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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
• In the News – Furlough Days
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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
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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)
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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
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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
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New OSERS Q&A Publications
In June 2009, OSERS issued new Q&A
publications updated to reflect changes in IDEA
regulations on various topics:
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Secondary Transition
Procedural Safeguards
Monitoring, Technical Assistance and Enforcement
Disproportionality
Discipline Procedures
(See www.ed.gov/policy/specialed)
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Assembly Bill ABX4 2
Budget 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
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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
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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
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Unanswered Questions
CAHSEE 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
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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
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CDE/Compliance Policy
CDE passed memorandum May 5,
2009 regarding intent to monitor OAH
decisions – and LEAs’ compliance
with them
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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
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U.S. Supreme Court
IDEA 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).)
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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).)
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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).)
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U.S. Supreme Court
But 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).)
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Ninth Circuit #1
J.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).)
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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).)
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Ninth Circuit #2
Joshua A. v. Rocklin
• A student’s IEP called for in-home ABA program.
District recommended cessation of in-home
program, recommended an “eclectic” schoolbased 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).)
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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 inhome ABA program as stay put, pending the student’s
appeal to the Ninth Circuit?
Yes!
(Joshua A. v. Rocklin (9th Cir., Mar. 19, 2009).)
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Ninth Circuit #3
Eclectic 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 “peerreviewed research?”
No!
(Joshua A. v. Rocklin (9th Cir., Mar. 19, 2009).)
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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”
• Most importantly: 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).)
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Ninth Circuit #4
M.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.].
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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.].
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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.].
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Ninth Circuit #5
A.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].
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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].
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Office of Administrative Hearings - #1
Charter 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).)
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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).)
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Office of Administrative Hearings - #2
Interim 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).)
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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).)
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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).)
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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).)
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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).)
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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).)
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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
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Thank You!
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