1

Cases, Guidance, Legislation, and Other

Developments

2

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

3

I. New OAH Decisions

4

Consent

5

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 – ConsentStudent 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)

7

New Cases – ConsentStudent 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)

8

Discipline

9

Discipline Background

When a student with a disability brings a weapon to school, theIDEA 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 – DisciplineStudent v. Los Angeles Unified School Dist. (OAH 2014)

11

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

(Student v. Los Angeles Unified School Dist. (OAH 2014) No. 2014040246, 114 LRP 29102)

New Cases – DisciplineStudent v. Los Angeles Unified School Dist. (OAH 2014)

12

Eligibi l i ty

13

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

(Student v. Los Angeles Unified School Dist. (OAH 2014) No. 2013101124, 114 LRP 29159)

New Cases – EligibilityStudent v. Los Angeles Unified School Dist. (OAH 2014)

15

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

(Student v. Los Angeles Unified School Dist. (OAH 2014) No. 2013101124, 114 LRP 29159)

New Cases – EligibilityStudent v. Los Angeles Unified School Dist. (OAH 2014)

16

Exit from Special Education

17

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 asa regular high school diploma to exit a student from special education . . .

18

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 EdClovis Unified School Dist. v. Student (OAH 2014)

19

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 EdClovis Unified School Dist. v. Student (OAH 2014)

20

Incarcerated Students

21

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 . . .

22

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 StudentsStudent v. Contra Costa County Probation Dept. (OAH 2014)

23

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 StudentsStudent v. Contra Costa County Probation Dept. (OAH 2014)

24

Independent Educational Evaluations

25

Independent Educational Evaluations Background

When parents ask for IEE, districts must respond “withoutunnecessary delay” by either ensuring IEE is provided orby filing for due process to defend its assessment

OAH decision addressed whether district’s inaction constituted “unnecessary delay”sufficient to deny FAPE . . .

26

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 – IEEsStudent v. Dixon Unified School Dist. (OAH 2014)

27

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 – IEEsStudent v. Dixon Unified School Dist. (OAH 2014)

28

Medical Needs

29

Medical Needs Overview

When a student’s medical conditionrequires the provision of nursingservices at school, discussions concerning who will provide thoseservices can arise

OAH decision illustrates the latitude allowed to districts in this area . . .

30

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 NeedsStudent v. Yuba City Unified School Dist. (OAH 2014)

31

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 NeedsStudent v. Yuba City Unified School Dist. (OAH 2014)

32

One-to-One Aides

33

One-to-One Aides Overview

As is the case with the provisionof 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 AidesStudent v. Rim of the World Unified School Dist. (OAH 2014)

35

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 AidesStudent v. Rim of the World Unified School Dist. (OAH 2014)

36

Parent Participation

37

Parent Participation Overview

As essential members of IEP team,parents must be given everyopportunity to participate in theIEP process

OAH tackled difficult issue ofextent 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 ParticipationStudent v. Sacramento City Unified School Dist. (OAH 2014)

39

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 ParticipationStudent v. Sacramento City Unified School Dist. (OAH 2014)

40

Residential Placement

41

Residential Placement Overview

Analysis for determining whether residential placement is appropriatedepends on whether it is necessaryfor educational purposes

Many cases, such as the following, involve the question of whether severe behaviors at home are adequately managed at school . . .

42

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 PlacementStudent v. Garden Grove Unified School Dist. (OAH 2014)

43

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 PlacementStudent v. Garden Grove Unified School Dist. (OAH 2014)

44

II . Noteworthy Decisionsfrom the Courts and

Administrative Agencies

45

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)

EligibilityE.M. v. Pajaro Unified School Dist. (9th Cir. 2014)

46

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 ReimbursementS.L. v. Upland Unified School Dist. (9th Cir. 2014)

47

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 EnvironmentBookout v. Bellflower Unified School Dist. (C.D. Cal. 2014)

48

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/DiscriminationHector F. v. El Centro Elem. School Dist. (Cal Ct. App. 2014)

49

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 YearT.M. v. Cornwall Central School Dist. (2d Cir. 2014)

50

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)

51

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 AnimalsDelran Township (NJ) School Dist. (USDOJ 2014)

52

I II . LatestFederal Guidance

53

Parental Notice – Letter to Breton IDEA does not prohibit use of email to carry out

administrative mattersStates 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))

55

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. RecentDevelopments

in California

57

Amended Special Ed Regulations Some Background

CDE: Changes “necessary to update and clarify rules”

Many sections not updated since 1988Needed 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?

OverviewEligibility criteria updatedBehavior (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 regulationsAllow districts option of using RTIStudent “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 presentat ion, including but not l imited 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 specif ic facts and circumstances .

68

Information in this presentat ion, including but not l imited 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 spec if ic fac ts and circumstances .

69

Information in this presentat ion, including but not l imited 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 spec if ic fac ts and circumstances .