Furlough at the State Attorney Office by olg16391

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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
2
    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
3
    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)




4
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

 5
        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

6
        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)

7
          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
8
                    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




9
     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



10
          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




11
     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


12
      CDE/Compliance Policy

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




13
 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 9 th 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
14
               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).)
15
          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).)
16
               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).)
17
           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).)
18
               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).)
19
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).)
  20
              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” 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).)
21
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).)
  22
               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 “peer-
  reviewed research?”

                      No!
                         (Joshua A. v. Rocklin (9th Cir., Mar. 19, 2009).)
23
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).)
  24
               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.].
25
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.].
  26
     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.].
27
               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].
28
     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].
29
     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).)
30
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).)
  31
     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).)
32
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).)
  33
     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).)
34
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).)
  35
     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).)
36
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).)
  37
                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

38
     Thank You!




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