California Passes New Law To Increase Protection And Safety Of Special Education Students In Nonpublic Schools

January 2020
Number 3

Governor Gavin Newsom signed Assembly Bill (AB) 1172 this fall, which imposes additional requirements upon nonpublic schools (NPSs), as well as the local educational agencies (LEAs) that place students in NPSs, in order to increase the safety and protection of students in NPS placements. This legislation was passed following the high profile death of a 13-year-old special education student, who passed away after being placed in a prone restraint at an NPS.

AB 1172 places new monitoring requirements on LEAs that enter into contracts with NPSs, and places on NPSs, new documentation requirements related to administrator and staff training, as well as new notification requirements for any student-involved incident involving law enforcement. Most of the new requirements imposed by AB 1172 become effective beginning with the 2020-21 school year.

More specifically, AB 1172 amends Education Code section 51225.2 to include the following:

New requirements placed on LEAs

Beginning with the 2020-21 school year:

  • LEAs that enter into master contracts with NPSs must conduct an onsite visit at the NPS before placing a student there if the LEA does not have any students enrolled at the school at the time of placement.
  • LEAs must conduct at least one onsite monitoring visit each school year at each NPS in which the LEA has a student attending and with which it maintains a master contract. The monitoring visit should include, but is not limited to: a review of services provided to the student through the individual service agreement between the LEA and the NPS; a review of the progress the student is making towards his/her goals as set forth in their individualized education program and behavioral intervention plan, if applicable; an observation of the student during instruction; and a walkthrough of the facility. Additionally, LEAs will need to report the findings resulting from their monitoring visits to the California Department of Education (CDE) within 60 calendar days of each onsite monitoring visit.

New requirements placed on NPS Sites

Beginning with the 2020-21 school year:

  • Each NPS will need to provide documentation that it will train staff who will have contact or interaction with students during the school day in the use of evidence-based practices and interventions specific to the unique behavioral needs of the NPS’s student population. The training will need to be provided within 30 days of employment to new staff, and annually to existing staff.
  • For an NPS to be certified by the CDE, it will need to provide documentation that its administrator holds or is in the process of obtaining one of the special credentials or licenses specified in the law.
  • NPSs serving students with significant behavioral needs or students on behavioral intervention plans, must certify in writing that they have an individual onsite during school hours who is qualified, and responsible for the design, planning, and implementation of behavioral interventions.
  • NPSs must notify the CDE and the LEA of any student-involved incident in which law enforcement was contacted, in writing, no later than one business day after the incident occurred.

AB 1172 also allows the CDE to immediately suspend or revoke the certification of an NPS, if an investigation conducted by CDE results in a finding that student health or safety has been compromised, or is in danger of being compromised, at the NPS.

Takeaways

According to the Legislature, AB 1172 could result in unknown but potentially significant costs to LEAs in conducting the onsite visits of NPSs and the reporting of findings resulting from those visits to the CDE within the specified timeline. School districts should consider identifying or creating a position to conduct the NPS onsite visits, report to the CDE on those visits, and ensure NPS certification when entering into a master contract with an NPS. Training responsible staff on AB 1172 and the requirements identified in Education Code section 51225.2 is also recommended. School districts are also encouraged to consult with counsel regarding these new requirements, if needed.

For additional information regarding AB 1172, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Marcy Gutierrez

Partner

Brenda E. Arzate

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

School District Cannot Avoid Responsibility For Residential Placement Despite Availability Of Financial Assistance From A Non-Educational Agency

December 2019
Number 78

In a significant special education case published earlier this year, the California Court of Appeal ruled that a school district was responsible for funding the costs of residential placement for an adopted former foster child, despite funding assistance provided for the placement by the Department of Children and Family Services (DCFS).

Background

B.H., a former foster child with significant disabilities, lived with his adoptive parents within the boundaries of the Manhattan Beach Unified School District (MBUSD). B.H.’s parents arranged for his placement at a residential treatment facility and its affiliated nonpublic school in Sonoma County. MBUSD offered this placement to B.H. in an individualized education program (IEP) upon B.H. qualifying for special education. As adoptive parents of a child formerly under DCFS’s supervision, B.H.’s parents applied for and received financial assistance for his residential placement through the Adoptive Assistance Program (AAP), administered through DCFS. Given this financial assistance from DCFS, MBUSD refused to fund the IEP placement. MBUSD’s reasoning was two-fold: DCFS had placed the student-not the school district-and so MBUSD was not responsible for the costs of B.H.’s education; and, as DCFS was funding the placement, MBUSD had no need to do so.

The parents initiated a due process hearing, with the sole issue being whether MBUSD was responsible for implementing B.H.’s IEP and paying the parents’ travel expenses related to B.H.’s placement at the residential treatment center. The administrative law judge (ALJ) ruled in favor of MBUSD, finding that MBUSD was not responsible for the costs of B.H.’s education. In reaching this conclusion, the ALJ relied on Education Code sections 56155 and 56156.4, which provide that if a child with disabilities is placed in a licensed children’s institution (LCI) . . . by a public agency, other than an educational agency, then the special education local plan area (SELPA) shall be responsible for providing special education to the child residing in the LCI, and not the district of parents’ residence. (Ed. Code, § 56156.4, subd. (a); emphasis added.) The ALJ concluded that DCFS was a “public agency other than an educational agency” for purposes of Sections 56155 and that DCFS had placed B.H. in the residential treatment center.

On appeal, the trial court agreed with the ALJ’s finding that MBUSD was not responsible for the costs of B.H.’s residential placement.

Analysis

The Court of Appeal reversed the trial court’s decision, holding that because DCFS is not a “public agency, other than an educational agency” under Education Code section 56155 and that because DCFS did not in fact “place” B.H. in the residential facility but rather only offered AAP funding assistance, Education Code section 56156.4, subdivision (a), did not provide MBUSD with an exception to the rule that the school district of the parents’ residence is responsible for the costs of education for a student with disabilities.

In reaching these conclusions, the court first pointed out that B.H.’s educational placement was to be determined under the Individuals with Disabilities Education Act (IDEA), which required MBUSD to provide a free appropriate public education (FAPE), including placement, to B.H. Further, regardless of any other agency involvement, the statutory schemes of the IDEA and related provisions of the California Education Code do not provide an exception to a school district’s obligation to provide residential placement services solely on the basis that such services or placement may be available through another agency.

Next, the court explained that for purposes of Education Code sections 56155 and 56156.4, subdivision (a), a “public agency” is defined, in part, as “…any other public agency under the auspices of the state or any political subdivisions of the state providing special education or related services to individuals.” (Ed. Code, § 56028.5.) Because DCFS did not provide “special education or related services” to B.H. it was not a “public agency, other than an educational agency,” and thus the exception under Education Code section 56156.4, subdivision (a) did not apply.

The court found that the purpose of AAP funding is to ease financial burdens on adoptive families in addressing a child’s serious mental health or emotional problems that pre-existed the child’s adoption. The court emphasized that the law does not authorize DCFS to facilitate a residential placement for the purposes of providing special education, noting that such authority arises only when a student is a dependent of the juvenile court, and the court orders or permits DCFS to make educational decisions on behalf of the child.

Takeaways

Under B.H. v. Manhattan Beach Unified School District, a residential placement financially facilitated by DCFS for a child no longer under DCFS’s jurisdiction did not constitute “placement” by a non-educational public agency for purposes of determining the agency responsibility for funding the student’s FAPE. As school districts take stock of the recent legislative season and evaluate their practices midway through the school year, they should bear the B.H. case in mind. Education Code provisions concerning residential placements and licensed children’s institutions are nuanced, and legal counsel should be consulted when these issues arise.

For more information on this decision or to discuss any questions related to special education, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app. Over the next few weeks our housing experts will also be developing materials in response to the 2019 housing laws including sample checklists and preliminary applications to assist local governments in complying with SB 330. Keep an eye out for these resources.

Written by:

Claudia P. Weaver

Partner

Roxana E. Khan

Senior Counsel

Kristy J. Boyes

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Ninth Circuit Addresses Impact Of Dismissals And Settlement Of Due Process Complaints On The IDEA’s Administrative Remedy Exhaustion Requirement

October 2019
Number 43

The recent opinion of the Ninth Circuit Court of Appeals in Paul G. v. Monterey Peninsula Unified School District clarifies that dismissal or settlement of a special education due process hearing inadvance of a hearing and final administrative decision from the Office of Administrative Hearings (OAH), does not satisfy the requirement that a plaintiff exhaust administrative remedies under the Individuals with Disabilities Act (IDEA) before initiating a lawsuit in federal court asserting claims which could be redressed by the IDEA. In Paul G., the Ninth Circuit held that an adult student with autism could not sue his school district or state educational agency under the Americans with Disabilities Act (ADA) or Section 504 of the Rehabilitation Act of 1973 (Section 504), for failing to make an in-state residential placement available to him without having first exhausted IDEA administrative remedies, that none of the exceptions to exhaustion of administrative remedies applied, and that settlement of his special education due process case did not satisfy the exhaustion requirement.

Background

Student Paul G. was an adult special education student with autism who began having episodes of violent and threatening behavior. After unsuccessful efforts to find an appropriate educational placement for Paul, the school district offered to place him in a residential facility. However, no residential facility in California would accept the student because he was 18 years old. Paul enrolled in an out-of-state residential facility, but later became homesick, and returned home.

The student subsequently filed for due process with OAH against both the school district and the California Department of Education (CDE), alleging that the lack of an in-state residential facility for adults denied him a free appropriate public education (FAPE) under the IDEA. As a remedy, the student sought a residential placement in California and an order directing the CDE to develop in-state residential facilities for adult students. OAH dismissed the claims against the CDE, ruling that OAH did not have jurisdiction to order the creation of facilities, and that the school district, not the CDE, was responsible for education decisions affecting the student. Thereafter, the student entered into a settlement agreement with the school district, causing OAH to dismiss the case, without the due process complaint proceeding to hearing or OAH ruling on the merits of the student’s IDEA claim.

The student then initiated a lawsuit in federal court, alleging the CDE violated the ADA and Section 504, and seeking monetary damages for those alleged wrongs. The central theme of his complaint was that to receive a FAPE, he required an in-state residential placement, and the CDE had failed to provide him a residential placement in California. The United States District Court dismissed the student’s case, due to his failure to exhaust the IDEA’s administrative remedies, and the student appealed to the Ninth Circuit.

The Court’s Opinion

The Ninth Circuit considered whether the student was required to exhaust the IDEA’s administrative remedies under the circumstances, and if so, whether an exception to the exhaustion requirement applied. When a plaintiff seeks relief under the IDEA or under any other statute where the relief sought would also be available under the IDEA, the plaintiff must exhaust the IDEA’s administrative procedures before filing a civil action. Exhaustion is not required when use of the administrative process would be futile, the claim arises from policy or practice of general applicability that is contrary to law, or it is improbable that adequate relief can be obtained by pursuing administrative remedies.

The student argued that because his federal claims were brought under the ADA and Section 504, and not the IDEA, the exhaustion of remedies requirement for IDEA claims did not apply. Applying the United States Supreme Court’s test in Fry v. Napoleon Community Schools, 137 S. Ct. 743 (2017), the Ninth Circuit addressed this argument by analyzing whether his ADA and Section 504 claims could have been brought against a public facility that was not a school, or whether an adult employee or visitor could present the same grievance against the school. The court concluded that the answer to both these tests is no, because the relief Paul sought was fundamentally educational – access to a particular kind of school as required by his individualized education program (IEP). Therefore, even though the student brought suit under the ADA and Section 504, and not the IDEA, the student was required to exhaust administrative remedies because the relief sought was available under the IDEA. The Ninth Circuit also determined that none of the exceptions to the exhaustion requirement applied, thus concluding the student could not maintain this action after he failed to seek a final administrative decision regarding his alleged need for in-state residential education under the IDEA.

Takeaways

Paul G. is the first Ninth Circuit opinion to address exhaustion since the Supreme Court’s Fry decision
in 2017. In light of this decision, local educational agencies should carefully scrutinize any ADA or Section 504 claims that appear to seek relief that is fundamentally educational and related to a student’s unique needs. Further, a plaintiff may be unable to maintain a civil suit against a local educational agency if there is a dismissal or settlement prior to a final administrative decision.

If you have any questions about this case or special education matters in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Marcy Gutierrez

Partner

Sloan R. Simmons

Partner

Amanda E. Ruiz

Senior Counsel

Amanda J. Cordova

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

AB 5: New Law Further Limits Employers’ Ability To Classify Workers As Independent Contractors

October 2019
Number 53

Governor Newsom signed Assembly Bill 5 (AB 5) on September 18, 2019, which takes effect on January 1, 2020. AB 5 codifies the California Supreme Court’s decision inDynamex Operations West, Inc. v. Superior Court of Los Angeles (Dynamex) (see 2018 Client News Brief No. 20), which made it more difficult to classify a worker as an independent contractor. This new legislation also creates additional protections for workers.

In Dynamex, the Court held that, for purposes of Industrial Welfare Commission (IWC) wage orders, a worker is presumed to be an employee unless the hiring entity is able to demonstrate that:

(A) The person is free from their control and direction in connection with the performance of the work, both under the contract for the performance of the work and in fact;

(B) The person performs work that is outside the usual course of the hiring entity’s business; and

(C) The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

AB 5 expands the applicability of this three-part test, commonly referred to as the “ABC test,” to specific sections of the California Labor Code and Unemployment Insurance Code. The bill exempts specific occupations such as licensed architects, lawyers, and private investigators from the ABC test. Instead, those professionals will be governed by the Borello test, which does not contain a rebuttable presumption that a worker is an employee. The Borello test has nine factors and focuses on the amount of “control” the hiring entity has over a worker. Hiring entities are not required to meet all nine factors to show that a worker is an independent contractor. Therefore, it is easier to classify a worker as an independent contractor under Borello. AB 5 provides that, in addition to the specific exemptions, Borello can also be applied when a court determines that the ABC test cannot be applied in a particular circumstance.

AB 5 authorizes the California Attorney General and certain local government officials to seek injunctions against hiring entities on behalf of misclassified workers. Additionally, some of the changes to the Labor Code apply retroactively to existing claims to the extent permitted by law.

Takeaways

AB 5 extends the applicability of Dynamex and the ABC test from IWC wage orders to provisions of the Labor and Unemployment Insurance Codes. The legislation has the potential to increase employer liability because it is partially retroactive to existing claims and creates a new right to seek injunctive relief.

Precisely what impact AB 5 will have on public entities is yet to be determined. First, while most IWC wage orders do not apply in full to public entities, sections of the Labor Code and the Unemployment Insurance Code do apply. Second, AB 5 does not contain an exemption for public entities. Third, adopting the ABC test could lead to greater use of the test by other agencies that have historically relied on the Borello test such as the California Public Employees’ Retirement System (CalPERS). If this occurs, the change may have a significant impact on CalPERS membership rules, including post-retirement work implications for CalPERS retirees attempting to return to work as independent contractors. Therefore, public entity employers with independent contractors should review their classification decisions to ensure workers are correctly classified under the appropriate test.

For more information about AB 5 or worker classification in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Michelle L. Cannon

Partner

Travis J. Lindsey

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

New Law Will Allow Students With IEPs To Take Assistive Technology Devices Home With Them

October 2019
Number 51

Governor Newsom recently signed Assembly Bill (AB) 605, which will require local educational agencies (LEAs) to allow students to use school-purchased assistive technology devices at the student’s home or in other settings when the student’s individualized education plan (IEP) team decides on a case-by-case basis that access to those devices is necessary in order for the student to receive a free appropriate public education (FAPE). This new law takes effect on January 1, 2020.

Current law states that LEAs (including school districts and charter schools) are responsible for providing specialized equipment, including assistive technology devices, for use at school when it is needed to implement a student’s IEP. An “assistive technology device” is defined as any item, piece of equipment or product system that is used to increase, maintain or improve the functional capabilities of a student with exceptional needs. Assistive technology devices come in many forms, and may be low-tech or high-tech, and include items such as wheelchairs, voice-activated computers, large-print books, pencil grips, and many other types of equipment.

Frequently they are used by students with limited or no verbal communication skills. According to the author of AB 605, when such students are required to leave an assistive technology device at school, “they are essentially losing their voice when they go home.”

AB 605, which adds new section 56040.3 to the Education Code, will also require LEAs to continue to provide students with exceptional needs who require the use of assistive technology devices to have continued access to the devices, or comparable devices, for up to two months after the student leaves to enroll in another LEA, or until alternative arrangements can be made.

Going forward, it is important that IEP teams consider whether students with exceptional needs may obtain educational benefit from the use of their school-owned assistive technology devices when away from school, and that staff are aware that these devices may need to be made available for students to use at home and other locations away from school, as determined by the students’ IEPs.

If you have any questions about AB 605, or education of students with exceptional needs in general, please contact the author of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Marcy Gutierrez

Partner

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Department Of Labor Opinion Says Family Medical Leave Allowed For Parental Attendance At IEP Meetings At School

October 2019
Number 50

On August 8, 2019, the U.S. Department of Labor issued an opinion letter (Opinion Letter) stating that the Family Medical Leave Act (FMLA) covers intermittent leave to attend a child’s Individual Education Program (IEP) meeting, so long as the child suffers from a qualifying “serious health condition” under the FMLA. Special education IEP meetings are convened to develop, review, and revise the written document created and implemented to meet the educational needs of a child with a disability.

Under the FMLA, an eligible employee of a covered employer is allowed to take up to twelve weeks of job-protected, unpaid leave each year to “care for a family member with a serious health condition.” “Serious health condition” means an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment and care for a family member. Leave may be intermittent, and can be used to cover both psychical and psychological care, as well as making arrangements for changes in that case. The Opinion Letter informs employers that parental attendance at a qualifying child’s IEP meeting may constitute “care of a family member with a serious health condition” under the FMLA.

The Opinion Letter notes that attendance at an IEP meeting is “essential to [the parent’s] ability to provide appropriate physical or psychological care” for a child. According to the Department of Labor, parents help participants make medical decisions, discuss their child’s well-being and progress with the providers of services, and “ensure the school environment is suitable to their medical, social, and academic needs.” Such contributions constitute “arrangements for changes in care” within the scope of intermittent leave under the FMLA. Notably, a change in care for a family member does not have to involve a facility that provides medical treatment. (Wegelin v. Reading Hosp. & Med. Ctr., 909 F. Supp. 2d 421, 429-30 (E.D. Pa. 2012).)

While a child’s physician does not need to be present at an IEP meeting in order for a parent’s leave to qualify as intermittent FMLA leave, employers can continue to require employees to timely provide a copy of a certification issued by their child’s health care provider that meets the criteria to support the request for leave. It is possible that not every student with an IEP will have a serious medical condition under the FMLA. Therefore, it is important to verify that the FMLA eligibility requirements are met when a request for such leave is made.

Public agency employers should take steps to ensure that supervisors and human resource professionals are informed of this permissible use of intermittent FMLA leave and associated verification parameters. Public agencies should review employee handbooks, policies, and collective bargaining agreements regarding qualifying leave under the FMLA to determine whether any updates are necessary.

If you would like to discuss the Opinion Letter, how to handle requests for FMLA leave, whether your policies need updating, or if you have any other questions as to what constitutes “care for a family member with a serious health condition” under the FMLA, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Gabriela D. Flowers

Partner

Michelle N. Silwa

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Ninth Circuit Upholds District’s Unilateral Change Of Location Of IEP Services, Emphasizes Importance Of Academic Needs In LRE Analysis

September 2019
Number 41

On April 24, 2019, the United States Court of Appeals for the Ninth Circuit (Ninth Circuit) issued a decision inR.M. v. Gilbert Unified School District, No. 17-16722 (9th Cir. Apr. 24, 2019), in which the parents of a special education student (Plaintiffs) challenged the Gilbert Unified School District’s (District) decisions to: (1) increase the student’s special education instruction by 20 minutes per day; and (2) unilaterally move the location of the student’s services from his neighborhood school to a different, but substantially similar, program at a school that was not his neighborhood school.

In the underlying matter, the District and Plaintiffs were in disagreement on at least two key aspects of the student’s IEP, which were addressed in a January 22, 2018 prior written notice (PWN) issued by the District. The PWN
included two proposals: (1) to increase the student’s special education instruction by 20 minutes per day; and (2) to change the location of the student’s special education services from Ashland Ranch to the Academic SCILLS Program[1] at Pioneer Elementary (Academic SCILLS). Plaintiffs argued that the District’s proposed actions would not provide the student with a free appropriate public education (FAPE) in the least restrictive environment (LRE).

As to the increased special education support, which resulted in a reduction in the amount of time the student would spend in a general education classroom, the Ninth Circuit affirmed the lower court’s (District Court) analysis, relying on the factors expressed inSacramento City Unified School District v. Rachel H., 14 F.3d 1398 (9th Cir. 1994), and held that the District appropriately increased the student’s special education time. Based in part on its previous decision in Baquerizo v. Garden Grove Unified Sch. Dist., 826 F.3d 1179, 1184 (9th Cir. 2016), the Ninth Circuit reaffirmed that, even when other Rachel H. factors (i.e., the non-academic benefits of such placement, the effect the student has on the teacher and children in the regular class, and the costs of mainstreaming the student) weigh in favor of mainstreaming a student, the educational program is still based primarily on the student’s academic needs. In other words, when a student will not gain benefit in a typical classroom and his or her academic needs weigh most heavily against a mainstream environment, a smaller classroom meets the FAPE standard.

With respect to the District’s act in unilaterally moving the student from Ashland Ranch to Academic SCILLS, the Ninth Circuit rejected the Plaintiffs’ argument that this issue too should be analyzed under the LRE factors set forth in Rachel H. The Ninth Circuit held instead that the Rachel H. factors only apply when and where there is a proposal to change a student’s placement, as opposed to simply changing the location where a student will be receiving his or her IEP services. Interestingly, the District Court addressed this issue by applying a four-factor test, consistent with guidance from the Office of Special Education Program (OSEP) in “Letter to Fisher,” 21 IDELR 992 (OSEP 1994), in which OSEP urged consideration of the following in order to determine whether a change to placement or location has occurred: (1) whether the educational program set out in the student’s IEP has been revised; (2) whether the child will be able to be educated with non-disabled children to the same extent; (3) whether the child will have the same opportunities to participate in non-academic and extracurricular services; and (4) whether the new placement option is the same option on the same continuum of alternative placements. The Ninth Circuit affirmed the District Court’s determination that, when balanced, these factors indicated that student’s move to Academic SCILLS was a change oflocation only, and not a change in placement.

As to whether the Academic SCILLS class constituted FAPE in the LRE for Student, the Ninth Circuit affirmed the District Court’s findings that it did. For starters, the student’s IEP required that the District provide him with services in a small-group setting to allow for the development of social and behavioral skills with peers working on similar academic and social levels. There were no peers at Ashland Ranch at the same level as the student, whereas Academic SCILLS provided the student with greater access to peers at his same level of functioning in a small group setting. In addition, while the District Court had acknowledged the preference for students to attend the school they would attend if not disabled, it concluded that because the student was overstimulated in his general education class despite an isolated learning environment and separate instruction in the resource room, the District correctly determined that his needs could be more appropriately met (and the IEP fulfilled as written) in the small group environment provided at Academic SCILLS.

Lastly, Plaintiffs argued at the District Court level that Student was being denied FAPE because his IEP was in fact “too difficult” in light of his circumstances. The District Court rejected the argument for two important reasons. First, the adequacy of a student’s IEP must be evaluated as of the time it was developed – not in hindsight. Here, the District Court found that the student’s IEP was reasonably developed from information gathered about his needs, during a multi-disciplinary evaluation.

Second, the District Court made clear that, while the IDEA may require a school district to provide a student with a disability a “basic floor of opportunity,” this does not mean that states do not have the power to provide students with an education that they consider to be more appropriate than that proposed by a student’s parents. Based on the Supreme Court’s decision inEndrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 1000 (2017), school districts are instead required to provide students with something more than de minimis progress, in light of the child’s unique circumstances. The District Court was unpersuaded by Plaintiffs’ argument, which would have required a lowering of this standard for the student. In its short three-page decision, a panel of the Ninth Circuit affirmed the District Court’s decision as to the appropriateness of the increased special education support, and the District’s unilaterally moving the student’s special education services to a different location.

While the court’s decision inR.M. v. Gilbert Unified School District is, at first glance, a win for school districts, we caution against firm reliance on its outcome. While the Ninth Circuit found that a change in placement did not occur, it is difficult to predict whether a similar outcome would result in California. California law defines the phrase “specific educational placement” quite broadly (Cal. Code Regs. tit. 5, § 3042, subd. (a)) and may restrict a school district’s ability to unilaterally change the location of a student’s special education services, despite the holding inR.M. v. Gilbert Unified School District. While not binding, in at least one case, the State of California, Office of Administrative Hearings (OAH), relied upon Section 3042(a) of Title 5 of the California Code of Regulation, to broadly interpret “specific educational placement,” noting that this term includes “that unique combination of facilities, personnel,location or equipment necessary to provide instructional services to an individual with exceptional needs,” (emphasis added) as specified in the IEP. (Oakland Unified School District (November 30, 2018) OAH Case Nos. 2017120075 and 2018060529; Cal. Code Regs. tit. 5, § 3042, subd. (a).) Therefore, California school districts likely have a more nuanced analysis of location changes than the one utilized by the Court inR.M. v. Gilbert Unified School District. When contemplating whether or not a move from one school site or location to another constitutes a change in placement, school districts should consult with legal counsel.

For more information this case or to discuss any special education matters, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

[1]Academic SCILLS provides students with a hands-on, concrete approach to reading, math, written expression, and content areas. The academics are based off of the Arizona Common Core Standards, but alternative curriculum and methods are used to focus on the most important concepts and skills. When appropriate, children are given opportunities to “pre-learn” lesson material from the general education classroom to increase their success levels in that setting.

Written by:

Marcy Gutierrez

Partner

Kyle A. Raney

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.