BIG NEWS IN SPECIAL EDUCATION LAW

BY DORENE J. PHILPOT, ATTORNEY AT LAW

There is big news in the special education world due to a recent ruling (March 2023) from the U.S. Supreme Court involving a deaf Michigan child, which reversed a Sixth Circuit decision.

In Perez v. Sturgis Public Schools, (Docket 21-887, 598 U.S. ____ (2023), the nation’s highest Court unanimously held that a federal law containing an exhaustion requirement does not apply to federal claims where the only remedy sought is money damages, even if the claim can be categorized as one for a denial of the child’s right to a Free Appropriate Public Education (FAPE).

This decision means, among other things, that parents can pursue damages claims under the ADA without having to go through a special education administrative due process hearing first.

Children with special needs who qualify for special education services at schools are protected by a variety of federal and state laws, including Michigan Administrative Rules for Special Education (MARSE), Rules 340.1701 et seq. , which mostly mirrors the federal Individuals with Disabilities Education Act (IDEA) 20 U.S.C. §1400 et. seq. (2004), 34 C.F.R. 300, and several other laws, including The Americans with Disabilities Act(“ADA”), 42 U.S.C. §12101 et seq., and the Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. §701 et seq. The parents of special needs children are the primary enforcement mechanisms for these laws by bringing actions against the school districts, inter-locals and educational service agencies. However, unfortunately, there is a shortage of attorneys who represent families of the one in eight Michigan students who qualify for special education and related services and who might need legal counsel.

The purpose of this article is to give general information to attorneys, advocates, schools and parents about the basics of the laws protecting special needs children. Generally, the school is charged with providing an individualized education for a child with special needs. This means that the child’s unique needs are supposed to be taken into account when the school staff and parents devise the child’s IEP (a multi-page document detailing what the plans are for the child’s education, such as the placement and services that the child will receive).

Federal and state law require that the IEP is to be written in order to be “appropriate” for the child’s needs and confer “meaningful” educational benefit to the child in the “least-restrictive environment.” What constitutes meaningful benefit, what is appropriate for the child, and what is the “least restrictive environment” are subject to debate in every case, given that the laws don’t define those words.

RECIPE FOR IMPASSE

Special education laws do not provide for the allocation of the very best possible educational services, only an appropriate IEP designed to confer meaningful educational benefit. What happens in many cases is that the parents and schools often disagree about what’s appropriate because parents generally want more or better services for their children than the school is able or willing to provide. Most schools do not withhold services or qualified staff just to be contrary. The deficiencies occur primarily because of limited resources, lack of sufficient staff, and lack of staff training.

HOW DISPUTES ARE RESOLVED

When the school and parents reach an impasse in the IEP team process as to what constitutes an appropriate education plan for the child, there are several mechanisms available to help resolve these differences. They are complaint investigation, facilitated IEP meeting, mediation and due process hearing.

COMPLAINTS

With a complaint investigation, an individual employed by the Michigan Department of Education (MDE) would gather information from the person filing the complaint (usually the parents) and the school staff about what happened (or didn’t happen but should have), gather documents and issue a decision and corrective action, if the laws were violated. There is no charge for this process. Although the parent can hire an attorney to represent them in this process, no attorney is required. Information about the process to file a complaint in Michigan can be viewed at https/www.michigan.gov/mde/ Services/special-education/spotlight/ state-complaints-procedures-and-model-forms-and-dispute-resolutionoptions-documents-released. There is no cost to the parent to utilize the MDE complaint process.

MEDIATION

With a mediation, the state assigns a mediator for the process, and it works much like mediation in other areas of law. There is no cost to the parent to utilize the MDE mediation process. If the parties instead decide to hire a private mediator, there would be a cost for the mediator’s time. Statistically, most mediations result in a settlement agreement, so mediation is a worthwhile tool in resolving special education disputes.

DUE PROCESS HEARING REQUESTS

With a special education due process hearing request, an independent hearing officer is assigned from a rotating list kept by the MDE. This individual would conduct an administrative hearing and issue a decision on whether the child’s substantive or procedural due process rights under the state’s MARSE or the federal IDEA have been violated. There is no cost to the parents for utilizing the due process hearing system.

Parents can hire private counsel to represent them at the hearing at the parents’ own expense. However, if the parent prevails, the IDEA allows the parents to seek reimbursement for attorney fees and costs from the school district. This attorney fee shifting occurs because special education due process cases are seen as civil rights matters, and payment of the attorney fees for parents is provided in the IDEA.

MARSE special education law mirrors the IDEA, though there are a few differences, which will be the subject of a future article.

Federal and state laws provide that the family can have a decision in hand within 45 days of their request for hearing being submitted to the MDE. However, as a practical matter, more often than not, the process takes a few months to get the decision in hand because it usually requires the coordination of the schedules of two attorneys and a hearing officer, with the average hearing lasting three to five days.

After the hearing officer renders a decision, either party may appeal that decision to state or federal court.

You can learn more about special education due process hearings at https/www.michigan.gov/-/ media/Project/Websites/mde/ specialeducation/DRO/ DueProcess_Complaint_ Procedurespdf?rev=7bc45fcdfc3348df 9b4514e10d5ed413

HOT TOPICS IN SPECIAL EDUCATION LAW

There are a variety of reasons that schools and parents reach an impasse about what constitutes an appropriate IEP for the child. Common areas of dispute are:

Autism cases

Savvy parents of children with autism want schools to utilize a type of therapy with the children that has proven scientifically to enable a high number of children with autism to eventually be placed in the mainstream classroom. However, this therapy (usually called Applied Behavior Analysis, Applied Verbal Behavior Therapy or Discreet Trial Training) is expensive to implement because providing such a program requires the use of one-on-one assistance for the child by Registered Behavior Technicians (RBTs) and a Board Certified Behavior Analyst (BCBA) to devise and oversee the implementation of the program. Schools ordinarily don’t have the funds or training to provide this one on-one therapy, so even though it has been known for decades that this peer-reviewed, scientifically based method of instruction really works, schools don’t offer this option to parents, creating a recipe for impasse.

Behavior problems

If a child has behaviors that impede his learning or the learning of others, then the school would need to conduct a functional behavioral assessment (FBA) that takes a data-intensive review and analysis

of what leads up to the behavior (antecedent), what the behavior is and what the consequences are.

Then after the FBA is conducted, a Behavior Intervention Plan (BIP) is written up and incorporated into the child’s IEP. This BIP is designed to help teachers appropriately and consistently handle misbehaviors of the child. The goal of a well designed BIP is to extinguish behaviors that interfere with student learning and replace them with appropriate behaviors.

For example, a child with autism, when given something particularly challenging, might bang his head on the table as an avoidance tactic because when does that, the teacher stops what she was doing and comforts him. Although this might be a natural reaction for the teacher, that type of reaction can reinforce the head banging for the child and increase the likelihood he would keep doing it to avoid doing challenging classwork. An FBA and BIP would be warranted to address this type of situation.

Dyslexia

Dyslexia is a common problem. Children with dyslexia learn to read differently from their peers and often require different methods and more intensive assistance in learning to read than the typical schools are able and willing to provide. Dyslexia is a learning disability in reading that requires specialized instruction. However, although there are also peer-reviewed, scientifically based methods of instruction that work for students with dyslexia (Orton Gillingham methods), schools typically do not have staff with the credentials and training needed to implement these specialized reading programs. The result is that often students with dyslexia do not learn to read past about the third- or fourth-grade level, which adversely impacts the rest of their academic careers and life choices.

Suspensions/ expulsions

Removal of a special needs child from school for misbehavior is a different proposition than for a regular education child. A student with a disability may be suspended for up to 10 consecutive school days for misconduct. The school doesn’t have to provide any educational services during the first 10 days of suspension in a school year. The school may suspend a student for up to 10 consecutive school days for each separate incident of misconduct. However, when the number of days of suspension in a school year reaches the 11th day, the school must provide educational services to the student and must convene an IEP team meeting within 10 business days of the 11th day of suspension to develop a plan for an assessment of the student’s behavior and review and/or revise the student’s existing behavior plan.

A student with a disability may be expelled. However, before an expulsion can occur, the school must notify the parent of the decision on the day the decision is made, provide the parents with a copy of their notice of rights, convene an IEP team meeting within 10 school days of the decision to expel the student, and conduct a manifestation determination. This determination means the committee looks at whether the behavior was caused by the child’s disability or whether it was a willful choice not caused by the disability. If the behavior was caused by the child’s disability, then legally that behavior cannot serve as a basis for expulsion. If the behavior was not caused by the child’s disability, then the child may be expelled, but educational services still must be provided to the so that he or she can continue to make educational progress. However, parents who disagree with the school’s decision can request an expedited due process hearing. Finally, a child who has not yet been identified by the school as having a disability but who is being suspended for more than 10 days or expelled can invoke the protections of the IDEA if the school knew or should have known that the child had a disability but failed to evaluate the child and failed to provide appropriate educational services.

Although this article is an oversimplification of this fascinating area of law, the hope is that this information will be useful to other attorneys, advocates, schools and parents in regard to special education legal rights and responsibilities.