Task Force Matt Devins Stanislaus County SELPA Spring 2020 Denise - - PDF document

ACSES Members Maureen O'Leary Burness State Special Education Task Force Matt Devins Stanislaus County SELPA Denise Edge Desert-Mountain SELPA Trina Frazier Fresno County SELPA Sean Goldman Simi Valley Unified School District John Laughlin Sonoma County Office of Education Rebecca Nobriga Vista Unified School District Zhanna Preston Murrieta Valley Unified School District Jason Ramirez Moreno Valley Unified School District Linda Simlick San Juan Unified School District Kimberly Velez Temecula Valley Unified School District Janice Von Arx San Diego County Office of Education Betty Jo Wessinger Folsom Cordova Unified School District

Spring 2020 Dear Colleague: Welcome to our Special Education Symposium! As we conclude the 2019-2020 season of Symposia, F3 would like to take this

• pportunity to express our sincere appreciation for your hard work and
• ngoing commitment to serving the needs of your students. We recognize

your participation in today’s event as a demonstration of your dedication to professional excellence and learning. We strive to design all our Symposia to provide you with the most current legal information and case law analysis—combined with “practice pointers”—in selected important topic areas relevant to the provision of special education services in California. In planning future sessions, we gain

• ur most valuable insight from your comments. Please use the evaluation

form in your binder to let us know your ideas and suggestions for how we can better serve you. We begin today’s session with “Here and Now: Assistive Technology and FAPE.” Both the IDEA and California law require IEP teams to consider whether a student with a disability requires assistive technology devices and/or services to receive a FAPE. Technology advances and emerging case law pose increasing challenges for districts to comply with this legal mandate. This session examines AT through an overview of statutes—including the new California law requiring districts to increase students’ access to AT— and regulations, recent decisions and official guidance. In our second presentation, “All Things Considered: English Learners with Disabilities,” our focus on ELs provides legal insight into the process of referral and identification, assessment plans and procedures, ensuring meaningful parental participation, and the provision of appropriate IEP

• services. Drawing on specific OAH case examples, we will also provide

practical take-away compliance strategies to help you better meet your educational responsibilities to ELs with disabilities. After lunch, in “Spotlight on Practice: Service Animals at School,” we look at the intersection of various statutes governing the rights of students to bring their service animal to school and provide practical lessons from judicial and administrative decisions—as well as federal regulations and guidance—in this still-developing area of law. The day closes with our popular “Legal Update,” where we cover important new case law decisions, recent guidance and other legal developments affecting special education in California. This session helps you stay current with all the latest issues in special education law.

On behalf of everyone at F3, thank you for attending. Please remember to take some time away from the sessions to catch up with friends and

• colleagues. We hope you have a very enjoyable day!

Respectfully, Fagen Friedman & Fulfrost LLP Shawn Olson Brown, Partner Co-Coordinator, Special Education Symposium Anne M. Sherlock, Partner Co-Coordinator, Special Education Symposium Co-Chair, F3 Special Education & Student Practice Group John W. Norlin Content Developer, Special Education Symposium Melanie Larzul Co-Chair, F3 Special Education & Student Practice Group

Here and Now: Assistive Technology and FAPE

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Here and Now

Assistive Technology and FAPE

What We’ll Examine Today . . .

 Definitions, Exclusions and AT

Provider Requirements

 AT Assessments

 Law  Case Examples

 AT as Component of Substantive FAPE

 Law  Case Examples

 AT and “Effective Communication” Obligations

Under the ADA

• I. Definitions, Exclusions

and AT Provider Requirements

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Legal Standard

 IEP team must consider whether student requires

“assistive technology devices and services” in order to receive FAPE

 Districts must ensure that AT devices and services

are made available to each student if required as part of student’s special education, related services

• r supplementary aids and services

(34 C.F.R.§300.105; 34 C.F.R.§300.324; Ed. Code,§56341, subd. (b))

AT Definitions

 Assistive Technology Device

“Any item, piece of equipment, or product

system, whether acquired commercially off the shelf, modified or customized, that is used to increase, maintain, or improve the functional capabilities of a child with a disability”

(34 C.F.R.§300.5; Ed. Code,§56020.5)

Exclusions

 AT generally does not include: Surgically implanted medical devices

 But district must ensure external components of

those devices, including cochlear implants, are functioning properly

Personally prescribed devices, such as

eyeglasses and hearing aids

 But if device is included in IEP as component

• f FAPE, then district may be responsible for

providing it

(34 C.F.R.§300.113; Ed. Code,§56345; Letter to Bachus (OSEP 1995) 22 IDELR 629; Letter to Galloway (OSEP 1994) 22 IDELR 373)

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AT Definitions

 Assistive Technology Service

 Any service that “directly assists a child with a disability

in the selection, acquisition, or use of an assistive technology device”  Includes:

 Evaluation  Purchase/lease  “Selecting, designing, fitting, customizing, adapting,

applying, maintaining, repairing, or replacing” device

 Coordinating, training/technical assistance

(34 C.F.R.§300.6; Cal. Code Regs., tit. 5,§3051.19)

AT Provider Requirements

 Personnel qualified to provide AT services:

 License in PT or OT  License in Speech/Language Pathology

OR one of following:

 Baccalaureate degree in engineering with emphasis in AT  Baccalaureate degree in related field of engineering with

graduate certificate in rehabilitation technology or AT

 Certification from Rehabilitation Engineering and AT Society of

North America and AT Provider (RESNA/AT)

 Post-secondary certificate in AT applications  Credential for physically impaired, orthopedically impaired or

severely impaired

(Cal. Code Regs., tit. 5,§3051.19)

• II. AT Assessments

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Legal Requirements

 No express specific requirements in federal or

state law for formal AT assessments

 OSEP: District must assess student’s functional

capabilities and determine “whether they may be increased, maintained, or improved through the use of” AT devices or services

(Letter to Fisher (OSEP 1995) 23 IDELR 565)

Legal Requirements

 Failure to assess when needed (or inadequate and/or

incomplete assessment) can result in procedural denial of FAPE

 Parents have right to IEE if they disagree with AT

assessment or if no assessment is conducted and is needed

 District may not be liable for failure to conduct (or

complete) AT assessment if parents’ actions or lack of cooperation impede assessment

(North Hills School Dist. v. M.B., 65 IDELR 150 (Pa. Commw. Ct. 2015); District of Columbia Pub. Schools (SEA DC 2015) 67 IDELR 134; Student v. Garvey School Dist. (OAH 2019) Case No. 2019030004, 119 LRP 38328)

Comprehensive Assessment Supports Conclusion that Student Did Not Need AT

 Los Angeles USD (OAH 2019)

 District conducted AT assessment for 8-year-old Student

with autism

 Assessor thoroughly examined all aspects of Student’s

needs, conducted trials, interviewed teachers and service providers, and observed Student

 Special ed teacher did not report any AT concerns

 Assessment report appropriately concluded Student did

not require AT because it would not help with foundational skills (reading and writing) and Student was not prepared to use AT devices

(Student v. Los Angeles Unified School Dist. and Los Angeles Unified School Dist. v. Student (OAH 2019) Case Nos. 2018060459 and 2018100624)

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Parents Cannot Prove Student’s Need for AT Assessment

 Capistrano USD (OAH 2017)

 District’s psychoeducational assessment of

12-year-old Student with ADHD, which included OT assessment, showed that Student did not have fine motor deficits requiring access to specialized AT equipment

 Student successfully accessed his education using

computer or laptop for writing longer assignments and dictation software for recording longer lectures

 Parents’ witness did not identify any areas of AT needs

not already being addressed by District’s accommodations

(Student v. Capistrano Unified School Dist. and Community Roots Academy (OAH 2017) Case No. 2017020910)

District Must Pay for IEE Due to Failure to Assess Student’s AT Needs

 Antelope Valley Union HSD (OAH 2010)

 District provided high school Student with dyslexia with

devices that Student did not or could not use

 District did not conduct AT assessment, but attributed

non-use to lack of motivation; AT technician’s response was that Student needed to “learn how to type”

 Failure to conduct AT assessment resulted in denial

• f FAPE and resulted in IEE award

 “District's AT approach was to decide what Student

needed, give it to him, monitor the AT use, and blame him if AT did not help”

(Student v. Antelope Valley Union High School Dist. (OAH 2010) Case No. 2010020521)

Providing AT to Address Behavior Without Conducting Assessment Denies FAPE

 Tuolomne Co. Superintendent of Schools and Curtis

Creek SD (OAH 2019)

 IEP team initially believed Student with ED did not require

AT, but subsequently allowed Parent to provide Student with “Leapfrog” tablet for classroom use

 Team members also agreed Student required iPad and

headphones to help control bus misconduct

 IEP team denied FAPE by offering services without

benefit of AT assessment that would determine Student’s unique behavior needs

(Student v. Tuolumne County Sup’t of Schools and Curtis Creek School Dist. and Tuolumne County Sup’t of Schools and Curtis Creek School Dist. v. Student (OAH 2019) Case Nos. 2019020281 and 2019010105)

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Failure to Provide AT Assessment Plan Did Not Impede Student’s Right to FAPE

 San Jose USD (OAH 2010)

 District recommended AT assessment for 9-year-old with

systemic juvenile arthritis in August 2009, but did not provide Parents with assessment plan

 Parents subsequently removed Student to private school  At March 2010 IEP meeting, District told Parents that

Student needed to be in school setting for District to conduct assessment; it did not provide assessment plan

 Had District provided assessment plan in 2009, Parents

would have known Student needed to be in school

 But procedural violation did not rise to level of denial of FAPE (Student v. San Jose Unified School Dist. (OAH 2010) Case No. 2010050065)

Lack of AT Assessment Request Excuses Failure to Provide PWN

 Tehachapi USD (OAH 2015)

 Although Alabama IEP indicated that Student needed AT

devices and/or services, no such services were listed

 District’s 30-day interim placement for Student did not

include AT; “Consent for Assessment” form did not indicate AT assessment would be conducted

 ALJ rejected Parents’ claim that failure to provide PWN of

refusal to assess for AT resulted in denial of FAPE

 Declining to conduct AT assessment would require PWN, but

Parents never presented anything for District to refuse

 “[District] did not refuse a request for services, placement, or

assessment because Parents never made any requests”

(Student v. Tehachapi Unified School Dist. (OAH 2015) Case No. 2015050839)

AT Assessments

Practice Pointer

 District must assess student in all areas of need related

to his or her disability

 Not required to conduct any assessments that would be

duplicative or redundant

 AT assessment might not be necessary if district can assess all

• f student’s identified and suspected areas of need through
• ther types of evaluations

 But provide PWN if AT assessment is requested and denied

 All general legal requirements governing assessments

and assessments reports apply to AT assessments

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AT Assessments

Practice Pointer

 Consider any disability-related information provided

by parents concerning student’s AT use (or non-use) at home

 District does not have to conduct AT assessment if it

reasonably believes that child is not yet capable of using AT device (e.g., child is too young)

 Generalized information showing that some young children with

disabilities can use certain types of devices will not, in itself, require district to conduct an AT assessment

AT Reassessments

Practice Pointer

 Regularly reassess student’s need for AT and do not

assume same device will be necessary or appropriate for student as he or she advances from grade to grade

 Ask: Has student changed? Has environment changed? Have tasks required of student changed?

• III. AT as Component
• f Substantive FAPE

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Legal Requirements

 AT devices or services that IEP team determines

are necessary for student to receive FAPE must be included in student’s IEP

 Under Endrew F. FAPE standard, AT devices and

services must be included to extent necessary in

• rder to assist student to make progress

appropriate in light of his or her circumstances

(Letter to Anonymous (OSEP 1991) 18 IDELR 627; Endrew F. v. Douglas County School

• Dist. (2017) 137 S. Ct. 98)

Legal Requirements

 If AT device is component of FAPE for student,

it must be provided at no cost to parents

 Responsibility for acquisition and maintenance of

AT device belongs to district, not parents

 Districts may not satisfy their responsibility to provide

any AT device required by student’s IEP by permitting student to use his or her own device, absent agreement to that effect

(Letter to Cohen (OSERS 1992) 19 IDELR 278; Washoe County School Dist. (SEA NV 2016) 69 IDELR 201)

Legal Requirements

 Districts are not required to select and purchase

more costly device that might provide more or better assistance to student and “maximize” education beyond Endrew F. FAPE standard

 But districts cannot use cost considerations to select

device that is inconsistent with student’s needs

 Districts are not required to purchase AT devices

that student would use outside of school (e.g., at home), unless needed to receive FAPE

(Greenwood County School Dist. (SEA SC 1992) 19 IDELR 355; Letter to Anonymous (OSEP 1996) 24 IDELR 388)

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SB 605

 Effective January 1, 2020  Districts must continue to ensure provision of AT

to disenrolled student with disabilities for two months after disenrollment or until alternative arrangements are made, whichever occurs first

 Districts must provide AT devices for use outside

• f school when IEP team determines that it is

necessary component of student’s FAPE

 No impact on current IDEA FAPE obligations

(Ed. Code,§56040.3)

SB 605

Practice Pointer

IEP teams may soon see increase in requests for AT devices to be used outside of school setting

 Understand that new law does not change—but only

codifies—district’s obligation to provide AT devices at home and in other settings when necessary for FAPE

 Consider revising policies and AT use agreements to

account for student’s continued access to AT devices after disenrollment

9th Circuit Applies Endrew F. FAPE Standard to AT Dispute

 E.F. v. Newport Mesa USD (9th Cir. 2018)

 U.S. Supreme Court required 9th Circuit to revisit 2017

decision that was issued one day prior to Endrew F.

 Original decision held that District provided FAPE to

kindergartner with autism despite not assessing/providing high-tech AT device

 District’s IEP enabled Student to make “some progress”

toward his speech and language goals

 9th Circuit was ordered to re-examine case and apply

Endrew F. FAPE standard

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9th Circuit Applies Endrew F. FAPE Standard to AT Dispute

 E.F. v. Newport Mesa USD (9th Cir. 2018) (cont’d)

 On rehearing, 9th Circuit held that Endrew F. decision did

not alter its prior ruling

 Student made progress toward his speech and language

goals using non-electronic assistive technology devices

 Despite Parents’ contention that children with autism may

begin using electronic AT devices as early as age 3, evidence established that some foundational behavioral and communicative skills are necessary in order to use electronic AT devices successfully

(E.F. v. Newport Mesa Unified School Dist. (9th Cir. 2018, unpublished) 71 IDELR 161)

District’s “Off-the-Shelf” AT Devices Are Sufficient to Provide FAPE

 Palo Alto USD (OAH 2018)

 ALJ: District provided “ample and effective” AT services,

equipment and software to 15-year-old Student with autism, anxiety and ADHD

 Parents criticized District’s computer provided to Student

during ninth-grade as only “an off-the-shelf” device

 District’s AT did not eliminate Student’s executive

functioning difficulties, but “barriers were emotional, not technological”

 Student did not require Windows Surface machine

for FAPE

(Student v. Palo Alto Unified School Dist. (OAH 2018) Case No. 2017110106)

Parent’s Failure to Cooperate with AT Training Is Not District’s Responsibility

 Garvey USD (OAH 2019)

 At March 2018 IEP team meeting, District offered

Student trial use of device with TouchChatHD software to address functional communication needs

 District scheduled training sessions for Parent on use of

device at home, but Parent repeatedly cancelled

 Student did not begin using device until beginning of

2018-2019 school year

 District was not responsible for any delay in training

Parent for Student’s use of device at home

 Delay of use at school did not affect Student’s progress

(Student v. Garvey School Dist. (OAH 2019) Case No. 2019030004)

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Student’s Resistance to Using AT Device Is Not IEP Implementation Failure

 Temecula Valley USD (OAH 2017)

 District provided touch-screen computer program to

Student with TBI that would allow him to speak into laptop, which then converted his speech into text

 Student refused to use device because he believed that

it took too long to set up

 “Student’s refusal to use the [AT] and the services

available to him did not rise to the level of a failure on District’s part to implement the IEP or a denial of FAPE, as evidenced by Student's generally passing grades in his general education classes”

(Student v. Temecula Valley Unified School Dist. (OAH 2017) Case No. 2017041132)

iPad Cases – Case #1

 Los Angeles USD (OAH 2012)

 Parents requested iPad for 7-year-old Student with

• rthopedic impairments

 District tried desktop touchscreen for 60-day trial, but

determined Student had more success when he could manipulate objects

 ALJ denied iPad request: No duty to maximize

Student’s potential

 Decision to forego touchscreen technology after 60-day

trial period was reasonable, given success Student had using other methods and given his lack of success on desktop touchscreen

(Student v. Los Angeles Unified School Dist. (OAH 2012) Case No. 2012061201)

iPad Cases – Case #2

 Los Angeles USD (OAH 2011)

 Parents of nonverbal high school Student with cerebral

palsy and ID failed to demonstrate that District failed to appropriately address Augmentative and Alternative Communication (“AAC”) needs

 Parents believed iPad 2 would be better suited for

Student than Springboard AT device provided by District

 But evidence showed that District carefully chose and

programmed Springboard dynamic display system, with voice

• utput, to enable Student to access curriculum

 “District is not obligated to provide the most

technologically advanced AT device, or a device that would serve other purposes”

(Student v. Los Angeles Unified School Dist. (OAH 2011) Case No. 2011030278)

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iPad Cases – Case #3

 Chaffey Joint Union HSD (OAH 2012)

 Parent claimed iPad would allow 16-year-old Student with

autism to make better use of unstructured time on bus

 ALJ determined that IEP team’s decision not to offer an

iPad was reasonable

 Student did not need iPad to communicate, to socialize

• r to control behaviors on bus

 “In sum, District was not required to offer the [AT]

preferred by Parents based on their perception that it would maximize the use of Student’s time during transportation”

(Student v. Chaffey Joint Union High School Dist. (OAH 2012) Case No. 2012060829)

iPad Cases – Case #4

 Carlsbad USD (OAH 2012)

 Parents wanted IEP team to incorporate iPad as AAC

device for 9-year-old Student with autism

 ALJ determined that IEP team developed appropriate

social skills goals without including iPad

 District was not required to use iPad to achieve

conversational exchanges, even if it “provides a better or more interesting means of initiating conversations”

 Written scripts called for in IEP served same purpose in

addressing Student’s language and social skills needs

 “[W]hether Student addresses these needs with an iPad or

written scripts is a choice of educational methodology”

(Student v. Carlsbad Unified School Dist. (OAH 2012) Case No. 2011120317)

Determining Appropriate AT

Practice Pointer

 Remind parents that district’s legal obligation is to

provide what is necessary for FAPE

 IEP team AT device decision-making process: Review progress without AT Consider available options Research devices before committing  Define purpose of AT in student’s IEP and align

selected device/services to applicable goals

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AT Trial Period

Practice Pointer

 Trial period with AT device provides opportunity to

evaluate its utility

 Trial period is not risk-free – parent may prefer device

regardless of success during trial

 Consider providing more than one device as an option to

determine which works best

 If trial period is offered, determine baseline, measure

progress and evaluate

Other AT Tips

Practice Pointer

 Make sure device operates correctly and train all

relevant staff on its use

 Immediately address student’s refusal to use his or her

device by developing strategies to help student become more comfortable using AT in class

Also consider need for AT reassessment because

there could be mismatch between student’s needs and AT currently being provided

Other AT Tips (cont’d)

Practice Pointer

 If student needs to take home AT device, consider

training parents and any relevant home service providers

• n how to operate it to assist student with any potential

technical issues that can arise away from school

 Remember that if district purchases AT device,

district owns it

 Students and parents generally have no right to privacy

with district-owned device

 State this clearly in IEP or in AT Use Agreement

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• IV. AT and “Effective

Communication” Obligations Under the ADA

ADA Title II “Effective Communication” Obligation

 Title II’s “effective communication” regulation

 Public entities must “take appropriate steps to ensure that

communications with applicants, participants, and members of the public with disabilities are as effective as communications with others”

 Public entities must “furnish appropriate auxiliary aids and

services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity”

(28 C.F.R.§35.160)

ADA Title II “Effective Communication” Obligation

 “Auxiliary aids and services” defined to include:

 Real-time computer-aided transcription services  Videotext displays  Interpreters  Braille materials  Audio recordings and taped texts  Optical readers  Word/letter board

(28 C.F.R.§35.104; 28 C.F.R.§35.160(b)(2))

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ADA Title II “Effective Communication” Obligation

 “In determining what type of auxiliary aid and

service is necessary, a public entity shall give primary consideration to the requests of the individual with disabilities”

 Must provide opportunity for student/parent to request

aid or service

 Must honor choice unless public entity can show that

alternate aid or service will be equally as effective

(28 C.F.R.§35.104; 28 C.F.R.§35.160(b)(2))

ADA Title II “Effective Communication” Obligation

 But:

 Public entity need not “take any action that it can

demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens”

 Public entity has burden to prove that proposed action

would result in undue burden or fundamental alteration

(28 C.F.R.§35.164)

ADA “Effective Communication” Obligation vs. IDEA FAPE Standard

 Remember: Districts must comply with both IDEA and ADA,

but laws differ in both ends and means

 IDEA sets only floor of access, but requires districts to

provide individualized services necessary to get student to that floor, regardless of costs, administrative burdens, or program alterations required

 ADA Title II requires districts to make services not just

accessible, but equally accessible (but only insofar as doing so does not pose undue burden or require fundamental alteration of their programs)

 ADA Title II compliance does not require IDEA eligibility

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K.M. v. Tustin USD (9th Cir.)

 Facts:

 16-year-old Student, deaf with cochlear implants, was

proficient at lip reading

 Student was fully included throughout elementary school

and had good grades

 Parent requested CART; District offered trials of CART,

and TypeWell

 Concluded that Student did not require transcription  Student testified she could hear teachers, but not always

her classmates; teachers testified that she could hear and follow classroom discussions well

K.M. v. Tustin USD (9th Cir.)

 Decision:

 OAH, District Court and 9th Circuit all agreed Student

received a FAPE under IDEA

 But: 9th Circuit concluded that whether Student was

provided appropriate access under the ADA is a different question

 Given differences between the two laws, success or

failure of an IDEA claim does not impact ADA Title II action

 Returned case to District Court for factual findings

(K.M. v. Tustin Unified School Dist. (9th Cir. 2013) 725 F.3d 1088, 61 IDELR 182)

K.M. v. Tustin USD (9th Cir.)

 Impact:

 K.M. decision does not mean that districts must provide

CART services to all students with hearing impairments

 However, it does require courts evaluating claims under

the IDEA and Title II of the ADA to analyze each claim separately under relevant statutory and regulatory framework of both laws

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FAQ Guidance (DOJ/OSERS/OCR 2014)

 What does it say?

Provides overview of Title II “effective

communication” rules and summary of IDEA FAPE requirements

Addresses interplay between Title II and IDEA Discusses implementation rules and

best practices

(Frequently Asked Questions on Effective Communication for Students with Hearing, Vision or Speech Disabilities (DOJ/OSERS/OCR 2014) 64 IDELR 180)

Effective Communication

Practice Pointer

When responding to request from parents of student with disabilities for particular communication device or service:

Understand differences between IDEA and

ADA Title II analyses

Determine who will handle requests under Title II Respond to request under both laws

Take Aways . . .

 Provision of AT can enhance educational development

• f students with disabilities, as well as promoting

independence and increased classroom participation

 Challenges for IEP teams:  Determining need for assessment  Reviewing assessment results  Determining need for AT  Selecting appropriate devices/services/settings  Ensuring proper implementation

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All Things Considered: English Learners with Disabilities

63

All Things Considered

English Learners with Disabilities

What We’ll Consider . . .

 General and Legal Overview  Analysis of Selected OAH Decisions

Addressing ELs

Child Find and Referral (Burbank USD) Eligibility (Santa Rita Union ESD) IEP Team Participation and Provision of Services

(Vista USD)

Other Noteworthy Decisions

General and Legal Overview

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Definitions

 “English learner” / “limited English proficient”

 Ages 3-21  Enrolled or preparing to enroll in elementary or

secondary school

 Not born in U.S.; or Native American/Alaskan native; or

migratory whose native language is other than English (see materials for full criteria)

 Difficulties in speaking, reading, writing, or understanding

English language that may be sufficient to deny: ability to meet proficient level of achievement on state assessments; ability to successfully achieve in classrooms; or opportunity to participate fully in society

(20 U.S.C.§7801(20))

Definitions

 “Native language”

 Language normally used by individual, or, in case of

child, language normally used by parents of child

 Except that in all direct contact with child, language

normally used by child in home or learning environment

(34 C.F.R.§300.29(b))

Identification of ELs

 Typically via home language survey (“HLS”)

given upon enrollment

 Survey asks:

 Which language did your child learn when he or she first

began to talk?

 Which language does your child most frequently speak

at home?

 Which language do you (parents or guardians) most

frequently use when speaking with your child?

 Which language is most often spoken by adults in home

(parents, guardians, grandparents, or any other adults)?

(California Department of Education, California Practitioners’ Guide for Educating English Learners with Disabilities (July 1, 2019))

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Identification of ELs

 When student is identified as potential EL based on

HLS results, “Initial ELPAC” is administered

 ELPAC replaced CELDT in 2017-2018

 Initial assessment of student’s English proficiency

confirms whether student is EL or English proficient

 EL students receive services to support both

English language development (“ELD”) and academic progress

(California Department of Education, California Practitioners’ Guide for Educating English Learners with Disabilities (July 1, 2019))

Referral for Special Ed Assessment

 Follows normal referral process  District-initiated:

 Must be in writing  Must document general education resources considered,

modified or implemented

 Parent-initiated:

 District must offer to assist parents to put request

in writing

(Cal. Code Regs., tit. 5,§3021)

Assessment Plan Content

 Language easily understood by general public  Native language or other mode of communication of parent,

unless clearly not feasible

 “Clearly not feasible” is not defined by law  Explain types of assessment  State that no IEP will result without consent of parent  Description of any recent assessments conducted  Information parents request to be considered  Information indicating student’s primary language and

language proficiency status

(Ed. Code,§56321, 34 C.F.R.§300.503; Cal. Code Regs., tit. 5,§3022)

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Assessment Procedures

 Tests and other assessment materials must be

provided and administered in language and form most likely to yield accurate information on what student knows and can do academically, developmentally and functionally, “unless it is not feasible to so provide or administer”

 USDOE: Phrase is not defined by law but should not be

used to limit evaluations in child’s native language

(34 C.F.R.§300.304(c)(1); Ed. Code,§56320; 71 Fed. Reg. 46642 (August 14, 2006))

Assessment Reports

 Must include determination concerning effects of

environmental, cultural or economic disadvantage

 For ELs, CDE also recommends reports contain:

 Impact of language, cultural, environmental and

economic factors in learning

 How standardized tests and techniques were altered  Use of interpreters, translations for tests, including

statement of validity and reliability related to their use

 Examiner’s level of proficiency in language of student

and its effect on test results and overall assessment

(Ed. Code,§56327; California Department of Education, California Practitioners’ Guide for Educating English Learners with Disabilities (July 1, 2019))

Qualified Assessment Personnel

 Be competent in oral (or sign language) skills and

written skills of primary language

 Have knowledge and understanding of cultural and

ethnic background of student

 Be familiar with second language acquisition features

and manifestations of dialect/sociolinguistic variance

 If not feasible to administer assessment in primary

language, interpreter must be used (and documented)

(Cal. Code Regs., tit. 5,§3023; California Department of Education, California Practitioners’ Guide for Educating English Learners with Disabilities (July 1, 2019))

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Eligibility Considerations for ELs

 Remember: Limited English proficiency cannot be the primary

determining factor for special education eligibility

IEP teams must rule out cultural factors,

environmental or economic disadvantage, and limited English proficiency in determining whether student has SLD

(34 C.F.R.§300.306; 34 C.F.R.§300.309; 34 C.F.R.§300.311)

IEP Team Meetings and Parent Participation

 Parents have right to receive notice of meeting in

their primary language

 Districts have obligation to ensure that parents

understand proceedings of IEP team meetings, including providing interpreter when necessary

 Districts must provide copy of IEP at no cost

 Regulations require that parents must be provided with

IEP documents in their primary language upon request

(Ed. Code,§51101; 34 C.F.R.§300.322(e); Ed. Code,§56341.5; 34 C.F.R.§300.322(f); Ed. Code,§56341.5; Cal. Code Regs., tit. 5,§3040)

IEP Team Members

 Team should include participants with expertise

in EL issues

 Staff member who can interpret results

• f ELPAC testing

 Staff trained in second language acquisition  District representative with knowledge of EL needs  Other experts

 E.g., speech-language pathologists who understand

how to differentiate between limited English proficiency and disability

(California Department of Education, California Practitioners’ Guide for Educating English Learners with Disabilities (July 1, 2019))

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IEP Development Considerations

 IEP teams must consider language needs of

student as such needs relate to his or her IEP

 IEPs for ELs must include “linguistically appropriate

goals, objectives, programs, and services”

 Activities which lead to development of English

language proficiency

 Instructional systems that meet language development

needs of EL student

(34 C.F.R.§300.324; Ed. Code,§56341.1; Ed. Code,§56345;

• Cal. Code Regs., tit. 5,§3001)

IEP Development Considerations

 IEPs must identify appropriate state assessments

and accessibility supports

 ELPAC, CAASPP, alternate assessments

 All EL students, including students with disabilities,

are required to have access to ELD programs

 ELD is not specialized academic instruction  CDE recommends that ELD programs/services be

documented as part of “special factors” section of IEP

 LRE analysis

(Ed. Code,§56345; Ed. Code,§52165; California Department of Education, California Practitioners’ Guide for Educating English Learners with Disabilities (July 1, 2019))

Exiting from Special Education

 “To determine if it may be appropriate to exit a

student from special education, the IEP team must determine if the student possesses the strategies and skills to access and progress in grade- level content”

 “It is important to understand that a student may no

longer meet eligibility for special education and related services but still may need [EL] services, including integrated and designated ELD instruction”

(California Department of Education, California Practitioners’ Guide for Educating English Learners with Disabilities (July 1, 2019))

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Reclassification of ELs

 Process used to determine whether EL student

has acquired sufficient English skills to:

 Successfully engage in classroom learning of core

academic curriculum taught in English

 Be accurately assessed in academic subject matter using

English, without specialized EL services and supports

 If reclassification criteria are met, student is

reclassified as fluent English proficient (RFEP)

(California Department of Education, California Practitioners’ Guide for Educating English Learners with Disabilities (July 1, 2019))

Reclassification of ELs

 Reclassification criteria include but are not limited to:

 Assessment of English language proficiency, using objective

assessment instruments, including, but not limited to, state test of English language development

 Teacher evaluation, including, but not limited to, review

• f student’s curriculum mastery

 Parent opinion and consultation  Comparison of student’s performance in basic skills against

established range of performance in basic skills based on performance of English proficient students of same age

(Ed. Code,§313)

Reclassification of ELs

 Students with disabilities provided same opportunity

to be reclassified as students without disabilities

 EL student may be unable to meet particular

criterion due to the specific nature of disability

 CDE: Two key issues related to reclassifying EL

students with disabilities

 ELs with disabilities are less likely to be reclassified  ELs at secondary level qualify for special education

services in greater proportion than ELs in earlier grades

(California Department of Education, California Practitioners’ Guide for Educating English Learners with Disabilities (July 1, 2019))

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OAH Decisions Addressing Issues Concerning ELs with Disabilities

Child Find and Referral

Burbank Unified School Dist.

Facts:

 Student attended school in Mexico for sixth grade,

re-enrolling in District for seventh grade

 District identified Student as “level 4” EL  Student was placed in English transitional class,

“English (T),” which was remedial class in general education curriculum

 Student struggled academically during seventh

grade; teachers expressed concern

Child Find and Referral

Burbank Unified School Dist.

Facts (cont’d):

 Student Success Team convened at mid-point of

Student’s eighth grade year after academic difficulties worsened

 Team did not refer Student for assessment,

believing Student’s problems were not indicative

• f SLD, but instead were related to:

 Deficiencies in reading English  Curriculum gaps because she attended school in Mexico  Fact that Spanish was primary language spoken at home

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Child Find and Referral

Burbank Unified School Dist.

Issue:

 Whether District breached its child find obligation

when it failed to identify Student as with a potential disability who may be eligible for special education?

Child Find and Referral

Burbank Unified School Dist.

Decision and Rationale:

 ALJ found District’s inaction violated child find  District should have reasonably suspected Student’s

continuing academic failures might have been due to learning disability

 Subjective opinion by school psychologist that

academic problems were related to attending school in Mexico did not relieve District of its duty to refer for assessment

Child Find and Referral

Burbank Unified School Dist.

Decision and Rationale (cont’d):

 District’s belief that Student would not qualify under

SLD category due to exceptions for cultural factors and limited English proficiency also did not excuse failure to refer for assessment

 Duty to assess is not dependent on eligibility

 ALJ refused to award comp ed because no showing

that Student should have been made eligible

 Ordered staff training on child find obligations

(Student v. Burbank Unified School Dist. (OAH 2018) Case No. 2018030791)

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Child Find and Referral

Practical Compliance Keys

 EL status should not be viewed as barrier to

referral for special education

 Referral for assessment does not require waiting

period for English language skills to develop

 Skilled assessors can determine that student has

disability (versus language difference), even if he

• r she has not yet fully acquired English

Child Find and Referral

Practical Compliance Keys

 CDE: Possible appropriate reasons for referral

 Academic or behavioral difficulties in both primary and

English language

 General ed teacher and EL specialist indicate student is

performing differently from his or her “like peers”

 Very little or no academic progress from appropriate

differentiated instructional strategies and interventions

 Parents confirm that difficulties are also occurring at home  Other school personnel confirm difficulties that were observed

in classroom setting

(California Department of Education, California Practitioners’ Guide for Educating English Learners with Disabilities (July 1, 2019))

Assessments and Eligibility

Santa Rita Union Elem. School Dist.

Facts:

 13-year-old Student with SLD and OHI was

subsequently found eligible as SLI and received speech and language services

 District conducted triennial assessment in 2012  Based on test results (CASL and GFTA-II),

assessment report concluded that Student’s speech and language deficits were result of her EL status, and not due to language disorder

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Assessments and Eligibility

Santa Rita Union Elem. School Dist.

Facts (cont’d):

 Observations indicated Student interacted typically

with friends and had no problems conversing in English with her classmates when she participated in small group speech and language instruction

 Parents did not consent to IEP, objecting to

removal of SLI eligibility and District’s accompanying decision to cease all speech and language services

 District filed for due process

Assessments and Eligibility

Santa Rita Union Elem. School Dist.

Issue:

 Whether District may remove Student from special

education eligibility under category of SLI and cease providing speech and language services?

Assessments and Eligibility

Santa Rita Union Elem. School Dist.

Decision and Rationale:

 ALJ determined that Student no longer met

eligibility requirements for SLI

 District successfully established that Student’s

speech and language deficits were result of language difference because Spanish was her first language and she was not fully proficient in English

 Marked difference between test scores administered

in English and those administered in Spanish

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Assessments and Eligibility

Santa Rita Union Elem. School Dist.

Decision and Rationale (cont’d):

 ALJ further found that Student did not require

speech and language services to receive FAPE

 District addressed language deficits, which were

related to processing, memory and attention deficits, through other IEP goals and services

 ALJ discredited private assessor because she

administered all tests in English based on mistaken belief that Student’s primary language was English

(Santa Rita Union Elem. School Dist. v. Student (OAH 2013) Case No. 2013010390)

Assessments and Eligibility

Practical Compliance Keys

 Ensure that parents of EL students understand

purpose of “special education,” eligibility requirements and provision of FAPE

 It can be essential to assess student in his or her

native language, as well as in English

 Direct observation is one of best ways to obtain

information about student’s language acquisition, language usage and learning challenges

IEP Team Participation and Provision of Services

Vista Unified School Dist.

Facts:

 Although retaining EL status, 12-year-old with ADHD

had become fully bilingual in English and Spanish, and was fully able to access his education in English

 CELDT scores generally increased yearly and were

at “early advanced” level by fifth grade

 But sixth grade CELDT scores dropped significantly  Parents believed IEP should have addressed deficits

indicated by most-recent scores

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IEP Team Participation and Provision of Services

Vista Unified School Dist.

Facts (cont’d):

 Parents also asserted District denied FAPE by not

providing Mother with translated IEPs and assessment documents

 District had interpreter present at each of Student’s

IEP meetings to translate all discussions and documents into Spanish for Mother, but it did not provide Spanish translations of documents as she requested

IEP Team Participation and Provision of Services

Vista Unified School Dist.

Issues:

 Whether Student required English language

development intervention in order to access his education?

 Whether District’s failure to translate assessments

and IEP document constituted procedural violation

• f IDEA that rose to level of denial of FAPE?

IEP Team Participation and Provision of Services

Vista Unified School Dist.

Decision and Rationale:

 District’s evidence was persuasive that Student’s

sixth-grade CELDT scores were an anomaly

 Credible testimony that it was extremely unlikely

Student would lose ability to understand, read and write English from one year to next

 No persuasive evidence that Student required

English language development intervention in order to access his education

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IEP Team Participation and Provision of Services

Vista Unified School Dist.

Decision and Rationale (cont’d):

 Any failure to provide written translation of documents

did not amount to denial of FAPE

 But . . . would OCR or CDE reach same conclusion?  District’s interpreter translated assessments and IEP

discussions for Mother

 Mother also demonstrated clear understanding of

documents that were only provided in English

 Mother actively participated in all IEP meetings

(Vista Unified School Dist. v. Student (OAH 2013) Case No. 2013070169)

IEP Team Participation

Practical Compliance Keys

 Whenever possible and when needed, dedicated

interpreter should translate meeting proceedings

 CDE: Best practices when using interpreters

 Observe body language  Interpreter should sit next to parent  Always speak to parent, not interpreter  Interpreter should only translate what is being said and

should not summarize content or add opinions

(California Department of Education, California Practitioners’ Guide for Educating English Learners with Disabilities (July 1, 2019))

Other Noteworthy Decisions

Yucaipa-Calimesa Joint USD (OAH 2011)

 ALJ rejected Parent’s claim that preschool Student’s

communication skills were attributable to disability, not language difference

 Language skills were on target for her age and Student

was able to communicate with teachers and classmates

 Any perceived difficulties were because Student “initially

was learning two languages and is only now choosing English as her primary language”

(Student v. Yucaipa-Calimesa Joint Unified School Dist. (OAH 2011) Case No. 2011050309)

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Other Noteworthy Decisions

Clovis USD (OAH 2009)

 ALJ rejected Parent’s claim that District denied FAPE by

failing to include ELD goals and specific ELD program in IEP for 12-year-old with autism

 ELD was not component of FAPE for Student  “[EL] standards are state-mandated and once Student

was assessed and determined to still be eligible for ELD services, they were provided pursuant to the state mandate, irrespective of whether he had an IEP”

(Clovis Unified School Dist. v. Student (OAH 2009) Case No. 2008110569)

Other Noteworthy Decisions

Garden Grove USD (OAH 2010)

 ALJ rejected Parents’ claim that District denied FAPE

to 13-year-old Student because:

 Student’s IEP team did not address ELD  ELD program used was not available to them  Student’s response to program was not disclosed

 IEP team had developed ELD goals  Instructional methodology used in classroom was at

discretion of District; and no evidence that District would not have disclosed program if asked to do so

(Student v. Garden Grove Unified School Dist. (OAH 2010) Case No. 2008100500)

Additional Resources

 “California Practitioners’ Guide for Educating English

Learners with Disabilities” (CDE July 2019)

 Guide is cited frequently throughout our session materials  Provides detailed guidance on identifying ELs with

disabilities, classification of students with disabilities as EL, providing services, exiting and reclassifying students

 Provides best practices recommendations, but is not

legally binding

 www.cde.ca.gov/sp/se/ac/documents/ab2785guide.pdf

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Take Aways . . .

 Identifying, assessing and differentiating instruction

for ELs with disabilities require understanding of interrelationships of language, culture, home and school factors that affect learning and behavior

 Requires consideration of all such factors when

making decisions about students’ educational needs so that they may succeed at school

 Because process can be challenging for EL families,

developing collaborative partnership and emphasizing parental participation is essential

F3 Student Awards™

Student Art Contest: Celebrate Success

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62

Spotlight on Practice: Service Animals at School

111

Spotlight on Practice

Service Animals at School

What We’ll Focus On. . . .

 Service Animals Under ADA  Service Animals and “Meaningful Access”

Under Section 504

 Service Animals as Component of FAPE  State Law Protections  Practical Pointers and Take-Away Training Tips

Service Animals Under the Americans with Disabilities Act

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ADA Overview

 Applies to “public entities,” including school districts  Districts may not:

 Deny persons with disabilities opportunity to participate in

• r benefit from aid, benefit or service

 Afford persons with disabilities opportunity to participate

in or benefit from aid, benefit or service that is not equal to that afforded to others

 Provide persons with disabilities with aid, benefit or

service that is not as effective as that provided to others

(28 C.F.R.§35.130(b)(1)(i), (ii) and (iii))

ADA Overview (cont’d)

 Districts must:

 Make reasonable modifications in policies, practices, or

procedures when modifications are necessary to avoid discrimination on basis of disability (unless making modifications would fundamentally alter nature of service, program, or activity)

(28 C.F.R.§35.130(b)(7))

ADA Overview (cont’d)

 “Individuals with disabilities shall be permitted to

be accompanied by their service animals in all areas of a [school district’s] facilities where members of the public, participants in services, programs or activities, or invitees, as relevant, are allowed to go”

(28 C.F.R.§35.136(g))

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General Definitions

 Individual with a disability: Person who has a

physical or mental impairment that substantially limits one or more major life activities

 Service animal: Dog that is individually trained to

do work or perform tasks for benefit of individual with a disability

 Miniature horses also included (subject to certain restrictions)  Excluded: All other species of animals, wild or domestic,

“including but not limited to wild animals, monkeys, reptiles, birds, and llamas”

(28 C.F.R.§35.104; 28 C.F.R.§35.108; 75 Fed. Reg. 56193 (Sept. 15, 2010))

General Definitions (cont’d)

 Work or task: Must be directly related to disability

and can include:

 Assistance to blind, deaf or hard of hearing  Pulling wheelchair  Seizure assistance  Alerting to presence of allergens  Reminding individual to take medication  Physical support  Preventing or interrupting destructive behaviors

(28 C.F.R.§35.104; 75 Fed. Reg. 56195 (Sept. 15, 2010))

General Definitions (cont’d)

 Work or task: Excluded from definition are crime

deterrent effect of animal’s presence, as well as provision of “emotional support, well-being, comfort, or companionship”

 But service animals that provide comfort or emotional

support in addition to doing work or performing tasks are still included in ADA protections

(28 C.F.R.§35.104; C.C. v. Cypress School Dist. (C.D. Cal. 2011) 56 IDELR 295)

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“Work or Task”: Case Example

 C.C. v. Cypress School Dist. (C.D. Cal. 2011)

 Dog calmed and provided comfort to alleviate severe

anxiety exhibited by 6-year-old with autism

 Dog also was trained to prevent Student from throwing

tantrums and eloping

 Court: Dog qualified as service animal under ADA, even

though it provided comfort

 Calming function was complemented by various other

tasks that met definition of “work” under ADA (i.e., “preventing or interrupting impulsive or destructive behaviors”)

(C.C. v. Cypress School Dist. (C.D. Cal. 2011) 56 IDELR 295)

Qualification as “Service Animal”

 Districts may only ask two questions (when answers

are not obvious):

 Is the animal required because of a disability?  What work or task has animal been trained to perform?  Districts cannot:  Ask about nature or extent of student’s disability  Require documentation, such as proof that animal has

been certified, trained or licensed as service animal

 Consider whether use of animal is in best interests of

child or whether it is educationally necessary

(28 C.F.R.§35.136; Sullivan v. Vallejo City Unified School Dist. (E.D. Cal. 1990))

Qualification as “Service Animal”

 Dog only needs to meet definition of “service

animal” to be covered by ADA

 District then must “modify its policies, practices, or

procedures” to permit use of service animal by individual with a disability unless district can demonstrate that to do so would “fundamentally alter the nature of the service, program, or activity”

 Proving “fundamental alteration” is extremely difficult

(28 C.F.R.§35.136(a), 28 C.F.R.§35.130(b)(7); 75 Fed. Reg. 56191 (2010))

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Restrictions on Districts

 Cannot require student to accept different or

alternative accommodations

 Cannot impose fees

 But can charge for any damage caused

 Cannot adopt policies with requirements more

stringent than ADA or policies leading parents, students, or community to believe that service animals are not welcome at schools

(28 C.F.R.§35.130(e), 28 C.F.R.§35.136(h); Antelope Valley Union (CA) High School Dist. (OCR 2017) 117 LRP 33366; Pasadena (CA) Unified School Dist. (OCR 2012) 60 IDELR 22)

Care and Supervision

 Districts are not responsible for care/supervision  But case law has given latitude to students by

requiring some assistance from school staff

 E.g., no “fundamental alteration” merely because staff

needed to learn commands, hold leash, provide water

 E.g., district required to assign employee to help

6-year-old student walk his dog during school hours

 E.g., ADA violation when district prohibited aide from

assisting student with her service animal commands

(28 C.F.R.§35.136(e); C.C. v. Cypress School Dist. (C.D. Cal. 2011) 56 IDELR 295; Alboniga v. School Bd. of Broward Co. (S.D. Fla. 2015) 65 IDELR 7; Gates-Chili Central School Dist. (DOJ 2015) 65 IDELR 152)

Excluding Animal from School

 Districts can exclude service animals only under

following circumstances:

1.

Animal is out of control (and handler does not take effective action)

2.

Animal is not housebroken

3.

Animal poses direct threat to health and safety of others

4.

Animal’s presence fundamentally alters nature of service, program or activity (no reported cases sanctioning this reason for exclusion)

(28 C.F.R.§35.136(b); 28 C.F.R.§35.139; 75 Fed. Reg. 56191 (Sept. 15, 2010))

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Health and Safety Exception

 Districts must make individualized assessment,

based on reasonable judgment that relies on current medical knowledge or on best available

• bjective evidence, to ascertain:

 Nature, duration and severity of risk  Probability that potential injury will actually occur  Whether reasonable modifications of policies, practices,

• r procedures or provision of auxiliary aids or services

will mitigate the risk

 “Heavy burden” for district seeking to exclude

(28 C.F.R.§35.139; Lockett v. Catalina Channel Express, Inc. (9th Cir. 2007))

Health and Safety Exception

 Potential health and safety risks

 Fleas (districts can require compliance with local

animal ordinances)

 Vaccinations and insurance (subject to same rules that

apply to other animals, but cannot require proof)

 Breed restrictions (case-by-case basis; not based on fears

• r generalizations about how breed behaves)

 Aggressive dogs  Allergies or fear of animals (not valid reason to exclude)  Dogs in presence of food (must allow dog in self-service

food lines)

(Frequently Asked Questions about Service Animals and the ADA (DOJ 2015) 115 LRP 30805)

Excluding Animal from School

 If service dog is properly excluded under ADA,

district must:

 Give student opportunity to participate in service, program

• r activity without having service animal on premises

 Permit its determination to be reviewed pursuant to

internal grievance procedures and, when asked, consider student’s request to bring dog to school as a reasonable modification or accommodation under Section 504 or IDEA

(28 C.F.R.§35.136(c); 28 C.F.R.§35.130(b)(7); 34 C.F.R.§104.7(b); Antelope Valley Union (CA) High School Dist. (OCR 2017) 117 LRP 33366)

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Service Animals and “Meaningful Access” Under Section 504

Section 504 Overview

 Similar to ADA prohibitions  Districts may not:

 Deny persons with disabilities opportunity to participate in

• r benefit from an aid, benefit or service

 Afford persons with disabilities opportunity to participate

in or benefit from aid, benefit or service that is not equal to that afforded to others

 Provide persons with disabilities with aid, benefit or

service that is not as effective as that provided to others

(34 C.F.R.§104.4(b))

Section 504 Overview

 District violates Section 504 if it denies qualified

individual with a disability reasonable accommodation(s) that individual requires in order to enjoy meaningful access to benefits of public services

(Alexander v. Choate (1985) 469 U.S. 287)

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Section 504 Overview

 Although Section 504 does not specifically mention

service animals, courts have held schools covered by Section 504 must modify their policies to allow for use of service animals by students with disabilities to same extent as schools covered by ADA

 Animal’s presence related to disability?  Reasonable accommodation?  To allow for meaningful participation/access?  Availability of alternative accommodation that also provides

meaningful access?

 Undue burden? (Berardelli v. Allied Servs. Inst. of Rehabilitative Medicine (3d Cir. 2018) 72 IDELR 201)

Section 504 Overview

 HUD Memo: ADA’s “definition [of service animal]

does not apply to . . . Section 504 [and] disabled individuals may request a reasonable accommodation for assistance animals in addition to dogs, including emotional support animals . . . under Section 504” [Emphasis added]

 Note: Memo issued by U.S. Department of Housing and

Urban Development in context of public housing requirements; no reported cases specifically applying it to service animals in schools

(Pratt Memorandum (HUD 2011))

Service Animals as Component

• f FAPE

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FAPE Overview

 IDEA standard requires development and

implementation of IEP that provides special education and related services that will enable student to make progress appropriate in light of his or her circumstances

 Section 504 FAPE standard requires consideration

• f whether students with disabilities are receiving

educational services as effective as those made available to their nondisabled peers

(Endrew F. v. Douglas County School Dist. RE-1 (2017) 137 S. Ct. 988, 69 IDELR 174; 34 C.F.R.§104.33)

FAPE Overview

 IDEA does not directly address right of students to

be accompanied by service animal at school

 Although teaching a student to use a service animal is

listed in regulations as example of “orientation and mobility services”

 To extent that student requires service animal in

• rder to receive FAPE, allowing student to be

accompanied by service animal on campus may qualify as “accommodation” or “related service”

(34 C.F.R.§300.34(c)(7); Student v. Bakersfield City School Dist. (OAH 2008) Case No. 2008070167)

FAPE Overview

 If IEP team decides that service animal is necessary

for FAPE, then animal must be provided by district at no cost to parents

 But given alternative services, supports and

accommodations that district may make available to provide FAPE, this scenario is unlikely, as limited case law demonstrates . . .

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IDEA Case Examples

 Bakersfield City School Dist. (OAH 2008)

 While service dog theoretically could help student stay

focused and on task, such functions could be better served by human one-to-one aide who could provide greater independence

 In re: Student with a Disability (SEA NY 2015)

 District did not have to allow student to use service dog

at school when it could address student’s unsafe behaviors with one-to-one aide

(Student v. Bakersfield City School Dist. (OAH 2008) Case No. 2008070167; In re: Student with a Disability (SEA NY 2015) 115 LRP 20747)

IDEA Case Examples

 Cave v. East Meadow Union Free School Dist.

(E.D.N.Y. 2007)

 Because district sufficiently accommodated student with

hearing impairment by providing sign language interpreter, notetaker and FM transmitter, it did not have to allow student to bring his service dog to class

 Collier County School Dist. (SEA FL 2009)

 District did not have to provide service dog as IDEA

related service where dog’s purpose was to comfort child in event of a seizure; one-to-one aide could provide same service

(Cave v. East Meadow Union Free School Dist. (E.D.N.Y. 2007) 47 IDELR 162 , aff’d, (2d Cir. 2008) 49 IDELR 92; Collier County School Dist. (SEA FL 2009) 110 LRP 7471)

IEP Team Analysis

 IEP team is not required to comply with student’s

• r parents’ preference in evaluating whether

service animal is necessary for provision of FAPE

 But IEP teams must not automatically exclude

service animals as component of FAPE without undertaking case-by-case analysis

 E.g., by banning service dog without convening IEP

team to consider specific situation, district denied student FAPE

(Student v. Bakersfield City School Dist. (OAH 2008) Case No. 2008070167; In re: Student with a Disability (SEA IL 2014) 65 IDELR 57)

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Exhaustion of IDEA Remedies

 Fry v. Napoleon Community Schools (2017)

 Parents sued under ADA/Section 504 over District’s

decision to deny service dog

 Lower court required exhaustion of administrative

remedies under IDEA before filing claim in federal court

 U.S. Supreme Court: Exhaustion of IDEA remedies is

• nly required when “gravamen of a complaint seeks

relief for a denial of FAPE”

 Could student make same claim against a public entity other

than a school?

 Could adult at school assert same claim against district?  If both answers are yes, claim likely does not involve FAPE

State Law Protections

State Law Protections

 Unruh Civil Rights Act

 Does not specifically address service animals, but is

interpreted consistently with ADA (with some broader protections)  California Disabled Persons Act

 Allows for individuals with disabilities to be accompanied in

public places by guide dogs, signal dogs or service dogs, especially trained for such purpose  Fair Employment and Housing Act

 Employees may bring “assistive animal” to work as

reasonable accommodation for disability to allow them to perform essential job functions

(Civil Code,§§51, 54; Cal. Code Regs., tit. 5,§§11065, 11069)

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Practical Pointers and Take-Away Training Tips

Responding to Request for Service Animal

 Ensure staff understand service animal policy

 Centralize process to ensure uniform response

 Know what and what not to ask

 Two permissible questions under ADA

 Know how to respond to concerns expressed by

• ther parents

 Explain what law requires and available protections for

health/safety risks

Responding to Request for Service Animal (cont’d)

 Consider child find obligations if student has not

been previously identified as having a disability

 Remember that only individuals with disabilities are

entitled to bring service animal into school

 But determine if student needs to be—or should have

been—assessed (child find) before denying any request

 Keep lines of communication open if dispute arises

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Potential Health and Safety Issues

 Recognize that most service animals will not pose

direct threat to students or staff

 Direct threat exists only if there is significant risk to

health or safety of others that cannot be eliminated by modification of policies, practices, or procedures, or by provision of auxiliary aids or services

 Take steps to properly introduce service animal to

• ther students and set guidelines for interaction

Potential Health and Safety Issues (cont’d)

 Immediately address any teasing or provocation

from other students

 Make sure all staff understand that they must quickly

put end to any harassment of dog by classmates

 Report all incidents of animal aggression

 Conduct prompt investigation  Schools have duty to act reasonably to provide safe

environment for all students

Circumstances Involving Other Students (e.g., Allergy to Dogs)

 Direct threat exception is not automatically

triggered by presence of another student with dog allergies

 Consider convening meeting with staff (and

possibly parents of both students, if they agree) to discuss how conflicting disabilities impact each

• ther, when and where they conflict and

suggestions on how to avoid such conflict

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Circumstances Involving Other Students (cont’d)

 Optimal outcome is to address needs of both

students while keeping them in same setting (i.e., same classroom)

 Different seating arrangements?  Vacuuming, washing, creating “allergy free” zone?  Explore dog grooming techniques?

 Be sure to comply with LRE requirement if

students cannot remain in same classroom

Handlers, Control Issues and Obligation to Provide Assistance

 Remember that ADA does not require districts to

provide service animal handler

 If student’s disability prevents him or her from keeping

animal under control, then separate handler is required (at parents’ expense)

 But district may need to assist student with care

• f service animal if such assistance is reasonable

accommodation

Handlers, Control Issues (cont’d)

 Document when and under what circumstances

service animal was not under control and immediately inform parents

 If problems persist, look to ADA rules that would allow

district to exclude animal from campus

 Service animals should not be allowed to bark

repeatedly in lecture hall, classroom or other quiet places

 But one or two isolated barks should not be cause

for concern

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Service Animals on the Bus

 Develop procedures for how animal will board,

ride and exit bus

 Animal must not be tethered or restrained in way that

restricts it from interacting with or assisting student

 Make sure driver is aware that animal will be

present on bus

 Drivers and aides should understand what service(s)

animal is trained to provide

Service Animals on the Bus (cont’d)

 Inform other student riders and their parents that

there will be service animal accompanying student

• n bus

 Do not reveal student’s identity or disability  Advise other students on bus that they should not do

anything that might distract dog away from student

 If another rider on bus is allergic to dogs,

accommodations – such as separate seating areas – might be required

What Does It All Mean?

 Service animals allow many students with

disabilities access to their education while enabling greater independence

 Different laws and variety of issues factor into

analysis of topic and various responsibilities imposed on school districts

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What Does It All Mean?

 In making decisions on whether to permit service

animal on campus, look first to ADA

 If animal is permitted by ADA rules, district must

allow animal to accompany student

 Look at ADA exclusionary exceptions (e.g.,

health/safety, control issues) only after animal is present on campus

 If animal does not meet ADA requirements,

analyze whether it would be permitted under either Section 504 or under FAPE analysis

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Legal Update

165

Cases, Guidance and Other Developments

Legal Update Overview . . .

 New OAH Decisions  Noteworthy Decisions from Courts  Latest Federal Guidance  Recent Developments Affecting Special

Education in California

• I. New OAH Decisions

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Assessments and Consent

Assessments and Consent

Los Alamitos Unified School Dist.

Facts:

 IEP team determined further assessments were

required to determine Student’s present levels and goals

 Father consented; Mother did not (emailing District that

she was refusing consent to assessment plan)

 District continued attempts to obtain Mother’s

consent but received no response

 District filed for due process seeking to assess

Student without Mother’s consent

Assessments and Consent

Los Alamitos Unified School Dist.

Decision:

 ALJ granted District’s request

 Assessment was necessary to develop IEP  District made appropriate effort to obtain Mother’s consent

 ALJ rejected Mother’s objections to assessment

 Failure to check box concerning alternate means of

assessment did not invalidate plan

 Assessment plan did not need to be presented to Mother

during course of IEP meeting

 Alleged inappropriate placement would not impact results

(Los Alamitos Unified School Dist. v. Student (OAH 2019) Case No. 2019061161)

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Assessments and Consent

Why Does This Case Matter to Us?

 Districts must look to the express language of

custody order to determine which parent (or parents, jointly) has decision-making authority

 Here, Mother and Father each held educational rights

and, ALJ noted, consent of both was required regarding Student’s educational decisions

 Therefore, District was correct in pursuing Mother’s

consent and in filing for due process to proceed with assessment

Bullying

Bullying

Torrance Unified School Dist.

Facts:

 During seventh grade, Student regularly sheltered

in school office to avoid harassment, particularly by “Student O”

 Additional incidents occurred in eighth grade,

leading Student to comment in frustration about burning school down

 District conducted various investigations but

bullying of Student continued unabated

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Bullying

Torrance Unified School Dist.

Decision:

 ALJ: Student was subject to pervasive bullying at

school, which District failed to prevent, effectively denying Student FAPE

 Substantial interference with his academic performance

 District’s response was not appropriate to ongoing

situation and did not alleviate problem

 But Parent did not prove that reimbursement for

Lindamood Bell program was appropriate remedy

(Student v. Torrance Unified School Dist. (OAH 2019) Case No. 2019011024)

Bullying

Why Does This Case Matter to Us?

 Bullying can deny FAPE if it interferes with

student’s ability to receive meaningful educational benefit

 As part of their response to bullying, districts

should reconvene IEP team to determine if needs have changed as a result of bullying to ensure that student continues to receive FAPE

Child Find

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Child Find

Bellflower Unified School Dist.

Facts:

 Student’s academic struggles began in third grade  District provided general ed interventions in fifth

grade, which were somewhat successful

 But academic performance continued to decline over

following three school years

 Teachers attributed Student’s struggles to lack of

motivation and, therefore, no referrals were made

 Student ultimately found eligible in 2019 under SLD

and OHI categories

Child Find

Bellflower Unified School Dist.

Decision:

 ALJ: District committed child find violation that

resulted in denial of FAPE

 Student consistently displayed symptoms of

processing disorder and attention deficit disorder

 “District . . . allowed the subjective opinion of a

staff member to circumvent its responsibility to thoroughly assess Student”

(Student v. Bellflower Unified School Dist. (OAH 2019) Case No. 2019051216)

Child Find

Why Does This Case Matter to Us?

 Child find claims continue to rise rapidly  Districts cannot rely on informal observations, or

the subjective opinion of staff, to circumvent responsibility to assess child in all areas of suspected disability

 Suspicion that student might have impairment

affecting educational performance is sufficient to trigger need for referral and assessment

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Discipline

Discipline

Empire Springs Charter School

Facts:

 14-year-old with undisclosed disability attended

charter school’s independent study program

 Parent revoked consent for special ed

 When charter school advised Parent that Student could

no longer waive out of state-level testing, Parent sought reinstatement by requesting new assessment

 Meanwhile, Student did not participate in tests and

was disenrolled per terms of contract

 Parent claimed Student was disciplinarily expelled

Discipline

Empire Springs Charter School

Decision:

 ALJ: No disciplinary change of placement  Student became general education Student as result

• f revocation of consent and was subject to testing

per terms of Parent’s agreement with school

 Failure to take tests was not “misconduct”  Parent’s request for another assessment did not

automatically reinstate Student in special education

(Student v. Empire Springs Charter School (OAH 2019) Case No. 2019060591)

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Discipline

Why Does This Case Matter to Us?

 ALJ was careful to delineate several factors to

distinguish between disenrollment due to contractual violation and disciplinary expulsion, which would be subject to protections of Education Code and, possibly, IDEA (based on knowledge of Student’s disability)

Eligibility

Eligibility

Santa Monica-Malibu Unified School Dist.

Facts:

 After fourth-grader expressed suicidal thoughts,

she was involuntarily hospitalized

 Hospitalized again during fifth-grade year after

cutting herself

 District’s assessment report concluded that Student

did not meet eligibility criteria for ED because she did not exhibit any qualifying characteristics over long period of time, and to marked degree, that adversely affected her educational performance

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Eligibility

Santa Monica-Malibu Unified School Dist.

Decision:

 ALJ upheld District’s conclusion  Section 504 accommodations were working  Student had positive social relationships, performed

well academically and behaved well at school

 Six months had passed between hospitalization

and IEP team meeting

 Even if ED criteria had been met, there was no

adverse effect on educational performance

(Student v. Santa Monica-Malibu Unified School Dist. (OAH 2019) Case No. 2019010897)

Eligibility

Why Does This Case Matter to Us?

 Critical component of ED eligibility analysis in this

case was whether Student exhibited one or more characteristics of ED “over a long period of time and to a marked degree”

 OSEP has opined that “a long period of time”

generally is from two to nine months, assuming application of preliminary interventions and documentation that they had proved ineffective

(Letter to Anonymous (OSEP 1989) 213 IDELR 247)

IEPs

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IEPs

Los Angeles Unified School Dist.

Facts:

 IEP team revised toileting goal for Student with autism

to allow her to use unspecified “agreed-upon strategies designed within her comfort level” to signal need to go to bathroom

 District provided two versions of IEP to Parents with

identical language regarding toileting goals, but with different provisions regarding testing accommodations

 When Parent refused to consent (for other reasons),

District filed for due process to implement IEP

IEPs

Los Angeles Unified School Dist.

Decision:

 ALJ rejected District’s request  Toileting goal provided no clear method for Student

to signal her needs, and no way to measure Student’s progress

 Providing two versions of IEP did not satisfy

requirement of offering Student single, specific program devoid of ambiguities

(Los Angeles Unified School Dist. v. Student (OAH 2019) Case No. 2019030744)

IEPs

Why Does This Case Matter to Us?

 IEP goals must be clear and measurable, and

cannot leave material aspects of goal to be decided later

 Also, IEPs must present “a clear, coherent offer

which [parent] reasonably could evaluate and decide whether to accept or appeal”

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Least Restrictive Environment (“LRE”)

LRE

Downey Unified School Dist.

Facts:

 District determined that elementary school

Student’s severe maladaptive behaviors prevented access to education in current SDC placement

 IEP team proposed NPS placement with smaller

environment and intensive behavior supports

 Per settlement agreement, Student attended NPS pending

assessments

 Parent believed mild-to-moderate SDC with 1:1 aide

and other supports was LRE

LRE

Downey Unified School Dist.

Decision:

 ALJ ruled that LRE was NPS proposed by District  District had “made genuine attempts to modify

Student’s maladaptive behaviors to allow him to remain in a public school placement”

 District IEP team members credibly testified that

Student was making progress during his time attending NPS

(Student v. Downey Unified School Dist. (OAH 2019) Case No. 2019060369)

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LRE

Why Does This Case Matter to Us?

 In this case, District demonstrated that it made

every effort to enable Student to learn in his SDC setting before recommending more restrictive placement

 Applying Rachel H. LRE test, ALJ concluded that

negative effect of Student’s continued presence in his SDC on his teacher, aides, and classmates substantially outweighed benefit he might receive from exposure to typical peers

LRE

Coronado Unified School Dist.

Facts:

 District placed Student with ED in residential

treatment program (with on-site NPS) in 2016

 In 2018, IEP team proposed that Student transition

from RTC to home, while continuing to attend NPS

 District, however, agreed to keep Student at RTC while

Parent was deployed by military

 By 2019, Student’s behaviors had improved and IEP

team again proposed transitioning him to home

LRE

Coronado Unified School Dist.

Decision:

 ALJ: Student did not need RTC to receive FAPE  Student no longer exhibited suicidal ideations and no

longer had significant behavior concerns

 District’s FAPE offer included NPS where Student had

been successful academically, had access to grade- level curriculum, and had met grade-level standards

 Continuing RTC placement “was a detriment to his

well-being”

(Coronado Unified School Dist. v. Student (OAH 2019) Case No. 2019090388)

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LRE

Why Does This Case Matter to Us?

 On LRE continuum, the more removed a placement

is from a general education classroom setting, the more restrictive it is considered to be

 As such, residential placement is one of the most

restrictive settings possible and is appropriate only when no other less restrictive placements can provide special education and related services necessary to meet student’s educational needs

Postsecondary Transition

Postsecondary Transition

Pasadena Unified School Dist.

Facts:

 District’s ITP stated that its transition assessment

was based on interview with Student

 ITP contained goals and services based on

Student’s career goal of becoming actress

 Parents claimed denial of FAPE for:

 Failure to conduct transition assessment  Failure to offer appropriate ITP  Failure to offer appropriate transition services

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Postsecondary Transition

Pasadena Unified School Dist.

Decision:

 ALJ questioned whether interview actually occurred  But ITP offered appropriate goals and services

 Measurable goals addressed education and employment  Services included group career awareness, guidance and

career assessment services designed to broaden Student’s career horizons

 Because ITP was appropriate, failure to conduct

transition assessment did not deny FAPE

(Student v. Pasadena Unified School Dist. (OAH 2019) Case No. 2018110928)

Postsecondary Transition

Why Does This Case Matter to Us?

 In this case, ALJ stated that “a transition

assessment may be informal, or may not even be required to support a transition plan” when IEP team has sufficient information about Student’s transition needs to enable it to develop IEP

 Note, however, several other cases have held that

transition assessments are an essential component

• f postsecondary transition planning

Transportation

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Transportation

• Mt. Diablo Unified School Dist.

Facts:

 District offered high-schooler with OHI (anxiety,

depression) and other disabilities (including seizure disorder) transportation from home to school and back, from door to door, in special education bus

 Parent claimed transportation offer denied FAPE

 Potential for attack from other students  Ride would be too long  Student might have seizure that could not be addressed

Transportation

• Mt. Diablo Unified School Dist.

Decision:

 ALJ: No evidence to support Parent’s claim that any

aspect of District’s transportation offer was “unreasonable, unsafe or unlawful”

 Potential for violence by other students was based on

hearsay and “perceived experiences” in other districts

 Drivers were trained to address behavior issues  Fear of seizure was “too speculative”  Trip length of slightly more than 1 hour was reasonable

(Student v. Mt. Diablo Unified School Dist. (OAH 2019) Case No. 2019050383)

Transportation

Why Does This Case Matter to Us?

 Transportation provided as related service must be

reasonably safe; district that transports students has duty to exercise reasonable care

 But “speculative fear” that student would incur health

issues or be subject to injury from riding special education bus is not proof that offer of transportation would deny student FAPE

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• II. Noteworthy Decision

from the Courts

Parent Participation

J.L.N. v. Grossmont Union High School Dist. (S.D. Cal.)

Facts:

 Parent claimed she could not discern Student’s current

abilities or present levels from October 2015 IEP document because present levels were not fully updated from September 2014 IEP

 Parent also claimed District failed to provide her with copy of

assessment report during January 2016 IEP team meeting and that November 2016 IEP lacked adequate present levels and baselines

 Parent had fully participated in all IEP team meetings,

discussed and was knowledgeable about present levels and assessments, and was assisted by advocate

Parent Participation

J.L.N. v. Grossmont Union High School Dist. (S.D. Cal.)

Decision:

 Court: IEP was procedurally deficient due to District’s failure

to update all present levels of performance

 District also should have provided copy of assessment report

to Parent and advocate

 But none of these procedural violations hindered Parent’s

• pportunity to participate in decision-making process or

precluded her from understanding Student’s needs

 Court affirmed ALJ’s decision that Parent was not entitled

to remedy

(J.L.N. v. Grossmont Union High School Dist. (S.D. Cal. 2019) 75 IDELR 101)

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Parent Participation

Why Does This Case Matter to Us?

 Although technical errors in IEP document amount

to IDEA procedural violation, they do not result in a denial of FAPE giving rise to remedies unless they:

 Impede the student’s right to FAPE;  Significantly impede parent’s opportunity to participate

in decision-making process; or

 Cause a deprivation of educational benefits

• III. Latest

Federal Guidance

Compensatory Education

Letter to Anonymous

 If compliance complaint decision has ordered relief

(e.g., compensatory education) that can reasonably be implemented when student moves to another state (and parent does not reject remaining compensatory services), SEA must ensure its decision is implemented in new state

 Fact-specific determination (e.g., if compliance complaint

relief has ordered new IEP and student moves to new state, LEA from new state is responsible for assessing student and developing IEP)

(Letter to Anonymous (OSEP 2019) 75 IDELR 162)

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IEP Team Meetings

Letter to Anonymous

 Although IDEA does not specifically require

providing assessment report or results prior to IEP meeting at which report will be discussed, parents must have all information they need to participate meaningfully in IEP team meetings, which may include reviewing their child’s existing records prior to meeting

(Letter to Anonymous (OSEP 2019) 75 IDELR 109)

Postsecondary Transition

Questions and Answers on Increasing Postsecondary Opportunities and Success

 Students with disabilities are not precluded from

participating in dual enrollment programs (taking courses offered by postsecondary institutions) solely because such courses are not explicitly detailed in student’s IEP, or such services are not considered secondary school education by the state

 But there are restrictions on using IDEA Part B funds

(Questions and Answers on Increasing Postsecondary Opportunities and Success for Students and Youth with Disabilities (OSERS 2019) 75 IDELR 79)

Postsecondary Transition

Letter to Olex

 Parental consent under IDEA is not required prior to

conducting age-appropriate transition assessment because purpose of assessment is to develop appropriate postsecondary IEP goals

 But consent is required when assessment will be

used to determine whether child has or continues to have disability, or nature and extent of special education and related services that child needs

(Letter to Olex (OSEP 2019) 74 IDELR 22)

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Related Services

Letter to Rowland

 Question posed in context of LAUSD’s Preschool for

All Learners (“PAL”) special day program restrictions

• n related services

 OSEP: Policy that prohibits provision of specific

related services or restricts amount/type of services that can be provided based solely on setting in which child is placed, regardless of his or her individual needs, would not be consistent with individualized decision-making processes

(Letter to Rowland (OSEP) 75 IDELR 108)

• IV. Recent

Developments Affecting Special Education in California

New Legislation for 2020

 SB 223: Allows districts to adopt policies permitting

parents to administer medicinal cannabis

 Effective January 1, 2020

 SB 328: Prohibits most middle and high schools

from starting regular school day earlier than 8:00 a.m. and 8:30 a.m., respectively

 Deadline for compliance is July 1, 2022, or the expiration date of

collective bargaining agreement that is in effect on January 1, 2020, whichever is later

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New Legislation for 2020

 SB 419: Expands ban on suspensions for “willful

defiance” to include students in grades 4 through 8

 Effective July 1, 2020

 AB 1172: Imposes staff training and reporting

requirements on NPSs and NPAs; requires

• nsite visits by LEAs that place students per

master contract

 Most provisions effective beginning with 2020-2021

school year

FMLA Leave for IEP Meetings

 U.S. Department of Labor: Parents’ need to attend

IEP team meetings addressing provision of special education for their child is qualifying reason for taking intermittent leave under FMLA

 “Attendance can be essential to ability to provide

appropriate physical or psychological care”

 Doctor need not be present at meeting

 Note: California permits employees to take 40 hours

per year and no more than eight hours per month to participate in their child’s educational activities

Thank you for attending! And thank you for all you do for students!!

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