By Geneva Englebrecht, Associate
and Adam Newman, Partner
Cerritos Office
When the topic of service animals arises we generally think of the rights of the individual with a disability. It’s widely known that Title II of the American with Disabilities Act (“ADA”) establishes the right for persons with disabilities to utilize service animals. Title II requires public entities, including schools, to permit use of a dog or miniature horse to do work or perform tasks for the benefit of an individual with a physical, sensory, psychiatric, intellectual or other mental disability, provided that the animal is required because of the individual’s disability, under the control of the individual, and housebroken. Notably, the student is allowed to take the animal in all areas of the campus where the public is normally allowed to go and allowed to take the service animal on field trips and school sponsored extra-curricular activities. A fact that is less commonly known is that LEAs (school districts, charters schools and county offices of education) have rights and students have obligations when it comes to service animals.
Right of Determination
In establishing whether an animal is a service animal, while the LEA is not allowed to ask for documentation or proof of training, Title 28 Code of Federal Regulations (“C.F.R.”) Section 35.136 specifies that a public entity may ask (1) whether the animal is required because of a disability; and (2) what work or task the animal has been trained to perform in determining whether an animal is a service animal.
Showing posts with label Special Education/504. Show all posts
Showing posts with label Special Education/504. Show all posts
Monday, August 20, 2012
Monday, August 6, 2012
Denying a Request for an IEE Without Filing for Due Process
By Adam Newman, Partner
and Geneva Englebrecht, Associate
Cerritos Office
and Geneva Englebrecht, Associate
Cerritos Office
Pursuant to the Individuals with Disabilities in Education Act (“IDEA”), Title 34 Code of Federal Regulations (“C.F.R.”) Section 300.502(b)(5), a student is entitled to an independent educational evaluation (“IEE”) at public expense when the public agency has conducted an evaluation with which the parent disagrees. The IDEA identifies two choices for a local education agency (“LEA”), i.e., school district or county office of education, when it receives a request for an IEE at public expense when the parent disagrees with an evaluation conducted by the LEA. The LEA must, without delay, either fund the requested IEE or deny the IEE and file for hearing to defend the appropriateness of the LEA’s assessment. While 34 C.F.R Section 300.502 fails to specify a time limit in which the parent must request the IEE after the LEA conducted the evaluation, 34 C.F.R. Section 300.507(a)(2) and California’ Education Code imposes a two-year statute of limitations on a parent or LEA’s right to file a due process complaint generally.
Case law appears to support the position that the two-year statute of limitations applies to requests for an IEE. In a 2008 Georgia case involving the Atlanta Public Schools, Administrative Law Judge (“ALJ”) La Ronda D. Barnes found that a student’s request for an IEE which was made three years after the Atlanta Public Schools conducted its assessment, was “untimely, as it was not made within a reasonable time after [the district] conducted its evaluation and is beyond the two-year statute of limitations". ALJ Barnes went on to hold that the student was not entitled to an IEE at public expense and any request for an IEE based on the Atlanta Public Schools disputed evaluation was barred by the statute of limitations. ALJ Barnes granted the school district’s motion for summary judgment based on the statute of limitations. (Student v. Atlanta Public Schools; 51 IDELR 29 (2008).
Case law appears to support the position that the two-year statute of limitations applies to requests for an IEE. In a 2008 Georgia case involving the Atlanta Public Schools, Administrative Law Judge (“ALJ”) La Ronda D. Barnes found that a student’s request for an IEE which was made three years after the Atlanta Public Schools conducted its assessment, was “untimely, as it was not made within a reasonable time after [the district] conducted its evaluation and is beyond the two-year statute of limitations". ALJ Barnes went on to hold that the student was not entitled to an IEE at public expense and any request for an IEE based on the Atlanta Public Schools disputed evaluation was barred by the statute of limitations. ALJ Barnes granted the school district’s motion for summary judgment based on the statute of limitations. (Student v. Atlanta Public Schools; 51 IDELR 29 (2008).
Friday, July 6, 2012
Special Education Students in Advanced Placement Classes
By Geneva Englebrecht, Associate
and Constance Taylor, Partner
Cerritos Office
and Constance Taylor, Partner
Cerritos Office
When a student is in an accelerated program for gifted and talented students, it is important to remember that qualification for advanced placement (“AP”) does not mean the student may not also qualify for special education or be identifiable as a person with a disability. When the topic of special education students in AP classes arises, there are two frequently asked questions that we will explore, below.
(1) When a parent requests a special education assessment of a student who is struggling in honors or AP classes, must the District assess, or can the District recommend that the student return to his or her general education non-AP classes?
The Individuals with Disabilities Education Act (“IDEA”) requires a local educational agency (“LEA”) to assess all areas of suspected disability and conduct an individualized education program (“IEP”) meeting within 60 days of receiving parental consent for the assessment. (Cal. Educ. Code §§ 56302, 56302.1(a).) When a gifted student’s parent requests a special education assessment, the District should employ assessment procedures in accordance with the IDEA. It is essential, especially when working with a gifted student, to be mindful not only of any academic deficits, or lack thereof, but to consider whether the student has a physical or mental impairment that may cause the student to require special education.
Thursday, June 14, 2012
Final Emergency Diastat Regulations in May 2012
By Adam Newman, Partner
and Geneva Englebrecht, Associate
Cerritos Office
Background
On January 6, 2009, a California Superior Court judge ruled that licensed nurses (i.e. credentialed school nurses, registered nurses or licensed vocational nurses) must be used to administer insulin to students. In so doing, the judge rejected the California Department of Education’s ("CDE") position that trained classroom staff (non-nurses) can be used to administer insulin. The judge's decision left school districts, SELPAs, and county offices of education throughout California wondering if they were now required to hire more nurses to administer insulin and perhaps other medications like Diastat.
As to Diastat, in response to the Court's 2009 ruling and subsequent appeals which remain unresolved, the California legislature enacted Education Code Section 49414.7, which took effect January 1, 2012. The legislation recognized that approximately one-half of school districts do not have a school nurse and that students with epilepsy who suffered seizures at school were compromised without access to emergency medical assistance. The intent of this legislation was to provide volunteer school employees with voluntary emergency medical training to provide emergency medical assistance to pupils with epilepsy suffering from seizures. Education Code Section 49414.7 allows school districts to provide epilepsy anti-seizure medication, diazepam rectal gel, commonly referred to as Diastat, as emergency medical assistance in the absence of a school nurse or other medical personnel, to assist a student with epilepsy who is suffering from a seizure and where the administration has been sanctioned by the student's parents in writing. The decision of a school district to offer training to its staff is voluntary as is the staff member's participation in the training.
and Geneva Englebrecht, Associate
Cerritos Office
Background
On January 6, 2009, a California Superior Court judge ruled that licensed nurses (i.e. credentialed school nurses, registered nurses or licensed vocational nurses) must be used to administer insulin to students. In so doing, the judge rejected the California Department of Education’s ("CDE") position that trained classroom staff (non-nurses) can be used to administer insulin. The judge's decision left school districts, SELPAs, and county offices of education throughout California wondering if they were now required to hire more nurses to administer insulin and perhaps other medications like Diastat.
As to Diastat, in response to the Court's 2009 ruling and subsequent appeals which remain unresolved, the California legislature enacted Education Code Section 49414.7, which took effect January 1, 2012. The legislation recognized that approximately one-half of school districts do not have a school nurse and that students with epilepsy who suffered seizures at school were compromised without access to emergency medical assistance. The intent of this legislation was to provide volunteer school employees with voluntary emergency medical training to provide emergency medical assistance to pupils with epilepsy suffering from seizures. Education Code Section 49414.7 allows school districts to provide epilepsy anti-seizure medication, diazepam rectal gel, commonly referred to as Diastat, as emergency medical assistance in the absence of a school nurse or other medical personnel, to assist a student with epilepsy who is suffering from a seizure and where the administration has been sanctioned by the student's parents in writing. The decision of a school district to offer training to its staff is voluntary as is the staff member's participation in the training.
Tuesday, May 22, 2012
The Importance of Child Find
By Geneva Englebrecht, Associate
and Adam Newman, Partner
Cerritos Office
In our April 2012 post we touched on the dangers of over-identifying and misidentifying students who may or may not be eligible for special education and related services. For May, we’ll explore the opposite side of the coin: failing to seek out and identify students.
Various federal and state laws govern the process for locating and identifying students potentially eligible to receive special education and related services. Child find obligations start at age 3 (federal and state law), and further, students between the ages of 6 and 18 years are subject to compulsory full-time education. (Education Code Section 48200, et seq.) California law requires local education agencies ("LEA") to actively seek out children who may be eligible for special education. LEAs are required to have systems in place that ensure that individuals with exceptional needs are referred for assessment when necessary. (California Education Code sections 56300-56302)
and Adam Newman, Partner
Cerritos Office
In our April 2012 post we touched on the dangers of over-identifying and misidentifying students who may or may not be eligible for special education and related services. For May, we’ll explore the opposite side of the coin: failing to seek out and identify students.
Various federal and state laws govern the process for locating and identifying students potentially eligible to receive special education and related services. Child find obligations start at age 3 (federal and state law), and further, students between the ages of 6 and 18 years are subject to compulsory full-time education. (Education Code Section 48200, et seq.) California law requires local education agencies ("LEA") to actively seek out children who may be eligible for special education. LEAs are required to have systems in place that ensure that individuals with exceptional needs are referred for assessment when necessary. (California Education Code sections 56300-56302)
Monday, May 7, 2012
Knowing the Must Haves of an FAA
By Geneva Englebrecht, Associate
and Adam Newman, Partner
Cerritos Office
The functional analysis assessment ("FAA" or "Hughes Bill Assessment") is sometimes mistakenly referred to as a functional behavioral assessment ("FBA") but each is derived from a different law and more to the point, there is nothing in the federal law that describes how to do an FBA. The FAA was the by-product of legislation, AB 2586, that ultimately took form for present purposes in Title 5 California Code of Regulations Section 3052. Simply put, an FAA is a comprehensive and detailed analysis/assessment of a student's identified uncorrected maladaptive behavior in various educational settings that ultimately leads to an IEP team determination of whether the student should have a behavior intervention plan ("BIP"). For purposes of this post, the term BIP refers to the BIP as used in the FAA regs. The term BIP is also used in the federal regulations in the context of manifestation determinations. Sadly, though, the federal law provides no definition and no components for the term BIP used in that context.
An FAA is very specific and prescriptive and has extensive requirements regarding which students should receive an FAA, qualifications of the assessor, the procedures for conducting the assessment, and the elements of the assessment report per Title 5 California Code of Regulations Section 3052.
and Adam Newman, Partner
Cerritos Office
The functional analysis assessment ("FAA" or "Hughes Bill Assessment") is sometimes mistakenly referred to as a functional behavioral assessment ("FBA") but each is derived from a different law and more to the point, there is nothing in the federal law that describes how to do an FBA. The FAA was the by-product of legislation, AB 2586, that ultimately took form for present purposes in Title 5 California Code of Regulations Section 3052. Simply put, an FAA is a comprehensive and detailed analysis/assessment of a student's identified uncorrected maladaptive behavior in various educational settings that ultimately leads to an IEP team determination of whether the student should have a behavior intervention plan ("BIP"). For purposes of this post, the term BIP refers to the BIP as used in the FAA regs. The term BIP is also used in the federal regulations in the context of manifestation determinations. Sadly, though, the federal law provides no definition and no components for the term BIP used in that context.
An FAA is very specific and prescriptive and has extensive requirements regarding which students should receive an FAA, qualifications of the assessor, the procedures for conducting the assessment, and the elements of the assessment report per Title 5 California Code of Regulations Section 3052.
Tuesday, April 10, 2012
Over-Identification and Misidentification Creates Unnecessary Headaches for Parents, School Districts and County Offices of Education
By Geneva Englebrecht, Associate
and Adam Newman, Partner
Cerritos Office
It is essential that IEP team members understand how to properly identify students who are eligible for special education and related services. There are times when a referral for an evaluation for special education is made by a parent or teacher for a student who is struggling academically but does not have a true disability or where a student has a medical diagnosis but does not require special education and related services and is consequently also not eligible for special education (and may or may not be eligible for a 504 plan). IEP teams should be sufficiently familiar with the eligibility requirements of federal and state law and avoid the potential harm of wrongly identifying a student as eligible for special education.
Consequences to the school district or county office of education will include limitations to disciplinary options available for the student’s misconduct and “stay-put,” which, subject to certain exceptions not mentioned in this article, require the school district or county office of education to continue providing the student special education placement and services pending the outcome of administrative and/or court litigation.
and Adam Newman, Partner
Cerritos Office
It is essential that IEP team members understand how to properly identify students who are eligible for special education and related services. There are times when a referral for an evaluation for special education is made by a parent or teacher for a student who is struggling academically but does not have a true disability or where a student has a medical diagnosis but does not require special education and related services and is consequently also not eligible for special education (and may or may not be eligible for a 504 plan). IEP teams should be sufficiently familiar with the eligibility requirements of federal and state law and avoid the potential harm of wrongly identifying a student as eligible for special education.
Consequences to the school district or county office of education will include limitations to disciplinary options available for the student’s misconduct and “stay-put,” which, subject to certain exceptions not mentioned in this article, require the school district or county office of education to continue providing the student special education placement and services pending the outcome of administrative and/or court litigation.
Tuesday, March 20, 2012
Some Thoughts on Special Education/Student Discipline – Knowing How to Apply “The 10 Day Rule” and Other Interesting Tid-Bits
By Geneva Englebrecht, Associate
and Adam Newman, Partner
Cerritos Office
Students who are eligible for special and related services are entitled to additional protections when subjected to disciplinary removals that are deemed a "change of placement" under federal law, i.e., the IDEA and its corresponding regulations. At the point where disciplinary removals become a "change of placement" the IDEA and its regulations require that a manifestation determination IEP team meeting be held to determine whether the alleged misconduct in question is a manifestation of the student's disability or not. A change of placement is deemed to occur (hence triggering the requirement for convening a manifestation determination IEP team meeting), where the disciplinary removal is for 10 cumulative school days or more during a school year, or where a series of removals constitutes a pattern. While the legislation seems straight forward, upon a first or even several reads, many questions arise.
School Day Removals
Keep in mind that in most cases, LEA’s can treat disabled students the same as non-disabled students for purposes of suspension for the first 10 days of suspension in a school year, and hence not trigger the need for a manifestation determination IEP team meeting. Nevertheless, disciplinary removals that trigger the need to hold a manifestation determination IEP team meeting need to take into account both partial day and full day removals. In the case of partial day removals, the Office of Special Education Programs (OSEP) has defined "portions of a school day" as counting a disciplinary removal (i.e. a suspension) for a half day or less as a half day, and counting a suspension or removal for more than a half day as a whole day.
and Adam Newman, Partner
Cerritos Office
Students who are eligible for special and related services are entitled to additional protections when subjected to disciplinary removals that are deemed a "change of placement" under federal law, i.e., the IDEA and its corresponding regulations. At the point where disciplinary removals become a "change of placement" the IDEA and its regulations require that a manifestation determination IEP team meeting be held to determine whether the alleged misconduct in question is a manifestation of the student's disability or not. A change of placement is deemed to occur (hence triggering the requirement for convening a manifestation determination IEP team meeting), where the disciplinary removal is for 10 cumulative school days or more during a school year, or where a series of removals constitutes a pattern. While the legislation seems straight forward, upon a first or even several reads, many questions arise.
School Day Removals
Keep in mind that in most cases, LEA’s can treat disabled students the same as non-disabled students for purposes of suspension for the first 10 days of suspension in a school year, and hence not trigger the need for a manifestation determination IEP team meeting. Nevertheless, disciplinary removals that trigger the need to hold a manifestation determination IEP team meeting need to take into account both partial day and full day removals. In the case of partial day removals, the Office of Special Education Programs (OSEP) has defined "portions of a school day" as counting a disciplinary removal (i.e. a suspension) for a half day or less as a half day, and counting a suspension or removal for more than a half day as a whole day.
Tuesday, February 28, 2012
U.S. Supreme Court Appears to Scale Back Requirement to Exhaust Administrative Remedies Before Filing Suit in Special Education Cases
By Geneva Englebrecht, Associate
and Adam Newman, Partner
Cerritos Office
On February 21, 2012, the United State Supreme Court declined to hear an appeal from the Peninsula School District (“District”) in the state of Washington. The District sought review of a Ninth Circuit decision from July 2011. The case stems from a 2005 civil suit filed against the District by a student indentified as D.P., seeking relief under Section 1983 of the Civil Rights Act alleging violations of the Fourth, Eighth, and Fourteenth Amendments to the Constitution, as well as violations of the Individuals with Disabilities in Education Act (“IDEA”). In response to the civil filing, the District argued that D.P. had failed to exhaust his administrative remedies by not going through the due process hearing and appeals procedures connected to the due process hearing. The lower federal court agreed with the District and dismissed the lawsuit. In a somewhat surprising move, the Ninth Circuit reversed.
Generally, the IDEA requires that before filing a civil action seeking relief that is also available under the IDEA, a student must exhaust administrative remedies before filing a lawsuit. However, the Ninth Circuit held that the lower courts should look at the relief sought rather than the injury alleged. This position is in stark contrast to the Ninth Circuit’s previous rulings which placed the focus on the injury alleged, i.e. usually a denial of a free appropriate public education (“FAPE”) in the least restrictive environment (“LRE”). The Ninth Circuit specifically noted that exhaustion is required when the parent seeks: 1) an IDEA remedy, such as tuition reimbursement; 2) a change in the student’s program or placement; or 3) the enforcement of rights arising from a denial of FAPE. However, depending on the type of relief sought, some relief may fall outside the exhaustion rule, thereby allowing pursuit of a lawsuit side by side or in lieu of a due process hearing. Not all Courts of Appeal across the country accept the Ninth Circuit’s latest turnabout, which makes all the more puzzling the Supreme Court’s actions, since one purpose of Supreme Court review is to reconcile different interpretations of federal law by different Circuit Courts in the United States, as is the case here.
and Adam Newman, Partner
Cerritos Office
On February 21, 2012, the United State Supreme Court declined to hear an appeal from the Peninsula School District (“District”) in the state of Washington. The District sought review of a Ninth Circuit decision from July 2011. The case stems from a 2005 civil suit filed against the District by a student indentified as D.P., seeking relief under Section 1983 of the Civil Rights Act alleging violations of the Fourth, Eighth, and Fourteenth Amendments to the Constitution, as well as violations of the Individuals with Disabilities in Education Act (“IDEA”). In response to the civil filing, the District argued that D.P. had failed to exhaust his administrative remedies by not going through the due process hearing and appeals procedures connected to the due process hearing. The lower federal court agreed with the District and dismissed the lawsuit. In a somewhat surprising move, the Ninth Circuit reversed.
Generally, the IDEA requires that before filing a civil action seeking relief that is also available under the IDEA, a student must exhaust administrative remedies before filing a lawsuit. However, the Ninth Circuit held that the lower courts should look at the relief sought rather than the injury alleged. This position is in stark contrast to the Ninth Circuit’s previous rulings which placed the focus on the injury alleged, i.e. usually a denial of a free appropriate public education (“FAPE”) in the least restrictive environment (“LRE”). The Ninth Circuit specifically noted that exhaustion is required when the parent seeks: 1) an IDEA remedy, such as tuition reimbursement; 2) a change in the student’s program or placement; or 3) the enforcement of rights arising from a denial of FAPE. However, depending on the type of relief sought, some relief may fall outside the exhaustion rule, thereby allowing pursuit of a lawsuit side by side or in lieu of a due process hearing. Not all Courts of Appeal across the country accept the Ninth Circuit’s latest turnabout, which makes all the more puzzling the Supreme Court’s actions, since one purpose of Supreme Court review is to reconcile different interpretations of federal law by different Circuit Courts in the United States, as is the case here.
Tuesday, January 17, 2012
Video and Audio Recording of Special Education Students: Potential Teaching Tool and Potential Liability
By Geneva Englebrecht, Associate
and Adam Newman, Partner
Cerritos Office
Recording a student during the assessment process or for purposes of self observation can be a helpful documentary or teaching tool because it provides a visual and/or auditory model for students, parents, and other educational professionals. It can also be a useful teaching tool. However, without consent provided, at a minimum by the student’s parent or legal guardian, and in cases where a teacher might be recorded, from the teacher and school principal, such recordings are illegal. Additionally, many assessors and/or services providers may not be aware that any videos or audio recording of the student are considered part of his/her educational record. Thus, all laws and regulations regarding the maintenance and release of educational records, including but not limited to the Family Educational Rights and Privacy Act (“FERPA”), will apply to the recordings.
LEA board policies and administrative regulations should address maintenance of the recordings, permission to record, privacy, etc.
and Adam Newman, Partner
Cerritos Office
Recording a student during the assessment process or for purposes of self observation can be a helpful documentary or teaching tool because it provides a visual and/or auditory model for students, parents, and other educational professionals. It can also be a useful teaching tool. However, without consent provided, at a minimum by the student’s parent or legal guardian, and in cases where a teacher might be recorded, from the teacher and school principal, such recordings are illegal. Additionally, many assessors and/or services providers may not be aware that any videos or audio recording of the student are considered part of his/her educational record. Thus, all laws and regulations regarding the maintenance and release of educational records, including but not limited to the Family Educational Rights and Privacy Act (“FERPA”), will apply to the recordings.
LEA board policies and administrative regulations should address maintenance of the recordings, permission to record, privacy, etc.
Wednesday, November 30, 2011
Providing FAPE to Students Registered as Sex Offenders
By Adam Newman, Partner
and Geneva Englebrecht, Associate
Cerritos Office
The California Penal Code requires mandatory registration as a sex offender for persons convicted of specific sex offenses. The law provides a different list of offenses for persons convicted as adults than those convicted as minors. As the law currently stands, a juvenile sex offender’s information is not published and an adult sex offender can petition the Sex Offender Tracking Program to be excluded from the website. It has been reported that approximately 25% of registered sex offenders do not appear on the site. Therefore, school districts should not assume that an adult or minor student whose name does not appear on California’s published registered sex offender website is not a registered sex offender.
Districts who are aware or have reason to believe that a student eligible for special education is also a registered sex offender need to obtain information regarding the specific terms of his/her release. Such information should be available from the Sheriff’s Department or the Department of Probation. For confidentiality purposes, districts should refrain from automatically sharing information pertaining to the student’s special education status with outside agencies. The terms of release will indicate if there are any restrictions placed upon the student such as mandated distances from schools, parks, or his/her victim(s). Districts should consider the victim’s location if that person is a student, district employee, or lives/works near the school site.
Tuesday, October 18, 2011
Disability Related Bullying or Not? Knowing the Difference but Responding to Both
By Adam Newman, Partner
and Geneva Englebrecht, Associate
Cerritos Office
and Geneva Englebrecht, Associate
Cerritos Office
October is National Bullying Prevention Month and recent media coverage of “mean girls and boys” and the reported influx of bullying through social networking have brought the reality of bullying to the doorstep of America’s schools, causing many state and local educational agencies to develop policies to address and prevent bullying of students. It is well established that children with disabilities may be more susceptible to bullying than their typical developing peers.
While some acts of bullying simply trigger action under state or local (i.e. school district or county office of education) anti-bullying policies, school districts and/or county offices of education should be attentive in considering whether the misconduct triggers additional responsibilities under federal or state anti-discrimination laws and/or results in a denial of a free appropriate education (FAPE) in the student’s least restrictive environment (LRE).
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