Monthly Archives:' June 2017

Untimely Evaluation Leads to Independent Educational Evaluation at School's Expense and Attorney's Fees

GirardEdwards_image05Author: Eric Stevens, Attorney at Law 

The Office of Administrative Hearings (“OAH”) ruled that a student was entitled to an independent educational evaluation at her school district’s expense because the district took too long to conduct its evaluation and translate the results for student and her parent.  (Riverside Unified School District, 117 LRP 21567.)  This partial success also entitled the student to an award of attorney’s fees.

Background:

Student was a preschooler who had recently transitioned from her local regional center to District’s preschool program.  District created an assessment plan and obtained Parent’s consent on December 5, 2015.  The plan called for psychoeducational and speech language assessments.  The psychoeducational assessment was completed promptly, and District attempted to hold an IEP meeting on January 11, 2016 to review the results with Parent.  However, Parent asked for a delay until the speech language assessment was completed.  The speech language assessor completed testing in late February 2016, but then continued to conduct extra assessments in March because no IEP meeting had been scheduled.  In mid-March, Parent asked for the speech language report to be translated into Spanish.  The report was translated in April and an IEP meeting finally occurred on June 3, 2016.

Student requested an independent educational evaluation (“IEE”) at District’s expense, but District refused and filed a request for due process hearing to settle the matter.

District argued that it was not required to pay for an IEE because District’s psychoeducational and speech language assessments were appropriately administered by qualified assessors and met all statutory requirements.  Student argued that she was entitled to an IEE at District’s expense because she had not been assessed in all areas of suspected disability, the assessors failed to follow test protocols and observe Student outside of the testing environment, and the assessments were not timely.

While the Assessments Were Competently Administered, the Process Took Too Long

OAH concluded that District’s assessors were well qualified, the assessments were appropriately administered, and Student had not properly raised the issue of failure to assess in all areas of suspected disability.  However, OAH partially agreed with Student, finding that the speech language assessment had not been timely.  From parent’s consent to the assessments to the IEP team meeting to discuss the results, no more than 60 days should have elapsed.  Instead, over 150 days passed.  OAH ordered District to pay for a speech language IEE and declared Student a partially prevailing party, entitling Student to an award of attorney’s fees.

Strict Timelines Apply to Assessments, or an Independent Educational Evaluation May Be Ordered (Along With Attorney’s Fees)

Local educational agencies (“LEA’s”) must follow strict timelines to assess students for suspected disabilities.  If an LEA decides to assess a student, it must present a written assessment plan to a parent or guardian within 15 calendar days of the date of receipt of the referral, unless the parent or guardian agrees in writing to an extension.  (Ed. Code §§ 56043(a), 56321(a).)  However, calendar days between the pupil’s regular school sessions or terms (like semester breaks) or calendar days of school vacation in excess of five schooldays (like winter or spring break) are not counted when calculating this deadline.  (Ed. Code §§ 56043(a), 56321(a).)  The assessment plan must explain, in language easily understood by a lay person, the types of assessments to be conducted.  (Ed. Code, § 56321 (b).)  The parent then has at least 15 days to consent in writing to the proposed assessment. (Ed. Code, §§ 56043(b), 56321 (c)(4).)

Once a parent consents to the assessment, a determination of eligibility and an IEP team meeting must occur within 60 days of receiving parental consent.  (See 20 U.S.C. § 1414(a)(1)(C); Ed. Code, § 56302.1(a).)  An assessor must produce a written report of each assessment that includes whether the student may need special education and related services and the basis for making that determination, and the report should be addressed at the IEP meeting. (Ed. Code, §§ 56327 (a), (b).)

A student may disagree with an LEA’s assessment and request one independent educational evaluation (“IEE”).  (34 C.F.R. §§ 300.502(b)(1), (b)(2); Ed. Code § 56329(b).)  An IEE is an assessment conducted by a qualified third-party examiner who is not employed by the LEA.  (34 C.F.R. § 300.502(a)(3)(i).)  If a student requests an IEE, the LEA must, without unnecessary delay, either provide an IEE at public expense or file a request for due process hearing to show that the LEAs assessment is appropriate.  (34 C.F.R. § 300.502(b)(2); Ed. Code, § 56329(c).)

This case shows that it is not enough for an LEA’s assessment to be substantively appropriate.  The LEA must also comply with related procedural requirements like the strict timelines found in the Education Code.  Here, had the speech language assessment been timely, OAH would have denied all of Student’s claims.  Instead, the Student partially prevailed, requiring District to pay for Student’s IEE and entitling Student to a partial award of attorney’s fees – a costly result that probably could have been avoided if District had stayed on top of scheduling assessments and IEP meetings.

 

By Following IDEA Procedures, LEA Satisfies Section 504 Manifestation Determination Requirements

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Author: Heather Edwards, Attorney at Law

The U.S. District Court of Northern California upheld the expulsion of a student and dismissed the student’s Section 504 disability discrimination claim where the LEA followed IDEA’s procedures during the manifestation determination review of a high schooler who received Section 504 services for ADHD. (J.M. v. Liberty Union High School District, 70 IDELR 4 (N.D. Cal. 2017).

The student was 16 years old and diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”).  Based on an evaluation, the District found the student eligible for a Section 504 plan because of his ADHD.  The Section 504 Plan described the impact of the disability on his education was poor attention and distractibility, poor organization skills, and frequent failure to complete and turn in assignments and homework.  The Plan required the student to receive various accommodations including class notes, preferential classroom seating, and enrollment in a tutorial support class.  One evening outside of school, the student had a verbal altercation with another student while playing an online video game.  The next day, the student was involved in a threatening confrontation with that same student on school grounds. The District suspended the student and moved to expel him.

Under Section 504, a district must evaluate a student with a disability before imposing a significant change of placement, including disciplinary removals. Here, the court noted that when the student was involved in a “threatening confrontation” with a classmate, the district held a manifestation determination review in which it concluded that the student’s misconduct did not have “a direct or substantial relationship” to his disability. As a result, the district expelled the student for the rest of the school year.

Alleging that the district applied the incorrect legal standard during the manifestation determination review, the student claimed that the district should have assessed whether his conduct merely “bore a relationship” to his ADHD. The court rejected this argument. It pointed out that while Section 504 does not include guidelines for manifestation determination reviews, a district’s “compliance with the procedural safeguards of the IDEA is one means of meeting [Section 504’s] evaluation requirement.” In this case, the evidence showed that the district appropriately followed its evaluation procedures, which mirrored the procedural safeguards outlined in the IDEA regulations, by assessing whether the student’s misconduct “had a direct and substantial relationship” to his disability.

What This Means For You: The term “manifestation determination” does not appear in the regulatory language of Section 504. Instead, Section 504 requires that a local educational agency (“LEA”) conduct a reevaluation before making any “significant change in placement.” 34 CFR § 104.35(a). The Office of Civil Rights (OCR) interprets Section 504 as requiring a manifestation determination review in connection with disciplinary actions that constitute a significant change in placement. Unlike IDEA, the Section 504 regulations do not specifically establish procedural safeguards that must be provided when a district disciplines a student with a disability. Rather, Section 504 requires LEAs to establish such procedural safeguards. LEAs that comply with the procedural safeguards already required under the IDEA for disciplining students eligible under Section 504 will ensure fulfillment of their obligations established under Section 504.

U.S. Department of Education Releases New IDEA Website

colby-photo  Author: Colby Mills, Attorney at Law

On June 1, 2017, the U.S. Department of Education released a new website regarding the Individuals with Disabilities Education Act (IDEA), located at https://sites.ed.gov/idea/.

On the new website the Department of Education expands the available information and resources in a searchable format.  The search function will now prioritize results to bring the most recent statutes and regulations to the forefront, while still providing access to all relevant policies, “Dear Colleague” letters, memorandums, and FAQ documents.

Furthermore, the new website includes categorical breakdowns of resources for specific audiences, including resource pages for educators, service providers, parents and families, and grant seekers/recipients.  The website also includes links to the Office of Special Education Programs (OSEP), Office of Special Education Rehabilitative Services (OSERS), and state IDEA contacts.

Finally, the updated website includes an expanded “topic areas” page which brings together resources regarding 29 different issues, such as Child Find, Bullying, Least Restrictive Environment, and IEPs.

For those who became comfortable and familiar with the old IDEA .ed.gov website, the Department of Education will continue (but not update) the legacy page as it continues to refine the new website.

“Cell-o?” Can Schools Search Student Cell Phones?

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Author: Michael Tucker, Attorney at Law

In 2012, studies of student cell phone ownership and use revealed that approximately 78% of all Americans aged 12–17 years had a mobile phone and 37% had a smart phone.  These numbers have no doubt risen in the 5 years since this particular study was conducted.  Considering this almost universal usage, information contained on a student’s cell phone is often sought in investigations of student misconduct.  In fact, the California Legislature is currently considering Assembly Bill 165 which, if approved, would significantly broaden a local educational agencies ability to access a student’s cell phone if suspected of a suspendable or expellable offense.  However, school administrators should carefully consider the potential privacy implications before searching a student’s cell phone.

  • Cell phones now contain so much more than simple communication information.

Not only are cell phones used to communicate via text, voice or video with others, but most contain a plethora of additional information.  Most cell phones contain, among other things, web browser history, access to personal photos and videos, and access to social media sites.  Searching a cell phone thus may reveal private information that is not necessarily germane to the purpose of the search.

  • Governing boards have the authority to regulate cell phone possession and use. Know your policy.

California Education Code section 48901.5 provides school governing boards with the authority to “regulate the possession or use of any electronic signaling device.”  Most, if not all, school governing boards have policies and procedures regarding a student’s possession, use, and possible search of a cell phone.  Therefore, it is imperative prior to determining whether a search is necessary that all school personnel know and understand their school’s policies related to cell phones.

  • All searches of student property must be 1) justified from the beginning and 2) “reasonably related [in scope] to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”

In New Jersey v. T.L.O, the United States Supreme Court provided the above standards which can be used to determine whether a search of a student’s cell phone is legally defensible. (New Jersey v. T.L.O , (1985) 469 U.S. 325.)  The Court went on to state that a search is “justified from the beginning” when a school official has “reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.”  (Id.)  The official must be able to put this suspicion into words as “curiosity, rumor or hunch” is insufficient to justify a search.  Simply being disruptive, (In re William G., (1985) 40 Cal. 3d 550), invocating privacy rights or attempting to hide private information are also insufficient.  (In re Lisa G., (2004) 125 Cal. App. 4th 801.)

Whether or not a search is “reasonably related [in scope] to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction” is largely dependent on the context of the search.  For example, searching a student’s social media history for using a cell phone during class may not be necessary in light of the violation.  However, searching a student’s text messages maybe be justified if the student is accused of selling drugs on campus to other students.  Moreover, the search’s scope must be similarly limited based on the context and objectives of the search.  Taking the drug sale example, a search of text messages to arrange the sale may be justified, but searching the phone’s photo album may not be.

Therefore, before determining whether a cell phone search is justified, it is recommended that:

  1. School governing boards update and revise relevant policies;
  2. School officials are knowledgeable regarding those policies and their application;
  3. The school officials considering a search have a “reasonable suspicion” that a law or school policy has been violated and the cell phone is an essential element of the commission of that violation;
  4. The school official should be able to articulate the “reasonable suspicion” and that it is based on more than a rumor or a hunch;
  5. The school official determine whether or not the alleged violation involves the student’s cell phone;
  6. The search is limited in scope to the focus of the violation to reduce the risk of liability for invasion of a student’s privacy; and
  7. Any search should be done with more than one official present so to corroborate that the search was appropriately limited and done so in accordance with school policy.