Monthly Archives:' November 2013

School District Did Not Err in Relying on Three-Year Old Assessments for Eligibility Determination


HOLDING: On October 28, 2013 the Office of Administrative Hearings issued a decision in a due process matter holding, among other things, that a school district may rely on previously conducted initial assessments when determining whether a student is eligible for special education at a later date. (Student v. Oakland Unified School District, OAH Case No. 2013050664 (October 28, 2013)).

FACTS:  In 2009, while attending a District charter school, psychoeducational and academic assessments were conducted, neither of which indicated Student was eligible for special education services. In 2011, the District relied on the 2009 assessments in again finding the Student was not eligible for special education services. In 2012, the District conducted a speech and language assessment on the Student, again finding that student was not eligible for special education services. Student argued that the District should have conducted an additional psychoeducational assessment in 2012 and should have found that Student was eligible for special education services because of a specific learning disability (SLD). Student also argued that the District should have suspected Student had an SLD, specifically, an auditory processing disorder, due to Student’s low grades, reports of his teachers, and the fact that his subsequent district (Berkeley Unified) found him eligible for special education because of an SLD.

RATIONALE: The District successfully argued that it correctly determined in 2009 that Student did not have a disorder of any kind and that his subsequent grades and teacher reports did not change that determination or require its reconsideration. The District’s argument was bolstered by witness testimony that children’s cognitive abilities typically stay the same throughout life and processing disorders normally appear when children are young.

While it is possible that a processing disorder not apparent in third grade could appear in fifth grade, the probability is very rare absent some external event such as exposure to lead paint, an auto accident, or head trauma. The District therefore appropriately relied on the results of the 2009 psychoeducational and academic tests in finding Student ineligible for special education in 2011 and after conducting a speech and language assessment in 2012 and again determining that Student was not eligible for special education services.

OAH also rejected Student’s argument that the District failed to assess Student in all areas of disability between February 2012 and August 2012 despite Student’s guardian and teachers requesting reassessment. OAH held that, although the District has continuing child find duties that may require reassessment when new circumstances are present, because witnesses testified credibly that the sort of processing disorder suspected here would show its effects continually throughout Student’s life and would in all likelihood appear in early childhood, it is highly unlikely that a processing disorder that did not appear in third grade would appear on the same kind of assessments in fifth grade. OAH also found persuasive evidence that Student was frequently absent which was addressed through informal remediation to make up for the lost class time. Formal remediation is statutorily a factor that may indicate the presence of an SLD, however Student offered no evidence that the District provided anything more than informal remediation.

OAH lastly rejected Student’s claim that he should have undergone an additional psychoeducational assessment in April 2012 at the time of the speech and language assessment for the same reasons that the court upheld the District’s reliance on the 2009 assessments. OAH also rejected Student’s claim that he was denied FAPE based on the fact that his subsequent district (Berkeley Unified) found the Student eligible for special education because of the presence of an SLD due to an APD. OAH held that Berkeley Unified’s finding of special education eligibility was in error because the psychoeducational assessment upon which the auditory processing disorder designation was based used outdated testing procedures and was conducted by an optometrist who was neither trained nor licensed to determine the presence of an APD.

Probation Department Held Responsible for Special Education Services for Students in Juvenile Hall When Its Actions Prevent a Student From Receiving Services through the County Office of Education

On October 17, 2013, the Office of Administrative Hearings issued three decisions in cases against the Contra Costa County Probation Department with largely similar facts. (Case Nos. 2013080462, 2013080449, 2013080471). In the decisions, OAH held that if a County Probation Department prevents a County Office of Education from carrying out its duty to provide eligible students detained in juvenile hall with special education services, the role of “responsible public agency” falls on Probation.

More specifically, the Individuals with Disabilities Education Act (IDEA) requires that a responsible public agency exist for each student eligible to receive special education services. If a county office of education cannot carry out its federally mandated duty to provide special education services, the obligation to educate the student must fall on another public entity. In the cases above, the Contra Costa County Office of Education was unable to carry out its duty to serve special education students in juvenile hall because Probation placed the students in a security program which prevented the students from attending school or receiving educational services in their housing unit.  In such circumstances, the hearing officer found that OAH could properly exercise jurisdiction over Probation in a special education due process matter.

The hearing officer agreed with expert testimony that likened the education of institutionally segregated wards to that of students placed on home-hospital instruction. In the latter case, local educational agencies are responsible for home-hospital instruction, typically for one hour per day, to special education students who are unable to attend school due to a medical condition or other reason.  By analogy, because Probation determines when a student may return to a juvenile hall school or level of access to home-hospital instruction while the child is on a security program, Probation is a jointly responsible agency.  In such narrow circumstances, Probation’s responsibilities include child find duties and the provision of special education services for students with an IEP.


CDE and OSEP Issue Guidance on “School Breaks” as an Exception to 60-Day Initial Evaluation Timeframe

Under federal law, initial evaluations for special education must be conducted within 60 days of receiving parental consent for the evaluation or, if the State established a timeframe within which the evaluation must be conducted, within that timeframe. 34 C.F.R. § 300.301(c). However, the 60-day timeframe does not apply under two circumstances: (1) the parent repeatedly fails or refuses to produce the child for evaluation, or (2) the child enrolls in a school of another public agency after the 60-day timeframe has begun, and prior to a determination by the child’s previous public agency as to whether the child is eligible for special education. 34 C.F.R. § 300.301(d).

California has similarly established a 60-day timeframe for an initial evaluation. Ed. Code § 56344. However, California law further provides that school breaks in excess of five (5) days, and/or days between regular school sessions/terms do not count in the 60-day calculation. Ed. Code § 56344.

Until very recently, the California Special Education Management Information System, or CASEMIS, listed vacation days in excess of 5 days, or “school breaks”, as an exception to the 60 day timeline for initial evaluations in addition to those listed under the federal law mentioned above. However, during the week of October 20, 2013, the California Department of Education (“CDE”) removed “school breaks” from CASEMIS as a possible exception to the 60 day initial evaluation timeline.

CDE representatives have indicated that the “school breaks” option was removed from CASEMIS in an effort to more accurately comply with federal law. In fact, in April 2012, the US Department of Education’s Office of Special Education Programs (“OSEP”) released a letter clarifying that states are indeed free to establish a timeframe within which initial evaluations must be completed under federal law. (Letter to Reyes, April 11, 2012). However, OSEP explained that any timeframe established by a state must incorporate the two exceptions enumerated under 34 CFR 300.301(d), and none others. While the OSEP letter is not binding legal authority, OSEP’s clear guidance is that there is no exception that would permit the applicable initial evaluation timeline to be suspended because of a school break.

OSEP acknowledged that conducting evaluation activities during extended breaks, such as the typical school’s summer vacation, could be challenging for local educational agencies given the possible unavailability of some school staff members. Nevertheless, the IDEA mandates that the initial evaluation of a child suspected of having a disability not be unreasonably delayed so that eligible children with disabilities are not denied FAPE.

What This Means for Local Educational Agencies:

On one hand, a reasonable argument can be made that California’s “school breaks” provision does not necessarily establish an unlawful exception to the 60 day timeline, but rather it establishes an extension of the 60 day timeline, which is permissible under 34 CFR § 300.301(c). On the other hand, failure to conduct initial evaluations within 60 days may cause compliance errors in reporting data to the state given that “school breaks” is no longer listed as an option in CASEMIS, and would be contrary to OSEP guidance.

Given that the law is unsettled in this area and due to the lack of regulatory guidance specific to California, local educational agencies are advised to use best efforts to conduct initial evaluations within 60 days of receiving parental consent for the assessments, without regard to school breaks in excess of 5 days.