The Gottlieb Special Education Legal Newsbrief

Articles:  1. Bullying of special education students

               2. Private school placement

               3. Due Process Hearing

               4. Residential Treatment Center Placement

               5. Parent’s Right to Observe Child

               6. "Stay Put," The Power of No!

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1. Subject: Bullying of special education students

Special education children are uniquely vulnerable to bullying by other students, specifically because of their disabilities. Bullying is much different than the infrequent physical altercation between two students.  Bullying is about a stronger student, who physically or verbally abuses a weaker student on a continuous basis. The bully uses his superior physical and cognitive abilities as a source of power to control and humiliate the weaker student. 

As stated above, bullies tend to seek out the student who is less able to defend himself or herself; often resulting in special education students being particular targets of such abuse. Accordingly, educational authorities have come to realize that bullying is a destructive occurrence interfering with the emotional growth of children as well as impacting a child’s educational program.

The California Legislature addressed the bullying issue by amending the Education Code, section 35294.2, requiring the California Department of Education to develop a sample bullying policy for school districts.  

The following are some actions a school district will take, when a bullying situation arises:

• The parents of the bully and the bullied student will be contacted and made aware of the situation.
• The bullied child will be re-assured that steps will be taken to protect him.
• If necessary psychological counseling will be provided to the bullied child; focusing on building social skills and confidence.
• The bully will be informed of the consequences of his actions, which may include detention, suspension, and expulsion as well as involving law enforcement.
• Under no circumstances is the bullied student to be punished for the actions of the bully.
  
  

If a bullied student is severely injured by a bully, the school district may find itself financially responsible to the bullied student. This will occur where a school district is aware of a bullying situation and fails to take appropriate precautions to stop the bullying. Every school district has a duty to prevent dangerous practices that are likely to result in a physical injury to a student. Additionally, school districts have a distinct duty to protect special education students from abuse by bullies. In a recent case,  a school district knew that a student was bullying a disabled student and failed to take appropriate interventions.  Eventually, the bully sexually abused the disabled student. The school district was successfully sued by the special education student and his parents [Panama Buena Vista Union School District 110 Cal.App4th 508, 2003].

If you are aware of a special education student being bullied; immediately have the family contact the school district.  If the school district refuses to take appropriate action, then contact a special education attorney.

2. Subject: Private school placement

Under what circumstances is a school district required to pay for a private school education?

First, as a general rule, a special education student does not have the right to a private school education.  Rather, a school district is required to provide a free appropriate public education (FAPE).  And…that is where there is a legal opening for a parent to seek reimbursement for a private school placement.

If a school district is unable to directly provide a FAPE, then a school district must find another means to provide the FAPE (for example, through a private school). Many times a school district will not have its own occupational therapy (OT) service, so it contracts with a private (non-public) agency to provide the OT service. The same applies to a private school placement.  For example, if a school district does not have the appropriate facilities and staff to serve an emotionally disturbed special education child the school district may have to contract with a private school that specializes in the area of emotionally disturbance. These requirements apply equally to an autistic child, a child with a traumatic brain injury or any other special education eligible child.

In this regard, there are times when a school district and a parent disagree regarding the appropriateness of a FAPE offer and the parent decides to place the child in a private school, without the permission of the school district; and furthermore, the parent wants to be reimbursed for the private placement.

The U.S. Supreme Court has held that parents who enroll their child at a non-approved private school may be entitled to reimbursement for tuition and related expenses if they can prove that:

1. the child was deprived of a Free Appropriate Public Education by their school district; and
2. the private school chosen by the parents was "appropriate." [Florence County School District 4 v. Carter, 510 U.S. 7 (1993)]

The challenge is in the word “appropriate.” For the school district offer, must the term “appropriate” refer specifically to the placement or the combination of placement and services? As to the private school unilaterally chosen by the parents, does the program need to be a full-blown "special education" program with its staff fully certified as special education teachers or does it need to provide the same or a comparable curriculum to that offered in a public school program? There is no clear answer to these questions. However, from my own experience, the school district’s public placement offer must be woefully inadequate and the parent’s private school choice must have a unique focus on the child’s specific disability and unique educational requirements.

However, even if parents decide to place their child unilaterally in a private school and want the school district to reimburse them for the private placement, they must take specific steps to protect their rights.

The parents must advise the IEP team that they are rejecting the proposed IEP and state their concerns and their intent to enroll their child in a private school at public expense or provide ten (10) business days written noticebefore removing the child from the public school of their intent to enroll the child in a private school at public expense. My own professional advice is to satisfy all of the requirements at an emergency IEP meeting and simultaneously provide 10 days written notice at the same IEP meeting (which should be documented within the IEP notes). If a parent doe not follow these steps, the parent may lose his/her right to reimbursement for an appropriate private placement – even if the public school placement was inappropriate.

In my own experience, I have placed special education children in private schools, with and without litigation; sometimes being resolved at an IEP meeting.  However, this is one area where a special education attorney’s advice should be sought before making the request for a private school placement.

3. Subject:DUE PROCESS HEARING

The following is a summary of the legal/administrative process in regard to a parent initiating a due process complaint (lawsuit) against a school district; a complaint filed before the California Office of Administrative Hearings (OAH) – Special Education Division.

An example of when a due process complaint is appropriate is when a school district and a parent disagree about a placement or the scope of services offered within an IEP or the school district fails to offer eligibility; and the school district's refusals are in conflict with special education law. Accordingly, under such circumstances both federal and state laws have developed a process for an administrative law judge (ALJ) to resolve the conflict.

To begin the administrative resolution process, the parent or their attorney drafts a complaint; not much different than a lawsuit complaint filed in a regular courthouse; for example, a superior court. The difference is that the case is filed with an administrative court, the OAH. The case will be heard by an ALJ familiar with special education law. The case will be decided by the ALJ, not by a jury.

Once a complaint is filed by a parent, the school district must meet with the parents in an informal meeting, known as a “resolution meeting.” The resolution meeting does not include an independent third party, such as a mediator. However, the parents can have an attorney present at the resolution meeting. The purpose of the resolution meeting is to resolve the conflict, without the need for any further proceedings. Sometimes, resolution does indeed occur at these meetings, but most often that does not happen.

Shortly, after the resolution meeting takes place a mediation meeting is scheduled. The OAH assigns a judge familiar with special education law as a mediator to help the parties resolve the matter, without the need for a hearing.

Most cases that enter mediation are resolved at mediation or shortly thereafter. The mediator listens to the positions of each party and uses that information to persuade the parties to bring the matter to early closure in as fair and equitable manner as is possible. In other words, the OAH mediator acts as a facilitator. The mediator does not have any authority or power to force any one person to take any particular action. However, as the mediator is an experienced OAH judge, his or her credibility is significant in resolving the conflict.

It is helpful to have a mediation brief prepared before the mediation, such that the mediator can have a better appreciation of the case. Additionally, key documents should be brought to the mediation, such as assessments. You want the mediator to understand the persuasiveness of your case in as concise a manner as possible.

Approximately, 95 percent of special education due process cases filed with the OAH are resolved in one manner or another, without an actual hearing. The remaining cases are heard by an OAH administrative law judge.

When a case proceeds to a fully hearing, typically, the case will be presented over several days, with witnesses being called/subpoenaed and evidence/documents being addressed. The hearing is similar in format and substance to a lawsuit heard before a judge in superior court; for example, motions are made and objections are heard by the judge. Most often, the school district will be represented by a defense attorney.

Additionally, there are numerous pre-trial logistical matters to take care of. These include preparing and exchanging exhibits, preparing a pre-hearing conference statement, subpoenaing witnesses, and drafting an opening statement.

The most important task is for the parent/attorney to complete is a hearing strategy that will focus on what does the child require (e.g., placement, services, eligibility); the law that supports the request (e.g., IDEA, California Education Code, Case Law) and the evidence that substantiates the request (e.g., expert opinions, assessments, IEPs, school records, witness observations).

An ALJ will generally not make a decision upon the close of the hearing. A written decision will be made by the ALJ shortly thereafter.

Approximately, fifty percent of the time the school districts prevail at the hearing on all issues; of the remaining 50 percent a significant number results in split decisions with the parents prevailing on only one or some of the issues. For example, in the 4th quarter of the 2009 fiscal year, parents prevailed on all issues only 16 percent of the time. In 38 percent of the time, there was a spilt decision. Of the split decisions, the parents prevailed on 25 percent of the issues and school districts prevailed on 75% of the issues. Accordingly, as most cases are resolved in mediation the best strategy is to begin preparing for mediation as soon as the due process complaint is filed with the Office of Administrative Hearings.

Please note, that this Newsbrief is a general explanation of the law and may not be appropriate for a unique set of circumstances. Attorney consultation should be considered. For further information, feel free to call our office.  The Law office of Jeffrey A. Gottlieb exclusively represents the legal needs of special education students. 

4. Subject: Placement of an “emotionally disturbed” special educational student in a residential treatment center

In a few extreme circumstances, a parent will need to address the situation where a special education day program is not appropriate for their child and a 24 hour residential treatment center (RTC) should be considered.  Most often, this occurs when a special education eligible child has severe emotional challenges (for example, engaging in attempted suicidal conduct or is a significant physical danger to him or herself) and the conduct of concern occurs in both the home and school environment.

The RTC becomes appropriate because there is simply no other alternative; the RTC not only provides the best protection to the child but also provides a comprehensive scope of services that far exceeds that which can be provided by either a private (non-public school) or a public school.

Sometimes a school district will suggest an RTC; however, most often it is the parents who have come to the difficult decision of placing their child in an RTC. When an eligible special education child is placed in an RTC, the school district is responsible for the entire cost (which sometimes can be as much as $150,000 per year).

Federal and California special education law specifically addresses the placement of an “emotionally disturbed” child in an RTC. This Newsbrief will provide the basics of these pertinent laws; first outlining the designation of emotional disturbed (ED), then the issue of least restrictive environment and finally, the typical process of placing an ED child in an RTC.

Emotionally Disturbed Eligibility Designation

Under both California law and the IDEA, a child is eligible for special education if the child needs special education and related services by reason of ED. (20 U.S.C § 1401(3)(A)(i); Cal. Code Regs., tit. 5, § 3030.) Emotional disturbance is a severe condition; for example, social maladjustment alone is not sufficient to render a student eligible for special education as ED. (Ed. Code, § 56026, subd. (e).) 

A child meets eligibility criteria for ED if the child exhibits one or more of the following characteristics over a long period of time and to a marked degree, which adversely affects educational performance:

(1) An inability to learn which cannot be explained by intellectual, sensory, or health factors;

(2) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers;

(3) Inappropriate types of behaviors or feelings under normal circumstances exhibited in several situations;

(4) A general pervasive mood of unhappiness or depression;

(5) A tendency to develop physical symptoms or fears associated with personal or school problems. (Cal. Code Regs., tit. 5, § 3030, subd. (i).)

Least Restrictive Environment Consideration

Once a child is deemed eligible for special education placement and services under the criteria of ED, the question become what is the most appropriate placement. Accordingly, the least restrictive environment (LRE) criterion comes into consideration. The following is a general explanation of the legal critiera for the least restrictive environment.

School districts are required to provide each special education student with a program in the least restrictive environment, with removal from the regular education environment occurring only when the nature or severity of the student’s disabilities is such that education in regular classes with the use of supplementary aids and services could not be achieved satisfactorily. (20 U.S.C. § 1412, subd. (a)(5)(A); Ed. Code, § 56031.) Mainstreaming is not required in every case. (Heather S. v. State of Wisconsin (7th Cir. 1997) 125 F.3d 1045, 1056.) However, to the maximum extent appropriate, special education students should have opportunities to interact with general education peers. (Ed. Code, § 56031.) In order to measure whether a placement is in the LRE, four factors must be considered: (1) the academic benefits available to the disabled student in a general education classroom, supplemented with appropriate aids and services, as compared with the academic benefits of a special education classroom; (2) the non-academic benefits of interaction with children who are not disabled; (3) the effect of the disabled student's presence on the teacher and other children in the classroom; and (4) the cost of mainstreaming the disabled student in a general education classroom. (Sacramento Unified School District v. Holland (9th Cir. 1994)14 F.3d 1398, 1403.)

Most often, parents want their special education child placed in the least restrictive environment (e.g., the mainstream general education classroom). However, an RTC is the most restrictive environment. Accordingly, an RTC bound special education student simply does not meet the criteria of the lesser restrictive environment criteria, as detailed in the above paragraph.

5. Subject: Parent’s “Limited” Right to Observe Special Education Student in a Classroom setting

Considering all of the educational rights that the federal and State government have conferred upon the parents of special education children to participate in the development of an educational program, it is highly problematic that parents often have limited rights to observe their special education child in the classroom.

As a start, California grants parents the right to visit their child’s classroom; a good beginning [California Education Code sections 51100, 51101 et. seq.]. However, California law does not provide any specific parameters for the frequency and duration of such visits. Furthermore, California law does not provide any unique exception for parents of special education students.  In fact, the Office of Special Education Programs within the United States Department of Education has asserted that “neither the [IDEA] statute nor the regulations implementing the IDEA provide a general entitlement for parents of children with disabilities… to observe their children in any current classroom.” [Letter from Stephanie Lee, Director of the OSEP, May 26, 2004]

 This lack of statutory guidance leaves the school districts in near complete control.  Some school district policies state that a reasonable amount of time will be made available to parents to visit the classroom. Of course that leaves the school district to unilaterally determine what is reasonable. Some school districts simply limit a parent to a specific number of minutes for a classroom observation (e.g., 20 minutes).

Fortunately, federal law supersedes State law as well as school district policy. Federal law, under the IDEA, provides that a parent of a child with disabilities have an opportunity to participate in meetings with respect to the identification, evaluations and educational placements of a disabled child.  Additionally, the IDEA states that parents have their concerns and the information they provide considered in developing a child’s IEP.

Accordingly, it can be inferred that parents of a disabled child must be provided the opportunity to review all information pertinent to their child’s unique educational program. And that opportunity should include the right to appropriately observe the child in a classroom setting. Since, a disabled child’s education is much more complex than a typical child, a parent of a special education child should be provided with a greater opportunity to observe their child in all settings (i.e., within the classroom, the school yard, during recess, during lunch and while receiving services).  Otherwise, it can be argued that without the right to observe a disabled child’s education program with an allotted amount of time commensurate to the complexity of the educational program, a parent is being denied the opportunity to participate in the IEP meeting.  This is an argument that at some time must be presented before a judge, such that all school districts develop observation policies and practices based on the specific requirements of the disabled child.

Until there is a clear statutory right to an appropriate frequency and duration of school visits, parents must be assertive in exercising their rights to observe their children in the school setting. First, parents should obtain a copy of their school district’s parent observation rights.  Second, parents should work directly with their child’s school teacher to obtain observations appropriate to their child’s unique educational program. Third, if the school policy is not appropriate parents should have an observation practice written within the IEP. Lastly, if the school district refuses to allow an appropriate frequency and duration of observations, the parents should consider filing a due process complaint against the school district.

6. Subject: "Stay Put" The Power of No!

Put simply, "stay put" is one of the most powerful tools a parent has to control proposed changes to the placement and services offered by a school district at an IEP meeting. It is the power of a parent to say NO!

First, context. An IEP meeting is supposed to be a team meeting. The reality is that anything offered in writing at an IEP meeting is ultimately controlled by the school district. Parents DO HAVE significant influence by addressing what is in the best interests of their child; however, an IEP meeting is not a democratic event. However, parents have two critical tools at their disposal when the school district offers an inappropriate placement or scope of services; that is, stay put and due process. Due process often requires the services of an advocate or an attorney; it is where the parent litigates against the school district. In contrast, stay put is simply the power of expressing NO to either an entire IEP or specific components of an IEP; thereby taking away the power of the school district to implement its proposed changes to the child's placement or scope of services; except by court order. That is, the unilateral power of a parent to stop inappropriate changes to an IEP.

When a parent takes the steps of imposing stay put the parent leverages that power to negotiate a better offer on behalf of their son or daughter. Stay put stops the school district from implementing specific changes. Thus, from a school district's perspective the IEP is unresolved. School district administrators prefer certainty to uncertainty; thus, if the school district wants resolution it must either negotiate with the parent or litigate the matter.

From a legal perspective, under federal and state law, a special education student is entitled to remain in his current educational program pending the completion of a due process hearing; this entitlement is referred to as "stay put." [20 U.S.C. § 1415(j); 34 C.F.R. § 300.51; Ed. Code §§ 48915.5, 56505]. For purposes of stay put, the current educational program is defined as the last agreed upon IEP implemented prior to the dispute arising [Thomas v. Cincinnati Bd. Of Educ. (6th Cir. 1999) 918 F.2d. 618, 625].

Stay put is not discretionary for a school district; it is a requirement. Most importantly, the purpose of stay put is to prevent a school district from unilaterally changing a student's educational program without the parent's consent [Honig v. Doe (1988) 484 U.S. 305,323]. Thus, even if a parent has not filed for a due process hearing, a school district generally cannot unilaterally change a special education child's placement or scope of services except by the parent's consent or a court order. There are always some legal exceptions to every general rule of law; for example, if a parent explicitly consented in a previous IEP that a specific service was to be terminated on a specific date and no longer to be provided, that situation under some circumstances can be an exception to "stay put." However, more likely than not in most circumstances, stay put is operative when a parent simply expresses NO to an adverse offer by a school district.

Please note, that stay put should be expressly stated in writing by a parent, ideally within the IEP document; professional legal assistance is recommended when implementing stay put.

As former first lady Nancy Reagan often expressed, simply say NO!