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CDE and HHS Release Guidance on Distance Learning, School Meals, Child Care, and Student Supervision

Author: Eric Stevens

The California Department of Education released guidance on March 17 for local educational agencies (“LEAs”) regarding educating students through distance learning and providing school meals to students during school closures due to COVID-19.  Health and Human Services, in consultation with CDE, simultaneously released guidance on child care and providing student supervision during the current public health emergency.  All of this guidance is available on CDE’s website.  The guidance contains numerous links to other resources to support LEAs.

The guidance is issued in response to Executive Order N-26-20 which provides that even if LEAs close campuses due to COVID-19, the LEAs will continue to receive funding for those days so that they may:

  • Continue delivering high-quality educational opportunities to students to the extent feasible through, among other options, distance learning and/or independent study;
  • Provide school meals in non-congregate settings through the Summer Food Service Program and Seamless Summer Option, consistent with the requirements of the California Department of Education and U.S. Department of Agriculture;
  • Arrange for, to the extent practicable, supervision for students during ordinary school hours; and
  • Continue to pay employees.

Distance Learning

Distance learning includes any instruction in which a student and teacher are in different physical locations.  This may include any combination of video or audio instruction, communication by phone or computer, print materials incorporating assignments that are reviewed by the teacher, and check-in time with the supervising teacher.

LEAs “should immediately begin developing a plan for distance learning for their students and providing training and professional development for their teachers to implement the adopted distance learning strategy as effectively as possible.”  CDE suggests key elements that a distance learning plan might cover and encourages LEAs to consider what is feasible in the short-term and what may be possible if a longer-term closure (more than two weeks) becomes necessary.

An LEA will need to assess its ability to deliver instruction online, through the delivery of paper materials, and in-person in light of the availability of devices and high-speed internet in the community and the LEA’s ability to provide devices and internet access to students in need.  CDE’s guidance stresses that “we cannot lose track of our most disadvantaged students” and that LEAs need to ensure equitable access to curriculum and, if online learning is used, devices and internet access.

CDE provides a continuum of delivery strategies from a purely online approach to in-person instruction:

  • Teacher interaction and assistance through on-line learning platforms.
  • Online curriculum for students to work on at home.
  • Online curriculum in a computer lab or classroom, consistent with social distancing guidelines.
  • Paper packets of instruction materials for students to work on at home.
  • In-person instruction, consistent with social distancing guidelines.

CDE highlights different school districts and charter schools as examples of some of these strategies in practice.

LEAs should also consider ways to re-purpose and redirect resources to support distance learning, especially resources that may not be used to capacity during campus closures like student transportation and transportation staff.  CDE points out that vehicles and transportation staff can be redirected to distribute meals to students most in need, instructional packets, and wireless equipment and devices.

Distance Learning, Special Education, and English Learners

CDE acknowledges that, at this time, the federal government has not waived federal requirements under the Individuals with Disabilities Education Act (“IDEA”).  Accordingly, federally mandated timelines continue to apply.  CDE is convening a workgroup of practitioners and experts in special education to assess various models for effectively serving students with disabilities in a distance learning environment and provide additional guidance to LEAs.

The unique learning needs of English learners should be considered and addressed in a distance learning plan.  When campuses reopen, an English learner’s progress should be evaluated to determine whether the student needs additional services and supports to account for how distance learning may have impacted the student’s progress toward proficiency.

School Meals

Federal child nutrition meal programs have provided flexibility to CDE and LEAs during COVID-19 campus closures.

For LEAs that already have approval to operate the National School Lunch Program Seamless Summer Option (“SSO”) or the Summer Food Service Program (“SFSP”), CDE can provide authority to offer non-congregate meals under SSO or SFSP during a COVID-19 campus closure.  Requests may be submitted to SNPINFO@cde.ca.gov and CDE’s guidance identifies the information to include in such a request.  LEAs can also request permission to offer shelf-stable meals for multiple days and USDA is expected to provide additional guidance soon on applicable heightened monitoring requirements.

LEAs are encouraged to consider various means of delivering meals, including:

  • Distributing meals using a school food truck.
  • Sending a box or bag meal(s) home with students for multiple days.
  • Keeping some school sites open to allow students to receive a meal.
  • Partnering with local libraries that remain open to serve meals.
  • Setting up a drive through system in the parking lot to minimize contact. Families can drive through and pick up a meal for all children in the vehicle.

However, CDE notes that it is not permissible to provide meals to children who are not present when meals are distributed.

LEAs should consider multiple communication strategies and use multiple languages to reach families and students with information about the availability of meals, including messaging through community partners.

Child Care and Student Supervision

HHS released broad guidance for families with children during COVID-19 campus closures.

For LEAs specifically, CDE reminds them that Executive Order N-26-20 directs LEAs “to the extent practicable” to arrange for supervision of students during ordinary school hours.  CDE states that LEAs should:

  • Develop a plan for ensuring that students are supervised during school hours.
  • Consider allowing their school sites for use as critical pop-up childcare programs for working families in need of care for their children.
  • Partner with their local resource and referral agency to connect families in need of care. The R&R can help link them to available care facilities in their area.
  • Inform families that they can call the statewide consumer education hotline at 1-800-KIDS-793 or go to the website at https://rrnetwork.org/ and https://rrnetwork.org/family-services/find-child-care for additional information.
  • Provide families with a list of known local programs that remain open for services.
  • Collaborate with their Local Planning Council and other local childcare entities to ensure continuity of services to families in need of childcare.
  • Work with the regional Community Care Licensing office, which may have a list of facilities that are open, to identify providers that can serve children at this time.

CDE directs LEAs to consider a list of multiple factors when developing a plan for student supervision:

  • Family needs.
  • Early learning and care programs operating on an LEA’s campus.
  • LEA facilities as a community resource.
  • Working with community partners.
  • Child age.
  • Collaborating with other state and local government entities.
  • CDC guidance for school closures.

For further questions, please do not hesitate to contact us at Girard, Edwards, Stevens & Tucker LLP.

Emergency Legislation Passed by the State Legislature and Office of Administrative Hearings to Hold Mediations Via Telephone/Videoconference

Author: Heather Edwards

On Monday, March 16, 2020, the California                                          Legislature took unprecedented emergency action and passed Senate Bill 117 to ensure that local educational agencies (“LEAs”) continue to receive funding during the COVID-19 pandemic and provide some flexibility from statutory requirements. The legislation, which takes effect immediately, includes the following:

  • Apportionment – For LEAs that comply with the Governor’s Executive Order N-26-20, the period for reporting ADA for apportionment purposes will only include school months from July 1, 2019 to February 29, 2020. The legislature’s intent is that the current health emergency not impact apportionment to ensure employees and contractors are compensated and paid during school closure.
  • Funding – Provides $100 million to the California Department of Education to be apportioned based on ADA generated by LEAs that provide a classroom-based educational program between March 4, 2020 and June 30, 2020.  The purpose of the funding is to purchase personal protective equipment or pay for supplies and labor related to cleaning school sites. LEAs will receive at least $250 per schoolsite.
  • Instructional Days and Minutes – To prevent the loss of funding due to school closures, statutory minimums for instructional days and minutes are deemed to be met during the period of time a school was closed due to COVID-19. District superintendents, county superintendents, and charter school administrators are required to certify in writing to the California Department of Education that school was closed due to COVID-19.
  • Charter Schools – Authorizes charter schools to offer independent study or distance learning programs without the need to submit a request to materially revise its charter petition to its chartering authority.
  • Assessments – Extends time to assess pupils for English language proficiency by 45 days, unless the California Department of Education determines otherwise.  Extends the length of time for the testing window for the California Assessment of Student Performance and Progress (CAASPP) and physical performance tests by the length of time a school is closed due to COVID-19, or until the end of the testing window, whichever comes first.
  • Uniform Complaint Procedures – Extends timelines established in the uniform complaint procedures by the length of time a school is closed due to COVID-19.
  • Suspension of Certain Special Education Timelines – Suspends only the following state statutory timelines for schools closed due to COVID-19:
  1. Providing proposed assessment plans within 15 days of referral; and
  2. Providing parents access/copies of student records (5 business days) and/or sending student records upon a request for another LEA (5 working days).

The suspension of these timelines applies to all LEAs, even if an LEA continues to offer educational opportunities through distance learning, or independent study, or both, during the closure due to COVID-19. In addition, the bill “encourages” LEAs to respond as expeditiously as possible to requests from parents or guardians received during the period of time a school is closed due to COVID–19. Finally, the bill expressly provides that it does not waive any federal requirements imposed under the federal Individual with Disabilities Education Act. (Note: a majority of the timelines in special education are governed by federal law which the state legislature cannot override.)

  • Funding for the After School Education and Safety Program – Program grantees that closed schools due to COVID-19 will be credited with the ADA that the grantee would have received if it had been able to operate its entire program during the period of school closure.
  • Childcare and Child Development Programs – Attendance and reporting requirements imposed on childcare and development programs are waived subject to additional guidance from the California Department of Education.

Office of Administrative Hearings to Hold Mediations Via Telephone/Videoconference

The Special Education Division of the Office of Administrative Hearings (“OAH”), the agency that provides mediations and hearings for special education disputes between parents and LEAs, will be moving to telephonic/videoconference mediations beginning Thursday, March 19, 2020.  Currently the plan is to mediate exclusively through this method until the end of the month.  OAH is developing the protocols for these mediations and will post the information required to participate on March 18, 2020, at 1 pm.  As of today, due process hearings will go forward as scheduled unless a continuance is granted, or the case is dismissed by the filing party.

U.S. Department of Education Issues Guidance on Providing Services to Children with Disabilities During the Coronavirus Pandemic

Author:  Heather Edwards 

On March 12, 2020, the U.S. Department of Education issued a Question and Answers document outlining local educational agencies’ responsibilities to address how, what, and when services should be provided to children with disabilities during the COVID-19 outbreak. The U.S. Department of Education advises, among other things, that:

  1. If an LEA closes its schools to slow or stop the spread of COVID-19, and does not provide any educational services to the general student population, then an LEA would not be required to provide services to students with disabilities during that same period of time.
  2. IEP and Section 504 teams would need to make an individualized determination as to whether compensatory services are needed under applicable standards and requirements.
  3. If a child with a disability is absent for an extended period of time because of a COVID-19 infection and the school remains open, then the IEP team must determine whether the child is available for instruction and could benefit from homebound services such as online or virtual instruction, instructional telephone calls, and other curriculum-based instructional activities, to the extent available.

For further questions, please do not hesitate to contact us at Girard, Edwards, Stevens & Tucker LLP.

Governor's Executive Order Relaxes Statutes Regulating Board Meetings To Encourage Teleconferencing In Response To COVID-19

Author:  Omer Khan

Governor Gavin Newsom issued a new executive order on March 12 in response to the COVID-19 pandemic.  The executive order expands public agencies’ ability to use teleconferencing for governing board meetings to promote a new policy of “social distancing.”

All public agencies are “urged to use sound discretion and to make reasonable efforts to adhere as closely as possible” to the laws governing open and public board meetings like the Brown Act.  Laws requiring advanced notice, posted agendas, and public opportunity for comment are still in effect:

  • Public agencies must still give advanced notice of each regular or special governing board meeting by publicly posting meeting agendas.
  • Public agencies must still provide at least one publicly accessible location from which members of the public can observe and offer public comment during governing board meetings, even if no board members are physically present at that location.

However, numerous restrictions on teleconferencing and requirements for board meeting quorums are suspended for the duration of the COVID-19 public health emergency, meaning that:

  • Board members’ teleconference locations do not need to be disclosed and publicly noticed.
  • Board members’ teleconference locations do not need to be accessible to the public.
  • Agendas do not need to be posted at all teleconference locations.
  • No board members are required to be physically present at the publicly noticed location where the public can observe the board meeting and offer public comment.

It is not necessary that a quorum of board members participates from locations within the public agency’s boundaries; however, a quorum of board members is still required, whether they are in person or teleconferencing, to hold a board meeting.

Governance teams should consider how best to use this new flexibility, if at all.  The Executive Order provides broad flexibility, but a primary effect is that board members can participate in board meetings by phone or over the internet from their own homes without the usual requirement to publicly disclose their home addresses and open their homes to the public.

“Social distancing” – maintaining six feet of separation between individuals and avoiding large in-person gatherings – is still highly recommended by the Governor and public health experts.  Even if board members do not wish to take advantage of the loosened restrictions on teleconferencing, public agencies may wish to space out seating in board rooms and offer live broadcasts of meetings.

For further questions, please do not hesitate to contact us at Girard, Edwards, Stevens & Tucker LLP.

Several New Laws Enacted That Impact Special Education Programs

Author: Heather Edwards

There were several legislative bills enacted at the end of 2019 that impact local educational agencies (“LEAs”) and the provision of special education and related services to students with disabilities.

   1. Assembly Bill 1172 (Frazier) – Nonpublic Schools

This bill adds new requirements for LEAs (including charter schools who serve as their own LEA for special education) that place students in state-certified nonpublic schools (“NPS”) and requirements for the nonpublic schools beginning with the 2020-21 school year. Specifically, LEAs that enter into master contracts with an NPS are required to conduct a site visit before placing a student if the LEA does not have other students enrolled at the school. In addition, LEAs are required to conduct at least one monitoring site visit each school year at each nonpublic school in which the LEA has placed a student and report findings from those visits to the California Department of Education within 60 days of the visit. The California Department of Education is required to create and publish criteria for reporting this information by June 30, 2020.

Also, nonpublic schools are required to provide documentation of annual staff training (and within 30 days for new employees) for employees who will have contact or interact with students on use of evidenced-based practices and interventions for behavior. LEAs will also be required to verify that the NPS has complied with these training requirements.  The new law also requires that the NPS administrator hold certain credentials or licenses, that the NPS certify that it has an individual onsite who is qualified and responsible for behavioral interventions, and that the NPS notify the California Department of Education and LEA within one business day of any student incident in which law enforcement was contacted.

   2. Assembly Bill 605 (Maienschein) – Assistive Technology

This bill requires LEAs (including charter schools who serve as their own LEA for special education) to increase access for students with IEPs to assistive technology (“AT”) (e.g., Chromebooks, iPads, communication devices, etc.)  Effective January 1, 2020, LEAs are required to continue to provide a student access to any AT devices as set forth in his/her IEP for up to two months after disenrollment or until alternative arrangements can be made (whichever occurs first). The new law also expressly requires LEAs to provide devices for use in the student’s home or other settings when determined necessary by the student’s IEP team to ensure a free appropriate public education.

   3. Senate Bill 223 (Hill) – Administration of Medical Cannabis

This bill (called “Jojo’s Act”) authorizes LEAs (including charter schools) to adopt a policy to allow a parent/guardian to possess and administer medical cannabis to a pupil who is a qualified patient at a school site.  The cannabis cannot be in a smokable or “vapeable” form.  The new law requires that the administration of medical cannabis cannot disrupt the educational environment or expose other pupils, that the parent must sign-in at the school site before administering, and requires valid written medical recommendation for the pupil to be kept on file at the school.  The new law provides that school staff will not be required to administer the medical cannabis. Furthermore, the legislation expressly states that any policy adopted by an LEA can be amended or rescinded at any time.

For more information on these bills please contact the author of this Legal Alert or any of the attorneys at Girard, Edwards, Stevens & Tucker LLP.

 

Why You Should Care About The Duty of Care

Author: Anisa Pillai, Attorney at Law

Summary:

Although there is no specific statute or case law which explicitly requires school staff to physically intervene to prevent students from harming themselves or others, they may be obligated to do so given the special relationship that exists between schools and students.

Special Relationship Between Schools and Students

Schools owe a special duty of care to the students in their charge. This duty requires school employees to take reasonable steps to keep students from harming themselves or others, which may include intervening or restraining students when necessary to prevent injury.

Specifically, courts have found that a special relationship exists between a local educational agency (LEA) and its students which imposes an affirmative duty on LEAs to take all reasonable steps to protect its students. (Rodriguez v. Inglewood Unified School Dist. (1986) 186 Cal.App.3d 707, 715). This special relationship gives rise to an LEA’s duty to supervise students: “It is the duty of school authorities to supervise at all times the conduct of children on the school grounds and to enforce those rules and regulations necessary to their protection.” (M.W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal.Appl4th 508, 517).

The standard of care imposed upon an LEA in supervising its students is “the degree of care which a person of ordinary prudence, charged with [comparable] duties, would exercise under the same circumstances.” (Id. at pg. 518) Either a total lack of supervision or ineffective supervision may constitute a lack of ordinary care on the part of those responsible for supervision. (Id.) For example, a school district was found guilty of negligent supervision of its students when a student’s leg was broken by another student during the lunch hour. According to the court, the school had only one teacher on yard duty for 150 students; if more than one teacher had been assigned to yard duty on the day in question, then it is likely that one of them would have seen or heard the fight going on and stopped it before it resulted in serious injury. (Charonnat v. San Francisco Unified School Dist. (1943) 56 Cal.App.2d 840, 844).

Overall, it appears that courts have imposed an affirmative duty on LEAs to supervise students, including the duty to intervene or use physical force, in order to protect students from conduct which may result in physical injury to themselves or others.

Additionally, California law authorizes, but does not require, school staff to use reasonable force against students under certain circumstances. Specifically, school employees are authorized to use an amount of force that is reasonable and necessary to quell a disturbance threatening physical injury to persons or damage to property, for purposes of self-defense, or to obtain possession of weapons or other dangerous objects within the control of the pupil. (Ed. Code § 49001)

Liability of Schools and Employees

Because a school is under a mandatory duty to take all reasonable steps to protect its students from injury, an LEA may be found liable for an injury to a student when the school failed to discharge this duty. (Gov. Code § 815.6) In other words, it’s possible that a court could find an LEA liable for failing to use physical force or restraint to protect a student (for example, during a fight when engaged in self-injurious behavior), when that failure leads to an injury of a student. In defense, the LEA may argue that it exercised reasonable diligence to discharge the duty.

Overall, LEAs should ensure that employees are carrying out their duties conscientiously and following LEA policies and procedures for carrying them out. It appears unlikely that an LEA will be held liable for a student injury as long as the employee took reasonable steps to prevent the injury. However, if an employee failed to act entirely or fails to use an amount of force that is reasonable and necessary under the circumstances, this failure led to a student injury, it is possible that an LEA could be held liable for such injury due to the failure of the employee to exercise reasonable care.

Recommendations

In order to ensure safe, supportive, and positive school environment conducive to student learning and to minimize exposure for claims of negligence for physically intervening with students, LEAs should ensure that:

1. Employees are adequately trained in crisis prevention and intervention techniques and strategies;

2. Employees are knowledgeable of and follow LEA policies and procedures aligned with state and federal laws at all times;

3. Students receive adequate supervision while on school grounds or at a school-sponsored event; and

4. Employees take all reasonable steps to intervene to protect students from harming themselves or others.

Failure To Follow Guidance Letter Does Not Necessarily Create Liability

Author: Omer A. Khan, Attorney at Law         

Summary:

On November 18, 2019, the U.S. District Court in the Eastern District of California granted a Local Educational Agency’s (LEA) summary judgment motion because the teenage plaintiff could not establish that the school violated Title II of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act. The court granted the motion based on its holding that guidance issued by administrative agencies does not hold the weight of regulations as contemplated by Section 504 and the ADA.

Facts:

Plaintiff was a freshman at Paradise High School and qualified for a Section 504 plan to accommodate his individual education needs in light of his Attention Deficit Disorder (ADD). On August 28, 2015, Plaintiff was assaulted at a high school football game where another student punched Plaintiff in the head more than once, breaking his nose and rendering him unconscious.

Plaintiff sued the school and the Paradise Unified School District, seeking damages under Section 504 and the ADA. Plaintiff alleged that the school failed to adhere to guidance issued by the U.S. Department of Education called the “Dear Colleague Letters” which recommended supervision at extracurricular events and monitoring bullying incidents involving students with disabilities.

Discussion:

In order for Plaintiff to prevail on his claim,  he was required to establish that 1) he was a qualified individual with a disability, 2) he was denied a reasonable accommodation that he needed in order to enjoy meaningful access to the benefits of public services, and 3) the program providing the benefit receives federal financial assistance. After making the initial showing, he also was required to demonstrate that the school demonstrated deliberate indifference to Plaintiff’s needs.

Plaintiff argued that he was denied a reasonable accommodation because the school “failed to comply with an applicable regulation.” As support, Plaintiff offered a “Dear Colleague” letter’s recommendation that LEAs provide adequate supervision at extracurricular events and monitor bullying incidents involving students with disabilities. The court disagreed, saying that the “Dear Colleague” letters were meant as aspirational guidance and were not the product of a “rigorous process” similar to an administrative regulation. The court continued that since the school had no actual knowledge that Plaintiff was bullied, the school could not be held to have denied Plaintiff a reasonable accommodation under the law.

Additionally, the court also noted that Plaintiff could not satisfy the requirement to show the school demonstrated deliberate indifference to Plaintiff’s needs. Since the court already concluded that the “Dear Colleague” letters did not carry the weight of administrative regulations, Plaintiff could not demonstrate deliberate indifference by way of failing to provide an accommodation “required by statute or regulation.” The court concluded that since Plaintiff failed to show that the school intentionally reneged on its responsibility to provide Plaintiff with a reasonable accommodation, Plaintiff could not show that the school acted with deliberate indifference to Plaintiff’s needs.

Conclusion:

Administrative agencies such as the U.S. Department of Education frequently publish guidance such as the “Dear Colleague” letters to help LEAs understand their obligations to provide accommodations for students with disabilities. Although it is recommended that LEAs follow such guidance as closely as practical, this case provides the proposition that failing to adhere to such guidance will not likely result in a de facto violation of Section 504 and the ADA as long as there are reasonable accommodations provided in another manner. LEAs should continue to monitor guidelines issued by administrative agencies, but this ruling provides that failing to follow such advice letters does not necessarily amount to a legal violation.

 

 

School District Did Not Violate Section 504 By Restricting Mother's Campus Visitation

School District Did Not Violate Section 504 By Restricting Mother’s Campus Visitation

Author: Michael Tucker, Attorney at Law   

Summary:

On September 19, 2019, the 9th Circuit Court of Appeals upheld a lower court’s ruling that restricting a student’s mother’s visitation rights did not violate Section 504 or the Americans with Disabilities Act (“ADA”).  In an unpublished opinion, the Court ruled that the school district’s restrictions were not in retaliation for the parent’s advocacy on behalf of her child.    (Camfield v. Board of Trustees of Redondo Beach Unified School District, (2019) 17-56072).

Facts:

In March 2015 the Redondo Beach Unified School District sent the mother (“Parent”) of a fifth grader with cerebral palsy a letter requiring her to seek permission from the campus principal at least 24-hours prior to any on-campus visit.  The letter detailed interactions between Parent and school officials, primarily regarding Parent’s displeasure with the assignment of a specific aide.

Parent used vulgar language, called the assigned instructional assistants repeatedly on their cell phones, and insulted one of the instructional assistants.  Her behavior was so disruptive that one instructional assistant would hide inside a locked classroom until Parent left to avoid “unpleasant interactions.”  As a result, Parent claimed that the District’s letter and the subsequent restrictions from campus were in retaliation for her advocacy on behalf of her disabled child, and therefore violated Section 504 and the ADA.

Discussion:

To establish a claim for unlawful retaliation, a parent needs to show: 1) the parent engaged in a protected activity; 2) the district or local education agency (“LEA”) had knowledge of that activity; 3) the district/LEA took adverse action against the parent; and 4) the protected activity was the cause of the adverse action.  While the Court seemingly found that Parent had provided evidence for the first three factors, the Court ruled that the district had legitimate, nonretaliatory reasons for requiring a 24-hour notice from Parent.

Specifically, the Court noted that Parent’s conduct was undisputed.  Thus, such undisputed conduct could legitimately be the basis for restricting her access to campus, not her advocacy for her child.  Moreover, the Court noted that the 24-hour notice requirement did not interfere with Parent’s ability to advocate on her child’s behalf.  The Court noted that “even after [the restrictions were] issued, [Parent] was not denied permission to attend any event involving [the student] or to meet with any representative of the District concerning [his] education.”

Conclusion:

Dealing with difficult parents can unfortunately be a part of providing services to students with disabilities.  As this case illustrates, an LEA can restrict the access of particularly difficult parents under certain circumstances.  This case indicates that in order to defend against a claim of retaliation for restricting access to campus, the parent’s conduct needs to be disruptive, the conduct must be largely undisputed and documented, and that his/her access not be so limited that it prevents him/her from advocating on the child’s behalf.

 

 

Could an Educational Agency Be Held Liable for a Student’s Suicide by Failing to Provide Necessary Accommodations and Supports?  One Court Suggests It’s Possible. 

Author: Heather Edwards

On July 29, 2019, the U.S. District Court, Northern District of California, denied a school district’s motion to dismiss a parent’s claim of negligence involving allegations that failure to implement Section 504 accommodations prompted the student to take his own life. Whooley v. Tamalpais Union High School District, 74 IDELR 258 (2019).

Student was in 12th grade and qualified as a student with a disability under Section 504 of the Rehabilitation Act due to processing deficits and anxiety. His Section 504 plan included numerous accommodations, including one-on-one checks with teachers and extra time on tests. The parent alleged that Student became increasingly overwhelmed by mounting pressure from school to achieve and maintain a high grade point average, attain high scores on the ACT or SAT college entrance exams, and to complete early enrollment applications for colleges.

Parent alleged that this stress was compounded by the district’s employees’ failure to implement Student’s Section 504 accommodations on numerous occasions. For example, Parent alleged that Student’s Section 504 plan required placement in a separate room for testing, but Student was forced to take the test in the school’s gym with the other students.

Based upon these allegations, and analysis of the legal standard for determining liability for a suicide, the court allowed the case to proceed to determine whether the district’s negligence in failing to implement the Section 504 plan caused the Student to suffer a mental condition in which he could not control his suicidal impulses.

The Whooley case is a tragic reminder to educational agencies to ensure implementation of required accommodations for a student with a disability. Here are a few practice tips to help ensure proper implementation:

1. Distribute Section 504 plans to all necessary staff. Do not be so concerned about confidentiality that you do not provide a 504 plan to appropriate individuals such as substitutes or bus drivers.

2. Focus on clarity when drafting accommodations so staff understand exactly what he or she is supposed to do.

3. Remind staff that they have an obligation to provide all accommodations identified in a student’s Section 504 plan regardless of whether they believe those accommodations are necessary, appropriate, and/or fair to other students. If an accommodation may no longer be necessary or appropriate, a 504 team meeting should be convened to discuss and make such a determination.

4. Do not wait for the student to request the accommodations listed on a Section 504 Plan. It is the school’s obligation to ensure that the accommodations are provided.

 

 

 

 

Top Five Back to School Tips for Special Education Administrators

Author: Eric Stevens


Along with new backpacks, new lunchboxes, and smiling faces, the start of a new school year often brings new IEPs to implement and new IEP team members. As you start the 2019-2020 school year, here are some top tips:

  1. Verify that staff members are informed and have a clear understanding of IEPs for each student for which they are responsible. Make sure general education teachers, special education teachers, and related service providers understand the specific accommodations, modifications and supports that must be provided.

  2. Ensure that a student’s entire IEP is accessible to any and all staff or service providers who are responsible for its implementation.

  3. Make certain that all previous equipment and materials required by a child’s IEP are in place when school starts.

  4. Have open avenues of communication with parents who may be anxious about changes to their child’s program or particular service provider. For example, have a clear communication protocol so parents know who to contact with concerns and clear expectations for the timing of staff responses.

  5. Consider providing training to staff to strengthen their communication skills, including offering conflict resolution strategies and emphasizing the importance of presenting information clearly, tactfully, and with empathy in IEP meetings and assessment reports.

Best wishes for a successful school year!