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Legal Update
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Overview
• Federal and State Law – Revocation of
Parent Consent, Expanding 504 Eligibility,
Alternative to CAHSEE
• Federal Court Cases – Assessment,
Procedural Violations
• California Court Cases – Insulin
Administration
• OAH – Right to Observe, Placement in an
IAES, IQ testing, Discipline
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Fagen Friedman & Fulfrost LLP
Amendments to the IDEA
• Parents may revoke consent to receipt
of SPED services:
1.Parent revokes consent in writing
2.School district provides Prior Written
Notice
3.School district discontinues services in a
“timely manner”
4.Student is a general education student
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Fagen Friedman & Fulfrost LLP
cont.
Amendments to the IDEA
• Effects?
– Student disciplined as a general ed.
student
– Student may be placed in any classroom
where general ed. students are placed
– No right to assessment, IEP, or services
– School district not liable for FAPE
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Fagen Friedman & Fulfrost LLP
Amendments to the IDEA
• Prior Written Notice
–
–
–
–
Date when services will end
List of services that will no longer be provided
Where the student will be placed
Student will be treated as a general ed. student in
all respects
– General ed. modification/opportunities
– See Appendix
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Fagen Friedman & Fulfrost LLP
Amendments to the IDEA
After revocation…
– Consider convening team to discuss
transition, develop general education
accommodations
– Consider meeting with parent
– Still must implement child find
• Notification yearly generally, every six months
for more severely handicapped students
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Fagen Friedman & Fulfrost LLP
Questions About Parent
Revocation of Consent
• When, exactly, to send the prior written
notice?
• When, exactly, to discontinue services?
• Should you offer Section 504 services?
• What about divorced parents; one
revokes, one doesn’t?
• And a lot more--___________________________________________________________________________________________
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Fagen Friedman & Fulfrost LLP
Practice Pointer
School districts should make sure to
amend their Notice of Procedural
Safeguards to address parents’ right to
revoke consent
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Fagen Friedman & Fulfrost LLP
Amendments to the ADA
• Definition of an “individual with a disability”
under Section 504 conforms to the ADA
• Broadens meaning of “substantially limits”
• Expanded definition of “regarded as”
– School districts: reasonable accommodations only
to individuals who actually are disabled
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Fagen Friedman & Fulfrost LLP
AB 2040
• Adds sections 60852.1 and 60852.2 to the
Education Code
• October 1, 2010 – State Board of Education
must adopt regulations that provide
alternative means for students with
disabilities to show mastery of the skills and
knowledge required to pass the CAHSEE
• January 1, 2011 – Students may participate in
the alternative means defined in 60852.1
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Fagen Friedman & Fulfrost LLP
Ninth Circuit – #1
• Parent informs district that student might
have autism
• District refers parent to child development
center for a free assessment
Has the district fulfilled its obligation to assess?
(N.B. and C.B. v. Hellgate Elementary School District, 9th Cir. 2008)
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Fagen Friedman & Fulfrost LLP
cont.
No!
• Referral does not ensure that the
student will be assessed
• Procedural violation  Denial of FAPE
– District needed the assessment information
to determine the student’s needs
(N.B. and C.B. v. Hellgate Elementary School District, 9th Cir. 2008)
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Fagen Friedman & Fulfrost LLP
cont.
Another important note…
9th Circuit distinguished between Rowley
standard of “some educational benefit” and
the heightened standard of “meaningful
benefit” from the IDEA 1997 amendments
New standard?
Even if yes, is it very different?
(N.B. and C.B. v. Hellgate Elementary School District, 9th Cir. 2008)
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Fagen Friedman & Fulfrost LLP
Ninth Circuit – #2
• School district observed student in
private placement for three hours
• District only allowed student’s private
assessor to observe district placement
for 20 minute increments
Automatic denial of FAPE?
(L.M. v. Capistrano Unified School District, 9th Cir. 2008)
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Fagen Friedman & Fulfrost LLP
cont.
No!
Procedural violation must result in
substantive harm
– Rejected “structural defect” analysis
– Assessor able to form opinion in
20 minutes
– No substantive harm
(L.M. v. Capistrano Unified School District, 9th Cir. 2008)
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Fagen Friedman & Fulfrost LLP
Tenth Circuit
• District provided parent with draft IEPs
• Parent rejects all drafts and refuse to
continue with IEP process
• Student’s IEP was never finalized
Denial of FAPE?
(Sytsema v. Academy School District, 10th Cir. 2008)
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Fagen Friedman & Fulfrost LLP
cont.
Not necessarily…
Procedural violation? YES – but not a
denial of FAPE
– Parent unilaterally terminated the process
before the district finalized its offer
– Parent’s actions denied them the
opportunity to participate, not district’s
actions
(Sytsema v. Academy School District, 10th Cir. 2008)
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Fagen Friedman & Fulfrost LLP
Practice Pointer
Document, document, document!
– School districts should make sure to keep
records of all attempts to work with parent
to develop IEP
– Show that parent terminated process, not
the district
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Fagen Friedman & Fulfrost LLP
California Federal District Court – #1
• Parent and district entered into settlement
agreement which:
– Waived claims through the 2004-05 school year
– Required IEP meeting by May 30, 2005
• School district held IEP meeting in Sept. 2005
Did the district violate the settlement agreement?
(Petersen v. SEHO, California Federal District Court, 2008)
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Fagen Friedman & Fulfrost LLP
cont.
Yes… but it does not matter!
Even if the school district violated the
settlement agreement, the waiver
prevented the parent from challenging
the violation
(Petersen v. SEHO, California Federal District Court, 2008)
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Fagen Friedman & Fulfrost LLP
California Federal District Court – #2
District Court affirmed OAH decision – if
Parent wanted SPED services for their
child, they MUST allow the school
district to assess
(T.B. v. San Ramon Valley Unified School District,
California Federal District Court, 2008)
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Fagen Friedman & Fulfrost LLP
California Superior Court
Unlicensed personnel may NOT
administer insulin to students
(American Nurses Assoc. v. Jack O’Connell,
California Superior Court, 2008)
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Fagen Friedman & Fulfrost LLP
Office of Administrative Hearings #1
• Parent informed district they were placing
Student in a private school and seeking
reimbursement
• District wanted to observe student in
placement, but parent would not allow an
observation
May the district observe?
(Student v. Poway Unified School District, OAH 2008)
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Fagen Friedman & Fulfrost LLP
cont.
Yes!
School district is entitled to observe if:
– Parent places student in private
school and requests reimbursement
from the district
(Student v. Poway Unified School District, OAH 2008)
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Fagen Friedman & Fulfrost LLP
Office of Administrative Hearings #2
• Student had a history of aggressive behavior
• School district wanted to place student in an
IAES ordered by the hearing officer
• Parent did not believe the IAES was
appropriate
What is the standard for determining
whether an IAES is appropriate?
(Fort Bragg Unified School District v. Student, OAH 2008)
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Fagen Friedman & Fulfrost LLP
cont.
IAES Standard
• Allows student to receive educational
services necessary to:
– Participate in the general curriculum
– Make progress towards IEP goals
• Allows student to receive behavioral
services and supports
(Fort Bragg Unified School District v. Student, OAH 2008)
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Fagen Friedman & Fulfrost LLP
Office of Administrative Hearings #3
• Parent of an African American student
obtained a private assessment that
included an IQ test
Is the district required to consider the
assessment in determining the
student’s needs?
(Student v. New Haven Unified School District, OAH 2007)
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Fagen Friedman & Fulfrost LLP
cont.
Yes!
School districts MUST consider results of
parentally obtained private assessments
even if the student is African American
and the assessment includes an IQ test
– District could have redacted to eliminate
reference to IQ test
(Student v. New Haven Unified School District, OAH 2007)
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Fagen Friedman & Fulfrost LLP
Office of Administrative Hearings #4
• Student with ADHD and auditory
processing disorder threatened coaches
• School determined student’s conduct
was NOT a manifestation of his
disability
Was this determination correct?
(Student v. Elk Grove Unified School District, OAH 2009)
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Fagen Friedman & Fulfrost LLP
cont.
Yes, in this situation
• Student’s actions showed planning –
not impulsive behavior stemming from
ADHD
• Student demonstrated an understanding
of the situation – auditory processing
disorder didn’t lead to conduct
• Student could be removed from the
school
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Fagen Friedman & Fulfrost LLP
Thank you!