School Districts Must Revise IEP Annually Or They May Not Be Providing A Free And Appropriate Education

By Michelle Ball, California Education Attorney for Students since 1995

In the Ninth Circuit Court of Appeals decision Anchorage School District v. M.P. (July 19, 2012, No. 10-36065), the Court ruled that the lack of an updated annual IEP (Individualized Education Program) plan resulted in M.P. (student) not receiving a Free and Appropriate Education (FAPE).  The Court also ruled that the parents were to receive reimbursement for private tutoring and attorneys fees.

In Anchorage, Judge Paez stated that a school district has only two options if the annual IEP remains unsigned (e.g. a parent wants more changes, rejects it, etc.). The District must then either:

1)  Continue working with the parents to develop an IEP which is accepted by all, OR
2)  Revise the IEP on their own and file a due process hearing to seek administrative approval of the proposed IEP.

This is significant.  There are many times that parents have a signed IEP, e.g. from 2 years ago, but no signed IEP since that time due to disputes.  However, as explained in Anchorage, this would evidence a lack of FAPE.  A district cannot just continue relying on the old outdated IEP while the child "advances" from grade to grade.  Rather, as the Court explained, they have "an affirmative duty to review and to revise, at least annually, an eligible child''s IEP."  If they do not, the district can be attacked for a lack of FAPE and may have to pay for services (compensatory education) provided by the parents during the time there was no FAPE.

The Court also was not deterred by the argument that the parents were too litigious and somehow stopped the annual IEP from being finalized.  Instead, Judge Paez opined that regardless of the parents exercise of their right to object, the district must update the annual IEP to ensure a student receives appropriate services.

This is a wonderful opinion for parents which should ensure that students don't get stuck with outdated IEP documents with pointless goals from many years before.  If there is an impasse, the school district must work with the parents to finalize the IEP or go to hearing. 

This is not a long decision and is a good read.  I encourage all parents of special education students to review it!

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
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IDEA Court Case - C.B. v. Garden Grove - Upholding Parents Right to Reimbursement for Private School Placement

Recently, the Ninth Circuit Court affirmed the United States District Court for the Central District of California's decision in CB v. Garden Grove Unified School District (2009).  This case (hereinafter "Garden Grove") addresses the issue of parent reimbursement for placement of a special education student at a non-public agency.  The affirmation solidified further the rights of parents to be repaid when a public school district  does not offer a Free and Appropriate Public Education (FAPE).

It is yet to be seen whether this decision will be appealed to the United States Supreme Court, but for now, Garden Grove stands for/reconfirms the following propositions:

1)  If a District fails to provide FAPE, full reimbursement may be sought by the parents.
2) Such reimbursement may be sought even if the parents place a student with a non-public agency, rather than a non-public school.
3)  The test for reimbursement of a private placement hinges on whether the placement was "reasonably calculated to provide ...educational benefit" not the location of the placement. (655 F.Supp.2d at 1099)
4)  To prove a denial of FAPE,  procedural errors are not enough unless they impeded the student's right to FAPE, caused a deprivation of educational benefits, or significantly impeded the parents' opportunity to participate in the IEP process (Garden Grove decision quoting 20 United States Code section 1415(f)(3)(E), 655 F.Supp.2d 1093).
5)  No IEP violation may be shown unless there is a material failure to implement the IEP, (Garden Grove quoting VanDuyn v. Baker, 9th circuit 2007, Id.).
6)  Lack of FAPE in this case was shown by the following:
-  Failure to provide speech and language services (SLS) as required by an IEP.
-  Failure to develop goals to address auditory processing needs and anxiety.
-  Failure to include Occupational Therapy (OT) services in the placement offered.
-  Failure to include general education time as the student's offered placement was to be in a more restrictive setting (special day class- SDC).
-  Failure to explain why a SDC was more appropriate than the previous placement.

The Ninth Circuit's upholding of the Garden Grove decision is one more positive mark for parents and students.  It supports parents rights to place a special needs student in private school and seek reimbursement if FAPE is not offered by the public school district.

Seeking reimbursement can be a risky proposition, and had the family not won, they would have been out the entire tuition cost (over $40,000), so be sure you dot your i's and cross your t's, as they say, prior to moving to that realm.  However, if they mess up and you proceed wisely, you may be able to get paid back for a private school placement you make.

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Please see my disclaimer on the bottom of my blog page [http://edlaw4students.blogspot.com/]. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.!  This blog may not be reproduced without permission from the author and proper attribution of authorship.

IDEA Court Case- Lake Washington v. Office of Superintendent

Today, the Ninth Circuit Court of Appeals ("Court"), the court which has jurisdiction over federal matters in California, Oregon, Washington, and several other states issued a decision in Lake Washington School District v. Office of Superintendent (http://www.ca9.uscourts.gov/datastore/opinions/2011/02/22/09-35472.pdf).

 This decision defeated the Lake Washington School District's hope of pursuing a matter under the Individuals with Disabilities Education Act (IDEA) http://www.law.cornell.edu/uscode/uscode20/usc_sec_20_00001400----000-.html, as the Court determined that the District was not granted "standing" (ability to sue) under IDEA.  The Court thus shut down Lake Washington's action which attempted to limit postponements of special education hearings (aka due process hearings).

The decision also includes important discussion regarding just WHO has a right of action under IDEA and the scope of such actions.  The bottom line according to Judge Sidney Thomas is that the IDEA was written for students and parents and they are the ones who are granted rights under IDEA.  The Court also stated that IF a student or parent files a request for a due process hearing, a district must limit its response to the issues raised and cannot bring up new issues.

The decision responded to the Lake Washington School District's attempt to force the state to limit its postponement rights in due process hearings.  The matter was filed after a parent's attorney was granted a postponement by a hearing officer based on schedule conflicts.

My favorite part of the case is as follows (in the second to last paragraph of the case) where Judge Thomas states:

"In sum, we join our sister circuits in holding that a

school district or other local educational agency has no

express or implied private right of civil action under the IDEA

to litigate any question aside from the issues raised in the

complaint filed by the parents on behalf of their child. In this

case, the school district lacks statutory standing to challenge

the State of Washington’s compliance with the IDEA’s procedural protections. 

The district court correctly dismissed its complaint with prejudice. "

Another victory for students.

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Please see my disclaimer on the bottom of my blog page [http://edlaw4students.blogspot.com/]. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.!  This blog may not be reproduced without permission from the author and proper attribution of authorship.