Assembly Bill 119 Mandates Union Access to New Employee Orientation and Other Information for Public Employers
On June 27, 2017, Governor Brown signed Assembly Bill 119 into law, effective July 1, 2017.
AB 119 requires public employers (including school districts, transit agencies, and county offices of education) to provide union representatives “mandatory access” to any new employee orientation, regardless of whether that orientation is conducted in person, online, or another medium. The bill defines new employee orientation as “the onboarding process of a newly hired public employee . . . in which employees are advised of their employment status, rights, benefits, duties and responsibilities, or any other employment-related matters.”
The bill states that upon request by either the employer or the union, the parties must “negotiate regarding the structure, time, and manner” of the union’s access to the new employee orientation. If the parties cannot reach an agreement, the matter will be subject to compulsory interest arbitration, which would result in an arbitrator’s decision defining the access to be granted. The parties must equally share the cost of arbitration.
Either party may request negotiation of the issue, and the parties are compelled to open negotiations even if a current collective bargaining agreement or memorandum of understanding exists. However, the parties may choose to negotiate a “side letter or similar agreement” in lieu of reopening a current CBA or MOU.
Furthermore, AB 119 compels public employers to provide a union with any new employee’s job and contact information “within 30 days of the date of hire or by the first pay period of the month following hire.” This includes the newly hired employee’s:
- Job title
- Work location
- Work phone number
- Personal email address on file with the employer,
- Home address
- Home phone number
- Cell phone number
Moreover, AB 119 requires a public employer to provide the union with the above information for all employees in the bargaining unit every 120 days “unless more frequent or more detailed lists are required by an agreement.”
On June 30, 2017, the U.S. Department of Education issued new regulations aligning the IDEA to the Every Student Succeeds Act of 2015. The new regulations removed terminology from the No Child Left Behind Act. The new regulations are not expected to significantly alter special education practices, but are noteworthy in a few important areas.
The updated rules mostly implement technical corrections to a few areas in the IDEA. Essentially, the new regulations replace terminology from No Child Left Behind with language more closely aligned to the Every Student Succeeds Act. Specifically:
- Regular High School Diploma has been amended to exclude diplomas based on alternate academic achievement standards and a general equivalency diploma, a certificate of completion or attendance or another credential.
- Alternate Assessments have been changed to reflect an emphasis on students with significant cognitive disabilities taking assessments based on alternate academic achievement standards. IEP teams should make the difference in assessments for those based on grade-level achievement standards compared to those based on alternate academic achievement standards.
- Technical Assistance to Schools has been edited to reflect promises of support and improvement activities for consistent underperformance of students with disabilities.
The amendments can be found with the link below.
Untimely Evaluation Leads to Independent Educational Evaluation at School's Expense and Attorney's Fees
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.
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.
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.
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.
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:
- School governing boards update and revise relevant policies;
- School officials are knowledgeable regarding those policies and their application;
- 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;
- The school official should be able to articulate the “reasonable suspicion” and that it is based on more than a rumor or a hunch;
- The school official determine whether or not the alleged violation involves the student’s cell phone;
- 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
- 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.
IEP Goals Do Not Have to Specifically Address Every Need So Long as IEP Is Reasonably Calculated to Enable Appropriate Progress
The U.S. District Court for the Eastern District of California ruled that an individualized educational program’s annual goals do not have to correspond one-to-one with a student’s specific, identified needs to provide a free, appropriate public education. (Tehachapi Unified Sch. Dist., 69 IDELR 241.) IEP goals are reviewed holistically to determine whether the IEP will address the educational needs resulting from a student’s disability. If a student’s educational needs can be met by an IEP, the student is not denied a FAPE merely because each need is not linked to a specific goal.
Student was eligible for special education and related services because she had autism. Multiple IEP meetings were convened in 2013 and 2014. In March 2013, Student’s IEP team determined that staying focused was her greatest need and developed annual goals in areas like following instructions, verbalizing, writing, reading, math, and social/emotional behavior. Student did not receive goals that specifically addressed maintaining attention and staying on task. Student filed for a due process hearing with OAH alleging, among other things, that District denied Student a FAPE by not including goals in Student’s IEP which specifically addressed maintaining attention and staying on task.
An administrative law judge (“ALJ”) disagreed with Student, finding that Student’s IEP goals were appropriate. The ALJ concluded that Student’s attention to task was adequately addressed by goals addressing Student’s ability to comply with directions, and with accommodations in the IEP like a visual schedule, giving on-task reminders, and provision of a one-to-one aide.
On appeal, the U.S. District Court upheld the ALJ’s ruling. The District Court relied in part on a decision from the Second Circuit Court of Appeals (overseeing New York, Vermont, and Connecticut) which held that an IEP which does not specifically address goals and objectives toward a need, but which has goals which enable a student to make progress in the area of need, may be substantively sufficient under IDEA. L.O. ex rel. K.T. v. New York City Dep’t of Educ. (2d Cir. 2016) 822 F.3d 95, 118-19. The District Court found this persuasive, reasoning that IEP annual goals must meet a student’s needs, but that the IDEA does not require that the goals correspond one-to-one with specific, identified needs. Applying the recent Endrew F. decision (see our earlier Legal Alert, (2017) 137 S.Ct. 988), the District Court focused on whether the IEP was “reasonably calculated to enable [Student] to make progress appropriate in light of [her] circumstances.” The District Court concluded that Student’s IEP was reasonably calculated to enable appropriate progress, and that “[t]he precise form that a goal takes is a question of educational policy, and courts should not ‘substitute their own notions of sound educational policy for those of the school authorities which they review.’” Citing Bd. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, (1982) 458 U.S. 176, 206.
In light of the recent Endrew F. decision, courts may begin to scrutinize more closely the contents of IEPs, including annual goals and objectives. IEP teams need to gather quantifiable baseline data regarding a student’s unique needs from which to develop robust, detailed and measurable goals for the child’s expected performance of each skill after a year’s time. Additionally, if a student’s annual IEP goals are the same or appear substantially similar year-to-year, that is a red flag and may indicate that the student is not receiving FAPE.
Local Educational Agencies are Required to Consider Parent Requests for Insurance-Funded ABA Aide to Attend School with Student at an IEP Team Meeting.
In Student v. Tehachapi Unified School District (OAH Case No. 2016110289), 117 LRP 17194 (April 24, 2017), the Office of Administrative Hearings held that Student was denied a free appropriate public education when the school district failed to discuss and consider the parent’s request to allow an insurance-funded aide to accompany Student at school.
FACTS: Student was a 10 year old girl, eligible for special education under the categories of autism and speech and language impairment. Student’s parent received approval from her medical insurer for funding of 40 hours a week of services from a trained applied behavior analysis (“ABA”) aide, and supervision of the aide by a Board Certified Behavior Analyst. The services could be provided to Student in her home or school. This approval was based on a recent functional behavior assessment of Student. Student’s physician wrote a note on a prescription form ordering Student to receive ABA therapy at school from the insurance funded ABA aide. Parent provided the ABA prescription from Student’s doctor and the functional behavior assessment it was based upon to the District. Parent then asked that an IEP meeting be held to discuss the prescription and Parent’s request that Student’s insurance funded ABA aide be permitted to accompany Student at school to provide her with ABA services.
Before the IEP meeting was held, District’s Director of Programs conferred with other District administrators and determined the District would not honor the ABA prescription and would refuse to allow Student’s ABA aide to accompany Student at school. At the IEP meeting, District’s administrative representative told Parent that the District would not honor the prescription or allow the ABA aide on campus with Student. As a result, Parent kept Student home from school so she could receive the weekly 40 hours of insurance funded ABA therapy.
DISCUSSION: Because children with disabilities and their parents are frequently not represented by counsel during the IEP process, procedural errors at that stage are likely to be prejudicial and result in lost educational benefits. Consequently, compliance with the IDEA’s procedural safeguards “… is essential to ensuring that every eligible child receives a FAPE, and those procedures which provide for meaningful parent participation are particularly important.” Amanda J. v. Clark Cty. Sch. Dist. (9th Cir. 2001) 267 F.3d 877, 891.) Procedural violations that interfere with parental participation in the IEP process undermine the essence of the IDEA. M.C. v. Antelope Valley Union High School District (9th Cir. March 27, 2017) ___ F.3d ___ (2017 WL 1131821 at p. 2).)
Here, in determining that the District had significantly interfered with the Parent’s right to participate in the IEP process by rejecting her request without an open and earnest discussion by the entire IEP team at a meeting, the hearing officer explained it would have been appropriate for the District IEP team members to do research about the ABA prescription and form opinions about Parent’s request before the IEP meeting. However, it was improper for the District to decide to reject the request before the IEP meeting.
In recent years, LEAs have seen an increase in requests from parents to allow an insurance-funded ABA aide accompany their child at school. These requests are likely the result of the passage of Senate Bill 946 in 2011 which required health insurance plans to provide coverage for behavioral health treatment for pervasive developmental disorder or autism. (Health & Safety Code § 1374.73 (a).) Notably, this section further provides that the requirement of health plans to include services for students with autism “shall not affect or reduce any obligation to provide services under an individualized education program…”
Allowing an outside provider who is neither an employee nor a contractor of an LEA requires careful consideration of multiple variables including, but not limited to, whether the student requires the service in order to receive FAPE at no cost to the parent, an LEA’s right to select an appropriate IEP service provider, prevention of disruption of the learning environment, and potential liability if the individual is injured while on campus. In order to ensure a parent’s right to participate in the development of their child’s IEP, these variables must be considered within the context of an IEP meeting. Also, whenever an LEA receives a “prescription” from a student’s physician ordering a child to receive a particular service, an LEA should attempt to obtain additional information from the physician by requesting parental permission to confer with the physician and/or to make arrangements for the physician to speak to the IEP team.
SB 1375: Requirement that a School District, Charter School, or Private School Publicize Their Responsibilities and Students' Rights under Title IX
Passed in September 2016, SB 1375 requires any public or private school, charter school, school district, or county office of education that is subject to federal Title IX requirements to publicly post to the school’s website by July 1, 2017:
- The school’s responsibilities under Title IX,
- Students’ rights under Title IX,
- Contact information for the entity’s Title IX Coordinator, and
- A description of how to file a complaint under Title IX.
Title IX of the Education Amendments Act of 1972 is a federal law that states:
“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
Title IX applies all educational institutions that receive federal funds. Although Title IX is often thought of in terms of athletic opportunities, Title IX also impacts recruitment, admissions, and counseling; financial assistance; sex-based harassment; treatment of pregnant and parenting students; and discipline.
Each school (or school district) must designate at least one employee to coordinate their efforts to comply with and carry out their responsibilities under Title IX. This designated employee is referred to as the “Title IX Coordinator” and is responsible for coordinating the school’s or district’s responses to all complaints involving possible sex discrimination. This responsibility includes monitoring outcomes, identifying and addressing any patterns, and assessing effects on the campus climate.
In passing SB 1375, the State found that school districts were often unaware of their responsibilities and requirements under Title IX. As such, the law requires schools to publicly and prominently post their Title IX obligations to the school’s website by July 1, 2017.
SB 1375 Requirements:
As of July 1 2017, a school must post:
1. The name and contact information (including phone and email address) of their Title IX Coordinator;
2. Students’ rights and the School’s responsibilities under Title IX, including links to:
- The rights listed by Education Code § 221.8;
- The California Dept. of Ed’s Office for Equal Opportunity; and
- The U.S. Dept. of Ed’s Office of Civil Rights.
3. A description of how to file a complaint under Title IX, including:
- An explanation of the statute of limitations within which a complaint must be filed after an alleged incident of discrimination (ordinarily, within 180 days);
- An explanation of how a complaint will be investigated by the school/school district/county office of education, and how the individual may further pursue a complaint if unsatisfied with the outcome, including a link to The U.S. Dept. of Ed. Office of Civil Rights’ webpage on how to file a complaint; and
- Contact information to the U.S. Dept. of Ed Office of Civil Rights (phone and email address), and a link to OCR’s complaints form.
If a school does not maintain a website, it may comply with SB 1375 by posting the above information on the website of its school district or county office of education.
If you would like further assistance with complying with SB 1375, understanding your school’s obligations under Title IX, or creating the policies and procedures under which your Title IX Coordinator will operate, please contact us here at Girard, Edwards, Stevens & Tucker LLP.
On March 30, 2017, the 9th Circuit Court of Appeals ruled in an unpublished decision that a school district properly assessed a student with autism for dyslexia and dysgraphia through the use of reading and writing assessments. The court found that an assessment’s label is less significant than the skill levels the assessment is designed to evaluate.
Parents of a Washington student with autism sued their local school district for failing to evaluate their son for dyslexia and dysgraphia. Instead, the district assessed the student using reading and writing assessments which covered a number of disabilities, including specific learning disabilities.
The court found that the district’s broad assessments adequately covered the areas of suspected disability sought for assessment by the parents. The court noted that the district administered a “battery of tests,” many of which were also administered by the parents’ private evaluator. The parents were also unable to identify any additional tests which the district should have used.
Parents frequently ask school administrators if a school-given assessment evaluated their student for very specific disabilities. Describing how these assessments evaluate for potential learning disabilities to parents unfamiliar with these tests can be challenging. In this case, it appears that the parents may not have completely understood that the assessments given by the district did in fact evaluate their son for the disabilities suspected by the parents.
Faced with this issue, it is recommended that school administrators take special care to fully describe how each assessment is designed to test for certain disabilities. For example, explain to parents how certain “reading and writing assessments” are important tools in assessing for dyslexia and dysgraphia and the skills associated with those disabilities. School administrators and staff will also want to familiarize themselves with the Dyslexia Guidelines to be issued by the California Department of Education in August 2017 which are intended to assist schools and parents in identifying and assessing pupils with dyslexia (as required by Education Code section 56355).