Alaska Court Rules On Reimbursement For Private Evaluation and Tutoring

In J.P. and L.P. v. Anchorage School District, a September 16, 2011 case decided by the Alaska Supreme Court, the court considered the issue of whether parents are entitled to reimbursement for private testing and tutoring where the school district failed to conduct its own testing within the prescribed timeline and subsequently determined the child to be ineligible for special education and related services. 

The parents in this case had asked the school district to conduct testing to determine if their child had a disability.  The district did not test within 45 school days as mandated by Alaska law.  The parents pursued their own independent testing for which they expected reimbursement from the district and implemented private tutoring services for which they also sought reimbursement. 

An impartial hearing officer determined based on the evidence presented that the child was performing adequately in a general education classroom and did not need tutoring to access the curriculum, but granted some reimbursement anyway because of the district's delays.  An appellate court reversed the award of reimbursement for tutoring, and the Supreme Court agreed, on the grounds that in order to be eligible for reimbursement for services, you have to first be eligible for services.  The IDEA requires not only that a person have a disability but also that the disability impairs his/her ability to derive educational benefit.

The Supreme Court's ruling on reimbursment for the private evaluation, however, was in favor of the parent.  A parents' right to have his/her child evaluated has nothing to do with whether the child is actually found to have a disability.  The whole point of the evaluation, based on the school district's "child find" responsibility, is to determine whether a disability exists.  Therefore, the court awarded reimbursement and, citing to Forest Grove, explained that this merely requires the district to pay an expense that they were required to pay all along. 

Home Health Care Company Agrees To Pay $150 Million To Settle Allegations Of Defrauding Medicaid

According to Disability Scoop, a home health care company has agreed to pay $150 Million to make allegations of Medicaid fraud disappear.  How does it happen that service providers get paid for services that were never delivered?  One would hope that Medicaid's payments department would have a process in place that is a little more sophisticated than the honor system.

http://www.disabilityscoop.com/2011/09/13/home-care-provider-150-million/13944/

New Regulations Under Part C Of The IDEA

The U.S. Department of Education has released new regulations under Part C of the IDEA affecting children between the ages of birth and three years old. 

Check out the press release here:

http://www.ed.gov/news/press-releases/education-department-announces-regulations-improve-outcomes-infants-and-toddlers

Former U.S. Secretary of Education Comments On The Status Of No Child Left Behind

Words from former U.S. Secretary of Education Margaret Spellings on the state of No Child Left Behind and Secretary Arne Duncan's waivers:

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Our 100th Blog Entry

Thanks to those who follow the blog and have reached out with their feedback.  This marks the firm's 100th blog entry and we go straight to D.H. v. Lowndes County School District, a September 9, 2011 decision from a Georgia federal district court...

How strictly does a court construe procedural requirements against a parent pursuing an IDEA claim against a school district?  Well, in D.H., the court construed some procedural requirements loosely and in favor of the parent.  One issue related to the timing of filing a complaint.  If a student has moved out of one school district and into a new one, could the parents still bring the claim if the student is no longer attending school in the district the parents are suing?  Surprisingly, some courts have held that parents would be barred in this type of situation.  This makes little sense since from a "notice" standpoint because the IDEA has a 10-day notice requirement which contemplates that parents will file for an impartial hearing after the child has already enrolled in a private school.  The Georgia court ruled on the issue in favor of the parents and explained as follows:

"IDEA is remedial in nature. Disabled students are guaranteed an appropriate public school education, and if a school fails to provide this education, IDEA enables these students to be compensated for the lack of educational opportunities. The opportunity to recover for a school district's violations should not be limited to the time when the student is enrolled in the school district."

The court also considered whether failing to file a complaint before the child leaves the district constitutes a "failure to exhaust administrative remedies."  The court stated:

"In this case, Plaintiffs allegedly attempted contact the District numerous times to schedule an IEP meeting pursuant to IDEA procedures. The frustration of repeated failed attempts to contact the District eventually intensified to such a degree that Plaintiffs felt compelled take immediate action and move D.H. to a new school. While the exact reason behind Plaintiffs' failure to file a due process complaint before transferring D.H. is unclear, what is clear is that if Plaintiffs allegations against the District are true, the District should not be rewarded for its avoidance techniques and its failure to respond to Plaintiffs' concerns."

The main point, the court said, is that the exhaustion requirement is not meant to be applied absolutely where doing so would lead to an unjust result and it is important to remember that the purpose of the IDEA is to compensate students who have received an inadequate education.

The "Severe Discrepancy Model"

In Michael P. v. Hawaii Department of Education, a case decided September 8, 2011, the 9th Circuit considered the relevance of a concept known as the "severe discrepancy model."  This concept relates to classifiying a student as having a "learning disability."  Prior to the reauthorization of the IDEA in 2004, school districts would ask whether testing results demonstrated a severe discrepancy between intelligence and achievement.  If such a discrepancy existed, the child would be classified as learning disabled.  But if a child's scores reflected low intelligence, school districts would not classify that child as learning disabled and many students with low IQ's would be under-identified.  In 2004, Congress mandated that the severe discrepancy could not be used as the sole criterion for determining if someone had a learning disability. 

Hawaii was slow to revise its state laws to match the changes in federal law.  In this case, the Hawaii DOE relied solely on the severe discrepancy model and the Hawaii district court did not fault them for it.  The 9th circuit, however, reversed the decision and remanded back to the district court.  Upon remand, the district court will have to apply the appropriate standard, which encourages school district to consider a student's ability to meet grade-level and age-level expectations.

Eastern District of Pennsylvania Places Limitations On Pendency

In J.E. v. Boyertown Area School District, a September 1, 2011 decision from the Eastern District of Pennsylvania, the court held that the doctrine of pendency does not apply during the time that a case is being appealed from a federal district court to a circuit court of appeals.  The court first cited to a 3rd circuit case (to which Pennsylvania belongs),  Ringwood Board of Education v. K.H.J., which held that pendency does apply throughout the entire judicial process including circuit court appeals.  But, the court then cited to cases from the 6th circuit, D.C. circuit, and a 3rd circuit district court which held that pendency does not continue during a federal appeal and the court ultimately agreed.  The court did not convincingly explain why the Ringwood case, which presumably should have been persuasive, should not be followed.  

The court reasoned that if a district court has ruled on the case, there is no longer a threat of a "unilateral decision by school authorities" and, therefore, the protection of pendency is not necessary.  The court adopted strict construction of the term "district court" in one provision of the IDEA to the exclusion of circuit courts.  In the process, the court may have lost sight of the spirit of the law - to protect children in exactly this kind of circumstance.  Children were meant to be protected from being placed in an inappropriate setting until a final decision on the case could be reached to show that the school district's actions were justified. 

Here is a short excerpt from the decision:

"However, to require that the stay-put provision applies during a federal appeal could yield absurd results.  Parents could continue to appeal to the Third Circuit and then the Supreme Court forcing a school district to reimburse private school tuition where multiple levels of review have found that the IEP offered to the child provides a FAPE.  Further, this will discourage school officials from agreeing to provide support for private placement for fear that this leaves them required to pay until the child graduates regardless of changed circumstances because all the parents would have to do is continue to appeal."

How Much Money Should School Districts Have To Contribute Toward Special Education

In the world of special education funding there is a concept known as "maintenance of effort" which, in my limited understanding, means something to the effect of "If a school spends $10 million dollars on special education in the year 2011, it must spend at least $10 million on special education in 2012."  I guess this presumes that the cost of special education and the number of kids in need of special education are both rising.  What about accounting for the children who are being mainstreamed?  Is it possible that in a given year a school district's special education expenses would be lower than the previous year's? 

According to Disability Scoop, school districts who fail to fulfill their "maintenance of effort" obligation may have found a loophole.  In some instances defaulting districts are not being held to the $$ amount they were supposed to pay in the previous year, but rather they are expected to pay the number they actually paid in that previous year.  Shouldn't there be stricter consequences for districts who fail to live up to their obligations? 

I guess it's a balancing test.  Each school district must do an analysis that looks something like this - "On the one hand we may lose federal funding for the year that we default on our obligation.  On the other hand, if we default this year, then next year we will have to pay less than what would otherwise have been required." 

Mother Sues Doctors For Birth Of Disabled Child

To what extent should a medical office be liable for failing to warn a parent during pregnancy that the child may be disabled?  In the story referred to below, a mother is suing her doctor's office and the ultrasound facilities for failing to bring to her attention that the child would be physically disabled.  Her son was born with one leg and no arms.  The mother says she would have had an abortion if she had known.  Despite seven ultrasounds having been conducted, the issue of disability was not addressed. 

http://www.disabilityscoop.com/2011/09/01/mom-sues-millions/13863/