Special Education Archive

Articles from California Education Law Report

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Tourette's Specialist Not Required

(October 95)

The Gridley Union School District is entitled to conduct a three year assessment of a high school pupil who is eligible for special education as a result of a serious emotional disturbance.

The student was diagnosed with Tourette's Syndrome, and various behavior disorders including attention deficit hyperactivity (ADHD) for which he is prescribed medication.

Education Code sec. 56381 provides that reassessment of students eligible for special education shall be conducted at least every three years. In this case, the last triennial assessment occurred almost three and a half years ago. A lack of evidence regarding serious behavior problems due to a change in the pupil's medications also required that a new mental health assessment (AB 3632) be performed.

However, the assessment did not have to be conducted by a Tourette's specialist. No factual or legal support was presented by the parents to support this request, and County Mental Health had a board-certified child and adolescent psychiatrist experienced in working with children with ADD. Gridley Union School District, SN 158-95

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District Must Pay for Private School

The San Francisco Unified School District must reimburse a parent for the costs of private school tuition at a sectarian preschool.

The parent placed her child who is four years old child and eligible for special education due to significant speech and language delays at St. Luke's, a private school. The unilateral placement was initiated during the 1993-94 school year when the District did not provide the special education services that were required under the pupil's IEP. The District informed the parent that the preschool special day classes were full and offered to provide speech and language therapy twice a week as an alternative.

"A school district cannot shirk its responsibility to provide appropriate services to a disabled student by simply informing the parent that such services are not available," said the hearing officer. The student was denied an appropriate education because the services offered did not conform to his IEP.

Procedural violations were also committed with respect to the pupil's program. The assessment was not completed within fifty days after the District received the signed assessment plan as required by the Education Code. (sec. 56344.)

Federal and state regulations prohibit the use of government funds to pay for religious worship or instruction. (34 C.F.R. sec. 76.532 (a)(1), Educ. Code sec. 56366.) However, the hearing officer concluded that the parent should not be denied reimbursement for the costs of the private religious school. "In this case, the only religious component of student's program at St. Luke's was that the children said a prayer at the beginning of each school day. In all other respects, the preschool program at St. Luke's was like any other preschool program for nondisabled children. Thus, the religious component of Student's program was far less than that in Zobrest [Zobrest v. Catalina Foothill School District (1993) 113 S.Ct. 2462], in which the student actually received religious instruction." San Francisco Unified School District, SN 1068-94

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District Must Provide Transport During Summer

(October 95)

The Walnut Valley Unified School District must provide a pupil with round trip transportation to a day treatment program when school is not in session.

The pupil is eligible for special education due to a learning disability. She has a history of serious emotional and behavioral problems and receives mental health services provided by Los Angeles County. She is enrolled in a day treatment program that meets five days per week. The District provides transportation as specified in the pupil's IEP from school to the mental health clinic.

The dispute was over whether the District had to continue to provide transportation during the summer when school was not in session. The hearing officer said "there is authority for requiring a school district to provide transportation during the regular and extended school year to allow a student to receive mental health services when the services are provided at a location other than the student's home school." California regulations designate County Mental Health with the responsibility for providing therapy and the local educational agency with the responsibility for providing transportation. (Cal. Code Regs. title 2 sec. 60030 (a).)

In this case, the hearing officer concluded that the student's need for transportation did "not cease during the summer months" when school was not in session.

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Intellectually Gifted Student Not Learning Disabled

(September 95)

A student who is intellectually gifted may be eligible for special education if he meets the criteria and demonstrates a need for it. In this case, the District was unable to prove the such a student needed special services.

The Santa Ana Unified School District performed an assessment on a thirteen year old seventh grader who is intellectually gifted. The assessment showed him to be weak in spelling and general writing mechanics. The District offered resource specialist services in the regular classroom. The parent refused to consent to special education but agreed to an accommodation plan under Section 504 of the Rehabilitation Act.

The District petitioned for a hearing and argued that the student could not succeed in the regular classroom without special education assistance. The parent did not attend the hearing, and the student was subsequently withdrawn from school to receive home schooling.

A student who has a high IQ may be eligible for special education if he meets the criteria, and demonstrates a need for special education. (Letter to Ulissi, OSEP 1992). However, in this case the District failed to present evidence to support its conclusion that the discrepancy could not be corrected through regular education or that the student needed special education. The District did not indicate what steps it would take to remedy weaknesses in spelling, punctuation and capitalization in the regular education program. The hearing officer said, "there was a lack of evidence that Student's areas of relative weakness have affected his classroom performance." He noted that the student was performing at a level equal to his high IQ and above grade level in most academic areas.

Comment: Note that spelling is not one of the enumerated areas for a finding of a severe discrepancy in either the California Education Code or the federal regulations. (Educ. Code sec.56337 and 34 C.F.R. 300.541.) A student cannot be qualified for special education solely on the basis of spelling. Santa Ana U.S.D. (No. SN 368-94)

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Parent Not Entitled to Reimbursement for Private School

(September 95)

The Ramona Unified School District offered an appropriate placement to a 15-year-old tenth grader who was unilaterally placed at a private school by his mother.

The parent maintained her son had a learning disability which the District had failed to identify for years, and that it failed to provide him with services or an appropriate placement.

The hearing officer concluded that prior to the pupil's withdrawal from public school the District did not have any reason to evaluate him for special education. The mother had removed her son from school because he had allegedly been assaulted by a group of students some time in the seventh grade, and she believed he was not safe there, not because she believed he was in need of special education. The evidence established that the District committed a procedural violation by failing to develop an IEP within 50 days of the parent's consent

However, the mother was not entitled to reimbursement for the private school because there was "insufficient evidence to suggest that the District was purposefully attempting to ignore Mother's concerns or trying to delay the IEP meeting. Rather, the evidence suggests that the District made several efforts to explain its position and convince Mother to work with the District in developing an IEP and placement for student."

"Ultimately, much of the delay in developing an IEP and placement for student resulted from mother's indecisiveness and her delays in providing all relevant information to District personnel." The mother's "actions outweighed what otherwise would be a major procedural violation by the District," said the hearing officer. Therefore, she was not entitled to reimbursement for the private school. Ramona Unified School District (SN 199-95)

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Student Not Eligible for Services as SED

(June 95)

A high-school student who lives in the Murrieta Valley Unified School District is not eligible for special education due to a serious emotional disturbance (SED).

A clinical psychologist who worked with the student for over 13 years testified that he had a narcissistic personality disorder which "can easily reach psychotic breaks." The psychologist reported several violent incidents in which the student threatened other family members including his mother. In the Fall of 1994, the student was prescribed a medication, Effexor, that stabilized his moods.

The student's mother testified that he had acute psychotic breaks and had once been placed in a psychiatric hospital.

The District's witnesses testified that the student's behavior during the assessment was not typical of other SED pupils. They said he indicated that he enjoyed school and his records did not indicate any inappropriate behavior at school. His depression appeared to be related to his family situation.

The hearing officer found that the student did not meet the criteria for services as seriously emotionally disturbed in the California Code of Regulations section 3030 (i).

The grades and achievement scores established that the student did not have an emotional condition that adversely affected his ability to learn. He had satisfactory interpersonal relationships, and although "mildly depressed" he did not have a pervasive mood of unhappiness or depression.

The hearing officer noted that there were several violent outbursts that occurred at home. However, the testimony of the District's witnesses established that the pupil was able to act appropriately at school and during meetings regarding his education. The evidence established that the student did not exhibit the characteristics of serious emotional disturbance that adversely affected his educational performance. Murrieta Valley Unified School District (SN 180-95)

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Suspension & Expulsion

(May 95)

A pre-expulsion assessment did not cover all areas of a student's suspected disability, and the Lodi Unified School District was ordered to immediately reinstate the student.

Background: The Lodi Police Department began an undercover operation at the high school in order to investigate student involvement in drug sales. An 18 year old student was arrested for his involvement in a drug transaction. The student was eligible for special education due to a learning disability. He had also been diagnosed with attention deficit disorder (ADD). The student was suspended and placed on home teaching after a pre-expulsion assessment and IEP team meeting were conducted.

The parent filed for a due process hearing when the suspension was extended beyond five days. Petitioner maintained that the pre-expulsion assessment should have included a complete ADD assessment. The District asserted that the assessment was conducted in compliance with the Education Code requirements.

A clinical social worker testified at the due process hearing for the student. He said that the student had poor judgment due to his attention deficit disorder, and that his involvement in the drug transaction "might have been an indirect manifestation of his disability."

In this case, the District did not include an assessment for ADD in the pre-expulsion assessment. Rather, the District relied upon a previous diagnosis of ADD made by the Lodi Mental Health Clinic. The hearing officer found that this did not comply with the requirements of the Education Code. Since the assessment was not complete the IEP team "did not have sufficient information with which to determine the issues before it."

The hearing officer said that "the IEP team could not have made an appropriate determination regarding whether Student's alleged misconduct was a direct manifestation of, or caused by, his disability." Further, the IEP team did not have enough information about the drug transaction and the events leading up to it to make an informed decision about the student's behavior.

The District was ordered to immediately reinstate the student into his prior educational program, and a complete attention deficit disorder assessment must be conducted before the District can proceed with expulsion or further suspension of the student.

Comment: The main point of this decision is that a student must be assessed in all areas related to his disability prior to expulsion proceedings. (Educ. Code sec.56320 (f).) The IEP team must determine that the student was appropriately placed, and that the misconduct was not caused by the pupil's disability (Educ. Code sec.48915.5). However, a pre-expulsion assessment is not limited to only those two inquiries, said the hearing officer. "Rather, the language indicates that these are but two factors among others for the pre-expulsion assessment to consider."

Note that the pre-expulsion assessment may be conducted without parental consent. (Educ. Code sec.48915.5 (b)). However, parental consent must be obtained prior to an assessment for eligibility or to review or change an educational program. (Educ. Code sec.55321 and sec.56506 (e)). Lodi Unified School District (SN 64-95)

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Behavioral Assessment Plan

(May 95)

The Ocean View Elementary School District is entitled to have one of its school psychologists assist with a behavioral assessment despite parental objections.

Background: A 7 year old student was due for a triennial evaluation in 1994. The pupil had previously been mainstreamed in a kindergarten class where he exhibited behavior problems such as hitting and running from the room. In May 1994, he was suspended from kindergarten for biting his teacher. (There is pending litigation in federal court over the student's placement.) The parties agreed that the pupil's behaviors in school required intervention. It was agreed that a private consultant would have primary responsibility for conducting a behavioral assessment in order to develop an intervention plan for him. The district proposed that one of its school psychologists assist in the assessment as the case manager. The parent objected and refused to consent to the assessment. He maintained that the psychologist was biased against him, and he wanted the assessment done by a non-District employee.

The parent argued that his hostility towards the District's representative should prevent her from participating in the behavioral assessment. He relied upon a federal court decision that ruled it could consider parental hostility when deciding whether a proposed educational placement was appropriate. (Com. Consolidated School Dist. No. 21, v. Illinois State Bd. of Ed., (7th Cir. 1991) 938 F.2d 712.)

The hearing officer found that the parental hostility was not so severe. He said, "the parties continue to work together on Student's education and a number of assessments have either been completed and/or are proceeding forward." Also, the hearing officer found "more persuasive" the dissenting opinion in Consolidated School District, which disagreed with the majority opinion and said that it gave the parent an "absolute veto" over the District's proposed educational program. The District was entitled to conduct the assessment despite the parent's lack of consent.

Comment: This is one of the first hearing officer decisions to decide an issue with with respect to California's recently enacted regulations regarding the use of behavioral interventions for children with special needs. (Cal. Code Regs. 3052 ).

The regulations were enacted as a result of the "Hughes Bill" which directed training programs be developed to assure that "adequately trained staff are available to work effectively with behavior intervention needs of individuals with exceptional needs." (Educ. Code sec.56520 (a)(4)).

A functional analysis assessment (FAA) must be conducted by or under a person who has training in behavior analysis with an emphasis on positive behavioral interventions. (Cal. Code Regs. 3052 (b)). A behavioral intervention plan is developed by the IEP team when the assessment is completed. The behavior plan becomes part of the pupil's educational program. (Cal. Code Regs. 3052 (D) (c)). Ocean View Elementary School District (SN 810-94)

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Chemically Sensitive Student Not Eligible

(April 95)

Background: A parent asserted that her eight year old daughter required modifications to the school environment and wanted them written into an IEP. The accommodations included replacing cleaning products with environmentally safe ones such as Bon Ami and Simple Green, notifying the parent of the use of pesticides or chemicals at the school site, and banning perfume from the student's classroom.

The hearing officer found that there was no evidence that the pupil required special education as other health impaired. In order to satisfy eligibility criteria , the student must exhibit limited strength, vitality, or alertness. (Title 5, Cal. Code of Regs. sec.3030 (f)). In this case, the pupil's teachers testified that she performed well in school and did not exhibit any behavioral problems or lethargy. The District had voluntarily stopped using some products and was informing the mother when certain chemicals were present at the school. The parent's request was denied. Placentia-Yorba Linda U.S.D., SN 848-94

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Stay put Order

(April 95)

Home instruction is the "stay put" placement pending an expulsion hearing when it was agreed to by the parent and school district.

Background: A student was arrested for participating in the sale of an illegal substance at Lodi High School. He was subsequently suspended and recommended for expulsion. At the time of his arrest, the pupil was identified as learning disabled in the area of written language, and received resource assistance for one period per day. An IEP meeting was held after his arrest and the team found that the misconduct was not caused by his disability. At the IEP meeting the participants including student's parents, agreed to change his placement to home instruction.

The parents requested a due process hearing to challenge the proposed expulsion and requested that the student be reinstated pending the completion the due process hearing.

The present placement for purposes of stay put is usually determined by the placement on the student's IEP, "unless the public agency and the parent agree otherwise." (Educ. Code sec.56505 (d)). In this case, the parents have "agreed otherwise." The District must continue to provide special education services to the student until the due process hearing is completed, and these services may be provided at home. The District cannot expel the student until the due process hearings and appeals are completed. (Educ. Code sec.48915 .5(h)(3)). Lodi Unified School District (Case No. 64-95)

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Autistic Pupil's IEP Must Specify Amount of Time in Regular Ed.

(March 95)

The Oak Park Unified School District must specify on an IEP the amount of time an autistic pupil will be mainstreamed into a regular education high school program. However, it does not have to specify the name of the school he will attend. Background: School districts have become creative in identifying a pupil's placement on an IEP as they attempt to reconcile requirements of the Education Code with parental requests for "full inclusion." In a recent case, the District and parents agreed that a 16-year old autistic student had been successfully mainstreamed during middle school where his placement was in a special day class (SDC), but he received most of his instruction in the regular class, assisted by an SDC teacher or aide.

The parent wanted the same level of support for her son when he entered high school. A dispute arose over the proposed high school IEP. The parent refused to sign it because she did not believe it correctly stated the amount of time her son would be in regular education classes.

At the IEP meeting the District agreed that the student would be in regular classes four out of six periods per day and would receive special day class services from a teacher or aide there. However, the IEP stated that the ninth grade placement would be in regular education 15% and special day class 85% with direct service pull-outs and regular class as appropriate. The hearing officer agreed with the parent that the proposed IEP did not correctly state the amount of time the pupil would be in the regular education program as required by Education Code sec.56345 (a)(4), and ordered it to be rewritten.

The IEP must also contain a clear description of the program and services to be provided, "simply stating that the child needs a Special Day Class is not sufficient."(Education Code sec.56345 (a)(3).) It must specify the assistance he will receive in regular education. The hearing officer noted that "while special education law requires that students with disabilities be educated with their nondisabled peers to the maximum extent possible, school districts still face funding issues in designing their special education programs." Since, the student needs almost full-time assistance to succeed in regular education, the District identified him as a special day class student so that it would receive the funding to support him in the regular class. However, the Education Code specifies that special day class students must spend at least fifty-one percent of their time in an SDC class. (Education Code sec.56364).

A school district can request a waiver of any provision of the Education Code necessary to implement a pupil's IEP. (Education Code sec.56101). In order to reconcile the contradiction between the mandate for the least restrictive environment and special day class criteria, the District can seek a waiver of the requirement that the student spend the majority of his time in the special day class.

The District orally agreed that he could attend his neighborhood school, but didn't want to put that on the IEP, in case circumstances changed. The hearing officer ruled that the District is not required to specify the name of the school on the IEP since this is not required by either federal or state law. (Education Code sec.56345). Oak Park Unified School District (365-94)

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District Failed to Prove Learning Disability

(March 95)

When there is a disagreement over special education eligibility it is usually the parents who want the school district to qualify their child for services. However, in two recent decisions it was the school district that wanted to provide special education over parental objections. In both cases, the Special Education Hearing Office ruled against the district, and cited a Ninth circuit decision that held "not every student with a learning difficulty has a specific learning disability." (Kelby v. Morgan Hill Unified School District, 18 IDELR 831 (9th Cir. 1992).)

In 1992, the Paso Robles Union Elementary School District assessed an eighth grade African-American student, and found he was eligible for special education because he had a learning disability.

A student is eligible for special education as learning disabled if all of the following criteria exist: There is a severe discrepancy between ability and achievement in an academic area; the discrepancy is due to a processing disorder; the discrepancy cannot be corrected in the regular education program. (Educ. Code sec.5637).

The IEP team recommended resource specialist services. However, the mother disagreed with the IEP team's conclusions and did not consent to the program. The District requested a due process hearing on the issue of eligibility which the mother did not attend. (Educ. Code sec.56501 (a)(2).) No evidence was presented on behalf of the student.

The hearing officer ruled against the district because it failed to establish that the student had a learning disability at the time of the hearing. Much of the District's case relied on an assessment that was more than two and a half years old, and no evidence was introduced that a severe discrepancy currently existed between ability and achievement. The hearing officer based his decision on two of the student's current teachers who testified at the hearing that although he might need some accommodation to his educational program, they would not recommend resource services for him.

Although the student's grades fluctuated which "indicate that he may be having difficulties in school" this did not support a finding that he needed or would benefit from special education. Paso Robles Union Elementary School District (No. SN 337-94)

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