Student With Qualifying Disabilities Entitled to Special Education Services in Spite of Satisfactory Academic Performance

photo-1460518451285-97b6aa326961In a recent decision, the three-judge panel of the Ninth Circuit Court of Appeals reversed the federal district court’s summary judgment in favor of a defendant school district, disagreeing with the district court’s and the state Administrative Law Judge’s ruling that a student with three disabling conditions did not require special education services because of his satisfactory performance in general education.

In L.J. v. Pittsburg Unified Sch. Distr., No. 14-16139 (9th Cir. Sept. 1, 2016), the Ninth Circuit panel found that the student’s improved performance was due to his receipt of special services not offered to general education students, and that the student’s suicide attempts and absences from school due to psychiatric hospitalizations were relevant to his eligibility even though they did not occur in the school environment. Finally, the panel held that the school district committed procedural violations of the IDEA by failing to disclose school records and failing to conduct a health assessment, thereby interfering with the parent’s opportunity to participate in the IEP process.

Over the course of four school years, the emotionally troubled student exhibited suicidal tendencies and disruptive behaviors. The student had multiple suspensions for kicking and hitting teachers, throwing rocks, calling teacher and peers names, and endangering and physically injuring classmates. The student had attempted to kill himself on at least three occasions, had manifested suicidal ideations prompting district’s mental health providers to conduct an emergency suicide evaluation, was diagnosed with three disorders (bipolar disorder, oppositional defiant disorder, and ADHD), and had been prescribed psychotropic medications.

The school district and the ALJ determined that the student was not entitled to special education services because he was not disabled. On appeal of the ALJ’s decision, the district court found that the student was indeed disabled under three IDEA categories (Specific Learning Disability, Other Health Impaired, and Seriously Emotionally Disturbed), but concluded that an IEP was not necessary because the student was performing well behaviorally, socially, and academically with the help of services the court characterized as general education accommodations, not individualized special education services.

On the parent’s appeal to the Ninth Circuit, the critical issue to be determined was whether general education was appropriate or whether the student demonstrated a need for special education services. Based upon the information reasonably available to the parties at the time of the IEP meeting, the court found that the student should have been categorized as a child with a disability within the meaning of the IDEA, and that, by refusing to provide the necessary services pursuant to an IEP, the student was not ensured such services in the future.

School records showed that, although the student was in a general education classroom, multiple specialized services were being provided and the progress was attributable to those services. The school district had been providing special services, including one-on-one assistance, specially-designed mental health services, clinical interventions by a behavior specialist, and individualized instructional accommodations that resulted in the student’s improved performance. The court further found that, even with the specialized services, the student threatened and attempted to kill himself on several occasions, and was hospitalized. Although the hospitalizations and suicide attempts occurred outside the school environment, the court found that the student’s emotional disturbance adversely impacted his attendance, his absences interfered with his education, he relied on psychotropic medications in order to attend school, and he had ongoing needs associated with his medications.

The Ninth Circuit determined that the school district violated IDEA procedural safeguards by failing to disclose assessments, treatment plans, and progress notes kept by the school, which deprived the parent of her right to informed consent in waiving the attendance of mental health clinicians at the IEP meeting. The school district also failed to conduct a health assessment, which rendered the school district and IEP team unable to evaluate and address the student’s medication and treatment related needs.

The Ninth Circuit Court of Appeals reversed the district court’s decision and the case was remanded for development of an appropriate IEP.

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School Districts Must Initiate Due Process Hearing After Impasse

November 19, 2015

CALIFORNIA EDUCATION CODE SECTION 56346(f) COMPELS A SCHOOL DISTRICT TO INITIATE A DUE PROCESS HEARING WHEN THE SCHOOL DISTRICT AND THE PARENTS REACH AN IMPASSE
In a decision by the Ninth Circuit Court of Appeals, the panel concluded that a school district did not initiate a due process hearing within a reasonable time after a child’s parents failed to consent to the provision of services necessary to provide a free, appropriate public education (“FAPE”). The panel found that a period of a year and a half was too long for the school district to wait to initiate the hearing, and cited California Education Code section 56346(f) which requires a school district to initiate a due process hearing if it determines that a portion of an IEP to which the parents did not consent is necessary to provide the child with a FAPE under the IDEA. In this case, the Court found that the district’s failure to initiate a due process hearing directly resulted in a clear injury, namely the student remaining in an inappropriate program for a much longer period of time than should have been the case.

All IEPs developed for the student from November 2010 until February 2012 recommended placement in a special education environment. The parent consented to portions of the IEPs but never consented to the IEPs’ proposed placement outside of the general education classroom. The district implemented only those components to which the parent consented and, as a result, the student remained in a general education class with a special education aide. In affirming that the student would remain in the general education placement, the principal noted that the IEP members believed that the student required a smaller classroom setting with individualized instruction, which was not available in the general education classroom.

In May 2012, a request for a due process hearing was filed on behalf of the student. Among the issues was whether the district had denied the student a FAPE by failing to provide an appropriate placement. The AU concluded that the program proposed by the district was appropriate for the student and that the district had thus offered her a FAPE. However, the AU found that the district failed to provide a FAPE because the general education classroom placement was inappropriate, as acknowledged by the district. The AU did not hold the district liable for failing to request a due process hearing, concluding that the district offered an appropriate placement, but the parent’s refusal to consent prevented the district from implementing and providing a FAPE.

The student appealed the ALJ’s decision to the district court, focusing on the failure of the district to request a due process hearing. The court affirmed the ALJ’s decision, holding that the district could not initiate a hearing or take action to override the parent’s failure to consent, nor could the district be held liable for its failure to provide a FAPE. The case was appealed to the Ninth Circuit Court of Appeals and the Ninth Circuit disagreed with the lower court’s findings.

The Ninth Circuit found that the lower court relied on 20 U.S.C. § 1414(a)(1)(D)(ii)(II), which states that if the parent refuses to consent to services, the school district shall not provide special education and related services to the child by initiating a due process hearing. However, 20 U.S.C. § 1414(a)(1)(D)(ii)(II) and its implementing regulations foreclose a school district from initiating a due process hearing only where a parent has refused consent before the initial provision of special education and related services. The statute relied upon by the district court does not apply where, as in this case, a parent consented to special education and related services, but did not consent to a specific component of the IEP. The Ninth Circuit further noted that 20 U.S.C. § 1415(b)(6)(A) provides an “opportunity for any party” to file a request for a due process hearing with respect to a child’s placement.

The California Education Code sets forth the steps that must be taken after an IEP is prepared and presented to the parent if the parent consents in writing to the receipt of special education and related services but does not consent to all components of the IEP. The school district must first determine whether the proposed special education program component to which the parent does not consent is necessary to provide a FAPE. If the disputed component is determined to be necessary, the school district must initiate a due process hearing expeditiously. The court noted that the school district may not “artificially prolong the process” by opting to hold additional IEP meetings or continue to the IEP process in lieu of initiating a due process hearing. Cal. Educ. Code § 56346(f) The school district’s failure to comply with the procedural requirement in Cal. Educ. Code § 56346(f) denied the child a FAPE because the student remained in a placement that was acknowledged as inappropriate. The district’s failure to act promptly to adjudicate the dispute with the parents resulted in the loss of educational opportunity and caused a deprivation of educational benefits. The district can therefore be held responsible for denying the student a FAPE for an unreasonably prolonged period of time. This office will keep you updated regarding further developments in this case.

This update is provided for informational purposes only. It is not intended as legal advice, nor does it create an attorney-client relationship between Parker & Covert LLP and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. © PARKER & COVERT LLP 2015
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Image Courtesy of Christopher Sessums under license of Creative Commons

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OSEP Expands Parents’ Right to an IEE to an Area Not Previously Assessed by the School District’s Evaluation

In a letter dated February 23, 2015, the United States Department of Education’s Office of Special Education and Rehabilitative Services (“OSEP) stated that when a parent disagrees with a school district evaluation because a child was not assessed in a particular area, the parent has the right to request an Independent Educational Evaluation (“IEE”) to assess the child in that area for the purpose of determining whether the child has a disability and the nature and extent of the special education and related services that the child needs.

School districts have previously been able to refuse an IEE request if the school district had not first evaluated the student in the area of disability asserted by the parents. The school district was thus assured of having the opportunity to conduct its evaluation prior to any funding of an IEE. OSEP has challenged this restriction if a school district fails or neglects to evaluate a particular area of assessment in its evaluation, asserting that the parent can immediately seek a private evaluation in the area not assessed by the school district, and would not be required to ask for the school district to conduct its evaluation first.

OSEP cited IDEA regulations requiring that, in evaluating each child with a disability, the evaluation must be sufficiently comprehensive to assess the child in all areas related to the suspected disability, and must identify all of the child’s special needs, whether or not commonly linked to the disability category in which the child has been classified. 34 CFR §300.304(c)(4)(6).

The Individuals with Disabilities Education Act (“IDEA”) provides that a parent of a child with a disability is entitled to an IEE at public expense if the parent disagrees with an evaluation obtained by the school district. “Evaluation” is defined as procedures used in accordance with the IDEA and its implementing regulations to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs. Once a child has been fully evaluated in an initial evaluation, a decision has been rendered that a child is eligible under the IDEA, and the required services have been determined, any subsequent evaluation of a child would constitute a reevaluation.

Under 34 CFR §300.502(b)(2), if a parent requests an IEE at public expense, the school district must, without unnecessary delay, either (k) initiate a hearing to show that its evaluation is appropriate; or (ii) ensure that an IEE is provided at public expense, unless the school district demonstrates in a hearing that the evaluation obtained by the parent did not meet agency criteria. A school district can impose cost and geographical parameters on IEEs.

OSEP responses are provided as informal guidance and are not legally binding, but represent an interpretation by the U.S. Department of Education of the IDEA in the context of specific facts presented in inquiries.