Court Rules Parents Not Entitled to IEE at Public Expense

A Pennsylvania district court found that parents of a student who had suffered three concussions were not entitled to an independent education evaluation (IEE) at public expense because they disagreed with the evaluation team’s IDEA classification.

The parents of a gifted high school student originally requested an evaluation in 2016. The district did not find the student eligible under IDEA but instead created a 504 plan for occupational therapy (OT) services.

The next year, the parents again requested an evaluation, but placed conditions of the types of testing the district could conduct. When the evaluation was completed, the district found the student eligible with an autism classification. The parents disagreed with the classification and the district offered on three separate occasions to conduct a reevaluation to consider their concerns, which they refused each time.

Nearly two years later the parents requested an IEE since the district did not use a traumatic brain injury (TBI) as the student’s disability category. It is noteworthy that the TBI was not medically diagnosed but was assumed by parents as a result of the three concussions suffered by the student a year earlier.

In declining the parent’s request for an IEE, the district filed due process to defend its evaluation. The state hearing officer ruled in favor of the district and the parents appealed.

Upon review, the federal court found that since the district conducted the evaluation based upon an area of suspected disability, and since there was no information presented to the district team to cause them to suspect TBI, the evaluation conducted by the district was justified. The court noted that an evaluation should be tailored to the specific areas in which a student is struggling but need not be designed to identify and diagnose every possible disability.

What this Means for Your District

The Pennsylvania court reiterated that a parent can request an IEE up to the time for the reevaluation. However, in looking at the remedies for the parents, the court found that since a new evaluation was due, the IEE request was moot. More importantly, schools should not feel compelled to change the disability classification of a student due to parent demand. Any such change must be based first upon suspicion of a disability and then on the assessment conducted by the district.

Masks and the Rights of Students with Disabilities

Masks and the Rights of Students with Disabilities

As COVID-19 continues to affect education, school district decisions about mask policies and exemptions have resulted in lawsuits about the rights of students with disabilities.

The claims arise under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. The students have conditions that make it particularly dangerous for them to be exposed to and contract COVID-19, alleging that their rights were violated by state laws, executive orders by Governors banning mandatory masking, and/or individual school board decisions.

The ADA affords that persons with disabilities have the right to reasonable accommodations that provide them with meaningful access to public programs, services, and activities. When a board of education fails to make reasonable modifications to enable access to its facilities, programs, and services, a person with disabilities may bring a “failure to accommodate” claim. A failure-to-accommodate claim asserts that the defendant “…could have reasonably accommodated a person with a disability, but refused to do so.” (S.B. v. Lee, Dist. Ct., E.D. TN)  2021 WL4755619)

Four cases with similar ADA and 504 claims have been decided in three federal circuits, including the 6th Circuit, with varying results. On October 12, in a case originating out of Tennessee, the Court of Appeals outlined the ADA’s “failure to accommodate” claim, stating “This case requires the Court to consider the ADA’s mandate of social integration in an unprecedented context by addressing how a board of education must reasonably accommodate medically-compromised students when COVID-19 is now part of daily life inside their schools’ walls.”

The court granted a temporary injunction to the students with disabilities against the Tennessee Governor’s order that all parents may opt-out of a mask requirement and the school board’s decision to allow optional masking. The school district was ordered to adopt the universal masking policy it had in 2020-21 as a reasonable accommodation for the students. It also required the school district to report any mask exemptions granted, including the specific reasons for those exemptions. 

The 6th Circuit also determined that the plaintiffs did not need to exhaust their remedies under IDEA. Recently, the court issued an additional ruling on the school district’s motion to amend that judgment, because it alleged students and staff were refusing to wear masks. The court denied that motion, noting the district had not offered sufficient evidence or supporting legal arguments. 

The 8th and 11th Circuits also considered similar claims by students with disabilities. In the 11th Circuit, which includes Florida, two different federal courts declined to issue injunctions on claims under the ADA and Section 504. In one decision issued on September 13, the court held that the student’s individual health claims and accommodations required exhaustion of their administrative remedies under IDEA. (Hayes v. DeSantis [Dist. Ct., S.D. FL] Case 1:21-cv-22863-KMM, Spt. 15, 2021)

In a separate 11th Circuit case, an ADA and Section 504 challenge to a school board’s decision to end most COVID-19 mitigation measures, the court refused to issue an injunction, finding that virtual school was a reasonable accommodation available to all students and that the preferred accommodation need not be provided.  

In the 8th Circuit, a challenge to the Iowa Governor’s order banning school districts from universal masking decisions alleged that the ADA and Section 504 preempted the Governor’s order. The federal district court did issue an injunction preventing the order from taking effect, ruling that universal masking is a reasonable accommodation. The court also held that the state ban does violate ADA and 504 by excluding disabled students and denying them the benefits of public schools’ programs, services, and activities to which they are entitled.

What this means for your District:

Case law on masking guidelines is still developing. The 6th Circuit decision, while arising in Tennessee, should inform decision-making in our federal circuit. These cases are all temporary restraining orders, meaning there will be further proceedings with evidentiary hearings which may alter the outcomes, settle or otherwise affect the rulings. Stay tuned and contact one of our attorneys if you have questions.