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Legal Update

Cases, Guidance, Legislation, and Other

Developments

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Legal Update Overview

New Cases on Hot Topics (Residential Placement, Assistive Technology, Aversives, Predetermination, Frivolous Actions)

Latest Federal Guidance

Recent Developments in California

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New Cases – Residential Placement:Jefferson County School Dist. v. Elizabeth E. (10th Cir. 2012) What Happened:

Parents placed Student with emotional disturbance in Idaho residential facility

Student received psychiatric care along with classroom instruction

Parents sought reimbursement

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New Cases – Residential Placement What Happened:

Court affirmed reimbursement awardCrucial issue is whether placement at

facility enabled child to receive educational benefits

Refused to take sides in current split among Circuit Courts

Jefferson County School Dist. v. Elizabeth E. (10th Cir. 2012) 702 F.3d 1227, 60 IDELR 91

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New Cases – Residential Placement:Student v. Tamalpais Union High School Dist. (OAH 2012) What Happened:

Parents sought reimbursement for placement of 17-year-old Student in Utah residential facility

Placement was primarily to address Student’s drug abuse

ALJ denied reimbursement request

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New Cases – Residential Placement What Happened:

Applied Ninth Circuit standard: No reimbursement if placement is response to problems apart from learning process

Placement helped Student’s well-being, but wasn’t necessary for educational benefit

Student v. Tamalpais Union High School Dist. (OAH 2012) Case No. 2012030595, 59 IDELR 236

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New Cases – Residential Placement Why It Matters:

Controversial and frequently litigated

Ripe for Supreme Court review?Tamalpais USD is most recent application

of Ninth Circuit’s criteria

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New Cases – Assistive Technology:Student v. Los Angeles USD (OAH 2012) What Happened:

Parents requested iPad for 7-year-old Student with orthopedic impairments

District claimed Student had more success when he could manipulate objects

ALJ denied iPad request: No duty to maximize Student’s potential

Student v. Los Angeles Unified School Dist. (OAH 2012) No. 2012061201, 113 LRP 2044

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New Cases – Assistive Technology:Student v. Carlsbad USD (OAH 2012) What Happened:

Parents wanted IEP team to incorporate iPad as AAC device for Student with autism

ALJ found IEP team developed appropriate social skills goals without including iPad

Student v. Carlsbad Unified School Dist (OAH 2012) No. 2011120317, 59 IDELR 87

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New Cases – Assistive Technology:Student v. Chaffey Joint Union High School Dist. (OAH 2012) What Happened:

Parent claimed iPad would allow Student to better use unstructured time on bus

IEP team's decision not to offer an iPad was reasonable

Student did not need device to benefit from special ed

Student v. Chaffey Joint Union High School Dist (OAH 2012) No. 2012060829, 59 IDELR 267

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New Cases – Assistive Technology Why It Matters:

Due process requests for iPadshave skyrocketed

Must distinguish between student “needs” and student “wants”

If iPad offered, proper training and monitoring is essential

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New Case – Aversives:Bryant v. New York State Education Dept. (2d Cir. 2012) What Happened:

Parents challenged New York education regulation prohibiting aversives

Claimed aversives were necessary to control children’s behavior disorders

Second Circuit upheld state ban

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New Case – Aversives

What Happened:Regulation did not prevent individualized

assessments – no predetermination IDEA does not require maximization– no

substantive FAPE violation

Bryant v. New York State Education Department (2d Cir. 2012) 692 F.3d 202, 59 IDELR 151

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New Case – Aversives

Why It Matters:California has adopted

rule with similar language Court rationale may deter use of IDEA to

challenge laws banning use of aversives

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New Case – Predetermination:Z.F. v. Ripon Unified School Dist. (E.D. Cal. 2013)

What Happened:Terminated contract of agency that

provided behavioral intervention services to Student

Substituted another agencyParents claimed District predetermined it

would not offer plan to transition between agencies

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New Case – Predetermination

What Happened:Contract termination did not mean District

unwilling to consider input on need for transition

Choice of provider is within District’s discretion, so long as quality of IEP not affected

Parents had opportunity to participate in IEP process

Z.F. v. Ripon Unified School Dist. (E.D. Cal., Jan. 8, 2013, No. 2:11-CV-02741 [60 IDELR 137]

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New Case – Predetermination

Why It Matters:Case illustrates Ninth Circuit’s

rule that predetermination must be “egregious”

District appropriately did not specify agency in IEP, held meetings to discuss issues

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New Cases – Frivolous Claims:C.W. v. Capistrano School Dist. (C.D. Cal. 2012) (Note: Currently on appeal to Ninth Circuit)

What Happened:District obtained favorable rulings denying

Parent’s IEE requestParent merely alleged assessment was

“stupid”Sought $96,660 in attorney fees, claiming

Parent’s action frivolous and improper

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New Cases – Frivolous Claims What Happened:

Court agreed that Parent’s claim was frivolousSought remedy for harm she actually causedParent also attempted to “extort” District by

threatening appeal unless District funded IEE

C.W. v. Capistrano Unified School Dist. (C.D. Cal., Dec. 5, 2012, No. SACV 11-1157 [60 IDELR 67]

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New Cases – Frivolous Claims:G.M. v. Saddleback Valley School Dist. (C.D. Cal. 2012)

What Happened:Court awarded District its attorney fees

finding child find claim was frivolousParent “stonewalled” District to prevent

assessment

G.M. v. Saddleback Valley School Dist. (C.D. Cal., Nov. 26, 2012, No. SACV 11-1449

[60 IDELR 72]

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New Cases – Frivolous Claims

Why It Matters:Courts increasingly allow claims

by districts to recover fees“Forcing a [district] to spend its money

pointlessly on legal services is unfair and unjust, and ought to be discouraged”

W.V. v. Encinitas Union School Dist. (S.D. Cal. 2012) 59 IDELR 289

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Amended IDEA Regulation

Consent to Access PublicBenefits or InsuranceOnly need one-time written

consent from parentsMust provide written notification

of rights before accessing insurance for first time and annually thereafter

34 C.F.R. § 300.154

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Latest Federal Guidance

Resolution MeetingsUse video conferences

or conference phone callsif parent can’t attend in person

FBAsConsidered “evaluations” and subject to

IDEA’s notice and consent requirements

Letter to Eig (OSEP 2102) 59 IDELR 81; Letter to Anonymous (OSEP 2012) 59 IDELR 14

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Latest Federal Guidance

Transition Services If work placement offered,

must strive for integrated environment

EvaluationsNo IDEA exception permitting suspension

of initial evaluation timeline during school breaks

Letter to Spitzer-Resnick, et al. (OSEP 2012) 59 IDELR 230; Letter to Reyes (OSEP 2012) 59 IDELR 49

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Latest Federal Guidance

Common CoreObligation to provide

special education not altered by state’s adoption of common core standards

Related ServicesPolicy setting start date of related services

for all students is inconsistent with the IDEA

Letter to Anonymous (OSEP 2012) 60 IDELR 47; Letter to Ackerhalt (OSEP 2012) 60 IDELR 21

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Recent California Developments: New Legislation Cyber Bullying

Identifies specific conduct that constitutes cyber bullying by way of social networking

“Burn page” (website created for bullying) Credible impersonation of pupil False profile

Assembly Bill 1732

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Recent California Developments: New Legislation Alternative Measures for Student

Discipline Expands authority to use alternative means of

discipline before suspension or expulsionMust be age appropriate and designed to

address and correct misbehavior Includes students with disabilities

Assembly Bill 1729

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Recent California Developments: New Legislation Mandatory Discipline Provisions

More discretion to administrators to avoid expulsion when circumstances warrant

Changes/clarifications of certain definitions Unlawful possession of controlled substance

doesn’t include prescribed over-the-counter medication

No mandatory expulsion for imitation firearm

Assembly Bill 2537

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Recent California Developments: New Legislation Foster Youth

Notify foster child’s attorney and county child welfare agency representative of:

Decision to meet on extending suspension Decision to hold expulsion hearing Upcoming IEP meeting at which manifestation

determination will be made

Assembly Bill 1909

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Recent California Developments: New Legislation Foster Youth

Allows foster child to continue at school of origin through highest grade maintained at school

Foster child who remains at school of origin is deemed to have met residency requirements

Senate Bill 1568; Assembly Bill 1573

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Recent California Developments: BIP Cost Recovery Hughes Bill unfunded mandate – 20

years Commission on State Mandates allows

standardized formula for cost recovery $10.64 per ADA per year, divided

among districts, COEs, and SELPAs

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Recent California Developments: BIP Cost Recovery Final approval expected in April Claiming instruction anticipated by July 120 days to file claims Contingent on legislative funding

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Recent California Developments:2013-2014 Budget Proposals

Special Ed Finance1.65% COLA for special

education and $3.6 million to fund ADA growth

Remove IDEA dollars from the AB 602 base $426 million to SELPAs to pay for the shift

of mental health services

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Recent California Developments:2013 LAO Report on Special Ed Eligibility

686,000 students or 10 percent of enrollment

SLD most common category Student Expenditures

Average annual cost double that of general education student -- $22,300 to $9,600

LEAs covering increasing share of costs

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Recent California Developments:2013 LAO Report on Special Ed Academic Outcomes

Performance on standardized tests has improved

But majority of students still not meeting state or federal achievement expectations

60 percent graduate on time with high school diploma

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Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances .