Monthly Archives:' January 2016

OAH Decision: Failure to Inform Parents of Their Procedural Safeguards Extends the Time Period in Which Parents May File a Due Process Complaint

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Author: Heather Edwards, Attorney at Law 

In Aveson Charter Schools, et al. (OAH No. 2015021006), the California Office of Administrative Hearings held, among other things, that an exception to the two-year statute of limitations applied to claims against the school due to its failure to provide the student’s parents with a copy of their Parent’s Rights and Procedural Safeguards.

Parents filed their due process complaint on February 19, 2015 alleging that the school had denied their child a free appropriate public education between September 2011 and December 2014. The school argued that the two-year statute of limitations should bar all of the claims arising prior to February 19, 2013.

A request for a due process hearing “shall be filed within two years from the date the party initiating the request knew or had reason to know of the facts underlying the basis for the request.” (Ed. Code § 56505(l)) The two-year limitations period does not apply to a parent if the parent was prevented from requesting the due process hearing due to either: 1) specific misrepresentations by the local educational agency that it had solved the problem forming the basis of the due process hearing request; or 2) the withholding of information by the local educational agency from the parent that was required to be provided to the parent under special education law. (Ibid.; 20 U.S.C. § 1415(f)(3)(C)(D).) Invoking the exceptions to the statute of limitations requires a showing that the local educational agency’s misrepresentation or withholding of information caused the failure to file the due process complaint on time. Thus, where the evidence shows that the parents were fully aware of their procedural options, they cannot excuse a late filing by pointing to the school’s failure to formally notify them of those options. (D.K v. Abington School Dist. (3rd Cir. 2012) 696 F.3d 233, 246-247.)

The IDEA requires that local educational agencies establish and maintain procedures to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of FAPE by such agencies. (20 U.S.C. § 1415(a).) A copy of the notice of a parent’s or guardian’s rights shall be attached to an assessment plan. A written explanation of all the procedural safeguards under the IDEA shall be included in the notice of a parent’s or guardian’s rights. (Ed. Code § 56321(a).) A copy of the procedural safeguards must be given by a local educational agency to a particular parent of a child with a disability a minimum of once a year, except that a copy shall be given to the parents: 1) upon initial referral for assessment or parent request for assessment; 2) upon filing a request for a due process hearing; 3) in accordance with certain discipline procedures; or 4) upon parent request. (20 U.S.C. § 1415(d)(1)(A); 34 C.F.R. § 300.504(a); Ed. Code § 56301(d)(2). In addition, Education Code section 56500.1, subdivision (b) requires that parents be informed about procedural safeguards at an IEP team meeting.

Here, the school failed to provide Parents with a copy of their parental rights and procedural safeguards upon Parents’ initial request for assessment in fall 2011 and at Student’s initial IEP team meeting on March 22, 2012. The first time Parents received a copy of their procedural rights from any of the Respondents was in December 2014. While the school claimed it was their practice to provide a copy of parental rights and procedural safeguards during IEP team meetings, none of their witnesses could specifically recall that a copy was, in fact, provided to Parents at the March 2012 IEP team meeting. Furthermore, none of the school’s witnesses persuasively explained why Parents were not specifically asked during the IEP team meeting to initial the space on the IEP acknowledging receipt of the procedural rights if such document had, in fact, been provided to Parents at that meeting.

The hearing officer also concluded that the failure to provide Parents with their procedural rights and safeguards prevented Parents from timely filing the request for due process hearing. Parents were unaware of their procedural options until June 2014 when they consulted with counsel. Parents had never before been through the IEP process, were unfamiliar with the IEP procedure and were unaware that any recourse was available to them to challenge the eligibility determination or the school’s assessment until June 2014. Although Mother had a 20-minute one-time free telephone consultation with an advocate in August 2011, the advocate did not discuss with Mother her procedural rights and safeguards other than to tell Mother about her right to an initial IEP and that the school had to respond to her request within a certain period of time. As a result, the hearing officer found the Parents’ claim to be timely.

Practice Tips:  Statutes of limitations are intended to encourage the resolution of legal claims within a reasonable amount of time. However, when local educational agencies fail to provide parents a notice of procedural safeguards, or fail to properly document providing parents the notice, it significantly increases exposure to liability for special education claims. It is critical that educational agencies have processes in place to show that staff members actually provided parents notice of their procedural safeguards, including:

  • Train staff on the importance of this requirement;
  • Ask parents to sign/initial a form during the IEP meeting indicating they received a copy;
  • Note receipt of the notice in IEP meeting notes; and
  • Post a copy of parents’ procedural safeguards on local educational agencies’ website.

U.S. Court of Appeals: Reporting Child Abuse Can Trigger Retaliation Lawsuit

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Author: David Girard, Attorney at Law 

FACTS: A school district’s Director of Pupil Services filed a child abuse report against the father of a cognitively disabled, teenage girl.  The father claimed the report was filed by the Director in retaliation for his advocacy of a change in his daughter’s IEP.  The father then sued the Director, personally, claiming damages because such retaliation violated his first amendment rights.  The Director claimed qualified immunity as a government official claiming that her report of child abuse did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. (Wenk v. O’Reilly, 783 F. 3d. 585 (6th Circuit Court of Appeals, April 15, 2015), cert. denied (U.S. Supreme Court, January 11, 2016).)

ISSUE: Is a school administrator entitled to immunity from lawsuits arising out of the action of the administrator in filing a child abuse report?

HOLDING: The Sixth Circuit Court of Appeals held that the Director could be sued and was not entitled to qualified immunity.  The Court based its holding on the fact that the Director hadn’t demonstrated that no reasonable juror could fail to find that she (Director) would have filed the child abuse report absent the father’s free speech rights.

A report of child abuse – even if not materially false – is actionable if the reporter actually made the report “at least in part” for retaliatory motives.

DISCUSSION: Here, the Director argued that a reasonable governmental official would not recognize that by following a mandatory obligation to report child abuse she is violating federal law.  Nevertheless, citing a 2000, 9th Circuit case, (Wallis v. Spencer, 202 F. 3d, 1126), the Court pointed out that a parent’s right to be free from retaliation for exercising his First Amendment rights has been clearly established.  As such, the Director could not claim qualified immunity.  Moreover, the Court pointed out that state laws cannot provide immunity from suit for federal civil right violations.

PRACTICE TIP: Prior to filing a suspected child abuse report:

  1. Reasonably ascertain that the facts upon which you are relying are true, reliable, relevant and accurate.
  1. Do not embellish upon any facts.
  1. Report promptly when there is a duty to report.
  1. Avoid taking any reporting action which can reasonably be found to arise out of your animosity toward a parent.

Beat the Stress of a Due Process Filing with these 5 Tips!

mike photoAuthor: Michael Tucker, Attorney at Law

Receiving a Due Process complaint can be a stressful and confusing event.  However, several steps can be initially taken to reduce stress and even save some legal fees.  Below are our top 5 tips to follow after receiving a Due Process complaint.

1. Know the Facts.

Knowing the facts surrounding each case can help calm the nerves of uncertainty.  Moreover, it is essential to have a complete understanding of a case’s facts in order to determine and evaluate resolution options.  Perhaps the case involves facts that would not allow the local educational agency to present a strong case at a hearing.  On the other hand, the case’s facts may reveal that the local educational agency satisfied all legal obligations.  Either way, initially gathering key facts upon receipt of a Due Process filing is essential to appropriate decision making.

2. Prepare and Organize the File.

Frequently, administrators, teachers and other specialists, will have access to a student’s records (e.g., IEPs, assessment reports, progress reports, report cards, disciplinary records, service logs, correspondence).  This can create challenges as important documents may not be collected in one location.  Gathering and organizing all that information will save time as the case advances.  Additionally, gathering all documents can help the local educational agency assess viable resolution options.  Ensuring that all the relevant documents are gathered and organized can help save time and frustration when responding to a Due Process filing.

3. Identify Witnesses.

Knowing who the key witnesses will be and identifying them early will save time and stress as the hearing approaches.  Administrators, teachers, and other specialists with important information may no longer be employed by the local educational agency.  It can often be difficult to contact a key witness if the former employee has changed jobs and/or moved.  Identifying and locating witnesses will save valuable time should the case advance to a hearing.

4. Know the Timelines.

Typically, a Due Process complaint response is due 10 calendar days after receipt. In addition, the local educational agency is required to convene a resolution session with the parents and the relevant members of the IEP team to discuss the facts of the complaint within 15 calendar days after receipt, unless the parties agree to waive it.  The fact that notice of a Due Process Complaint arrives just before or during any school break does not affect these timelines. Therefore, it is important that information is gathered and witnesses identified in a timely manner.  Having this information readily available can ensure an appropriate response is filed and the resolution session is productive.

5. Evaluate Options.

After carefully reviewing the complaint, the key issues and potential response options should be evaluated.  If the complaint is over a narrow and easily remedied issue, perhaps a resolution can be reached quickly.  On the other hand, perhaps the best option it to gather information and contact legal counsel.  Litigation requires constant reevaluation as facts are discovered and options are explored.  Understanding the local educational agency’s options at the initial filing can help to dictate an appropriate response.

 

PERB Releases Yearly Report, Unfair Practice Charge Filings Decrease

mike photoAuthor: Michael Tucker, Attorney at Law 

The California Public Employment Relations Board (PERB) released its annual report detailing its activity for 2014-2015.  This report is useful to help public employers gauge their activities relative to other public employers.

 

Results:

Unfair Practice Charges Filed: 695
Cases Closed by Administrative Law Judges: 163
PERB Board Decisions: 74
Unfair Practice Charges Withdrawn/Settled: 466
EERA/HEERA Mediation Requests: 120
Fact Finding Requests: 57

 

Based on the above statistics, a vast majority of PERB filings are settled before reaching a hearing decision.  Moreover, most cases are withdrawn or settled before even making it to a hearing.  These statistics confirm most employee disputes are resolved either through PERB directed mediation or discussions between the parties prior to litigation.

As with most types of litigation, employee disputes are frequently resolved prior to a hearing.  However, a PERB case filing often creates increased employer legal costs.   Typically, the longer any dispute lasts, the more expensive the case can become.  For example, Burbank Unified School District is looking at a potential $5.5 million dollar price tag for a sexual harassment suit in which the district is seeking appeal.  (Matthew Heller, “Think Twice Before Suing This School District” California Lawyer, Oct. 2015).  Fortunately, as these statistics indicate, most employee disputes are resolved prior to formal dispute resolution.  It is often in the parties’ best interests to settle a dispute prior to a PERB hearing because it avoids additional costs and the uncertainty of a PERB ruling.  It can also help the parties move past the dispute more quickly since they must continue to work together on other matters.