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Legal Update

Legal Update. Overview. Federal & State Law – Parental Revocation of Consent, CAHSEE, CDE Oversight Federal Court Cases – Private School Reimbursement, Peer-reviewed Methodologies, Stay Put, Attorney Fees, IEP Team OAH - Charter Schools, Placement, Sexual Harassment, LRE, Legal Guardians

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Legal Update

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  1. Legal Update

  2. Overview • Federal & State Law – Parental Revocation of Consent, CAHSEE, CDE Oversight • Federal Court Cases – Private School Reimbursement, Peer-reviewed Methodologies, Stay Put, Attorney Fees, IEP Team • OAH - Charter Schools, Placement, Sexual Harassment, LRE, Legal Guardians • In the News – Furlough Days

  3. New Federal Guidance on IDEA Regs • From U.S. Department of Education • Office of Special Education Programs (OSEP) and Office of Special Education and Rehabilitative Services (OSERS) • Guidance on recent changes to IDEA federal regulations, with particular focus on revocation of parental consent • Informal guidance does not change the law or regulations – only interprets them

  4. OSEP Guidance on Partial Consent • If a parent revokes consent to all special ed. and related services, LEA may not challenge the revocation via due process • If a parent subsequently requests an evaluation and/or services, LEA should treat this request like an initial evaluation (not a reevaluation)

  5. OSEP: When a Parent Revokes All Consent If parent revokes all consent, • Discipline: LEA may discipline student as a general education student, without IDEA protection • Accommodations: General education accommodations may be provided, but student is no longer entitled to accommodations in prior IEP

  6. Partial Consent: CA law • In California, if a parent revokes consent to some special education services – but not all – is the district legally obligated to file a due process complaint? YES! • Education Code section 56346: Must file due process complaint if LEA believes student requires the service(s) to receive a FAPE

  7. New OSERS Q&A Publications In June 2009, OSERS issued new Q&A publications updated to reflect changes in IDEA regulations on various topics: • Secondary Transition • Procedural Safeguards • Monitoring, Technical Assistance and Enforcement • Disproportionality • Discipline Procedures (See www.ed.gov/policy/specialed)

  8. Assembly Bill ABX4 2Budget Bill • Exempts students with disabilities from the CAHSEE requirement to receive a high school diploma • Exemption continues until the State Board of Education develops alternative means for students to show they meet the same level of achievement as student’s passing the CAHSEE

  9. AB 2040 • Pursuant to AB 2040, the State Board of Education has until October 1, 2010 to adopt the alternative means or determine not feasible • Eligible students are to begin participating in these alternative means by January 1, 2011

  10. Issues Re: CAHSEE Exemptions • Students must still take the CAHSEE (for NCLB). The exemption only exempts students from having to pass the CAHSEE (for a diploma) • ABX4 2 essentially eliminates any need for CAHSEE waivers pursuant to Education Code section 60851, although section 60851 has not been repealed

  11. Unanswered QuestionsCAHSEE Exemptions • Education Code section 60852.3 does not address how it applies to students who were previously unable to graduate because they did not pass the CAHSEE • How this will be handled still needs to be determined

  12. CDE Due Process Regulations • The CDE has issued new regulations regarding special education mediations and due process hearing procedures • New regulations were effective as of June 9, 2009 • Examples of new requirements include maintaining a manual, filing quarterly reports, forming an advisory committee and creating new forms

  13. CDE/Compliance Policy CDE passed memorandum May 5, 2009 regarding intent to monitor OAH decisions – and LEAs’ compliance with them

  14. US Supreme Court: Reimbursement Forest Grove v. T.A. • Student attended general ed. in public school from K-11th grade • Student evaluated for special ed. in 9th grade; found not eligible; parents agreed • During 12th grade, private evaluation diagnosed student with ADHD and learning disabilities • Parents unilaterally placed in private school and sought reimbursement

  15. U.S. Supreme CourtIDEA says: A court or hearing officer may order private school reimbursement to “the parents of a child with a disability, who previously received special education and related services under the authority of a public agency … if the court or hearing officer finds that the agency had not made a [FAPE] available to the child[.]” (IDEA, 20 U.S.C. sec. 1412(a)(10)(c)(ii) (emphasis added).)(Forest Grove v. T.A. (U.S. Supreme Court 2009).)

  16. U.S. Supreme Court District argued student was not entitled to reimbursement because he had never received special education in public school setting Was the district right? (Forest Grove v. T.A. (U.S. Supreme Court 2009).)

  17. U.S. Supreme Court Ruling: • IDEA only bars private school reimbursement where district: • Has correctly evaluated and identified the student’s disability; and • Has proposed an appropriate IEP • In Forest Grove, the district had evaluated, but not appropriately identified the student’s disability nor developed an IEP (Forest Grove v. T.A. (U.S. Supreme Court 2009).)

  18. U.S. Supreme CourtBut Private School Must Be “Appropriate” • Parents are only entitled to reimbursement if they show: • District denied student a FAPE; and • Private school placement is appropriate • Even then, courts and hearing officers may reduce or limit award based on equitable factors (Forest Grove v. T.A. (U.S. Supreme Court 2009).)

  19. Ninth Circuit #1J.L. v. Mercer Island SD • Rowley standard lives! • To offer a FAPE, district’s offer must offer a “basic floor of opportunity” that is “reasonably calculated” to provide the student with “educational benefit” (J.L. v. Mercer Island School Dist. (9th Cir. 2009).)

  20. 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 to require that districts guarantee some level of “outcome” (J.L. v. Mercer Island School Dist. (9th Cir. 2009).)

  21. Ninth Circuit #2Joshua A. v. Rocklin • A student’s IEP called for in-home ABA program. District recommended cessation of in-home program, recommended an “eclectic” school- based autism program, and filed a due process complaint when parent refused to consent • District prevailed before OAH and in the student’s appeal to federal district court (Joshua A. v. Rocklin (9th Cir., Mar. 19, 2009).)

  22. cont. Stay Put In Ninth Circuit? • After it won both the OAH and federal court appeal, was the district required to continue funding student’s in-home ABA program as stay put, pending the student’s appeal to the Ninth Circuit? Yes! (Joshua A. v. Rocklin (9th Cir., Mar. 19, 2009).)

  23. Ninth Circuit #3Eclectic Autism Program Not FAPE? • Parent requested ABA-only based autism program • Did the district’s offer of an “eclectic” program deny FAPE because it is not supported by “peer-reviewed research?” No! (Joshua A. v. Rocklin (9th Cir., Mar. 19, 2009).)

  24. cont. “Eclectic” Autism Programs • The eclectic approach was not peer-reviewed at the time, but was based on peer-reviewed research “to the extent practicable” • Mostimportantly: The IEP offered student a FAPE because it was uniquely tailored to student’s unique needs and offered a basic floor of opportunity (Joshua A. v. Rocklin (9th Cir., Mar. 19, 2009).)

  25. Ninth Circuit #4M.D. v. Saddleback Valley USD • District sent family a “10-day offer” letter prior to hearing, which student accepted. The offer letter did not mention attorney fees • Student asked OAH to “enter judgment,” but it refused and simply dismissed the case (M.D. v. Saddleback Valley USD, (9th Cir. May 12, 2009).) [nonpub.opn.].

  26. cont. Attorneys fee for settlement? • Student filed in federal court for attorney fees and argued that OAH should have issued a “decision by settlement” – a procedure authorized, but not required, by California regulations • Student argued that a “decision by settlement” would entitle him to attorney fees for accepting the settlement (M.D. v. Saddleback Valley USD, (9th Cir. May 12, 2009).) [nonpub.opn.].

  27. Attorney fees for settlement? Does OAH have to issue a “decision by settlement” upon request of student, if student accepts an offer of settlement prior to hearing? No! (M.D. v. Saddleback Valley USD, (9th Cir. May 12, 2009).) [nonpub.opn.].

  28. Ninth Circuit #5A.G. v. Placentia Yorba Linda USD • Student parentally placed in private school, but served by district teachers in the past • District held annual IEP and invited private school teachers, who did not attend IEP • District APE teacher who had previously taught student was present at IEP and had recently assessed him (A.G. v. Placentia Yorba Linda USD, (9th Cir. Mar. 20, 2009).) [nonpub.opn].

  29. Must Current Teachers Attend IEP? No! • The IDEA requires that an IEP team must include at least one special education teacher or provider “of the student” – that is, one who has “actually taught” the student • In this case, the APE teacher fulfilled this requirement (A.G. v. Placentia Yorba Linda USD, (9th Cir. Mar. 20, 2009).) [nonpub.opn].

  30. Office of Administrative Hearings - #1Charter School • Student enrolled in a public charter school with an independent study format • Ed. Code Section 51747(c) requires charter schools with independent study programs to obtain signed parental agreement • Parent refused to sign agreement May the charter school unenroll the student? (Student v. Camptonville Academy (OAH 2009).)

  31. cont. No! • A charter school and a chartering district’s duty to provide a FAPE is not negated by a parent’s refusal to sign • Unilaterally unenrolling the student deprived parents of their right to participate • Caused a deprivation of educational benefits (Student v. Camptonville Academy (OAH 2009).)

  32. Office of Administrative Hearings - #2Interim Placement • Student reentered the district after private school where he was enrolled in the sixth grade • Parent asked for sixth grade (grade appropriate), not eighth grade (age appropriate) • Mother felt student was at a sixth grade level • District refused and offered to place student in an eighth grade interim placement Was student denied a FAPE? (Student v. Brea Orlinda Unified School District (OAH 2008).)

  33. cont. Yes! • For purposes of an interim placement offer, the district should have placed the student in the sixth grade (Student v. Brea Orlinda Unified School District (OAH 2008).)

  34. Office of Administrative Hearings - #3 Denial of FAPE based on Harassment • Mother alleged student was kissed and touched inappropriately by another student • Mother further asserted district failed to respond following the incident • School’s response had been to monitor interaction between students, and to report the incident to the SELPA office, which launched an investigation Was student denied a FAPE? (Student v. Baldwin Park (OAH 2008).)

  35. cont. No! • To prove a denial of FAPE student must show that the district was deliberately indifferent and that the abuse was so severe that the student could not derive any benefit from the services offered • Student failed to meet this burden (Student vs. Baldwin Park Unified School Dist. (OAH 2008).)

  36. Office of Administrative Hearings Case Example #4 • Student was not making grade-level progress but was advancing socially and pursuant to her own academic abilities in a general education high school • District offered placement in a mild/moderate SDC at another high school Did district offer FAPE in the least restrictive environment? (Fresno Unified School District v. Student (OAH 2009).)

  37. cont. No! • Student’s current placement was appropriate and offered the least restrictive environment • Although student was not performing at grade level, she was participating in activities and making friends, she was making progress towards her IEP goals and her confidence was improving (Fresno Unified School District v. Student (OAH 2009).)

  38. In the News • Pursuant to the Executive Order S-13-09 from the Governor, all state offices must take furlough days, including the OAH Special Education Division • OAH Special Education Division Offices will be closed on the first three Fridays of each month until June 2010 • Documents received on furlough days will be processed as if they were received on the furlough day

  39. Thank You!

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