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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 Responsibilityand Transportation

Noteworthy Decisions from Courts and Administrative Agencies

Latest Federal Guidance Recent Developments Affecting Special

Education in California

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I. New OAH Decisions

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Behavior

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New Cases – BehaviorStudent 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 – BehaviorStudent 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

withinits 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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Discipline

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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 – DisciplineStudent 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

assessmentParent 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 – DisciplineStudent v. Panama-Buena Vista Unified School Dist. (OAH 2015)

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Discipline Why Does This Case Matter to Us?

District may be considered to have“knowledge” of disability under IDEAif parent or teacher expresses concernabout need for special ed

But when parent does not allow assessment,IDEA provides that district has “no basis ofknowledge” of disability and IDEA disciplinary protections are not available

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Eligibility

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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 – EligibilityStudent 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 instructionHomework 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 – EligibilityStudent v. San Francisco Unified School Dist. (OAH 2015)

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Eligibility Why Does This Case Matter to Us?

Mere evidence of DSM-5 diagnosis or medical disability does not automatically mean special edeligibility

Must be an “adverse effect” oneducational performance and studentmust 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 – IEEsStudent 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 – IEEsStudent v. Bellflower Unified School Dist. (OAH 2015)

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IEEs Why Does This Case Matter to Us?

Once district agrees to fund an IEE, it should provide the parents with its IEEpolicy, including criteria related toassessor qualification and costs

Parents are not restricted to select amongevaluators identified by the district and can choose another evaluator if that individual meets district’s criteria

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IEP Implementation

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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 ImplementationStudent 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 ImplementationStudent v. Temecula Valley Unified School Dist. (OAH 2015)

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IEP Implementation Why Does This Case Matter to Us?

9th Circuit: “Material failure” to implement IEP amounts to denialof FAPE (Van Duyn v. Baker SD (2007))

Material failure occurs when “there is morethan a minor discrepancy” between servicesactually 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 – LREStudent 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 – LREStudent v. Snowline Joint Unified School Dist. (OAH 2015)

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LRE Why Does This Case Matter to Us?

Residential setting is one of the mostrestrictive placements on the LREcontinuum

Removal to residential placementcomplies with LRE only when student is unable to receive FAPE in a lesser restrictive environment

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Nonattendance

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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 – NonattendanceStudent 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 – NonattendanceStudent v. Dixie Elementary School Dist. (OAH 2015)

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Nonattendance Why Does This Case Matter to Us?

IEP team should review whetherstudent’s nonattendance might berelated to disability and, if so, takesteps 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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Notice

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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 – NoticeStudent 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 – NoticeStudent v. Westminster School Dist. (OAH 2015)

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Notice Why Does This Case Matter to Us?

PWN required when district proposesor refuses to initiate or change:

IdentificationEvaluationPlacementProvision 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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Placement Responsibility

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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 – PlacementStudent 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 responsibilityregardless 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 – PlacementStudent v. Los Angeles Unified School Dist. (OAH 2015)

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Placement Responsibility Why Does This Case Matter to Us?

Education Code provides that if districtdid not make the decision to place student in a licensed children’s institutionor foster home, the public agency placingthe student is responsible for residentialcosts and non-educational costs for that student

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Transportation

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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 – TransportationStudent 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 – TransportationStudent v. Torrance Unified School Dist. (OAH 2014)

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Transportation Why Does This Case Matter to Us?

District policy or administrative regulation exempting certaincategories of students from transportation eligibility will notinsulate District from obligation to provide transportation if student requires it in orderto receive FAPE

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II. Noteworthy Decisionsfrom 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’ FeesMeridian 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 ImpairmentsJ.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 TherapyDouglas 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 AnimalsGates-Chili Central (NY) School Dist. (DOJ 2015)

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III. LatestFederal 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; orEnsure 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. RecentDevelopments

AffectingSpecial 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 thanat 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.

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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 .