Special Education Regulations Update

The U.S. Dept. of Educ. has a department called OSERS which is required to provide federal regulations as well as guidance to regulations which implement the law contained in the IDEA. OSERS puts out guidance and policy letters on issues ranging from transportation rights to discipline. For a lis…t of guidance docs put out by OSERS visit: http://idea.ed.gov/explore/view/p/%2Croot%2Cdynamic%2CQaCorner%2C

California Disability Rights IHSS Services

IHSS stands for In-Home Supportive Services. IHSS provides services to
adults and children with developmental disabilities who live in the
community in their own or family homes.

Some services provided by IHSS are:
-Personal care, which includes assistance with walking or moving around,
bathing, bowel or bladder care, dressing, feeding, grooming, menstrual care,
repositioning and skin care.
-Domestic Services, which includes cleaning, chores, shopping, preparation
of food, laundry, meal cleanup, menu planning, and restaurant meal
allowance.
-Other services such as heavy cleaning, protective supervision, respite
care, teaching and demonstration, transportation, and yard hazard abatement.

If you want to know if you are eligible visit:
http://www.dss.cahwnet.gov/cdssweb/PG135.htm

For those who are trying to receive benefits for IHSS, a denial can be
stressful.

The process for challenging a denial can be daunting because there are
timelines and a hearing involved. The matter can also involve the courts. If
you are denied IHSS, here is a little bit of information you should know. To
determine whether you should file an appeal you should ask the question: Is
the county decision appropriate, and are there laws and medical records to
support the appeal? If the person is already receiving IHSS services, file
the request for appeal during the 10 calendar days BEFORE the Notice of
Action is effective. The benefits will not change until there is a hearing
and a decision is issued. A request for hearing MUST be filed within 90
calendar days after the date of the county action or inaction. A written
request for a rehearing must be filed within 30 calendar days of receipt
after the decision is received. A request for a state hearing may be written
or oral and there is a request form on the back of the Notice of Action. The
request for a state hearing should include: the aid program involved (i.e.,
IHSS), the reason for the disagreement with the county action, if an
interpreter is needed and what kind, and a copy of the applicable Notice of
Action.

The IHSS denial challenge process can be very complicated involving
witnesses and evidence. Also, since an appeal to a court of competent
jurisdiction is involved, it is critical that your initial appeal of denial
be based on solid evidence. If you believe you require an IHSS appeal of a
denial or, you are appealing a final decision of an appeal and are prepared
to appeal to a court of competent jurisdiction, you should consider hiring
an attorney.

Can I have a document removed from my child’s education records?

Can I remove a record from my child’s Education File?

Schools can be confusing for parents who are often plagued with bureaucracy and paperwork. What parents are often concerned about is stigmatizing labels and records which can and often will follow your child until they graduate.

What can be considered a stigmatizing record? A few examples might include an inaccurate disciplinary record, a misrepresentation of a fact such as what a parent or student said, an investigation of any kind of student matter which can be placed in the student file. This could also be an inaccurate educational document such as dates of school attendance or grades on report cards. Record requests and record challenges are discussed below.

There are four main sections in the California Education Records Law that pertain
to the access of student records by parents. Sections 49069-49072 highlight a
parent’s rights to inspect and challenge documents, as well as the formal process for having a document removed.

Section 49069
This section of the code establishes in clear terms the parent’s right to
gain access to their child’s student records through a school district or
private school. This section also stipulates that the school district or
school must give access to the records requested in no more than five days
following the request.

Section 49070
This section of the code establishes the parent’s right to challenge any
information in the school records within 30 days of viewing. A dispute may
be filed if the information meets any of the following categories:

(1) Inaccurate.

(2) An unsubstantiated personal conclusion or inference.

(3) A conclusion or inference outside of the observer’s area of

competence.

(4) Not based on the personal observation of a named person with

the time and place of the observation noted.

(5) Misleading.

(6) In violation of the privacy or other rights of the pupil. (Note: This provision also relates to a federal privacy law, which will be discussed in a separate post, called FERPA).

If there is a reason for challenging the records, the superintendent’s
office will meet with the parent and the person who recorded the information
and decide whether or not to keep it the challenged information on record.
If the superintendent agrees with the allegations then the records will be
changed. If the superintendent decides against the challenges then a parent
has 30 days to appeal to the governing board. The governing board will
provide the final decision of whether or not to keep information as part of
the records. If a parent finds their decision unfavorable, they may file an
objection which becomes part of the record until the information is changed
or removed.

Section 49071
This section establishes additional procedures for convening a hearing panel
in the case of a challenge to the records according to Section 49070.
According to this section, if a parent files a challenge then the
superintendent or the governing board may assemble a hearing panel that may
consist of the following people to assist in deliberation:

(1) The principal another public school

(2) A certificated employee appointed by the school or parent

(3) A parent appointed by the superintendent or by the governing

board of the district

The hearing panel will be provided with verbatim copies of all information
and will disclose their findings to either the superintendent or the
governing board, depending on who is officially assessing the claims.

Section 49072

This section establishes a parent’s right to include a statement in the
records about any disciplinary action taken against their child by any
school district employee.

What should be clear is that education records are official documents governed by both state and federal law. If you believe that a records challenge is appropriate, the presentation of your case can often be complicated involving witnesses and evidence. Consider seeking legal advice if you believe that the information placed in your child’s file should be removed based on the factors above. Pay close attention to the time lines listed above as well.

Budget Cuts and Impact on Litigation

As a litigator in civil rights and special education, it is impossible to ignore the impact of the state’s budget woes on litigation.

Often, we’re asked “Should I sue”?

When choosing the litigation route i.e. bringing your case to a Judge and/or Jury to decide, there are so many factors beyond even the facts of your case to consider.  This is because judges and juries are people too. They represent the people who may have been foreclosed upon, or the person who just doesn’t like your tie. These folks are potentially your neighbors or people just like you and your family. They have preconceived notions and ideas.

Yes, it is true that not all cases can avoid going through the court processes, but often times (and the caselaw and rules of court suggest this) the preference is to keep your case out of court – yes I’m an attorney who makes a living out of going to court – but I’m telling you the cost benefit with budget crisis in all aspects of our lives makes litigation a true last resort option

Here are just a few things to consider before you ask “Should I sue”?:

1. Have I tried all informal means of resolving my case by problem solving, considering alternative solutions to resolve my matter or involving a neutral person with experience in your matters such as an attorney or in special education cases, a mediation only option (no attorneys allowed).

2. Is there some other process available to me such as an internal complaint process, a state or federal complaint process or an internally offered mediation process?

3.   Will my potential for “damages” I can obtain through a lawsuit be worth the the benefit? This includes your time (taking off of work to spend 5-10 or more days in court, paying experts etc.), cost (experts, discovery, copies) and attorney’s fees.

4.  What are the risks of losing and your willingness to appeal your case.  In civil rights cases we are seeing a huge sympathy for “broke” states and state entities and civil rights are being harder and harder to win making an appeal a much likelier chance.

5.  If your suing simply to vindicate a right, make sure that you have the financial and emotional staying power to fight your case as long as necessary.

This is not an exhaustive list but it would be doing any person or groups of persons who intend to sue for civil rights litigation – of any kind – not to advise them of these facts.

How the ADA impacts schools

Federal laws which impact schools include, but are not limited to, the ADA, Section 504 and the IDEA. The ADA and Section 504 also cover employment (so teachers and staff). Recently, the ADA was amended. A great article on the web about the changes to the ADA and how this impacts schools can be found at:
http://www.casecec.org/pdf/ADA%20Amendment%20Explanation%2012-14-08–Sue%20Gamm.pdf