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  A district cannot just continue relying on the old outdated IEP while the child "advances" from grade to grade.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This is a wonderful opinion for parents which should ensure that students don't get stuck with outdated IEP documents with pointless goals from many years before.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
Website: http://www.edlaw4students.com/

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

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Can IEP Teams Say "No" To Special Education Services Based on Money Woes? No, No and No!

By Michelle Ball, California Education Attorney for Students since 1995

Oftentimes parents attend an Individualized Education Program (IEP) meeting, and although their child needs additional services to meet his or her goals, can be denied needed services based on reasons such as: "no funding," or "we just don't have the resources," or "that is not available here as there are no staff."  Are these legitimate reasons to deny a student services that will meet their unique needs?  No!

The whole special education system can be very overwhelming for parents and they often "trust" the IEP team to guide them on what their child should or should not receive as far as services, placement, and education.  Parents may also simply accept an IEP team denial of services based on money woes of the school district.  However, regardless of the funding problems school districts seem to be having right now, they cannot deny special education services based on those issues.  If a student requires a service (e.g. resource class, speech therapy, or a one-on-one aide) to receive an appropriate education to meet their unique needs, the district should provide the service.

If a district wants to deny services, they have to do so legitimately.  In other words, do a thorough assessment to evaluate, and prove the service is not needed.  If they do this, they may be able to "legitimately" defend themselves on a decision to reduce or deny services.  However, the bottom line is that many districts still will flat out say that "we can't afford speech and language therapy," and tell the parent to take a hike.  Sorry to say, but that is not legitimate.

If the district does not have staff to provide a service such as speech and language therapy, and the special needs student requires that service, the district has to provide the service another way.  For example, the district can pay a private therapist to deliver the speech and language therapy off site and can also pay for transportation to and from the therapy.  The district can't just say the child won't receive the service as they don't have the staff.  If the child needs the service to meet their unique needs, it needs to be provided one way or another.

This is one reason why recording IEP meetings is so crucial.  Often parents can document denials based on lack of money simply by recording the meeting.  When a school/district representative says "we don't offer speech and language due to the budget crisis," or words to that effect, the parents have a valid argument which they can later raise in a due process hearing to overcome the denial.

If a school or district is denying services based on money, parents need to stand up and say that is an unacceptable reason for the denial and demand the service be provided.

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
Email: help@edlaw4students.com

Website: http://www.edlaw4students.com/

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

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Facebook: https://www.facebook.com/pages/Law-Office-of-Michelle-Ball/191273330901857

[please like my office on Facebook, subscribe via twitter and email, and check out my videos on Youtube!]

Please see my disclaimer on the bottom of my blog page. 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: Berns v. Hamilton Southeastern Schools

By Michelle Ball, California Education Attorney for Students since 1995


The Seventh Circuit Court of Appeals recently upheld the denial of a parents request for reimbursement ($$$) for the cost of a private placement at Lindamood Bell.  This case illustrates how tricky it can be to obtain reimbursement from a school district for the unilateral placement (e.g. by parents alone) of a child in a private school.


In the case of Berns v. Hamilton Southeastern Schools, decided December 22, 2011, Judge Gottschall opined that the student in question had been provided a Free and Appropriate Public Education (FAPE), as the student made adequate progress toward his goals during his public school placement.  According to the case, the student in question suffered from a Traumatic Brain Injury (TBI) at age 4.  After that time, the school assessed him and placed him in a pre-kindergarten classroom for four weeks.  While in the placement the student met several of his goals and was allegedly making progress toward the others.  He was then recommended to move into kindergarten.


According to Judge Gottschall's opinion, the parents' private assessor had previously recommended that the "optimal" placement (see my blog on using words implying need for the "best" placement here) would be year round with an "all day" kindergarten.  The parents thereafter requested placement in both sessions of kindergarten (morning and afternoon), and were refused based on his progress toward his goals.  The family thereafter became at odds with the district and enrolled their son in Lindamood Bell.  


Although there were several procedural errors by the school alleged, the only question was whether the hearing officer's decision that the student received FAPE was proper.  The Seventh Circuit found that it was and denied the family's request for reimbursement for Lindamood Bell, for attorney fees, and otherwise.


Although this case was not in the California circuit (our court is the Ninth Circuit), it is illustrative of the importance of evidence and support when placing a child in a private school if the parents intend to later seek reimbursement from a school district.  If things are not supported well, or the school can show they DID offer FAPE, parents can be blocked and fail in their reimbursement claim.


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

Youtube: http://www.youtube.com/user/EdLaw4Students

Facebook: https://www.facebook.com/pages/Law-Office-of-Michelle-Ball/191273330901857

Please see my disclaimer on the bottom of my blog page. 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.

Special Education Agencies With Acronyms Parents Should Remember - OAH, CDE, OCR, OSEP, Area Boards

There are so many special education resources for parents, I thought I would briefly explain just a few and provide links for parent use.

1)  OAH- Office of Administrative Hearings:  This is a very critical agency in California for parents.  OAH is where parents file due process hearing requests to attempt to resolve special education placement, service, FAPE (Free Appropriate Public Education), and other special education issues.  Information on how to proceed, and even a searchable opinion database can be accessed at their site.

2)  CDE - Procedural Safeguards Referral Service:  This is the branch of the CDE (California Department of Education) which takes complaints for failure to implement an IEP, procedural failures of districts and other district issues.

3)   OSEP- the Office of Special Education Programs:  OSEP is a branch of the United States Department of Education (USDOE).  OSEP is more of an advisory group to school districts and states.  However, they have many resources and do issue letters, summaries, and opinions from time to time.  These can be printed out and used as references for parents, or simply can be used to educate a parent on issues.

4)  OCR-  Office for Civil Rights:  This branch of the USDOE accepts complaints on disability (and other forms of) discrimination by schools and districts. OCR also has a huge library of information and issues OCR opinion letters interpreting the law which can be instructive.

5)  Area Boards:  Area Boards serve the developmentally disabled (DD) community as well as students with autism, epilepsy, cerebral palsy and other disabilities with manifestations similar to DD.  Area Boards provide services, education, and advocacy to qualified individuals and can fill in gaps missed by school districts.

These are just some of the myriad of acronym-wielding agencies which can be useful to parents in their special education fight for a free and appropriate education, aka FAPE.

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

Youtube: http://www.youtube.com/user/EdLaw4Students

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 - 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.