Special Education/504

On March 7, 2017, an Administrative Law Judge in K.I. o/b/o K.I. v. Moorestown Township Board of Education found that the Board violated Section 504 of Rehabilitation Act of 1973 by failing to offer a Section 504 plan to address the student’s celiac disease. The ALJ held that the Board failed to offer a free appropriate public education (“FAPE”) under Section 504 when it offered an individualized healthcare plan (“IHP”) instead of a Section 504 plan to address the student’s medical condition.

The student was in elementary school when she was first diagnosed with celiac disease, an autoimmune disease in which ingesting gluten damages the small intestine. Shortly after the diagnosis, the parent submitted medical documentation recommending certain accommodations for the student, such as allowing the student to carry a water bottle with her to hydrate, liberal access to the bathroom, cleaning of the cafeteria table before the student eats lunch, and access to sanitary wipes. After reviewing the information submitted by the parent, the Board developed an IHP for her and included the accommodations.

Thereafter, the parent insisted that the Board develop a Section 504 for the student. The Board responded that an IHP, which included the requested accommodations, was sufficient to meet the student’s needs. The Board contended that a Section 504 plan was unnecessary.

The parent filed a due process petition in the New Jersey Office of Administrative Law arguing that the student is entitled to a Section 504 plan. For a student to qualify for a Section 504 plan, the student must have a physical or mental impairment that substantially limits one or more major life activities. Here, the ALJ determined that the student has a qualifying impairment by way of celiac disease. Further, based on the medical documentation provided by the parent, the ALJ found that the celiac disease substantially limited one or more of the following major life activities: learning, concentrating, and digestion. The ALJ did not find it relevant that the student was excelling academically and rarely missed school to determine whether the student’s celiac disease is a qualifying condition under Section 504.

In short, the ALJ ruled that the IHP was insufficient to address the student’s celiac disease and required the Board to develop a Section 504 plan.

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

For many months now, those involved in the world of special education have been patiently awaiting the issuance of one of the most important legal decisions in special education in the past 35 years, since the seminal Rowley decision was handed down in 1982. On March 22, 2017, the United States Supreme Court decided the case of Endrew F. v. Douglas County School District, 580 U.S. ___ (2017), in which it confronted the difficult issue of the appropriate substantive standard for determining whether special education students have been provided with sufficient educational benefits to meet the requirement of providing a “free and appropriate public education” (“FAPE”) under the Individuals with Disabilities Education Act (“IDEA”). The IDEA has long provided that each eligible student is entitled to a FAPE through an individualized education program (“IEP”), developed in accordance with the Act’s procedures, that sets forth special education and related services tailored to meet the unique needs of the particular child.

Writing for a unanimous Court, Chief Justice John Roberts addressed the question of “how much benefit” is required to satisfy FAPE, but the opinion provided scant clarification concerning the new standard for students whose disabilities do not permit them to be educated in a general education setting. The Court held:  “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” (emphasis added).

In so doing, the Court rejected the Tenth Circuit’s interpretation of the Rowley decision that called for “some educational benefit” and interpreted the standard as “merely more than de minimus” educational benefit. The Court declined to establish an inflexible “bright-line” standard, but characterized its articulation as “markedly more demanding” that the “more than de minimus” test. At the same time, the justices also rejected the high standard advocated by the parents in the case – that an IEP must aim to provide “opportunities to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded children without disabilities.”

In offering further clarification of the standard, the Court focused in part on the IDEA’s mandate to educate children with special needs in the general education classroom whenever possible. The Court clarified that, “for a child fully integrated into the regular classroom, an IEP typically should . . . be ‘reasonably calculated to enable the child to achieve passing marks and advance from grade to grade’” and would “typically” mean providing instruction reasonably calculated to permit advancement through the general curriculum.

For more severely disabled children for whom this is not a reasonable prospect, the Court offered only limited guidance. The Court stated that, while the “IEP need not aim for grade-level advancement,” the program proposed for the child “must be appropriately ambitious in light of his circumstances just as advancement from grade to grade is appropriately ambitious for most children in the regular education classroom. The goals may differ, but every child should have the chance to meet challenging objectives.”

The Court acknowledged that the “reasonably calculated” component recognizes that crafting an appropriate educational program requires a prospective judgment by school officials. Although it crafted its standard to intentionally focus on student progress, the Court observed that “the IDEA cannot and does not promise ‘any particular educational outcome.’” It added:  “No law could do that – for any child.”  While deference should continue to be afforded school officials where their decisions are based on the exercise of educational judgment and expertise, a “reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.”

By its own admission, the Court acknowledged that its description is “a general standard, not a formula,” and should not be interpreted as an inflexible rule. Up until now, the operative standard in New Jersey and Pennsylvania, as articulated by the Third Circuit, was that an IEP must be “reasonably calculated to enable the child to receive meaningful educational benefits in light of his or her intellectual potential.” D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 557 (3d Cir. 2010). In Endrew F., the Supreme Court has inserted consideration of “the child’s circumstances” into the equation of determining the level of educational benefit required to be offered, while offering little insight into the meaning of that phrase. This element of the standard will no doubt be filled in through subsequent decisions of the lower federal courts.

While some might characterize the ruling as a “wash” in that the Court both declined to adopt the high bar urged by the parents of providing “substantially equal opportunities,” but also refused to accept the low bar of the Tenth Circuit’s “merely more than de minimus” standard, it is important not to equate the two. In adopting a standard which it characterized as “markedly more demanding” than the “more than de minimus” reading of Rowley, the Court appears to have raised the bar at least somewhat from the prior level. It would appear that the “basic floor of educational opportunity” that must be made available to special education students under the IDEA may have been raised just a few feet.

In a long awaited case involving a student requesting the use of a service dog in school, the United States Supreme Court unanimously ruled on February 22, 2017 in Fry v. Napoleon Community Schools that parents are not required to exhaust administrative remedies under the Individuals with Disabilities Education Act (“IDEA”) when the heart of their complaint does not allege a denial of a free appropriate public education (“FAPE”).

This case involved a student with cerebral palsy who qualified for special education and related services under the IDEA when she attended a public school in Michigan. As a result, she was eligible for an individualized education plan (“IEP”) to address her unique needs. The parents requested that the student’s service dog accompany her in school to assist her with various daily life activities. The school district denied the request, explaining that the human aide provided in the student’s IEP sufficiently addressed her needs, thereby making the service dog unnecessary. The parents removed the student from the school and ultimately enrolled her in a different school that allowed the service dog. The parents then sued the school district in federal court alleging violations of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. The parents did not allege claims under the IDEA.

In granting the school district’s motion to dismiss, the District Court reasoned that the parents of a disabled student are first required to exhaust administrative remedies under the IDEA when their alleged harms are educational in nature even if they are not directly alleging IDEA violations. According to the District Court, they must first request a due process hearing before resorting to federal court. The Sixth Circuit Court of Appeal affirmed.

The Supreme Court disagreed and vacated the Sixth Circuit’s decision. In its decision, the Supreme Court reasoned that if a complaint alleges something other than a denial of a FAPE, then exhaustion of administrative remedies is not required. Notably, the Supreme Court recognized that parents of disabled students cannot simply file in District Court and bypass a due process hearing by alleging violations of statutes other than the IDEA. Rather, the alleged claims must truly not touch upon a FAPE in order to file directly in federal court. The Supreme Court posed two questions for analyzing whether a complaint is about a FAPE:  1) whether the student could assert the same claim against a non-educational public facility and 2) whether an adult could file the same claim against the school district.

The Supreme Court remanded the case to the Sixth Circuit to determine whether the parents’ claims are related to a FAPE.

In Trenton Board of Education v. Mercer County Special Services School District, OAL DKT. NO. EDU 16465-15, AGENCY DKT. NO. 306-10/15 (Sept. 20, 2016), the Trenton Board of Education (“Trenton”) sought to supply individual aides through a contracted vendor for its special education students who are placed out-of-district at the Mercer County Special Services School District (“Special Services”), rather than rely on Special Services to hire and provide the aides. Trenton believed it could provide the aides at a less expensive rate than Special Services. However, the New Jersey Commissioner of Education, who affirmed the Administrative Law Judge’s decision, rejected Trenton’s arguments and ruled in favor of Special Services.

Placing special education students at out-of-district educational placements is generally costly, but it is necessary when the school district cannot provide an appropriate program for that student within the school district. Trenton attempted to mitigate the cost of sending students to Special Services by requiring Special Services to utilize the individual aides employed by Trenton through a contracted vendor for the special education students who are placed at Special Services and who require such an aide. Unfortunately for Trenton, the Commissioner held that Trenton was prohibited from mandating Special Services to use the aides selected and hired by Trenton.

Specifically, the Commissioner reasoned that there is no legal authority mandating that a receiving school district and/or out-of-district placement (Special Services) accept the aides selected by the sending school district (Trenton). The Commissioner cited to N.J.A.C. 6A:23A-17.1(e)(5)(viii), which considers individual aides as “extraordinary services” for which a district board of education may bill directly. The Commissioner also noted that Trenton and Special Services had a history of entering into one contract for tuition costs and another contract for the cost of individual aides for students placed at Special Services by Trenton. The Commissioner further reasoned that although Trenton, as the sending district, maintains responsibility for the provision of services and ensures compliance with a student’s individualized education program, it does not maintain the power to employ or appoint the individual aide who would service the child at the placement.

Boards of education are constantly strategizing and developing ways in which they can provide an appropriate education to students with disabilities in a cost efficient manner.  However, once a student is placed out-of-district, the board of education cannot require the receiving school district to utilize their preferred contracted vendor and/or employee.

Parents who bring claims on behalf of a disabled student under the Individuals with Disabilities Act (“IDEA”) against a school district are first required to follow the administrative process. In New Jersey, IDEA claims must first be filed with the State’s Office of Special Education Programs, and then the case is transmitted to the Office of Administrative Law for a due process hearing and disposition. A parent who disagrees with the Administrative Law Judge’s decision may then file an appeal in federal court. Are parents required to exhaust this same administrative process when they allege violations under Section 504 of the Rehabilitation Act (“Section 504”) but not the IDEA? The answer is yes, according to a recent opinion issued by the Third Circuit Court of Appeals on August 18, 2016 in S.D. v. Haddon Heights Board of Education, No. 15-1804, 2016 U.S. App. LEXIS 15172 (3d Cir. 2016).

The parents of a student enrolled in the Haddon Heights School District (“District”) sued the District in U.S. District Court alleging that the District unlawfully discriminated against him in violation of various federal and state statutes. The majority of their claims focused on allegations that the District violated the Rehabilitation Act (“Section 504”) and the Americans with Disabilities Act (“ADA”) by failing to properly accommodate the student’s disability. Notably, the parents did not allege any IDEA violations.

The District provided the student with accommodations through a Section 504 plan to address his various disabilities. In their complaint, the parents alleged that the Section 504 plans offered to the student failed to properly accommodate his disability and failed to provide him with certain services which precluded him from enjoying the benefits of the educational program to the same extent as his non-disabled peers. The parents also alleged that the District retaliated against him for enforcing the student’s rights under non-IDEA statutes.

The Third Circuit Court upheld the U.S. District’s Court’s decision to dismiss the parents’ claims for failure to exhaust administrative remedies under the IDEA. The parents did not request an administrative due process hearing and instead filed their claims directly in federal court. The Third Circuit pointed to Section 1415(l) of the IDEA which requires exhaustion of remedies for IDEA actions but also in non-IDEA actions in which the relief sought by the parent can be obtained under the IDEA.

In reaching its decision, the Third Circuit reasoned that if a non-IDEA claim falls within the scope contemplated by the IDEA, then the parents are required to exhaust administrative remedies. That is, if the claim, while it may be labeled by the parent as a non-IDEA claim, relates to the identification, evaluation, educational placement, or the provision of a free appropriate public education of a child, then it falls within the scope of the IDEA, and exhaustion of administrative remedies is required.

The Third Circuit reminds us in this case that public policy strongly favors the exhaustion of administrative remedies in order to create a complete record and allow the state educational agencies to apply their expertise in these areas of law.