SES Fall 2014: Legal Update

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Cases, Guidance,
Legislation, and Other
Developments

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Legal Update Overview . . .
 New OAH Decisions
 Consent, Discipline, Eligibility, Exit from Special
Education, Incarcerated Students, IEEs, Medical
Needs, One-to-One Aids, Parent Participation,
Residential Placement
 Noteworthy Decisions from Courts
and Administrative Agencies
 Latest Federal Guidance
 Recent Developments in California

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Consent
 Background
 In cases of divorce,
IDEA parental rights apply
to both parents unless
court order specifies otherwise
 OAH decision shows how court orders
concerning educational decision-making
can cause confusion . . .

6
New Decision – Consent
Student v. Val Verde Unified School Dist. (OAH 2014)
 Facts:
 District sought to assess 11-year-old Student
 Parents divorced with joint custody
 Court order required Parents “confer” in making
educational decisions but did not require mutual consent
 Mother consented to assessment; Father did not
 District delayed assessment until it obtained Father’s
consent
 Mother filed for due process claiming District missed
60-day assessment time frame
(Student v. Val Verde Unified School Dist. (OAH 2014) No. 2013090251, 114 LRP 16298)

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New Cases – Consent
Student v. Val Verde Unified School Dist. (OAH 2014)
 Decision:
 ALJ found Mother’s consent was sufficient to start
60-day assessment timeline
 Because court order did not specify circumstances that
required both Parents’ consent, District was required to
accept consent from either Parent
 But although delay was procedural violation, it did not
deny FAPE
 Student ultimately found ineligible for special ed
(Student v. Val Verde Unified School Dist. (OAH 2013) No. 2013090251, 114 LRP
16298)

9
Discipline
 Background
 When a student with a disability
brings a weapon to school, the
IDEA and state law detail what
districts can and cannot do
 OAH decision illustrates
the parameters of these requirements . . .

10
 Facts:
 16-year-old Student with OHI brought handgun and
ammunition to school
 Placed in IAES, where he remained for more than 45
days
 IEP team determined behavior was manifestation of
disability, but District continued expulsion proceedings
 District claimed obligation to expel under federal Gun
Free Schools Act and Ed. Code section 48915
 Also asserted OAH had no jurisdiction over expulsion
proceedings
(Student v. Los Angeles Unified School Dist. (OAH 2014) No. 2014040246, 114 LRP 29102)
New Cases – Discipline
Student v. Los Angeles Unified School Dist. (OAH 2014)

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 Decision:
 ALJ: Because expulsion is change of placement, OAH
has jurisdiction
 IDEA requirements trump Gun-Free Schools Act and
Ed. Code expulsion rules
 When behavior found to be manifestation of Student’s
OHI, District was limited to 45-day IAES
 Student reinstated to last-identified placement and
District ordered to remove all references to expulsion
proceedings from Student’s records
New Cases – Discipline

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Eligibility
 Background
 A district likely will be found
to have provided FAPE if its IEP
addresses all of student’s needs –
despite error in eligibility classification
 OAH case involves dispute over designation
under autism vs. speech/language
impairment . . .

14
 Facts:
 District identified 9-year-old Student as eligible for
special ed under autism; offered SDC placement at
different school than Student previously attended
 Private evaluation concluded Student had language
impairment, not autism
 Parent claimed designation of eligibility under autism
denied FAPE; also claimed placement was inappropriate
because Student had to change schools
New Cases – Eligibility

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 Decision:
 ALJ determined that IEP team incorrectly identified
Student as with autism; his “pervasive” behaviors were
limited to language and speech delays
 However, no denial of FAPE resulted
 SDC class provided Student educational benefit in LRE
regardless of eligibility category
 No evidence to support Parent’s claim that Student’s
friendship with peers required that he remain
at previous school
New Cases – Eligibility

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Exit from Special Education

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Exit from Special Education
 Background
 When a student graduates with
regular high school diploma,
district’s FAPE obligation ends
 OAH addressed the issue of whether
certificate of proficiency operates as
a regular high school diploma to exit a student
from special education . . .

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 Facts:
 Student eligible as OHI due to effects of spinal surgery
 Passed California High School Proficiency Exam at age
17 so she could attend college
 When Student turned 18, she asked District to “re-open”
her IEP, claiming need for private, out-of-state
residential placement
 District’s position was that Student had been exited from
special ed by receiving certificate of proficiency
(Clovis Unified School Dist. v. Student (OAH 2014) No. 2014010199, 114 LRP 29085)
New Cases – Exit from Special Ed
Clovis Unified School Dist. v. Student (OAH 2014)

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 Decision:
 ALJ determined that certificate of proficiency is not a
regular high school diploma and was not a valid basis to
exit Student from special ed
 Rejected District’s reliance on Ed Code section 48412
that “certificate of proficiency shall be equivalent to a
high school diploma”; general education provision does
not prevail over federal and state special ed laws
 Not treating certificate the same as diploma did not have
discriminatory effect on Student
(Clovis Unified School Dist. v. Student (OAH 2014) No. 2014010199, 114 LRP 29085)
New Cases – Exit from Special Ed
Clovis Unified School Dist. v. Student (OAH 2014)

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Incarcerated Students
 Background
 Providing appropriate services
to incarcerated students
with disabilities often involves
interaction among several agencies
 OAH was called upon to determine whether
denial of FAPE occurred when Probation
Department prevented County Office of
Education from serving student . . .

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 Facts:
 18-year-old Student incarcerated in Juvenile Hall by
County Probation Department
 Subsequently, County Office of Education found him
eligible under ED category
 Parent claimed Probation Department violated child find
and denied FAPE by preventing Student from receiving
services under IEP designed by COE
 (2013 OAH decision found that Probation Department
was responsible public agency for the provision of
FAPE)
(Student v. Contra Costa County Probation Dept. (OAH 2014) No. 2013080462,
114 LRP 6670)
New Cases – Incarcerated Students
Student v. Contra Costa County Probation Dept. (OAH 2014)

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 What Happened:
 ALJ found no child find violation because Student was
not under security restriction until shortly before COE
began assessment – therefore he was available to COE
 However, Probation Department denied FAPE because
security restriction later prevented COE from sending
aide and providing Student with needed services
 Probation Department failed to make any attempt to
determine if Student could be safely educated
 ALJ awarded 17 hours of tutoring as comp ed
(Student v. Contra Costa County Probation Dept. (OAH 2014) No. 2013080462,
114 LRP 6670)
New Cases – Incarcerated Students
Student v. Contra Costa County Probation Dept. (OAH 2014)

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Independent Educational
Evaluations

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Independent Educational Evaluations
 Background
 When parents ask for IEE,
districts must respond “without
unnecessary delay” by either
ensuring IEE is provided or
by filing for due process to defend its
assessment
 OAH decision addressed whether district’s
inaction constituted “unnecessary delay”
sufficient to deny FAPE . . .

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 Facts:
 Parent disagreed with District’s behavior assessment of
Student and requested IEE from private behaviorist
 District delayed contacting behaviorist for two weeks
 Then engaged in prolonged negotiations over contract
terms over the next five months
 Behaviorist ultimately withdrew from negotiations
 Parents privately hired her and requested
reimbursement
(Student v. Dixon Unified School Dist. (OAH 2014) No. 2013090674, 114 LRP 29153)
New Cases – IEEs
Student v. Dixon Unified School Dist. (OAH 2014)

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 Decision:
 ALJ awarded reimbursement
 District unreasonably delayed in providing IEE by
“negotiating slowly, inadequately and fruitlessly”
 Although no evidence that delay had adverse effect on
Student’s education, it impacted Parent’s right to
participate in decision-making process because results
of IEE were not available at annual IEP meeting
(Student v. Dixon Unified School Dist. (OAH 2014) No. 2013090674, 114 LRP 29153)
New Cases – IEEs
Student v. Dixon Unified School Dist. (OAH 2014)

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Medical Needs
 Overview
 When a student’s medical condition
requires the provision of nursing
services at school, discussions
concerning who will provide those
services can arise
 OAH decision illustrates the latitude allowed to
districts in this area . . .

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 Facts:
 Student with autism and diabetes required care of
qualified nurse while he was at school
 IEP-based services initially provided by licensed
vocational nurse furnished by County
 Nurse’s employment was terminated
 Parent refused to consent to IEP unless District
permitted original nurse to return
 After her request was refused, Parent filed for due
process claiming denial of FAPE
(Student v. Yuba City Unified School Dist. (OAH 2014) No. 2013110182, 114 LRP 17835)
New Cases – Medical Needs
Student v. Yuba City Unified School Dist. (OAH 2014)

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 Decision:
 ALJ found Parent had “misguided belief” that she could
make decisions about who District employs to provide
IEP services
 District has right to select qualified service providers, so
long as they can meet Student’s needs
 No evidence that new nurse was not qualified
 IEP offered FAPE
(Student v. Yuba City Unified School Dist. (OAH 2014) No. 2013110182, 114 LRP 17835)
New Cases – Medical Needs
Student v. Yuba City Unified School Dist. (OAH 2014)

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One-to-One Aides
 Overview
 As is the case with the provision
of nursing services, disputes
frequently arise over who is
qualified to serve as
a student’s one-to-one aide
 OAH addressed issue of whether student’s
one-to-one aide should have experience
in mountain biking . . .

34
 Facts:
 18-year-old Student with autism received one-to-one
aide during school day and for afternoon sports
 Student joined mountain bike team
 IEP did not specifically include mountain biking
 Campus security guard, who later became Student’s
aide, assisted Student
 District informed security guard he was out of
classification and he ultimately resigned as aide
 New aide assigned to Student had no bike experience
(Student v. Rim of the World Unified School Dist. (OAH 2014) No. 2013120111,
114 LRP 16308)
New Cases – One-to-One Aides
Student v. Rim of the World Unified School Dist. (OAH 2014)

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 Decision:
 ALJ rejected Parent’s request that District assign aide
who could assist Student in mountain biking
 Insufficient evidence that Student had unique needs that
could only be met through such “highly technical and
dangerous sport,” particularly when it was not written
into his IEP
 Student made progress on all IEP goals and succeeded
in class
(Student v. Rim of the World Unified School Dist. (OAH 2014) No. 2013120111,
114 LRP 16308)
New Cases – One-to-One Aides
Student v. Rim of the World Unified School Dist. (OAH 2014)

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Parent Participation
 Overview
 As essential members of IEP team,
parents must be given every
opportunity to participate in the
IEP process
 OAH tackled difficult issue of
extent of district’s obligations when parents refuse
to attend meetings and its duty to provide
interpreter and translation services . . .

38
 Facts:
 Parents of sixth-grader with autism had contentious
relationship with District and refused to agree to IEP
meeting dates
 District mailed Parents (whose native language was
Cantonese) written IEP meeting notice in English
on June 6, 2013 for meeting to take place on June 7
 No evidence Parents received notice and no attempts
were made to contact them by phone or email
 When Parents did not attend meeting, District mailed IEP
(Student v. Sacramento City Unified School Dist. (OAH 2014) No. 2013060562,
114 LRP 6937)
New Cases – Parent Participation
Student v. Sacramento City Unified School Dist. (OAH 2014)

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 Decision:
 Parents refusal to cooperate did not entitle District to
bypass legal requirements to make attempts to convince
Parents to attend IEP meetings
 Additionally, Parents did not have sufficient command of
English to understand IEP document mailed to them,
which was 30 pages and not translated into Cantonese
 ALJ voided June 2013 IEP; ordered District to provide
oral interpreter at IEP meetings and written translation of
documents and notices
(Student v. Sacramento City Unified School Dist. (OAH 2014) No. 2013060562,
114 LRP 6937)
New Cases – Parent Participation
Student v. Sacramento City Unified School Dist. (OAH 2014)

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Residential Placement
 Overview
 Analysis for determining whether
residential placement is appropriate
depends on whether it is necessary
for educational purposes
 Many cases, such as the following, involve the
question of whether severe behaviors at home
are adequately managed at school . . .

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 Facts:
 14-year-old Student was adopted at age 7, having
previously been victim of extreme abuse
 Parents noticed incidents of escalating aggression at
home after Student’s medication was changed
 After hospital stay following violent outburst at home,
Parent placed Student residential facility
 Parent sought reimbursement, claiming District’s SDC
placement and behavior support plan did not address
Student’s severe mental health needs
(Student v. Garden Grove Unified School Dist. (OAH 2014) No. 2014010895, 114 LRP
29090)
New Cases – Residential Placement
Student v. Garden Grove Unified School Dist. (OAH 2014)

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 Decision:
 ALJ rejected District’s argument that Student’s extreme
behavior difficulties were home-based
 Lack of suspensions did not mean behaviors were
adequately managed; rather Student’s teacher did not
suspend her no matter how unmanageable she was
 Evidence pointed to Student’s need for regular, intensive
therapeutic support that District could not provide
 ALJ ordered reimbursement and prospective residential
placement
(Student v. Garden Grove Unified School Dist. (OAH 2014) No. 2014010895, 114 LRP 29090)
New Cases – Residential Placement
Student v. Garden Grove Unified School Dist. (OAH 2014)

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II. Noteworthy Decisions
from the Courts and
Administrative Agencies

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 What Happened:
 In 2004-05, District found Student with auditory
processing disorder did not qualify under SLD
 Complex and lengthy litigation history brought case
before 9th Circuit in 2014
 9th Cir: Although students with auditory processing
disorders may be eligible as OHI, District did not act
unreasonably when it failed to apply OHI criteria;
no evidence that disorder limited Student’s alertness
 District also appropriately assessed Student for SLD
(E.M. v. Pajaro Unified School Dist. (9th Cir. 2014) 114 LRP 31486)
Eligibility
E.M. v. Pajaro Unified School Dist. (9th Cir. 2014)

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 What Happened:
 Parents placed Student in private school and reached
settlement agreement with District over FAPE claim
 Subsequently, OAH found District denied FAPE by
breaching settlement agreement, but ALJ refused
reimbursement based on finding that Student did not
receive educational benefit at NPS
 9th Cir. reversed denial of reimbursement
 Although private aides provided essential assistance,
NPS curriculum allowed Student to make progress
(S.L. v. Upland Unified School Dist. (9th Cir. 2014) 63 IDELR 32)
Private School Reimbursement
S.L. v. Upland Unified School Dist. (9th Cir. 2014)

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 What Happened:
 After Student with autism struggled with behavior in
general ed kindergarten, District proposed SDC
for first grade
 Court found SDC was not LRE for Student
 Student made progress in mainstream classroom
 Court cited lack of supports/training for gen ed teachers
to address needs of inclusion students
 Also: Failure to specify specific SDC classroom in FAPE
offer restricted Parents’ participation in IEP process
(Bookout v. Bellflower Unified School Dist. (C.D. Cal. 2014) 63 IDELR 4)
Least Restrictive Environment
Bookout v. Bellflower Unified School Dist. (C.D. Cal. 2014)

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 What Happened:
 Parent of former District student sued, claiming son was
subject to abuse and bullying by classmates because of
his disabilities
 Claimed violation of California’s anti-harassment and
anti-discrimination laws
 District argued no standing because Student no longer
attended school there
 Court of Appeal allowed suit to proceed
 Public interest as citizen/taxpayer to enforce laws
(Hector F. v. El Centro Elem. School Dist. (Cal. Ct. App. 2014) 114 LRP 28433)
Harassment/Discrimination
Hector F. v. El Centro Elem. School Dist. (Cal Ct. App. 2014)

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 What Happened:
 Student with autism was found to need
12-month program
 Student made progress in mainstream kindergarten but
was offered ESY in self-contained class with no
nondisabled students
 2d Cir. found FAPE violation: IDEA’s LRE requirement
extends to ESY; LRE is not limited by what ESY
programs a district already offers
 One of few decisions applying LRE to ESY programs
(T.M. v. Cornwall Central School Dist. (2d Cir. 2014) 63 IDELR 31)
Extended School Year
T.M. v. Cornwall Central School Dist. (2d Cir. 2014)

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 What Happened:
 Section 504 plan for student with diabetes called for
training of three staff members in administration of
insulin
 Parent alleged that school nurse was only staff member
who was appropriate trained
 7th Cir: No denial of 504 FAPE because Student
received all needed services
 Decision extends IDEA analysis to Section 504: Plan
implementation failure must be “material” to deny FAPE
(CTL v. Ashland School Dist. (7th Cir. 2014) 62 IDELR 252)
FAPE Under Section 504
CTL v. Ashland School Dist. (7th Cir. 2014)

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 What Happened:
 Parent requested District allow service dog
to accompany Student with autism
 Six months passed with no resolution of issue; District
made “burdensome” requests for information
 Complaint filed with DOJ
 Investigation resulted in District’s agreement to pay
family $10,000 and to develop service animal policy
 Demonstrates DOJ commitment
to “vigorously enforce” ADA
(Delran Township (NJ) School Dist. (USDOJ 2014))
Service Animals
Delran Township (NJ) School Dist. (USDOJ 2014)

52
III. Latest
Federal Guidance

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 Parental Notice – Letter to Breton
 IDEA does not prohibit use of email to carry out
administrative matters
 States may permit their districts to use email to
distribute IEPs and related
documents to parents, provided:
Parents and districts agree
to the email option
Appropriate safeguards in place
to protect integrity of process
(Letter to Breton (OSEP 2014) 63 IDELR 111)

54
 Charter Schools – Dear Colleague Letter
 OCR expressed concern that many charter schools are
not aware that Section 504 applies to their operations
 Pointed to upcoming future guidance concerning rights
of students with disabilities attending charter schools
 English Learners – Q & A
 ED guidance on participation of ELs with disabilities in
English language proficiency exams
 Summarized rules governing accommodations and
stressed importance of developing appropriate IEP goals
for this group of students
(Dear Colleague Letter (OCR 2014) 63 IDELR 138; Questions and Answers
Regarding Inclusion of English Learners with Disabilities in English
Language Proficiency Examinations (OESE 2014))

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 Incarcerated Students – Letter to Chief State
School Officers
 ED and DOJ issued reminder to educational agencies of
obligation to provide IDEA and Section 504 services to
incarcerated students
 Foster Youth – Letter to Chief State School
Officers
 ED and HHS reminded districts and child welfare agencies
of obligation to coordinate efforts to ensure foster youth
are properly enrolled and appropriately served
(Letter to Chief State School Officers (ED/DOJ 2014); Letter to Chief State
School Officers (ED/HHS 2014))

56
IV. Recent
Developments
in California

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Amended Special Ed Regulations
 Some Background
 CDE: Changes “necessary to update and clarify
rules”
 Many sections not updated since 1988
 Needed to conform to IDEA 2004, the 2006
federal regulations and current state
education statutes

58
Special Ed Regs: Timelines
 May 2013: CDE issues proposed amended
regulations
 July 2013: Public comment period expired
 December 2013: Submitted to Office of
Administrative Law
 January 2014: Withdrawn
 March 2014: Resubmitted to OAL
 May 2014: Approved by OAL
 Effective date: July 1, 2014

59
Special Ed Regs: What’s New?
 Overview
 Eligibility criteria updated
 Behavior (post-Hughes Bill)
 Related services and qualifications of service
providers (reorganization of sections)
 Other nonsubstantive changes (e.g., cross-
references to correct statutes sections, etc.)

60
Eligibility Criteria
 Updated to reflect federal definitions; added
criteria for traumatic brain injury
 “Autistic-like behaviors” replaced with
“characteristics often associated with
autism” (5 C.C.R. § 3030(b)(1))
 Engagement in repetitive activities and stereotyped
movements
 Resistance to environmental change or change in daily
routines
 Unusual responses to sensory experiences

61
Eligibility Criteria (cont’d)
 Specific Learning Disability (5 C.C.R. §
3030(b)(10))
 Now aligned with federal regulations
 Allow districts option of using RTI
 Student “may” be determined to have an SLD if
there is severe discrepancy between ability and
achievement or if achievement inadequate
pursuant to an RtI or “pattern of strengths and
weaknesses analysis”

62
Behavior
 Updated to reflect repeal of Hughes Bill
behavioral intervention program (AB 86)
 Deletes all references to “functional analysis
assessments”
 Removes references to:
 “Behavioral emergency”
 “Behavioral intervention”
 “Behavioral intervention case manager”
 “Behavioral intervention plan”
 “Serious behavioral problem”

63
Behavior
 Section 3052, which contained all of the
former behavioral requirements made
obsolete by AB 86, was not repealed by
these amendments
 CDE: “Section 3052 will be repealed in a
separate action”

64
Related Services
 Substitutes “related services” for
“designated instruction and services”
 Consolidates definitions and standards of
related services with personnel qualifications
into one regulatory section (5 C.C.R. § 3051.1-
3051.24)
 Lists personnel qualifications for provision of
counseling and guidance services (5 C.C.R. §
3051.9)

65
Related Services (cont’d)
 Lists professionals who are qualified to
perform psychological services as required
by student’s IEP (5 C.C.R. § 3051.10)
 Adds definition of related service of “music
therapy” (5 C.C.R. § 3051.21)
 CDE: “Necessary because without this addition, music
therapy could not be accessed by LEAs through the
nonpublic school and agency certification program”

66
Miscellaneous
 “Handicaps” and “handicapping” changed to “disabilities”
and “disabling”
 Qualification standards for assessors updated to also
encompass reassessments
(5 C.C.R. § 3023)
 Definition of extended school year revised to delete
obsolete language establishing maximum number of
instructional days (5 C.C.R. § 3043)

67
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.

68
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 .

69
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 .

SES Fall 2014: Legal Update

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