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Case Law UpdateCase Law Update

byby Jane R. WettachJane R. Wettach

Clinical Professor of LawClinical Professor of LawDuke Law SchoolDuke Law School

March 25, 2011March 25, 2011San Diego, CaliforniaSan Diego, California

Case No. 1 – Case No. 1 – Issue:Issue: Is a child who needs modifications to his gym Is a child who needs modifications to his gym class, needs OT & PT, and who has a condition class, needs OT & PT, and who has a condition that causes pain and fatigue that could affect his that causes pain and fatigue that could affect his educational performance, eligible for special educational performance, eligible for special education services?education services?Marshall Joint School District No. 1 v. C.D., (7th Cir. 2010) Marshall Joint School District No. 1 v. C.D., (7th Cir. 2010) Modifications to certain activities in gym class to accommodate a student’s Modifications to certain activities in gym class to accommodate a student’s

health condition, such as limiting the number of repetitions and providing health condition, such as limiting the number of repetitions and providing alternatives for certain activities, is not “special education”alternatives for certain activities, is not “special education”

Having a condition that causes pain and fatigue and which could negatively Having a condition that causes pain and fatigue and which could negatively affect educational performance does not qualify a student for special affect educational performance does not qualify a student for special education when there is no evidence of an actual negative impact on the education when there is no evidence of an actual negative impact on the student’s educational performance.student’s educational performance.

A physician cannot prescribe special education; the need for special A physician cannot prescribe special education; the need for special education is the decision of the IEP team. education is the decision of the IEP team.

The need for occupational therapy and physical therapy does not qualify a The need for occupational therapy and physical therapy does not qualify a student for special education.student for special education.

Case No. 2 – Case No. 2 – Issue:Issue: In identifying a child with a disability, what is the In identifying a child with a disability, what is the distinction between a student with an emotional distinction between a student with an emotional disability and one who is “socially maladjusted”?disability and one who is “socially maladjusted”?Hansen ex rel J.H. v. Republic R-III School Dist., (8th Cir. 2011)Hansen ex rel J.H. v. Republic R-III School Dist., (8th Cir. 2011) A student meets the definition of having a “serious emotional A student meets the definition of having a “serious emotional

disability” when disability” when Academic progress was very poor over an extended period;Academic progress was very poor over an extended period; The student’s ability to maintain satisfactory personal relationships was lacking The student’s ability to maintain satisfactory personal relationships was lacking

over a long period of time.over a long period of time.

An example of a socially maladjusted child was one whoAn example of a socially maladjusted child was one who Had historically progressed successfully from grade to grade;Had historically progressed successfully from grade to grade; Had maintained positive relationships with teachers and peers;Had maintained positive relationships with teachers and peers; Had participated in extracurricular activities;Had participated in extracurricular activities; But in 11th grade began to steal, sneak out of his house, skip school, and use But in 11th grade began to steal, sneak out of his house, skip school, and use

marijuana and alcohol.marijuana and alcohol. The student’s poor grades were attributed to skipping class and failing to turn in The student’s poor grades were attributed to skipping class and failing to turn in

assignments. assignments. The “overwhelming consensus” of examining psychologists was that he did not The “overwhelming consensus” of examining psychologists was that he did not

have an emotional disorder.have an emotional disorder.

Case No. 3 – Case No. 3 – Issues:Issues: Must the IEP team of an autistic child include an Must the IEP team of an autistic child include an autism expert? Can slow, nonlinear progress be autism expert? Can slow, nonlinear progress be sufficient to constitute a FAPE? Does IDEA require sufficient to constitute a FAPE? Does IDEA require certain teacher methodologies?certain teacher methodologies?R.P. ex rel C.P. v. Prescott Unified School Dist. (9th Cir. 2011)R.P. ex rel C.P. v. Prescott Unified School Dist. (9th Cir. 2011) The IEP team for an autistic student does not need to The IEP team for an autistic student does not need to

include an autism expert to be properly constituted.include an autism expert to be properly constituted.

The lack of linear progress on all goals does not mean that The lack of linear progress on all goals does not mean that the IEP was inadequate. A student’s slow but significant the IEP was inadequate. A student’s slow but significant educational progress on many of the goals is sufficient to educational progress on many of the goals is sufficient to meet the FAPE standard.meet the FAPE standard.

The IDEA accords educators discretion to select from The IDEA accords educators discretion to select from various methods, provided those practices are reasonably various methods, provided those practices are reasonably calculated to provide the students with educational benefit.calculated to provide the students with educational benefit.

Case No. 4 – Case No. 4 – Issue:Issue: When a child transfers from one district to another, When a child transfers from one district to another, must the new district implement a newly-revised must the new district implement a newly-revised IEP that had never been implemented?IEP that had never been implemented?A.M. ex rel Marshall v. Monrovia Unified School District, 627 F. 3d 773 (9th Cir. 2010) The new LEA should implement the last IEP that was implemented, The new LEA should implement the last IEP that was implemented,

not the one that was agreed upon but not yet implemented.not the one that was agreed upon but not yet implemented. The words “previously held” should be interpreted as meaning The words “previously held” should be interpreted as meaning

the IEP that was actually in effect. In this case, the IEP actually the IEP that was actually in effect. In this case, the IEP actually in effect was the one that placed him at home.in effect was the one that placed him at home.

This interpretation minimizes disruption to the child.This interpretation minimizes disruption to the child. Other points in this case include:Other points in this case include:

The failure of the LEA to put a new IEP in place within the 30 days meant that it The failure of the LEA to put a new IEP in place within the 30 days meant that it was outside the statutory deadline; there is no authority for the proposition that was outside the statutory deadline; there is no authority for the proposition that the deadline is tolled during the school holiday. Nevertheless, because the the deadline is tolled during the school holiday. Nevertheless, because the delay did not result in educational deprivation, there was no claim. delay did not result in educational deprivation, there was no claim.

Case No. 5 – Case No. 5 – Issue:Issue: Were parents denied the right to meaningfully Were parents denied the right to meaningfully participate in the development of their child’s IEP participate in the development of their child’s IEP when the school district placed time limits on when the school district placed time limits on classroom observation by their expert?classroom observation by their expert?L.M. v. Capistrano Unified School District (9th Cir. 2009)L.M. v. Capistrano Unified School District (9th Cir. 2009)

Despite the violation of California Education Code by the school district, Despite the violation of California Education Code by the school district, the parents were not entitled to tuition reimbursement because there was the parents were not entitled to tuition reimbursement because there was no evidence that the time limitation on the psychologist’s visit no evidence that the time limitation on the psychologist’s visit “significantly affected” the parents right to meaningfully participate in the “significantly affected” the parents right to meaningfully participate in the development of the IEP.development of the IEP.

The purpose of the California Code provision is to level the playing field The purpose of the California Code provision is to level the playing field between the parents and a more knowledgeable school district.between the parents and a more knowledgeable school district.

Nevertheless, the parent’s expert was able to develop opinions, advise Nevertheless, the parent’s expert was able to develop opinions, advise the parents, and give informed testimony at the hearing. the parents, and give informed testimony at the hearing. The ALJ concluded that an additional 70 minutes of observation would The ALJ concluded that an additional 70 minutes of observation would not have affected the weight given to the expert’s opinion.not have affected the weight given to the expert’s opinion.

Case No. 6 – Case No. 6 – Issue:Issue: Must an IEP include baseline data? Must an Must an IEP include baseline data? Must an IEP include behavioral goals if the child has IEP include behavioral goals if the child has behavioral needs? behavioral needs?

Lathrop R-II School Dist. v. Gray, (8th Cir. 2010)Lathrop R-II School Dist. v. Gray, (8th Cir. 2010)

An IEP is not deficient because it does not contain An IEP is not deficient because it does not contain objective baseline data so long as it contains statement objective baseline data so long as it contains statement of the child’s present levels of educational performance of the child’s present levels of educational performance and a statement of measurable goals.and a statement of measurable goals.

An IEP is not deficient because it does not contain An IEP is not deficient because it does not contain behavioral goals for a child with behavioral needs, behavioral goals for a child with behavioral needs, so long as the behavior needs are considered and so long as the behavior needs are considered and appropriate behavioral interventions are being employed appropriate behavioral interventions are being employed by the district personnel.by the district personnel.

Case No. 7 – Case No. 7 – Issue:Issue: Does the requirement of transition services in the Does the requirement of transition services in the IEPs of older student set a standard that is higher IEPs of older student set a standard that is higher than the Rowley standard?than the Rowley standard?J.L. v. Mercer Island School Dist., (9th Cir. 2009)J.L. v. Mercer Island School Dist., (9th Cir. 2009)

The 1997 amendments to IDEA regarding transition services did The 1997 amendments to IDEA regarding transition services did not supersede the Rowley standard. not supersede the Rowley standard. An IEP must only offer meaningful educational benefit.An IEP must only offer meaningful educational benefit.

A student is not denied a FAPE just because she does A student is not denied a FAPE just because she does not attain transition goals.not attain transition goals.

Additional points: The district does not violate the parents rights Additional points: The district does not violate the parents rights to participate by holding a “pre-meeting”; the district is not to participate by holding a “pre-meeting”; the district is not required to specify a teaching methodology in the IEP; an IEP required to specify a teaching methodology in the IEP; an IEP need not specify a number of minutes of special education so need not specify a number of minutes of special education so long as there is no loss of education.long as there is no loss of education.

Case No. 8 – Case No. 8 – Issue:Issue: Do a student’s high grades in his special education Do a student’s high grades in his special education class and his promotion from grade to grade prove class and his promotion from grade to grade prove that the student made meaningful educational that the student made meaningful educational progress and thus was provided FAPE?progress and thus was provided FAPE?D.S. v. Bayonne Board of Educ., (3d Cir. 2010)D.S. v. Bayonne Board of Educ., (3d Cir. 2010)

A student’s high grades are insufficient to show that the A student’s high grades are insufficient to show that the student is receiving a FAPE, particularly when the student student is receiving a FAPE, particularly when the student is being educated in a separate environment.is being educated in a separate environment.

Grade to grade progress is an important factor in determining Grade to grade progress is an important factor in determining educational benefit, but it does not automatically indicate that educational benefit, but it does not automatically indicate that the student is receiving a FAPE.the student is receiving a FAPE.

When a student is being educated outside the mainstream When a student is being educated outside the mainstream environment, the importance of using standardized test scores environment, the importance of using standardized test scores to determine progress is greater.to determine progress is greater.

Case No. 9 – Case No. 9 – Issue:Issue: Is the absence of a valid IEP on the first day Is the absence of a valid IEP on the first day of school a per se violation of the IDEA?of school a per se violation of the IDEA?

C.H. v. Cape Henlopen School Dist., (3d Cir. 2010)C.H. v. Cape Henlopen School Dist., (3d Cir. 2010)

When the absence of an IEP on the first day of school When the absence of an IEP on the first day of school can be attributed to the lack of availability of the parents, can be attributed to the lack of availability of the parents, the district will not automatically be held liable for the district will not automatically be held liable for violating the IDEA.violating the IDEA.

Without evidence of loss of educational benefit for the Without evidence of loss of educational benefit for the child, there is no per se violation of the IDEA even when child, there is no per se violation of the IDEA even when there is a technical violation.there is a technical violation.

Case No. 10 – Case No. 10 – Issue:Issue: Does a student’s promotion from first grade to second Does a student’s promotion from first grade to second grade in a mainstreamed environment, based on the grade in a mainstreamed environment, based on the application of regular grade promotion standards, application of regular grade promotion standards, indicate that she received meaningful educational indicate that she received meaningful educational benefit and therefore a FAPE?benefit and therefore a FAPE?Houston Independent School Dist. v. V.P., (5th Cir. 2009)Houston Independent School Dist. v. V.P., (5th Cir. 2009)

The IEP should be measured against whether The IEP should be measured against whether 1) the program is individualized on the basis of the student’s 1) the program is individualized on the basis of the student’s assessment and performance; assessment and performance; 2) the program is administered in the least restrictive environment, 2) the program is administered in the least restrictive environment, 3) the services are provided in a collaborative and coordinated manner 3) the services are provided in a collaborative and coordinated manner by the key stakeholders, and by the key stakeholders, and 4) positive academic and non-academic benefits are demonstrated.4) positive academic and non-academic benefits are demonstrated.

Despite grade promotion, a student has not gotten a FAPE if she has Despite grade promotion, a student has not gotten a FAPE if she has been mainstreamed beyond her capabilities. She would not have been mainstreamed beyond her capabilities. She would not have passed without significant modifications and had not mastered the passed without significant modifications and had not mastered the content. Therefore, she did not get a FAPE.content. Therefore, she did not get a FAPE.

Case No. 11 – Case No. 11 – Issue:Issue: Under what circumstances can reimbursement Under what circumstances can reimbursement for a private residential facility be denied?for a private residential facility be denied?

Ashland School District v. Parents of E.H. (9th Cir. 2009)Ashland School District v. Parents of E.H. (9th Cir. 2009)

When the primary purpose of the residential placement is to When the primary purpose of the residential placement is to address medical, social, or emotional problems, rather than address medical, social, or emotional problems, rather than primarily educational problems, reimbursement may be primarily educational problems, reimbursement may be denied.denied.

Especially when the primary purpose of the placement is to Especially when the primary purpose of the placement is to address emotional or medical needs, the high cost of address emotional or medical needs, the high cost of residential treatment may be considered.residential treatment may be considered.

The district had no obligation to let parents know that there The district had no obligation to let parents know that there are circumstances under which districts can be obligated to are circumstances under which districts can be obligated to pay for residential facilitiespay for residential facilities..

Case No. 12 – Case No. 12 – Issue:Issue: When educating a pre-school child, does a district When educating a pre-school child, does a district that does not offer a pre-school for typically that does not offer a pre-school for typically developing children have to first determine if the developing children have to first determine if the child’s needs can be met in a mainstream classroom?child’s needs can be met in a mainstream classroom?R.H. v. Plano Indep. School Dist., (5th Cir. 2010)R.H. v. Plano Indep. School Dist., (5th Cir. 2010)

Private placement is always the exception, not the rule, Private placement is always the exception, not the rule, when the district is considering placement options.when the district is considering placement options.

When the district does not offer a pre-school for typically When the district does not offer a pre-school for typically developing children, but does offer a special education developing children, but does offer a special education setting for pre-school children, it was appropriate for the setting for pre-school children, it was appropriate for the district to place a child there without first considering district to place a child there without first considering whether his needs could be met in a mainstream setting.whether his needs could be met in a mainstream setting.

Case No. 13 – Case No. 13 – Issue:Issue: Under what circumstances is a residential Under what circumstances is a residential placement appropriate under the IDEA?placement appropriate under the IDEA?

Richardson Independent School Dist. v. Michael Z., (5th Cir. 2009)Richardson Independent School Dist. v. Michael Z., (5th Cir. 2009)

A residential placement is appropriate when it is -- A residential placement is appropriate when it is -- Essential in order for the disabled child to receive a Essential in order for the disabled child to receive a

meaningful educational benefit; andmeaningful educational benefit; and Primarily oriented toward enabling the child to obtain an education.Primarily oriented toward enabling the child to obtain an education.

When the evidence shows that the district had been When the evidence shows that the district had been unsuccessful in addressing the student’s refusal to unsuccessful in addressing the student’s refusal to attend class and that the student made little to no attend class and that the student made little to no academic progress while in the district, a residential academic progress while in the district, a residential placement is appropriate.placement is appropriate.

Case No. 14 – Case No. 14 – Issue:Issue: Can district be ordered to provide compensatory Can district be ordered to provide compensatory education through due process when it did not education through due process when it did not actively refuse to initiate an evaluation, but never actively refuse to initiate an evaluation, but never identified a child with a disability?identified a child with a disability?Compton Unified School Dist. v. Addison (9th Cir. 2010)Compton Unified School Dist. v. Addison (9th Cir. 2010)

The district is obligated to identify children with disabilities, The district is obligated to identify children with disabilities, evaluate them, and provide services to them.evaluate them, and provide services to them.

Failure to do so subjects them to a claim for compensatory Failure to do so subjects them to a claim for compensatory education through due process.education through due process.

Due process petitions are not limited to those items subject to Due process petitions are not limited to those items subject to “prior written notice.”“prior written notice.”

Due process may be initiated regarding any matter related to Due process may be initiated regarding any matter related to identification, evaluation, or educational placement.identification, evaluation, or educational placement.

Case No. 15 – Case No. 15 – Issue:Issue: May a hearing officer grant requests for continuances May a hearing officer grant requests for continuances made by the parents, even if it results in a decision made by the parents, even if it results in a decision being made outside the required 45-day time limit being made outside the required 45-day time limit set by the IDEA?set by the IDEA?Lake Washington School District No. 414 v. Office of Superintendent, Lake Washington School District No. 414 v. Office of Superintendent, (9th Cir. 2011)(9th Cir. 2011)

The LEA has no standing to complain about The LEA has no standing to complain about the continuances.the continuances.

The IDEA’s procedural safeguards are there to protect the The IDEA’s procedural safeguards are there to protect the parents’ rights; not the school district’s.parents’ rights; not the school district’s.

Case No. 16 – Case No. 16 – Issue:Issue: Can the parents of a child who has never been Can the parents of a child who has never been served by the public schools get tuition served by the public schools get tuition reimbursement?reimbursement?

Forest Grove School District v. T.A.,129 S. Ct. 2484 (2009) Forest Grove School District v. T.A.,129 S. Ct. 2484 (2009)

Nothing in the new IDEA language changes the analysis of School Committee of Burlington v. Dept. of Educ. of Mass (1985) which allows for tuition reimbursement upon a finding that the school district failed to provide a FAPE.

New language is not sole avenue for remedy; Congress did not intend to leave parents without a remedy when the school district erroneously failed to identify their child as having a disability.