Legal Update

SES Spring 2010

Overview• Federal Court Cases – Rowley Standard,

Parent Reimbursement, IEP Attendance• OAH – Residency, Predetermination• State Law – CAHSEE Exemption,

Regulations• Federal Guidance – Transportation, Early

Childhood Transitions• In the News – L.M. v. Capistrano, H1N1

Guidance, ARRA Support, RTI

Ninth Circuit #1J.L. v. Mercer Island SD

• Rowley alive and well• To offer a FAPE, District must offer a

“basic floor of opportunity” that is “reasonably calculated” to provide the student with “educational benefit”

(J.L. v. Mercer Island SD (9th Cir. 2009).)

“Educational Benefit”• Ninth Circuit clarified that the terms

“educational benefit” and “some educational benefit” and “meaningful educational benefit” all refer to Rowley

• Ninth Circuit rejected argument that IDEA amendments require that districts guarantee some level of “outcome”

(J.L. v. Mercer Island SD (9th Cir. 2009).)

cont.

Ninth Circuit #2Weissburg v. Lancaster

• District found student eligible under “mental retardation” category

• Parents disagreed eligibility should be autistic

• OAH found student eligible under BOTH• Student received FAPE

Are parents the prevailing party?(Weissburg v. Lancaster SD (9th Cir. 2010).)

Parents = Prevailing Party• 9th Cir: Change in eligibility classification

materially altered legal relationship between parties

• Student now possessed legal right to instruction by teacher with autism certification

• Additional holding: Student’s attorney grandmother could recover fees

(Weissburg v. Lancaster SD (9th Cir. 2010).)

cont.

Impact of Weissburg Eligibility Determination

• Student still does not have a legal right to a specific eligibility classification– Weissburg focused more on the material

change in student’s rights resulting from new classification

• If IEP team cannot agree District staff should designate appropriate category

• Can designate more than one eligibility category

(Weissburg v. Lancaster SD (9th Cir. 2010).)

cont.

Ninth Circuit #3: Ashland v. E.H.• Middle school student received special

education services due to severe emotional problems

• Parent unilaterally placed Student in private residential facility without notice to District

• Residential facility focused on Student’s medical needs, suicide prevention

(Ashland SD v. E.H. (9th Cir. 2010).)

No Reimbursement• 9th Cir. - No reimbursement for private

placement because:(1) Parent failed to give 10-day notice of unilateral placement; and(2) Private resident placement was medical, rather than educational in nature

• Note: IDEA provides judges with broad discretion regarding parent notice

(Ashland SD v. E.H. (9th Cir. 2009).)

cont.

U.S. District Court B.M. v. Carlsbad USD

• Dispute over IEP meeting attendees • At meeting: District’s special education

teacher from neighborhood school • Student’s current special education

teacher from private placement not present

Was the District required to include private special ed. teacher on IEP team?

(B.M. v. Carlsbad USD (S.D. Cal. 2009).)

No!• ALJ Failure to include Student’s private

special education teacher at IEP team meeting does not constitute denial of FAPE

• Focused on OSEP comments: “Special education teacher…should be person who is or will be responsible for implementing IEP”

(B.M. v. Carlsbad USD (S.D. Cal. 2009).)

cont.

Office of Administrative Hearings - #1Residency for Incarcerated Student

• Prior to 2006, special education student lived with mother and attended schools in LAUSD

• 2006: Student arrested and sent to juvenile detention facility where he received special ed. services from LACOE

• Student turned 18, sent to LA County jail

Who is responsible for special education services for incarcerated student?

(Student v .Los Angeles USD (OAH 2009).)

LAUSD = Responsible LEA • It was undisputed that once out of jail,

Student would return to live with his mother, who still resided within LAUSD

• LAUSD remained the last district of residence, unless Student’s parent or guardian had relocated

• OAH Incarcerated students are not like other adult students who voluntarily move and change their own residency

(Student v. Los Angeles USD (OAH 2009).)

cont.

Office of Administrative Hearings - #2Predetermination

• District, County and Student entered into settlement agreement for NPA’s one-to-one aide

• Settlement expressly stated NPA aide services were “for assessment purposes only,” not for purposes of FAPE, and would not constitute “stay put” if disputed

• District staff believed settlement agreement required County aide services in future, so they did not discuss aide services at IEP meeting

(Student v. Montecito Union ESD (OAH 2009).)

Predetermination• ALJ District and County predetermined that

one-to-one aide would be county employee• Settlement agreement contained NO language

to support District’s and County’s belief that County aide services were required

• IEP team did not consider any reasonable alternatives, qualification of staff

• Parents denied opportunity for meaningful participation regarding one-to-one aide services

(Student v. Montecito Union ESD (OAH 2009).)

cont.

Office of Administrative Hearings - #3Request for Due Process

• 2003 Addendum to IEP: District agreed to provide after-school tutoring

• District repeatedly settled disputes with parent by providing tutoring

• 2007: District discontinued tutoring; agreed parent could file for due process

Did the District deny FAPE byfailing to file a due process request?

(Student v. San Ramon Valley USD (OAH 2009).)

Yes!• District violated parents’ procedural rights

by failing to request a due process hearing to resolve dispute over tutoring

• District had an affirmative duty under IDEA to resolve disputes over necessary services by filing due process action

• Putting the burden on parent to file and carry burden was improper under IDEA

(Student v. San Ramon Valley USD (OAH 2009).)

cont.

CAHSEE Exemption• AB X4 2 Created Education Code

section 60852.3• Section 60852.3 exempts eligible special

education students from passing the CAHSEE as a requirement for graduation

• Applies to any student: (1) who has an IEP or a 504 plan; and(2) has or will satisfy all state and local requirements for graduation

CDE Guidance:CAHSEE Exemption

• CDE recently issued guidance on the new CAHSEE exemption for special education students 16 FAQs

• IEP or 504 Plan: must state that student: (1) is scheduled to receive a diploma

on or after July 1, 2009;(2) has or will satisfy all other grad

req.(CAHSEE Exemption Q&A #1 (CDE 2009).)

CDE Guidance:CAHSEE Exemption

• Despite the exemption, all students must still take the CAHSEE in 10th Grade.

• Districts are not required to notify parents of CAHSEE exemption

• Districts may NOT develop IEP or 504 plan solely to exempt student from CAHSEE requirement

(CAHSEE Exemption Q&A # 2,8,12-14 (CDE 2009).)

CAHSEE Exemption:Retroactive?

• Uncertainty over whether new CAHSEE exemption covers students who were unable to pass CAHSEE in 2008 and 2009 and did not receive diploma

• Text of Section 60852.3 is unclear

Are 2008/2009 seniorsnow eligible for a diploma?

Yes!• IEP Students: Students entitled to special

education services until age 22– CDE District “may be required to re-open

and revise IEP.”• 504 Students: Likely same as IEP

students, but federal rules are not identical– CDE “consult counsel on a case-by-case

basis”

(CAHSEE Exemption Q&A # 5 (CDE 2009).)

Practice Pointer

Until CDE provides more clarification, treat 2008 and 2009 students the same as current students

Amendments to CAHSEE Regs.• CDE recently issued amendments to state

regulations governing CAHSEE• Key changes in testing “variations,”

“accommodations,” and “modifications”• Variations: Small group settings, test

questions in Manually Coded English or ASL• Modifications: Use of formulas on

mathematics portion

OSERS Guidance:Special Ed. Transportation

• November 2009: OSERS provided guidance regarding transportation services for students with disabilities

• 11 Q&As covering preschool students, travel training, discipline on bus, bus suspensions, etc.

OSERS: Bus Suspensions• As with regular out-of-school suspensions, a

bus suspension may require a manifestation determination and other discipline procedures

• The extent of discipline procedures will vary depending on:(1) Length of Suspension(2) Change in Placement(3) Alternative Transportation

(Transportation Q&A # H-1 (OSERS 2009).)

OSEP Guidance: Early Childhood Transitions

• Guidance emphasizes smooth transition from Part C Part B

• Clarifies requirements for children referred for Part C services close to their birthdays

< 45 days before birthday

Lead agency may conduct initial evaluation or hold IFSP meeting

> than 45 days before birthday

Lead agency MUST conduct an initial evaluation and hold IFSP

In the News• Supreme Court will not hear L.M. v. Capistrano;

9th Circuit decision stands• U.S. Dept. of Ed. issues guidance on IDEA and

504 responsibilities during an H1N1 outbreak• OAH publishes new due process hearing

manual• New special education financing from federal

and state levels• CDE Handbook: RTI

Thank you for attending!