).
4. 20 U.S.C. § 1401(20)(B).
5. 34 C.F.R. § 300.34(b).
6. 34 C.F.R. § 300.34(b)(2).
7. Russo, C. J., Osborne, A. G., & Borreca, E. A. (2006). What’s changed? A side-by-side analysis of the 2006 and 1999 Part B regulations. Horsham, PA: LRP Publications.
8. 468 U.S. 883 (1984).
9. Id. at 894.
10. Id.
11. 34 C.F.R. § 300.34.
12. See, e.g., K.C. ex rel. Her Parents v. Nazareth Area School District, 806 F. Supp. 2d 806 (E.D. Pa. 2011) (finding that the board had provided appropriate executive functioning coaching for the student’s needs).
13. 20 U.S.C. § 1401(1)(A).
14. 20 U.S.C. § 1401(1)(B).
15. Osborne, A. G. (2012). Providing assistive technology to students with disabilities under the IDEA. Education Reporter, 280, 519–533.
16. 20 U.S.C. § 1401(2).
17. 34 C.F.R. § 300.105(a).
18. 20 U.S.C. §§ 1401(33), 1412(a)(5).
19. 20 U.S.C. § 1401(34).
20. 20 U.S.C.A. § 1414(d)(1)(A)(i)(VIII).
21. 34 C.F.R. § 300.34(c)(16)(iii).
22. In several New England states, such as Rhode Island, school boards are known as school committees.
23. Hurry v. Jones, 560 F. Supp. 500 (D.R.I. 1983), affirmed in part, reversed in part 734 F.2d 879 (1st Cir. 1984). See also District of Columbia v. Ramirez, 377 F. Supp. 2d 63 (D.D.C. 2005) (directing the board to provide an aide to convey a student from his apartment to his school bus).
24. Malehorn v. Hill City School District, 987 F. Supp. 772 (D.S.D. 1997).
25. Union School District v. Smith, 15 F.3d 1519 (9th Cir. 1994).
26. Cohen v. School Board of Dade County, 450 So. 2d 1238 (Fla. Dist. Ct. App. 1984).
27. DeLeon v. Susquehanna Community School District, 747 F.2d 149 (3d Cir. 1984).
28. Pinkerton v. Moye, 509 F. Supp. 107 (W.D. Va. 1981).
29. School Board of Pinellas County v. Smith, 537 So. 2d 168 (Fla. Dist. Ct. App. 1989).
30. Alamo Heights Independent School District v. State Board of Education, 790 F.2d 1153 (5th Cir. 1986).
31. Fick ex rel. Fick v. Sioux Falls School District, 337 F.3d 968 (8th Cir. 2003).
32. Ms. S. ex rel. L.S. v. Scarborough School Committee, 366 F. Supp. 2d 98 (D. Me. 2005).
33. North Allegheny School District v. Gregory P., 687 A.2d 37 (Pa. Commw. Ct. 1996).
34. Macomb County Intermediate School District v. Joshua S., 715 F. Supp. 824 (E.D. Mich. 1989).
35. 34 C.F.R. § 300.34(c)(2).
36. 34 C.F.R. § 300.34(c)(10)(v).
37. 34 C.F.R. § 300.34(c)(14)(ii).
38. Max M. v. Thompson, 566 F. Supp. 1330 (N.D. Ill. 1983), 585 F. Supp. 317 (N.D. Ill. 1984), 592 F. Supp. 1437 (N.D. Ill. 1984), 592 F. Supp. 1450 (N.D. Ill. 1984), 629 F. Supp. 1504 (N.D. Ill. 1986).
39. In re A Family, 602 P.2d 157 (Mont. 1979).
40. T.G. and P.G. v. Board of Education of Piscataway, 576 F. Supp. 420 (D.N.J. 1983).
41. Gary B. v. Cronin, 542 F. Supp. 102 (N.D. Ill. 1980).
42. Doe v. Anrig, 651 F. Supp. 424 (D. Mass. 1987).
43. T.G. and P.G. v. Board of Education of Piscataway, 576 F. Supp. 420 (D.N.J. 1983), affirmed 738 F.2d 425 (3d Cir. 1984).
44. Papacoda v. State of Connecticut, 528 F. Supp. 68 (D. Conn. 1981).
45. Tice v. Botetourt County School Board, 908 F.2d 1200 (4th Cir. 1990). See also W.T. and K.T. ex rel. J.T. v. Board of Education of School District of New York, 716 F. Supp. 2d 270 (S.D.N.Y. 2010) (deciding that a child did not require counseling to make academic progress).
46. McKenzie v. Jefferson, EHLR 554:338 (D.D.C. 1983).
47. Darlene L. v. Illinois Board of Education, 568 F. Supp. 1340 (N.D. Ill. 1983).
48. Tice v. Botetourt County School Board, 908 F.2d 1200 (4th Cir. 1990); Clovis Unified School District v. California Office of Administrative Hearings, 903 F.2d 635 (9th Cir. 1990); Doe v. Anrig, 651 F. Supp. 424 (D. Mass. 1987); Metropolitan Government of Nashville and Davidson County v. Tennessee Department of Education, 771 S.W.2d 427 (Tenn. Ct. App. 1989).
49. M.K. ex rel. Mrs. K. v. Sergi, 554 F. Supp. 2d 201 (D. Conn. 2008).
50. Seals v. Loftis, 614 F. Supp. 302 (E.D. Tenn. 1985).
51. Brown v. Wilson County School Board, 747 F. Supp. 436 (M.D. Tenn. 1990).
52. J.B. v. Killingly Board of Education, 990 F. Supp. 57 (D. Conn. 1997).
53. Department of Education, State of Hawaii v. Cari Rae S., 158 F. Supp. 2d 1190 (D. Haw. 2001).
54. 903 F.2d 635 (9th Cir. 1990).
55. 910 F.2d 627 (9th Cir. 1990).
56. 34 C.F.R. § 300.34(c)(6).
57. 34 C.F.R. § 300.34(c)(9).
58. 34 C.F.R. § 300.34(c)(15).
59. Holmes v. Sobol, 690 F. Supp. 154 (W.D.N.Y. 1988).
60. Kattan v. District of Columbia, 691 F. Supp. 1539 (D.D.C. 1988).
61. Glendale Unified School District v. Almasi, 122 F. Supp. 2d 1093 (C.D. Cal. 2000).
62. Metropolitan Nashville and Davidson County School System v. Guest, 900 F. Supp. 905 (M.D. Tenn. 1995).
63. Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171 (3d Cir. 1988).
64. 20 U.S.C. § 1401(26)(A).
65. 34 C.F.R. § 300.34(c)(11).
66. 34 C.F.R. § 300.107.
67. 34 C.F.R. § 300.117.
68. See Dear Colleague Letter, Assistant Secretary for Civil Rights, U.S. Department of Education, available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.pdf.
69. Rehabilitation Act, Section 504, 29 U.S.C. § 794 (2006).
70. Osborne, A. G., & Battaglino, L. (1996). Eligibility of students with disabilities for sports: Implications for policy. Education Reporter, 105, 379–388.
71. Birmingham and Lamphere School Districts v. Superintendent of Public Instruction, 328 N.W.2d 59 (Mich. Ct. App. 1982).
72. Kling v. Mentor Public School District, 136 F. Supp. 2d 744 (N.D. Ohio, 2001). See also Independent School District No. 12, Centennial v. Minnesota Department of Education, 788 N.W.2d 907 (Minn. 2010) (directing an IEP team to evaluate whether an extracurricular or nonacademic activity was appropriate for a student with disabilities and which supplementary aids and services were appropriate and necessary for participation in these activities).
73. Roslyn Union Free School District v. University of the State of New York, State Education Department, 711 N.Y.S.2d 582 (N.Y. App. Div. 2000).
74. 34 C.F.R. § 300.34(c)(13).
75. 468 U.S. 883 (1984).
76. Department of Education, State of Hawaii v. Katherine D., 531 F. Supp. 517 (D. Haw. 1982), affirmed 727 F.2d 809 (9th Cir. 1983). Hawaii has only one school board for the entire state.
77. Skelly v. Brookfield LaGrange Park School District 95, 968 F. Supp. 385 (N.D. Ill. 1997).
78. Macomb County Intermediate School District v. Joshua S., 715 F. Supp. 824 (E.D. Mich. 1989).
79. Osborne, A. G. (1999). Supreme Court rules that schools must provide full-time nursing services for medically fragile students. Education Reporter, 136, 1–14.
80. 526 U.S. 66 (1999).
81. For a commentary on this case see Russo, C. J. (1999). Cedar Rapids Community School District v. Garret F.: School districts must pay for nursing services under the IDEA. School Affairs, 65(6), 35–38.
82. 34 C.F.R. § 300.34(c)(5).
83. Seals v. Loftis, 614 F. Supp. 302 (E.D. Tenn. 1985).
84. Brown v. Wilson County School Board, 747 F. Supp. 436 (M.D. Tenn. 1990).
85. Department of Education, State of Hawaii v. Cari Rae S., 158 F. Supp. 2d 1190 (D. Haw. 2001).
86. Armstrong ex rel. Steffensen v. Alicante School, 44 F. Supp. 2d 1087 (E.D. Cal. 1999).
87. Wenkart, R. D. (2000). Juvenile offenders: Residential placement and special education. Education Reporter, 144, 1–13.
88. Field v. Haddonfield Board of Education, 769 F. Supp. 1313 (D.N.J. 1991).
89. Burke County Board of Education v. Denton, 895 F.2d 973 (4th Cir. 1990).
90. DeKalb County School District v. M.T.V. ex rel. C.E.V., 413 F. Supp. 2d 1322 (N.D. Ga. 2005), affirmed 164 F. App’x 900 (11th Cir. 2006).
91. 20 U.S.C. § 1401(20)(B).
92. 34 C.F.R. § 300.34(b).
93. A.U. ex rel. N.U. and B.U. v. Roane County Board of Education, 501 F. Supp. 2d 1134 (E.D. Tenn. 2007).
94. Petit v. U.S. Department of Education, 578 F. Supp. 2d 145 (D.D.C. 2008), 756 F. Supp. 2d 11 (D.D.C. 2010), affirmed 675 F.3d 769 (D.C. Cir. 2012).
95. Espino v. Besteiro, 520 F. Supp. 905 (S.D. Tex. 1981).
96. Schuldt v. Mankato Independent School District No. 77, 937 F.2d 1357 (8th Cir. 1991).
97. 34 C.F.R. § 300.34(c)(8).
98. Stacey G. v. Pasadena Independent School District, 547 F. Supp. 61 (S.D. Tex. 1982), vacated and remanded on other grounds 695 F.2d 949 (5th Cir. 1983).
99. Chris D. v. Montgomery County Board of Education, 753 F. Supp. 922 (M.D. Ala. 1990). See also P.K. and T.K. ex rel. S.K. v. New York City Department of Education, 819 F. Supp. 2d 90 (E.D.N.Y. 2011) (declaring that not providing parent training and counseling to the parents of a student with severe autism was likely to lead to regression).
100. Clear Creek Independent School District v. J.K., 400 F. Supp. 2d 991 (S.D. Tex. 2005).
101. M.K. ex rel. Mrs. K. v. Sergi, 554 F. Supp. 2d 201 (D. Conn. 2008).
102. 34 C.F.R. § 300.104.
103. Richardson Independent School District v. Michael Z., 580 F.3d 286 (5th Cir. 2009).
104. Union School District v. Smith, 15 F.3d 1519 (9th Cir. 1994); Ojai Unified School District v. Jackson, 4 F.3d 1467 (9th Cir. 1993).
105. Dale M. v. Board of Education of Bradley-Bourbonnais High School District No. 307, 237 F.3d 813 (7th Cir. 2001).
106. Sioux Falls School District v. Koupal, 526 N.W.2d 248 (S.D. 1994).
107. 458 U.S. 176 (1982).
108. Smith v. District of Columbia, 846 F. Supp. 2d 197 (D.D.C. 2012); J.C. ex rel. Mr. and Mrs. C. v. New Fairfield Board of Education, 2011 WL 1322563 (D. Conn. 2011); High v. Exeter Township School District, 2010 WL 363832 (E.D. Pa. 2010); School Board of Lee County v. M.M. ex rel. M.M.II, 2007 WL 983274 (M.D. Fla. 2007).
109. 34 C.F.R. § 300.324(a)(2)(v). For a comprehensive treatment of this topic, see Osborne, A. G. (2012). Providing assistive technology to students with disabilities under the IDEA. Education Reporter, 280, 519–533.
110. 34 C.F.R. § 300.105(a).
111. 34 C.F.R. § 300.105(b).
112. Assistance to the States for the Education of Children with Disabilities: Appendix B., 64 Fed. Reg. 12,405, 12,540 (Mar. 12, 1999).
113. J.C. ex rel. Mr. and Mrs. C. v. New Fairfield Board of Education, 2011 WL 1322563 (D. Conn. 2011).
114. Id.
115. East Penn School District v. Scott B., 1999 WL 178363 (E.D. Pa. 1999).
116. Board of Education of Harford County v. Bauer, 2000 WL 1481464 (D. Md. 2000).
117. Miller v. Board of Education of the Albuquerque Public Schools, 455 F. Supp. 2d 1286 (D.N.M. 2006), affirmed 565 F.3d 1232 (10th Cir. 2009).
118. Sherman v. Mamaroneck Union Free School District, 340 F.3d 87 (2d Cir. 2003).
119. Woods ex rel. T.W. v. Northport Public Schools, 2011 WL 1230813 (W.D. Mich. 2011), affirmed 487 F. App’x 968 (6th Cir. 2012); Jaccari J. v. Board of Education of Chicago, District N. 209, 690 F. Supp. 2d 687 (N.D. Ill. 2010); Blake C. ex rel. Tina F. v. Department of Education, State of Hawaii, 593 F. Supp. 2d 1199 (D. Haw. 2009); Kevin T. v. Elmhurst Community School District No. 205, 2002 WL 433061 (N.D. Ill. 2002); School Board of Independent School District No. 11 v. Pachl, 2002 WL 32653752 (D. Minn. 2002).
120. A.L. ex rel. L.L. v. Chicago Public School District No. 299, 2011 WL 5828209 (N.D. Ill. 2011).
121. Grant ex rel. Sunderlin v. Independent School District No. 11, 2005 WL 1539805 (D. Minn. 2005).
122. T.G. ex rel. Mr. & Mrs. T.G. v. Midland School District, 848 F. Supp. 2d 902 (C.D. Ill. 2012); C.G. ex rel. E.B. v. Pittsfield Central School District, 2010 WL 1533392 (W.D.N.Y. 2010); Schroll v. Board of Education Champaign Community Unit School District #4, 2007 WL 2681207 (C.D. Ill. 2007).
123. 20 U.S.C. § 1414(d)(1)(A).
124. 20 U.S.C. § 1401(34); 34 C.F.R. § 300.43.
125. Lessard v. Wilton Lyndeborough Cooperative School District, 518 F.3d 18 (1st Cir. 2008).
126. J.B. v. Killingly Board of Education, 990 F. Supp. 57 (D. Conn. 1997).
127. East Penn School District v. Scott B., 1999 WL 178363 (E.D. Pa. 1999).
128. Browell v. LeMahieu, 127 F. Supp. 2d 1117 (D. Haw. 2000).
129. Pace v. Bogulusa City School Board, 137 F. Supp. 2d 711 (E.D. La. 2001), affirmed 325 F.3d 609 (5th Cir. 2003).
130. Carrie I. ex rel. Greg I. v. Department of Education, State of Hawaii, 869 F. Supp. 2d 1225 (D. Haw. 2012).
Due Process Procedures for Evaluation, Development of IEPs, and Placement
Key Concepts in This Chapter
• Requirements for Student Evaluation and Assessment
• Process of Developing IEPs
• IDEA’s Status Quo Provision
The Individuals with Disabilities Education Act (IDEA)1 is unique in providing an elaborate system of procedural due process safeguards to ensure that students with disabilities are properly identified, evaluated, and placed according to its dictates.2 The IDEA’s safeguards are designed to make parents and/or guardians equal partners with school officials in the education of their children. Never before has the law afforded parents such explicit rights to protect the education of their children.
The IDEA requires school officials to work with parents to develop individualized education programs (IEPs) for all children in need of special education and related services.3 In fact, the IDEA’s regulations add that states, through local school boards or other agencies and officials, must provide parents of students with disabilities with opportunities to participate in the development of IEPs for their young.4
Prior to the passage of the IDEA, school personnel typically made placement decisions for students with disabilities without considering either their wishes or those of their parents. Unfortunately, allowing school personnel to make unilateral placement decisions for students with disabilities, especially those who were difficult to educate, led to the exclusion of significant numbers of these children from many school activities.
The IDEA and its regulations ensure that school officials cannot act without parental knowledge or informed parental consent prior to conducting evaluations5 or making initial placements.6 Moreover, the IDEA specifies that parental consent for initial evaluations cannot be treated as consent for placements and receipt of special education and related services.7 The IDEA also directs educators to provide parents with prior written notice whenever they propose or refuse to initiate changes after making original placements.8
The importance of procedural compliance cannot be overemphasized because the Supreme Court ruled in Board of Education of the Hendrick Hudson Central School District v. Rowley that an educational program is not appropriate unless it is developed according to the IDEA’s procedures.
This chapter examines the IDEA’s due process mechanisms relating to the identification, evaluation, and placement of students with disabilities. The importance of procedural compliance cannot be overemphasized because the Supreme Court ruled in Board of Education of the Hendrick Hudson Central School District v. Rowley
9 that an educational program is not appropriate unless it is developed according to the IDEA’s procedures.
Evaluation Procedures
The IDEA, in an approach that makes it different from other education-related laws, places an affirmative obligation on states, through local school boards and their officials, to establish procedures to ensure that all children with disabilities are properly identified and evaluated to determine whether they are entitled to receive special education and related services.10 This means that officials must conduct full initial evaluations before providing students with special education and related services.11 Once students are identified as being in need of special education and related services, their IEPs must be reviewed at least annually12 and reevaluated at least once every three years unless their parents and local school officials agree that re-evaluations are unnecessary.13
Due to ongoing difficulties with regard to the overrepresentation of minority students,14 the current version of the IDEA includes a provision addressing the status of children based on race and ethnicity that is worth reviewing before turning to the substance of the law’s evaluation procedures. The IDEA requires states and local school board officials to develop policies and procedures to prevent the overidentification or disproportionate representation by race and ethnicity of children with disabilities.15 In addition, this provision obligates educators to record the number of students from minority groups who are in special education classes and to provide early intervention services for children in groups deemed to be overrepresented.
In a related provision, the IDEA directs educators to examine data, including information disaggregated by race and ethnicity, to consider whether there are significant discrepancies in the rate of long-term suspensions and expulsions of student with disabilities.16 The IDEA further mandates that officials review, and if appropriate, revise, policies, procedures, and practices related to the implementation of IEPs. At the same time, the IDEA obligates educators to use positive behavioral interventions and supports as well as procedural safeguards to ensure their compliance with the law17 in avoiding this problem.
According to the IDEA, school officials must complete evaluations of students suspected of having disabilities within 60 days of when they receive informed parental consent or within the parameters of state guidelines if states establish their own rules.18 Depending on how state laws are worded, education officials may be required to conduct evaluations over summer vacation periods if necessary to complete them within the prescribed time limits. For instance, a federal trial court in Maryland, where state law required evaluations to be completed within 45 calendar days of referrals, reasoned that board officials violated a student’s rights by not conducting an evaluation within the appropriate time frame.19 The record indicated that the child’s mother requested an evaluation in May but officials informed her that they could not complete it during the summer.
The IDEA’s 60-day rule does not apply if “the parent of a child repeatedly fails or refuses to produce the child for the evaluation.”20 Even if parents refuse to respond to requests to provide consent for initial evaluations or to services, educational officials may still continue with evaluations as long as they follow the procedures identified in the IDEA.21 In another clarification, a regulation specifies that generalized screenings employed by educators for instructional purposes, such as at the beginning of terms to evaluate the ability of students in classes, cannot be considered evaluations for special education and related services.22
In conducting evaluations, school officials must “use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent,”23 examining students “in all areas of suspected disability”24 that may assist in determining whether they are eligible for IDEA services. Put another way, since the evaluation process needs to be individualized and multidisciplinary, no single procedure can be the sole criterion for determining eligibility or placement.25 More specifically, all testing and evaluation materials and procedures must be
selected and administered so as not to be discriminatory on a racial or cultural basis; are provided and administered in the language and form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally, unless it is not feasible to so provide or administer; are used for purposes for which the assessments or measures are valid and reliable; are administered by trained and knowledgeable personnel; and are administered in accordance with any instructions provided by the producer of such assessments.26
If parents are dissatisfied with the results of school board assessments, they have the right to seek independent evaluations of their children at public expense.27 However, parents are not entitled to publicly paid independent evaluations simply because they wish second opinions or desire more information. In order to obtain independent evaluations at public expense, parents must disagree with and challenge the appropriateness of board assessments.28 Boards can challenge independent evaluations via due process hearings in attempting to demonstrate that their own evaluations met the IDEA’s requirements. If educational officials succeed in proving that their evaluations were proper, boards do not have to pay for independent evaluations.29 Courts order boards to reimburse parents for independent evaluations when the parents can prove that disputed evaluations were inappropriate and their independent evaluations were appropriate.30
If due process hearing officers agree that school board evaluations are appropriate, parents retain the right to independent evaluations but not at public expense.31 School officials may ask parents why they are seeking independent evaluations but cannot require them to provide explanations; in addition, the IDEA forbids educators from unreasonably delaying either providing evaluations at public expense or filing requests for due process hearings to defend their public evaluations.32 Although parents do not need to notify educational officials that they are seeking independent evaluations, their failure to provide prior notice could jeopardize claims for reimbursement if doing so prevents board representatives from requesting due process hearings in seeking to prove that their evaluations were proper.33 If parents request independent evaluations, the onus is on educational officials to ask for hearings to demonstrate that board evaluations were appropriate or that the parental independent evaluations were inappropriate in order to avoid paying for independent evaluations.34 Ultimately, parents are entitled to public payment for only one independent evaluation.35
When parents obtain independent evaluations at their own expense, school officials must take them into consideration as long as they meet district assessment criteria.36 Requiring school officials to consider the results of independent evaluations does not mean that they must adopt the recommendations of independent evaluators.37
In a dispute over an independent evaluation, the First Circuit affirmed that requiring school officials to consider the content of outside assessments did not mean that an IEP team from New Hampshire had to engage in a substantive discussion of its findings.38 In a case from Connecticut, the Second Circuit explained that the plain meaning of the word consider is to reflect on or think about with care, but does not require a board to comply with independent evaluators’ recommendations.39 Similarly, the Eighth Circuit was satisfied that an IEP team from Minnesota met its obligation to consider an independent evaluation because it incorporated many of the recommendations offered by the evaluator into the final IEP.40 These cases reveal that school officials meet the IDEA’s requirement to consider independent evaluations as long as they review the results of such assessments at IEP conferences. Once independent evaluations are completed, either party may present the results of parentally initiated evaluations at due process hearings over the placement of children.41
IEPs can be invalidated if they are not based on proper evaluations of children. Assessments must address all areas of suspected disabilities.
The importance of the evaluation process is reflected in the fact that hearing officers and courts can invalidate IEPs if they are not based on proper evaluations. The federal trial court in New Jersey held that a proposed IEP for a child who was deaf was inappropriate because school personnel failed to follow proper evaluation procedures.42 The court noted that the board’s evaluation team based its placement decision on simple observations. The court pointed out that educators acted improperly since they did not use validated instruments to measure the child’s aptitude, and the procedures that they used tended to be biased against students with hearing impairments. The court also acknowledged that board officials did not include an expert on the education of students with hearing impairments on the evaluation team. Subsequently, in a case from Washington, the Ninth Circuit interpreted the IDEA as requiring evaluations to be completed by multidisciplinary teams including at least one person with knowledge in the suspected area of disability.43 Moreover, the Tenth Circuit affirmed that an evaluation by a multidisciplinary team from Kansas that included assessments in all areas of suspected disability met the IDEA’s requirements.44
In an early case involving the education of students with emotional problems causing acting out and aggressive behavior, a federal trial court in New York declared that their being placed in special education was improperly based on vague criteria that tended to discriminate against minorities.45 The court observed that once the students were placed, they were not re-evaluated as mandated by state and federal law. In seeking to remedy the situation, the parties implemented a court-approved nondiscriminatory assessment procedure.
School personnel are not required to leave their districts in order to evaluate students whose parents unilaterally place their children in outof-state facilities. Where parents in Michigan enrolled their son in an out-of-state residential school without their board’s knowledge or consent, a federal trial court maintained that officials had the right to evaluate the student, whose parents requested that it pay tuition for the out-of-state residential school. Also, the court made it clear that officials were not required to leave the state to evaluate the child.46 More recently, the Seventh Circuit affirmed that school personnel were not required to leave Illinois to evaluate a student.47
As noted, the IDEA requires board officials to evaluate students before they can be initially placed in special education48 and re-evaluate them at least once every three years, unless their parents and educators agree that re-evaluations are unnecessary.49 When dealing with disputes of this nature, the Fifth50 and Seventh51 Circuits agreed that board officials may insist on evaluating students using their own personnel rather than be forced to rely on outside professionals. In the case from the Fifth Circuit, when the parents, acting on recommendations from the child’s physician, refused to allow board officials in Texas to evaluate the student but provided third-party evaluations, officials responded that the evaluations did not meet state criteria. Reversing an earlier judgment in favor of the parents, the court agreed with board officials that the third-party evaluations were inappropriate.
Conversely, as reflected by a case from the nation’s capitol, local board officials may not be able to insist on conducting their own assessments if doing so duplicates tests administered by outside evaluators.52 This means that educators may rely on outside evaluations or tests conducted by personnel from other school systems as long as the information is still relevant.53
Figure 5.1 summarizes the steps in the evaluation and placement process.
Figure 5.1 Steps in the Evaluation and Placement Process
• Teachers, counselors, principals, parents, or other knowledgeable persons such as pediatricians or dentists can refer students who are suspected of having disabilities and being in need of special education.
• School officials notify parents or guardians in writing or other mode of communication that their children have been referred; this notice must also include the reasons for the referral.
• School officials request consent to conduct evaluations in writing.
• After obtaining consent, educators schedule and complete evaluations by multidisciplinary teams. Students must be assessed in all areas of suspected disabilities.
• School officials convene a meeting to discuss the results of the evaluation; make a determination as to whether students need special education and related services; and, if students are found to have a need, develop IEPs.
• IEP teams, including the parents or guardians of students with disabilities, develop IEPs. The parents or guardians may accept or reject proposed IEPs, formulate alternative IEPs, or postpone decisions while seeking independent evaluations of their children.
• If parents or guardians accept IEPs, the plans must be implemented immediately.
• If parents or guardians reject IEPs, the IDEA’s dispute resolution procedures become operative. IEPs are then implemented on resolution of the dispute(s).
• School officials must ensure that all IEPs are reviewed annually and students are re-evaluated at least every three years.
Developing Individualized Education Programs
The IDEA defines IEPs as written statements for each child with disabilities that are developed, reviewed, and revised in accordance with its dictates. IEPs must contain seven major elements:
• Statements about students’ current levels of academic achievement and functional performances54
• Measurable annual goals for children, including academic and functional goals55
• Descriptions of how officials plan to measure students’ progress toward meeting their annual goals and when such periodic reports are to be provided, as well as statements of special education and related services along with supplementary aids and services, based on peer-reviewed research to the extent practicable56
• Statements specifying the special education, related services, and supplementary aids and services that children will receive57
• Explanations of the extent to which children are excluded from participating in regular classes with peers who are not disabled58
• Information detailing individual appropriate accommodations that are necessary to measure the academic achievement and functional performance of students on state and district assessments59
• The projected date of initiation and duration of special education services that children are to receive60
In addition, when the IEPs that are to be in effect for students who reach the age of 16 are developed, plans must include an eighth element:
• a statement of appropriate, measurable postsecondary education goals, to be updated annually, and transition services; this also requires that at least one year before children reach the age of majority, they must be provided with notice of the rights that will transfer to them (such as rights associated with their educational records) on reaching the age of majority.61
IEPs must be developed at meetings including a wide variety of people. IEP teams must include the parents of children with disabilities; at least one of a student’s regular education teachers if the student is in, or will be participating in, regular education; at least one special education teacher or, if appropriate, one special education provider; a representative of the school system who is qualified to provide or supervise the delivery of special education and knowledgeable about general education, the school system’s resources, and evaluation procedures (typically this is a director of special education or an assistant superintendent for students); a professional who can interpret the instructional implications of evaluation results; others, at the discretion of parents or school officials, who are knowledgeable or have special expertise concerning the student(s) at issue; and, when appropriate, the children.62
Litigation has reached mixed results about the composition of IEP teams. Courts generally invalidate IEPs when the exclusion of required members interferes with parental participation or causes inadequacies in IEPs.63 The Ninth Circuit held that the failure of school officials in Washington to include a regular education teacher on a child’s IEP team constituted a significant violation of the IDEA since the student was going to spend time in a regular education setting.64 In this respect, in another case that same court acknowledged that boards have some discretion in selecting the regular education teachers who sit on teams.65 The important criteria are that the teachers selected for IEP teams should have knowledge of the students and program options. In like manner, a federal trial court in New York was of the opinion that a board failed to comply with the IDEA’s procedural requirements when it did not include a representative, either by telephone or in person, from its recommended therapeutic placement for a student at the child’s IEP meeting.66
On the other hand, courts overlook the fact that IEP teams had missing members if their absence did not result in the denial of FAPEs.67 The Fourth Circuit affirmed that it was unnecessary for a school board from North Carolina to have a regular education teacher at an IEP meeting since the student was not being considered for a placement in such a setting.68 In like manner, the federal trial court in Kansas ruled that a board did not violate the IDEA by excluding a regular education teacher from a child’s IEP team because he was not going to spend any time in a general education setting.69 Although the IDEA requires the presence of the special education providers on IEP teams, in a case from New York the Second Circuit maintained that not having a special educator who taught the student at an IEP meeting was a harmless error since a certified special education teacher was present.70
IEP meetings must take place within 30 calendar days of findings that children require special education and related services.71 School boards are required to take steps to ensure the participation of at least one of a student’s parents at IEP meetings.72 If students attend private schools, then representatives of the private schools should be present at IEP conferences.73
Parental input into the IEP process cannot be minimized. One of the IDEA’s unique features is that it specifically provides for parental participation.… Parents cannot simply be given token opportunities for participation. Rather, their input into the IEP process has to be genuine.
Parental input into the IEP process cannot be minimized. One of the IDEA’s unique features is that it specifically provides for parental participation. It should go without saying that the failure of school boards to include parents on IEP teams is a serious procedural violation of the IDEA.74 Parents cannot simply be given token opportunities for participation. Rather, their input into the IEP process must be genuine.
The Ninth Circuit affirmed the invalidation of an IEP that was developed by school officials in Montana without input from a student’s parents and his teacher at his private school.75 The court explained that procedural violations that infringe on the parents’ opportunity to participate in the formulation of IEPs result in the denial of a FAPE. The court later echoed that opinion in a case from Hawaii, holding that a child was denied a FAPE when the IEP team met without his father.76 The parent was unable to attend because of illness but school officials, concerned that the deadline for revising the child’s IEP was approaching, decided to hold the meeting anyway. Similarly, the federal trial court in the District of Columbia reasoned that the failure of board officials to attend an IEP meeting that took place at a private school in which a student was enrolled rendered their proposed placement invalid.77
Informal contacts between parents and school officials do not fully meet the IDEA’s parental participation requirements. An appellate court in Pennsylvania observed that impromptu meetings between a student’s mother and school officials did not satisfy the IDEA’s requirement of affording her the opportunity to participate in the development of her daughter’s IEP.78
According to the Eighth Circuit, though, school officials in Missouri could not be faulted when parents refused to participate in discussions about placement options.79 The Ninth Circuit reached a like outcome in agreeing that the Hawaii Department of Education did not violate the IDEA by conducting an IEP meeting without a mother who failed to respond to multiple attempts to schedule meetings or contact school personnel to reschedule the sessions.80 Also, the Fifth Circuit affirmed that school personnel in Texas did not deny a mother the full opportunity to participate in the development of her child’s IEP when they terminated IEP meetings early due to her behavior and scheduled follow-up meetings.81 In contrast, the Ninth Circuit held that school officials in Hawaii denied a child a FAPE by holding an IEP meeting even though the child’s father stated that he could not attend due to illness and asked that it be rescheduled.82
A federal trial court in Michigan explained that school board officials are required to ensure, if possible, that the teachers of special education students participate in IEP meetings before drastic changes in placements can occur.83 The court indicated that simply inviting teachers to attend IEP meetings did not fulfill that duty since special education teachers had to be active participants. Yet, a federal trial court in Tennessee declared that the failure of a child’s teacher to attend an IEP meeting was harmless since persons knowledgeable about the student were present.84 In a similar case, the federal trial court in Maryland noted that a board’s failure to include representatives from the treatment center a student attended in an IEP conference was not a serious procedural violation because data that were obtained from the treatment center were used in developing the child’s IEP.85 The Sixth Circuit affirmed that inasmuch as a board in Michigan included persons knowledgeable about placement options on an IEP team, it was not required to include an expert in the parents’ preferred methodology.86 Even so, failure to include a knowledgeable school board representative on an IEP team can be fatal to a recommended program if the omission has the effect of denying parents the opportunity to discuss available resources for their children.87
IEPs do not have to be written perfectly in order to survive judicial scrutiny. Courts generally allow some flaws in IEPs as long as they do not compromise the appropriateness of educational programming for students. Courts are ordinarily more forgiving if the missing information was available or provided in another form. For example, in a case from Tennessee, the Sixth Circuit affirmed that an IEP was appropriate that did not specifically contain current levels of performance or the objective criteria for evaluating progress, because the disputed information was known to all concerned.88 The court was unwilling to exalt form over substance, declaring that the emphasis on procedural safeguards referred to the process by which the IEP was developed, not the myriad technical items that should have been included in the written document. Further, the federal trial court in Delaware recognized that even though an IEP had flaws, they did not rise to the level of a violation of the IDEA because they did not hamper the parents’ opportunity to participate in its development.89
On the other hand, courts have nullified IEPs for missing important elements. For example, a federal trial court in California invalidated an IEP that failed to address all areas of a student’s disabilities and that did not contain a statement of the specific services to be provided.90 The court thought that an IEP with those defects would have compromised the integrity of the student’s educational program. Also, a federal trial court in New York commented that an IEP was insufficient, containing vague information that did not establish a student’s needs with precision.91 The same court later wrote that an IEP was procedurally defective because it contained goals that were not tailored to a student’s unique needs and abilities, generic objectives, and incomplete evaluation measures.92
IEPs containing all of the required elements, including specific information, pass judicial muster. By way of illustration, in two cases from Kansas, with the Tenth Circuit affirming both judgments, the federal trial court observed that IEPs including specific statements of students’ present levels of functioning, annual goals adequately describing their anticipated educational performances, measurable short-term objectives, and criteria for measuring students’ progress met all federal and state requirements.93 Along the same lines, a federal trial court in Michigan accepted the adequacy of an IEP containing a series of tables covering each academic subject and including short-term objectives, performance criteria, evaluation procedures, and schedules for evaluation.94 In spite of parental contentions to the contrary, other courts agreed that IEPs containing all of the required elements were not defective.95
An overriding theme of the IDEA is that IEPs and educational programs for students with disabilities must be individualized. Put another way, IEPs should be based on the unique characteristics of individual children, taking into consideration their strengths and weaknesses. Courts agree that IEPs that are not individualized are inappropriate. For instance, a federal court in Alabama invalidated an IEP as inappropriate because it lacked academic objectives and methods of evaluation addressing the student’s unique needs and abilities.96 Another federal trial court, in Maryland, criticized an IEP for failing to specifically address a child’s needs because it was assembled using portions of IEPs that were developed for other students.97
Another major doctrine of the IDEA is that the placements must be rooted in the IEPs of students, not the other way around. In other words, educators must develop placements to fit the unique, individual needs of students rather than fit the children into available programs. Courts have invalidated the practice of writing IEPs based on what placements offer, as opposed to the specific needs of children. The Fourth Circuit affirmed that school officials in Virginia violated the IDEA when they chose to place a student in a county facility and then wrote an IEP to carry out this decision.98 Moreover, the federal trial court in Connecticut concluded that board officials violated the IDEA when they proposed a placement without first evaluating a child or writing an IEP.99 Also, a federal trial court in New York posited that school officials who placed a student in a program before they had an IEP in effect violated the IDEA.100 Conversely, the First Circuit affirmed that an IEP team from New Hampshire who considered various options along a continuum from least to most restrictive did not finalize a student’s placement prior to formulating his IEP.101
Disputes over whether school officials made placement decisions in advance notwithstanding, nothing in the IDEA prevents educators from presenting draft IEPs at conferences for the purpose of discussion. The federal trial court in Rhode Island declared that presenting parents with a completed IEP at a conference was not an indication that they were denied a meaningful opportunity to participate in its development.102 Subsequently, in a case from New Hampshire, the First Circuit affirmed that it is acceptable for one person to draft an IEP as long as the parents and other members of an IEP team have the opportunity to provide input into its contents.103 Similarly, the Eighth Circuit agreed that nothing in the IDEA or its regulations prohibited school personnel in Missouri from coming to an IEP meeting with tentative recommendations.104 In another dispute, the Third Circuit affirmed that a draft IEP developed by a team from New Jersey did not violate the IDEA’s parental participation requirement in light of evidence that the parents made suggestions for changes, some of which were incorporated into its final version.105 The Ninth Circuit added that school officials from Washington did not violate the IDEA by conducting a preparatory meeting prior to an IEP conference since they did not make decisions at the preparatory meeting and the parents actively participated in the actual IEP meeting.106
Courts frown on attempts by school officials to develop IEPs beforehand and force them on parents without meaningful discussion of the educational needs of their children, but they do allow educators to prepare for IEP meetings. For instance, the Sixth Circuit ruled that educators from Tennessee could not predetermine a child’s placement in an IEP since doing so prevented his parents from having a meaningful opportunity to participate in its development.107 More recently, the federal trial court in New Jersey decreed that an IEP team predetermined a child’s IEP, citing evidence that school personnel had come to definitive conclusions without parental input, failed to discuss parents’ suggestions, and even failed to listen to parents’ concerns.108
On the other hand, in an appeal from New York, the Second Circuit explained that the IDEA does not prohibit school officials from considering possible placement options prior to an IEP meeting, but rather, allows them to engage in preparatory activities to develop a proposal or respond to parental requests.109 In the same way, a federal trial court in Virginia was of the opinion that while school officials must come to IEP conferences with open minds, this did not mean that they had to arrive with blank minds.110 The court emphasized that even though board officials cannot finalize placement decisions before IEP conferences, they should give thought to them prior to the meetings. However, the court made it clear that board representatives must remain receptive to all parental concerns.
School board officials sometimes develop interim IEPs for students in order to cover short periods of time while preparing permanent IEPs. This may occur so that children can be placed in special education programs while undergoing evaluations or to cover the short periods of time during which teams prepare permanent IEPs. A federal trial court in Alabama asserted that the IDEA does not contain provisions for interim IEPs.111 The court pointed out that boards are required to convene meetings to develop IEPs prior to the beginning of each school year, even if this means gathering over the summer. The federal trial court in Maryland insisted that board personnel must meet during summer months, if necessary, to develop IEPs within 30 days of determining that students need special education and related services.112 Conversely, the federal trial court in Delaware refused to impose liability on a board for not having an IEP in place at the beginning of a school year since the child’s parents were responsible for the delay.113
An exception may exist to the general rule when students move from one district to another and the board in the latter is unable to implement their existing IEPs immediately. Under these circumstances, a court may allow a temporary placement until the new board can develop a permanent IEP.114 The IDEA distinguishes between students who transfer within states and those who move in from other jurisdictions. When students transfer within states, receiving boards must provide services that are comparable to those in students’ previous IEPs until such time as school officials either adopt the previous IEPs or develop new IEPs.115 On the other hand, when students transfer to districts in other states, the new boards must provide services comparable to those in the previous IEPs until such time as officials decide whether it is necessary to conduct evaluations and develop new IEPs.116 Although the difference is slight, this provision recognizes that students who were eligible for services in one state may not necessarily be eligible in another due to differing state standards.
IEPs for students with disabilities must be reviewed and revised, if necessary, at least annually.117 IEP teams should provide reviews and revisions more frequently if they are needed. Procedures for reviewing and amending IEPs generally are similar to those for developing initial IEPs. All of the IDEA’s regulations’ procedural and notification rights apply to meetings convened to review and possibly revise IEPs.118 Naturally, parents must be given opportunities to provide input into the revision process, just as with initial IEPs.
IEPs should be reviewed if parents express any dissatisfaction with the educational programs of their children. To this end, the federal trial court in the District of Columbia was of the view that a mother’s request for a due process hearing put her school board on notice that she was dissatisfied with her daughter’s placement status and that officials were obligated to review and possibly revise the child’s IEP.119 In a case reaching the opposite result, the First Circuit affirmed that school personnel in Massachusetts had no obligation to review and revise an IEP for a student whose parents unilaterally placed him in a private school.120
There is a limit to the number of times school boards must review the IEPs of children. The federal trial court in Connecticut decreed that school officials were justified in refusing to conduct another IEP team meeting after they convened a large number of meetings in the previous six months at which all of the issues raised by the child’s guardian had already been discussed and investigated.121
New IEPs should generally be developed if the placements of children are to change. Yet, this step is not always necessary. The Ninth Circuit acknowledged that school board officials from Washington were not required to write a new IEP for a student who was being transferred temporarily to an off-campus special education program for disciplinary reasons.122 The court observed that the student’s IEP could have been fully implemented in the new setting.
Change in Placement
Once students with disabilities are evaluated, school officials may not change their placements unless their parents have been notified in writing of planned actions and have been afforded opportunities to contest the proposed modifications.123 In addition, the IDEA dictates that while administrative hearings or judicial proceedings are pending, a “child shall remain in the then current placement” unless the parents and school board agree otherwise.124 This section of the IDEA, known as the “status quo” or “stay put” provision, has been subject to a great deal of litigation.
Then-Current Placement
Generally, the settings students are actually in when actions arise are considered to be their “then-current” or pendant placements. In a dispute that arose in Ohio, the Sixth Circuit defined a then-current placement as the operative placement functioning when a dispute arises.125 The court noted that a proposed placement that never was implemented simply did not qualify as the status quo setting.
On occasion, school officials may make placements that are intended to be temporary. In such situations, officials are obliged to make their intentions clear or the courts are apt to consider those placements as the then-current placements.126 Three cases involving the District of Columbia public schools illustrate this point. In one dispute, educators at a private facility developed an IEP for a student calling for a transfer to a residential school. The board agreed to the new placement, but a year later officials notified the student’s parents that they saw no need for continued placement there and would no longer assume financial responsibility for the placement. The federal trial court decided that the residential school was the student’s then-current placement because the board assumed responsibility for it and had given no indication at the time that it intended to do so for one year only.127 In another case, the same court indicated that any limitation on a placement must be spelled out clearly and described in a settlement agreement.128 Based on the mutual consent of school officials and the child’s parents, the student was placed in a private school pending resolution of a placement dispute. The board argued that the private school was an interim placement only, but the court reasoned that it was the then-current placement since its interim status had not been articulated clearly. Similarly, the District of Columbia Circuit Court held that a private school placement ceased to be the then-current placement at the end of an academic year because a hearing officer’s order stated clearly that it was to be for one year only.129
The Second Circuit pointed out that a private school placement that a hearing officer ordered a board in New York to fund for one year only was not the then-current placement.130 Conversely, a federal trial court in New York, after uncovering no evidence that school officials limited funding for a private school placement to one school year, stipulated that the private school was the child’s pendant, or current, placement.131 In a case from Maine, the First Circuit, acknowledging that a private school placement was never intended to be more than temporary and that a settlement agreement specified that it would terminate at the end of the academic year, decreed that a public school placement was the student’s then-current placement.132
Parentally made unilateral placements can be then-current placements if school boards fail to propose appropriate programs in a timely fashion. In such a case, the federal trial court for the District of Columbia was of the opinion that where educational officials failed to propose a program for a student by the deadline established by a hearing officer, his parents were justified in placing him in a private school.133 The court was thus satisfied that this was the child’s current educational placement.
If parents unilaterally remove their children from programs, those settings do not cease to be the then-current placements. For example, the Eighth Circuit maintained that the public school placement of a student from Minnesota whose parents removed him from school was the status quo.134 The parents enrolled their child in another school system, but one month later they reenrolled him in his former district. The court rejected the mother’s attempt to reenroll her son as a regular, rather than special, education student. The court observed that a one-month term as a regular education student in another district did not negate the child’s special education history. Further, a federal trial court in Illinois wrote that the stay put provision does not apply to students whose parents unilaterally place them in private schools.135 Figure 5.2 details actions that educators must take when changing the placement of students with disabilities.
Placement Pending Appeals
In an early dispute about placements pending appeals arising in Massachusetts, the First Circuit held that Congress did not intend to freeze an arguably inappropriate placement for the length of time it takes for review proceedings to culminate.136 Consequently, parents can be reimbursed for the cost of tuition in private schools as long as courts agree that these are the then-current placements.137
A question arises as to when parents or school officials are entitled to make changes in the placements of students with disabilities pursuant to the orders of hearing officers or judges. Some courts agree that changes in placement can occur once administrative orders are issued, even if they are being appealed. In such a case, the Ninth Circuit ruled that once a state educational agency agreed that a parentally chosen placement was correct, it became the then-current placement under the IDEA, and a school board in California was required to keep it in effect pending judicial review.138 The federal trial court in Massachusetts thought that if a state agency, such as the Bureau of Special Education Appeals, and the student’s parent agreed on a placement, the school committee’s approval was not required to make a change in placement.139 In another case, a federal trial court in New York remarked that a board was not relieved of its obligation to fund an alternative school placement until final administrative review procedures were completed.140 At the same time, the court was of the view that the board was financially responsible only until the date the final judgment was handed down, not until the end of the school year. It is important to keep in mind that board officials are required to review and, if necessary, revise IEPs even while appealing stay put orders.141
Figure 5.2 Changing the Placement of a Student With Disabilities
• Prior to changing the placement of students with disabilities, school officials must provide their parents or guardians with written notice of the proposed changes. Notice should include
Explanations of the IDEA’s due process safeguards.
Descriptions of the proposed change or other options considered, with an explanation of why other options were rejected.
Explanations of all assessments used in making a determination.
Descriptions of other relevant factors used in making determinations.
• Notice must be written in a language understood by the general public and in the parents’ or guardians’ native language or other mode of communication. If necessary, notice can be provided orally. Notice should be provided within a reasonable time prior to the proposed change in placement.
• If parents or guardians object to proposed changes in placements, they are entitled to due process hearings.
• Until disputes are finally resolved, students are to remain in their then-current educational placements, unless their parents or guardians and school officials agree otherwise or judges or hearing officers order changes in placement. (Note: Exceptions exist for dangerous students. See Chapter 6 for explanations.)
The IDEA calls for agreements by either states or local school boards and parents to effectuate changes in placements during the pendency of review proceedings. The Supreme Court, in dicta in Burlington School Committee v. Department of Education of the Commonwealth of Massachusetts (Burlington),142 posited that a state-level hearing order in favor of the parents’ chosen placement seems to constitute agreement by the state to a change in placement. Citing Burlington, in a case from New York, the Second Circuit ruled that a reimbursement order predicated on a finding that a proposed IEP is inappropriate constitutes a change in a student’s current educational placement.143 Other courts have followed this analysis in concurring that orders of state level hearing officers constitute changes in placements.144
As is explained more fully in Chapter 7, states have the option of establishing either one- or two-tiered administrative hearing systems.145 In one-tiered systems, the sole hearing is conducted by the state. In two-tiered systems, initial hearings take place locally, and appeals are conducted by the state. There is some judicial agreement that in two-tiered systems, orders at the appellate level favorable to parents constitute agreements by the states.146 In such a case, a federal trial court in New York suggested that an adjudication by either a state hearing officer in a one-tiered system or a state reviewing officer in a two-tiered system constituted an agreement by the state under the IDEA’s stay put provision.147 Previously, the Fifth Circuit affirmed that insofar as a review panel’s reversal of an order from a hearing officer that had been in favor of a Louisiana school board’s proposed placement constituted an agreement between the state and parents, a residential facility was the pendant placement during all proceedings.148
On the other hand, according to the District of Columbia Circuit and the Third Circuit the IDEA’s status quo provision requires that student placements remain the same until all administrative hearings and trial court actions are completed. The District of Columbia court noted that the IDEA did not entitle a student to remain in a private school at public expense pending review by an appeals court; the hearing officer and federal trial court agreed that the IEPs offered by the school board were appropriate.149 The Third Circuit agreed that a school board was required to maintain a student’s private school placement until the completion of trial proceedings.150 In a separate action in the same dispute that was not appealed, a federal trial court in Pennsylvania denied an injunction to require the board to continue funding the private school placement pending an appeal to the Third Circuit.151 The court was of the opinion that providing status quo protection during the pendency of its own review ensured that school officials could not unilaterally move the child without federal review, but imposing status quo during federal appeals could yield absurd results by forcing boards to pay tuition even while multiple levels of review agreed that offered IEPs were appropriate. Conversely, the Ninth Circuit decreed that a board in California had to continue funding an in-home intervention program while an appeal of a trial court order was pending.152
Courts also consider special circumstances in rendering equitable orders. For example, the federal trial court for the District of Columbia declared that the school board was required to fund a private school placement during the pendency of a parental appeal of a hearing officer’s order.153 The court added that insofar as it would have been inappropriate, insensitive, and indefensible for it to have called for a change in placement one semester before the student completed his schooling, the board had to pay for the cost of his remaining in the private school until graduation, even though a hearing officer contended that the board’s proposed change in placement was appropriate. In an analogous situation, a federal trial court in New York pointed out that the status quo provision prohibited a school board from permitting a student to graduate from high school during the pendency of administrative appeals because doing so would have terminated his rights to additional educational services.154
Pursuant to the IDEA’s status quo provision, during the pendency of appeals over students who are seeking initial admissions to public schools and until all appeals are completed, children are to be placed in public school programs.155 However, since the IDEA does not clarify whether these placements should be in general education classrooms or special education programs, litigation has ensued. In a case where parents and school officials agreed that a child’s pendant placement was no longer appropriate but the parties could not agree on a new program, a federal trial court in Wisconsin ordered its immediate termination in favor of the board’s proposal.156 Even though the parent challenged the proposed IEP, the court ruled that it would provide a FAPE and ordered the immediate termination of the placement that all agreed was not proper.
Students whose school boards have yet to place them are not protected by the status quo provision. In a case on point, a federal trial court in Illinois explained that the IDEA’s status quo provision did not apply to a student who was unilaterally placed by his parents before their school board had the opportunity to make a recommendation regarding his education.157 The court wrote that while the status quo provision was designed to prevent interruptions in programming for students, it was not intended to protect children who were awaiting placements. By the same token, the Ninth Circuit pointed out that a private placement unilaterally chosen by parents in California before a school board developed an IEP failed to qualify as a current educational placement because there had not been a ruling regarding the appropriateness of that placement.158
Courts reach mixed results in situations where children are making transitions to school-aged programs from early intervention programs offered to infants and toddlers159 under individual family service plans (IFSPs). The Eleventh Circuit affirmed that students from Florida who were transitioning from early intervention to preschool programs were essentially applying for initial admission to a public school.160 As such, the court determined that the students were not entitled to continue receiving the services in their IFSPs pursuant to the status quo provision. A federal trial court in New York ruled that the IDEA did not require that a child whose parents were applying for initial admission to the public schools receive the same level of services provided by her early intervention program under her IFSP.161 Conversely, the Third Circuit directed a board in Pennsylvania to continue the services in a child’s IFSP until a dispute over her preschool IEP was settled.162 Noting that Congress envisioned a smooth transition from early intervention programs to school-aged programs, the court wrote that the IDEA anticipates and condones the interchangeability of an IFSP and an IEP during the transition to preschool.
Change in Program Location
Courts agree that the general rule of the IDEA is that the term change in placement refers to changes that affect the form of educational instruction provided, not the location where it takes place. For various reasons, such as school closings, boards sometimes must move special education programs from one building to another. Courts share the perspective that transfers of entire classes or programs do not constitute changes in placement triggering the IDEA’s due process procedures.163
When the physical locations of programs are moved from one place to another, the educational programming for children must remain substantially the same. For instance, the Fourth Circuit interpreted the IDEA’s use of the term educational placement as referring to the services that children receive, not necessarily the location where they are provided.164 Thus the court affirmed that to the extent that a child’s new setting, in the least restrictive environment, duplicated the educational program in his original placement, albeit in a different location, school officials in Virginia satisfied the IDEA’s stay put provision.
As illustrated by a case from New York, the elimination of a major component of a program can be sufficient cause to trigger the IDEA’s due process mechanism. A federal trial court decreed that the elimination of the summer component of what had been a year-round residential program was of such critical magnitude that it constituted a change in a child’s placement.165 In another case, a federal trial court in Pennsylvania nullified the proposed transfer of two students from one program to another that involved a change in the method of instruction.166 The court indicated that insofar as the students were making progress in their program, any changes had to be considered with caution.
When a transfer involves moving a single student, it may not be considered a change in placement if the new program is almost identical to the former one. The District of Columbia Circuit rejected the claim of a surrogate parent that moving a student with profound disabilities from a private to a government operated hospital was a change in placement.167 The court specified that the claim failed because the surrogate parent was unable to demonstrate that the shift constituted a fundamental change in or the elimination of a basic element in the child’s IEP. Subsequently, in a case from Louisiana, the Fifth Circuit adopted a similar rationale in expressing the view that a transfer from one school building to another was not a change in placement because the student’s IEP was fully implemented following the move.168 One year later, the Fifth Circuit approved a Texas magistrate judge’s transfer of a student from one location to another on the basis that this did not alter her IEP.169
The failure of school officials to implement IEPs completely following changes of location can constitute changes in placements. In such a situation, the District of Columbia Circuit maintained that school board officials violated the IDEA’s change in placement provisions when they failed to notify a student’s surrogate parent that his educational program had been curtailed on account of his medical condition.170 The court observed that even though the student’s medical condition prevented him from being able to be transported to his special education program, school officials were still obligated to make attempts to provide him with services, albeit alternate services.
Changes in locations that render overall programs more restrictive for students generally constitute changes in placements. Even so, this issue is far from settled, particularly when transfers are made for disciplinary purposes. In one such dispute, a federal trial court in Louisiana treated a student’s being moved from a self-contained special education class to an off-campus alternative program as a change in placement because the new setting would have deprived him of contact with peers who did not have disabilities.171 On the other hand, a federal trial court in North Carolina refused to interpret a student’s reassignment to a management school as a change in placement because the new setting provided the same curriculum and services that he received in his former program.172
In a series of judgments, the federal trial court in the District of Columbia decreed that the school board’s failure to pay private school tuition on a timely basis violated the IDEA because it created the very real threat that the students would be removed from the schools.173 According to the court, such an action would have violated the IDEA’s prohibition against unilateral changes in placements.
Graduation Is a Change in Placement
As noted, major modifications to student IEPs amount to changes in placements. Moreover, courts agree that graduation is a change in placement because it terminates all educational services for students. In an illustrative case, the Supreme Judicial Court of Massachusetts ruled that the failure to provide parents with formal written notice that their son was to graduate violated the IDEA and a commonwealth statute.174 Using a similar rationale, a federal trial court in New York treated graduation as analogous to an expulsion since it resulted in a student’s total exclusion from his educational placement.175
Adjustments to IEPs
Generally, modifications to IEPs constitute changes in placement, but minor adjustments are allowable. As could be expected, this distinction is often subject to differing perspectives. The Third Circuit reasoned that the important element in evaluating whether a change in placement has occurred is whether a change is likely to affect a student’s learning in some significant way.176 The court viewed a minor change in the transportation arrangements for a student in Pennsylvania as not being a change in placement but warned that under some circumstances transportation could have a major impact on a child’s learning. Two years later, the federal trial court in Massachusetts echoed the Third Circuit’s analysis that a child’s learning experience must be affected in some significant way when it decided that an adjustment to an IEP that was more superficial than substantive was not a change in placement.177 The federal trial court in Maryland also treated minor modifications in a student’s schedule that did not alter the goals and objectives in his IEP or the amount of special education time as not constituting a change in placement.178
Services Not in IEPs
School boards sometimes provide students with disabilities with auxiliary services that are not called for in their IEPs. If services are not being provided under the terms of IEPs, they can be changed without providing parents with the IDEA’s due process safeguards. In such a case, the Ninth Circuit held that insofar as a tutoring program that was not provided as part of an IEP for a student in Washington was not a special education service, a change in tutors was not a change in placement.179 Ironically, the record documented that officials provided tutoring after the student’s parents rejected the board’s offer to afford the child special education services. Similarly, the Sixth Circuit affirmed that board officials in Ohio did not violate the IDEA’s stay put provision when they refused to leave a student in an extended school year program that was not included in his IEP.180
The IDEA’s change in placement procedures are inapplicable to placements not made pursuant to its provisions. In other words, if state agencies make residential placements for social purposes, the IDEA’s change in placement requirements cannot be invoked if officials attempt to transfer students to other facilities or otherwise remove them from residential facilities.181 The IDEA’s change in placement procedures apply only to services specified in IEPs. Accordingly, a service provider cannot invoke the IDEA’s change in placement provision in license revocation proceedings.182
Programs That Are No Longer Appropriate
A special problem regarding the IDEA’s status quo provision exists when it is no longer appropriate for students to remain in programs they have attended. This may occur for a variety of reasons: Schools may close, private schools can lose their state approval, programs can be found to be lacking in quality, students may age out of their current programs, or programs may no longer be able to serve particular children. Typically, in these situations courts approve placements in similar facilities. Once again, and as reflected in the following cases, the key element is that new programs must be able to implement student IEPs fully to pass muster under the status quo provision.
In New York, a federal trial court refused to treat students’ transfers from a private school that was found to be lacking to more suitable facilities as a change in placement.183 The court recognized that the board terminated its contract with the private school after an audit disclosed problems with its operations, including mismanagement of funds and serious educational deficiencies. A year later, in a second case from New York, the Second Circuit affirmed, but slightly modified, an order in favor of a student and his parents, declaring that their board had to leave him in a facility that had lost its state approval until such time as officials were able to offer an appropriate alternative.184
The Sixth Circuit affirmed that the transfer of students from a closed treatment facility in Kentucky to dissimilar alternate facilities was a change in placement.185 At the same time, the court acknowledged that insofar as the closing occurred for financial reasons, the IDEA’s procedural safeguards did not apply. The court added that the students could contest their new placements through the IDEA’s administrative hearing process. In another case where a private school closed, the federal trial court for the District of Columbia upheld a hearing officer’s order for the school board to fund a placement at another private school.186 When the private school closed, the board offered the student a placement in a public school but failed to execute a complete IEP. The facts revealed that when school officials failed to present the child’s parents with an IEP by the start of the next school year, they unilaterally enrolled their son in another private school. When a special education charter school in Texas closed and its students were enrolled in new schools, a federal trial court denied relief under the IDEA’s status quo provision because their parents failed to prove that the IEPs of the children would have been modified in their new placements.187
In two separate cases the District of Columbia Circuit posited that when officials in private schools determine that they can no longer serve students, school boards are obligated to locate and fund similar programs.188 In the latter case, even though the private school placement was no longer available, the court allowed the board to make an interim placement in a public school program that was not inherently dissimilar until officials offered a final placement. Consistent with these cases, the federal trial court in the District of Columbia ordered the board to find similar placement alternatives to fulfill the requirements of student IEPs when their pendant placements were no longer available.189
A school board in New Hampshire proposed a placement in a public high school for a student who was too old to continue at the private residential school he attended at public expense. The federal trial court was convinced that insofar as such a transfer would have fundamentally altered the student’s educational program, it was a change in placement.190 The court concluded that the private school selected by the parents would have provided an experience substantially similar to the one in their son’s former placement.
As the Seventh Circuit reasoned, educational methodologies that are appropriate in one environment may not always be effective in another. Therefore, the court maintained that flexibility is required when determining the status quo for students moving from one level to another, such as from a middle to a high school.191 In remanding the case for further proceedings, the panel instructed a trial court in Illinois to consider whether specified methodologies were part of a student’s IEP or simply chosen by the child’s teachers.
Altering the Length of a School Year
In today’s economic climate it is not unusual for school boards to institute cost-saving measures such as employee furloughs as a means of reducing budgets. Such a practice may not be problematic under the IDEA as long as it impacts all students equally. In the midst of a fiscal crisis, the State of Hawaii chose to close its schools on 17 Fridays during a school year. As part of that measure, the state negotiated an agreement with its teachers to implement the furloughs. Clearly, special education students could not have attended school on those Fridays. Yet, the Ninth Circuit agreed that closing school on the designated Fridays, thereby shortening the school year, did not constitute a change in placement under the IDEA.192 The court insisted that Congress did not intend for the IDEA to apply to systemwide administrative decisions that affected all public schools and all students. Thus, the court believed that Hawaii’s across-the-board reduction in school days did not conflict with Congressional intent of protecting students with disabilities from being singled out. Further, the court commented that to apply the IDEA’s status quo provision in such a situation would have essentially given parents veto power over the state’s authority regarding the management of its schools.193
Annual Reviews and Reevaluations
As reviewed earlier, the IDEA requires school officials to review the IEPs of students with disabilities at least annually194 and to conduct reevaluations at least once every three years, unless they and parents agree that re-evaluations are unnecessary.195 Nonetheless, parents retain the right to request reevaluations more frequently than every three years.196 Accordingly, hearing officers and courts cannot order school boards to maintain given placements for longer than one year. Of course, each year’s IEP is subject to the IDEA’s due process requirements. The federal trial court for the District of Columbia denied a parental request to prohibit the board from changing a private school placement for two years.197 The court stated that board officials had to be free during that time frame to consider whether the private school was still appropriate.
At least one federal court, in Michigan,198 ordered a school board to update evaluations before making significant changes in placements. Board officials proposed a change in placement for students with hearing impairments from a state school for the deaf to a program within the public schools. Since this change would have fundamentally altered the educational programs of the students, the court decided that the reevaluations were warranted. Yet, in another case the Tenth Circuit made it clear that even though graduation is generally considered to be a change in placement, a reevaluation was not required before a student’s services were discontinued due to his graduation.199 Where a student in Oklahoma asked for a due process hearing but the process was not completed until after he graduated, he alleged that he was denied services. The court affirmed that the student was not entitled to a hearing, because after graduation he was no longer protected by the IDEA.
Frequently Asked Questions
Q: What are the required components of IEPs?
A: According to the IDEA, IEPs must contain
• Statements of the current level of academic achievement and functional performance of students
• Measurable annual goals for students, including academic and functional goals
• Descriptions of how officials plan to measure students’ progress toward meeting their annual goals, as well as of when periodic reports on this progress are to be provided
• Statements of the special education and related services, as well as supplementary aids and services, that students are to receive, based on peer-reviewed research to the extent practicable
• Explanations of the extent, if any, to which students are not going to participate in regular classes with peers who are not disabled
• Statements of the individual appropriate accommodations necessary to measure the academic achievement and functional performance of students on state and district assessments
• Projected dates of initiation and duration of special education services that students are to receive
In addition, starting no later than when the first IEP is written that is to be in effect for students who reach the age of 16,
• Statements of appropriate measurable postsecondary education goals, to be updated annually, and transition services
At least one year before students reach the age of majority,
• Statements that they have been informed of their rights, if any, that will transfer at the age of majority (20 U.S.C. § 1414(d))
Q: If students are promoted from one level to another, such as elementary to middle school, does this constitute a change in placement?
A: No. These are not changes as long as new programs provide substantially the same educational benefits as the previous ones did. Although the IDEA permits minor adjustments reflecting changes to the new levels, the amounts and types of services must remain the same.
Q: Are school boards required to implement the findings and recommendations of independent evaluators?
A: No. The IDEA directs school boards to consider the findings and recommendations of independent evaluators but does not require them to adopt the recommendations. IEP teams can satisfy the requirement to consider these results by reading and discussing the reports of independent evaluators at IEP meetings with parents.
Q: Must school officials review IEPs each and every time a parent requests
a
review?
A: No. While school officials must address parental concerns and dissatisfaction with IEPs, once they have dealt with issues, they are not required to review them repeatedly every time parents voice concerns.
Q: Is it always necessary for all required members of IEP teams to be at each and every IEP team meeting?
A: No. The IDEA does allow for some team members to not be physically present at IEP conferences if parents agree that their presence is not essential and they provide written reports. Also, courts have overlooked improperly constituted IEP teams when school board officials have shown that the absence of some members did not have an effect on the final outcome and did not cause a denial of a FAPE or infringe on the parents’ rights to fully participate in the process. This noted, board officials should always endeavor to make sure that all required members of IEP teams are present at all meetings. If a specific member is unable to attend for good cause (such as illness) board officials should provide appropriate substitutes or reschedule meetings.
Recommendations
The IDEA and its regulations establish specific criteria for school board officials to follow in locating, identifying, evaluating, and serving students with disabilities. As discussed more fully in the next chapter, the IDEA grants students and their parents specific procedural rights in this process to ensure that they are equal partners. The following recommendations were gleaned from the numerous cases interpreting the IDEA and its regulations regarding the procedures IEP teams must follow in evaluating students and developing IEPs to provide them with FAPEs. Since individual jurisdictions may afford students and their parents additional rights, they should also consult state laws and regulations.
School officials should
• Make sure to complete fair assessments of students with disabilities.
• Guarantee parental input into evaluation and placement processes.
• Ensure that testing and evaluation materials as well as procedures are selected and administered in a manner that is not racially or culturally biased.
• Include assessments in all areas of suspected disability in the multidisciplinary evaluation.
• Consult state laws and regulations for timelines for completing evaluations and making placements.
• Develop and implement policies and procedures to avoid the overidentification or disproportionate representation based on race and ethnicity of students with disabilities.
• Carefully review and discuss the results of independent evaluations, keeping in mind that educators do not have to adopt all findings of independent evaluators.
• Avoid the use of boilerplate text in IEPs; IEPs that are not individually tailored to meet the unique needs of students run the risk of being invalidated.
• Ensure that at least one person who is knowledgeable of placement options participates as a member of IEP teams.
• Be diligent in ensuring that IEPs contain all required elements, particularly students’ current levels of functioning, annual goals and measurable short-term objectives, clearly stated performance criteria, evaluation procedures, and schedules for evaluation.
• Come to IEP meetings with proposals and even draft IEPs, but ensure that parents have input into the IEP process.
• Ensure that student placements are based on IEPs and that IEPs are not written to fit placements.
• State in unequivocal terms in IEPs that placements are intended to be only temporary if this is the case.
• Ensure that board representatives attend IEP meetings convened in private schools for students who attend private schools at public expense.
• Check with state officials to determine whether their states have been approved for pilot three-year IEPs.
• Consider taking steps to reduce paperwork, regardless of whether state officials choose to participate in the pilot national program.
• Implement the IDEA’s procedural safeguards before making substantial changes to the IEPs or placements of students.
• Schedule review meetings if parents express dissatisfaction with IEPs or the progress of their children.
• Notify parents any time school board officials propose to act on placements of or refusals to initiate actions for students with disabilities.
• Make changes in placement only when parents agree to them or they are ordered by hearing officers or courts, keeping in mind that unilateral changes in placement cannot be made while appeals are pending.
• Ensure that IEPs can be fully implemented in new locations if changes in location for the delivery of services are required.
• Locate new programs that are substantially similar to current programs and that can implement student IEPs if the current program of students closes or becomes unavailable.
• When students move from one level to the next in a school system, make sure that their programs at the new level are as close as possible to their previous programs.
Recommendations
The IDEA and its regulations establish specific criteria for school board officials to follow in locating, identifying, evaluating, and serving students with disabilities. As discussed more fully in the next chapter, the IDEA grants students and their parents specific procedural rights in this process to ensure that they are equal partners. The following recommendations were gleaned from the numerous cases interpreting the IDEA and its regulations regarding the procedures IEP teams must follow in evaluating students and developing IEPs to provide them with FAPEs. Since individual jurisdictions may afford students and their parents additional rights, they should also consult state laws and regulations.
School officials should
• Make sure to complete fair assessments of students with disabilities.
• Guarantee parental input into evaluation and placement processes.
• Ensure that testing and evaluation materials as well as procedures are selected and administered in a manner that is not racially or culturally biased.
• Include assessments in all areas of suspected disability in the multidisciplinary evaluation.
• Consult state laws and regulations for timelines for completing evaluations and making placements.
• Develop and implement policies and procedures to avoid the overidentification or disproportionate representation based on race and ethnicity of students with disabilities.
• Carefully review and discuss the results of independent evaluations, keeping in mind that educators do not have to adopt all findings of independent evaluators.
• Avoid the use of boilerplate text in IEPs; IEPs that are not individually tailored to meet the unique needs of students run the risk of being invalidated.
• Ensure that at least one person who is knowledgeable of placement options participates as a member of IEP teams.
• Be diligent in ensuring that IEPs contain all required elements, particularly students’ current levels of functioning, annual goals and measurable short-term objectives, clearly stated performance criteria, evaluation procedures, and schedules for evaluation.
• Come to IEP meetings with proposals and even draft IEPs, but ensure that parents have input into the IEP process.
• Ensure that student placements are based on IEPs and that IEPs are not written to fit placements.
• State in unequivocal terms in IEPs that placements are intended to be only temporary if this is the case.
• Ensure that board representatives attend IEP meetings convened in private schools for students who attend private schools at public expense.
• Check with state officials to determine whether their states have been approved for pilot three-year IEPs.
• Consider taking steps to reduce paperwork, regardless of whether state officials choose to participate in the pilot national program.
• Implement the IDEA’s procedural safeguards before making substantial changes to the IEPs or placements of students.
• Schedule review meetings if parents express dissatisfaction with IEPs or the progress of their children.
• Notify parents any time school board officials propose to act on placements of or refusals to initiate actions for students with disabilities.
• Make changes in placement only when parents agree to them or they are ordered by hearing officers or courts, keeping in mind that unilateral changes in placement cannot be made while appeals are pending.
• Ensure that IEPs can be fully implemented in new locations if changes in location for the delivery of services are required.
• Locate new programs that are substantially similar to current programs and that can implement student IEPs if the current program of students closes or becomes unavailable.
• When students move from one level to the next in a school system, make sure that their programs at the new level are as close as possible to their previous programs.
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