January 16, 2014 David Wickersham, Assistant General Counsel.

STATE ADVISORY PANEL ON EXCEPTIONAL CHILDREN:

DUE PROCESS UPDATE AND OTHER LEGAL ISSUES

January 16, 2014David Wickersham, Assistant General Counsel

OVERVIEW OF PRESENTATION

• Due Process Hearing Report (July 1, 2012-January 7, 2014)

• Mediation Report (July 1, 2012-January 7, 2014)

• N.W. v. Poe • J.R. v. Cox-Cruey • January 8, 2014 Dear Colleague Letter

from the United States Department of Education

• Other matters as time permits

DUE PROCESS HEARING REPORT

Between July 1, 2012 and January 7, 2014, the Kentucky Department of Education (department) received twenty requests for hearing

Hearing requests involved the following districts: Leslie, Fayette (5), Henderson, Nelson, Marshall, Bullitt, Kenton (2), Floyd, Boone (2), Ashland Independent, Oldham, Garrard, Laurel, and Paducah Independent

DUE PROCESS HEARING OUTCOMES

Ten (10) complaints were resolved by agreement, settlement, mediation, withdrawal, or otherwise

Three (3) matters were adjudicated The remaining seven (7) complaints are

pending before Hearing Officers

DUE PROCESS DECISIONS

One decision found denial of FAPE, but denied compensatory education and tuition reimbursement (Fayette)

One decision was in favor of the district (Bullitt)

One case was decided and appealed to the ECAB, to the United States District Court, and to the Sixth Circuit Court of Appeals (Kenton)

DUE PROCESS ECAB

The ECAB heard two matters: In one matter, the Hearing Officer was

upheld but for the omission of a remedy for a denial of FAPE during the 2011-2012 school year (Fayette)

In the other matter, the ECAB overturned the Order of the Hearing Officer (Kenton)

MEDIATION

Between July 1, 2012 and January 7, 2014, the department received twenty-four (24) requests for mediation

Mediation requests involved the following districts: Fayette (5), Henderson, Bullitt, Kenton, Floyd (2), Boone (5), Ashland Independent, Oldham, Leslie, Scott, Bracken (2), Anderson, Covington Independent, Walton-Verona, and Christian

MEDIATION

Full or partial agreement was reached in fourteen (14) matters

Agreement was not reached in six (6) matters

One district declined to participate in mediation, one mediation request was withdrawn by the parent, and two requests are pending

N.W. v. Poe

N.W. is a nine-year old student with severe apraxia and autism. At age three, N.W. was enrolled in the Boone County Schools. His ARC placed him at St. Rita’s School for the Deaf

In June 2010, N.W.’s parents unilaterally enrolled him in the Applied Behavioral Services (ABS) school

The district convened an ARC, but placement could not be agreed upon

N.W. v. Poe

The parties entered a mediated agreement under which the district would reimburse a period of tuition at ABS, transportation and attorney costs, and tuition for the 2010-2011 school year and funds toward summer tuition

The parties also agreed to convene an ARC to discuss transition back to the district’s schools

N.W. v. Poe

Difficulties arose with the scheduling of the ARC, the composition of the ARC, and goals

N.W.’s parents rejected the district’s offers and ended the ARC. The district tried to convene another ARC. The parents responded by filing a due process complaint on October 31, 2011

N.W. v. Poe

On June 15, 2012, the Hearing Officer held that the ARC included the required members and that the district provided a FAPE.

The Hearing Officer also held that the district’s proposed transition plan did not deny a FAPE

However, the Hearing Officer ordered the district to reimburse transportation and tuition costs through the end of the 2012 summer session at ABS

N.W. v. Poe

Both parties appealed to the ECAB The ECAB affirmed findings that a FAPE

had been offered, but reversed the stay-put order and, consequently, the order regarding attorney’s fees and reimbursement

N.W. then filed suit in the federal District Court at Covington

N.W. v. Poe

The District Court found that the transition plan offered by the district was not inadequate:

N.W. never actually transitioned to the district, so there was no substantive harm done, and a transition plan was not required by the IDEA

“The IDEA was not intended to fund private school tuition for the children of parents who have not first given the public school a good faith opportunity to meets its obligations”

N.W. v. Poe

The District Court found that the absence of a member of the ARC is a procedural error, only, and no substantive harm resulted, even if the absent district employee was a required member of the ARC

Likewise, there was no error regarding the district’s placement decision

N.W. v. Poe

The District Court found that the ECAB erred in concluding that ABS was not N.W.’s appropriate stay-put placement, and ordered the district to reimburse N.W.’s parents for tuition from October 31, 2011 until the end of the proceedings in District Court

The school district appealed the decision to the Sixth Circuit Court of Appeals

N.W. v. Poe

The District Court decision has provoked national attention from NSBA and special education authorities

The District Court’s decision seems at odds with Sixth Circuit jurisprudence, and that of other circuits, that provides for retroactive reimbursement if the district failed to provide a FAPE

Generally, federal courts defer to the final decision of the ECAB or similar body

N.W. v. Poe

Courts have determined that there is a difference between placement and payment

The agreement did not call for placement, but reimbursement and payment

The agreement was time-limited, and contemplated a transition back to district schools

Settlements would decline sharply if a district’s agreement for reimbursement obligated the district to subsidize a private school education

J.R. v. Cox-Cruey

J.R. is a 21 year old female who suffered a traumatic brain injury prior to enrolling in a Kenton County school in January 2012

J.R. was served by an IEP under the category of Traumatic Brain Injury

After being notified that J.R. would not be eligible for services after her 21st birthday, J.R.’s parents, on January 30, 2013, filed a due process complaint alleging that J.R. was entitled to services at least until her 22nd birthday

J.R. v. Cox-Cruey

On February 6, 2013, the Hearing Officer ordered that J.R. would stay-put until after mediation

Mediation was unsuccessful On March 12, 2013, J.R.’s parents filed an

amended due process complaint The Hearing Officer ordered that J.R. stay

in her current placement until the end of the 2012-2013 school year

J.R. v. Cox-Cruey

On May 6, 2013, J.R.’s parents filed a second amended due process complaint

The Hearing Officer rejected the parent’s request for an extension of the stay-put order

On June 21, 2013, J.R.’s parents filed suit in the federal District Court at Covington

J.R. v. Cox-Cruey

The District Court determined that while stay-put is virtually an automatic injunction, it only applies if the student has a continuing entitlement to a public special education

Section 1412, and common law, show that a FAPE must be provided to all children between the ages of 3 and 21, inclusive, which period ends on the last day of the student’s 21st year

States may impose different age restrictions

J.R. v. Cox-Cruey

The Court found that while Kentucky’s pupil attendance and SEEK funding formula regulations contemplate education beyond the 21st birthday, these regulations simply accommodate practices that exceed the statutory obligation established in KRS 158.100 “under twenty-one (21) years of age.”

J.R. v. Cox-Cruey

The Court held that Kentucky’s school districts are “consistently inconsistent” with the IDEA, and that Kentucky does not follow the IDEA

As a result, J.R. was no longer entitled to any further FAPE, and stay-put was rendered inapplicable

The Court rejected the parent’s argument that their amendments (to include violations that might lead to compensatory education) “tolled” the age restriction

Dear Colleague Letter

On January 8, 2014, the United States Department of Education issued a Dear Colleague letter discouraging strict discipline policies against student misbehavior

At first blush, the letter appears to merely encourage a reconsideration of zero-tolerance discipline policies

Dear Colleague Letter

The letter has no direct bearing on special education, and addresses only discrimination based on race, color, or national origin

Special education advocates are already seeking guidance on whether districts are liable for discrepancies in the rate at which certain student populations are disciplined

Dear Colleague Letter

The letter incorporates themes from the administration’s “disparate impact” theory of legal liability

The “disparate impact” theory holds that practices may be discriminatory and illegal if they have a disproportionate impact on members of a minority group

The United States Supreme Court has twice lost opportunities to consider whether the theory can be validly applied outside of employment discrimination lawsuits

Dear Colleague Letter

The challenge for districts will lie in insuring that school disciplinary policies are not only non-discriminatory in their treatment of students, but also that there are equal results for students of all groups

It is unclear how districts will accomplish this goal if the rate of the underlying misbehavior is not, in fact, uniform among every group of students

Dear Colleague Letter

It is difficult to predict how long it will take districts to implement alternative disciplinary strategies that satisfy USED, and how districts will manage discipline in the interim

Studies suggest that while out-of-school suspensions do not academically benefit the suspended student, out-of-school suspensions academically benefit the non-disciplined students who remain, perhaps because of decreased disruption

Dear Colleague Letter

Zero-tolerance disciplinary policies are now discouraged by USED because of fears of disparate impact

Zero-tolerance disciplinary policies were instituted to protect school districts from allegations that districts disciplined students unequally based on race or other factors

The goal of Zero-tolerance was to promote blind and mechanical discipline that did not consider race or other factors

Dear Colleague Letter

Zero-tolerance discipline policies were adopted, not because they were in the interest of students, but because they reduced legal exposure for districts

Zero-tolerance discipline policies, to comply with the Dear Colleague letter, must now be abandoned, not because they fail to consider the interest of students, but because they increase legal liability exposure for districts

Other Issues

If we’ve gotten this far, I’ve talked too fast

The department has been contacted by advocates, districts, and others seeking information regarding musical instrument lessons to be provided as compensatory education

This is a novel question, that, as presented, does not distinguish between music lessons and music therapy, a more formal and recognized discipline

Other Issues

The department has advised that in the absence of an ARC determination that music therapy is a related service, music therapy is not a proper vehicle for compensatory education.

The goal of compensatory education is to provide services to which the student was entitled.

Where there has been no determination that the student was entitled to music therapy, it would

be, procedurally, a remedy for an omission that was not made. Letter to Margaret Kohn, 17 EHLR 522 (1990).  

Other Issues

Even if an ARC determined, after the fact, that music therapy is a related service, such a determination would not imply that the student should have received music therapy at an earlier time, and that the student would be, consequently, eligible for compensatory music therapy.

Questions