SES Fall 2013 - Legal Update

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SES Fall 2013 - Legal Update

  1. 1. 1 Cases, Guidance, Legislation, and Other Developments
  2. 2. 2 Legal Update Overview . . .  New Developments on Hot Topics (Insulin, Bullying, Procedural Errors as Denial of FAPE, Residential Placement, Autism, DSM- 5)  Latest Federal Guidance on Special Education Issues  Recent Developments in California
  3. 3. 3 I. New Developments on Hot Topics
  4. 4. 4 Administration of Insulin
  5. 5. 5 New Cases – Administration of Insulin American Nurses Association v. Torlakson (Cal. 2013)  What Happened:  California Supreme Court reversed 2010 Court of Appeals decision  State law allows trained, unlicensed school personnel to administer prescription medication, including insulin (with parents’ consent)  In accordance with written statements from student’s physician
  6. 6. 6 New Cases – Administration of Insulin  What Happened:  Court interpreted Ed Code language  Looked at intent of Legislature, State Board of Education  Rejected ANA’s argument that only school personnel who are licensed health care providers (i.e., school nurses) may administer prescription medication (American Nurses Association v. Torlakson (Cal., Aug. 12, 2013, S184583))
  7. 7. 7 New Cases – Administration of Insulin  What’s Next:  Remember requirements: “Trained” personnel Parental consent Written statement from physician  Review policies/procedures to ensure compliance
  8. 8. 8 Bullying and Harassment
  9. 9. 9 New Cases – Bullying/Harassment Smith v. Harrington (N.D. Cal. 2013)  What Happened:  Parent alleged Student was target of repeated bullying; claimed principal retaliated when he attempted to get District to follow OCR rules  Claim based on 14th Amendment rights (failure to protect against acts of violence)  Court: No violation unless placed in dangerous situation – not applicable here (Smith v. Harrington (N.D. Cal. 2013) No. C-12-3533, 60 IDELR 276)
  10. 10. 10 New Cases – Bullying/Harassment Long v. Murray County School Dist. (11th Cir. 2013)  What Happened:  Student’s suicide due in part, Parent alleged, to “culture of bullying” at school  Court rejected Section 504 damages claim; District’s actions did not amount to “deliberate indifference”  Responded promptly to incidents even if not always successfully (Long v. Murray County School Dist. (11th Cir. 2013, unpublished) No. 12-13248)
  11. 11. 11 New Cases – Bullying/Harassment Sutherlin v. Independent School Dist. (N.D. Okla. 2013)  What Happened:  Parents claimed Student subjected to constant bullying from peers; school official referred to Student as “crazy”  Court refused to dismiss damages claim; facts could support “deliberate indifference” charge  Asserted several instances of bullying reports that were ignored (Sutherlin v. Independent School Dist. (N.D. Okla. 2013) 61 IDELR 69)
  12. 12. 12 New Cases – Bullying/Harassment Viera v. Honeoye Cent. School Dist. (W.D.N.Y. 2013)  What Happened:  Student who was blind allegedly subjected to hostile environment by teacher’s harassing conduct (intentionally startling student by yelling)  Court: Words were “ill-mannered, uncivil and abrasive,” but not enough to create hostile environment (Viera v. Honeoye Cent. School Dist. (W.D.N.Y. 2013) 61 IDELR 71)
  13. 13. 13 New Cases – Bullying/Harassment  Why the Cases Matter:  Many bullying/harassment claims (peers and teachers) now making their way to federal court  Money damages liability is possible if conduct demonstrates “deliberate indifference”
  14. 14. 14 Procedural Errors as Denial of FAPE
  15. 15. 15 New Cases – Procedural Errors/FAPE Doug C. v. State of Hawaii Dep’t of Educ. (9th Cir. 2013)  What Happened:  School wanted to hold IEP meeting before annual review deadline; Parent could not be present, so meeting proceeded without him  Failure to include Parent infringed on ability to participate, denied FAPE  Prioritizing deadline compliance over parental participation was “unreasonable” (Doug C. v. State of Hawaii Dep’t of Educ. (9th Cir. 2013) 61 IDELR 91)
  16. 16. 16 New Cases – Procedural Errors/FAPE Student v. Mount Diablo Unified School Dist. (OAH 2013)  What Happened:  Failure to convene IEP meeting in timely manner denied FAPE  Noteworthy: ALJ indicates 60-day assessment timeline is tolled during breaks  Conflicting statutory provisions and OSEP pronouncement (Student v. Mount Diablo Unified School Dist. (OAH 2013) No. 2012110641)
  17. 17. 17 New Cases – Procedural Errors/FAPE  Why the Cases Matter:  Procedural violations deny FAPE only in limited circumstances  Watch for “impeding parent’s opportunity to participate” or “deprivation of educational benefit”  60-day assessment timeline: Break or no break?
  18. 18. 18 Residential Placement
  19. 19. 19 New Cases – Residential Placement Student v. San Diego County Office of Educ. (OAH 2013)  What Happened:  12-year-old Student with ED caused death of best friend; taken to JDF  ALJ concluded Student required RTC placement upon release; needed more restrictive environment than SDC proposed by County  County must take into account Student’s needs as a child with fetal alcohol syndrome (Student v. San Diego County Office of Educ. (OAH 2013) No. 2012110566)
  20. 20. 20 New Cases – Residential Placement Student v. Sacramento City USD (OAH 2013)  What Happened:  Parents argued that 16-year-old Student with ED (who had run away from group home and ended up in juvenile hall) required out-of-state RTC  But evidence showed current residential placement was related to juvenile justice concerns (couldn’t return home due to drug use, violence), not educationally related reasons (Student v. Sacramento City Unified School Dist. (OAH 2013) No. 2013010137)
  21. 21. 21 New Cases – Residential Placement  Why the Cases Matter:  More residential placement cases going to due process than ever before  General rule: District will be responsible if residential placement necessary to meet educational needs or if medical, social emotional problems are intertwined with education needs
  22. 22. 22 Autism Litigation
  23. 23. 23 New Cases – Autism Litigation Z.F. v. Ripon Unified School Dist. (E.D. Cal. 2013)  What Happened:  Class action suit claiming District violated Section 504 by offering only its own ABA program and denying access to others  Court refused to certify class: No common interest; each Student has different needs determined through IEP process (Z.F. v. Ripon Unified School Dist. (E.D. Cal. 2013) 60 IDELR 280)
  24. 24. 24 New Cases – Autism Litigation Student v. Vista Unified School Dist. (OAH 2013)  What Happened:  Parent claimed 6-year-old’s impaired social development would “at some point” cause academic difficulties  ALJ upheld District’s denial of eligibility  Student’s behaviors didn’t interfere with his education currently and “projected deficits” were not relevant (Student v. Vista Unified School Dist. (OAH 2013) No. 2012090081)
  25. 25. 25 New Cases – Autism Litigation Student v. Jurupa Unified School Dist. (OAH 2013)  What Happened:  Parent requested placement at another school, claiming 8-year-old’s teacher was too strict  ALJ found no evidence that teacher yelled at Student in abusive manner; Student likely misinterpreted teacher’s use of physical prompts  How teacher runs classroom is his/her methodology and left to District’s discretion (Student v. Jurupa Unified School Dist. (OAH 2013) No. 2013030379)
  26. 26. 26 New Cases – Autism Litigation  Why the Cases Matter:  Federal courts deciding wide variety of autism cases, including charges of systemic violations  OAH due process litigation spiraling upward on all autism-related issues (see Outline for additional 2013 case summaries)
  27. 27. 27 Other Recent Developments
  28. 28. 28 Other Noteworthy New Cases  Accommodations:  Parents claimed District attempted to bribe personnel with bonuses and advancements in exchange for denying accommodations to Students  Asserted violation of RICO statute  Court: No facts to prove existence of alleged conspiracy (Petersen v. Browne (N.D. Cal. 2013) 61 IDELR 44)
  29. 29. 29 Other Noteworthy New Cases  ADA vs. IDEA Actions  Parents of two Students with hearing impairments claimed District violated ADA’s “effective communication” requirement by failing to provide “realtime” transcription  No IDEA FAPE violation, but ADA imposes independent obligations on schools  Overturned dismissal and required lower court to address merits of individual claims (K.M. v. Tustin Unified School Dist. (9th Cir. 2013) No. 11-56259, 113 LRP 31837)
  30. 30. 30 Other Noteworthy New Cases  Attorneys’ Fees  CDE corrective order did not contain student- specific relief, but only required District to send memo to staff  “De minimis” relief did not entitle Parents to fees  Court refused to decide broader issue of whether fees available in compliance complaint proceeedings (L.H. v. Chino Valley Unified School Dist. (C.D. Cal. 2013) 61 IDELR 70)
  31. 31. 31 Other Noteworthy New Cases  Discrimination  Proposed closure of various District schools alleged to be discriminatory under ADA because not all programs would be available at reassigned schools  Court refused to issue injunction to stop closures  Claims amounted to request to stop District from modifying IEPs; proper remedy was IDEA due process (A.A. v. Raymond (E.D. Cal. 2013) 113 LRP 30092)
  32. 32. 32 Other Noteworthy New Cases  Negligent Supervision  14-year-old Student, who functioned at third grade level, skipped class to meet friends and was sexually assaulted  Iowa Supreme Court: District owed “special duty” to protect Student; breached duty by not detecting and responding to absence  Liable for money damages (Mitchell v. Cedar Rapids Community School Dist. (Iowa 2013) 113 LRP 26046)
  33. 33. 33 Other Noteworthy New Cases  Section 504  Section 504 doesn’t require public schools to provide services to students enrolled in private schools  “Section 504 . . . prohibits discrimination on the basis of disability, not on the basis of school choice”  Note: Not a 9th Circuit case, but supports prior federal guidance (Letter to Veir (OCR 1993)) (D.L. v. Baltimore City Bd. of School Commissioners (4th Cir. 2013) 113 LRP 26046)
  34. 34. 34 Release of DSM-5  Published May 18  What’s Changed:  Autism: Single diagnosis; clinicians designate cases as “mild,” “moderate” or “severe”  Anxiety Disorders: Removed requirement that individual must recognize fear as excessive  Depressive Disorders: New “disruptive mood dysregulation disorder”; applies to child ages 6- 18; 3 or more temper tantrums per week
  35. 35. 35 Release of DSM-5  What’s Changed (cont’d):  Gender Identity Disorder: Renamed “gender dysphoria”; separate criteria for children, adolescents and adults  Neurodevelopmental Disorders: Phonological disorder and stuttering termed “communication disorders”  Obsessive-Compulsive Disorders: Four new categories, including hoarding disorder
  36. 36. 36 Release of DSM-5  Why It Matters:  Familiarize colleagues with changes  Possibly fewer early autism diagnoses, referrals  Look for “disruptive mood dysregulation disorder” diagnoses
  37. 37. 37 II. Latest Federal Guidance on Special Education Issues
  38. 38. 38  Bullying  IEP team of Student subjected to bullying should convene to determine if needs have changed  Exercise caution before changing placement or services location in response to bullying unless Student can no longer receive FAPE in LRE (Dear Colleague Letter (OSEP 2013) 113 LRP 33753)
  39. 39. 39  Discipline  In MD cases, ALJs have power to decide whether behavior amounted to conduct code violation  Highly Mobile Children  If transfer to new district before old district completes evaluation, new district cannot extend time frame in order to implement RTI (Letter to Ramirez (OSEP 2012) 60 IDELR 230; Letter to State Directors (OSEP 2013) 113 LRP 29648)
  40. 40. 40  Consent: RTI/FBAs  Required at 2nd/3rd level of RTI to collect data to determine if child may have disability  Required for FBA as part of eval/reeval  Parental Rights  Details content of notice to Parents to access public benefits or insurance; must be issued at first access, then annually (Letter to Gallo (OSEP 2013) 113 LRP 19171; Memo to State Dirs. (OSEP 2012) 113 LRP 25233)
  41. 41. 41  Resolution Meetings  Don’t refuse to discuss issues raised in DP complaint  Provide alternative means of attendance (video conference, etc.)  IEP Meetings  Policy requiring Parents to submit list of concerns in advance of IEP meeting violates IDEA (Letter to Casey (OSEP 2013) 59 IDELR 81; Letter to Northrup (OSEP 2013) 113 LRP 24303)
  42. 42. 42  Dispute Resolution  Must accept either Parent’s revocation of consent provided Parent has decision-making authority  Must hold resolution meeting within 15 days of notice of DP complaint, even during periods when school is closed  Must continue to encourage Parent participation during 30-day resolution period, even if Parent has refused cooperation (Questions and Answers on Dispute Resolution Procedures (OSEP 2013) 113 LRP 30921)
  43. 43. 43  Homeless Students  Option to continue education in school of origin or attendance area where child currently living  IDEA funds can be used for transportation  Due Process Hearing Attendance  FERPA prohibits school employees from attending unless “legitimate educational interest” (Letter to Bowman (OSEP 2013) 113 LRP 32483; Letter to Reisman (OSEP 2012) 60 IDELR 293)
  44. 44. 44 III. Recent Developments in California
  45. 45. 45 Recent California Developments: Repeal of Hughes Bill  AB 86  No longer required to conduct FAAs and develop “Hughes Bill” BIPs for students with “serious behavioral problems”  IDEA controls (address behavior when it impedes student learning or that of others)  Address behavior through IEP process
  46. 46. 46 Recent California Developments: Repeal of Hughes Bill  AB 86 (cont’d)  Emergency Interventions Can’t be used in lieu of BIP Only to control behavior that “poses clear and present danger of serious physical harm” Notify Parents within one day of incident Complete behavioral emergency report Convene IEP meeting within two school days to determine necessity of FBA, BIP or BIP modification
  47. 47. 47 Recent California Developments: Repeal of Hughes Bill  AB 86 (cont’d)  Behavior Intervention Case Manager Use no longer required when BIP is being developed/implemented Superintendent of Public Instruction to review sufficiency of behavior training in current teacher credentialing requirements May use Board Certified Behavior Analyst for assessments and services
  48. 48. 48 Recent California Developments: BIP Retroactive Reimbursement  Claiming Instructions and Claim Forms  Issued by California State Controller on July 24  Deadlines November 21: Claims for school years 1993-94 through 2011-12 February 18, 2014: Claims for school year 2012-13  Awaiting legislative authorization
  49. 49. 49 Recent California Developments: Revisions to Special Ed Regulations  Proposed Title 5 Revisions  Awaiting issuance; public comment period ended July 8  Not updated since 1987; conforms outdated regulations to state and federal law  Noteworthy: Will allow determination of SLD eligibility to be based on RTI process in conformity with IDEA regulations
  50. 50. 50 Recent California Developments: 2013-14 Budget  Line item vetoes totaling approximately $40 million in spending cuts  Special ed also receives $60 million less federal dollars due to sequestration  Legislature did not approve $60 million to “backfill” federal cut over concerns it would increase maintenance of effort requirement
  51. 51. 51 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.
  52. 52. 52 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 .
  53. 53. 53 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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