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Cases, Guidance, Legislation, and Other

Developments

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Legal Update Overview . . .

New OAH Cases on Hot Topics Autism, Bullying as Denial of FAPE,

Child Find, Classroom Observation, Discipline, Residential Placement, Transportation

Noteworthy Court Decisions Latest Federal Guidance Other Recent Developments in

California

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I. New OAH Cases on

Hot Topics

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Autism

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Autism

OverviewLitigation continues to increase

in California and nationwide Two OAH cases illustrate

contentious issuesPlacement in the LREProvision of technology

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New Cases – AutismIrvine USD v. Student (OAH 2013)

What Happened:Parent requested full-time general ed

placement for 6-year-old Student, citing only “mild” tantrums at home

District recommended SDC placement, claiming general classroom environment was too fast-paced and stressful, leading to maladaptive behaviors

(Irvine Unified School Dist. v. Student (OAH 2013) 113 LRP 43085)

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New Cases – AutismIrvine USD v. Student (OAH 2013)

What Happened:ALJ supported District’s decisionTantrums stopped when general ed academic

demands removedStudent sat calmly and interacted well in SDC Parent’s testimony of calm behavior at home

bolstered District’s placement recommendation instead of contradicting it

(Irvine Unified School Dist. v. Student (OAH 2013) 113 LRP 43085)

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New Cases – AutismStudent v. Newport-Mesa USD (OAH 2013)

What Happened:Parent claimed District delayed in assessing

6-year-old Student to determine assistive technology needs

District provided picture exchange system, but Student had limited success

Student used iPad for entertainment purposes; District allowed him to bring it school and allowed its use as reward

(Student v. Newport-Mesa Unified School Dist. (OAH 2013) 114 LRP 125)

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New Cases – AutismStudent v. Newport-Mesa USD (OAH 2013)

What Happened:ALJ: District should have assessed Student

immediately after discovering his ability to use iPad rather than waiting nine months to do so

When finally provided with iTouch device, Student made progress and used it across environments

Assessment delay denied FAPE

(Student v. Newport-Mesa Unified School Dist. (OAH 2013) 114 LRP 125)

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Bullying as Denial of FAPE

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Bullying as Denial of FAPE

Overview2013 OSERS/OSEP

“Dear Colleague” letter discussed impact of bullying on students’ ability to receive FAPE

District and IEP teams must respond regardless of whether bullying was disability-based

“Dear Colleague” letter has been cited in many recent due process claims

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What Happened:Parent of eighth-grader claimed denial of

FAPE resulting from bullying in gym, playground and at lunch

Parent alleged District failed to supervise or address bullying and that Student now was afraid to attend school

(Student v. William S. Hart Union High School Dist. (OAH 2013) 113 LRP 49510)

New Case – Bullying/FAPEStudent v. William S. Hart Union HSD (OAH 2013)

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What Happened:ALJ questioned whether reported incidents

constituted bullying or typical peer-on-peer name-calling

Regardless, Student continued to receive educational benefit and progressed academically/behaviorally

District responded promptly to all accusationsNo denial of FAPE due to alleged bullying

(Student v. William S. Hart Union High School Dist. (OAH 2013) 113 LRP 49510)

New Case – Bullying/FAPEStudent v. William S. Hart Union HSD (OAH 2013)

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Child Find

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Child Find

Overview Identify, locate and evaluateAsk whether Student should be

referred for assessment, not whether Student actually qualifies for services

Child find duty and its interaction with RTI process can cause confusion

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What Happened:Parent claimed District violated child find

by not immediately assessing Student following verbal request

District countered that it acted reasonably by waiting to determine whether Student responded to its RTI efforts; “wait-and-see” approach delayed assessment to following school year

(Student v. Rosedale Union Elementary School Dist. (OAH 2013) 113 LRP 52135)

New Case – Child FindStudent v. Rosedale Union ESD (OAH 2013)

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What Happened:ALJ: District waited too longStudent was not responding to RTI after

six months of interventions and two more months passed before referral

Consistent pattern of low performance and minimal response to RTI should have led to assessment

(Student v. Rosedale Union Elementary School Dist. (OAH 2013) 113 LRP 52135)

New Case – Child FindStudent v. Rosedale Union ESD (OAH 2013)

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Classroom Observation

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Classroom Observation

OverviewKey component of assessments

and reassessmentsOften difficult to accomplish when

Student is in NPS placementFailure to conduct classroom

observation can lead to denial of FAPE by resulting in improper placement

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What Happened:18-year-old Student with history of

aggression in classroom was unilaterally placed at out-of-state residential facility

Triennial assessment conducted by District during spring break; no classroom observation

Parents disputed District’s subsequent placement offer

(Capistrano Unified School Dist. v. Student (OAH 2013) 113 LRP 33573)

New Case – Classroom ObservationCapistrano USD v. Student (OAH 2013)

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What Happened:ALJ: Assessment was inadequate and led to

inappropriate placement; awarded $91,000 reimbursement

Classroom was where Student encountered frustration and distractibility

District could not determine classroom behavior without observing Student in that setting

(Capistrano Unified School Dist. v. Student (OAH 2013) 113 LRP 33573)

New Case – Classroom ObservationCapistrano USD v. Student (OAH 2013)

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Discipline

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Discipline

Overview Issues frequently brought to

due processChallenges to manifestation

determinationsRequests for removal to IAES for students

believed to pose safety risk Several OAH cases in 2013

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What Happened:17-year-old Student with hearing impairment

and ADHD suspended for fighting after text argument with girlfriend

Threatened to kill himself and was hospitalized

Diagnosed with bipolar disorder; school psychologist learned of diagnosis at hospital

MD team later concluded behavior was not a manifestation of hearing impairment or ADHD

(Student v. Roseville Joint Union High School Dist. (OAH 2013) 113 LRP 44610)

New Cases – DisciplineStudent v. Roseville Joint Union UHSD (OAH 2013)

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What Happened:ALJ set aside MD findingsTeam failed to consider all relevant

information in making its findingsAware of bipolar diagnosis before MD

review and should have considered itStudent reinstated to football team

(Student v. Roseville Joint Union High School Dist. (OAH 2013) 113 LRP 44610)

New Cases – DisciplineStudent v. Roseville Joint Union UHSD (OAH 2013)

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What Happened:8-year-old Student with ED engaged in

escalating incidents of aggression over two-year period

District tried highly restrictive placements, BIP, BSP and individual supports without success

After Student injured classmates and staff, District sought IAES placement

(San Leandro Unified School Dist. v. Student (OAH 2013) 114 LRP 550)

New Cases – DisciplineSan Leandro USD v. Student (OAH 2013)

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What Happened:ALJ granted request for up to 45-day IAES

placementStudent substantially likely to continue to

cause injuries in current placement IAES proposed by District would provide

therapeutic counseling and individualized behavior intervention services

(San Leandro Unified School Dist. v. Student (OAH 2013) 114 LRP 550)

New Cases – DisciplineSan Leandro USD v. Student (OAH 2013)

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Residential Placement

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Residential Placement

OverviewAnalysis for determining whether

residential placement is appropriatedepends on whether it is necessaryfor educational purposes.

Often, social/emotional problems are intertwined with educational problems, as illustrated by the following case from January 2014 . . .

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What Happened:13-year-old Student attended juvenile hall

court schoolAbused as child and killed his father at age

10History of social and emotional difficulty and

behavior problemsMade virtually no academic progress at

school and had frequent emotional outbursts

(Student v. Riverside County Office of Educ. (OAH 2014) Case No. 2013040771)

New Cases – Residential PlacementStudent v. Riverside County Office of Educ. (OAH 2014)

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What Happened:ALJ: County denied FAPE by failing to

consider and offer residential placementTestimony indicated Student had potential

to perform grade-level work if presented with an appropriate environment

County ordered to locate residential treatment center specializing in treating children with emotional injury due to abuse

(Student v. Riverside County Office of Educ. (OAH 2014) Case No. 2013040771)

New Cases – Residential PlacementStudent v. Riverside County Office of Educ. (OAH 2014)

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Transportation

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Transportation

Overview If Student has unique needs that

make it problematic to get to schoolin same manner as nondisabled students, transportation may be required as related service in IEP

Student’s need for home-to-school and school-to-home transportation is frequent issue at due process hearings

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What Happened:Parent claimed District denied FAPE to 6-

year-old Student with history of seizures by not offering home-to-school transportation

Alleged that Student was at risk of fever or further seizures if exposed to extremes in temperature, but did not provide expert testimony or physician’s statement

(Student v. Los Angeles Unified School Dist. (OAH 2013) 113 LRP 43695)

New Case – TransportationStudent v. Los Angeles USD (OAH 2013)

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What Happened:ALJ rejected Parent’s claim, finding no proof

that Student was medically fragile or had acute condition such that he required home-to-school transportation

Last seizure occurred more than 4 years agoBut: District denied FAPE by failing to

provide school-to-school transportation when Student assigned to school other than home school

(Student v. Los Angeles Unified School Dist. (OAH 2013) 113 LRP 43695)

New Case – TransportationStudent v. Los Angeles USD (OAH 2013)

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II. Noteworthy Decisionsfrom the Courts

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What Happened:For students age 18-22 incarcerated in

county jail, District where Parent resides is responsible for providing FAPE

California Supreme Court applied Ed Code section 56041 in the absence of specific statute addressing issue

Note: 9th Circuit adopted finding in January 2014

(Los Angeles Unified School Dist. v. Garcia (Cal. Sup. Ct. 12/12/13) 62 IDELR 148)

FAPE for Incarcerated StudentsLos Angeles USD v. Garcia (Cal. Sup. Ct. 2013)

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What Happened:Parent sought injunction to prevent District

from administering cognitive test (KABC-II) during triennial assessment of 10-year-old with autism

Claimed low score would cause educational harm due to reduced expectations

Court denied injunction, holding that Parent is not entitled to choose which tests District uses

(Haowen Z. v. Poway Unified School Dist. (S.D. Cal. 2013) 61 IDELR 250)

AssessmentsHaowen Z. v. Poway USD (S.D. Cal. 2013)

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What Happened:Parent claimed violation of FAPE because

District did not meet CDE’s guidelines for daily hours of intensive reading program for students more than 2 years behind in reading

Court: CDE merely provides guidelines; not mandatory IDEA requirement

Student provided with appropriate program aimed at developing reading skills

(D.A. v. Fairfield-Suisun Unified School Dist. and Vacaville Unified School Dist. (E.D. Cal. 2013) 62 IDELR 17)

Reading InstructionD.A. v. Fairfield-Suisun USD and Vacaville USD (E.D. Cal. 2013)

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What Happened:U.S. Supreme Court refused to hear appeal of

2d Circuit decision holding that District did not violate Section 504 by refusing to heat lunches for students with diabetes

Law does not require optimal accommodations

District provided adequate accommodations: Menu options and glucose monitoring

(Moody v. New York City Dep’t of Educ. (2d Cir. 2013) 60 IDELR 211, cert. denied, (U.S. 12/09/13) 113 LRP 49698)

AccommodationsMoody v. NYC Dep’t of Educ. (U.S. 2013)

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III. LatestFederal Guidance

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Transition Services – Letter to Dude IEP team determines

whether District must pay for transportation and/or tuition if Student with transition plan attends postsecondary institution, either auditing classes or taking them for credit

No requirement to pay for dorm expenses unless experience is being provided to carry out an IEP goal

(Letter to Dude (OSEP 2013) 62 IDELR 91)

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Physical Education – Letter to Tymeson Cannot deny provision of P.E.

in preschooler’s IEP despite P.E. not being available to all preschool children in district

Physical Education – Letter to Kelly Students aged 18-21 in community-based

transition program are still entitled to P.E. if prescribed in IEP; IDEA does not distinguish between locations for services

(Letter to Tymeson (OSEP 2013) 113 LRP 32487; Letter to Kelly (OSEP 2013) 113 LRP 46790)

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Compensatory Ed – Letter to Pergament If delivery of services is disrupted

for all students due to short-termteachers’ strike, district generallynot required to provide servicesto students with disabilitiesduring that time

Decision to provide “make up”compensatory education servicesis up to IEP team

Must determine whether Student was denied educational benefit during strike

(Letter to Pergament (OSEP 2013) 114 LRP 2954)

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Use of Funds – Letter to Couillard Districts may use IDEA funds for cost

of special education and relate servicesprovided to Student in general ed class,even if nondisabled children benefit

Special ed teacher may not perform functions that go beyond provision of special ed services (e.g., grading papers for nondisabled students)

Access to Public Benefits – Letter to McKinney District must make sure they comply with “no cost”

provisions before asking for consent to use parents’ public benefits or insurance

(Letter to Couillard (OSEP 2013) 61 IDELR 112; Letter to McKinney (OSEP 2013) 13 LRP 37255)

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Athletics – In Re: Dear Colleague Letter

Clarifies January 2013 guidance Students with disabilities must be

provided with equal access to existing extracurricular activities,but law does not require districts to create separate or differentactivities

If districts voluntarily wish to provide separate activities, they must be supported equally as compared with other athletic activities

(In Re: Dear Colleague Letter (OCR 2013) 62 IDELR 185)

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Discipline – Dear Colleague Letter OCR addressed discriminatory discipline policies raising

disparate impact concerns Study indicated certain racial and ethnic groups

disciplined more than peers OCR pointed to policies imposing mandatory

suspensions for specific offenses; truancy policies; policies concerning re-enrollment after returning from juvenile justice system

Although OCR letter did not specifically address disability-related issues, it provided general guidance for preventing discriminatory discipline policies

(Dear Colleague Letter (OCR 2014) 114 LRP 1091)

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IV. RecentDevelopments

in California

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October 2013: During SELPA webinar, CDE indicated that 60-day initial assessment timeline was not tolled during school breaks

CDE announcement January 17, 2014 reversed position: Interprets Education Code to exclude breaks in excess of five school days from time period in which districts must complete their initial assessments

Timeline for Initial Assessments

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CDE issued proposed amendments to special ed regulations last Spring to conform rules with IDEA

Public comment period ended July 2013 Office of Administrative Law’s deadline

to review proposed regs was January 30 However, regs withdrawn from OAL on

January 29 Current status unclear

Revisions to Special Ed Regulations

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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 .

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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 .