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:
- 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.
- IEP and Section 504 teams would need to make an individualized determination as to whether compensatory services are needed under applicable standards and requirements.
- 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.
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.
Author: Anisa Pillai, Attorney at Law
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.
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.
Author: Omer A. Khan, Attorney at Law
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.
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.
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.
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
Author: Michael Tucker, Attorney at Law
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).
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.
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.”
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.
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:
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.
Ensure that a student’s entire IEP is accessible to any and all staff or service providers who are responsible for its implementation.
Make certain that all previous equipment and materials required by a child’s IEP are in place when school starts.
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.
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!
Author: Michael Tucker
Even if every effort is made to resolve a special education due process dispute, parties may still find themselves headed towards a hearing. To prevent unnecessary litigation and create an opportunity for the parties to resolve their dispute, the IDEA requires a resolution session, convened by the LEA, unless it is waived. 34 CFR 300.510. The meeting’s purpose is for the parties to discuss the due process complaint, and the facts forming the complaint’s basis, so that the LEA has an opportunity to resolve the dispute. Id. Below, please find 4 tips to help prepare for a resolution session.
- Quickly Organize All Files and Relevant Documents to Analyze the Case.
Parties to a due process complaint often enter into the case with preconceived notions regarding what the case’s exact “issues” that form a basis for the dispute. While it is important to understand these issues, it is equally important to enter the resolution session prepared to discuss the student’s entire educational history. To do so often requires ensuring that a complete copy of all the relevant documents exists and the participants to the resolution session have an understanding regarding the student, his/her needs, and the various potential options for resolution. It is also important to understand the relative strengths and weaknesses in each case so that a clear understanding of liabilities exists to assist the parties in making the best decision possible during the resolution session. Finally, it should be noted that the LEA is required to convene a resolution meeting within 15 days of receiving notice of the due process complaint (or within seven (7) days for expedited matters which are generally related to discipline matters). Id. This short timeline requires quick action.
- Embrace Curiosity as a Problem-Solving Method.
It can be easy to assume that a party’s position is clear cut and that the only way to resolve the dispute is to give the party what they have been demanding since the disagreement first surfaced. However, dogmatic adherence to such assumptions can limit the universe of potential settlement options. Also, parents and student’s counsel may not be aware of the various potential educational options offered by an LEA. Curiosity can help both parties open up creative approaches to problem solving during a resolution session. Asking that a party to clarify their motivation for a particular request can show that there is an interest in understanding and resolving the conflict. Additionally, sometimes the parties to a dispute can often become frustrated with each other. Occasionally movement towards resolution can be achieved by including new team members in the resolution session that can offer a fresh perspective to a stale dispute.
- Designate a Facilitator.
Often times resolution sessions can be disorganized, which can limit the meeting’s productivity. It is recommended that the team approaching the resolution session designate a meeting facilitator to maximize the meeting’s efficiency and productivity. The facilitator should be prepared and provide a measured approach to the meeting. It is likely that the student’s representatives are already suspicious of the LEA. Providing a facilitator who at the very least appears neutral can help instill trust and increase the opportunities for a resolution. While the LEA can’t bring an attorney unless the student does, the LEA team should include various IEP members and a person with decision making authority. Id. A facilitator could be selected from any one of these individuals.
- Consider Confidentiality.
Unlike mediation, resolution sessions are not generally automatically confidential. This means that information shared, or comments made, during the resolution session may be later used by either party. Letter to Cohen, 67 IDELR 217 (OSEP 2015). It is also important to note that an LEA may not demand that the session be confidential without the other party’s agreement. Letter to Baglin, 53 IDELR 164 (OSEP 2008). However, the parties may agree to keep the session confidential by entering into a confidentiality agreement prior to conducting the resolution session.
Author: Anisa Jassawalla, Attorney at Law
In the Massachusetts case C.D. v. Natick Public School District (2019) 74 IDELR 121 (“Natick”), the parents of a high school student with an intellectual disability and deficits in language ability filed a complaint with the Massachusetts Bureau of Special Education Appeals (MBSEA) seeking reimbursement for their daughter’s tuition at a private placement. Parents alleged, among other issues, that Student’s IEPs for the 2012-2013, 2013-2014, and 2014-2015 school years denied Student a free appropriate public education (“FAPE”) by failing to develop sufficiently challenging objectives.
MBSEA found that Student’s IEPs provided her with FAPE and denied Parents’ request for reimbursement. Parents then appealed the MBSEA decision to the U.S. District Court and U.S. Court of Appeals, First District, arguing that the MBSEA and the lower court misapplied the Endrew F. decision when it reviewed the Student’s proposed IEPs.
According to the landmark Supreme Court case Endrew F. v. Douglas County School District, a local educational agency must offer an IEP “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances,” in order to meet the LEAs obligation under the Individuals with Disabilities Education Act. (Endrew F. v. Douglas County School District (2017) 137 S.Ct. 988, 991). The Endrew F. court further stated that a student’s educational program must be “appropriately ambitious” and that “every child should have the chance to meet challenging objectives.” (Id. at 1000).
Parents asserted in Natick that a court cannot simply consider whether an IEP allows a student to “make progress that is appropriate in light of the child’s circumstances.” Rather, the court is additionally required to consider whether a student’s IEP objectives are “ambitious” and “challenging,” which would essentially create a two-part test to determine whether a school district provided a student with FAPE.
However, the U.S. Court of Appeals, First District disagreed with Parents. The Court of Appeals found that Endrew F. does not require a two-part test. Instead, the court stated, “The parents misread Endrew F., which did not construe the FAPE standard as two independent tests.” Instead, “Endrew F. used terms like ‘demanding,’ ‘challenging,’ and ‘ambitious’ to define ‘progress appropriate in light of the child’s circumstances,’ not to announce a separate dimension of the FAPE requirement.” While the Court of Appeals recognized that a court evaluating the appropriateness of an IEP may need to consider whether the IEP was sufficiently challenging, such an analysis would be part of the court’s comprehensive review of an IEP rather than a separate and distinct two-part test. The Court of Appeals upheld the lower court’s determination that the parents were not entitled to reimbursement for Student’s private placement because Student’s IEPs allowed Student to make appropriate progress.
The takeaway for local educational agencies is that Endrew F. does not require courts to evaluate the appropriateness of an IEP based on a two-prong test, or require courts to conduct a separate evaluation into whether an IEP’s objectives or goals are “appropriately ambitious” or “challenging.” Instead, the court will evaluate whether an IEP provides a student with FAPE based on a holistic review of the IEP. However, it is also important to note that Natick is a Massachusetts case. As a result, while California courts may apply this case as persuasive authority, they are not required to follow the court’s conclusions.