Doucette: An Important 1st Circuit Decision Regarding “Exhaustion”
In the recent case of Doucette v. Georgetown Pub. Sch., No. 18-1160 (1st Cir. 2019), the 1st Circuit Court of Appeals issued a very important decision regarding the concept of “exhaustion.” Previously, the rule of thumb for special education attorneys was that if a case involved Section 504 or ADA claims by a student against a school district, the case needed to be heard by the Bureau of Special Education Appelas (“BSEA”) (or in New Hampshire, the Department of Education (“DOE”)) before it could be heard in federal court. This was true, even if the BSEA / DOE did not have the authority to grant the requested remedy, such as damages. Doucette applied and extended the reasoning outlined by the U.S. Supreme Court in Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 197 L.Ed.2d 46 (2017).
[Note: For purposes of this blog article, I will be referring to the BSEA. However, since both Massachusetts and New Hampshire are part of the 1st Circuit, everything discussed applies to both the Massachusetts BSEA and the New Hampshire DOE.]
Concept of Exhaustion
If you are the parent of a special education child, you probably know all about exhaustion, but more from the perspective of physical or emotional fatigue. The legal concept of exhaustion is quite different. In the law, exhaustion is short for “exhaustion of administrative remedies.” Black’s Law Dictionary defines “exhaustion of remedies” as:
The doctrine that, if an administrative remedy is provided by statute, a claimant must seek relief first from the administrative body before judicial relief is available.Black’s Law Dictionary, 594 (Bryan A. Garner ed., 7th ed., West 1999)
The Individuals with Disabilities Education Act (“IDEA”) is the federal set of laws governing special education. 20 U.S.C. § 1400 et seq. IDEA does contain such an exhaustion requirement:
Nothing in [the IDEA] shall be construed to restrict or limit the rights,Fry, 137 S.Ct. at 750, quoting 20 U.S.C. § 1415(l)
procedures, and remedies available under the Constitution, the [ADA], title V of the Rehabilitation Act [including § 504 ], or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under [the IDEA], the [IDEA’s administrative procedures] shall be exhausted to the same extent as would be required had the action been brought under [the IDEA].
In other words, if you are claiming that the school district owes your child something because the district violated the ADA or Section 504, and if you could also make a similar claim and get similar relief under IDEA, you need to start your legal proceedings at the BSEA / DOE. But what if the relief you are seeking is available under the ADA / 504, but is not available under IDEA – for example, financial damages (hearing officers are not authorized to award damages)? The case law in the First Circuit has generally held that you still need to start at the BSEA / DOE, if for no other reason than just to establish the administrative record for the benefit of the federal court.
- If the gravamen of a Rehabilitation Act (Section 504) claim does not involve the denial of a Free Appropriate Public Education (“FAPE”), does the plaintiff still need to exhaust administrative remedies through the BSEA before proceeding to federal court?
- If pursuing a case at the BSEA would be futile, must the parents still exhaust their administrative remedies at the BSEA before proceeding to federal court?
- The student, B.D., had a rare genetic disorder which caused numerous physical and developmental disabilities, and increased the risk of sudden unexpected death correlated with seizure activity.
- B.D. attended elementary school in Georgetown between the ages of three and six (July 2009 through August 2012). He was on an IEP. Parents and school district disagreed about his services.
- Parents temporarily removed B.D. from school in May 2010, and filed for hearing at the BSEA in July 2010. Parents sought an out-of-district placement. The BSEA Hearing Officer agreed that the IEP was inadequate, but did not order a new placement.
- In the fall of 2011, B.D. began working with a service dog to help him with anxiety and balance, and to alert caretakers of any impending seizures. In November 2011, Parents requested that the school district permit the dog at school as a disability accommodation. The school district initially refused outright, but then offered access to the service animal if the parents agreed to a school policy regarding the dog’s handling. The parents refused that offer, and claimed that the school district violated the Americans with Disabilities Act (“ADA”). The school district then ordered a behavioral assessment to take place during the following school year to determine whether his IEP should be amended to include a service dog.
- J.B. Comment: It is unclear from the decision what the school district’s policy was, or why the parents believed that the policy violated the ADA. Footnote 8 of the decision provides some foreshadowing by stating that this issue “will undoubtedly be an important issue to the future viability of the Doucettes’ section 504 claim, but it is not an issue in this appeal.”
- J.B. Comment: It is not clear from the decision how much time elapsed from November 2011 until the school district ordered a behavioral assessment, and then from the time that the assessment was ordered until the following school year when the district actually intended for the assessment to occur.
- In the summer of 2012, when B.D. was participating in the school district’s ESY program (i.e. summer school), he experienced a tonic-clonic seizure for over 20 minutes and required hospitalization. Parents demanded an immediate amendment to the IEP to grant him access to a service dog. This request was denied, but the district offered to allow the dog if the mother would act as the dog’s handler. After the denial, and into September 2012, B.D. suffered four more seizures
- J.B. Comment: An argument can be made that since the parents were requesting an amendment to the IEP, this became a FAPE issue. On the other hand, they were not the ones who initially requested an update to the IEP – it was the school district that responded to the Parents’ initial request for a service dog accommodation by suggesting a possible amendment to the IEP. Basically, the school district drew the Parents into a FAPE disagreement.
- B.D. continued to have seizures and hospitalizations. The parents eventually removed B.D. from school and again requested an alternative school placement. B.D.’s doctor wrote a letter expressing concern about the school district’s ability to handle B.D.’s health and safety, and recommended that B.D. be kept out of school until a safe placement could be identified. The school district wrote back that any extended absences would be considered truancy.
- In September 2012, Parents relented, and sent B.D. back to school. However, he had yet another tonic-clonic seizure, requiring hospitalization. Finally, the school district agreed to evaluate out-of-district placements, and in fact agreed to a new placement. B.D. did not experience any further seizures following removal from the school district.
- In 2015, the Doucettes filed suit in U.S. District Court alleging (1) state law tort claims, as well as federal claims under (2) Section 504 of the Rehabilitation Act and (3) 42 USC §1983.
- The District Court ruled against the parents on their federal law claims, stating that the parents failed to exhaust the IDEA administrative remedies. The court also declined to exercise pendent jurisdiction over the state law claims.
Summary of Key Regulations and Statutes Referenced in the Decision
- Section 504 of the Rehabilitation Act (29 USC §794): Section 504 requires public entities (including, but not limited to schools) to make reasonable modifications to their existing practices in order to accommodate disabled persons. Such modifications include support services. Alexander v. Choate, 469 US 287, 299 – 300 (1985). “IDEA guarantees individually tailored educational services, while Title II and § 504 promise non-discriminatory access to public institutions.” Fry, 137 S. Ct. at 756.
- Section 1983: This applies to everyone within the United States (not just disabled individuals), protecting everybody from deprivation of any federal rights by anyone acting under state law.
- Exhaustion Requirement: This concept is described above. The U.S. Supreme Court, in its Fry decision, provided the following guidance regarding exhaustion:
- The key to determining whether exhaustion at the state administrative level must occur is whether the gravamen of the claim concerns FAPE. If it does concern FAPE, then exhaustion must occur at the state administrative level before a claim can be made in federal court; if it does not concern FAPE, then the case can proceed directly to federal court without exhaustion at the state administrative level. Fry 137 S. Ct. at 754.
- The Supreme Court provided two “clues” to determine whether the case is related to FAPE:
- “could the plaintiff have brought essentially the same claim if the alleged conduct that occurred at a public facility that was not school?” and
- “could an adult at the school… Have pressed essentially the same grievance?”. Id. at 756 – 757.
Doucette § 504 Analysis
Regarding the 504 claim, the Doucette court looked to the Fry “clues” to determine that the 504 claim was not related to FAPE, and therefore exhaustion was not required. First, the the court stated that the plaintiff could have brought essentially the same claim against any public facility – not just a school. For example, if a movie theater, restaurant, hotel, or store failed to accommodate somebody by not allowing a service dog, that facility would be subject to a similar claim in federal court, without the plaintiff having to exhaust claims at the state administrative level. Doucette at 17 – 19. This reasoning is similar to Fry, where the “complaint alleges only disability-based discrimination, without making any reference to the adequacy of the special education services…” Fry at 137 S. Ct. at 758.
Doucette also utilized the second clue from Fry. Specifically, the court stated that a nonstudent (e.g. a teacher) could bring essentially the same claim against the school district if they were denied use of a service dog. Doucette p. 18.
The majority decision in Doucette also addressed several other arguments. One argument was that because the Doucettes previously engaged in a BSEA due process hearing regarding FAPE in 2010, the current dispute regarding the service dog must be related and must also concern FAPE. The court disagreed. The majority pointed out that the Doucettes did not raise the service dog issue until November 2011, well after the BSEA due process decision was issued. Id. at 20 – 21.
Another argument addressed by the court was that because the Doucettes eventually requested that B.D.’s IEP be updated to include reference to a service animal, the gravamen of their complaint concerned FAPE (and therefore exhaustion would be required). The court disagreed. The majority pointed out that the Doucettes initially requested the service dog without reference to the IEP. It was the school district that responded to the Doucette’s service dog request by ordering an assessment to take place to determine whether the IEP should be updated. Id. at 22.
Regarding the pure 504 vs. FAPE discussion, the majority pointed out that a student at risk of seizures who needs a service dog in school is not much different, legally, than a wheelchair-bound student who requires ramps in order to get into the school building. Neither case concerns educational services; both cases concern access. Id. at 23.
The mere fact that a student might require both accommodations under Section 504 and educational services under IDEA does not mean that all claims related to the student and the school must be exhausted at the state administrative level. To have such a requirement would discriminate against disabled students. Id. at 24 – 25.
Plain and simple, the 504 claim concerned a public institution’s denial of nondiscriminatory access to an individual by failing to accommodate use of a service dog, and the harm (i.e. seizures) that resulted from that denial; the 504 claim did not concern the school district’s obligation to provide a particular education program (i.e. FAPE). Doucette at 16 – 17.
Doucette § 1983 Analysis
Unlike the § 504 claim, the §1983 claim was very much related to FAPE. Here, the parents made a claim that the school district had notice that the placement was inappropriate, and that the district’s refusal to allow a different placement, and subsequent threatening of truancy, “amounted to ‘deliberate indifference in severe, pervasive disregard for [the] safety and well-being [of] B.D.’ and that, as a result, B.D. ‘suffer[ed] great physical and emotional harm,’ including ‘five [ ] life-threatening tonic-clonic seizures.’” Doucette at pp. 26 – 27. The Doucette court applied the Fry clues to conclude that FAPE was very much an issue. Doucette at 27.
Nonetheless, the court still ruled that the plaintiffs were not required to file at the state administrative level for several reasons:
1. Exhaustion was met. The Doucettes had a due process hearing in 2010. In July 2012, they again requested an alternative placement. They again brought the dispute to the attention of the local school district. They eventually received the relief they were looking for. However, the § 1983 claim did not concern whether the placement was appropriate or not; it concerned the harm that B.D. suffered as a result of the school district’s delay in providing the relief. Doucette at pp. 30 – 31.
2. Exhaustion was not necessarily even required. The Doucettes were seeking relief that was not available to them under IDEA – money damages for physical or emotional harm. Therefore, “§1415 (l) does not appear to require exhaustion of the Doucette’s constitutional claim…” Id. at 32.
3. Pursuing a claim at the state administrative level would have been futile. Hearing officers do not have the authority to provide the relief that the Doucettes were seeking. They are not authorized to award money damages for physical or emotional harm. Id. at 32. Hearing officers are limited to providing equitable relief in the form of educational services, compensatory services, and reimbursement for education -related expenses. Id. at 34.
The court acknowledged that FAPE-based claims can benefit from the administrative process, because such a hearing will develop the evidentiary record based on the specialized knowledge of education professionals. However, the court stated that such a record had already been developed through the 2010 due process hearing, as well as through the Doucette’s 2012 pursuit of an educational placement.
JB Comment: On the one hand, this particular argument seems ripe for appeal. Part of the record that the court refers to was not developed under oath, or in front of the hearing officer. The court is simply referring to documents which often become evidence that a hearing officer will weigh in a due process hearing. On the other hand, even if the court will benefit from further litigation in order to develop the evidentiary record, this one issue alone does not seem to be vital enough to require the cost and delay of further litigation at the state level. In fact, an alternative argument could be made that engaging in such litigation, knowing that a hearing officer does not have the authority to award the relief requested, amounts to frivolous litigation that only serves to increase the cost to both sides.
The Doucette decision is very important for special education cases which involve non-FAPE matters in the 1st Circuit. If an attorney representing a parent is considering whether to file a claim in federal court before litigating the issue at the BSEA / DOE, the attorney should first apply and analyze the clues provided by the Supreme Court in Fry, and applied in the 1st Circuit in Doucette.
The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire. Please visit https://www.lawbaron.com, or call 781-209-1166 for more information.
Dyslexia, Specific Learning Disabilities and the IEP
Does your child have dyslexia? Have school district personnel ever told you that they cannot recognize dyslexia as a disability on the IEP? If so, they are incorrect. In fact, IDEA says just the opposite. Dyslexia can be considered one of the many possible specific learning disabilities.
20 U. S. C. § 1401(30)(A) defines a specific learning disability as “a disorder in 1 or more of the basic psychological processes involved in understanding or in using language, spoken or written, which disorder may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations.” § 1401(30)(B) goes on to provide examples of conditions that should be included as a specific learning disability. In particular, “Such term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia.”
The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire. Please visit http://www.lawbaron.com, or call 781-209-1166 for more information.
NH Statute of Limitations for Unilateral Placements – A Trap for the Unwary
A statute of limitations defines how long you have to bring a legal action. With special education matters, if you are going to file for a due process hearing, the general rule is that you have 2 years to file for a hearing regarding any alleged violation. 20 U.S.C. § 1415(b)(6)(B). If you make a unilateral placement (i.e. make a “unilateral” decision to enroll your child in a private school without school district approval), NH has significantly limited the time period that is allowed for filing for a hearing related to that placement. In particular, New Hampshire allows just 90 days for filing for a hearing regarding the unilateral placement. RSA 186-C:16-b. The 90 days runs from the date the unilateral placement is made. Further complicating this is that the date of the unilateral placement is not always clearcut. For example, is it:
- The date that the parents applied to the private school?
- The date that the private school accepted the student?
- The date that the parents returned the acceptance letter to the private school?
- The date that the parents sent in their first deposit to the private school?
- The date that payment was made in full?
- The date that the parents notified the public school district that they were withdrawing their child from the public school, and enrolling him or her at the private school?
Parents might have a bit of a reprieve from the 90 day burden if the school district did not provide the parents with notice of their special education rights, which they usually do at least annually. If notice was not given, then the 90 days would not start running until proper notice is given to the parents.
The exact wording of the NH law is:
186-C:16-b Due Process Hearing; Appeal. –I. Any action against a local school district seeking to enforce special education rights under state or federal law shall be commenced by requesting an administrative due process hearing from the department of education within 2 years of the date on which the alleged violation was or reasonably should have been discovered.
II. Notwithstanding the provisions of paragraph I, any action against a local school district to recover the costs of a unilateral special education placement shall be commenced by requesting an administrative due process hearing from the department of education within 90 days of the unilateral placement.
III. Where the parent, legal guardian or surrogate parent has not been given proper written notice of special education rights pursuant to 20 U.S.C. section 1415(d), including notice of the time limitations established in this section, such limitations shall run from the time notice of those rights is properly given. The department of education shall make available a model notice of rights which school districts may use as one means of complying with this paragraph.
My Child Was Suspended for Having a Knife at School – Now What?
The first assumption I am going to make for this blog article is that the child has an IEP. Having an IEP does make a big difference in terms of how the school can deal with disciplining the child.
There are three distinct discipline time-frames that should be considered. The first time-frame is short term, and concerns suspensions for 10 school days or less; the second time-frame is medium term, and concerns discipline for up to 45 school days; the third time-frame is long-term, and concerns discipline that might extend beyond 45 school days.
Regarding a 10 day suspension, the federal Individuals with Disabilities Education Act (IDEA) applies. Under the IDEA, “School personnel… may remove a child with a disability who violates a code of student conduct from their current placement to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 school days (to the extent such alternatives are applied to children without disabilities).” 20 U.S.C. § 1415(k)(1)(B). In other words, a special education child can be disciplined just like a non-special education child for up to 10 school days.
Any removal beyond 10 school days is considered a change in placement. For any such change in placement, the school district needs to conduct a Manifestation Determination to determine if the behavior in question is a manifestation of the child’s disability, or if the conduct in question may have been caused by the school district’s failure to implement the IEP. If the conduct is found to be a manifestation of the disability, the district is required to conduct a Functional Behavioral Assessment and to develop a Behavior Plan, and also to return the child to the placement from which he was removed. 20 U.S.C. § 1415(k)(1)(E)-(F). If the behavior was not a manifestation of a disability, the child can be removed from his then-current placement, though he shall “continue to receive educational services… so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP.”
The above paragraph applies to any type of discipline issue if the school district is trying to remove the child for more than 10 days. However, regardless of the outcome of the Manifestation Determination, the school district may remove a child to an interim alternative educational setting in various special circumstances. One such special circumstance is when a child possesses a weapon – which includes a knife – on school grounds. 20 U.S.C. § 1415(k)(1)(G). Under federal law, one big question concerns the size of the knife. According to 18 U.S.C. § 930(g)(2), the definition of a weapon “does not include a pocket knife with a blade of less than 2½ inches in length.” If the knife in question is less than 2½ inches in length, the district would not have the right to remove the child under this section of the law.
So far we have discussed only federal law. In Massachusetts, state law also applies for longer term suspensions (potentially beyond 45 school days). Under Mass. Gen. Laws ch. 71 § 37H(a), a school principal may expel any student “who is found on school premises or at school-sponsored or school-related events, including athletic games, in possession of a dangerous weapon, including, but not limited to, a gun or a knife.” Any student so charged must be notified in writing of an opportunity for hearing, and be allowed to have legal representation, as well as the opportunity to present evidence and witnesses at a hearing with the principal. The principal does have discretion to suspend rather than expel a student. (Mass. Gen. Laws ch. 71 § 37H(c)). There is also the right to appeal to the superintendent within 10 days of the expulsion. (Mass. Gen. Laws ch. 71 § 37H(d)).
To make matters even more concerning, Massachusetts law also states: “When a student is expelled under the provisions of this section, no school or school district within the commonwealth shall be required to admit such student or to provide educational services to said student. If said student does apply for admission to another school or school district, the superintendent of the school district to which the application is made may request and shall receive from the superintendent of the school expelling said student a written statement of the reasons for said expulsion.” (Mass. Gen. Laws ch. 71 § 37H(e)). In other words, if a principal, in his or her sole discretion, expels a student from school because of one of the above violations, the student may not be able to attend public school anywhere else in Massachusetts. Even moving from one district to another might not help. Luckily, federal law does serve as a safety net, such that school districts do need to provide IEP services for special education children, regardless of any discipline decisions that are applied.
Regarding the size of the knife, Massachusetts law does not have the same 2 ½ inch provision that federal law does. This means that even if you might have a strong argument that the district should not be able to apply a 45 day removal under IDEA because it cannot prove that the child had a knife larger than 2 ½ inches, the school district would still be able to apply a 45 day or longer suspension or removal under Massachusetts law.
For more information about Chapter 37H, 37H 1/2, and upcoming changes to this area of the law in Massachusetts, please refer to my other blog articles:
- “Student Discipline Laws in Massachusetts – Big Changes Are Coming”
- “School Discipline Gets Even More Draconian with Mass Gen Laws Ch 71 Section 37H 1/2”
- “Student Discipline Laws – Improvements to 37H”
The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire. Please visit http://www.lawbaron.com, or call 781-209-1166 for more information.
Massachusetts Special Education Evaluation Timelines
The law regarding timelines for special education evaluations can be confusing. State law can vary from the federal IDEA requirement, and parents also need to be aware of whether the law refers to “days” or “school days.” The term “days” refers to calendar days, which includes weekends, holidays and vacations; the term “school days” refers to days in which school is in session.
Federal law states that evaluations must be conducted within 60 days of receipt of parental consent for the evaluation, but defers to state timelines if such timelines exist (34 C.F.R. 300.301(c)). Both Massachusetts and New Hampshire have implemented their own specific timelines. The remainder of this article will be specific to Massachusetts law; I will post a separate article specific to New Hampshire law.
“Within 45 school working days after receipt of a parent’s written consent to an initial evaluation or reevaluation, the school district shall: provide an evaluation; convene a Team meeting to review the evaluation data, determine whether the student requires special education and, if required, develop an IEP in accordance with state and federal laws; … The evaluation assessments shall be completed within 30 school working days after receipt of parental consent for evaluation. Summaries of such assessments shall be completed so as to ensure their availability to parents at least two days prior to the Team meeting.” 603 C.M.R. 28.05(1).
In other words, in Massachusetts, once a parent provides consent, the school district has 30 school days to complete the evaluation. The entire process, including conducting the evaluation and convening the Team meeting to discuss the results, must be complete within 45 school days of parental consent. Furthermore, a summary of the evaluations must be provided to the parents at least 2 days prior to the Team meeting.
We can look at an example to better understand these timelines. Let’s assume that a parent provided consent for an evaluation on 09/12/11. Counting ahead 30 school days, including a day off for Columbus Day, brings us to 10/25/11, which in this example is the deadline for conducting the evaluation. Counting ahead 45 school days from 09/12/11, including days off for Columbus Day and Veteran’s Day, brings us to 11/16/11, which is the deadline for conducting the Team meeting and drafting the IEP.
But what happens if consent is provided at the end of the school year, and there is not enough time under the law as listed above to complete the evaluation and conduct the Team meeting? In Massachusetts, parents may still be in luck. Massachusetts has added the following protection:
“If consent is received within 30 to 45 school working days before the end of the school year, the school district shall ensure that a Team meeting is scheduled so as to allow for the provision of a proposed IEP or written notice of the finding that the student is not eligible no later than 14 days after the end of the school year.” 603 C.M.R. 28.05(1).
Again, let’s look at an example to better understand this law. Assume that the school year ends on Friday, June 22, 2012. 45 school days prior to June 22, 2012 brings us to April 12, 2012. 30 school days prior to June 22, 2012 brings us to May 10, 2012. Thus, we have three time frames to consider:
- Consent provided prior to April 12, 2012: the school district will be expected to complete the evaluation, Team meeting, and draft IEP before the end of the school year on June 22.
- Consent provided after May 10, 2012: the school district will not be required to complete the evaluation prior to the end of the school year, because there are fewer than 30 school days remaining.
- Consent provided between April 12, 2012 and May 10, 2012: the school district will be required to complete the evaluation prior to and of the school year. If the 45 day rule would go beyond June 22, then the school district will be required to convene the Team meeting no later than 14 calendar days following the end of the school year.