Monthly Archives:' October 2015

Interdistrict Transfer Transportation Policy Did Not Alleviate District’s Transportation Obligations to a Student with Disabilities

mike photoAuthor: Michael Tucker, Attorney at Law 

Summary:

On March 30, 2015, an administrative law judge (ALJ) ruled that a school district was still required to provide transportation to a student with autism despite board policy denying transportation to non-resident students.  The student did not live in the district, but attended pursuant to an interdistrict transfer agreement between the student’s district of residence and the district in which the student’s mother worked.  Torrance Unified School District, (2015) 115 LRP 15204.

Facts:

Student is a sixth grader with autism who attended Torrance Unified School District (TUSD) subject to a valid interdistrict transfer permit with Student’s district of residence.  Student’s mother (Parent) worked within TUSD boundaries and provided Student with transportation while Student attended a TUSD elementary school.  TUSD recommended placement at a special day class approximately 3 miles from Parent’s workplace.  Parent refused placement unless transportation was provided.  TUSD filed for a due process hearing to implement the recommended placement without Parent’s consent.

TUSD claimed that the district was under no obligation to transport Student because Student was not a district resident.  TUSD argued that transportation was not required for non-resident students attending a TUSD school on an interdistrict transfer permit.

Issue:

Is an LEA required to transport a non-resident special education student attending an LEA school on an interdistrict transfer permit?

Holding:

Yes, despite a policy suggesting the contrary the LEA is required to provide transportation if necessary to ensure FAPE.

Discussion:

TUSD argued that because Student was a non-resident attending a district school on an interdistrict transfer permit, pursuant to district policy TUSD was not required to provide transportation.  TUSD did not conduct any “factual analysis” or other assessment to determine if transportation was necessary.  TUSD further argued that the middle school closest to Parent’s employment was inappropriate, instead recommending a special day class approximately 3 miles away.

The ALJ found that TUSD’s district policy or administrative regulation did not “insulate the District from the obligation to provide Student transportation as a related service.”  The ALJ was not persuaded by cases relied on by TUSD holding that a district is not required to provide transportation for students with special needs seeking interdistrict transfers.  The ALJ noted that in this case, it was TUSD who determined that appropriate placement was further from Parent’s workplace, not parental choice to attend a different school.

Practice Pointer:

This case highlights the difficulty that can arise when attempting to reconcile conflicting board policy or administrative regulations with IDEA requirements.  As the ALJ noted, “any state or local law that exempts certain categories of students with disabilities from eligibility for transportation is illegal and violates the fundamental premise of the IDEA.”  As such, special care should be taken when denying a student with special needs a potentially related service based on a board policy or administrative regulation.

 

Local Education Agency Committed a Procedural Violation by Disregarding an Adult Student’s Assignment of Educational Rights to Her Parents

GirardEdwards_image03

Author: Heather Edwards, Attorney at Law 

In Student v. Santa Clara Unified School District (OAH Case No. 2015030117), the Office of Administrative Hearings determined, among other things, that an adult student had validly assigned her educational decision-making authority to her parents. Although the school district committed procedural errors in disregarding the assignment, those errors did not result in a substantive denial of FAPE to Student.

FACTS:   Student was 19-years old and eligible for special education and related services under the category of autism. Student lived with her parents. The District did not honor Student’s assignment of her educational decision-making authority to her parents and instead addressed its offers of educational programming directly to Student and required the Student to consent to proposed IEPs, rather than her parents.  While OAH held that the District committed a procedural error by disregarding Student’s assignment of rights to her parents, it did not result in a substantive denial of FAPE in that the parents still attended the IEP meetings and their input was considered by the team.

DISCUSSION:  When a student with exceptional needs reaches the age of 18, the parent rights provided for in special education law transfer to the student. (Ed. Code § 56041.5.)  There are legal procedures, such as conservatorship, which result in an individual having the authority to make decisions for another adult.   However, not all adult-students may be impaired to the extent that they would legally qualify to be conserved.

While the Education Code does not specify how educational rights may be transferred from an adult student to another individual, special education hearing decisions have repeatedly upheld the right of the adult student to transfer their decision-making authority to a “parent.”  (See e.g. Student v. Fremont Union High School District (2009) Order on Motion For Stay-Put, OAH Case No,  2009080222, 4.)   These decisions recognize the assignment as valid if:

  • There is a clearly written designation of rights; and
  • The transfer is to someone who meets the definition of “parent” under Education Code, section 56028.  (See e.g. Student v. San Diego Unified School District (2013) Order on Motion to Dismiss, OAH case No,  2013030710, [Student could not transfer her parent rights to her attorney because attorney did not meet the legal definition of  “parent.”]

See also the federal regulation recognizing this situation in 34 CFR 300.520 providing that a State must establish procedures for appointing the parent of a child with a disability, or, if the parent is not available, another appropriate individual, to represent the educational interests of the child throughout the period of the child’s eligibility under IDEA if, under State law, a child who has reached the age of majority, but has not been determined to be incompetent, can be determined not to have the ability to provide informed consent with respect to the child’s educational program.

 

FEDS URGE STATE EDUCATION AGENCIES TO STEP UP SPECIAL EDUCATION OVERSIGHT OF CHARTER SCHOOLS

david photoAuthor: David Girard, Attorney at Law 

In a recent U.S. Department of Education’s (Department), Office of Inspector General (OIG) report to Congress, OIG identified certain conflicts of interest between charter schools and their for profit and non-profit management organizations.  As a result, last week on September 28, 2015, the Department issued a “Dear Colleague Letter” to state education agencies (SEAs).  The letter urged SEAs to:

        1. Step up accountability monitoring of charter schools.

        2. Step up accountability monitoring of charter school authorizers.

        3. Ensure that appropriate charter school and internal authorizer fiscal                                      controls involving the use of IDEA funding are in place.

        4. Ensure that IDEA funds are used for an intended and appropriate purpose.

To help insure oversight of charters, the Department recommended that charter school oversight include:

        1. Regular independent auditing of charter schools.

        2. Filing all independent audits with the charter authorizer and the SEA.

        3. Review charter school governing boards for:

                   a. Conflicts of interest.

                   b. Related party transactions.

                   c. Appropriate segregation of duties.

        4. Increasing transparency.

        5. Taking appropriate corrective actions.

        6. Eliminating poor management practices.