Families with Autism Helping Families with Autism
FAPE for a Child with Autism

A FREE, APPROPRIATE [AND INDIVIDUALIZED] PUBLIC EDUCATION

This is an outline from a presentation given at a TACA meeting.

I. INTRODUCTION

  1. What is Special Education Law at Adams & Associates?
    1. Special Education Law is a very focused legal practice area. As special education attorneys, our aim is to empower parents of children with disabilities to help their children achieve full potential in an educational setting.  Our firm strives to equip parents with self-advocacy skills.  We support parents by holding seminars and regional center meetings; provide updated information on statutes; and present case law that interprets both state and federal regulations.
    2. A special education attorney represents children with disabilities at Individualized Education Program meetings (also called “IEP” meetings), Due Process Hearings, and, if the need arises, court proceedings. That representation ensures that the child receives all special education and related services (i.e., behavior intervention therapy, physical therapy, speech therapy, etc.) available to her under the federal and state laws.

  2. The State of California and Special Education
    1. In 2000, The Los Angeles Times reported that California is one of the worst states in terms of compliance with special education laws.  According to The LA Times, one in every ten children in Southern California has a disability that entitles them to receive related services or Designated Instruction Services (DIS). Related Services and DIS are two names that describe services given to children with disabilities that will help them to benefit from their free appropriate public education. A school district’s failure to fund all necessary related services to such a child is a violation of both state and federal law.  The Times reported that 628,848 students currently receive these services in California; approximately 8,300 disabled children attend public school in Orange County alone.

  3.  What Laws Govern the Special Education Field?
    1. Federal and state law governing the field of special education include: 
      1. The Individuals with Disabilities Education Act (“IDEA”)
      2. Section 504 of the Rehabilitation Act
      3. The Americans with Disabilities Act (“ADA”)
      4. The California Education Code
      5. Federal and state implementing regulations
    2. Additionally, courts have interpreted and applied these laws in a myriad of cases.

  4. What Is The IDEA?
    1. The Individuals with Disabilities Education Act (“IDEA”) is a federal law that was enacted in 1991 (an amended version of its predecessor the Education for All Handicapped Children Act or EAHCA) to provide a free appropriate public education to eligible children with disabilities, given in the least restrictive environment. It was recently reauthorized in 2004 and the updated law, with several significant changes, was made effective July 1, 2005. The IDEA mandates that special education and related services are to be provided to children with disabilities at no cost to parents. 
    2. The IDEA was reauthorized in 2004. Several important changes occurred. For example, school districts are now required to base special education and related services on “peer-reviewed research. 
    3. The IDEA 2004 statutory language states that it is important to “hav[e] high expectations for such children and ensur[e] their access to the general education curriculum in the regular classroom, to the maximum extent possible.” 20 U.S.C. §1400(c)(4)(A).

       

II. SPECIFIC PROVISIONS OF THE IDEA

  1. Civil Rights.  IDEA is a “grant statute” that creates civil rights. 

  2. Substantive Protections.  The IDEA requires: 
    1. All children with disabilities are to be given a free appropriate public education (FAPE). 
    2. Education and Related Services must be provided to children until they receive a high school diploma, or up to the age of 21 (California extends this to age 22.)
    3. Education includes academic as well as self-help and vocational skills.
    4. Education must be provided in the “Least Restrictive Environment” (LRE).
    5. Education must be individualized and appropriate to the child’s needs.

  3. Procedure Protections.  Procedural Protections of the IDEA include: 
    1. A child’s right to be given notice of a proposed decision about his educational program.
    2. Notice must be given to parents regarding their procedural protections and substantive protections under the IDEA.
    3. Right to an IEP.
    4. Right to an administrative or court hearing and the right to have a record of the hearing.
    5. Right for child to remain in his educational setting until any dispute is resolved (Stay-Put Provision).[1]
    6. Right to attorneys’ fees if the family is the prevailing party at an administrative hearing.[2]

III. OVERVIEW OF THE IDEA IN COMPARISON TO SECTION 504 OF THE REHABILITATION ACT AND THE AMERICANS WITH DISABILITIES ACT (ADA).

  1. Summary of IDEA, Section 504, the ADA & CA Education Code.
    1. The IDEA is unique in comparison to Section 504 and the ADA in that the IDEA provides federal funding to states specifically for special education programs and related services. Unlike the other statutes, the IDEA focuses on whether the child is making meaningful progress rather than merely receiving some accommodations to avoid discrimination. 
    2. Section 504 is a non-discrimination statute that makes it illegal for federally funded programs to discriminate against an individual based upon her disability.  Section 504 requires public entities to provide reasonable accommodations to persons with disabilities to the extent that the accommodation does not fundamentally alter the program.
    3. The ADA is similar to Section 504 except that there is no federal funding requirement.  In other words, even private entities (private schools) not receiving federal funds are subject to the ADA’s anti-discrimination provisions and are mandated to provide reasonable accommodations to disabled persons.
    4. The California Education Code provides educational rights similar to what the IDEA and Section 504 provide to children with disabilities.  In some cases, the California Education Code grants more rights and privileges to children than they would otherwise receive under federal law.

       

IV. QUALIFYING AS A CHILD WITH A DISABILITY

  1. General Requirements.  A child must be assessed to determine whether he has a disability that is covered under the IDEA, Section 504 and the ADA or a combination of the three before related services and special education will be provided. 
    1. IDEA Requirements.  The IDEA includes those with the following disabilities: “mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (hereinafter referred to as ‘emotional disturbance’), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; who, by reason thereof, need special education or related services. 
    2. Section 504 Requirements.  Section 504 covers people with the following disabilities: “any person who (i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such impairment, or (iii) is regarded as having such an impairment.”
    3. ADA Requirements.  The ADA covers people with the same disabilities as Section 504, but the ADA applies to public and private entities.

  2. Labeling And The IDEA.  Some problems with the IDEA definitional requirements include:
    1. Labels do not always correctly represent the characteristics of  the child.            
    2. Labeling can stigmatize a child in school.
    3. Labeling can create a self-fulfilling prophecy.
      1. Broad labels do not help teachers in finding an effective way to educate individual children.
      2. Some Districts make offers of placement and services to your child based on his/her label rather than his/her unique needs.

V. QUALIFYING AS A CHILD WITH AUTISM

  1. General. In California for example, to qualify as a child with autism under the IDEA, the child must exhibit any combination of the following “autistic-like behaviors”: 
    1. An inability to use oral language for appropriate communication
    2. A history of extreme withdrawal or relating to people inappropriately and continued impairment in social interaction from infancy through early childhood
    3. An obsession to maintain sameness
    4. Extreme preoccupation with objects or inappropriate use of objects or both
    5. Extreme resistance to controls
    6. Displays peculiar motoric mannerisms and motility patterns
    7. Self-stimulating, ritualistic behavior

       

VI. EARLY INTERVENTION SERVICES FOR CHILDREN YOUNGER THAN 3 YEARS OLD

  1. General. The Individuals with Disabilities Education Act (“IDEA”) establishes important rights and support services for children with disabilities including children from ages zero to three years.

  2. Purpose. The purpose of a law that provides early intervention services is to enhance the development of infants and toddlers with disabilities and to minimize the potential for delay. It is also designed to reduce educational costs by minimizing the need for special education and related services after infants and toddlers reach school age.

  3. Infant/Toddler. An infant or toddler with a disability means an individual younger than three years old who needs early intervention services because they are experiencing developmental delays in one or more of the following areas: Cognitive development, physical or motor development, social or emotional development, or adaptive development. If a child is experiencing such a delay a referral may be made orally or in writing by a parent to the school district or early intervention agency. In California, that agency is the Regional Center.

  4. Process. Once a referral has been made, the regional center or the school district must complete an evaluation and assessment, hold a meeting to determine eligibility, and develop an Individual Family Service Plan (“IFSP”) within forty five days of receipt of the referral.  The IFSP identifies the services appropriate to meet the unique needs of the infant or toddler.  The IFSP must be in writing and will include a number of items, such as:  A statement of the infant’s present levels of development, a statement of the family’s concerns, priorities and resources, a statement of specific services including how often, how much, method of delivery, and dates for initiation of services.

  5. Responsible Agencies.  In California, early intervention services are provided under public supervision and at no cost to families.  The services must be designed to meet the infant or toddler’s individual developmental needs.  They may include such things as: Special education, speech and language therapy, occupational therapy, physical therapy, psychological services, parent and family training and counseling, among others.  Note that these services may be provided in the home, depending on the infant and family’s needs.  If there is a disagreement between the parents and the Regional Center as to placement or early intervention services, the parents may file for a fair hearing.  If the IFSP is not being implemented or administered properly, the parents can file a compliance complaint to address the issue.

VII. SPECIAL EDUCATION

  1. Definition. Special education is defined as: specifically designed instruction, at no cost to the parent, to meet the unique needs of a child with disabilities. Instruction can include classroom and home instruction as well as instruction provided in hospitals and institutions.

  2. Individualized and Appropriate. One of the major principles of the IDEA is that the education of a child must be individualized and appropriate to the child’s needs. In order for a school to receive federal funding and support under IDEA, the state must have a policy that ensures that all children with disabilities receive a Free Appropriate Public Education  (“FAPE”).  The IDEA requires that the development of an appropriate special education program and related services occur through a vehicle known as an individualized education program (“IEP”). 

VIII. INDIVIDUALIZED EDUCATION PROGRAM

  1. IEP.  The IEP contains a written statement describing the child’s present levels of educational performance; annual goals for development; procedures for evaluating whether those goals are being met; specific related services to be provided to the child; dates to begin and duration and frequency of those services; criteria, schedules; and other necessary accommodations.

  2. How Does It Start? To begin the IEP process and request special education services for a child, a parent may simply write a letter to a child's teacher, principal, or the special education administrative office.  The letter informs the school about concerns related to the child’s educational process. The letter may also request that the school begin assessments for special education. In California, the school district must provide the parents with an assessment plan within fifteen days of receipt of the letter.  Parents then have fifteen days in which to give consent to any assessments contained in the plan.

  3. Can the District Start the Process?  Yes.  The District has an affirmative obligation, called “Child-find”, to seek out children with disabilities and ensure that they are provided with a FAPE.  The District may ask the parents to allow them to assess the child for eligibility for special education.  If a parent does not consent, then the District may not assess the child unless they seek an order allowing them to do so through a Due Process hearing. 

  4. What If I Want A New IEP?  If a child is already receiving education, a new IEP meeting can be requested whenever it is needed. The parent simply requests, in writing, that a new IEP be scheduled and the timelines stay in place. The parent may also request that new, additional, or different assessments be done prior to the IEP. An IEP is required to be held at least annually.

  5. What Should I Expect At The Meeting?  The IEP is developed at a meeting with parents, District representatives, and other service providers knowledgeable about the child.  The school district must take steps to ensure that one or both of the parents attend the meeting and have the opportunity to participate.  The school must give advanced notice of the meeting, written in the parents native language, and the meeting must be at a mutually agreed upon place and time, or by conference call at the parent’s request.  The statute is clear and holds that the parent of a child with a disability is an equal member of the IEP team.

  6. Who Can I Bring To The Meeting?  A parent may bring whomever they wish to the IEP meeting including, but not limited to an attorney, an advocate, a caseworker, or a friend.  The school district must ensure that the following people attend the meeting: at least one parent, at least one regular education teacher if the child is or may be participating in a regular education environment, at least one special education teacher, a district agency representative who has authority to approve all funding for related services, the persons who conducted assessments of the child or a person qualified to interpret those assessments, and the child if appropriate.

IX. APPROPRIATE EDUCATION

  1.  What Is An Appropriate Education?  Unfortunately the term “appropriate” as written in the statute is subjective and difficult to define.  This is because the IEP is to be developed to meet the specific needs of the individual child, supported by the services necessary for that child to benefit from the instruction. Noticeably absent in the language of IDEA are substantive definitions related to what levels of instruction are necessary.

  2. Different Standards of “Appropriate.”

    Some states require that a child meet their maximum potential.  Other states only open the door and make access meaningful. 

    Traditionally, the federal standard was embodied in the landmark special education case Board of Education v. Rowley, 458 U.S. 176 (1982). Under that standard, the state must provide the child with specifically designed instruction and supportive services necessary for that child to obtain "some educational benefit" from that instruction. More recently, however, courts have pointed out that the Rowley standard dates back to 1982—before the IDEA even existed. At that time, the Court interpreted a much older statute called the Education for All Handicapped Children Act. In the Ninth Circuit, for example, a case entitled Adams v. Oregon, 195 F.3d 1141 (9th Cir.) insisted that children receive a meaningful educational benefit. The Ninth Circuit has recently affirmed the "meaningful benefit" standard in N.B. v. Hellgate Elementary School District, 541 F.3d 1202 (9th Cir. 2008). 

    Another recent case from a federal court in Washington (J.L v. Mercer Island Sch. Dist., 2006 WL 3628033 (W.D. Wash. 2006)) analyzed the difference between the Rowley “some” benefit standard and the Adams “meaningful” benefit standard. The Mercer Island case asserted that all decisions prior to the enactment of the IDEA were suspect. For now, however, Rowley remains the only Supreme Court decision regarding a standard for “appropriate.” It is therefore important to understand the “some” benefit standard. Two good measures to determine whether a child is receiving an appropriate education under this standard are:

    1. If the child is mainstreamed in a typically developing classroom, the child should be progressing through grades with a grade average of at least a “C;” or
    2. The second, and more common method, is if the child is meeting the annual goals as set forth in their IEP.

  4. However, in many cases children may meet the two above-referenced criteria and still not be receiving FAPE.  For a number of reasons, such as inappropriate goals and objectives and differential grading, the program does not address the child’s specific areas of need.

X. RELATED SERVICES

“Related Services” (called “Designated Instruction and Services” or “DIS” in California), are defined as any service that is necessary to help a child benefit from her special education program.  In other words, “to benefit from special education” generally means that the service must assist the child in making progress toward accomplishing the goals set out in the IEP.  Examples of Related Services include:

  1. Transportation (to & from school or alternative placement from the child’s home).
  2. Speech-Language Therapy.
  3. Discrete Trial Training such as Applied Behavioral Analysis (“ABA”) or Intensive Behavioral Intervention (“IBI”)
  4. Psychological services.
  5. Physical and Occupational Therapy.
  6. Recreation (including therapeutic).
  7. Counseling services.

 XI. MAINSTREAMING, INTEGRATION, FULL INCLUSION AND LEAST RESTRICTIVE ENVIRONMENT

  1. Legal Development.  Another fundamental principle of the IDEA is the requirement that children with disabilities receive their education with non-disabled peers to the maximum extent appropriate.  While the term “mainstreaming” is not found in the language of either the statute or its regulations, the statute uses the phrase Least Restrictive Environment (“LRE”) to ensure that children with disabilities are educated alongside typical peers.

  2. IDEA.  IDEA 2004 provides, in part, that each local educational agency must ensure that:  “[t]o the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”

  3. Definitions.
    1. “Mainstreaming” refers to placing students with disabilities into regular classrooms to do the same activities as typically developing peers.  There is a strong congressional and judicial preference for mainstreaming.  Children should be mainstreamed to the greatest extent possible, even if it means that doing so would require assistance from supplementary aides and/or special education staff.
    2. “Integration” generally refers to mainstreaming a student into a regular class as well as providing access to and participation in other activities within the school environment.  For example, a student may spend part of his day in a special day class and another part of his day in a regular classroom with typically developing peers.  The student should have access to non-academic activities with typically developing peers, such as recess, lunch, and dances.  Integration is often used to describe the idea of integrating a student into both the special day class and the regular classroom as appropriately as possible. This term would differ significantly from the concept of full inclusion.
    3. “Full inclusion” refers to totally integrating a student with disabilities into the regular education program. This may be accomplished with the assistance of necessary support services.  Essentially, the student with a disability is a full-time member of an age-appropriate regular classroom, with no assignment to a special day class. This is possible even though the student may need to leave class in order to receive the appropriate related services developed in his IEP, such as physical therapy, speech therapy, or occupational therapy. Remember that LRE is an important concept in the IDEA; it is not the only consideration for each child. The educational program for each child must be individualized and appropriate for that child.

      The Ninth Circuit uses the Rachel H. Test (while other Circuits may use a different analysis). In considering whether a placement is appropriate for a child, courts within the Ninth Circuit have generally looked at a four-factor analysis found in the Rachel H. case. The four factors are as follows:
      1. Educational benefits of placement in a general education class;
      2. Non-academic benefits of placement in a general education class;
      3. Effect of the child’s presence on the teacher and classmates; and
      4. Cost of mainstreaming in regular classroom.

    Note that while the Rachel H. case mentioned that “cost” was a factor to be considered in determining appropriate placement, it also held that providing a part-time academic aide and making curriculum modifications would have cost the school no more than special education placement. Generally, most of the related services necessary for a child to be placed in a regular classroom setting cost districts little or no expense. Factor a is generally given more weight than factor b, which is given more weight than factor c, and so on. 

    XII. RESOLUTION MEETINGS, MEDIATIONS, AND DUE PROCESS HEARINGS

    1. Resolution Sessions
      1. What Is A Resolution Session?  A Resolution Session is required whenever a parent files for Due Process against a School District.  Unless the Resolution Session is waived by both parties and both parties agree to attend a mediation conference, a parent must attend or else her case will be dismissed.   A Resolution Session must be held within 15 days of the District receiving notice of the Due Process Request.
      2. What Can I Expect?  At a Resolution Session, a parent may bring her attorney.  Only if she does so may the District bring its attorney as well.  Ideally, the law envisions a process where the parent can discuss her concerns with the District and hopefully resolve the issues without going through an expensive due process hearing.  Unfortunately, many Districts use this technical hurdle to either prevent a parent from obtaining a due process hearing (by dismissing the case when the parent does not attend) or by attempting to use the process as a way to discover what parents will say at the Due Process Hearing, and then prepare against it.  In other words, it is sometimes used as part of the adversarial process than as a method for resolving the complaint. 

    2.  Mediations
      1. What Is A Mediation?  A mediation is a voluntary, confidential, and informal meeting at which the parties meet with an impartial mediator to attempt to resolve the dispute in a non-adversarial atmosphere.  The mediator does not provide advocacy or legal advice to either side, but facilitates communication between the parties.  The participation of the neutral mediator increases the possibility that the parties will reach a mutually satisfactory resolution.                    
      2. What Are The Benefits Of Mediation?  Many disputes are resolved through mediation.  Mediation is the preferred method of resolving disputes for a number of reasons, including the following:
        1. The Continuing Relationship Between Parties.  Mediation helps to maintain a cooperative relationship between parents and school districts because the dispute is settled by mutual agreement;
        2. Flexibility.  Mediation allows a greater level of flexibility in reaching a mutually acceptable settlement/written agreement.  By contrast, when a dispute goes to hearing, the hearing officer makes the final decision, which may not satisfy either party;
        3. Immediate Implementation.  If an agreement is reached in mediation, the resolution is written in the form of an agreement that can be immediately implemented.  Hearing decisions take much longer;
        4. Less Costly.  Mediation is less costly in terms of money, time and personal stress.

    3. Due Process Hearings
      1. What Is A Due Process Hearing? A special education due process hearing is a formal proceeding where the parties are given the opportunity to present witnesses, documentary evidence, and oral and written argument, which supports their respective positions on disputed special education issues.  The due process system is designed to resolve disputes between educational agencies and the parents of a child with a disability or suspected disability.
      2. How Does A Party Proceed To A Due Process Hearing?  When a party requests a hearing, the California Office of Administrative Hearings (“OAH”) notifies the other party and sets a hearing date. At the same time, OAH automatically assigns a mediator to the case to give the parties an opportunity to resolve the dispute without going to hearing.  If the dispute is not resolved through mediation, or if one of the parties elects not to mediate, the case proceeds to hearing.
      3. What Is The Difference Between A Due Process Hearing And Mediation? Compared to mediation, a due process hearing is a more formal, trial-like legal proceeding. At the hearing, all parties are given an opportunity to present evidence and argument before an impartial hearing officer. Witnesses are called and cross-examined. The hearing officer then issues a written decision, which is the final administrative decision resolving the matter.   
      4. Recently, several changes have been made to due process proceedings. These are important considerations if you ever need to fight the school district in hearing.
        1. Under the IDEA, the Statute of Limitations is two years, unless a state provides for a longer time. A Statute of Limitations is the amount of time in which you are allowed to wait to file a due process complaint before your claims expire. For example, if an IEP meeting occurred on July 15, 2005 and the due process complaint was filed on May 13, 2007, the IEP meeting is within the statute of limitations.
        2. In 2005, the U.S. Supreme Court decided that for claims brought under the IDEA, the burden of proof is placed on the party filing for hearing. See Schafer v. Weast, 126 S. Ct. 528 (2005).
          1. If a parent files for Due Process, it is the parent’s burden to prove that the District’s offer is not appropriate.
          2. If the District files for Due Process, it is the District’s burden to prove that its IEP offer is appropriate.
        3. In 2006, the U.S. Supreme Court held that while a parent may recover his or her reasonable attorneys’ fees as a prevailing party, they cannot recover their expert witness fees. See Arlington Central Sch. Dist. Bd. of Educ. v. Murphy, 126 S. Ct. 2455 (2006).     

  5. XIII. OTHER IMPORTANT TOPICS FOR DISCUSSION

    1. Behavior plans.
    2. Student Discipline, Suspension/Expulsion.
      NOTE:Pre-Expulsion Assessment (Cal. Educ. Code § 48915.5).  The pre-expulsion assessment provision was removed from the 2003 California Education Code.  Section 48915.5 no longer requires that a pre-expulsion assessment be given.  Under the current law, a district is not required to conduct an assessment prior to removing a student with a disability from his or her current placement, however, the procedural safeguards under 34 C.F.R. § 300.530 through § 300.537 still apply.  These provisions require that districts hold an IEP meeting within 10 days of removing a student from his or her placement.
    3. DTT v. TEACCH v. IBI as a related service.
    4. Compliance Complaints/Due Process.
    5. SOL and Timelines.
    6. Stay puts.
    7. Attorneys Fees.
    8. Assessment and Testing.
    9. Medication

    XIV. YEAR IN REVIEW—Case and Hearing Office Decisions that effect children with disabilities 

    1. Schaffer v. Weast, 44 IDELR 150 (U.S. Supreme Court 2005).
      1. Facts:  The parent went through a due process hearing.  The Hearing Officer decided that the cases were perfectly balanced, and therefore held that the parents, who had the burden of proof, lost.  The case was appealed and an appellate court held that the burden of proof rested on the District.  The Hearing Officer then found that the District lost.  Finally, the Supreme Court heard the case and found that the party who makes the request bears the burden of proof. 
      2. What This Means:  The party who files for Due Process now bears the “burden of proof.”  This means that the filing party must prove their case.  If the cases are exactly equal, the opposing party wins.  Unfortunately, Districts often fail to file and therefore the parents must file.  Often, then, the parents bear the burden of proof at hearing. 

    2. L.E. v. Ramsey Bd. of Educ., 44 IDELR 269 (3d Cir. 2006).
      1. Facts: Parents brought suit against the District in due process.  In New Jersey, the State Supreme Court had held that the school district bears the burden of proof in due process cases.  However, the Supreme Court decided Schaffer while the case was on appeal.  The Third Circuit held that the decision by the Supreme Court to place the burden on the petitioner overruled the State Supreme Court’s decision to place the burden on the district.
      2. What This Means: If parents bring a due process claim, they will have the burden of proving their case even if the state supreme court had previously placed the burden on the District.  However, the question of whether a state can place the burden on the District by statute, rather than by court ruling, remains unanswered in federal court.

    3. Arlington v. Murphy,  45 IDELR 267 (U.S. Supreme Court 2006) 
      1. Facts:  Parents were the prevailing party at a Due Process Hearing and thereafter sought their reasonable attorneys fees and costs.  As part of the fees, they asked for expert witness fees.  In their Circuit, expert witness fees were recoverable as part of the attorneys fees and costs.  However, the Supreme Court then held that expert witness fees are no longer part of the definition of “attorneys fees” and therefore expert witness fees are not recoverable. 
      2. What This Means:  While a successful parent remains entitled to their attorneys fees, they may no longer receive the cost of obtaining experts for their hearing.  Since nearly every successful hearing requires some expert testimony, this decision requires parents to pay for the experts without reimbursing them.  Expert fees come out of the parents’ pockets. 

    4. Aguirre v. Los Angeles Unified School District, 46 IDELR 91 (9th Cir. 2006).
      1. Facts: The parent prevailed at hearing and obtained substantial relief.  The test for reimbursement was whether parents had prevailed on a “significant issue.”  The District argued that this standard was too lenient.  The Ninth Circuit adopted a “degree of success” standard to determine whether an award of attorneys fees is appropriate.  
      2. What This Means:  Under the new standard, a pyrrhic or nominal victory is insufficient to support allow a parent to receive reimbursement for her attorney fees.  Parents must demonstrate that they achieved a significant amount of relief.  However, it does not require fees do be reduced in proportion to issues lost.   

    5. J.L. v. Mercer Island School District, 46 IDELR 273 (E.D. Wash. 2006).
      1. Facts: Parents of a high school child with learning disabilities brought an action for denial of FAPE.  The district had provided her with a number of accommodations, but she continued to fall behind her classmates.  At due process, parents lost because the ALJ found that the “minimum floor of opportunity,” the Rowley standard, had been met and that the child made more than “de minimis” progress.  The federal district court disagreed.  It held that the Rowley decision, which interpreted the Education for the Handicapped Act (“EHA”), did not apply to the IDEA. 
      2. What This Means: This is potentially a watershed case about the correct standard to apply in FAPE hearings.  It recognizes that the prior law, the EHA, was designed only to give children with disabilities access to education and related services.  The purpose of the IDEA, by contrast, is to provide a meaningful educational benefit designed to promote economic self-sufficiency.  It therefore declared that Rowley had been superseded by statute. 
      3. Just a District Court Decision: Although this case is potentially very influential, it must be remembered that this decision came from a single District Court in the State of Washington.  Rowley remains influential as a Supreme Court decision.  A District Court cannot overturn the Supreme Court.  So while this case is influential, and while it may eventually influence a change in the Supreme Court itself, it is not binding authority on any other court. 

    6. Benjamin G. v. Special Education Hearing Office, 44 IDELR 7 (Cal. Ct. App. 2005).
      1. Facts: Parents challenged the proposed placement of a child with autism in due process.  The district refused to allow the Student’s expert to observe the proposed or current placement.  The Court held that, when challenging a placement, the IDEA and state implementing laws give the Student the right to have an expert observe.
      2. What This Means: When bringing a due process hearing at which FAPE is an issue, the parents have the right to have their experts observe the placement in order to be effective at hearing.  Caution should be used, however, because this case relied, at least in part, on California law.  Outside of the state, the law may be different. 

    XV. PENDING DECISIONS

    Winkelman v. Parma City School District, No. 05-0983.  Appeal pending before the U.S. Supreme Court.

    The parents lost their due process claim and appealed to federal court as they are allowed to do.  However, they could not afford an attorney and chose to represent their child themselves.  However, the District had the case dismissed.  Because the parents were litigating the rights of the child, and because they weren’t attorneys, the Court said that they were illegally practicing law.  Currently, some Circuits allow the parent to represent their child in an IDEA case, and some do not.  The Supreme Court is now set to decide whether a parent has the right to represent her child without an attorney in federal court. 

    XVI. CONCLUSION

    In conclusion, the IDEA is written to involve parents as equal members of the IEP Team.  Section 504, the ADA and the California Education Code work to fill in any gaps for students with disabilities. At Adams & Associates, we believe it is important that parents of children with disabilities be fully informed as to their rights and responsibilities under the law.  Knowledge of the law can itself be the most powerful problem solver for parents.  We understand that parents of children with disabilities will have to work with their local school district for many years to come.  For this reason we strive to build a powerful relationship between a well-informed parent and an experienced legal representative.  This relationship will secure the appropriate services and protect the rights of the disabled child.


    [1] However, the new regulations to the IDEA state that a child moving from an Individual Family Service Plan to his first IEP does not have a Stay-put placement. 

    [2] The law also allows a District to receive attorneys fees from the parent or parent’s attorney if “the parent’s complaint … was presented for any improper purpose such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.”

     

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