SES Spring 2015 Legal Update

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Cases, Guidance,
Legislation, and Other
Developments

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Legal Update Overview . . .
 New OAH Decisions
 Behavior, IEP Meetings, IEEs, LRE, Manifestation
Determinations, Preschool Students, Residential
Placement, Transfer Students, Transition Services,
Truancy
 Noteworthy Decisions from Courts
and Administrative Agencies
 Latest Federal Guidance
 Recent Developments Affecting Special
Education in California

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Behavior Interventions and
Supports

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New Cases – Behavior
Student v. Twin Rivers Unified School Dist. (OAH 2014)
 Facts:
 11-year-old fifth grade Student
 Despite behavior interventions, Student continually
eloped from school
 Placed on home instruction, but behavior issues
continued
 General ed teacher assigned to home instruction was
not trained to address behavior problems
 District contended Parent thwarted efforts
to conduct FBA
(Student v. Twin Rivers Unified School Dist. (OAH 2014) Nos. 2014030894 and
2014050203, 114 LRP 37445)

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New Cases – Behavior
Student v. Twin Rivers Unified School Dist. (OAH 2014)
 Decision:
 ALJ found denial of FAPE
 District failed to offer behavior supports in IEP despite
being aware of Student’s behaviors
 Offer to assess Student’s behavioral needs did not cure
failure to provide appropriate interventions
 Irrelevant whether Parent obstructed completion of FBA
 ALJ awarded 34 hours of comp ed behavior services
 District prevailed on other issues
(Student v. Twin Rivers Unified School Dist. (OAH 2014) Nos. 2014030894 and
2014050203, 114 LRP 37445))

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Behavior
 Why Does This Case Matter to Us?
 If staff are not appropriately trained
to address behaviors and there is
no cohesive plan in place to meet
behavior needs, general consensus
of courts and OAH is that Student
cannot benefit from his/her education

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 Facts:
 Parents of 3-year-old with hearing impairment advised
District they were “formally revoking” IEP; disagreed with
assessments and requested three IEEs
 District treated Parents’ letter as revocation of consent
for all special ed services and denied IEE
 Did not provide IEEs or seek due process
to defend assessments
 Parents claimed denial of FAPE for refusal to fund IEEs
(Student v. Capistrano Unified School Dist. (OAH 2014) No. 2014040723, 114 LRP
38493)
New Cases – Consent
Student v. Capistrano Unified School Dist. (OAH 2014)

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 Decision:
 ALJ found that “plain language” of Parents’ revocation
pertained exclusively to IEP
 Because Parents also notified District they would be
providing Student with another placement and would
seek reimbursement, District should have been aware
that FAPE dispute existed and that Parents did not
intend to revoke consent for eligibility
 Revocation of IEP ≠ revocation of eligibility
 District ordered to fund IEEs
(Student v. Capistrano Unified School Dist. (OAH 2014) No. 2014040723, 114 LRP
38493)
New Cases – Consent
Student v. Capistrano Unified School Dist. (OAH 2014)

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Consent
 Revocations of consent can pose
difficult issues
 Analyze language and circumstances
carefully to avoid erroneous
interpretations

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 Facts:
 Parents unilaterally placed third-grader in NPS shortly
after school year began
 In November, District sent triennial assessment plan in
preparation for IEP meeting due in January
 Meeting not held until late March
 Parents arrived 45 minutes late, by which time Student’s
general ed teacher had left
 Parent signed assessment plan at meeting and District
proposed transitioning Student back from NPS
(Student v. Pajaro Valley Unified School Dist. (OAH 2014) No. 2013090347, 114 LRP
49843)
New Cases – IEP Meetings
Student v. Pajaro Valley Unified School Dist. (OAH 2014)

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 Decision:
 Failure to hold timely IEP meeting and failure to secure
presence of general ed teacher was procedural violation
that rose to denial of FAPE
 Had meeting been held in January, Student may have
returned to District for second semester
 General ed teacher was necessary because District
proposed change in Student’s gen ed services
 ALJ ordered four months of NPS tuition reimbursement
 ALJ rejected all other FAPE-based arguments by Parents
(Student v. Pajaro Valley Unified School Dist. (OAH 2014) No. 2013090347, 114 LRP
49843)
New Cases – IEP Meetings
Student v. Pajaro Valley Unified School Dist. (OAH 2014)

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IEP Meetings
 While some procedural violations
are “harmless” errors, if the
violations result in loss of
educational opportunity or
seriously infringe on parents’
IEP participation, they amount to a
denial of FAPE – and give rise to a remedy

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Least Restrictive
Environment

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 Facts:
 11-year-old Student placed in group home by DCFS
after 14 unsuccessful foster homes and four
unsuccessful reunifications with Parent
 Frequent psychiatric hospitalization due to aggressive
behaviors
 After enrollment in District, Student was found eligible for
special ed (serious emotional disturbance)
 IEP team recommended self-contained therapeutic
placement; Parent claimed placement was not LRE
(Student v. Pasadena Unified School Dist. (OAH 2014) No. 2014070784, 114 LRP
49752)
New Cases – LRE
Student v. Pasadena Unified School Dist. (OAH 2014)

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 Decision:
 ALJ found District’s proposed placement was LRE
 Severity of behaviors justified need for therapeutic
setting
 Parent failed to show how lesser restrictive setting
(general ed class with 1:1 aide or SDC) could meet
Student’s mental health needs
 ALJ also rejected claim that selected placement was
inappropriate due to numerous incidents
of student runaways
(Student v. Pasadena Unified School Dist. (OAH 2014) No. 2014070784, 114 LRP
49752)
New Cases – LRE
Student v. Pasadena Unified School Dist. (OAH 2014)

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LRE
 The LRE obligation does not
override the FAPE requirement
 If placement discussed or proposed
at IEP meeting will not confer
educational benefit and a more restrictive
program is likely to provide such benefit, the
student is entitled to be placed in that more
restrictive program

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Manifestation
Determinations

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 Facts:
 11-year-old with ADHD, autism and SLD suspended
several times (totaling 10 days) for various incidents
 Student also was removed from class on several
occasions for counseling, a threat assessment,
de-escalation of behaviors, and to take California
modified assessment
 Parent claimed that all classroom removals exceeded
10 days and District should have conducted
manifestation determination
(Student v. Capistrano Unified School Dist. and Journey Charter School (OAH 2014) No.
2014060007, 114 LRP 38670)
New Cases – Manifestation
Determinations
Student v. Capistrano USD and Journey Charter Sch. (OAH 2014)

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 Decision:
 ALJ found Parent had erroneous belief that
all removals from classroom were tantamount
to in-school suspensions
 Various removals (counseling, behavior de-escalation)
conformed to Student’s IEP and BIP
 Threat assessment removal was not for disciplinary
purposes
 District appropriately removed Student in effort
to implement IEP and BIP
(Student v. Capistrano Unified School Dist. and Journey Charter School (OAH 2014) No.
2014060007, 114 LRP 38670)
New Cases – Manifestation
Determinations
Student v. Capistrano USD and Journey Charter Sch. (OAH 2014)

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Manifestation Determinations
 While it is important to keep
accurate count of days of removal,
it is also important to recognize
which removals are not “disciplinary
actions” and do not count toward
10-day threshold

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 Facts:
 3-year-old with cerebral palsy placed in integrated
preschool setting where children transitioned between
various locations for play activities
 District protocol required close adult supervision with no
children unattended on playground
 Staff planned to be near Student at all times due to her
balance and motor issues
 Parents claimed District should have provided
accommodations and modifications to address safety
(Student v. Elk Grove Unified School Dist. (OAH 2014) No. 2014040312, 114 LRP
29153)
New Cases – Preschool Students
Student v. Elk Grove Unified School Dist. (OAH 2014)

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 Decision:
 ALJ found Student’s IEP should have addressed unique
safety issues
 Despite District protocol, given adult/student ratio at the
preschool it was possible for adult not to be near enough
to Student to provide support at any given moment
 Student’s unsteady balance and inability to step
backwards or side-to-side warranted IEP provision to
guarantee close supervision in classroom/playground
(Student v. Elk Grove Unified School Dist. (OAH 2014) No. 2014040312, 114 LRP
29153)
New Cases – Preschool Students
Student v. Elk Grove Unified School Dist. (OAH 2014)

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Preschool Students
 When designing initial IEPs for
preschoolers, it is essential that IEP
team be aware of all of student’s
unique needs and address them in
the document
 IFSP developed by Part C service provider can
serve as important guide

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 Facts:
 14-year-old with mood disorder had lived at various
residential treatment centers since age 7
 Placements made through DCFS in response to violent
behaviors at home
 No IEP team had ever determined residential placement
was necessary for FAPE
 After DCFS discontinued funding, Parents made
unilateral residential placement and sought
reimbursement from District
(Student v. Burbank Unified School Dist. (OAH 2014) No. 2014020031, 114 LRP 36110)
New Cases – Residential
Placement
Student v. Burbank Unified School Dist. (OAH 2014)

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 Decision:
 ALJ denied reimbursement for residential placement
 Upheld District’s proposed placement in small classroom
environment at nonpublic day school with ESY,
transportation and individual counseling
 Student’s in-class behavior and emotional issues could
be addressed in day school setting
 Classroom behavior did not trigger severe behaviors at
home
(Student v. Burbank Unified School Dist. (OAH 2014) No. 2014020031, 114 LRP 36110)
New Cases – Residential
Placement
Student v. Burbank Unified School Dist. (OAH 2014)

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Residential Placement
 As the ALJ stated, “a district’s
responsibility under the IDEA
is to remedy the learning-related
symptoms of a disability, not
to treat other, non-learning
symptoms”

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 Facts:
 After dispute over IEP, Parents enrolled Student in
virtual charter school sponsored by another district
 For next school year, Parents sought to transfer Student
back to District and provided registration information
 District registered Student but did not enroll her because
she was still enrolled at charter school
 Parents filed for due process, claiming District denied
FAPE by failing to assess Student following her transfer
back to District and by not funding IEE
(Student v. Arcadia Unified School Dist. (OAH 2014) No. 2014060827, 114 LRP 44606)
New Cases – Transfer Students
Student v. Arcadia Unified School Dist. (OAH 2014)

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 Decision:
 ALJ found Parents were not entitled to any remedy
 If Parents wanted District assessment, they should have
first dis-enrolled Student from charter school
 Student could not be simultaneously enrolled in two
districts
 District had no obligation to assess, convene IEP
meeting, make FAPE offer or fund any IEE until Student
was enrolled
(Student v. Arcadia Unified School Dist. (OAH 2014) No. 2014060827, 114 LRP 44606)
New Cases – Transfer Students
Student v. Arcadia Unified School Dist. (OAH 2014)

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Transfer Students
 Semantics can matter in
special education – especially
the distinction between
“registration” and “enrollment”
 Obligation to provide FAPE does not begin
until district becomes the responsible LEA, i.e.,
once Student officially enrolls

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 Facts:
 11-year-old with ADHD and severe anxiety issues was
unilaterally placed at NPS
 District reassessed Student prior to fifth grade, offering
public school placement with one-half day in general ed
classroom and one-half day in learning center class
 Offered short-term behavior supports and access to
counseling to ease Student’s transition from small NPS
classroom
 Parents rejected FAPE offer and sought reimbursement
(Student v. Ross Valley School Dist. (OAH 2014) No. 2014020175, 114 LRP 49845)
New Cases – Transition Services
Student v. Ross Valley School Dist. (OAH 2014)

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 Decision:
 District violated FAPE because behavior supports were
inadequate to meet Student’s needs
 Student was transitioning from small class size (four
students) to classroom with 30 students
 Large classroom could exacerbate anxiety issues
 Needed more than just a few weeks of behavior services
 District ordered to reimburse for NPS for 2012-2013
 District remedied deficient services in subsequent IEP
(Student v. Ross Valley School Dist. (OAH 2014) No. 2014020175, 114 LRP 49845)
New Cases – Transition Services
Student v. Ross Valley School Dist. (OAH 2014)

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Transition Services
 When Student is moving from small
private setting to large public school,
IEP team must anticipate and
address transition-related issues,
including need for additional supports
to help Student adjust to a big classroom

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 Facts:
 14-year-old homeless Student with OHI (for ADHD)
 History of truancy in various districts
 After sending Guardian several notices of excessive
absences, District referred Student to SARB
 SARB referred Student to community day school
 District did not mention on referral form that Student was
entitled to special ed services or had IEP
 Guardian claimed manifestation determination should
have been held
(Student v. Rialto Unified School Dist. (OAH 2014) No. 2014040982, 114 LRP 38497)
New Cases – Truancy
Student v. Rialto Unified School Dist. (OAH 2014)

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 Decision:
 ALJ found SARB referral was disciplinary change of
placement and required MD review
 Change of placement was result of Student’s habitual
truancy, a violation of code of student conduct
 ALJ cited State SARB model handbook
 Conducting MD is consistent with purposes of SARB – to
ensure all appropriate interventions are utilized
 Note: ALJ also found Student’s conduct was
manifestation of his ADHD
(Student v. Rialto Unified School Dist. (OAH 2014) No. 2014040982, 114 LRP 38497)
New Cases – Truancy
Student v. Rialto Unified School Dist. (OAH 2014)

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Truancy
 ALJ stressed that holding MD review
when SARB considers a change of
placement is consistent with
IDEA policy and the “responsibilities
assumed by districts when addressing
the special education needs of students”

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II. Noteworthy Decisions
from the Courts and
Administrative Agencies

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 What Happened:
 District conducted RTI but chose to use severe
discrepancy model to assess Student for SLD
 9th Circuit found District met legal requirements in
conducting its evaluation and appropriately used RTI
data to corroborate assessment results
 However, District violated IDEA by failing to ensure RTI
data was appropriately documented and by failing to
provide Parents with RTI data
 Procedural violation amounted to denial of FAPE by
infringing on Parents’ ability to participate in IEP process
(M.M. v. Lafayette School Dist. (9th Cir. 2014) 64 IDELR 31)
Response to Intervention
M.M. v. Lafayette School Dist. (9th Cir. 2014)

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 What Happened:
 IEP team adjourned before completing discussion of IEE
obtained by Parents but after discussing goals
 Parents filed for due process claiming team failed to
adequately consider their IEE
 District reconvened IEP meeting without Parents (who
refused to attend) and finalized IEP based, in part, on
information previously discussed with Parents
 Court found no predetermination (reversing ALJ)
 IEP with partial parental input was better option than
proceeding indefinitely with outdated IEP
(Cupertino Union School Dist. v. K.A. (N.D. Cal. 2014) 64 IDELR 200)
Parent Participation
Cupertino Union School Dist. v. K.A. (N.D. Cal. 2014)

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 What Happened:
 Student with ED, who resided outside of district, was
hospitalized at psychiatric facility within District boundaries
 District provided special ed services at hospital and IEP
team recommended residential placement upon release
 District advised Guardian it was not responsible for placing
Student at residential facility
 Court: District fulfilled responsibility by providing services
at hospital, but responsibility ended on discharge
 At that point, district of residence assumes FAPE
obligation
(N.G. v. ABC Unified School Dist. (C.D. Cal. 2014) 64 IDELR 73)
Residential Placement
N.G. v. ABC Unified School Dist. (C.D. Cal. 2014)

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 What Happened:
 Student had genetic markers for cystic fibrosis
 District removed Student from classroom citing safety
concerns (which later turned out to be unwarranted)
 Parties “settled the matter” and Student returned to school
after missing two weeks
 Court: No 504 or ADA violation resulted from removal
 District acted in effort to preserve safe operation of its
school
 Removal was reasonable given info District had at the time
(Chadam v. Palo Alto Unified School Dist. (N.D. Cal. 2014) 64 IDELR 168)
Health and Safety
Chadam v. Palo Alto Unified School Dist. (N.D. Cal. 2014)

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 What Happened:
 Teacher believed Parent was recording IEP meeting
without providing required 24-hour notice
 Same day that Parent requested consultation with
psychologist (following Student’s school behavior
issues), District reported alleged recording to police
 OCR found evidence of retaliation by District against
Parents for engaging in protected activity
 District had no proof meeting was recorded and any
violation of 24-hour notice law was not criminal act
(San Carlos School Dist. (OCR 2014) 114 LRP 31014)
Retaliation
San Carlos School Dist. (OCR 2014)

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 What Happened:
 Parent complained to OCR about lack of accessible
bathroom at school where due process hearing was
being held
 OCR reached agreement with CDE
 CDE agreed to:
Make sure facilities where hearings are held are
accessible to individuals with disabilities
Adopt procedures for OAH to evaluate and respond
to requests for accommodations
(California Dep’t of Educ. (OCR 2014) 114 LRP 47368)
Accessibility
California Dep’t of Educ. (OCR 2014)

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III. Latest
Federal Guidance

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 OSEP/OCR Dear Colleague letters
 OSEP: Districts must have child find policies in place to
identify, locate students in juvenile correctional facilities
 Students must receive timely evaluations
 Records must be transferred expeditiously
 IDEA due process applies
 IDEA discipline procedures apply to “removals”
 OCR: Juvenile justice facilities must provide equal
access to coursework, provide 504 FAPE, meet needs of
ELs, avoid discriminatory discipline
(Dear Colleague Letter (OSEP 12/5/2014); Dear Colleague Letter (OCR
12/8/2014))
Incarcerated Students

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 Letter to Reilly (OSEP)
 Which party bears burden of proof in state compliance
complaint?
 OSEP stated it is not consistent with IDEA for SEA to
treat compliance complaints like due process complaints
and assign a burden of proof to either party
 Once complaint is filed, neither party has burden to
product sufficient evidence to persuade SEA to make
determination “one way or another”
 SEA must independently review and weigh evidence
(Letter to Reilly (OSEP 11/3/2014))
State Complaint Procedures

54
 FAQs of Effective Communication (OCR)
 Districts must apply IDEA FAPE analysis and ADA
“effective communication” analysis in determining how to
meet students’ communication needs
 Services may be required under Title II even if they are
not needed to provide FAPE
 Student need not be IDEA-eligible in order to qualify
under Title II
 Under Title II, districts must honor communication choice
of student/family, unless it can prove alternative
aid/service is equally effective
(Frequently Asked Questions on Effective Communication for Students with
Hearing, Vision or Speech Disabilities (OCR 11/12/2014))
ADA “Effective Communication”

55
 Dear Colleague Letter (OCR)
 Bullying can amount to disability-based harassment
and/or denial of FAPE under Section 504
 When Student is bullied, Section 504 team must convene
to determine whether needs have changed such that
Student is no longer receiving FAPE
 Team must look at additional/different services or change
of placement
 If bullying results in disability-based harassment, there is
“strong likelihood” that Student is also being denied FAPE
(Dear Colleague Letter (OCR 10/21/2014))
Bullying and Section 504

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IV. Recent
Developments
Affecting
Special Education
in California

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U.S. Supreme Court Update
 January 2015: U.S. Supreme Court refused to consider
appeal in E.M. v. Pajaro Unified School District, effectively
ending dispute that had continued since 2006
 9th Circuit ruled in 2014 that District acted reasonably when
it determined that Student with an auditory processing
disorder did not qualify for special education under the
category of SLD
 Although court recognized that a student may be eligible for
special education under more than one category of
disability, it found that District also did not act
inappropriately by failing to qualify Student as OHI

58
New Legislation
 SB 1266 (EpiPens)
 All schools must stock epiPens and restock
them as soon as used or when shelf-life expires
 Provide to nurses and trained personnel
 Districts must distribute annual notice for
volunteers to be trained to administer injections
 Private schools have discretion to determine
whether or not to make epiPens available

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New Legislation
 AB 420 (Suspensions/Expulsions)
 Amends Ed Code section 48900(k)
 Prohibits districts from suspending K-3 student
who disrupts school activities or commits act of
willful defiance
 Prohibits recommendation for expulsion for
those acts for K-12 students
 Prohibitions do not apply to commission of any
other act under section 48900.

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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.

61
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 .

62
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 Spring 2015 Legal Update

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