Beginning August 10, 2017, the regulations implementing Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 34 C.F.R. Part 104, and the Individuals with Disabilities Education Act (“the IDEA”), 34 C.F.R. Part 300, will be revised to change references to “mental retardation” to “intellectual disability.”  The revisions are being made pursuant to Public Law 111-256, better known as Rosa’s Law.  Originally enacted in October 2010, Rosa’s Law is named for Rosa Marcellino, a child with Down Syndrome whose family advocated for more accurate and progressive terminology in legislation affecting individuals with disabilities.  The Marcellino family’s efforts are part of a larger trend toward replacing outdated or pejorative legal terms with language that acknowledges the dignity and capabilities of individuals with disabilities. Continue Reading Updated Federal Regulations: Rosa’s Law Changes Section 504 and IDEA References from “Mental Retardation” to “Intellectual Disability”

The Individuals with Disabilities Education Act (IDEA) guarantees students with disabilities access to a free appropriate public education (FAPE) and establishes a formal administrative framework within which disputes concerning the denial of FAPE are addressed. In addition, other federal statutes, such as the Title II of the Americans with Disabilities Act (ADA) and § 504 of the Rehabilitation Act, protect individuals with disabilities, and may also be applicable to children in a school setting. Under current law, a plaintiff bringing a disability discrimination claim under these other federal discrimination statutes which seeks relief also available under the IDEA, is required to exhaust the IDEA’s administrative process before bringing suit.  However, in a recently released opinion, the U.S. Supreme Court has clarified when exhaustion under the IDEA may not be required. Continue Reading U.S. Supreme Court: Exhaustion of administrative remedies under the IDEA not required for disability discrimination claim if claim does not involve denial of FAPE

In a decision issued July 24, 2014, Senior United States District Court Judge Jack Weinstein has authored an opinion proposing a new standard for evaluating whether the IEP of a special education student who has experienced bullying provides that student with a free appropriate public education (FAPE).  In T.K. v. New York City Dept. of Educ., 2014 U.S. Dist. LEXIS 101277 (E.D.N.Y. 7/24/14), Judge Weinstein offered that there is a new “FAPE Bullying Standard”: “a disabled student is deprived of FAPE when school personnel are deliberately indifferent to or fail to take reasonable steps to prevent bullying that substantially restricts a child with learning disabilities in her educational opportunities.”  The opinion clarifies that the conduct “does not need to be outrageous in order to be considered a deprivation of rights of a disabled student.  It must, however, be sufficiently severe, persistent, or pervasive that it creates a hostile environment.”  Furthermore, the “rule does not require that the bullying would have prevented all opportunity for an appropriate education, only that it was likely to affect the opportunity of the student for an appropriate education.”

Those of us representing school districts have been concerned since the issuance of the U.S. Department of Education’s Dear Colleague Letter on August 20, 2013 admonishing school districts to reconvene IEP team’s to review a disabled student’s IEP if the student is determined to have been affected by bullying, that this would impose new requirements on IEP teams that they may not be prepared to address.  This opinion seems to be the culmination of those concerns.

The allegations in the T.K. case were that the student, L.K., was placed in a New York City Collaborative Team Teaching (CTT) classroom at P.S. 6, containing both general education and special education students.  She alleged that she was intentionally “pinched, bruised and injured” by another child in her class during the lunch period.  The opinion faults the school’s response to the allegations, stating that the principal failed to investigate adequately and inform the parents about actions taken to resolve the problem.  The following year, it was alleged that this same student “stomped” on L.K.’s toes.  There was no way to separate the two students because they were both special needs students requiring the same classroom, and there was only one such classroom available in the school.  That year, L.K. complained daily to her parents about being bullied and resisted attending school, resulting in multiple tardies and absences. According to the opinion, the teachers in the classroom confirmed that L.K. was bullied by the other students and that the classroom was a “hostile environment” for her.

It does not appear that any specific IEP team meetings were convened to address this situation for L.K., and when the annual review meeting was held that spring and the parents attempted to raise the issue of bullying and how it was going to be addressed, the opinion states that the parents were told that was not an appropriate subject for the IEP team to address and that it would not be discussed.  This, the court found, denied the parents a meaningful opportunity to participate in the educational process.

The court further found fault with the fact that the present levels of academic and functional performance on the child’s IEP failed to reflect that she had been a victim of bullying, and instead focused on the child’s “sensitivity” and need to improve her communication skills.  Although the student had goals and a behavior intervention plan (BIP) that addressed her interfering behaviors, which would in turn, the staff contended, reduce her vulnerability to bullying by peers, the court deemed these measures insufficient. “Where there is a substantial probability that bullying will severely restrict a disabled student’s educational opportunities, as a matter of law an anti-bullying program is required to be included in the IEP.” (Emphasis added.)

There is just one problem: IDEA does not say that, and neither do its implementing regulations.  There is nothing in IDEA that tells schools what an “anti-bullying program” is for purposes of a child’s IEP.  While certainly no one would advocate that leaving a child who is being bullied in an untenable situation is an acceptable educational outcome, the IEP is designed to focus on the measurable outcomes that will be achieved in that child’s skills and abilities over the course of the next school year, not to regulate the conduct of other children around them.  As most states do, Connecticut has a robust anti-bullying statute which gets further refined seemingly each year by the legislature, and school districts are required to take steps to improve school climate for all students, investigate and address bullying and other mean-spirited behavior when it does occu, and make sure that every child has the opportunity to attend school in a safe and healthy learning environment.  A safety plan is required for any child who is the victim of a verified incident of bullying.  That’s not the problem.  The problem is, how do we go about including this in a child’s IEP and is it appropriate to do so?

The opinion does not answer this question.  It criticizes the department of education for “blaming the victim” by focusing on goals and objectives to improve the child’s measurable outcomes.  It seems to imply that the IEP perhaps should have focused more on changing the setting in which the child was being educated to remove her from being the target of the other students, which perhaps would have resolved the situation.  But, IDEA makes a distinction between a “placement” and a “location” for a child’s educational program.  The “placement” needed by L.K. was the CTT classroom.  The district was not required to specify that the location of the CTT classroom would have been changed to remove L.K. from the bullies, even if that was the intent of the school officials. But in the absence of an “anti-bullying program” in L.K.’s IEP, this court decided that the parents were entitled to reimbursement for their unilateral private school placement.

It’s hard to imagine that the New York City Department of Education isn’t preparing their papers for the appeal as we speak.  Leaving that aside, however, forewarned is forearmed.  It is clear that we need to pay attention to our obligations under both the anti-bullying statutes and the Dear Colleague Letter and ensure that IEP teams are addressing the unique needs of children with disabilities who are being bullied by their classmates. And, when it comes down to it, we just need to make schools a safe place to learn.

If you are responsible for the implementation of either IEP’s or Section 504 plans in your school district, at some point, you have probably encountered a situation where a parent refuses to provide consent (or revokes consent) for an IEP, and insists that the district instead implement a Section 504 Accommodation Plan.  If so, you have probably wondered whether the district was obligated to do this, and you may have read the 1996 letter of guidance issued by OCR called Letter to McKethan, 25 IDELR 295 (OCR 1996).  Well, it looks like McKethan just got another "shot in the arm" from a U.S. District Court judge in the Western District of Missouri.

Continue Reading Parents Refuse Consent for IEP? Still No Obligation to Write 504 Plan

In a decision released Monday by the State of Connecticut Department of Education, Case No. 09-552, a hearing officer found a student with asthma and allergies triggered by various environmental allergens, including mold and pollen, was not eligible for special education services under the category of Other Health Impaired (OHI).  The student, a senior in high school who actually graduated in June 2010, claimed he should be considered eligible for special education and his family should be eligible for reimbursement for four years of private college preparatory high school education, despite being an honors student with good grades and no need for specially designed instruction at any point during his school career.

Continue Reading Doctor’s Claim of Student Disability Due to Mold Allergy Rejected

In June 2007, the CT DOE started the process of revising the state special education regulations, and circulated its proposals for public comment.  Based on the responses, the Department decided to revise its proposal and restart the review process.  A new draft has emerged, dated February 3, 2010.  According to the accompanying memorandum from Commissioner McQuillan, a new public comment period will follow.  So, what’s in the new draft that might be of interest to LEA’s in Connecticut?  For the most part, the new draft more closely tracks the IDEA requirements and narrows the differences between state and federal regulatory requirements.  But there are some significant differences and changes from the earlier draft.


Continue Reading CT DOE Circulates Draft Revised Special Education Regulations

In a decision filed December 8, 2009, the United States District Court for the District of Oregon issued a ruling in the case that went all the way to the United States Supreme Court and back on the issue of whether a school district could be liable for tuition reimbursement to a private school in a case where the student had never before received special education services from the public school district.  In Forest Grove School District v. T.A., 129 S.Ct. 2484 (2009), the Supreme Court held that the IDEA does not pose a categorical bar to such reimbursement. On remand for a determination of whether the hearing officer’s reimbursement order should stand, the United States District court reversed, denying reimbursement to the parents on equitable grounds.

Continue Reading Forest Grove Case Drops Other Shoe

In a new decision issued October 9, 2009, T.Y. v. New York City Dept. of Education, 109 LRP 63646 (2d Cir. 2009), the Second Circuit Court of Appeals has ruled that it is not a procedural violation of the Individuals with Disabilities Education Act (IDEA) for the IEP not to name a specific school that is recommended for a child with special education needs.  Departing from the 4th Circuit view on this issue in a case decided in 2007, the 2nd Circuit ruled that the IDEA provision requiring IEP’s to include the anticipated location of a child’s services does not mean that the IEP must name a specific school, just a general type of educational program.

Continue Reading Second Circuit Decision: Failure to Name Specific School Not a Procedural Violation for IEP