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.
OSEP Issues Guidance on Convening IEP Team Meetings Prior to the Start of the School Year for Summer Transfer Students
Author: Heather M. Edwards, Attorney at Law
The Individuals with Disabilities Education Act and state law include specific requirements for IEPs for children who transfer local educational agencies (“LEAs”) within the same school year. Specifically, when a student eligible for special education transfers to a new LEA in the same SELPA in the same academic year, the new LEA must adopt an interim program that approximates the student’s old IEP as closely as possible until the old IEP is adopted or a new IEP is developed. (20 U.S.C. § 1414(d)(2)(C)(i)(1); 34 C.F.R. § 300.323(e); Ed. Code § 56325(a)(2).) Furthermore, when a student eligible for special education transfers to a new LEA in a different SELPA, the new LEA must provide the student with FAPE, including services comparable to those descripted in the previously approved IEP, in consultation with the parents, for a period not to exceed 30 days, by which time the new LEA is required to adopt the previously approved IEP or develop, adopt, and implement a new IEP. (Ed. Code § 56325(a)(1).)
However, these transfer provisions do not specifically address situations where a child with a disability transfers to a new LEA over the summer. (See e.g., Student v. Desert Sands Unified School District (OAH No. 2010100854); Student v. Acalanes Union High School District (OAH No. 2007100455).) Instead, IDEA requires a local educational agency to have an IEP in effect at the beginning of each school year for children who transferred between LEAs during the summer. (71 Fed. Reg. 46682 (August 14, 2006).)
On February 21, 2019, the U.S. Office of Special Education Programs (“OSEP”) issued Letter to Siegel, 119 LRP 6129, which provides that an LEA has discretion to decide whether it is necessary under the circumstances to convene an IEP team meeting before the first day of school for a student who transferred LEAs during the summer. In addition, if a parent requests that the new LEA convene an IEP meeting prior to the start of the school year and the new LEA refuses to do so, the new LEA is required to provide prior written notice to the parent of the refusal. OSEP explained that the prior written notice must include, among other required content, an explanation of why the LEA determined that conducting the meeting is not necessary to ensure the provision of services to the student.
As a result, LEAs need to ensure adherence to the state and federal provisions for transfer students which depends upon a variety of factors including whether the student is transferring from within the same SELPA, from outside the SELPA, or from another state, and whether the transfer occurs during the school year or over summer break. Adherence to these provisions is critical to avoid undue interruption of the provision of special education and related services to students with disabilities who transfer LEAs.
Schools Must Notify Both Pupils and Parents Twice a Year on How to Access Available Pupil Mental Health Services
Author: Eric Stevens, Attorney at Law
With AB 2022 now in effect, schools of school districts, county offices of education, and charter schools are required to regularly notify pupils and their parents or guardians “on how to initiate access to available pupil mental health services on campus or in the community, or both.” To reduce the likelihood that this information is overlooked amidst the numerous annual notifications provided at the start of a school year, AB 2022 requires schools to provide this mental health services information at least twice a year by at least two different methods. The law is intended to help bridge the gap between the need for pupil mental health services and pupils’ lack of awareness of the available mental health resources, especially amongst youth in poverty or with non-English speaking parents.
Specifically, section 49428 was added to the Education Code, requiring a school to use multiple methods to inform both pupils and their parents or guardians each year.
At least two of the following methods must be used to notify parents or guardians:
(1) Distributing the information by hardcopy letter or email;
(2) Including the information in the parent handbook at the beginning of the school year; or
(3) Posting the information on the school’s web site or social media web page.
At least two of the following methods must be used to notify pupils:
(1) Distributing the information in a document or school publication electronically or in hardcopy;
(2) Including the information in pupil orientation materials at the beginning of the school year or in a pupil handbook; or
(3) Posting the information on the school’s web site or social media web page.
While posting the information online may be one of the required methods for contacting both pupils and parents/guardians, the law as written implies that the information should be posted on the website for a particular campus to the extent individual campuses have their own web sites.
Section 49428 does not specify what information should be provided “on how to initiate access” to available services, or on what services should be available “on campus or in the community, or both.” This provides schools with discretion and flexibility. For example, schools may wish to include information on how to request and schedule counseling appointments or how to request a special education evaluation if a parent believes his or her child may have a disability. If a school wishes to include information on third-party services available “in the community,” local county mental health departments can help identify such services and how pupils or parents can access them. When deciding what information to include in required notices, remember that the law is intended to raise awareness regarding available services, especially amongst youth in poverty or with non-English speaking parents.
To help implement section 49428, counties are explicitly authorized to grant Mental Health Services Act funds to school districts, county offices of education, and charter schools.
State Legislature Makes Changes to Home-Hospital Instruction for Students with Temporary Disabilities
By Anisa Jassawalla, Attorney at Law
On January 1, 2019, Assembly Bill 2109 took effect, making several changes to the laws governing home-hospital instruction for students with temporary disabilities. According to the bill’s author “Unfortunately, unclear statutes have led some school districts to dis-enroll students once they become students of a hospital school.
This means parents have to re-enroll their students, which can lead to delays in students attending school, or students being unable to return to their prior school.” AB 2109 seeks to remedy this situation.
The new provisions particularly effect general education students with temporary disabilities. A “temporary disability” is defined as a physical, mental, or emotional disability incurred while a pupil is enrolled in regular day classes or an alternative education program, and after which the pupil can reasonably be expected to return to regular day classes or the alternative education program. Typically, the district of residence or school attended prior to the hospitalization may disenroll the student with a temporary disability, leading to delays once discharged from the hospital and seeking to reenroll in the district of residence or school of last attendance.
However, a pupil with a temporary disability who is in a hospital located outside the school district in which the pupil’s parent or guardian resides is deemed to have complied with the residency requirements for school attendance in the school district in which the hospital is located. As a result, the law shifts responsibility for providing such a pupil with hospital instruction to the school district in which the hospital is located.
AB 2109 authorizes, but does not require, a school district or charter school to continue to enroll a pupil who is receiving individual instruction in a hospital, in order to facilitate the pupil’s timely reentry in his or her prior school after the hospitalization has ended, or to provide a partial week of instruction to a pupil who is receiving individual instruction in a hospital for fewer than five days per week.
AB 2109 requires school districts and charter schools to allow a pupil with a temporary disability receiving individual instruction in the home or hospital setting to return to the school or charter school that the pupil attended immediately before receiving individual instruction, as long as the pupil returns during the school year in which the individual instruction was initiated.
This bill also provides that a pupil who is receiving individual instruction in a hospital setting for a partial week is entitled to attend school in his or her school district of residence, or receive individual instruction provided by the school district of residence in the pupil’s home, on days in which the pupil is not receiving individual instruction in a hospital.
For purposes of computing average daily attendance (ADA), a pupil may only be counted by the school district of residence or the charter school, or the school district in which the hospital is located, on days when the pupil is in attendance in that school district or charter school, or is receiving individual instruction in the hospital, respectively. The total attendance shall not exceed five days per week.
Given these changes to the law, local educational agencies will want to review their board policies and administrative regulations to ensure that they reflect current law consistent with the provisions of AB 2109.
It is also important to mention that AB 2109 applies to students with temporary disabilities. Any decision regarding the appropriateness of individualized instruction for students receiving special education services pursuant to an IEP must be made by the student’s IEP team.
By Michael Tucker, Attorney at Law
On September 28, 2018, Governor Jerry Brown wrote that in vetoing Senate Bill 1127, officials should “pause before going much further down this path” that would lead to the use of medical cannabis on school district, charter school and county office of education campuses. The vetoed bill would have permitted Local Educational Agency (LEA) governing boards to establish policies allowing parents or guardians to possess and administer medical cannabis to a student. While government officials “pause” to reflect on this approach, LEAs are faced with the very real possibility that a student could request to use medical cannabis on campus with little guidance.
Fortunately, a recent Office of Administrative Hearings decision sheds some light on how the seemingly conflicting federal and state cannabis laws may be interpreted when applied to a student requiring cannabis use on campus. In Student v. Rincon Valley Unified School District (OAH No. 2018050651), the hearing officer ruled that Rincon Valley denied a student who required the use of a cannabis medical product to reduce seizures a free and appropriate public education (FAPE) by only offering home instruction in an attempt to keep the cannabis product off campus. Rincon Valley attempted to justify their FAPE offer by providing that all cannabis possession is prohibited by federal law and the Drug-Free Workplace Act requires that Rincon Valley maintain a drug-free workplace for its employees. However, the hearing officer found that denying a student placement in the least restrictive environment based on a vague speculation that a federal law is being violated is unreasonable. Below are three suggestions based on this ruling to assist LEAs in navigating this complicated issue.
1. LEAs Should Not Assume a Federal Law Violation.
According to the hearing officer in Rincon Valley, the LEA was unable to specifically articulate the federal laws that created the risk of prosecution for allowing the medical cannabis to be possessed and used on campus. Instead, the hearing officer carefully analyzed the various state and federal statutes applicable to medical cannabis possession and on-campus use and determined the risk of federal prosecution to be very low. Therefore, if an LEA is basing any decisions regarding medical cannabis use on federal law, the LEA should carefully articulate those requirements.
2. LEAs Should Assess the Student’s Needs Against the Risk of a Legal Violation.
The hearing officer in Rincon Valley may have sided with the LEA if the risk of prosecution for violation of federal law was more significant when compared to the student’s need for the medical cannabis. The student used THC oil to prevent and limit the effects of seizures due to Dravet Syndrome. To support the student’s need, the student had several medical professionals explain how the THC oil was necessary and effective to prevent unnecessary and severe seizure complications. In response, the hearing office did not find that the LEAs concerns regarding federal prosecution for cannabis possession on campus to be comparable. Based on this, if an LEA is using a potential legal violation to support the LEA’s decision to deny the use of medical cannabis on campus then the LEA should weigh that consideration against the student’s need for the medical cannabis.
3. LEAs Should Carefully Evaluate a Student’s Needs if Medical Cannabis is Requested.
In Rincon Valley, the student was able to clearly and effectively articulate a connection between the student’s medical needs and medical cannabis. The student also provided evidence that the student was able to effectively access her education due to the benefits of medical cannabis. Therefore, LEAs should request the same level of support if a request is received for a student to use medical cannabis. LEAs should consider requesting permission to discuss the need for the medical cannabis with the student’s medical team so that the LEA can consider this information when making a placement offer.