Special Education/504

By: Cameron R. Morgan, Esq.
Editor: Sanmathi (Sanu) Dev, Esq.

In last week’s segment, we discussed the importance of filing for due process and seeking emergent relief on behalf of a school district when the parents of a child receiving special education and related services take action, or refused to take action, in a way that prevents the district from fulfilling its legal obligation under the Individuals with Disabilities Education Act (“IDEA”) to provide the child with his or her right to a free and appropriate public education (“FAPE”). Today, we discuss the mechanics of doing so and highlight the necessary elements to obtain emergent relief from the court.

First, the school district should assess the facts and circumstances of its case against the legal standards under which its application for emergent relief will be reviewed. The special education regulations have adopted the familiar four-prong standard of Crowe v. De Gioia, 179 N.J. Super. 36 (1981). In short, emergent relief in a special education case will only be granted if the party seeking such relief establishes: (1) it will suffer irreparable harm if the requested relief is not granted; (2) the legal right underlying the claim is settled; (3) it has a likelihood of prevailing on the merits of the underlying claim; and (4) when the equities and interests of the parties are balanced, it will suffer greater harm than the other party if the requested relief is not granted.  See N.J.A.C. 6A:14-2.7(s) and N.J.A.C. 1:6A-12.1(e).

Of the four categories of matters for which emergent relief may be sought – disciplinary matters, graduation-related matters, stay-put related matters, or breaks in the delivery of services (see N.J.A.C. 6A:14-2.7(r)) – situations involving a break in the delivery of services are by far the most likely to give rise to an emergent relief request by a school district. In terms of mechanics, the request for emergent relief should always be accompanied by a due process petition. It must also be supported by an affidavit or notarized statement specifying the basis for emergent relief, which is usually prepared by counsel on behalf of the Director of Special Services, case manager, or another child study team member who possesses personal knowledge of the factual basis underlying the request.

The district should always frame its petition and supporting affidavit to present the facts with an eye toward meeting each of the four prongs of the Crowe standard. The petition must clearly explain how the break in the delivery of services resulted, or was unable to be remedied, due to the lack of parental consent and how irreparable harm results to the school district. When a parent refuses consent to initial evaluations or reevaluations that are necessary to make an eligibility determination or develop an appropriate IEP, the irreparable harm to the district almost always takes the form of potential liability that could result to the district by its being precluded from meeting is legal obligations. If authorization to proceed is not judicially granted, the timelines of the code will be missed and the district will be out of compliance, because it will be deprived of the ability to evaluate the child and obtain the information that would enable it to make an eligibility determination or draft an appropriate IEP that can provide FAPE.

In other situations, such as where a parent refuses to cooperate in releasing student records or participating in the intake process at potentially appropriate out-of-district placements, the irreparable harm to the district mirrors the resultant harm to the child from a break in the delivery of services, since the district has as parens patriae responsibility to ensure the educational well-being of the child. Apart from the child study team wanting the child to be appropriately educated, if the child misses significant portions of time without an appropriate school placement, the parent’s own refusal to explore appropriate schools could result in irreparable harm by creating liability for the district in the form of a compensatory education claim.

In arguing the second and third prongs, school districts will be aided by a robust and growing body of precedent granting emergent relief under these circumstances. In the case law, administrative law judges have adopted a practical approach, writing opinions that often utilize overlapping rationales in their discussion of the remaining three elements. The takeaway, however, is clear. When a special needs child is not receiving appropriate educational services due to lack of parental consent or cooperation, it is incumbent on the school district to move for affirmative relief now, rather than risk liability due to its inaction later.

By: Cameron R. Morgan, Esq.
Editor: Sanmathi (Sanu) Dev, Esq.

In the increasingly litigious world of special education, New Jersey school districts and Board attorneys are generally accustomed to being on the receiving end of lawsuits with parents. Yet, understanding how and under what circumstances to file for due process or seek emergent relief can be just as important to ensuring your district is legally compliant as defending a due process petition filed by a parent. Special education practitioners representing districts that are facing uncooperative parents would do well to remember one thing: when parents place the child study team in an impossible position, be proactive in your representation.

What kinds of circumstances give rise to the need for a school district to seek affirmative relief? In special education, there are several. If the parents have refused consent to allow the district to conduct initial evaluations of a student suspected of having a disability that adversely affects the child’s educational functioning, the school district should file for due process to compel the evaluations. This was the case in Washington Twp. Bd. of Educ. v. N.L., EDS 06855-17 (May 22, 2017), where the district sought and obtained emergent relief compelling initial evaluations despite the parents’ refusal to consent, in order to enable an initial eligibility determination to be made.

The same is true whenever a child is due for reevaluations that are necessary to determine the child’s level of educational functioning or develop an appropriate individualized education program (“IEP”), but the parents have refused consent. In Gloucester City Bd. of Educ. v. G.H., EDS 9165-15 (July 14, 2015), the district obtained emergent relief to conduct reevaluations for a student aging out of the pre-school disabled category, over the objection of the parents who had refused consent. There are several other cases holding similarly, including River Edge Bd. of Educ. v. V.F., EDS 5680-09 (June 1, 2009), in which the school district was granted emergent relief authorizing it to conduct a psychiatric evaluation despite the lack of parental consent.

At other times, a district must act when it feels that the student is in need of an out-of-district placement, but the parent either (a) will not sign consent to release student records to potentially appropriate out-of-district schools, or (b) refuses to cooperate in the intake and admissions process. In K.P. o/b/o K.A. v. Maple Shade Twp. Bd. of Educ., EDS 8871-09 (September 8, 2009), the district obtained emergent relief authorizing the release of student records and compelling parental cooperation with intakes at potential placements.

Before filing a due process petition or requesting emergent relief on behalf of a school district, several questions should always be asked. The first is whether the facts implicate one of the four situations in which emergent relief may be sought. Emergent relief can only be requested for issues that involve: (1) a break in the delivery of services, (2) disciplinary action, including manifestation determinations and interim alternative placements; (3) stay-put during a pending due process hearing; and (4) graduation or graduation ceremonies.  N.J.A.C. 6A:14-2.7(r).

Of these four scenarios, the first is by far the most commonly invoked when the school district is the party filing for due process. The simple fact of a parent’s refusal to cooperate is not enough. Each of the four cases cited above involved conduct by parents that caused a break in the delivery of services to the student. When parental action or inaction has compromised the district’s ability to provide a FAPE to the student, initiating a small lawsuit to obtain emergent relief now is infinitely preferable to losing a larger lawsuit later on after the student has been denied his or her right to an appropriate education. Often, the risks of doing nothing or adopting a “wait and see” approach are simply too high to ignore.

In the next segment of this series, we will delve into the mechanics of filing for emergent relief, the necessary elements that must be proven, and the proofs necessary to obtain it.

On March 22, 2017, the United States Supreme Court decided the case of Endrew F. v. Douglas County School District in which it revised the national standard for determining whether a special education student has received a free appropriate public education (“FAPE”) under the Individuals with Disabilities Education Act (“IDEA”). On December 7, 2017, the United States Department of Education (“DOE”) issued a Questions and Answers (“Q&A”) document on this important case.

In short, the Endrew F. Court held, “To meet its substantive obligation under the IDEA, a school must offer an [individualized education program] reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” For a full analysis of Endrew F., please see our previous article here.

The DOE’s Q&A provides an overview of the case, clarifies the IDEA’s FAPE requirement, and offers considerations for implementation.

The DOE emphasized that prior to Endrew F., the Federal District Courts and Circuit Courts disagreed on the substantive standard of FAPE. The Tenth Circuit, the Circuit Court from which Endrew F. arose, had previously applied a “de minimis” standard, which the Supreme Court clearly rejected. Importantly, the Third Circuit, which applies to New Jersey, Pennsylvania, Delaware and the Virgin Islands, never applied a de minimis standard. In fact, it can be argued that the “meaningful educational benefit” standard used in the Third Circuit was already congruent with the Supreme Court’s ruling in Endrew F.

In explaining the “reasonably calculated” standard, the DOE stated that the IEP team for the student should consider the following factors: the progress of the child and previous rate of academic gains, child’s potential for growth, views of the child’s parents, effectiveness of specific instructional strategies, supports, and services provided to the child in the past, whether the child is achieving grade-level expectations, and whether the child exhibits any behaviors that are interfering with progress. The DOE echoed the Court’s sentiment that the standard is not whether an IEP is ideal, but whether the student will likely make progress.

The DOE did not set forth any specific factors in interpreting the Court’s requirement that an IEP enable a student to make “progress appropriate in light of the child’s circumstances.” Instead, the DOE emphasized language from the Court’s decision that the IEP team consider the student’s present levels of achievement, disability, and potential for growth.

In advising on best practices, the DOE stated that IEP teams must implement policies, procedures, and practices relating to:

(1) identifying present levels of academic achievement and functional performance;

(2) the setting of measurable annual goals, including academic and functional goals; and

(3) how a child’s progress toward meeting annual goals will be measured and reported.

You can review the complete Q&A here.

By: Cameron R. Morgan, Esq.
Editor: Sanmathi (Sanu) Dev, Esq.

One of the most common scenarios giving rise to special education litigation is a due process petition filed by parents against their school district in order to seek tuition reimbursement for the costs of a private school, after the parents have unilaterally placed the child in the out-of-district placement.  Bringing a motion to reduce or deny tuition reimbursement, if it can be shown that the parents failed to timely provide the notice, has traditionally been one of the simplest and most effective defenses a school district can assert in defending such a unilateral placement claim.  However, a recent unpublished ruling of the federal District Court of New Jersey may signal a willingness on the part of the courts to complicate the analysis by bringing equitable considerations into play.

The Individuals with Disabilities Education Act (“IDEA”) provides that a claim for tuition reimbursement “may be reduced or denied” if “at least 10 business days . . . prior to the removal of the student from the public school, the parents did not give written notice to the district board of education of their concerns or their intent to enroll their child in a nonpublic school.”  N.J.A.C. 6A:14-2.10(c); 20 U.S.C. § 1412(a)(10)(C)(iii).  However, H.L. & J.L. v. Marlboro Township Board of Education, No. 16-9324 (D.N.J. November 14, 2017), a federal judge recently held that failure on the part of a parent to provide the above notice does not constitute an automatic categorical bar to reimbursement.

The District Court reviewed the ruling of an administrative law judge (“ALJ”) who had dismissed the parents’ due process petition for failure to provide timely written notice of their intent to unilaterally place the child.  The student was enrolled in the private school on July 9, 2015, but the parents did not notify the school district of their intention to seek tuition reimbursement until August 12, 2015.  As a result, the ALJ dismissed their tuition reimbursement claim in its entirety.  On appeal, the District Court upheld the ALJ’s finding that the family’s letter of June 25, 2015 requesting an intake appointment at the placement did not meet the requirements for notice, since it failed to indicate any intention by the parents to seek tuition reimbursement from the district.  However, the District Court ultimately reversed the per se dismissal of the petition and remanded the matter back to the ALJ for a determination of whether the equities of the case “warrant a wholesale denial of Plaintiffs’ claims for reimbursement, as opposed to [merely] a reduction in the cost of reimbursement.”

Noting that the IDEA and the applicable state regulation made reduction or denial of tuition reimbursement discretionary rather than mandatory, the District Court reasoned that the ALJ in Marlboro had failed to set forth his reasons for finding that the parents’ failure to provide timely notice warranted a complete reduction of tuition reimbursement.  In doing so, the District Court remanded the case back to the ALJ for an “equitable analysis” of “the extent to which Defendant was prejudiced by receiving late notice of Plaintiff’s decision.”  The court also found that the parents’ failure to provide the notice was not a per se bar to any claim they might assert for compensatory education for any period of time in which the child was not provided with his right to a free and appropriate public education while attending school in the district.

While this case is not precedential, a requirement that equitable considerations be balanced and there be a showing of prejudice from the lack of notice would have a strong potential to undercut the effectiveness of this defense for school districts.  Districts that foresee unilateral placements by parents who may be dissatisfied with educational services being provided in-district would do well to document prejudice that could result from a failure on the part of parents to provide the required notice.  While the court did not provide much guidance on what would constitute adequate prejudice justifying a complete denial of tuition reimbursement, in most cases, the prejudice to the school district would likely take the form of the child study team being prevented from addressing the parents’ concerns through amendments to the child’s individualized education program or prevented from adequately exploring whether the private school would be appropriate for the child prior to the parents making the unilateral placement.

The North Valley Regional High School District had a policy in which students could enroll in Honors or Advanced Placement classes by obtaining a teacher’s recommendation. Without a recommendation, a student could “waive” into such a class if the student and parents sign a document stating that they understand the requirements and demands of the course and that no accommodations would be made. Two parents of learning disabled students sued North Valley in federal court seeking injunctive relief. They claimed that the policy discriminated against the students in violation of the Americans with Disabilities Act. On September 6, 2017, the United States District Court for the District of New Jersey in Leddy v. North Valley Regional High School District, 2017 U.S. Dist. LEXIS 144517 denied the parents’ request for injunctive relief.

Until the 2017-2018 school year, North Valley’s policy allowed students to take Honors/AP courses without a teacher’s recommendation if:

(1) the student is enrolled in an honors course with a minimum cumulative grade of C+ or is enrolled in a CPE course with a minimum cumulative grade of B+; and

(2) the student and her parent sign a preprinted waiver form certifying that the student understands the requirements and demands of the honors/advanced placement course and is willing to enroll in the course without the recommendation of the faculty and that department. The student further understands that no accommodations or curricular adjustments will be allowed per academic year.

For the 2017-2018 school year, North Valley removed the “no accommodations or curricular adjustments” language from the policy.

The students in this case are learning disabled and have individualized education plans (“IEPs”). The parents argued that for the years prior to the 2017-2018 school year, the school district’s policy violated the ADA by discriminating against students with disabilities because the policy forced them to forfeit their statutory right to accommodations under their IEPs.

The District Court rejected the parents’ argument because the specific facts in this case did not indicate that the policy was intended to or actually read in a manner in which students gave up their right to accommodations under another statute. The parents failed to set forth any evidence that North Valley denied a student in an Honors or AP class of any accommodation to which the student was entitled by his/her IEP. Further, the District Court found that the student in question was not actually required to sign the waiver but received a teacher recommendation, and therefore, the waiver requirement did not exclude the student from an Honors or AP course. In addition, the District Court reasoned that in this particular case, the term “accommodations” is an ordinary English word not limited to the context of anti-discrimination laws. The District Court concluded that the waiver was intended to inform parents that the demands or requirements of an Honors or AP class would not be changed if a student struggled in the course but does not mean students forfeit any statutory rights.

This case must be interpreted with caution, as the decision was highly fact-sensitive and dealt with a parent’s request for injunctive relief. School districts in New Jersey constantly face the challenge of balancing the rights of students with disabilities and maintaining the integrity of advanced courses. Districts should consult with their school board attorney to ensure that their policies related to Honors/AP courses are consistent with the ADA and any other laws applicable to students with disabilities.

By: Cameron R. Morgan, Esq.
Editor: Sanmathi (Sanu) Dev, Esq.

The Third Circuit Court of Appeals has issued an important decision finding that parents in special education litigation with school districts will be considered “prevailing parties” entitled to an award of attorneys’ fees in the event the district ignores or fails to comply with its obligations under the “stay-put” provision of the Individuals with Disabilities Education Act (“IDEA”).  M.R. & J.R. ex. E.R. v. Ridley Sch. Dist., No. 16-2465, 117 L.R.P. 34473 (3d Cir. 2017).  On August 22, 2017, the Third Circuit issued its decision substantially altering the landscape of fee-shifting in relation to stay-put compliance in special education cases.  In doing so, the Court drew an important distinction concerning the types of stay-put rulings that would give rise to prevailing party status and an award of fees.  While temporary rulings that determine the child’s stay-put placement and status on a prospective basis will not result in fee awards, rulings by a court or Administrative Law Judge (“ALJ”) awarding backward-looking reimbursement or compensatory relief as a result of a district’s non-compliance with its stay-put obligations will now render the parents prevailing parties and give rise to awards of potentially costly attorneys’ fees.

Under the “stay-put” provision of the IDEA, a child has a right to continuation of the “then-current educational placement” during the pendency of a dispute between the parents and the school district over their child’s educational services.  As special educators and practitioners know, it is not always an easy task to determine what placement, or set of supplemental or related services constitutes “stay-put” for purposes of continuation during the dispute.  However, the parents’ right to the stay-put placement and services continues unless and until the litigation is resolved in favor of the school district, including throughout the pendency of the appeal process, or the parties agree otherwise.  In cases where a district has sought to change the services in a child’s individualized education program (“IEP”), but the parents have initiated suit to maintain the prior services, this can mean that the parents effectively obtain the legal relief they are seeking for years on-end before a ruling on the merits is issued or the appeals are exhausted.

The holding in Ridley makes it clear that school districts must resist the temptation to simply stop paying for an out-of-district placement or for outside services that they may not believe to be in the child’s interests, if that placement or those services are part of the stay-put obligation.  To become a prevailing party entitled to fees under the IDEA’s fee-shifting provision, 20 U.S.C. § 1415(i)(3)(i), a party must obtain a “material alteration of the legal relationship between the parties” that is “judicially sanctioned.”  In cases of a district’s non-compliance with stay-put, parents will now be entitled to a potentially hefty fee award for the cost of enforcing their rights.

The point is highlighted by the fact that, under the unique facts of Ridley, the school district was ultimately successful on the merits of the case.  The child, E.R., had attended school in the district for kindergarten and first grade.  For second grade, however, the parents disagreed with the continuation of the in-district placement and opted to unilaterally place E.R. in a private school and seek tuition reimbursement through the administrative complaint process (in New Jersey, a “due process hearing”).  In 2009, the administrative hearing officer issued a decision in the parents’ favor, which, at that point, became the child’s “stay-put” placement.  The school district appealed that ruling to the federal district court, which issued a decision in 2011 reversing the hearing officer’s determination.  In 2012, the Third Circuit affirmed the decision in favor of the school district, bringing an end to the underlying case on the merits.

During the pendency of the underlying litigation, the school district had refused to continue to fund the out-of-district placement for the three years from the time of the hearing officer’s decision in 2009 through the conclusion of the appeal process in 2012.  The parents initiated a separate suit in the U.S. District Court seeking back-tuition and attorneys’ fees for their enforcement action.  The district court awarded the parents three years of full back-tuition, and the Third Circuit affirmed.  In May 2015, the U.S. Supreme Court denied the school district’s petition for certiorari.  Yet, in reliance on earlier Third Circuit precedent, the district court had held that the parents’ obtainment of stay-put reimbursement did not make them prevailing parties and declined to award then attorneys’ fees.

In this opinion, the Third Circuit reversed the denial of prevailing party status to the parents and remanded to the district court for an award of attorneys’ fees and costs expended in the enforcement litigation.  In its holding, the Court drew a critical distinction between an award by a court or ALJ of temporary “forward-looking injunctive relief” that does not involve a merits-based determination, such as determining what will constitute “stay-put” at the outset of a case, and “backward-looking compensatory relief” that requires an independent merits determination, such as monetary reimbursement or compensatory education awarded as a result of the district violating “stay-put” by refusing to fund the then-current placement during the pendency of the dispute.  The latter type of ruling will now give rise to prevailing party status for the parents.

The practicalities of the Court’s holding in Ridley makes this case one that every special education attorney and director of special services should be aware of in navigating the complicated landscape of special education litigation in New Jersey.  In the view of this practitioner, understanding and abiding by the distinction drawn by the Court is absolutely critical in an era of clogged administrative dockets and tactical maneuvering by attorneys.  In cases where stay-put is the parents’ desired placement, an administrative proceeding can often drag on for an entire school year in the Office of Administrative Law.  School district attorneys need to educate their clients early on to make sure that stay-put payments continue to be made and are not cut off during the pendency of the case, whether through frustration with the length of the proceeding, innocent clerical missteps in the district’s accounting office, or genuine belief that the child is not deriving educational benefit from the out-of-district placement.

If school districts fail to abide by their stay-put obligations and enforcement by the parents becomes necessary, the result could be a hefty award to the parents’ attorney for the fees expended in enforcing stay-put rights.  The Ridley School District will learn this lesson in reimbursing attorneys’ fees incurred between 2012 and 2015, in a case that changed the law.  It would be wise to consider your school district on notice.

The parents of a disabled student brought claims against the Voorhees Township Board of Education (“Board”) alleging various violations, including violations of the Individuals with Disabilities Education Act (“IDEA”), for failing to place a nurse onsite at the school building the student would have attended for his extended school year (“ESY”) program. On June 5, 2017, the District Court for the District of New Jersey in R.G. v. Hill, found no violations and affirmed the Administrative Law Judge’s decision dismissing the parents’ claims. Neither the student’s individualized education plan (“IEP”) nor his medical needs required a nurse to be physically present at the building.

Student R.G. was eligible for special education pursuant to the IDEA under the classification of multiply disabled. He was diagnosed with several disabilities, including a seizure disorder. At the time student was transitioning to the middle school building for sixth grade, the school district proposed that the student attend an ESY program located at the middle school. The parents objected, arguing that the student’s IEP and needs required a school nurse at the building in order for him to receive a free appropriate public education (“FAPE”). While the school district had a nurse available within the district, it did not have a nurse on site at the middle school during ESY and disagreed with the parents’ position.

The parents initiated a due process petition against the Board on the issue. The student’s IEP included the following “special alert” at the top of the first page: “IF R.G. FALLS, TAKE HIM TO THE NURSE IMMEDIATELY AND NOTIFY PARENT.” The parents insisted that this “special alert” required a nurse to be physically present at the school building. The Administrative Law Judge (“ALJ”) disagreed with the parents. Instead, the ALJ found that the student’s IEP did not contain any related services for nursing or any required medical interventions by the school nurse. In addition, the seizure plan on file for the student did not require any related nursing services, actual nursing services, or medical interventions. In short, the ALJ determined:

The absence of any specific “related services” for the nurse in the IEP; the short durations of the seizures; lack of any prior treatment for seizures by the nurse; the lack of a nurse at home where R.G. spends the majority of his time; the lack of a nurse on field trips, vacations, and all events outside school; the extensive safety precautions taken by the district; and the historical evidence indicating that the role of the school nurse was that of a report generator, leads me to CONCLUDE that if two nurses were in nearby buildings but not in R.G.’s building, it would be a de minimis IEP deviation.

The ALJ reasoned that school districts are not required to have a school nurse onsite at every school building pursuant to N.J.S.A. 18A.40-1. In addition, the ALJ found that the Board attempted to accommodate the parents’ concerns without cooperation from the parents. The Board offered to provide a one-to-one aide to ensure that the student was protected from falls or injury. The Board notified the school staff of the student’s unique needs and also assigned the student to a special education teacher who was trained in first aid and CPR.

Based on the specific circumstances of the case, the ALJ denied the parents’ claims and found no violation under the IDEA. The parents appealed to the District Court, which agreed with the ALJ’s determinations. Specifically, the District Court held that the Board “met its burden of proving that it did not violate the IEP, and that it took measures to ensure that safety measures were in place for R.G. in the event he had a seizure.”