SES Fall 2013 - Legal Update

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Cases, Guidance,
Legislation, and Other
Developments

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Legal Update Overview . . .
 New Developments on Hot Topics (Insulin,
Bullying, Procedural Errors as Denial of
FAPE, Residential Placement, Autism, DSM-
5)
 Latest Federal Guidance on Special
Education Issues
 Recent Developments in California

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I. New Developments
on
Hot Topics

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New Cases – Administration of Insulin
American Nurses Association v. Torlakson (Cal. 2013)
 What Happened:
 California Supreme Court reversed 2010 Court
of Appeals decision
 State law allows trained, unlicensed school
personnel to administer prescription medication,
including insulin (with parents’ consent)
 In accordance with written statements from
student’s physician

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New Cases – Administration of
Insulin
 What Happened:
 Court interpreted Ed Code language
 Looked at intent of Legislature, State Board of
Education
 Rejected ANA’s argument that only school
personnel who are licensed health care
providers (i.e., school nurses) may administer
prescription medication
(American Nurses Association v. Torlakson (Cal., Aug. 12, 2013, S184583))

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New Cases – Administration of Insulin
 What’s Next:
 Remember requirements:
“Trained” personnel
Parental consent
Written statement from physician
 Review policies/procedures
to ensure compliance

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New Cases – Bullying/Harassment
Smith v. Harrington (N.D. Cal. 2013)
 What Happened:
 Parent alleged Student was target of repeated
bullying; claimed principal retaliated when he
attempted to get District to follow OCR rules
 Claim based on 14th Amendment rights (failure
to protect against acts of violence)
 Court: No violation unless placed in dangerous
situation – not applicable here
(Smith v. Harrington (N.D. Cal. 2013) No. C-12-3533, 60 IDELR 276)

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Long v. Murray County School Dist. (11th Cir. 2013)
 What Happened:
 Student’s suicide due in part, Parent alleged, to
“culture of bullying” at school
 Court rejected Section 504 damages claim;
District’s actions did not amount to “deliberate
indifference”
 Responded promptly to incidents even if not
always successfully
(Long v. Murray County School Dist. (11th Cir. 2013, unpublished) No. 12-13248)

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Sutherlin v. Independent School Dist. (N.D. Okla. 2013)
 What Happened:
 Parents claimed Student subjected to constant
bullying from peers; school official referred to
Student as “crazy”
 Court refused to dismiss damages claim; facts
could support “deliberate indifference” charge
 Asserted several instances of bullying reports
that were ignored
(Sutherlin v. Independent School Dist. (N.D. Okla. 2013) 61 IDELR 69)

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Viera v. Honeoye Cent. School Dist. (W.D.N.Y. 2013)
 What Happened:
 Student who was blind allegedly subjected to
hostile environment by teacher’s harassing
conduct (intentionally startling student by yelling)
 Court: Words were “ill-mannered, uncivil and
abrasive,” but not enough to create hostile
environment
(Viera v. Honeoye Cent. School Dist. (W.D.N.Y. 2013) 61 IDELR 71)

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 Why the Cases Matter:
 Many bullying/harassment
claims (peers and teachers) now
making their way to federal court
 Money damages liability is possible if conduct
demonstrates “deliberate indifference”

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Procedural Errors
as Denial of FAPE

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New Cases – Procedural
Errors/FAPE
Doug C. v. State of Hawaii Dep’t of Educ. (9th Cir. 2013)
 What Happened:
 School wanted to hold IEP meeting before
annual review deadline; Parent could not be
present, so meeting proceeded without him
 Failure to include Parent infringed on ability to
participate, denied FAPE
 Prioritizing deadline compliance over parental
participation was “unreasonable”
(Doug C. v. State of Hawaii Dep’t of Educ. (9th Cir. 2013) 61 IDELR 91)

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Errors/FAPE
Student v. Mount Diablo Unified School Dist. (OAH 2013)
 What Happened:
 Failure to convene IEP meeting in timely manner
denied FAPE
 Noteworthy: ALJ indicates 60-day assessment
timeline is tolled during breaks
 Conflicting statutory provisions and OSEP
pronouncement
(Student v. Mount Diablo Unified School Dist. (OAH 2013) No. 2012110641)

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Errors/FAPE
 Procedural violations deny FAPE
only in limited circumstances
 Watch for “impeding parent’s opportunity to
participate” or “deprivation of educational benefit”
 60-day assessment timeline: Break or no break?

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New Cases – Residential Placement
Student v. San Diego County Office of Educ. (OAH 2013)
 What Happened:
 12-year-old Student with ED caused death of
best friend; taken to JDF
 ALJ concluded Student required RTC placement
upon release; needed more restrictive
environment than SDC proposed by County
 County must take into account Student’s needs
as a child with fetal alcohol syndrome
(Student v. San Diego County Office of Educ. (OAH 2013) No. 2012110566)

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Student v. Sacramento City USD (OAH 2013)
 What Happened:
 Parents argued that 16-year-old Student with ED
(who had run away from group home and ended
up in juvenile hall) required out-of-state RTC
 But evidence showed current residential
placement was related to juvenile justice
concerns (couldn’t return home due to drug use,
violence), not educationally related reasons
(Student v. Sacramento City Unified School Dist. (OAH 2013) No. 2013010137)

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 More residential placement cases
going to due process than ever
before
 General rule: District will be responsible if
residential placement necessary to meet
educational needs or if medical, social emotional
problems are intertwined with education needs

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New Cases – Autism Litigation
Z.F. v. Ripon Unified School Dist. (E.D. Cal. 2013)
 What Happened:
 Class action suit claiming District violated
Section 504 by offering only its own ABA
program and denying access to others
 Court refused to certify class: No common
interest; each Student has different needs
determined through IEP process
(Z.F. v. Ripon Unified School Dist. (E.D. Cal. 2013) 60 IDELR 280)

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Student v. Vista Unified School Dist. (OAH 2013)
 What Happened:
 Parent claimed 6-year-old’s impaired social
development would “at some point” cause
academic difficulties
 ALJ upheld District’s denial of eligibility
 Student’s behaviors didn’t interfere with his
education currently and “projected deficits” were
not relevant
(Student v. Vista Unified School Dist. (OAH 2013) No. 2012090081)

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Student v. Jurupa Unified School Dist. (OAH 2013)
 What Happened:
 Parent requested placement at another school,
claiming 8-year-old’s teacher was too strict
 ALJ found no evidence that teacher yelled at
Student in abusive manner; Student likely
misinterpreted teacher’s use of physical prompts
 How teacher runs classroom is his/her
methodology and left to District’s discretion
(Student v. Jurupa Unified School Dist. (OAH 2013) No. 2013030379)

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 Federal courts deciding wide variety
of autism cases, including charges
of systemic violations
 OAH due process litigation spiraling upward on all
autism-related issues (see Outline for additional
2013 case summaries)

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Other Noteworthy New Cases
 Accommodations:
 Parents claimed District attempted to bribe
personnel with bonuses and advancements in
exchange for denying accommodations to
Students
 Asserted violation of RICO statute
 Court: No facts to prove existence of alleged
conspiracy
(Petersen v. Browne (N.D. Cal. 2013) 61 IDELR 44)

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 ADA vs. IDEA Actions
 Parents of two Students with hearing
impairments claimed District violated ADA’s
“effective communication” requirement by failing
to provide “realtime” transcription
 No IDEA FAPE violation, but ADA imposes
independent obligations on schools
 Overturned dismissal and required lower court to
address merits of individual claims
(K.M. v. Tustin Unified School Dist. (9th Cir. 2013) No. 11-56259, 113 LRP 31837)

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 Attorneys’ Fees
 CDE corrective order did not contain student-
specific relief, but only required District to send
memo to staff
 “De minimis” relief did not entitle Parents to fees
 Court refused to decide broader issue of
whether fees available in compliance complaint
proceeedings
(L.H. v. Chino Valley Unified School Dist. (C.D. Cal. 2013) 61 IDELR 70)

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 Discrimination
 Proposed closure of various District schools
alleged to be discriminatory under ADA because
not all programs would be available at
reassigned schools
 Court refused to issue injunction to stop
closures
 Claims amounted to request to stop District from
modifying IEPs; proper remedy was IDEA due
process
(A.A. v. Raymond (E.D. Cal. 2013) 113 LRP 30092)

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 Negligent Supervision
 14-year-old Student, who functioned at third
grade level, skipped class to meet friends and
was sexually assaulted
 Iowa Supreme Court: District owed “special
duty” to protect Student; breached duty by not
detecting and responding to absence
 Liable for money damages
(Mitchell v. Cedar Rapids Community School Dist. (Iowa 2013) 113 LRP 26046)

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 Section 504
 Section 504 doesn’t require public schools to
provide services to students enrolled in private
schools
 “Section 504 . . . prohibits discrimination on the
basis of disability, not on the basis of school
choice”
 Note: Not a 9th Circuit case, but supports prior
federal guidance (Letter to Veir (OCR 1993))
(D.L. v. Baltimore City Bd. of School Commissioners (4th Cir. 2013) 113 LRP 26046)

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Release of DSM-5
 Published May 18
 What’s Changed:
 Autism: Single diagnosis; clinicians designate
cases as “mild,” “moderate” or “severe”
 Anxiety Disorders: Removed requirement that
individual must recognize fear as excessive
 Depressive Disorders: New “disruptive mood
dysregulation disorder”; applies to child ages 6-
18; 3 or more temper tantrums per week

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Release of DSM-5
 What’s Changed (cont’d):
 Gender Identity Disorder: Renamed “gender
dysphoria”; separate criteria for children,
adolescents and adults
 Neurodevelopmental Disorders: Phonological
disorder and stuttering termed “communication
disorders”
 Obsessive-Compulsive Disorders: Four new
categories, including hoarding disorder

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Release of DSM-5
 Why It Matters:
 Familiarize colleagues with
changes
 Possibly fewer early autism
diagnoses, referrals
 Look for “disruptive mood dysregulation
disorder” diagnoses

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II. Latest
Federal Guidance
on Special Education Issues

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 Bullying
 IEP team of Student subjected
to bullying should convene
to determine if needs have
changed
 Exercise caution before changing placement or
services location in response to bullying unless
Student can no longer receive FAPE in LRE
(Dear Colleague Letter (OSEP 2013) 113 LRP 33753)

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 Discipline
 In MD cases, ALJs have power
to decide whether behavior
amounted to conduct code
violation
 Highly Mobile Children
 If transfer to new district before old district
completes evaluation, new district cannot extend
time frame in order to implement RTI
(Letter to Ramirez (OSEP 2012) 60 IDELR 230; Letter to State Directors (OSEP 2013)
113 LRP 29648)

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 Consent: RTI/FBAs
 Required at 2nd/3rd level of
RTI to collect data to determine
if child may have disability
 Required for FBA as part of
eval/reeval
 Parental Rights
 Details content of notice to Parents to access
public benefits or insurance; must be issued at
first access, then annually
(Letter to Gallo (OSEP 2013) 113 LRP 19171; Memo to State Dirs. (OSEP 2012)
113 LRP 25233)

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 Resolution Meetings
 Don’t refuse to discuss issues
raised in DP complaint
 Provide alternative means of attendance (video
conference, etc.)
 IEP Meetings
 Policy requiring Parents to submit list of
concerns in advance of IEP meeting violates
IDEA
(Letter to Casey (OSEP 2013) 59 IDELR 81; Letter to Northrup (OSEP 2013) 113 LRP 24303)

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 Dispute Resolution
 Must accept either Parent’s
revocation of consent provided
Parent has decision-making authority
 Must hold resolution meeting within 15 days of
notice of DP complaint, even during periods
when school is closed
 Must continue to encourage Parent participation
during 30-day resolution period, even if Parent
has refused cooperation
(Questions and Answers on Dispute Resolution Procedures (OSEP 2013) 113 LRP 30921)

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 Homeless Students
 Option to continue education
in school of origin or attendance
area where child currently living
 IDEA funds can be used for transportation
 Due Process Hearing Attendance
 FERPA prohibits school employees from
attending unless “legitimate educational interest”
(Letter to Bowman (OSEP 2013) 113 LRP 32483; Letter to Reisman (OSEP 2012)
60 IDELR 293)

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III. Recent
Developments
in California

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Recent California Developments:
Repeal of Hughes Bill
 AB 86
 No longer required to conduct FAAs and
develop “Hughes Bill” BIPs for students with
“serious behavioral problems”
 IDEA controls (address behavior when it
impedes student learning or that of others)
 Address behavior through IEP process

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 AB 86 (cont’d)
 Emergency Interventions
Can’t be used in lieu of BIP
Only to control behavior that “poses clear and present
danger of serious physical harm”
Notify Parents within one day of incident
Complete behavioral emergency report
Convene IEP meeting within two school days to
determine necessity of FBA, BIP or BIP modification

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 AB 86 (cont’d)
 Behavior Intervention Case Manager
Use no longer required when BIP is being
developed/implemented
Superintendent of Public Instruction to review
sufficiency of behavior training in current teacher
credentialing requirements
May use Board Certified Behavior Analyst for
assessments and services

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BIP Retroactive Reimbursement
 Claiming Instructions and Claim Forms
 Issued by California State Controller on July 24
 Deadlines
November 21: Claims for school years 1993-94
through 2011-12
February 18, 2014: Claims for school year 2012-13
 Awaiting legislative authorization

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Revisions to Special Ed Regulations
 Proposed Title 5 Revisions
 Awaiting issuance; public comment period
ended July 8
 Not updated since 1987; conforms outdated
regulations to state and federal law
 Noteworthy: Will allow determination of SLD
eligibility to be based on RTI process in
conformity with IDEA regulations

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2013-14 Budget
 Line item vetoes totaling approximately $40
million in spending cuts
 Special ed also receives $60 million less
federal dollars due to sequestration
 Legislature did not approve $60 million to
“backfill” federal cut over concerns it would
increase maintenance of effort requirement

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Thank you for attending!
And thank you for all you do for
students!!
Information in this presentation, including but not limited to PowerPoint handouts and
the presenters' comments, is summary only and not legal advice.
We advise you to consult with legal counsel to determine how this information may
apply to your specific facts and circumstances.

52
Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice.
We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances .

53
Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice.
We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances .

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