Legal Update

1. Legal Update SES Spring 2010

2. Overview • Federal Court Cases – Rowley Standard, Parent Reimbursement, IEP Attendance • OAH – Residency, Predetermination • State Law – CAHSEE Exemption, Regulations • Federal Guidance – Transportation, Early Childhood Transitions • In the News – L.M. v. Capistrano, H1N1 Guidance, ARRA Support, RTI

3. Ninth Circuit #1J.L. v. Mercer Island SD • Rowley alive and well • To offer a FAPE, District must offer a “basic floor of opportunity” that is “reasonably calculated” to provide the student with “educational benefit” (J.L. v. Mercer Island SD (9th Cir. 2009).)

4. cont. “Educational Benefit” • Ninth Circuit clarified that the terms “educational benefit” and “some educational benefit” and “meaningful educational benefit” all refer to Rowley • Ninth Circuit rejected argument that IDEA amendments require that districts guarantee some level of “outcome” (J.L. v. Mercer Island SD (9th Cir. 2009).)

5. Ninth Circuit #2Weissburg v. Lancaster • District found student eligible under “mental retardation” category • Parents disagreed eligibility should be autistic • OAH found student eligible under BOTH • Student received FAPE Are parents the prevailingparty? (Weissburg v. Lancaster SD (9th Cir. 2010).)

6. cont. Parents = Prevailing Party • 9th Cir: Change in eligibility classification materially altered legal relationship between parties • Student now possessed legal right to instruction by teacher with autism certification • Additional holding: Student’s attorney grandmother could recover fees (Weissburg v. Lancaster SD (9th Cir. 2010).)

7. cont. Impact of WeissburgEligibility Determination • Student still does not have a legal right to a specific eligibility classification • Weissburg focused more on the material change in student’s rights resulting from new classification • If IEP team cannot agree District staff should designate appropriate category • Can designate more than one eligibility category (Weissburg v. Lancaster SD (9th Cir. 2010).)

8. Ninth Circuit #3: Ashland v. E.H. Middle school student received special education services due to severe emotional problems Parent unilaterally placed Student in private residential facility without notice to District Residential facility focused on Student’s medical needs, suicide prevention (Ashland SD v. E.H. (9th Cir. 2010).)

9. No Reimbursement 9th Cir.- No reimbursement for private placement because: (1) Parent failed to give 10-day notice of unilateral placement; and (2) Private resident placement was medical, rather than educational in nature Note: IDEA provides judges with broad discretion regarding parent notice cont. (Ashland SD v. E.H. (9th Cir. 2009).)

10. U.S. District Court B.M. v. Carlsbad USD Dispute over IEP meeting attendees At meeting: District’s special education teacher from neighborhood school Student’s current special education teacher from private placement not present Was the District required to include private special ed. teacher on IEP team? (B.M. v. Carlsbad USD (S.D. Cal. 2009).)

11. No! ALJ  Failure to include Student’s private special education teacher at IEP team meeting does not constitute denial of FAPE Focused on OSEP comments: “Special education teacher…should be person who is or will be responsible for implementing IEP” cont. (B.M. v. Carlsbad USD (S.D. Cal. 2009).)

12. Office of Administrative Hearings - #1Residency for Incarcerated Student Prior to 2006, special education student lived with mother and attended schools in LAUSD 2006: Student arrested and sent to juvenile detention facility where he received special ed. services from LACOE Student turned 18, sent to LA County jail Who is responsible for special education services for incarcerated student? (Student v .Los Angeles USD (OAH 2009).)

13. LAUSD = Responsible LEA It was undisputed that once out of jail, Student would return to live with his mother, who still resided within LAUSD LAUSD remained the last district of residence, unless Student’s parent or guardian had relocated OAH Incarcerated students are not like other adult students who voluntarily move and change their own residency cont. (Student v. Los Angeles USD (OAH 2009).)

14. Office of Administrative Hearings - #2Predetermination District, County and Student entered into settlement agreement for NPA’s one-to-one aide Settlement expressly stated NPA aide services were “for assessment purposes only,” not for purposes of FAPE, and would not constitute “stay put” if disputed District staff believed settlement agreement required County aide services in future, so they did not discuss aide services at IEP meeting (Student v. Montecito Union ESD (OAH 2009).)

15. Predetermination ALJ District and County predetermined that one-to-one aide would be county employee Settlement agreement contained NO language to support District’s and County’s belief that County aide services were required IEP team did not consider any reasonable alternatives, qualification of staff Parents denied opportunity for meaningful participation regarding one-to-one aide services cont. (Student v. Montecito Union ESD (OAH 2009).)

16. Office of Administrative Hearings - #3Request for Due Process 2003 Addendum to IEP: District agreed to provide after-school tutoring District repeatedly settled disputes with parent by providing tutoring 2007: District discontinued tutoring; agreed parent could file for due process Did the District deny FAPE byfailing to file a due process request? (Student v. San Ramon Valley USD (OAH 2009).)

17. Yes! District violated parents’ procedural rights by failing to request a due process hearing to resolve dispute over tutoring District had an affirmative duty under IDEA to resolve disputes over necessary services by filing due process action Putting the burden on parent to file and carry burden was improper under IDEA cont. (Student v. San Ramon Valley USD (OAH 2009).)

18. CAHSEEExemption AB X4 2 Created Education Code section 60852.3 Section 60852.3 exempts eligible special education students from passing the CAHSEE as a requirement for graduation Applies to any student: (1) who has an IEP or a 504 plan; and (2) has or will satisfy all state and local requirements for graduation

19. CDE Guidance:CAHSEE Exemption CDE recently issued guidance on the new CAHSEE exemption for special education students 16 FAQs IEP or 504 Plan: must state that student: (1) is scheduled to receive a diploma on or after July 1, 2009; (2) has or will satisfy all other grad req. (CAHSEE Exemption Q&A #1 (CDE 2009).)

20. CDE Guidance:CAHSEE Exemption Despite the exemption, all students must still take the CAHSEE in 10th Grade. Districts are not required to notify parents of CAHSEE exemption Districts may NOT develop IEP or 504 plan solely to exempt student from CAHSEE requirement (CAHSEE Exemption Q&A # 2,8,12-14 (CDE 2009).)

21. CAHSEE Exemption:Retroactive? Uncertainty over whether new CAHSEE exemption covers students who were unable to pass CAHSEE in 2008 and 2009 and did not receive diploma Text of Section 60852.3 is unclear Are 2008/2009 seniorsnow eligible for a diploma?

22. Yes! • IEP Students: Students entitled to special education services until age 22 • CDE District “may be required to re-open and revise IEP.” • 504 Students: Likely same as IEP students, but federal rules are not identical • CDE “consult counsel on a case-by-case basis” (CAHSEE Exemption Q&A # 5 (CDE 2009).)

23. Practice Pointer Until CDE provides more clarification, treat 2008 and 2009 students the same as current students

24. Amendments to CAHSEE Regs. CDE recently issued amendments to state regulations governing CAHSEE Key changes in testing “variations,” “accommodations,” and “modifications” Variations: Small group settings, test questions in Manually Coded English or ASL Modifications: Use of formulas on mathematics portion

25. OSERS Guidance:Special Ed. Transportation November 2009: OSERS provided guidance regarding transportation services for students with disabilities 11 Q&As covering preschool students, travel training, discipline on bus, bus suspensions, etc.

26. OSERS: Bus Suspensions As with regular out-of-school suspensions, a bus suspension may require a manifestation determination and other discipline procedures The extent of discipline procedures will vary depending on: (1) Length of Suspension (2) Change in Placement (3) Alternative Transportation (Transportation Q&A # H-1 (OSERS 2009).)

27. OSEP Guidance: Early Childhood Transitions Guidance emphasizes smooth transition from Part C Part B Clarifies requirements for children referred for Part C services close to their birthdays

28. In the News Supreme Court will not hear L.M. v. Capistrano; 9th Circuit decision stands U.S. Dept. of Ed. issues guidance on IDEA and 504 responsibilities during an H1N1 outbreak OAH publishes new due process hearing manual New special education financing from federal and state levels CDE Handbook: RTI

29. Thank you for attending!