Audio Taping the IEP: Know Your Rights

Audio Record the IEP Meeting.

While the IDEA, the federal laws protecting special education rights, doesn’t specifically mention audio recording, California law does allow audio recording of an IEP.  Each state may have its own laws related to IEP audio recording.

Know that in California at least, you can audio record an IEP if you give the school district advance notice (at least 24 hours notice in writing).  This can be helpful if you are nervous about getting accurate notes of the meeting and if you want to create a record of what was actually said.  It also can be helpful later on if you get into a dispute with the district.  If you audio record the IEP, the District can also audio record.

Audio recording is allowed in California.

California Education Code §56341.1.(g) states:

(1) Notwithstanding Section 632 of the Penal Code, the parent or guardian or local educational agency shall have the right to record electronically the proceedings of individualized education program team meetings on an audiotape recorder. The parent or guardian or local educational agency shall notify the members of the individualized education program team of his, her, or its intent to record a meeting at least 24 hours prior to the meeting. If the local educational agency initiates the notice of intent to audiotape record a meeting and the parent or guardian objects or refuses to attend the meeting because it will be tape recorded, the meeting shall not be recorded on an audiotape recorder.

The audio recording provisions of the Education Code incorporation provisions of federal law. The code  protects the audio recordings under the Family Educational Rights and Privacy Act specifically incorporating confidentiality provisions from the Act. Any recording of an IEP that is maintained by the school as an education record requires the school district to apply the protections of the Family Educational Right to Privacy Act.

Additionally, pursuant to the Family Education Rights And Privacy Act, the Education Code states that with respect to the audio recording of the IEP meetings, parents have the following rights:

   (i) Inspect and review the audio recordings.

   (ii) Request that the audio recordings be amended if the parent or guardian believes that they contain information that is inaccurate, misleading, or in violation of the rights of privacy or other rights of the individual with exceptional needs.

 

Moreover, to the extent that a school district has a policy about audio recording the IEP, that policy may not be more restrictive than the rights to audio record pursuant to state law and that policy must provide for exceptions to the extent that the audio recording is necessary to comply with the parents right to understand the IEP and make informed decision about the IEP and the IEP process.

 

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Preschool Children with Disabilities

On February 29, 2012 OSEP issued a guidance letter confirming that preschool aged children who qualify for special education under the the Individuals with Disabilities Education Act (IDEA) are entitled to placement in the Least Restrictive Environment (LRE).

Preschool aged children are defined as  3 to 5 years old. Eligible preschool aged children are entitled to all the rights and protections guaranteed under the IDEA. These rights include but are not limited to placement in a preschool setting with typically developing peers. The IEP, a written document governed by the IDEA and most state special education laws, must be developed (in writing) and include an explanation to the extent, if any, to which the child will not participate with nondisabled children in the regular class.

Before a child with a disability can be placed in a more restrictive environment outside of the general education classroom setting, the IEP team must consider whether supplementary aides and services could be provided that would enable the child to benefit form a general educational setting with non disabled peers.If a public school program is available, the local educational agency (LEA) may choose to offer appropriate placement and services in that program. However, if the LEA (usually the school district or some other public agency) does not offer a public preschool program, the LEA must explore all “alternative methods to ensure that the LRE requirements are met for that child”. Some of these methods can include:

1. Enrolling children in preschool programs operated by other public agencies

2. Enrolling preschool children in private preschool programs with non disabled peers

3. Providing for home based services

These services should be provided at no cost to the parents.

The first step in determining eligibility is to notify your LEA in writing requesting an assessment for special education eligibility because you believe your child has a qualifying disability.

This is not intended as legal advice. If you believe you require assistance in obtaining special education services, please contact the Leigh Law Group at 415-399-9155 or help@leighlawgroup.com to set up a free intake.

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The Up’s and Down’s of an Employment Discrimination Case

The Second California Appellate District sitting in Los Angeles issued an opinion yesterday which discusses a host of issues in connection with an employment discrimination and retaliation case, not all of which will be touched upon here.

In McCoy v. Pacific Maritime Association, the plaintiff, McCoy had worked for many years as a clerk at a port facility when she along with other co-workers filed a federal lawsuit for discrimination. That lawsuit was settled and as a result McCoy was promoted.

In her new position, however, McCoy complained of retaliation due to the filing of the previous lawsuit, sexual harassment and related tort claims.  She filed suit and prior to trial, the Defendants moved for summary judgment/adjudication, which is an attempt to resolve a case against a plaintiff prior to trial  The Court granted summary adjudication as to all of McCoy’s claims except for her retaliation claim based on the previous federal lawsuit.  So at that point McCoy experienced the down slope of an adverse decision by a trial judge. But, she is left with her retaliation claim, so the case moves to trial.

Prior to trial, the Defendants filed what are called motions in limine – motions that seek to categorically exclude certain items from being introduced into evidence. The Defendants won on all three motions and excluded evidence of racially derogatory remarks of a supervisor as evidence of retaliation; evidence that other employees had also been retaliated against as a result of the previous federal lawsuit; and evidence as to the claims which the court had summarily adjudicated.  Again, McCoy’s case is trending downward.

Her attorney, likely frustrated with the adverse rulings, decided to push the envelope at trial by referencing matters which were excluded by the trial judge and by showing the jury an inflammatory photograph which had not been previously listed as evidence or shown to counsel for the Defendants.

The attorney’s aggressive gamble worked – at least fleetingly.  The jury returned a verdict for McCoy of $660,000 in economic damages and $540,000 in emotional distress damages.

After that decided upswing, the Plaintiff’s celebration was short lived.  The Defendants filed post-trial motions – another chance for a trial judge to apply the law to a case.  The judge granted motions which allowed one of the defendants off the hook entirely, found that plaintiff had not presented sufficient evidence to prove her retaliation case and, for good measure, granted a new trial in the event an appellate court found sufficient evidence of retaliation.  McCoy’s $1 million+ award is erased with a pen stroke, and she is about as low as one can go in a case.

McCoy then appeals and receives a mixed opinion from the appellate court.  It breathes new life into her case by finding sufficient evidence of retaliation was presented but finds her attorney’s “misconduct” in referring to excluded evidence and making other improper arguments justified a new trial.

So, McCoy’s remedy is to go through trial, again, with the same judge (most likely unless that judge retired or was reassigned), but without the inflammatory evidence presented in the first trial.  Will the next jury be so moved to award her a large verdict?  Time will tell.

The lessons to be learned from McCoy’s ups and downs are not that a person who has been discriminated against or retaliated against should refrain from proceeding to court if necessary to vindicate his or her rights.  The lesson is proceed with realistic expectations of the justice system which involves the interplay between laws which are intended to be predictably applied and discretion of a judge and a jury which are subject to the human condition of varied opinion and judgment which can lead to unpredictability.  An attorney’s role is to navigate that zone of uncertainty and to convince the judge and the jury of the merit of the client’s cause.

The Leigh Law Group is a law firm, based out of San Francisco and Marin County, comprised of attorneys striving to litigate cases in the education law (higher education, special education and general education), employment law, civil rights and business litigation arenas in a way that does does justice to a client’s cause and does not subject clients to unwarranted uncertainty.  That method requires attention to the client’s individual circumstances but also to the realities – to the strengths and weaknesses – of our judicial system.      

Contact:

Leigh Law Group

870 Market Street

Suite 1157

San Francisco, CA 94102

415-399-9155

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Ninth Circuit Clarifies Title IX Gender-Related Retaliation Framework

In Emeldi v. University of Oregon, 2012 U.S. App. LEXIS 5864 (9th Cir. 2012), the Ninth Circuit Court of Appeals issued a decision which applies the analytical framework from retaliation claims under Title VII to gender-related retaliation under Title IX.  Full text of the opinion can be found here: http://www.ca9.uscourts.gov/datastore/opinions/2012/03/21/10-35551.pdf

Emeldi was a doctoral student in the University of Oregon’s College of Education, Department of Special Education.  While a student at UO, Emeldi complained of gender-based discrimination in the form of insufficient support for female students and a lack of female role models in the Special Education department.

In addition, Emeldi submitted evidence that her dissertation chair treated her less favorably than male students.  As a result, Emeldi’s relationship with her dissertation chair soured and she eventually complained to a pair of UO administrators about the disparate treatment she suffered.  After making the complaint, Emeldi’s dissertation chair resigned, and according to Emeldi, recommended that Emeldi not be allowed to complete the Ph.D. program but instead complete a less-prestigious Ed.D. program.

Emeldi then sought a new dissertation chair, but presented evidence that she was unable to find a replacement.  Emeldi eventually abandoned pursuit of her Ph.D., effectively withdrawing from the program.

On review of a grant of summary judgment to UO, the Ninth Circuit acknowledged that Title IX bars gender-based discrimination from federally funded educational institutions and that retaliation against a person who has complained of sex discrimination is a form of gender-based discrimination prohibited by Title IX.

The Court then went on to set forth the standard, for the first time in the Ninth Circuit, that a plaintiff must prove in order to prevail under a Title IX retaliation claim.  The Court joined its “sister circuits” – the First and Second Circuits – in holding that the framework of Title VII retaliation analysis is applicable to Title IX gender retaliation claims.

In order for a plaintiff to prevail under this analysis, a plaintiff must first make out a prima facie case (Latin term lawyers like to use meaning “at first blush” or “at first appearance”) of gender retaliation by showing: (a) that he or she was engaged in protected activity, (b) that he or she suffered an adverse action, and (c) that there was a causal link between the two. This initial burden on the plaintiff is minimal and need not “even rise to the level of preponderance of the evidence.”

If plaintiff carries the minimal burden of establishing a prima facie case, then the defendant must articulate a legitimate, non-retaliatory reason for the challenged action.

Plaintiff then must submit evidence to establish that the legitimate, non-retaliatory reason set forth by the defendant is pretextual – in other words – that a discriminatory reason more likely motivated the defendant rather than the nondiscriminatory reason set forth by the defendant.  The Court acknowledged that oftentimes substantial overlap will exist between the evidence presented to establish a prima facie case of discrimination and the showing required for establishing pretext.

The Court then analyzed whether Emeldi satisfied her burden of establishing a prima facie case.  The Court found, viewing the evidence in a light most favorable to Emeldi as required for ruling on a motion for summary judgment, that “Title IX empowers a woman student to complain, without fear of retaliation, that the educational establishment treats women unequally.”  Emeldi presented evidence of making such complaints and therefore she had engaged in protected conduct – the first prong of a prima facie case.

Next, the Court found that Emeldi suffered adverse action, the second prong, because under the circumstances of this case she justifiably withdrew from the program when she was unable to secure a replacement dissertation chair.

As for the third prong, a causal link between the adverse action and the protected act, the Court found that, at the prima facie stage, the causal requirement is construed broadly so that a plaintiff must show that the protected activity and the adverse action are not “completely unrelated.”  Emeldi was able to show causal connection in three ways: (1) establishing temporal connection between her complaint and her dissertation chair’s resignation; (2) showing that her dissertation chair had in fact been informed of her complaints of gender discrimination; (3) submitting evidence that her dissertation chair had exhibited gender-based animus in other contexts.

UO then submitted evidence to establish that Emeldi was unwilling to follow the research advice of her dissertation chair leading to his resignation.

Emeldi responded with evidence of pretext.  The Court found that the same evidence which established the prima facie case of discrimination, when considered in its totality, also served to establish evidence of pretext.

As a result, the Court reversed the decision of the trial court granting UO summary judgment.  It should be noted that the Court acknowledged that UO presented substantial evidence which could lead a reasonable jury to find against Emeldi at trial, including various accounts that contradicted her version of events, but that for purposes of summary judgment, Emeldi had set forth genuine issues of material fact preventing entry of summary judgment before trial.

The Emeldi case is helpful in clarifying the analysis under which gender-based retaliation claims in the Title IX context are to be decided in courts subject to the Ninth Circuit’s jurisdiction.

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Home Hospital Instruction and the IEP

Home hospital instruction is not meant to replace the rights of special education students to receive an appropriate offer of placement and services. It should never be raised as an option if the placement is based on the child’s category of disability. Your child is entitled to the full panopoly of services and placement.

What is home hospital? The Home and Hospital Instruction Program (California Education Code Section 48206.3) serves students who incur a temporary disability, which makes attendance in the regular day classes or alternative education program impossible or inadvisable.

The purpose of home and hospital instruction is to provide instruction to a student with a temporary disability in the student’s home or in a hospital or other residential health facility, excluding state hospitals.

Temporary disability” means a physical, mental, or emotional disability incurred while a student is enrolled in regular day classes or an alternative education program and after which a student can reasonably be expected to return to regular day classes or an alternative educational program without special interventions.

Notice the word “temporary”. Children who are determined to be eligible for special education services based on any one of the 13 categories of eligiblity should not count their special area of need such as autism, other health impairment etc. as “temporary”.

However, there are circumstances when the IEP team jointly believes that a child will be most appropriately served in the home setting. That is different than home hospital instruction because there it is determined that the child’s needs can appropriately be served in a home setting and that home setting is not meant to be a temporary placement. However, that is not to say that if the child makes progress that moving the child to a less restrictive setting such as at a non public school or public school setting.

Assuming your child is IEP eligible and has still incurred a temorary disability, when making a decision about placing a child in the home setting through an IEP the following questions should be raised by the parents or the IEP team:

1. How long will the home placement last? (note this may depend on your doctor’s own report about when your child is ready to return to the classroom).
3. What are the number of hours of instruction and is that enough to avoid regression?
4. Will the instruction include supports and services such as an aide?
5. How will the delivery of speech and other related services be provided?
6. What is the requirement that an adult be present other than the teacher?
7. How will the management and coordination of classroom work be exchanged between the classroom teacher and the home instructional teacher?

The above are just a few examples of questions to have answered.

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Autism Private Health Insurance Impact on the IEP and ISP

The Autism Private Health Insurance Mandate Reform bill was signed by Governor Brown. The law provides for behavioral treatment services for individuals with autism or pervasive developmental disorder through their private health insurance plans. Each plan is required to keep and maintain an adequate list of behavioral treatment options. However, how will this impact school special education services and regional center services?

Key provisions from the bill:
1. SECTION 1374.73 of the Health and Safety Code:
(a) (1) Every health care service plan contract that provides hospital, medical, or surgical coverage shall also provide coverage for behavioral health treatment for pervasive developmental disorder or autism no later than July 1, 2012.
2. This section shall not affect or reduce any obligation to provide services under an individualized education program, or under an
individualized service plan.

The key here is that school districts must still look to the child’s unique needs in order to determine IEP services. Additionally, Regional Center clients receiving Individual Services Plans cannot use the new law to deny services under an ISP.

From a special education attorney’s perspective practically speaking there may be pro’s and cons at the IEP and ISP meetings. A few examples of pros and cons:

Good news first:
1. With highly effective behavioral therapy showing progress in therapy outside of the school setting, schools and regional centers will be less likely to be able to speculate that ABA therapy isn’t required for your child to learn or to benefit.
2. With a highly effective behavioral therapy program in place, you now have new person to consider inviting to your IEP and ISP meetings. This person can provide valuable information to the participants and be a wonderful supporter of more behavioral therapy.
3. The law now states firmly that behavioral therapy is an evidence based form of treatment for autism. Let’s hope this takes us out of the dueling expert battles we see in special education due process hearings that ABA is not scientifically based and proven as a method helpful for children with autism.

Now, the cons:
1. The coin flips both ways, if a child who is not making progress using behavior therapy fails to meet goals, the question then is whether this is evidence that ABA is not the appropriate method. Obviously, a school district or regional center looking to avoid ABA therapy in the schools will want to use this information to state that the treatment isn’t appropriate. Keep in mind, however, that the new health law requires that the goals set in the program be reviewed every six months. A tip is to make sure you are actively involved in the program- reviewing data, goals and progress with your provider.
2. District’s or Regional Centers may attempt to separate this sort of therapy as “clinical” in nature rather than being “naturalistic”. Believe me- our firm has seen special education directors make this argument time and time again- and unfortunately, cases have been ruled in favor of district’s on this argument. Make sure you and the behaviorist are prepared at IEP and ISP meetings to tie in the program’s benefits to those that could equally be matched in a school setting.

This list is not meant to be exhaustive and as we go foward with following the progress of this law, we will update this post. Meanwhile, be sure to visit us on our website for more updates.

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California Mental Health Services

The Gov. proposed suspending the AB 3632, that places a requirement on counties to provide mental health services for special education students. School Districts would provide the services likely on a phased in approach. Stay tuned for more…

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