Friday, April 29, 2011

IEP Meeting Preparation: Gather Your Pile of Persuasive Documents to Go to War

By Michelle Ball, California Education Attorney for Students since 1995

Going to an IEP (Individualized Education Program) meeting is not just "going to a meeting," although it may seem like that.  It is going to war.  This is a war for our children and their education.  IEP meetings tend to be deceptively simple, where everyone "gets along," and the school members seem to decide all, with the parents just observing.  As such, it is important, prior to going to any IEP meeting, to put together documents which will help parents get what they want for their children.  This can mean the difference between a good education and a bad one for a special education student.

A critical document that a parent should obtain well in advance of the IEP meeting is a demand letter from an attorney setting forth requests and support for those requests.  Often parents' wishes may be ignored until an attorney steps into the matter.  Attorneys speak with authority and carry "big sticks" so resolution may come more quickly.  If not, the attorney may proceed to other means of resolution such as filing a due process hearing request, a state compliance complaint, a disability discrimination complaint, or starting some other process.

If the parents do not have an attorney letter, parents should provide their own written outline of the items which they want added to the student's IEP plan.  This list could include what placement would be appropriate, what goal areas should be covered, and the amount and type of services needed to help the student advance year to year.  If provided with enough time, key IEP team members will likely mull over parent requests prior to the IEP meeting and may already be in agreement when parents arrive at the meeting.  They will also usually go down a parent list item by item at the IEP meeting to discuss what the district will or will not do and why.

Also important are written reports gathered from independent outside assessments.  Although a parent may be able to get a district to pay for an outside assessment, the best possible assessments are usually from completely independent educational professionals.  This is because the professionals parents hire go to bat for the child, listen to what parents want, and help them achieve their goals.

District assessments, email, report cards, correspondence, and other documents should also be culled to locate support for each item requested. This is very important as otherwise parent requests are merely parent "opinion" and can easily be dismissed by the "authorities" at the IEP meeting.  With support in the records, a parent has a much stronger chance of getting what he or she wants for their child.

Documents which will support the parents' position should also be copied and provided to everyone at the meeting.

This list should help arm parents for battle. Providing persuasive documents can create quite an impact on the IEP team and the plan they issue, and can mean the difference between academic advance and academic decline for the student.


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/
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.

Monday, April 25, 2011

Can Schools Just Involuntarily Transfer My Child to a Continuation School?

By Michelle Ball, California Education Attorney for Students since 1995

Okay- you are going along in life, minding your own business.  Your kids are fine, attending school, seem to be able to read and all is right with the world when suddenly, you receive a letter, call, or see sky writing telling you that your son who attends Local High School is now INVOLUNTARILY TRANSFERRED to the... CONTINUATION SCHOOL!  Can the district do this?  Yes they can, provided they jump through a few hoops.

First hoop: per California Education Code section 48432.5 notice of the intent to involuntarily transfer cannot come by sky writing, but must come via written notice.  In other words, you receive a letter which must state that an involuntary transfer is pending, but that you have a right to request a meeting with a school district representative.  Note this meeting will not just occur- you have to request it.  Please do.

Second hoop:  If you request the meeting, at that meeting, you will be informed of the basis for the involuntary transfer and "shall have the opportunity to inspect all documents relied upon, question any evidence and witnesses presented and present evidence on the pupil's behalf."

I would recommend you ask for any documents PRIOR to the hearing along with the basis for the transfer, witnesses who may be called, etc.  Otherwise, how can you present your defense?

Third hoop:  The transfer must be based on the fact that the student committed a suspendable act or that they have been habitually truant (reported truant on 3+ occasions - see Ed Code 48262) or irregular in attendance (see my other blog on truancy).

Fourth hoop:  The decision to actually involuntarily transfer, or not transfer, a student to a continuation school  must be in writing.  In other words, you get a second letter.  This letter must indicate if the transfer will be periodically reviewed, the procedure for review, and the facts supporting the involuntary transfer.

Fifth hoop:  No one making the decision can be on the staff of the school which is kicking the student out.

Sixth hoop:  This is to be something done only after "other means fail to bring about pupil improvement."  However, even with a first suspension a student may be involuntarily transferred if their presence presents a danger to "persons or property or threatens to disrupt the instructional process."

Seventh hoop:  The involuntary transfer can't go longer than 2 semesters including the current semester unless the policy of the district allows for only yearly review.

If they do not jump through all the hoops you may be able to attack the involuntary transfer for not meeting legal requirements.

Also, please note that you should check your school district's policies on involuntary transfers as well, which might offer even more hoops and an appeal process.  Hope this helps!


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/
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.

Wednesday, April 20, 2011

IDEA Court Case - C.B. v. Garden Grove - Upholding Parents Right to Reimbursement for Private School Placement

By Michelle Ball, California Education Attorney for Students since 1995

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/
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.

Wednesday, April 13, 2011

Recent Bus Accident Involving School Children - Elk Grove

By Michelle Ball, California Education Attorney for Students since 1995

Yesterday in Elk Grove, California, a suburb south of Sacramento California, an Elk Grove "E-Tran" bus transporting students was in a traffic accident where three students were injured.  According to media reports  (e.g. Fox 40 and the Sacramento Bee), the bus driver says the bus was proceeding through a green light and was cut off by a driver turning right at a red light.  Traffic information will be reviewed.

Although the media reports seem to point to the car driver being at fault, with school bus accidents things are not always as clear cut as they seem.  For example, video footage inside the bus may show something different, such as a driver looking the other way or even texting.  Sadly, we all remember the fatal California train crash in 2008 where the operator was texting just prior to impact.

It was very lucky that the students involved were not seriously injured as cases involving school transportation can result in students being killed, maimed, or permanently damaged.  For example, I recall a case where a student's face struck the corner of a bus seat and he lost his eye,  Burke County Board of Education v. Raley (1961 Georgia).  Another case involved a student falling out an emergency door in a bus, such that the boy was killed, Marion County v. Cantrell (1933 Tennessee).

More recent situations involve one school bus rear-ending another, a school bus hit by a van, and a bus going off the road and rolling.  Other cases involve the very bus transporting a student running over them, such as the15 year old who left a bus while moving and was run over, or the ten year old boy simply trying to catch the bus who perished.  These are heart-wrenching situations.

As such, it is important that school bus safety continue to be increased and that parents educate their children about safety around school buses (or other transportation).  Additionally, when an accident occurs, competent legal counsel should be involved to handle these tragic situations.


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/
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.

Friday, April 8, 2011

Parent and Student Rights In School Expulsion Hearings

By Michelle Ball, California Education Attorney for Students since 1995

A family came to my office about a month ago with a scenario which was absolutely baffling to me.  Their son had been expelled in a remote district in California for an interaction with a coach.  That was not the shocking part.  The stunner was HOW the expulsion went down. The "hearing" was not a hearing at all and the family was left to observe the whole process.  Their rights were severely trampled.  Needless to say, I went in and the expulsion was immediately reversed and expunged.  The boy is now back in school and everyone pretends the whole ordeal never happened.  What a joke.  The sad thing is, the school did not reverse itself until I officially got involved as even when the parents asserted their rights, they were ignored.  This is because districts don't listen to parents on legal matters, they only listen to lawyers.

Let me tell you just some of the violations which took place:
-  The family was not allowed into the "hearing."
-  The family was not informed of their procedural rights.
-  The family was not provided the ability to cross examine any witnesses.  In fact, there were no witnesses presented by the district.
-  The Superintendent was in the room while the Board of Education was deliberating.
-  The County Board of Education (who the family had to appeal the matter to) was composed of the exact same board members as the school board, and the county board refused to move the matter to a neighboring county board of education.  In other words, Mary Smith, Jane Doe, and Jim Black were on the school board who expelled AND were on the county school board who was to review the "school board" expulsion decision!

The list goes on and on, and I could almost not believe my ears when the parents told me this tale.  I thought I was being read a fictional story.  Sadly, this was not the case.  As such, I want to describe in brief form some of the rights in a California school expulsion hearing:

1)  The right to a hearing within 30 schooldays after the date the principal or superintendent determines a breach of the education code occurred.
2)  The right to an automatic postponement for up to 30 days no questions asked.
3)  The right to have written notice of the hearing forwarded at least 10 calendar days prior to the hearing date.
4)  The right to have that notice include, among other things:
-  the student's right to be represented by legal counsel.
-  the date and place of hearing,
-  a statement of the facts and charges on which the proposed expulsion is based,
-  notice regarding your procedural rights at hearing (e.g. right to present witnesses, cross examine, etc.),
-  a copy of the disciplinary rules of the district which relate to the matter.
5)  The right to appear at the expulsion hearing.
6)  The right to confront and question all witnesses and all evidence.
7)  The right to present evidence and witnesses, on the student's behalf.
8)  The right to have NO expulsion recommended based on hearsay (he said she said) alone.
and many more....

The above list is not exhaustive.  These rights are listed in California Education Code section 48918.

Please, if your child is up for expulsion, seek advice from an attorney and know your rights.  Had this family not met me, their illegal "hearing" would have stood and the student would still be expelled.

Hopefully this district and county board of education will now review and change their ways.  (Yes I am a dreamer...)

The lesson from this story, children, is: Never trust your school or school district to do the right thing and ALWAYS have someone on your side.

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/
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.

Tuesday, April 5, 2011

School Recess Restrictions for Discipline- Are These Okay?

By Michelle Ball, California Education Attorney for Students since 1995

Once in awhile, a parent is surprised when their child tells them they were held in during recess by the teacher, and did not get a break that day.  Unfortunately, this may be okay for a teacher to do.  However, such restrictions should not be overused.

Recently I met with a family involved in a discipline dispute with a school district.  During our discussion, it came up that the boy who had gotten into trouble had not had any recesses for a long period of time due to continuing behavior issues.  Although this was not the main focus of our discussion, what the family reported to me was disturbing simply as this was the "new" schedule of this boy, one with NO RECESS.  Additionally, the withholding of his recesses did NOT solve his behavior issues.

Per California Education Code section 44807.5:

"The governing board of a school district may adopt reasonable rules and regulations to authorize a teacher to restrict for disciplinary purposes the time a pupil under his or her supervision is allowed for recess."

This is the entirety of the statute.

My comment on this is:

1)  The school board must actually have adopted such a policy to allow a teacher to do this, and
2)  The rules and/or regulations must be "reasonable," and
3)  The restriction itself must be reasonable in length of time and duration (e.g. how many days).

No kid should be kept in from every recess.  Youths need to get out of the classroom to have a break, run around, and just interact socially with other kids.  If this is not allowed, the conduct for which the youth is being punished may, in fact, worsen.  This is because if a child is "overpunished," (by e.g.via  missing all recesses with no hope of getting them back) the punishment may no longer have the desired impact.  The child may instead not be motivated to "act good," as acting good has no impact anyway.  They give up.  The teacher's recess restriction may also result in a negative image regarding the student, as he or she may be labelled as a troublemaker and may be ostracized and/or looked down upon by his or her peer group.

Additionally, if such restrictions are occurring, the school may effectively be put on notice that they need to take action to address the issues.  A Student Study Team (SST) meeting, behavior assessment, or other actions could be in order.

School is not only about academics, but is also about socialization, exercise, life, and fun.  It should not be such that it becomes a prison where a student never gets let out of the cage.  That would hardly be beneficial for anyone


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/
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.