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Legal Decisions |
Legal DecisionsSome of the files on this site are in PDF file format. You will need Adobe Acrobat Reader to view these files. Click here to download Adobe Acrobat Reader.Available Decisions:
Investigative Report of Improper Discharge at APIThis report presents the Disability Law Center of Alaska’s (DLC) investigation into an incident that occurred on March 5, 2006 at API. The report is available as a PDF file. SummaryOn June 30, 2006, the Supreme Court of the State of Alaska issued a long-awaited opinion in Faith J. Myers v. Alaska Psychiatric Institute. The Court ruled that the Alaska Constitution’s guarantees of liberty and privacy require an independent judicial determination of an incompetent mental patient’s best interests before the superior court may authorize a facility like Alaska Psychiatric Institute (API) to treat the person with psychotropic drugs. Therefore, the Court held, in a non-crisis situation, before ordering the administration of psychotropic drugs the superior court must, in addition to the statutory requirements, expressly find, by clear and convincing evidence, that the proposed treatment is in the patient’s best interests and that no less intrusive alternative is available. The Alaska Statutes provide that for a person must first be involuntarily committed. Then the state must file a second petition, and prove by clear and convincing evidence that 1) the patient is unable to give or withhold informed consent; and 2) the patient has never previously made a statement while competent that reliably expressed a desire to refuse future treatment with psychotropic medications. AS 47.30.839. These provisions left the court with no discretion to consider a patient’s best interest—if the two requirements were met, the court was required to authorize the administration of psychotropic medication. The Court determined that this statutory scheme to be inadequate to protect a patient’s constitutional rights. The Court found that the right to refuse psychotropic medication is a fundamental right, therefore the state may override a patient’s right to refuse psychotropic medication only when necessary to advance a compelling state interest and only if no less intrusive alternative is available. The Court further ruled that an independent judicial best interests determination is constitutionally necessary to ensure the proposed treatment is the least intrusive means of protecting the patient. The Court did expressly limit its holding to non-emergency situations. In cases of emergency, a different statutory scheme applies. The full text of the opinion may be found at: http://www.state.ak.us/courts/ops/sp-6021.pdf.Decision for case 05-09-02Student of multiple disabilities in an intensive needs classroom as part of a kindergarten program brought a complaint with the state alleging that the teacher was not a certified special education teacher, whether the student's services under the IEP were based on schedule or the student's needs, whether a full individual evaluation of the student's need was completed and whether the evaluation was conducted within 45 days of obtaining parental consent. Corrective action was order on the issue of teacher certification only. The school was ordered to serve the student under the IEP by utilizing a teacher with an Alaska Type A certificate with special education endorsements. Read the full decisions here in PDF format: 050902 DEED Decision Student and ASD, DEED Case No. 05-13IHO Linda Cerro held that a charter school within the ASD failed to comply with the requirements of the IDEA, despite two corrective action orders from the Department of Education and Early Development. The case involved a high school student who was experiencing school refusal and needed a transition evaluation, a functional behavioral assessment as well as counseling assistance and tutoring. The hearing officer ordered such evaluations and assistance for the student. The hearing officer also ordered that the parents be reimbursed for psychological counseling costs, private tutoring costs, and awarded the student 150 hours of compensatory education. The district and charter school was ordered to revise its Lottery School Admission Procedures to ensure compliance with the IDEA. Read the Decision by clicking this link: Student and ASD, DEED Case No. 05-13Student and Fairbanks North Star, DEED Case No. 05IHO Sheila Gallagher concluded that a school district had not denied a FAPE to a preschool student with autism but ordered the parties to revisit and revise the student's IEP. The parents had sought a full day of educational programming for the student which the district refused. Finding that the school district did not provide such services, the IHO upheld the denial. The parents had requested a behavioral therapy approach to the child's education and the IHO concluded that the school district was willing to accommodate many of the parents request, although not all, of the requests for such therapy and thus ordered the parties to review and revisit matters in an IEP meeting. The IHO held that the district prevailed, despite the order back to the IEP team process. The parents have appealed the decision to the United States District Court for the District of Alaska. Read the Decision by clicking this link: Student and Fairbanks North Star, DEED Case No. 05Schaffer v. WeastThe Supreme Court handed down its decision in Schaffer v. Weast today concerning the burden of proof in special education cases. Click here to read a copy of the Scheffer v. Weast decision. What does the decision say? The decision was written by Justice Sandra O’Connor. The Court held, in a 6-2 opinion (O'Connor for the majority; Stevens and Ginsberg dissenting; Roberts not participating) that the burden of proof (really, the burden of persuasion) in an IDEA administrative hearing is to be born by the party seeking relief. Thus, parents challenging an IEP and requesting a hearing have the burden or the school district requesting a hearing to change the child’s IEP have the burden of proof. What is the legal reason for this? The Court noted that this is the tradition rule - that the party initiating an action bears the burden. It rejected arguments for a adopting a different rule for the IDEA - in particular the "most plausible" argument, that the burden should lie with the school district because it had a natural advantage in that it had more knowledge and expertise. The Court finds that all of the other procedural protections of the IDEA compensate for that (even citing to new provisions from the 2004 amendments to IDEA). The Court specifically noted the right of parents to have an independent educational evaluation at district expense and parental rights to all school records. How does this affect Alaska children? Notably for Alaskan children, not much may change. The reason is that the case before the Court was from a state which did not have any state statute or regulation assigning the burden of proof to either party. The Court noted this and then cited to some states that have adopted different rules through statute or regulation - placing the burden on school districts. Alaska is one of the states the Court referenced, specifically, Alaska regulation at 52.550(e)(9). The Supreme Court explained that the State of Maryland, where the Schaffer case arose, did not have any rule on the burden of proof. Because no such rule was before the Court, the Court declined to address the question. Thus, until Alaska takes affirmative steps to change the statute or regulation, the burden of proof in Alaska remains on school districts.05-05 G.H. v. Sitka School District - appealed by school district.The hearing officer ordered the student was entitled to be independent evaluated at the district's expense as the district failed to conduct a full evaluation of the student before determining a provision of special education and related services. Read more about G.H. v. Sitka School District - appealed by school district in this PDF file. Return to Top.05-11 C.I.R. v. Sitka School Dist. - appealed by school districtThe hearing officer ordered the school district pay for two years of residential private schooling for a student with epilepsy. The hearing officer ruled that the district denied a free appropriate public education for the proceeding school year and the hearing officer determined that forcing the student to continue to attend the district high school would be a continued denial of FAPE. Read more about C.I.R. v. Sitka School Dist. - appealed by school district in this PDF file. Return to Top.05-22 S.C. v. Anchorage School District - weapons caseThe hearing officer found that a pair of scissors as used by the student constituted a weapon under the IDEA allowing for the 45 day suspension by the district to remain in effect. The hearing officer also found the interim alternative educational setting of ABA Whaley inappropriate and ordered that the student be provided with 20 hours of homebound services, plus related service hours until the IEP team had reconvened and made the appropriate consideration of all options available for the student for the remainder of the interim alternative educational setting. Read more about S.C. v. Anchorage School District - weapons case in this PDF file. Return to Top.05-32 Latest Special Education Decision August 25, 2005This is a really good decision for students who are not yet eligible for special education services, but are facing expulsion. The hearing officer ordered that the student had not received a comprehensive individualized evaluation to determine special education eligibility in the past and the school district knew or should have suspected the student was eligible for special education services. So while a new evaluation is in the process of being completed, the student can return to school until an eligibility determination is made and through the possible manifestation hearing if the student is found eligible for special education services. Read more about the latest special education decision in this PDF file. Return to Top.05-12 Decision for Case No. 05-12IHO Orders District Failed to Comply with DEED Complaint Decisions, Orders Compensatory Services and Reimbursement. Read more by clicking here. Return to Top.05-17 Decision for Case No 05-17Read the 5 17 Decision Return to Top.05-17 Amended Decision for Case 05-17Read the Amended 5 17 Amended Decision Return to Top.05-18 Summary of Case No. 05-18KJ, a high school student with ADHD, was suspended twice for fights during the fall semester. KJ had previously attended a private school where he was successful. The ASD failed to provide KJ a timely evaluation during the 2003-2004 school year. Because of this, and the suspension, the IHO ruled that KJ’s parents were to be reimbursed for the 2003-2004 private school tuition and that ASD must pay for the 2004-2005 school year tuition as well. KJ is undergoing an IEE at district expense and there is to be an IEP meeting after that is completed. Parents substantially prevailed. Read more here (PDF File). Return to Top.05-18 Decision for Case No. 05-18Here is the final order in a case we had against Anchorage School District on behalf of KJ. KJ was out of school and this was a disciplinary expedited hearing. His parents placed him privately. The IHO order payment for private school for 2003-2004 and for 2004-2005. Read the Decision here (PDF file). Return to Top.05-19 Summary of Case No. 05-19A.C. is a middle school student with ADHD and related problems. A.C. repeated fifth grade, was not allowed to attend sixth grade, and repeated seventh grade. Despite parental requests, and two opportunities to evaluate A.C., the ASD did not determine A.C. eligible for special education. The IHO determined that A.C. is eligible for special education and related services as a student under the Other Health Impaired category, a category which the district should have but did not ever consider for A.C. Parents substantially prevailed. Read more here (PDF File). Return to Top.NOTICE: EXIT EXAM CASE SETTLESEXIT EXAM SETTLEMENT REACHED The parties have reached a settlement in Noon v. Alaska, a class action addressing the needs of students with disabilities in the context of the HSGQE. The settlement was signed August 2, 2004 and may be read by clicking here (PDF File). Judge James K. Singleton has issued an order granting preliminary approval of and setting a hearing on the proposed class settlement. The hearing is set for September 30, 2004 at 8:00 a.m. in Courtroom 2, United States Courthouse, 222 W. 7th Ave. , Anchorage, AK. The fairness hearing is to determine if the settlement is fair, reasonable and adequate. Judge John Sedwick will conduct the hearing. Any objections by class members must be filed by September 20, 2004. Counsel from the Disability Law Center as well as Disability Rights Advocates will be present for the fairness hearing. Please feel free to call the DLC if you have questions about the settlement. Return to Top. |
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(C) 2004 Disability Law Center of Alaska |