SES Fall 2015: Legal Update

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Cases, Guidance,
Legislation, and Other
Developments

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Legal Update Overview . . .
 New OAH Decisions
 Behavior, Discipline, Eligibility, IEEs, IEP Implementation,
LRE, Nonattendance, Notice, Placement Responsibility
and Transportation
 Noteworthy Decisions from Courts
and Administrative Agencies
 Latest Federal Guidance
 Recent Developments Affecting Special Education
in California

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New Cases – Behavior
Student v. Spencer Valley Elem. School Dist. (OAH 2015)
 Facts:
 Fifth-grader with Down syndrome posed significant behavior
challenges
 District initially provided Relationship Development
Intervention (“RDI”) with trained aide and NPA contract
 Changed to ABA provided by special ed teacher after RDI
aide left and NPA contract was not renewed
 When behavior worsened, Parents withdrew Student and
sought reimbursement for home-tutored RDI program
(Student v. Spencer Valley Elem. School Dist. (OAH 2015) Case No. 2014120575)

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New Cases – Behavior
Student v. Spencer Valley Elem. School Dist. (OAH 2015)
 Decision:
 ALJ found that District denied FAPE and ordered
reimbursement
 Special ed teacher had no training in behavior management
 Student had made meaningful progress with RDI
 Regression occurred when ABA was substituted for RDI
 District unsuccessfully argued that methodology was within
its discretion
(Student v. Spencer Valley Elem. School Dist. (OAH 2015) Case No. 2014120575)

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Behavior
 Why Does This Case Matter to Us?
 Generally, districts are provided
with wide latitude in selection of
methodology
 But this discretion is not absolute
 If chosen methodology is not
correctly implemented or does not work,
ALJ may find denial of FAPE

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 Facts:
 Student with ADHD received accommodations under
Section 504 plan
 When behavior escalated, District sought consent to assess
for special education
 Parent never returned assessment plan
 After Student was suspended in October 2014, Parent filed
for expedited due process claiming District had knowledge
of disability and should have provided IDEA disciplinary
protections
(Student v. Panama-Buena Vista Unified School Dist. (OAH 2015) Case No.
2014100290)
New Cases – Discipline
Student v. Panama-Buena Vista Unified School Dist. (OAH
2015)

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 Decision:
 ALJ found District was not required to comply with IDEA before
suspending Student
 Without Parent’s consent for assessment, District could not
determine eligibility and was not deemed to have knowledge
 No evidence of any failure to communicate need for
assessment
 Parent represented by advocate at Section 504 meetings
 Note: Subsequent decision on nonexpedited claims found
District violated child find prior to October 2014 by not
evaluating Student
(Student v. Panama-Buena Vista Unified School Dist. (OAH 2015) Case No. 2014100290)
New Cases – Discipline
Student v. Panama-Buena Vista Unified School Dist. (OAH
2015)

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Discipline
 District may be considered to have
“knowledge” of disability under IDEA
if parent or teacher expresses concern
about need for special ed
 But when parent does not allow assessment,
IDEA provides that district has “no basis of
knowledge” of disability and IDEA
disciplinary protections are not available

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 Facts:
 Fourth-grade Student with Fetal Alcohol Syndrome Disorder,
PTSD and ADHD
 Did not demonstrate behavior issues and made good
academic progress
 Guardian requested assessment based on concerns about
Student’s fatigue and struggles with homework
 IEE recommended eligibility under SLD and OHI
 District assessed and determined Student was not eligible for
special education
(Student v. San Francisco Unified School Dist. (OAH 2015) Case No. 2014080645)
New Cases – Eligibility
Student v. San Francisco Unified School Dist. (OAH 2015)

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 Decision:
 ALJ supported District’s determination that Student was not
eligible for special education
 No severe discrepancy that would support SLD eligibility
 Notwithstanding ADHD diagnosis, no indication that Student
needed specialized academic instruction
 Homework struggles may have been “battle of wills”
 No impaired vitality, strength or alertness to support eligibility
as OHI
(Student v. San Francisco Unified School Dist. (OAH 2015) Case No. 2014080645)
New Cases – Eligibility
Student v. San Francisco Unified School Dist. (OAH 2015)

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Eligibility
 Mere evidence of DSM-5 diagnosis
or medical disability does not
automatically mean special ed
eligibility
 Must be an “adverse effect” on
educational performance and student
must need special education

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Independent Educational
Evaluations

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 Facts:
 Parent requested IEE following District assessment that
determined first-grade Student was not eligible for special ed
 District agreed to fund IEE and provided list of three assessors
for Parent to choose from; however it did not provided IEE
criteria or other information about obtaining IEEs
 When Parent selected psychologist not on District’s list, District
refused to fund IEE with that psychologist, but again did not
provide Parent with IEE criteria
 District did not file for due process to defend assessment
(Student v. Bellflower Unified School Dist. (OAH 2015) Case No. 2015020485)
New Cases – IEEs
Student v. Bellflower Unified School Dist. (OAH 2015)

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 Decision:
 ALJ found procedural violation of FAPE and ordered District to
fund IEE with psychologist originally selected by Parent
 District breached FAPE obligation when it failed to provide
Parent with information concerning IEEs, both initially and once
Parent selected individual who was not on list of three
psychologists provided by District
 ALJ stated that District did not want to contract with Parent’s
selected psychologist due to belief that she was biased
 District’s actions significantly impeded Parent’s opportunity to
meaningfully participate in the IEP process
(Student v. Bellflower Unified School Dist. (OAH 2015) Case No. 2015020485)
New Cases – IEEs
Student v. Bellflower Unified School Dist. (OAH 2015)

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IEEs
 Once district agrees to fund an IEE,
it should provide the parents with its IEE
policy, including criteria related to
assessor qualification and costs
 Parents are not restricted to select among
evaluators identified by the district and can choose
another evaluator if that individual meets district’s criteria

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 Facts:
 8-year-old Student eligible for special ed as OHI
 IEP team agreed to reading methodology (“RAVE-O”)
to be provided five times per week for 30 minutes in small
group, with additional 30 minutes in afternoon four times per
week to begin in March
 Teacher did not begin using RAVE-O until April and, ultimately,
only provided it two times per week
 Teacher believed it was not appropriate methodology
for Student
(Student v. Temecula Valley Unified School Dist. (OAH 2015) No. 2014080713)
New Cases – IEP Implementation
Student v. Temecula Valley Unified School Dist. (OAH 2015)

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 Decision:
 Although Student made progress without full implementation of
RAVE-O, ALJ found District violated FAPE obligation by failing
to implement IEP
 Teacher improperly substituted her educational judgment for
that of IEP team
 When teacher chose not to implement RAVE-O, Parent was
“cut out of the IEP process”
 ALJ awarded $21,000 reimbursement for private behavior
services obtained by Parent
(Student v. Temecula Valley Unified School Dist. (OAH 2015) No. 2014080713)
New Cases – IEP Implementation
Student v. Temecula Valley Unified School Dist. (OAH 2015)

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IEP Implementation
 9th Circuit: “Material failure”
to implement IEP amounts to denial
of FAPE (Van Duyn v. Baker SD (2007))
 Material failure occurs when “there is more
than a minor discrepancy” between services
actually provided and those called for in IEP

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Least Restrictive
Environment

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 Facts:
 None of various placement attempted by District could
address behavior issues presented by fifth-grader with ED
and autism
 Home instruction also was unsuccessful
 District ultimately tried residential facility in Utah
 Parents removed Student from facility after behavior incident,
believing that LRE was special day class on general ed
campus with intensive supports
(Student v. Snowline Joint Unified School Dist. (OAH 2015) Nos. 2014090176 and
2014100294)
New Cases – LRE
Student v. Snowline Joint Unified School Dist. (OAH 2015)

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 Decision:
 ALJ found residential placement was LRE
 Despite behavior incident, Student made academic and
nonacademic progress in residential setting
 Facility provided mental health services, positive behavior
intervention/strategies
 SDC proposed by Parents could not address Student’s
needs, given lack of previous success in numerous
similar placements
(Student v. Snowline Joint Unified School Dist. (OAH 2015) Nos. 2014090176 and
2014100294)
New Cases – LRE
Student v. Snowline Joint Unified School Dist. (OAH 2015)

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LRE
 Residential setting is one of the most
restrictive placements on the LRE
continuum
 Removal to residential placement
complies with LRE only when student is
unable to receive FAPE in a lesser restrictive
environment

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 Facts:
 Parents asked for part-time home placement (Tuesdays and
Thursdays) for eighth-grade Student with ED, who exhibited
attendance problems
 Parents claimed Student had sensory processing disorder
and felt “bombarded by stimuli” at school
 District believed not attending school full time would increase
Student’s anxiety and that Student only attended school
“when he wanted to and not otherwise”
(Student v. Dixie Elementary School Dist. (OAH 2015) No. 2014110335)
New Cases – Nonattendance
Student v. Dixie Elementary School Dist. (OAH 2015)

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 Decision:
 ALJ supported District’s full-time school placement offer
 Parent’s opinion was not based on relevant expertise and was
determined, in part, by her work schedule
 Symptoms of any sensory processing disorder would be
constant and ongoing and Student’s anxiety was
unpredictable
 No reason to believe that challenges could be overcome
on Mondays, Wednesdays and Fridays, but not on
Tuesdays and Thursdays
(Student v. Dixie Elementary School Dist. (OAH 2015) No. 2014110335)
New Cases – Nonattendance
Student v. Dixie Elementary School Dist. (OAH 2015)

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Nonattendance
 IEP team should review whether
student’s nonattendance might be
related to disability and, if so, take
steps to address it
 Team did so in this case before making
determination that partial home placement would not
resolve attendance issues

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 Facts:
 Fifth-grader with SLD (deficits in written language
and spelling)
 Parents learned that teacher allowed Student extra time to
complete math test and allowed him to complete homework
assignment in class
 Teacher also did not correct spelling errors (consistent with
her policy for all students)
 Parents claimed providing accommodations that were not in
Student’s IEP amounted to change of placement requiring
provision of PWN
(Student v. Westminster School Dist. (OAH 2015) Nos. 2014110630 and 2014080827)
New Cases – Notice
Student v. Westminster School Dist. (OAH 2015)

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 Decision:
 ALJ found no procedural violation of FAPE and no
requirement for provision of PWN
 Teacher’s adjustments in two isolated instances did not
amount to placement change, nor did grading methods that
were applied to all students
 There was no indication that Student’s grades were modified
or that he was routinely allowed extra time to complete work
(Student v. Westminster School Dist. (OAH 2015) Nos. 2014110630 and 2014080827)
New Cases – Notice
Student v. Westminster School Dist. (OAH 2015)

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Notice
 PWN required when district proposes
or refuses to initiate or change:
Identification
Evaluation
Placement
Provision of FAPE
 Unilateral placement change is typically found to
occur when student’s program is substantially
altered, not for mere slight changes to
accommodations

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 Facts:
 16-year-old with ED was dependent child of court after having
been removed from grandparents’ home
 Court ordered DCFS to provide placement, which it did at
locked RTC due to Student’s need for intensive psychiatric
care
 District provided special education at NPS located within
locked facility
 Issue at due process was whether District should have offered
RTC placement at IEP meeting as part of FAPE
(Student v. Los Angeles Unified School Dist. and Simi Valley Unified School Dist. (OAH
2015) Nos. 2014120059 and 20014120530)
New Cases – Placement
Student v. Los Angeles Unified School Dist. (OAH 2015)

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 Decision:
 ALJ found that District was not obligated to offer or fund RTC
as part of FAPE
 DCFS was under court order to provide placement for Student
and fulfilled its obligation by providing appropriate placement
to address Student’s mental health needs
 Placement did not become District’s responsibility
regardless of whether mental health needs were also
educationally related
(Student v. Los Angeles Unified School Dist. and Simi Valley Unified School Dist. (OAH
2015) Nos. 2014120059 and 20014120530)
New Cases – Placement
Student v. Los Angeles Unified School Dist. (OAH 2015)

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Placement Responsibility
 Education Code provides that if district
did not make the decision to place
student in a licensed children’s institution
or foster home, the public agency placing
the student is responsible for residential
costs and non-educational costs for that student

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 Facts:
 Student with autism attended District on “permit” basis based
on Mother’s employment within District boundaries, despite
residing outside jurisdiction
 Parent provided transportation to and from elementary school,
which was one block from her job location
 When Student transitioned to middle school, District
recommended SDC placement at middle school 3.5 miles
away, but did not offer transportation (stating it did not provide
transportation to “permit” students)
(Torrance Unified School Dist. v. Student (OAH 2014) No. 2014071042)
New Cases – Transportation
Student v. Torrance Unified School Dist. (OAH 2014)

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 Decision:
 Failure to provide transportation denied FAPE to Student
 Student’s disabilities prevented her from getting home from
school in same manner as nondisabled peers
 Need for supervision, even between classes, should have
prompted concerns about unsupervised passage over 3.5 miles
during time of day when Student was typically tired
and uncooperative
 ALJ also faulted District’s characterization of Student as
“permit student” since her attendance was based on Mother’s
employment, not on interdistrict permit
(Torrance Unified School Dist. v. Student (OAH 2014) No. 2014071042)
New Cases – Transportation
Student v. Torrance Unified School Dist. (OAH 2014)

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Transportation
 District policy or administrative
regulation exempting certain
categories of students from
transportation eligibility will not
insulate District from obligation to provide
transportation if student requires it in order
to receive FAPE

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II. Noteworthy Decisions
from the Courts and
Administrative Agencies

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 What Happened:
 District failed to reevaluate Student following release from
juvenile facility
 Parents were awarded IEE and attorneys’ fees
 Following IEE, District assessed Student and found him not to
be eligible for services
 Ineligibility findings upheld by hearing officer and court
 9th Circuit overturned award of attorneys’ fees
 Although Parents were prevailing parties in IEE dispute, “clear
language” in IDEA limits fee awards exclusively to “parents of
a child with a disability”
(Meridian Joint School Dist. No. 2 v. D.A. (9th Cir. 2015) 65 IDELR 177)
Attorneys’ Fees
Meridian Joint School Dist. No. 2 v. D.A. (9th Cir. 2015)

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 What Happened:
 14-year-old Student diagnosed as profoundly deaf had been
placed in District’s Total Communication program – and had
remained there for approximately 10 years
 Parent challenged District’s refusal to refer Student to
California School for the Deaf (“CSD”)
 Court reversed ALJ decision in District’s favor, finding Student
had made very little progress and had difficulty
communicating in ASL
 Ordered referral to determine if CSD was appropriate
placement
(J.G. v. Baldwin Park Unified School Dist. (C.D. Cal. 2015) 65 IDELR 177)
Hearing Impairments
J.G. v. Baldwin Park Unified School Dist. (C.D. Cal. 2015)

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 What Happened:
 After ALJ ordered California Children’s Services (“CCS”) to
increase amount of medically necessary OT for 12-year-old
Student, federal District Court reversed
 Held that ALJ’s authority in due process hearing is limited to
determining whether services are educationally necessary
 Acknowledged 2015 state Superior Court decision finding that
amount of medically necessary OT can be determined through
due process
 Federal Court took issue with Superior Court’s decision, stating
that purpose of due process is to determine what is necessary to
provide FAPE, not what services are medically necessary
(Douglas v. Office of Administrative Hearings (N.D. Cal. 2015) 64 IDELR 300)
Occupational Therapy
Douglas v. Office of Administrative Hearings (N.D. Cal. 2015)

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 What Happened:
 DOJ continues to levy sanctions for violation of ADA
regarding service animal policies and decisions
 District refused to allow Student’s service dog unless Parent
provided adult handler
 Also refused to assign staff to assist Student in handling
 DOJ ordered District to:
 Allow Student to bring dog to school without handler
 Modify its “hand-off” policy for staff
 Pay compensatory damages to Parent!
(Gates-Chili Central (NY) School Dist. (DOJ 2015) 65 IDELR 152)
Service Animals
Gates-Chili Central (NY) School Dist. (DOJ 2015)

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III. Latest
Federal Guidance

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 Letter to Baus (OSEP)
 If Parent disagrees with District assessment because Student
was not assessed in a particular area, Parent has right to
request an IEE to assess Student in that area
 As with all IEEs, District then must either:
 Initiate due process hearing to show its assessments were
appropriate; or
 Ensure IEE is provided at public expense, unless it can
demonstrate that IEE obtained by Parent did not meet
its criteria
(Letter to Baus (OSEP 2015) 65 IDELR 81)
Assessments/IEEs

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 Letter to Colleague and Letter to Deaton (OSEP)
 Under IDEA, if state compliance complaint is also subject of
due process hearing, state must set aside any part of complaint
that is being addressed at due process
 OSEP expressed concern that some districts are filing for
due process to keep parent’s compliance complaint from
moving forward
 “In some situations, [this] may unreasonably deny a parent
the right to use the state complaint process”
 SEAs may not permit districts to delay implementation of
corrective action pending outcome of due process
(Letter to Colleague (OSEP 2015) 65 IDELR 151; Letter to Deaton (OSEP 2015) 115 LRP
25438)
Compliance Complaints

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 Dear Colleague Letter (OSEP)
 OSEP expressed concern over reports that many students
with autism are not receiving needed speech and language
services, and that speech-language pathologists may not be
included in evaluation and eligibility determinations
 Some districts use ABA therapists exclusively without
including, or considering input from, speech language
pathologists and other professionals
 OSEP reminded that “specialized education, training and
experience of speech-language pathologists make them
a key part of the team that evaluates and treats a child
with autism”
(Dear Colleague Letter (OSEP 2015) 115 LRP 33911)
Autism

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 Memorandum to State Directors (OSEP)
 OSEP expressed concerned that some districts are
hesitant to conduct eligibility assessments for students
with high cognition
 Asked state Directors of Special Education to remind districts
of obligation to evaluate all students, regardless of cognitive
skills, suspected of have one of the 13 disabilities listed in 34
C.F.R. § 300.8
(Memorandum to State Directors of Special Educ. (OSEP 2015) 65 IDELR 181)
Assessments of Students
with High Cognition

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 Letter to Sarzynski (OSEP)
 All applicable requirements for districts regarding
parentally placed private school students apply in equal
measure even if parents reside outside of the United
States, including
 Child find
 Consideration for equitable services
 If parents cannot to attend meetings in person to
develop and review their child’s services plan, OSEP
stated it would expect districts to use other methods to
ensure parent participation as required by the IDEA
(Letter to Sarzynski (OSEP 2015) 115 LRP 34215)
International Students

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IV. Recent
Developments
Affecting
Special Education
in California

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U.S. Supreme Court Update
 May 2015: U.S. Supreme Court refused to consider appeal
in Ridley School District v. M.R.
 3d Circuit had held that the IDEA's
stay-put provision applies through
final resolution of the case rather than
at end of District Court proceedings
 3d Circuit’s decision is in accordance
with 9th Circuit’s previous ruling in
Joshua A. v. Rocklin Unified School District (2009)

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New Legislation
 SB 277 (Vaccinations)
 Signed by Governor Brown on June 30
 Eliminates “personal belief” exemption from mandatory
immunization requirements beginning July 1, 2016
 If letter on file prior to January 1, 2016 stating personal beliefs
oppose immunization, Student may continue to be enrolled
until next “grade span” (birth to preschool; K-6; 7-12)
 Exemptions permitted for medical reasons (statement of
physician indicating that vaccination is unsafe)
 SB 277 does not prohibit students from accessing special ed
and related services required by IEP
 Does not apply to home-based private school

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New Legislation
 AB 1369 (Dyslexia)
 Pending in Legislature at press time
 Bill would require the Superintendent of Public Instruction to
complete – by beginning of the 2017–2018 school year –
program guidelines for dyslexia or other reading and writing
dysfunctions
 Guidelines to be used to:
 Assist general education teachers, special education
teachers, and parents to identify and assess students with
dyslexia
 To plan, provide, evaluate, and improve educational
services for those students

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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.

60
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 2015: Legal Update

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