The Claims Presentation Requirement of The Government Claims Act Can Protect Local Educational Agencies Administering An Individualized Education Program
Author: Omer A. Khan, Attorney at Law
On June 26, 2020, the First Appellate District of the California Court of Appeals denied the parents’ appeal seeking to recover damages from a school district after their child tragically committed suicide. (Neeley v. San Mateo Union High School District (2020) 120 LRP 19625.) The court reasoned that the Government Claims Act, which permits claimants to collect money damages from public agencies for personal injuries, requires that claimants first give notice of potential claims to the District directly by presenting the factual basis for their claims in a manner prescribed by the District. Here, the court found that the parents’ claim was not factually specific enough to give the District notice.
The student was a senior in high school and a member of the school’s football team. The student was also on an Individualized Educational Program (“IEP”) because he had been experiencing mental and emotional difficulties. On January 13, 2014, the student tragically took his own life. About four months later, the parents presented their written government claim to the school. The parents alleged that a trainer for the football team had physically injured the student by massaging a muscle the student had strained during a football game causing the student to become severely depressed which, in turn, ultimately caused him to commit suicide. However, the parents’ written claim did not make mention of the student’s mental health issues or the school’s management of his IEP. The District denied the parents’ claim.
The parents then filed a petition in court for personal injury and wrongful death, asserting not only the same causes of action asserted in their prior written petition, but also adding that the District’s failure to provide a mental health assessment and mental health services pursuant to the IEP was a contributing factor to the student’s suicide. The trial court asserted that since the parents did not include these IEP-based allegations in their written claim to the District, they were not permitted to bring these allegations to court. The parents then appealed the court’s decision.
The Court asserted that that the written claim to the District was required to provide “[a] general description of the . . . injury, damage or loss incurred so far as it may be known at the time of presentation of the claim,” and “[t]he name or names of the public employee or employees causing the injury, damage, or loss, if known.” The purpose of such requirements was “to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation.”
Here, the written claim to the District failed to give the District notice regarding the nature of the parents’ claim. Their later claim regarding the failure of the school’s IEP team was based on an entirely different set of facts and involved different employees engaged in different allegedly wrongful acts than their personal injury claim initially included. Their special education theory of wrongful death was, simply put, entirely different from the football injury theory of wrongful death asserted in the claim submitted to the District. Since the parents failed to meet the written claim requirements, their special education causes of action could not proceed.
Properly implementing the Government Claims Act can be a daunting challenge for school officials due to the prospect of liability. However, local educational agencies should know that the Act itself includes a number of provisions designed to give them a chance to defend themselves. As described above, one such provision is the written claim presentation requirement, which requires the claimant to provide the LEA with the specific facts underlying the claim so that it may properly consider the claim. If an LEA receives a Government Claims Act written claim, the first step is always to review the written claim for timeliness and specificity. A deficiency in either category may significantly impact the outcome of a claim. In addition, LEAs should promptly contact their legal counsel and insurance provider whenever a claim is received.
Office of Administrative Hearings Rules in District's Favor on Reasonable Restrictions to Nonpublic Agency Aide Attendance at IEP Meetings and Communication with Parents
Author: Michael Tucker, Attorney at Law
On May 15, 2020, the Office of Administrative Hearings (OAH) ruled that failure to include a nonpublic agency aide in a student’s IEP meeting did not significantly impede the parent’s participation. OAH also ruled that setting reasonable restrictions on communication with the aide, while still providing meaningful contact, did not significantly impede the parent’s participation in decision making. (Parent on Behalf of Student v. Mountain View Unified School District, Case No. 2019100681.)
Student qualified for special education under the categories of autism and speech and language impairment. Student’s IEP included a behavior technician aide provided by a nonpublic agency. Student’s parent requested that the aide be present at an IEP meeting. While the aide did not attend the meeting in question, the aide’s two clinical supervisors were in attendance.
The Local Educational Agency (LEA) also directed all communication related to the aide through the Student’s special education teacher. Instead, Student’s parent sought raw data from daily behavior logs, contemporaneous communication with the aide and other detailed information.
Student filed a Due Process Complaint alleging that the LEA’s decision to deny parent’s request that the Student’s aide be present at an IEP meeting denied Student a Free Appropriate Public Education (FAPE). Specifically, Student claimed that he was denied meaningful participation in the IEP meeting because the aide’s attendance was essential to Student’s participation in the meeting.
Student also alleged that the LEA denied Student FAPE by preventing free communication between Student’s parent and the nonpublic agency aide. Particularly, Student claimed that the LEA’s restrictions on communication received from the aide prevented the parent from meaningfully participating in the decision making process.
After a hearing, OAH ruled in favor of the LEA on both issues.
A student is denied a FAPE if procedural inadequacies significantly impede the parent’s opportunity to participate in the decision making process. (20 U.S.C. § 1415(f)(3)(E)(ii)(I)-(III).) The parents of a child with a disability must be afforded an opportunity to participate in IEP meetings. (34 C.F.R. § 300.501(b).) “A parent has meaningfully participated in the development of an IEP when he or she is informed of the child’s problems, attends the IEP team meeting, expresses disagreement regarding the IEP team’s conclusions, and requests revisions in the IEP.” (N.L. v. Knox County Schools (6th Cir. 2003) 315 F.3d 688, 693-5.) In this case, Student alleged that he was denied meaningful participation because the LEA failed to include the aide as an essential IEP team member. Essential IEP members are often considered to include the following:
- the student’s parents;
- a general education teacher;
- the student’s special education teacher;
- LEA representative;
- an individual qualified to interpret evaluations; and
- at the discretion of the parent or the LEA, other individuals that have knowledge or special expertise regarding the child, including related services personnel as appropriate.
(20 U.S.C. § 1414(d)(1)(B)(i)(vi); 34 C.F.R. § 300.321.)
While Student argued that the aide possessed “knowledge or special expertise regarding the child”, OAH found that “a person with knowledge or special experience…is not an essential member of the IEP team, unless they are also qualified to interpret evaluations, under 34 Code of Federal Regulations part 300.321(a)(5).” Therefore, OAH found that the aide was nonessential because the aide was not qualified to interpret evaluations and exclusion from the IEP meeting was not a violation of FAPE.
OAH also found that the LEA’s restrictions on parent’s communication with the aide were reasonable. LEAs are generally permitted to place reasonable restrictions between providers and a parent to minimize “unproductive communication.” (L.F. v. Lake Washington School District #414 (2020) 947 F.3d 621.) Here, OAH found that reasonably restricting communication while still providing detailed “daily, weekly, and monthly communications” with the parent did not amount to a FAPE violation.
While LEAs should carefully consider parent’s requests, parents are not entitled to unfettered access to school staff. Here, OAH agreed with the reasonable restrictions placed on the parent’s requests by the LEA. Specifically, OAH pointed out that not every parent request to invite certain school staff to an IEP is a required attendee as an essential IEP member. While OAH did not make much of the fact that the aide’s supervisors were at the IEP meeting, it’s worth noting that their presence may have made the aide’s input redundant. OAH also found, through a recording of the IEP meeting, that the parent was able to fully participate despite the aide’s absence.
Moreover, restrictions can be placed on a parent’s request for communication so long as the LEA’s restrictions are reasonable considering the amount of communication offered to the parent. Specifically, OAH agreed that contemporaneous communication as requested by the parents was not required considering the LEA’s already robust communication offerings.
LEAs are encouraged to carefully consider a parent’s request with this guidance in mind.
Author: Omer A. Khan, Attorney at Law
On April 28, 2020, the U.S. District Court in the Eastern District of California granted a parent’s motion for attorney’s fees against a Local Educational Agency (LEA) on top of fees it already owed, as result of the LEA’s failure to timely pay the amount owed. (Quatro v. Tehachapi Unified School District (2020) 120 LRP 10671.) on top of fees it already owed, as result of the LEA’s failure to timely pay the amount owed. (Quatro v. Tehachapi Unified School District (2020) 120 LRP 10671.) One month prior, the court had ruled in favor of the parent in a motion to enforce a judgment for the amount of $177,144 that the LEA had failed to pay the parent within the prescribed statutory period. This motion resulted in an additional $10,142 of fees imposed on the LEA.
Plaintiff was the mother of a kindergartner with orthopedic impairments. The parent initially won a ruling in January 2016 for a denial of a free appropriate public education (FAPE); the order granted Student 12 hours of services by a Board Certified Behavior Analyst. The LEA appealed, and in May 2017, the District Court issued a judgment in favor of the parents, awarded $135,876.75 in attorneys’ fees and $2,805.00 in costs. This decision was upheld in November 2018 by the Court of Appeals.
The LEA was required to pay the amount due by June 30, 2019; it failed to do so.
The parent filed a petition in District Court to enforce the judgment in February 2020 to collect the amount owed. The LEA contended that the delay was reasonable; there was a lack of funds available to pay the full amount of $138,681.75 to the parent and the matter would be addressed at the March 10, 2020 board meeting.
The District Court rejected this contention. The Court noted that, even by the March 18, 2020 Board meeting, the Board was “merely told the payments were still unresolved.” The Court questioned whether the LEA had addressed the payment at issue and its dedication to comply with its legal obligation under Government Code § 970.5 to pay the judgments owed. The Court ordered the LEA to pay the amount owed by June 30, 2020, plus interest for every day the LEA was late. At this point, the LEA owed the parent $177,144 in total fees.
Finally, in April 2020, the parent filed a petition to recover attorneys fees for this latest round of litigation. The District Court agreed that the parent was entitled to an award for fees on her motion for enforcement of judgment; this holding added an additional $10,142 to the amount owed by the LEA, resulting in a grand total of $187,286
The Individuals with Disabilities Education Act (IDEA) includes a fee-shifting provision that allows a prevailing parent to recover reasonable attorney’s fees, subject to certain limitations. In addition, courts have allowed parents to recover attorney’s fees for their counsel’s work on claims brought under this fee-shifting provision. In other words, “fees on fees” may be available where attorney continue to work on the case after a court’s award of attorney’s fees. Moreover, Government Code § 970.5 obligates LEAs to pay judgments owed within the fiscal year the judgment becomes final. The statute imposes interest payments if the LEA is late in satisfying these debts. As a result, LEAs must demonstrate urgency in arranging payments of such judgments. This case should serve as a cautionary tale: the initial amount owed by the LEA was $138,681.75, but due to the delay the Court imposed an additional $48,604.25 in costs. If the LEA absolutely cannot make the payments within the fiscal year, it should demonstrate that it is taking the judgment seriously using proper documentation.