SES Spring 2015 Legal Update

1

Cases, Guidance, Legislation, and Other

Developments

2

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

3

I. New OAH Decisions

4

Behavior Interventions and Supports

5

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)

6

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))

7

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

8

Consent

9

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)

10

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)

11

Consent

Why Does This Case Matter to Us?Revocations of consent can pose

difficult issuesAnalyze language and circumstances

carefully to avoid erroneous interpretations

12

IEP Meetings

13

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)

14

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)

15

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

16

Least Restrictive Environment

17

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)

18

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)

19

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

20

Manifestation Determinations

21

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)

22

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)

23

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

24

Preschool Students

25

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)

26

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)

27

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

28

Residential Placement

29

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)

30

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)

31

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”

32

Transfer Students

33

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)

34

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)

35

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

36

Transition Services

37

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)

38

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)

39

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

40

Truancy

41

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)

42

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)

43

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”

44

II. Noteworthy Decisionsfrom the Courts and

Administrative Agencies

45

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)

46

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)

47

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)

48

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)

49

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)

50

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)

51

III. LatestFederal Guidance

52

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

53

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

54

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”

55

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

56

IV. RecentDevelopments

AffectingSpecial Education

in California

57

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

58

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

59

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.

60

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.

61

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 .

62

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 .