MLO Prevails in Precedent-Setting Special Education Case Under Section 504

April 2021

While most special education matters are addressed under the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act (and often by analogy the Americans with Disabilities Act, the standards of which are related to those in Section 504) can offer even broader protections than the IDEA, especially for children whose disabilities do not fit into one of the defined categories of disability under IDEA. For example, Section 504 offers protections to students with disabilities, such as ADHD, asthma, and migraines, who may not fit into one of the specified categories for IDEA eligibility. In many cases, Section 504 can provide services for students with executive functioning or attention issues, and it can also include students who require significant accommodations, therapies, or interventions but do not require specially designed instruction – as required by IDEA – in order to make meaningful educational progress. 

 

In a significant case, the United States District Court in Philadelphia recently assessed the program of a child eligible for services under Section 504. E.P. v. Twin Valley School District, ___ F.Supp.3d ___, 2021 WL 365878 (E.D.Pa. Feb. 3, 2021) (Rice, M.J., sitting as District Court by consent under 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73). In this landmark opinion, which acts as appellate precedent in the administrative realm of special education due process proceedings, the court held that where a child with disabilities has not sufficiently learned to regulate emotions including outside of school, this deficit can reflect a failure of the district to provide an appropriate program under Section 504.  

 

The decision is particularly noteworthy, since school districts and charter schools routinely argue that behavior outside of school is neither the responsibility of the special education program nor a reflection upon the efficacy and appropriateness of that program.  Judge Rice’s opinion provides a clear basis under both Section 504 and IDEA (which are often interpreted concurrently) to reject claims that behavior outside of school is irrelevant in assessing school-district and charter-school programs. In a similar vein, the court noted that “interaction with others” is specifically a major life activity to be addressed, if necessary, under Section 504. 

 

The court further explained that Section 504 can provide more protections to children with disabilities than IDEA in some respects, where necessary to provide a fully free and appropriate educational program (FAPE). The opinion articulated a very broad “child find” standard for public and charter schools to use in order to determine if a child is eligible for services under Section 504.  

 

The court also determined that the statute of limitations under Section 504, within which a parent must bring a claim, begins with the date of the family’s discovery of the legal harm to the child. The date for commencing the statute is particularly important, as parents are often unaware of the inappropriateness of an educational program until well after that program is written and delivered. The benchmark date for the statute of limitations identifies the timeframe for determining the level of compensatory education which might be owed to a student for a school district’s (or charter school’s) failure to provide FAPE.  

 

Finally, and significantly, the court approved a process by which an independent evaluator — and not the public or charter school in question — decides the amount and scope of compensatory education owed to a child who has been denied FAPE.  

 

Henry Young of our Wyomissing office tried this groundbreaking due process hearing with Michele Ford’s pre-trial support, and John Goldsborough prepared our briefs. This opinion provides many helpful and important statements that can be used on behalf of the students and families we serve, especially those who do not qualify for services under IDEA. Our initial special education consultations are free, and in most instances, we are able to handle cases on behalf of families without a retainer or payment of our hourly fees, as both IDEA and Section 504 are fee-shifting statutes, with school districts or charter schools often being responsible for payment of fees when the parent prevails. 

By John Goldsborough, Esq. and Henry Young, Esq.

McAndrews Law Office Wins Federal Court Decision For Tuition Reimbursement

McAndrews Law Offices recently prevailed in another case in Federal District Court. In L.G. v. West Chester Area School District, the United States District Court for the Eastern District of Pennsylvania reversed a decision by a Pennsylvania Special Education Hearing Officer which granted only limited tuition reimbursement due to the District’s failure to offer an appropriate educational program to the child. The federal court expanded the tuition reimbursement to the complete time period allowed under the statute of limitations.

The Court found that under Section 504 of the Rehabilitation Act the District’s obligation to identify the student as a child with a disability, and to provide an appropriate program, extended back well into the child’s educational past, and that the District improperly ignored significant evidence of the child’s disability and need for specialized interventions. Despite clear warning signs of the child’s disability, including behavioral issues, depression, and attendance problems, the District failed to identify the student, thus entitling the parents to tuition reimbursement for a program at the King George School.

The District Court also found that the School District violated IDEA, albeit at a later date, by failing to 1) identify the child, and 2) provide an appropriate Individualized Education Program. Because IDEA specifically delineates particular categories of disabilities, unlike Section 504 which includes any disability which substantially impacts learning or other major life activities, the District’s obligation to identify the child arose at an earlier date under Section 504. The remedy of tuition reimbursement was found to be available under both statutes.

McAndrews Law Offices, P.C. Recently Won Significant Victory in Federal Court

McAndrews Law Offices, P.C. recently gained a significant victory in federal court in Philadelphia. In Ferren C. v. The School District of Philadelphia, Judge Stewart Dalzell, United States District Court for Eastern District of Pennsylvania, ruled that the School District of Philadelphia was required to create an Individualized Education Plan (IEP) to assist a child who was entitled to three years of compensatory education beyond the age of 21. In this litigation, the School District of Philadelphia claimed that it had no obligation to develop a program for Ferren during the period of her compensatory education entitlement in order to allow the child to access services at a local approved private school, which would not serve the student unless an IEP was created. This situation left the parents in the untenable position of attempting to access services from a provider who required an IEP to guide the compensatory education program. In the court’s ruling, it was determined that the School District of Philadelphia could not refuse to create an IEP for Ferren, especially since the IEP was necessary to allow continued access to the approved private school program where the student had been successful for several years. This ruling is the first known decision which requires school districts to create IEPs where necessary to access compensatory education services after the age of 21.

Dennis C. McAndrews testified before a Pennsylvania House Committee on Transition Issues for Individuals with Autism

Dennis C. McAndrews, Esq. testified during the April 8, 2008 public hearing in the Ryan Office Building in Harrisburg with regard to Transition Issues for Individuals with Autism, as follows:

“By way of introduction, my law firm handles special education and estate planning for persons with disabilities. My firm witnesses on a daily basis the practical and legal challenges for individuals with disabilities and their families from birth through old age. The difficulty in transitioning individuals with Autism from school age to post-school programming is particularly acute and represents one of the most serious challenges which families face.

Under the Individuals with Disabilities Education Act (IDEA), children with Autism can generally receive special education and related services through their local school district from age three to 21. Beginning no later than age 16, school districts are required to begin transition planning for children with disabilities. Under amendments to IDEA in 1999 and 2004, transition planning is now required to be far more robust than in previous years, and school districts are required to conduct meaningful assessments of students to identify the specific instruction and services which students in this age group will receive in order to become independent and self-sufficient at graduation consistent with their cognitive abilities.

Unfortunately, transition planning is rarely robust within this Commonwealth, but typically involves merely providing limited information to families about agencies such as MH/MR, the Office of Vocation Rehabilitation and other programs which serve adults with disabilities. Unless a parent vigorously advocates with knowledge and skill on behalf of the child, transition planning rarely involves the intensive assessment, instruction and services which IDEA specifically requires. More and more parents are now pursuing due process hearings against their local school district over this very issue, because transition is so critical in moving a child with disabilities to independence and self-sufficiency.

Once the child reaches the age of 21, families encounter an entirely new set of roadblocks as they move from the educational system to the Mental Health/Mental Retardation system. Although many individuals with Autism should qualify for services within the MH/MR system because of their limited social skills and adaptive behaviors, too often county agencies assert that they have no responsibility to program for individuals within the Autism spectrum. Unfortunately, no user-friendly dispute resolution system exists in the MH/MR program — such as the educational due process system — to challenge decisions made by county agencies, and therefore determinations of county agencies are effectively final unless the family hires an attorney to pursue a claim in the local Court of Common Pleas. Even then, no clear legal structure exists upon which the court can make a proper determination.

Even where the county agency identifies an individual with Autism as being eligible for services through the MH/MR system, programs to meet the needs of these individuals are often inappropriate, understaffed or inaccessible due to waiting lists. Although the Pennsylvania and federal courts have repeatedly held that the Pennsylvania MH/MR system is an entitlement program which requires county and state officials to provide those services which the individual requires, county or state agencies reject this position, and legal recourse to address these claims is, once again, unclear under the current Mental Health/Mental Retardation Act and Mental Health Procedures Act. Families are thus left with one manifestly inappropriate option — commitment proceedings.

In order to address these deficiencies, I would propose that the state Department of Education should conduct intensive monitoring of school district transition programs by reviewing randomly selected IEPs of students age 16 or over in specific school districts, such that each school district has such a review at least every five years. Moreover, legislation is necessary to create a clear, independent, fair and user-friendly system by which parents can contest the determinations of county administrators concerning eligibility and entitlement services. This fact finding/adjudicative process could easily be modeled after the special education due process system which presently exists, and has been successfully utilized for over 30 years, under federal and state law related to special education. Thank you for your consideration of my perspectives.”

McAndrews Law Offices, P.C. recently won an important victory on behalf of children with disabilities in federal court

In Damian J. v. The Philadelphia School District, the federal court found that the failure of the Philadelphia School District to provide a certified teacher who could properly implement an IEP in a program for children with emotional disturbance denied the child of a free appropriate public education. Significantly, the court in Damian J. held that full days of compensatory education must be ordered for every day when a certified teacher was not present, and the court refused the school district’s invitation to “parse out” a particular portion of each school day as being inappropriate.

This decision represents important judicial recognition of students’ rights to fully appropriate programs in every domain of educational programming, including academic, emotional, social or behavioral. In each case, the relief awarded to the child and the parents provided critical benefits to allow the children to access appropriate services from providers outside of the local school district.

Services for Exceptional Children in Private Schools

The Pennsylvania Supreme Court has issued a long-awaited decision in Lower Merion School District v. Doe. In this case, the Lower Merion School District alleged that children in private schools who receive Section 504/Chapter 15 Service Plans are not eligible to receive special education services through “dual enrollment” from the District, but that such services are limited to students with IEPs in the public schools under IDEA. The District also unsuccessfully attempted to persuade the Pennsylvania Supreme Court that a prior Commonwealth Court decision which established a broad right to “dual enrollment” had been superseded by new regulations of the Pennsylvania Department of Education (PDE) which were adopted in 2001. Veschi v. Northwestern Lehigh School District, 772 A.2d 469 (Pa. Cmwlth. 2001).

Federal Court in Pennsylvania Awards Compensatory Education in a Monetary Fund

The United States District Court for the Eastern District of Pennsylvania recently found that a school district’s failure to provide an appropriate educational program required an award of compensatory education, and held that the award of compensatory education must be placed in a fund with a specified monetary amount for the child. In Heather D. v. Northampton Area School District, the court created a fund of $182,000.00 based upon the school district’s failure over multiple years to provide appropriate educational programming for the child.