SES Spring 2010
Legal Update
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
Ninth Circuit #1
J.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).)
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).)
Ninth Circuit #2
Weissburg 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 prevailing party?
(Weissburg v. Lancaster SD (9th Cir. 2010).)
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).)
cont.
Impact of Weissburg
Eligibility 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).)
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).)
cont.
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
(Ashland SD v. E.H. (9th Cir. 2009).)
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).)
cont.
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”
(B.M. v. Carlsbad USD (S.D. Cal. 2009).)
Office of Administrative Hearings - #1
Residency 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).)
cont.
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
(Student v. Los Angeles USD (OAH 2009).)
Office of Administrative Hearings - #2
Predetermination
• 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).)
cont.
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
(Student v. Montecito Union ESD (OAH 2009).)
Office of Administrative Hearings - #3
Request 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 by
failing to file a due process request?
(Student v. San Ramon Valley USD (OAH 2009).)
cont.
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
(Student v. San Ramon Valley USD (OAH 2009).)
CAHSEE Exemption
• 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
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).)
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).)
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 seniors
now eligible for a diploma?
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).)
Practice Pointer
Until CDE provides more clarification, treat
2008 and 2009 students the same as
current students
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
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.
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).)
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
< 45 days
before birthday
Lead agency may conduct initial
evaluation or hold IFSP meeting
> than 45 days
before birthday
Lead agency MUST conduct an
initial evaluation and hold IFSP
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
Thank you for attending!