ses spring 2015 legal update
TRANSCRIPT
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Legal Update Overview . . . New OAH Decisions
Behavior, IEP Meetings, IEEs, LRE, Manifestation Determinations, Preschool Students, Residential Placement, Transfer Students, Transition Services, Truancy
Noteworthy Decisions from Courts and Administrative Agencies
Latest Federal Guidance Recent Developments Affecting Special
Education in California
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New Cases – BehaviorStudent v. Twin Rivers Unified School Dist. (OAH 2014)
Facts: 11-year-old fifth grade Student Despite behavior interventions, Student continually
eloped from school Placed on home instruction, but behavior issues
continued General ed teacher assigned to home instruction
was not trained to address behavior problems District contended Parent thwarted efforts
to conduct FBA(Student v. Twin Rivers Unified School Dist. (OAH 2014) Nos. 2014030894 and
2014050203, 114 LRP 37445)
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New Cases – BehaviorStudent v. Twin Rivers Unified School Dist. (OAH 2014)
Decision: ALJ found denial of FAPE District failed to offer behavior supports in IEP
despite being aware of Student’s behaviors Offer to assess Student’s behavioral needs did not
cure failure to provide appropriate interventions Irrelevant whether Parent obstructed completion of
FBA ALJ awarded 34 hours of comp ed behavior services District prevailed on other issues
(Student v. Twin Rivers Unified School Dist. (OAH 2014) Nos. 2014030894 and 2014050203, 114 LRP 37445))
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Behavior
Why Does This Case Matter to Us? If staff are not appropriately trained
to address behaviors and there isno cohesive plan in place to meetbehavior needs, general consensusof courts and OAH is that Studentcannot benefit from his/her education
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Facts: Parents of 3-year-old with hearing impairment advised
District they were “formally revoking” IEP; disagreed with assessments and requested three IEEs
District treated Parents’ letter as revocation of consent for all special ed services and denied IEE
Did not provide IEEs or seek due process to defend assessments
Parents claimed denial of FAPE for refusal to fund IEEs
(Student v. Capistrano Unified School Dist. (OAH 2014) No. 2014040723, 114 LRP 38493)
New Cases – ConsentStudent v. Capistrano Unified School Dist. (OAH 2014)
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Decision: ALJ found that “plain language” of Parents’
revocation pertained exclusively to IEP Because Parents also notified District they would be
providing Student with another placement and would seek reimbursement, District should have been aware that FAPE dispute existed and that Parents did not intend to revoke consent for eligibility
Revocation of IEP ≠ revocation of eligibility District ordered to fund IEEs(Student v. Capistrano Unified School Dist. (OAH 2014) No. 2014040723, 114 LRP
38493)
New Cases – ConsentStudent v. Capistrano Unified School Dist. (OAH 2014)
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Consent
Why Does This Case Matter to Us?Revocations of consent can pose
difficult issuesAnalyze language and circumstances
carefully to avoid erroneous interpretations
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Facts: Parents unilaterally placed third-grader in NPS shortly
after school year began In November, District sent triennial assessment plan
in preparation for IEP meeting due in January Meeting not held until late March Parents arrived 45 minutes late, by which time
Student’s general ed teacher had left Parent signed assessment plan at meeting and
District proposed transitioning Student back from NPS(Student v. Pajaro Valley Unified School Dist. (OAH 2014) No. 2013090347, 114 LRP
49843)
New Cases – IEP MeetingsStudent v. Pajaro Valley Unified School Dist. (OAH 2014)
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Decision: Failure to hold timely IEP meeting and failure to secure
presence of general ed teacher was procedural violation that rose to denial of FAPE
Had meeting been held in January, Student may have returned to District for second semester
General ed teacher was necessary because District proposed change in Student’s gen ed services
ALJ ordered four months of NPS tuition reimbursement ALJ rejected all other FAPE-based arguments by
Parents(Student v. Pajaro Valley Unified School Dist. (OAH 2014) No. 2013090347, 114 LRP
49843)
New Cases – IEP MeetingsStudent v. Pajaro Valley Unified School Dist. (OAH 2014)
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IEP Meetings
Why Does This Case Matter to Us?While some procedural violations
are “harmless” errors, if theviolations result in loss of educational opportunity orseriously infringe on parents’ IEP participation, they amount to a denial of FAPE – and give rise to a remedy
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Facts: 11-year-old Student placed in group home by DCFS
after 14 unsuccessful foster homes and four unsuccessful reunifications with Parent
Frequent psychiatric hospitalization due to aggressive behaviors
After enrollment in District, Student was found eligible for special ed (serious emotional disturbance)
IEP team recommended self-contained therapeutic placement; Parent claimed placement was not LRE
(Student v. Pasadena Unified School Dist. (OAH 2014) No. 2014070784, 114 LRP 49752)
New Cases – LREStudent v. Pasadena Unified School Dist. (OAH 2014)
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Decision: ALJ found District’s proposed placement was LRE Severity of behaviors justified need for therapeutic
setting Parent failed to show how lesser restrictive setting
(general ed class with 1:1 aide or SDC) could meet Student’s mental health needs
ALJ also rejected claim that selected placement was inappropriate due to numerous incidents of student runaways
(Student v. Pasadena Unified School Dist. (OAH 2014) No. 2014070784, 114 LRP 49752)
New Cases – LREStudent v. Pasadena Unified School Dist. (OAH 2014)
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LRE
Why Does This Case Matter to Us?The LRE obligation does not
override the FAPE requirement If placement discussed or proposed
at IEP meeting will not confer educational benefit and a more restrictive program is likely to provide such benefit, the student is entitled to be placed in that more restrictive program
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Facts: 11-year-old with ADHD, autism and SLD suspended
several times (totaling 10 days) for various incidents Student also was removed from class on several
occasions for counseling, a threat assessment, de-escalation of behaviors, and to take California modified assessment
Parent claimed that all classroom removals exceeded
10 days and District should have conducted manifestation determination
(Student v. Capistrano Unified School Dist. and Journey Charter School (OAH 2014) No. 2014060007, 114 LRP 38670)
New Cases – Manifestation DeterminationsStudent v. Capistrano USD and Journey Charter Sch. (OAH 2014)
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Decision: ALJ found Parent had erroneous belief that
all removals from classroom were tantamount to in-school suspensions
Various removals (counseling, behavior de-escalation) conformed to Student’s IEP and BIP
Threat assessment removal was not for disciplinary purposes
District appropriately removed Student in effort to implement IEP and BIP
(Student v. Capistrano Unified School Dist. and Journey Charter School (OAH 2014) No. 2014060007, 114 LRP 38670)
New Cases – Manifestation DeterminationsStudent v. Capistrano USD and Journey Charter Sch. (OAH 2014)
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Manifestation Determinations Why Does This Case Matter to Us?
While it is important to keep accurate count of days of removal,it is also important to recognize which removals are not “disciplinary actions” and do not count toward 10-day threshold
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Facts: 3-year-old with cerebral palsy placed in integrated
preschool setting where children transitioned between various locations for play activities
District protocol required close adult supervision with no children unattended on playground
Staff planned to be near Student at all times due to her balance and motor issues
Parents claimed District should have provided accommodations and modifications to address safety
(Student v. Elk Grove Unified School Dist. (OAH 2014) No. 2014040312, 114 LRP 29153)
New Cases – Preschool StudentsStudent v. Elk Grove Unified School Dist. (OAH 2014)
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Decision: ALJ found Student’s IEP should have addressed
unique safety issues Despite District protocol, given adult/student ratio at
the preschool it was possible for adult not to be near enough to Student to provide support at any given moment
Student’s unsteady balance and inability to step backwards or side-to-side warranted IEP provision to guarantee close supervision in classroom/playground
(Student v. Elk Grove Unified School Dist. (OAH 2014) No. 2014040312, 114 LRP 29153)
New Cases – Preschool StudentsStudent v. Elk Grove Unified School Dist. (OAH 2014)
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Preschool Students
Why Does This Case Matter to Us?When designing initial IEPs for
preschoolers, it is essential that IEPteam be aware of all of student’s unique needs and address them in the document
IFSP developed by Part C service provider can serve as important guide
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Facts: 14-year-old with mood disorder had lived at various
residential treatment centers since age 7 Placements made through DCFS in response to
violent behaviors at home No IEP team had ever determined residential
placement was necessary for FAPE After DCFS discontinued funding, Parents made
unilateral residential placement and sought reimbursement from District
(Student v. Burbank Unified School Dist. (OAH 2014) No. 2014020031, 114 LRP 36110)
New Cases – Residential PlacementStudent v. Burbank Unified School Dist. (OAH 2014)
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Decision: ALJ denied reimbursement for residential placement Upheld District’s proposed placement in small
classroom environment at nonpublic day school with ESY, transportation and individual counseling
Student’s in-class behavior and emotional issues could be addressed in day school setting
Classroom behavior did not trigger severe behaviors at home
(Student v. Burbank Unified School Dist. (OAH 2014) No. 2014020031, 114 LRP 36110)
New Cases – Residential PlacementStudent v. Burbank Unified School Dist. (OAH 2014)
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Residential Placement
Why Does This Case Matter to Us?As the ALJ stated, “a district’s
responsibility under the IDEAis to remedy the learning-relatedsymptoms of a disability, not to treat other, non-learning symptoms”
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Facts: After dispute over IEP, Parents enrolled Student in
virtual charter school sponsored by another district For next school year, Parents sought to transfer
Student back to District and provided registration information
District registered Student but did not enroll her because she was still enrolled at charter school
Parents filed for due process, claiming District denied FAPE by failing to assess Student following her transfer back to District and by not funding IEE
(Student v. Arcadia Unified School Dist. (OAH 2014) No. 2014060827, 114 LRP 44606)
New Cases – Transfer StudentsStudent v. Arcadia Unified School Dist. (OAH 2014)
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Decision: ALJ found Parents were not entitled to any remedy If Parents wanted District assessment, they should
have first dis-enrolled Student from charter school Student could not be simultaneously enrolled in
two districts District had no obligation to assess, convene IEP
meeting, make FAPE offer or fund any IEE until Student was enrolled
(Student v. Arcadia Unified School Dist. (OAH 2014) No. 2014060827, 114 LRP 44606)
New Cases – Transfer StudentsStudent v. Arcadia Unified School Dist. (OAH 2014)
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Transfer Students
Why Does This Case Matter to Us?Semantics can matter in
special education – especiallythe distinction between “registration” and “enrollment”
Obligation to provide FAPE does not beginuntil district becomes the responsible LEA, i.e., once Student officially enrolls
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Facts: 11-year-old with ADHD and severe anxiety issues was
unilaterally placed at NPS District reassessed Student prior to fifth grade, offering
public school placement with one-half day in general ed classroom and one-half day in learning center class
Offered short-term behavior supports and access to counseling to ease Student’s transition from small NPS classroom
Parents rejected FAPE offer and sought reimbursement
(Student v. Ross Valley School Dist. (OAH 2014) No. 2014020175, 114 LRP 49845)
New Cases – Transition ServicesStudent v. Ross Valley School Dist. (OAH 2014)
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Decision: District violated FAPE because behavior supports were
inadequate to meet Student’s needs Student was transitioning from small class size (four
students) to classroom with 30 students Large classroom could exacerbate anxiety issues Needed more than just a few weeks of behavior
services District ordered to reimburse for NPS for 2012-2013 District remedied deficient services in subsequent IEP
(Student v. Ross Valley School Dist. (OAH 2014) No. 2014020175, 114 LRP 49845)
New Cases – Transition ServicesStudent v. Ross Valley School Dist. (OAH 2014)
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Transition Services
Why Does This Case Matter to Us?When Student is moving from small
private setting to large public school,IEP team must anticipate andaddress transition-related issues,including need for additional supportsto help Student adjust to a big classroom
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Facts: 14-year-old homeless Student with OHI (for ADHD) History of truancy in various districts After sending Guardian several notices of excessive
absences, District referred Student to SARB SARB referred Student to community day school District did not mention on referral form that Student
was entitled to special ed services or had IEP Guardian claimed manifestation determination should
have been held(Student v. Rialto Unified School Dist. (OAH 2014) No. 2014040982, 114 LRP 38497)
New Cases – TruancyStudent v. Rialto Unified School Dist. (OAH 2014)
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Decision: ALJ found SARB referral was disciplinary change of
placement and required MD review Change of placement was result of Student’s habitual
truancy, a violation of code of student conduct ALJ cited State SARB model handbook Conducting MD is consistent with purposes of SARB –
to ensure all appropriate interventions are utilized Note: ALJ also found Student’s conduct was
manifestation of his ADHD(Student v. Rialto Unified School Dist. (OAH 2014) No. 2014040982, 114 LRP
38497)
New Cases – TruancyStudent v. Rialto Unified School Dist. (OAH 2014)
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Truancy
Why Does This Case Matter to Us?ALJ stressed that holding MD review
when SARB considers a change ofplacement is consistent withIDEA policy and the “responsibilitiesassumed by districts when addressingthe special education needs of students”
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What Happened: District conducted RTI but chose to use severe
discrepancy model to assess Student for SLD 9th Circuit found District met legal requirements in
conducting its evaluation and appropriately used RTI data to corroborate assessment results
However, District violated IDEA by failing to ensure RTI data was appropriately documented and by failing to provide Parents with RTI data
Procedural violation amounted to denial of FAPE by infringing on Parents’ ability to participate in IEP process
(M.M. v. Lafayette School Dist. (9th Cir. 2014) 64 IDELR 31)
Response to InterventionM.M. v. Lafayette School Dist. (9th Cir. 2014)
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What Happened: IEP team adjourned before completing discussion of
IEE obtained by Parents but after discussing goals Parents filed for due process claiming team failed to
adequately consider their IEE District reconvened IEP meeting without Parents (who
refused to attend) and finalized IEP based, in part, on information previously discussed with Parents
Court found no predetermination (reversing ALJ) IEP with partial parental input was better option than
proceeding indefinitely with outdated IEP(Cupertino Union School Dist. v. K.A. (N.D. Cal. 2014) 64 IDELR 200)
Parent ParticipationCupertino Union School Dist. v. K.A. (N.D. Cal. 2014)
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What Happened: Student with ED, who resided outside of district, was
hospitalized at psychiatric facility within District boundaries District provided special ed services at hospital and IEP
team recommended residential placement upon release District advised Guardian it was not responsible for placing
Student at residential facility Court: District fulfilled responsibility by providing services at
hospital, but responsibility ended on discharge At that point, district of residence assumes FAPE obligation(N.G. v. ABC Unified School Dist. (C.D. Cal. 2014) 64 IDELR 73)
Residential PlacementN.G. v. ABC Unified School Dist. (C.D. Cal. 2014)
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What Happened: Student had genetic markers for cystic fibrosis District removed Student from classroom citing safety
concerns (which later turned out to be unwarranted) Parties “settled the matter” and Student returned to
school after missing two weeks Court: No 504 or ADA violation resulted from removal District acted in effort to preserve safe operation of its
school Removal was reasonable given info District had at the
time(Chadam v. Palo Alto Unified School Dist. (N.D. Cal. 2014) 64 IDELR 168)
Health and SafetyChadam v. Palo Alto Unified School Dist. (N.D. Cal. 2014)
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What Happened: Teacher believed Parent was recording IEP meeting
without providing required 24-hour notice Same day that Parent requested consultation with
psychologist (following Student’s school behavior issues), District reported alleged recording to police
OCR found evidence of retaliation by District against Parents for engaging in protected activity
District had no proof meeting was recorded and any violation of 24-hour notice law was not criminal act
(San Carlos School Dist. (OCR 2014) 114 LRP 31014)
RetaliationSan Carlos School Dist. (OCR 2014)
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What Happened: Parent complained to OCR about lack of
accessible bathroom at school where due process hearing was being held
OCR reached agreement with CDE CDE agreed to:
Make sure facilities where hearings are held are accessible to individuals with disabilities
Adopt procedures for OAH to evaluate and respond to requests for accommodations
(California Dep’t of Educ. (OCR 2014) 114 LRP 47368)
AccessibilityCalifornia Dep’t of Educ. (OCR 2014)
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OSEP/OCR Dear Colleague letters OSEP: Districts must have child find policies in
place to identify, locate students in juvenile correctional facilities
Students must receive timely evaluations Records must be transferred expeditiously IDEA due process applies IDEA discipline procedures apply to “removals” OCR: Juvenile justice facilities must provide equal
access to coursework, provide 504 FAPE, meet needs of ELs, avoid discriminatory discipline
(Dear Colleague Letter (OSEP 12/5/2014); Dear Colleague Letter (OCR 12/8/2014))
Incarcerated Students
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Letter to Reilly (OSEP) Which party bears burden of proof in state
compliance complaint? OSEP stated it is not consistent with IDEA for SEA to
treat compliance complaints like due process complaints and assign a burden of proof to either party
Once complaint is filed, neither party has burden to product sufficient evidence to persuade SEA to make determination “one way or another”
SEA must independently review and weigh evidence
(Letter to Reilly (OSEP 11/3/2014))
State Complaint Procedures
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FAQs of Effective Communication (OCR) Districts must apply IDEA FAPE analysis and ADA
“effective communication” analysis in determining how to meet students’ communication needs
Services may be required under Title II even if they are not needed to provide FAPE
Student need not be IDEA-eligible in order to qualify under Title II
Under Title II, districts must honor communication choice of student/family, unless it can prove alternative aid/service is equally effective
(Frequently Asked Questions on Effective Communication for Students with Hearing, Vision or Speech Disabilities (OCR 11/12/2014))
ADA “Effective Communication”
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Dear Colleague Letter (OCR) Bullying can amount to disability-based harassment
and/or denial of FAPE under Section 504 When Student is bullied, Section 504 team must
convene to determine whether needs have changed such that Student is no longer receiving FAPE
Team must look at additional/different services or change of placement
If bullying results in disability-based harassment, there is “strong likelihood” that Student is also being denied FAPE
(Dear Colleague Letter (OCR 10/21/2014))
Bullying and Section 504
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U.S. Supreme Court Update
January 2015: U.S. Supreme Court refused to consider appeal in E.M. v. Pajaro Unified School District, effectively ending dispute that had continued since 2006
9th Circuit ruled in 2014 that District acted reasonably when it determined that Student with an auditory processing disorder did not qualify for special education under the category of SLD
Although court recognized that a student may be eligible for special education under more than one category of disability, it found that District also did not act inappropriately by failing to qualify Student as OHI
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New Legislation
SB 1266 (EpiPens)All schools must stock epiPens and restock
them as soon as used or when shelf-life expires
Provide to nurses and trained personnelDistricts must distribute annual notice for
volunteers to be trained to administer injections
Private schools have discretion to determine whether or not to make epiPens available
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New Legislation
AB 420 (Suspensions/Expulsions)Amends Ed Code section 48900(k)Prohibits districts from suspending K-3
student who disrupts school activities or commits act of willful defiance
Prohibits recommendation for expulsion for those acts for K-12 students
Prohibitions do not apply to commission of any other act under section 48900.
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Thank you for attending!And thank you for all you do for
students!!
Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information
may apply to your specific facts and circumstances.
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Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances .