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Legal Update. SES Spring 2010 . Overview. Federal Court Cases – Rowley Standard, Parent Reimbursement, IEP Attendance OAH – Residency, Predetermination State Law – CAHSEE Exemption, Regulations Federal Guidance – Transportation, Early Childhood Transitions

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legal update

Legal Update

SES Spring 2010

  • Federal Court Cases – Rowley Standard, Parent Reimbursement, IEP Attendance
  • OAH – Residency, Predetermination
  • State Law – CAHSEE Exemption, Regulations
  • Federal Guidance – Transportation, Early Childhood Transitions
  • In the News – L.M. v. Capistrano, H1N1 Guidance, ARRA Support, RTI
ninth circuit 1 j l v mercer island sd
Ninth Circuit #1J.L. v. Mercer Island SD
  • Rowley alive and well
  • To offer a FAPE, District must offer a “basic floor of opportunity” that is “reasonably calculated” to provide the student with “educational benefit”

(J.L. v. Mercer Island SD (9th Cir. 2009).)

educational benefit


“Educational Benefit”
  • Ninth Circuit clarified that the terms “educational benefit” and “some educational benefit” and “meaningful educational benefit” all refer to Rowley
  • Ninth Circuit rejected argument that IDEA amendments require that districts guarantee some level of “outcome”

(J.L. v. Mercer Island SD (9th Cir. 2009).)

ninth circuit 2 weissburg v lancaster
Ninth Circuit #2Weissburg v. Lancaster
  • District found student eligible under “mental retardation” category
  • Parents disagreed eligibility should be autistic
  • OAH found student eligible under BOTH
  • Student received FAPE

Are parents the prevailingparty?

(Weissburg v. Lancaster SD (9th Cir. 2010).)

parents prevailing party


Parents = Prevailing Party
  • 9th Cir: Change in eligibility classification materially altered legal relationship between parties
  • Student now possessed legal right to instruction by teacher with autism certification
  • Additional holding: Student’s attorney grandmother could recover fees

(Weissburg v. Lancaster SD (9th Cir. 2010).)

impact of weissburg eligibility determination


Impact of WeissburgEligibility Determination
  • Student still does not have a legal right to a specific eligibility classification
    • Weissburg focused more on the material change in student’s rights resulting from new classification
  • If IEP team cannot agree District staff should designate appropriate category
  • Can designate more than one eligibility category

(Weissburg v. Lancaster SD (9th Cir. 2010).)

ninth circuit 3 ashland v e h
Ninth Circuit #3: Ashland v. E.H.

Middle school student received special education services due to severe emotional problems

Parent unilaterally placed Student in private residential facility without notice to District

Residential facility focused on Student’s medical needs, suicide prevention

(Ashland SD v. E.H. (9th Cir. 2010).)

no reimbursement
No Reimbursement

9th Cir.- No reimbursement for private placement because:

(1) Parent failed to give 10-day notice of unilateral placement; and

(2) Private resident placement was medical, rather than educational in nature

Note: IDEA provides judges with broad discretion regarding parent notice


(Ashland SD v. E.H. (9th Cir. 2009).)

u s district court b m v carlsbad usd
U.S. District Court B.M. v. Carlsbad USD

Dispute over IEP meeting attendees

At meeting: District’s special education teacher from neighborhood school

Student’s current special education teacher from private placement not present

Was the District required to include private special ed. teacher on IEP team?

(B.M. v. Carlsbad USD (S.D. Cal. 2009).)


ALJ  Failure to include Student’s private special education teacher at IEP team meeting does not constitute denial of FAPE

Focused on OSEP comments: “Special education teacher…should be person who is or will be responsible for implementing IEP”


(B.M. v. Carlsbad USD (S.D. Cal. 2009).)

office of administrative hearings 1 residency for incarcerated student
Office of Administrative Hearings - #1Residency for Incarcerated Student

Prior to 2006, special education student lived with mother and attended schools in LAUSD

2006: Student arrested and sent to juvenile detention facility where he received special ed. services from LACOE

Student turned 18, sent to LA County jail

Who is responsible for special education services for incarcerated student?

(Student v .Los Angeles USD (OAH 2009).)

lausd responsible lea
LAUSD = Responsible LEA

It was undisputed that once out of jail, Student would return to live with his mother, who still resided within LAUSD

LAUSD remained the last district of residence, unless Student’s parent or guardian had relocated

OAH Incarcerated students are not like other adult students who voluntarily move and change their own residency


(Student v. Los Angeles USD (OAH 2009).)

office of administrative hearings 2 predetermination
Office of Administrative Hearings - #2Predetermination

District, County and Student entered into settlement agreement for NPA’s one-to-one aide

Settlement expressly stated NPA aide services were “for assessment purposes only,” not for purposes of FAPE, and would not constitute “stay put” if disputed

District staff believed settlement agreement required County aide services in future, so they did not discuss aide services at IEP meeting

(Student v. Montecito Union ESD (OAH 2009).)


ALJ District and County predetermined that one-to-one aide would be county employee

Settlement agreement contained NO language to support District’s and County’s belief that County aide services were required

IEP team did not consider any reasonable alternatives, qualification of staff

Parents denied opportunity for meaningful participation regarding one-to-one aide services


(Student v. Montecito Union ESD (OAH 2009).)

office of administrative hearings 3 request for due process
Office of Administrative Hearings - #3Request for Due Process

2003 Addendum to IEP: District agreed to provide after-school tutoring

District repeatedly settled disputes with parent by providing tutoring

2007: District discontinued tutoring; agreed parent could file for due process

Did the District deny FAPE byfailing to file a due process request?

(Student v. San Ramon Valley USD (OAH 2009).)


District violated parents’ procedural rights by failing to request a due process hearing to resolve dispute over tutoring

District had an affirmative duty under IDEA to resolve disputes over necessary services by filing due process action

Putting the burden on parent to file and carry burden was improper under IDEA


(Student v. San Ramon Valley USD (OAH 2009).)

cahsee exemption

AB X4 2 Created Education Code section 60852.3

Section 60852.3 exempts eligible special education students from passing the CAHSEE as a requirement for graduation

Applies to any student:

(1) who has an IEP or a 504 plan; and

(2) has or will satisfy all state and local requirements for graduation

cde guidance cahsee exemption
CDE Guidance:CAHSEE Exemption

CDE recently issued guidance on the new CAHSEE exemption for special education students 16 FAQs

IEP or 504 Plan: must state that student:

(1) is scheduled to receive a diploma on or after July 1, 2009;

(2) has or will satisfy all other grad req.

(CAHSEE Exemption Q&A #1 (CDE 2009).)

cde guidance cahsee exemption20
CDE Guidance:CAHSEE Exemption

Despite the exemption, all students must still take the CAHSEE in 10th Grade.

Districts are not required to notify parents of CAHSEE exemption

Districts may NOT develop IEP or 504 plan solely to exempt student from CAHSEE requirement

(CAHSEE Exemption Q&A # 2,8,12-14 (CDE 2009).)

cahsee exemption retroactive
CAHSEE Exemption:Retroactive?

Uncertainty over whether new CAHSEE exemption covers students who were unable to pass CAHSEE in 2008 and 2009 and did not receive diploma

Text of Section 60852.3 is unclear

Are 2008/2009 seniorsnow eligible for a diploma?

  • IEP Students: Students entitled to special education services until age 22
    • CDE District “may be required to re-open and revise IEP.”
  • 504 Students: Likely same as IEP students, but federal rules are not identical
    • CDE “consult counsel on a case-by-case basis”

(CAHSEE Exemption Q&A # 5 (CDE 2009).)

practice pointer
Practice Pointer

Until CDE provides more clarification, treat 2008 and 2009 students the same as current students

amendments to cahsee regs
Amendments to CAHSEE Regs.

CDE recently issued amendments to state regulations governing CAHSEE

Key changes in testing “variations,” “accommodations,” and “modifications”

Variations: Small group settings, test questions in Manually Coded English or ASL

Modifications: Use of formulas on mathematics portion

osers guidance special ed transportation
OSERS Guidance:Special Ed. Transportation

November 2009: OSERS provided guidance regarding transportation services for students with disabilities

11 Q&As covering preschool students, travel training, discipline on bus, bus suspensions, etc.

osers bus suspensions
OSERS: Bus Suspensions

As with regular out-of-school suspensions, a bus suspension may require a manifestation determination and other discipline procedures

The extent of discipline procedures will vary depending on:

(1) Length of Suspension

(2) Change in Placement

(3) Alternative Transportation

(Transportation Q&A # H-1 (OSERS 2009).)

osep guidance early childhood transitions
OSEP Guidance: Early Childhood Transitions

Guidance emphasizes smooth transition from Part C Part B

Clarifies requirements for children referred for Part C services close to their birthdays

in the news
In the News

Supreme Court will not hear L.M. v. Capistrano; 9th Circuit decision stands

U.S. Dept. of Ed. issues guidance on IDEA and 504 responsibilities during an H1N1 outbreak

OAH publishes new due process hearing manual

New special education financing from federal and state levels

CDE Handbook: RTI