Letter to Dr. Hal Hayden (Kentucky) 22 IDELR 501 (OSEP 1994)
There is no legal requirement that an IEP include separate goals and objectives for related services such as air conditioning, catheterization, and transportation if the service is only necessary to enable the pupil to attend school. If the student receives instruction during the provision of related services, then goals are required.
ASK: IS THE SERVICE REQUIRED TO INCREASE A SKILL? - If yes, need goals.
Dreher v. Amphitheater Unified S.D., 20 IDELR 1449 (9th Cir. 1994) (Arizona)
FACTS
Parents of a hearing impaired girl enroll her in an "oral" school when sign language is strictly forbidden - in 1989-90, the district felt oral-only was not working and recommended a program that used all methodologies. Parents went to hearing and the hearing officer held in favor of the district. During pendency, parents pulled the girl out and placed her in an "oral only" school. For the next two years, the district recommended eclectic programs but parents did not challenge these. Parents then requested reimbursement for speech therapy - this was refused, and when parents wrote the state asking for a hearing, the hearing request was also refused. This case rules on the district court's dismissal of the parents' federal suit.
COURT'S DECISION
The court points out that this is not a "program" appeal but a court appeal of a stated refusal to give the parents a hearing on their issue.
Essentially, the appellate court affirmed the trial court's motion to dismiss because:
- The district proposed an appropriate program in the IEP;
- The parents have not attempted to prove that the district's IEP is inappropriate;
- The services for which reimbursement are requested are not in conformity with the district's IEP.
Comment: it is felt that this case is atypical. Usually, courts will hold for parents when districts refuse to do a thing that is mandated by law. Such as grant a hearing.
A. Norma P. v. Pelham School District 21 IDELR 919 (D.N.H. 1994)
FACTS
This case involves a court appeal from a New Hampshire Department of Education decision which was adverse to the parents. In its description of the facts and law, the court notes in dicta that since the IEP must be developed in cooperation with the parents per federal and state law, it likewise must be signed by parents. Here, a downs syndrome girl with multiple other impairments was moved to a self contained classroom after spending five years at a school for the retarded. She was thirteen at the time with a mental age of 5. In 1988, the school requested a due process hearing because the parents refused to sign the IEP. The next year's IEP was signed by the parents after an initial due process request was submitted by them. The district then engaged in attempts to move the girl to an "inclusion" program, with parents refusing to sign the 1990-91 IEP and district again requesting due process. By that time, work had begun on the 91-92 IEP. Parents then notified district that an independent evaluation was being done and parents would not attend further IEP meetings until it was finished. The special education director "warned" parents that they would proceed with IEP development anyway. This IEP was then mailed to the parents, who responded with yet another due process request. A six day hearing resulted in a decision adverse to parents but which noted the presence of "intense distrust" of parents for district personnel. Parents then filed suit. The district also filed suit because the hearing officer did order one staff member removed from the MDC team that the parents particularly distrusted.
OPINION
The actual opinion of the court occupies less than one page, also unusual, but it begins by asking the Rowley [(458 U.S. at 206-7)] questions:
- Procedures?
- Reasons calculating educational benefit?
And, quoting:
- Once a court determines that the requirements of the Act have been met, questions of methodology are for resolution by the states. (458 U.S. at 208)
Plaintiff tried to reach an agreement with sometimes unreasonable parents, "to no avail." In fact, the court commented that the district's attempts to educate the girl in the mainstream were "herculean." The holding was that this girl did receive an appropriate education.
B. Mason v. Schenectady City S/D, 22 IDELR 611 (N.D.N.Y. 1993)
FACTS
This is a U.S. District Court opinion denying the district's motion for summary judgment and holding in favor of parents. The parent had sued on behalf of her DD son, alleging violations of everything. The district defendants are sued officially and individually; this case involves "Rowley refusals." The student began in an EC program, then a day treatment program - and displayed a history of increasingly aggressive behaviors. After spending time in detention, "Luke" returned to the district in May 1992. The district held a meeting within a week. Luke's mom turns out to be an attorney in disability law - and she complained at the meeting that the district was unprepared and offered "little or nothing.
Mother left the meeting requesting an evaluation (which had not been done), and a month later, she requested a hearing. This request was refused as "premature" since the "recommendations had not been finalized." The mother then filed suit, alleging denial of FAPE, discrimination, due process procedural violations due to the refusal. Mother asked for punitive damages against the individual defendants. The district moved for summary judgment. The court made the following findings:
- The district's exhaustion argument is rejected because the district deprived the parent of an opportunity to have a hearing.
- The mootness argument is rejected because the claim for compensatory education to correct past wrongs "keeps the case very much alive."
- The statute of limitations argument was rejected because due to the district's refusal, there is no administrative record from which to appeal! The district violated the procedures (and the first Rowley question)!
- The argument that "this was a complicated case" and therefore the district should be entitled to qualified immunity was rejected - all of these cases are complicated!
- The court ended with a description of the district's "policy and custom of keeping parents in the dark about their rights." The district's further violative refusal to tell people about their rights - was persuasive to this judge, who pointed out that this has been going on for years.
Comment: now this case will go to trial - the court had no tolerance for Rowley refusals" such as those summarized above.
