Author: Eric Stevens
In the case of M.C. v. Antelope Valley Union High Sch. Dist. (2017) 858 F.3d 1189, the Ninth Circuit Court of Appeals considered parents’ complaint that their student was denied a FAPE when a school district unilaterally changed the provision of vision services in an IEP from 240 minutes per month to 240 minutes per week. The school district claimed that the district and parents had verbally agreed to 240 minutes per week at the IEP meeting, but the signed IEP agreement contained a typo.
While providing more minutes of vision services did not substantively harm student, the Ninth Circuit Court of Appeals agreed with parents, ruling that the school district’s unilateral revision to student’s IEP was a procedural violation of the IDEA that denied student a FAPE.
A procedural violation of the IDEA can deny a student a FAPE when it seriously infringes on a parent or legal guardian’s opportunity to participate in the IEP formation process. Here, the Ninth Circuit found that parents were denied this opportunity and student was denied a FAPE.
An IEP is like any other written contract and cannot be unilaterally changed. If any party believes that the IEP needs to be changed, it must notify the other party and seek consent to an amendment. It does not matter if a local educational agency (LEA) believes that it is merely correcting a typo to reflect what was agreed upon at a meeting or to provide more services to a student. As a practical matter, the parents may disagree that the issue is a typo and seeking consent to the “correction” can help protect the LEA from a later due process complaint. As a legal matter, any unilateral change to an IEP is a procedural violation of the IDEA that may be the basis for a denial of FAPE claim as it was in this case.
The Ninth Circuit also observed that an IEP provides notice to both sides of what services will be provided to a student during the term of the IEP. The IDEA is just as concerned with parental participation in the formation of an IEP as it is in the enforcement of an IEP. When an LEA provides services that are different from what is in a signed IEP, it undermines parents’ ability to enforce the IEP. As the Ninth Circuit found in this case, it can lead to the necessity for parents to retain an attorney to clarify what services (or the amount of services) that are being provided.
Author: Michael Tucker, Attorney at Law
On July 19, 2017, a California Administrative Law Judge (ALJ) found for the Rialto Unified School District (District) in that the program offered by the District provided FAPE despite failing to identify a specify dyslexia methodology or program. (Rialto Unified School District, 2017, 70 IDELR 267.) The ALJ found that the student’s dyslexia diagnosis and needs were being satisfied through services identified to address other identified goals.
Student was a 17-year old diagnosed with dyslexia, SLD, ADHD and a mood disorder. Based on this information, the District placed Student in a special day class with two periods spent in general education classes. No goal was specifically designed to address Student’s dyslexia. Instead, the District implemented goals for reading comprehension and written expression, which according to the District, were “designed to work on Student’s deficits caused by the dyslexia.”
Despite this, the Student’s parents filed for due process based on the District’s failure to include a specific program or methodology specifically addressing Student’s dyslexia.
The ALJ ruled consistent with the 9th Circuit Court of Appeals which held that “it is not necessary for a school district to specify a methodology for each student with an IEP if specificity is not necessary to enable the student to receive an appropriate education.”
The ALJ found that the Student made sufficient academic progress on the goals implemented by the District. Moreover, the ALJ found that as long as the student’s individualized needs are met, the specific program or methodology offered is secondary to the Student’s progress.
Therefore, Local Educational Agencies (LEAs) should remain focused on programs, services, and methodologies that offer the greatest opportunity for student progress based on the student’s needs. LEAs should offer evidence of a student’s progress to a parent if the parent is concerned about the LEA’s specific program. Showing such progress may help the LEA avoid a due process filing in the event of a dispute regarding a specific program.
New Guidance Issued from U.S. Department of Education About FAPE Standard Set Forth in Endrew F. Decision
On December 7, 2017, the U.S. Department of Education’s Office of Special Education and Rehabilitative Services (OSERS) released a Question and Answer (Q&A) document addressing the U.S. Supreme Court decision in Endrew F. v. Douglas County School District Re-1 (2017), which clarified the scope of the free appropriate public education (FAPE) requirements in the Individuals with Disabilities Education Act (IDEA).
In Endrew F., the U.S. Supreme Court held that an IEP must be reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances and enable the child to have the chance to meet challenging objectives. However, the court did not define the phrase “progress appropriate in light of the child’s circumstances.” This new Q&A document provides a discussion of the FAPE requirements and includes questions addressing implementation considerations including, “Is there anything IEP Teams should do differently as a result of the Endrew F. decision?”
The answer to that question appears to be that IEP teams must implement policies, procedures, and practices relating to (1) identifying present levels of academic achievement and functional performance; 2) the setting of measurable annual goals, including academic and functional goals; and 3) how a child’s progress toward meeting annual goals will be measured and reported, so that the Endrew F. standard is met for each individual child with a disability.
Governor Brown Signs AB 1360 into Law, Authorizing Additional Categories of Enrollment Preferences and Requiring Increased Detail for Suspension/Expulsion Procedures Contained in Charter Petitions
Author: Colby Mills, Attorney at Law
On October 13, 2017, the Governor Brown signed Assembly Bill (AB) 1360 into law to take effect January 1, 2018. AB 1360 makes several small changes to the 15 “reasonably comprehensive descriptions” a charter petition is required to contain under the Charter Schools Act (Education Code § 47605(b)(5)). Notably, AB 1360 received support from both the California Charter Schools Association and the California Teachers Association.
First, AB 1360 permits charter schools to include two additional “enrollment preferences” categories when setting forth a charter school’s lottery process to be used when applications exceed a school’s capacity. Charter schools are now specifically authorized to use two previously popular (but not codified into statute) preference categories:
- Children of the charter school’s teachers, staff, and founders; and
- Siblings of current charter school students.
Charter schools may still specify additional preferences, such as residents of the authorizing school district, but all preferences must be consistent with federal and state law, and may not result in limiting enrollment access for pupils with disabilities or other disadvantaged students.
Second, AB 1360 now requires charter petitions to specify what acts can result in a suspension or expulsion and set forth due process procedures for suspensions/expulsions. Depending on the length of the suspension, or if expulsion is sought, a student must be provided “oral or written notice of the charges against the pupil,” “an explanation of the evidence that supports the charges and an opportunity for the pupil to present his or her side of the story,” and/or “a hearing adjudicated by a neutral officer within a reasonable number of days at which the pupil has a fair opportunity to present testimony, evidence, and witnesses and confront and cross-examine adverse witnesses, and at which the pupil has the right to bring legal counsel or an advocate.”
Moreover, for any non-voluntary removal, the student’s parent or guardian must be given written notice of intent to remove the pupil no less than 5 school days in advance, and the parent/guardian must be given the right to challenge the non-voluntary removal under the same procedures as an expulsion.
Additionally, AB 1360 allows charter schools to encourage parental involvement—whether through volunteer hours or donations—but prohibits charter schools from requiring parental involvement as a condition to acceptance or continuing enrollment in the school.
Author: Michael Tucker, Attorney at Law
On October 31, 2017, the U.S. District Court of the Western District of Pennsylvania upheld a decision finding that a local education agency (LEA) did not violate Child Find requirements when the LEA acted promptly by assessing and providing services to the student.
As a preschool student, Student received some special education services even though the preschool determined that Student’s delays did not impede Student’s learning. Upon entering kindergarten with the District, the District evaluated Student to determine if continued services were necessary. The District determined that while not disabled, Student suffered from “behavioral and focus issues.” The District’s IEP team concluded that the kindergarten classroom’s “repetitive and consistent methodology” would address Student’s issues.
However, after Student began attending classes, his classroom teacher became concerned regarding his “extreme response to frustration, expressed fear of the classroom toilet…[his] difficulty staying on task and expressing himself, and [he] would ‘meltdown’ by crying loudly.” Within a few months, District had completed several assessments and convened an IEP meeting. As the assessments were being completed, Student received ongoing counseling from the school psychologist and behavioral specialist. As a result of the IEP meeting, Student received monthly therapy sessions, counseling, weekly behavioral interventions and other services. Student progressed with these interventions and the behavioral interventions were concluded prior to Student’s admission into first grade.
Student’s progress seemingly continued until midway through his first grade year when many of his behavioral issues returned. Parents filed a due process complaint alleging that Student was denied a free appropriate public education (FAPE) when the District failed to meet its Child Find obligations. Parents alleged that the District failed to identify the Student as disabled and waited too long to implement appropriate accommodations.
Under the IDEA, Child Find requires that students in “need of special education and related services are identified, located and evaluated.” 20 U.S.C. § 1412(a)(3). Thus, LEAs maintain a continuing obligation…to identify and evaluate all students who are reasonably suspected of having a disability.” P.P. ex rel. Michael P. v. West Chester Area School Dist., (2009) 585 F.3d 727, 738.
However, LEAs are not required to identify a student as disabled at the “earliest possible moment,” especially in very young children. Board of Educ. Of Fayette Cnty., Ky. v. L.M., (2007) 478 F.3d 307, 313 as cited by D.K. v. Abington School Dist., (2012) 696 F.3d 233, 251.
Here, the court found no Child Find violation because the District acted within weeks of Student’s enrollment and Student’s young age.
This case illustrates the difficulty in satisfying an LEA’s Child Find obligations with very young students. The court noted that the less structured environment of early grades combined with a student’s relative immaturity may make it difficult for LEAs to differentiate between traditional students and those with disabilities. However, once a suspected disability and potential need for special education arises, an LEA is required to act promptly in order to satisfy its requirements under Child Find. The District in this case did just that, acting within weeks of Student’s initial enrollment in kindergarten. The court concluded that this prompt action satisfied the District’s Child Find obligations.
In California, when a special education student experiences an acute health problem which results in non-attendance at school for more than five (5) consecutive days, the local educational agency is required to inform the parent of the availability of individual instruction to be delivered in the pupil’s home, hospital, or other residential health facility (except a state hospital). Then the LEA must convene an IEP team meeting to determine appropriate educational services for the student. 5 C.C.R. § 3051.17. What happens if instead of home instruction, the parents request that a robot be included in the IEP which would allow their child to virtually attend school?
As new technology of this kind emerges, IEP teams need to know how to properly address parent requests for robots for homebound students.
For example, in Warren Hills Reg’l High Bd. of Educ., 70 IDELR 57 (SEA NJ 2017), a ninth grade student with Marfan syndrome endured multiple heart surgeries that required hospitalizations and at-home recovery. Additionally, physical challenges often prevented his attendance at school. The student reported having bouts of sadness and feelings of isolation from not being able to discuss information in class with his teachers and classmates. His parents requested that a robot be included in the IEP which would permit their son’s virtual attendance at school. The robot would allow the student to see from home what is happening in the classroom and interact with people at school through video communication. The district had concerns that the student would miss instruction in case of a breakdown in the technology or on days when he was unable to use the device due to his physical issues. It determined that home instruction was sufficient.
The parents filed a due process complaint. The hearing officer explained that determining whether a district has complied with the IDEA’s least restrictive environment (“LRE”) mandate requires deciding: 1) whether education in the regular classroom with use of supplementary aids and services can be achieved satisfactorily; and 2) if placement outside of the regular classroom is necessary for the child’s educational benefit, whether the district has included the child in school programs with children without disabilities to the maximum extent appropriate.
The hearing officer found that the district was predisposed to be against the inclusion or “even consideration” of the robot. The staff did “little to make inquiries, conduct its own due diligence, or generally explore how to make it work.” More specifically, no one from the district “made any real attempt to obtain information from other districts … [that] have successfully deployed this technology.”
As a result, the hearing officer determined that the district did not provide FAPE in the LRE because it declined to use or consider available technological modifications to allow the student access to direct instruction as it is delivered in the regular education setting.
What This Means for You: Extended absence from the classroom can have negative educational and social consequences as students may fall behind in instruction, feel isolated from their peers, and experience loneliness and depression. Telepresence robots are now helping students with significant health conditions participate in class virtually. There are a variety of devices available (e.g., tablets on wheels that can be controlled remotely by a student, or stationary devices which sit on a desk and can be remotely controlled for panning and rotating the screen) which allow students a presence in the classroom again who would otherwise have little or no interaction with classmates or teachers.
When parents request what seems like high-tech assistive technology for their child, an LEA needs to keep an open mind. The LEA is required to consider that request and explore whether such technology is appropriate to meet a student’s unique needs. The plain meaning of “consider” is to reflect on or think about with some degree of care or caution. Therefore, IEP teams will want to at least research the technology, consult with the student’s doctors, consider how much training will be required of staff, classmates, and the student, address issues related to confidentiality for other students in the classroom, and discuss Internet connectivity issues.
Author: Michael Tucker, Attorney at Law
On June 27, 2017, the Public Employment Relations Board ruled that after impasse is declared a party can only proceed to factfinding once. In the City of Watsonville, the City and its employee unions met in 2015 to negotiate successor agreements. The following timeline illustrates the events that unfolded during the negotiations:
- June 1, 2015 – Employees declare impasse but City and Employees continue to negotiate;
- June 9, 2015 – Mediator appointed;
- August 5, 2015 – Employees request factfinding regarding the successor agreement with the City;
- August 12, 2015 – Employees withdraw factfinding request.
The parties continued to negotiate until June 29, 2016 when the Employees again declared impasse. The City did not impose its last best and final offer. On July 7, 2016, almost a year after their initial request, Employees again requested factfinding regarding the successor agreement with the City. The City objected to the request since the Employees had already requested factfinding regarding the same issue and withdrew their request.
PERB ruled that the second factfinding request was untimely under the MMBA’s specific timelines. However, PERB pointed out that by creating “definite time limits for the availability and initiation of the factfinding process, the Legislature clearly intended that factfinding would begin relatively soon after a dispute had reached impasse.” (City of Redondo Beach (2014) PERB No. Ad-409 M.)
Under the EERA, (the collective bargaining statutes applying to most local educational agencies) if the mediator is unable to effect settlement within 15 days after appointment, and the mediator declares that factfinding is appropriate, either party may request factfinding. (Cal. Govt. Code § 3548.1(a).)
While it is unclear if PERB would reach a similar result under the EERA, City of Watsonville provides some valuable insight. Specifically, PERB noted that bargaining is only completed when agreement is reached or impasse procedures are concluded. In City of Watsonville, neither had taken place. Therefore, the parties were still engaged in the same bargaining process from the first bargaining session in 2015 to the Employee’s second factfinding request in July 2016. As such, factfinding could only be requested once.
During any bargaining, it is important to keep in mind that bargaining is not concluded until an agreement is reached or impasse is concluded. It is also worth noting that City did not impose their last best and final offer and instead continued to negotiate in good faith. Continuing to bargain obviously increases the opportunities for an agreement, despite the impasse request.
Those wanting to learn more about bargaining best practices, mediation and factifinding may attend our bargaining workshop, From Principles to Practice: Effective Collective Bargaining to Useable Agreements on October 17, 2017. For more information, please click HERE.
Author: Colby Mills, Attorney at Law
On August 14, 2017, the California Superintendent of Public Instruction released “The California Dyslexia Guidelines,” as required by Assembly Bill 1369 (2015) and California Education Code Sections 56334 and 56335.
The California Dyslexia Guidelines (which can be found by clicking the associated link) are intended “to assist regular education teachers, special education teachers, and parents in identifying, assessing, and supporting students with dyslexia.” The Guidelines “draw on both current research and the collective professional wisdom and experience of the members of the Dyslexia Guidelines Work Group, which met in a series of seven meetings from April 2016 through March 2017.”
The Guidelines state that dyslexia may “be understood as one type of a specific learning disability,” and is “characterized by difficulties with accurate and/or fluent word recognition and by poor spelling and decoding abilities.”
The Guidelines address:
- Screening and assessment for dyslexia;
- Assessment tools;
- Special Education and 504 plans;
- Current understanding of the neuroscience behind dyslexia;
- Dyslexia’s nature as a language–learning disability;
- Symptoms, strengths, weaknesses, and socio-emotional factors of dyslexia;
- Dyslexia and English-language learners;
- Preparation of and for Educators;
- Effective approaches and strategies for teaching students with dyslexia;
- Assistive technology and dyslexia; and
- Information for parents and guardians.
It is important to note that the guidelines are not binding on local educational agencies or other entities. However, the guidelines can help assist educational professionals in serving students with dyslexia.
The Dyslexia Guidelines Work Group webpage (http://www.cde.ca.gov/sp/se/ac/dyslexia.asp) states that the “the document is exemplary, and compliance with it is not mandatory” “[e]xcept for the statutes, regulations, and court decisions” the Guidelines reference.
Superior Court Upholds County Board of Education’s Discretion and Authority to Conditionally Approve Charter Petition on Appeal
Girard, Edwards, Stevens & Tucker LLP successfully defended the Orange County Board of Education’s discretion and authority to conditionally approve the Excellence Performance Innovation Citizenship Charter School (“EPIC”) petition on appeal, and to determine for itself whether EPIC had satisfied those conditions.
The Anaheim Elementary School District and Anaheim Union High School District sued in December 2016 to void the County Board’s approval of EPIC’s charter petition or to compel the County Board to revoke the petition. The Anaheim Districts argued that the County Board abused its discretion by conditionally approving the EPIC petition in November 2015 despite Orange County Department of Education Staff’s recommended denial. In the alternative, they argued that EPIC had not satisfied the conditions of its approval and that the County Board should be forced to revoke EPIC’s petition.
The Superior Court found that the County Board did not abuse its discretion when it conditionally approved EPIC’s charter petition and later determined that EPIC had satisfied those conditions. The Court showed great deference to the County Board’s decision-making and its ruling contains a number of important conclusions and implications:
(1) the Charter Schools Act allows a board to conditionally approve a charter petition if the board believes a petition has some deficiencies, but those deficiencies can be remedied;
(2) a board is not bound to follow a report and recommendation from its staff;
(3) the validity of charter petition signatures may be judged as of the time a charter petition is filed with a potential authorizer; and
(4) if a board imposes subjective conditions on an approved charter petition, the board retains discretion to interpret those conditions and decide whether they have been satisfied.
EPIC submitted a charter petition for a K-12 online, independent study program to the Anaheim Elementary School District in May 2015. The District denied the petition and EPIC appealed to the County Board. On appeal, both the Anaheim Elementary School District and the Anaheim Union High School District (in which EPIC would also operate) encouraged the County Board to deny the appeal.
Orange County Department of Education Staff reviewed the EPIC appeal and recommended that the County Board deny the appeal, citing Staff concerns over EPIC’s educational program, the signatures submitted with the petition, the petitioners’ ability to successfully implement the program, and the petition’s descriptions of various elements of the program.
The County Board believed that Staff’s concerns were not insurmountable and, in November 2015, the County Board voted to approve the EPIC petition, conditioned on the petitioners addressing the areas of concern noted in the Staff’s recommendation for denial and executing an MOU within four months.
One such area was petition signatures: had the EPIC petition been submitted to the Anaheim Elementary School District in May 2015 with a sufficient number of signatures of “meaningfully interested” parents? County Staff and the petitioners subsequently pursued different strategies to validate the signatures. County Staff attempted to contact individuals who had signed the petition months earlier to verify their “meaningful interest.” EPIC checked original signatures against voter registration cards to verify identities and pointed to the fact that the signature pages contained affirmations of “meaningful interest.” After extended discussion and Staff updates at multiple meetings, the County Board was satisfied that the EPIC petition had been submitted with a sufficient number of genuine signatures, and concluded that EPIC had satisfied the conditions of its approval based in part on Staff’s feedback that EPIC had addressed concerns through meetings and the adoption of an implementation plan. The County Board approved an MOU with EPIC in March 2016 and EPIC began serving students in the Fall of 2016.
When considering a charter petition, the Charter Schools Act (“CSA”) gives significant discretion to a school district governing board or county board of education. A court will generally defer to a board’s decision to approve or deny a charter petition if:
(1) the board explained what it was doing when it took action,
(2) the board made or adopted factual findings in support of its decision,
(3) there was some evidence before the board to support its decision, and
(4) the board did not misinterpret or misapply the law in making its decision.
Most of the six permissible reasons to deny a charter petition call for subjective judgments (see Educ. Code §§ 47605(b), 47607(b)), and if the four criteria above are satisfied, a court should not overrule a board’s decisions even if the court or another public agency has a different opinion on whether a petition could or should have been denied.
Factual findings often come from a staff recommendation presented to the board. If a board agrees, it can adopt the staff report’s proposed findings. However, as this ruling shows, ultimate authority always rests with the board and a board may disagree with staff’s findings or recommendation. A board may always make and adopt its own findings during a public meeting, or partially adopt staff’s proposed findings with modification from the board.
If you have any questions regarding this case or charter petition review generally, please contact Eric Stevens of Girard, Edwards, Stevens & Tucker LLP at (916) 706 – 1255.
Ninth Circuit Held that District Did Not Predetermine Student’s Placement at a Private School or Deny Student FAPE by Failing to Include Private School Representative in IEP Meeting
The parent of a 10 year old student with autism filed a due process complaint alleging, among other things, that the school district denied her child a free appropriate public education (FAPE) by (1) not considering her feedback or preferred placements during the IEP decision-making process, and (2) failing to include a private school representative in the IEP team meeting. On appeal, the Ninth Circuit ruled in the District’s favor, finding that it did not deny Student a FAPE. (R.A., Hagit Habash, et al. v. West Contra Costa Unified School District, 70 IDELR 88, (9th Cir. 2017).)
It is a violation of IDEA if a local educational agency predetermines placement for a student before the IEP is developed or steers the IEP to the predetermined placement. K.D. ex rel. C.L. v. Dept. of Educ. Hawaii, 665 F.3d 1110, 1123 (9th Cir. 2011). LEAs may not present certain placements as a “take it or leave it” option to parents. (See e.g., JG v. Douglas Cty. Sch. District, 552 F.3d 786, 801 (9th Cir. 2008).) Here, the court determined that the District did not predetermine Student’s placement in that the District had researched and discussed multiple placement options during two IEP meetings at which the Parents actively participated before determining that a private school was specifically tailored to the Student’s needs.
Private School Representation at IEP Team Meeting
IDEA requires that when developing IEPs for private school placements, LEAs are required to ensure that a representative of the private school attends an IEP meeting before the LEA places or refers the child to the private school. If the representative cannot attend, the LEA must use other methods to ensure participation by the private school including via telephone. (34 C.F.R. § 300.325.)
Here, the court also analyzed Parents’ argument that the district denied Student a FAPE by failing to ensure that a representative of its proposed private school placement attended the IEP meeting. The court determined this was a procedural violation of IDEA. However, the court focused its analysis on whether this violation affected Parents’ active participation in the IEP process, rather than an automatic denial of FAPE. Interactions that occurred after the IEP team meeting showed that the District arranged for Parents to meet with private school personnel so that any questions and concerns could be addressed, Parents visited the school and were advised by the school on what next steps would be. Parents advanced no argument as to how absence of a private school representative directly affected their rights. As a result, the court held that this procedural violation did not rise to the level of a denial of FAPE.
LEAs always need to be willing to consider other alternatives and participate in IEP meetings with an open mind. The difference between “preparation” and “predetermination” is an LEA’s willingness to actively listen to the parents’ concerns and input. It is also important to ensure that all IEP team members participate in the discussion and are able to express opinions and recommendations. The fact that an LEA does not ultimately offer the placement that parents prefer, or even that some IEP team members prefer, does not mean that an LEA has predetermined the student’s placement. Also, LEAs need to take steps to ensure participation (preferably in person, but if not, by telephone) of private school personnel in IEP meetings at which consideration of private placement for a child will occur.