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April 2010 Archives

California School Psychologist Role

What can school psychologists do? Is there a duty of confidentiality if they are providing services to your child? What if your child is receiving special education by a school psychologist...what is their role then?The California Association of School Psychologists has several free publications available to answer these questions. Visit : on publications and make sure you review the code of ethics.

Special Education College Admission

Are you the parent of a disabled child who is considering college? Or, are you a disabled adult considering university admission? A recent email from a former client who has now been admitted to college notified us she was admitted under the Admission by Exception Policy offered by many campuses. Here is a sample polic...y:

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:

California Disability Rights IHSS Services

IHSS stands for In-Home Supportive Services. IHSS provides services toadults and children with developmental disabilities who live in thecommunity 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, preparationof food, laundry, meal cleanup, menu planning, and restaurant mealallowance.-Other services such as heavy cleaning, protective supervision, respitecare, teaching and demonstration, transportation, and yard hazard abatement.If you want to know if you are eligible visit: those who are trying to receive benefits for IHSS, a denial can bestressful.The process for challenging a denial can be daunting because there aretimelines and a hearing involved. The matter can also involve the courts. Ifyou are denied IHSS, here is a little bit of information you should know. Todetermine whether you should file an appeal you should ask the question: Isthe county decision appropriate, and are there laws and medical records tosupport the appeal? If the person is already receiving IHSS services, filethe request for appeal during the 10 calendar days BEFORE the Notice ofAction is effective. The benefits will not change until there is a hearingand a decision is issued. A request for hearing MUST be filed within 90calendar days after the date of the county action or inaction. A writtenrequest for a rehearing must be filed within 30 calendar days of receiptafter the decision is received. A request for a state hearing may be writtenor oral and there is a request form on the back of the Notice of Action. Therequest for a state hearing should include: the aid program involved (i.e.,IHSS), the reason for the disagreement with the county action, if aninterpreter is needed and what kind, and a copy of the applicable Notice ofAction. The IHSS denial challenge process can be very complicated involvingwitnesses and evidence. Also, since an appeal to a court of competentjurisdiction is involved, it is critical that your initial appeal of denialbe based on solid evidence. If you believe you require an IHSS appeal of adenial or, you are appealing a final decision of an appeal and are preparedto appeal to a court of competent jurisdiction, you should consider hiringan attorney.

California Public Schools Distinguished Schools Chief Jack O'Connell Announces2010 California Distinguished SchoolsSACRAMENTO — State Superintendent of Public Instruction Jack O'Connell today announced 484 exemplary California public elementary schools were selected as 2010 California Distinguished Schools. The list of schools may be viewed online.

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 pertainto the access of student records by parents. Sections 49069-49072 highlight aparent’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 togain access to their child's student records through a school district orprivate school. This section also stipulates that the school district orschool must give access to the records requested in no more than five daysfollowing the request. Section 49070 This section of the code establishes the parent's right to challenge anyinformation in the school records within 30 days of viewing. A dispute maybe 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'soffice will meet with the parent and the person who recorded the informationand decide whether or not to keep it the challenged information on record.If the superintendent agrees with the allegations then the records will bechanged. If the superintendent decides against the challenges then a parenthas 30 days to appeal to the governing board. The governing board willprovide the final decision of whether or not to keep information as part ofthe records. If a parent finds their decision unfavorable, they may file anobjection which becomes part of the record until the information is changedor removed. Section 49071 This section establishes additional procedures for convening a hearing panelin the case of a challenge to the records according to Section 49070.According to this section, if a parent files a challenge then thesuperintendent or the governing board may assemble a hearing panel that mayconsist 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 informationand will disclose their findings to either the superintendent or thegoverning board, depending on who is officially assessing the claims. Section 49072 This section establishes a parent's right to include a statement in therecords about any disciplinary action taken against their child by anyschool 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.

Free IEP training videos

This is one of the only websites we've discovered that actually has some (fake) but free IEP videos giving you an idea of what to expect at an IEP. A great learning tools.

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 optionHere 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:

School closures and special education to article:A Call To Action From a Concerned ParentI am a public school father. I have a child in special education and a child in general education. I have received papers from a source at Wilbur Ave. Elementary that glaringly reveal the plans and completely callous attitude towards our Special Needs program in the public schools by Superintendent Ramon Cortines. The documents are damning for so many reasons. The planned changes show a complete lack of preparation and thought. The plans illustrate the desperation of LAUSD to cut costs at all costs. It seems that there is one thing that has been conveniently left out of all of the proposed cuts. That would, of course, be any thought for our children.

Ninth Circuit Ruling: Special Education Student Not Protected By Furlough of Teachers

NINTH U.S. CIRCUIT COURT OF APPEALGovernment Law-Where state decided to shut down public schools and furlough teachers on17 dates, and student sought an injunction claiming violation of thestay-put provision of the Individuals with Disabilities Education Act,which provides that a child shall remain in the then-current educationplacement during the pendency of any proceedings, state teachersassociation, which signed contract agreeing state may implementfurloughs, was not a necessary party since relief requested--keepingschools open, but not addressing staffing--would not render contractillegal and would not affect a legally protected interest held by theassociation. Plaintiff challenging shutdowns was not required to exhaustadministrative remedies given the time-sensitive nature of the right toremain in the current educational placement, which the IDEA was designedto protect. District court considering injunction request was notrequired to apply the stay-put provision's automatic injunction standardrather than the preliminary injunction balancing test, and court did noterr in concluding that the balance of the equities did not tip in favorof the plaintiffs. Plaintiff was unlikely to prevail on the meritsbecause IDEA's stay-put provisions do not apply to system-wide changesin public schools that affect disabled and nondisabled children alike,and district court did not err in denying injunction.N. D. v. State of Hawaii Department of Education - filed April 5,2010Cite as 09-17543Full text<>

Why School Bullying Should Be Taken Seriously

Today a tragic post about a 15 year old girl landed in my email. The girl committed suicide as the result of bullying.In California, legislation has been enacted to prevent bullying in schools, however, as parents navigating the world of bullying has become complicated given all of the social media outlets out there for posting harassing and inappropriate comments.The relevant laws related to bullying include, but are not limited to:
§ 48900.4. Additional grounds for suspension or expulsion; harassment, threats, or intimidationIn addition to the grounds specified in Sections 48900 and 48900.2, a pupil enrolled in any of grades 4 to 12, inclusive, may be suspended from school or recommended for expulsion if the superintendent or the principal of the school in which the pupil is enrolled determines that the pupil has intentionally engaged in harassment, threats, or intimidation, directed against school district personnel or pupils, that is sufficiently severe or pervasive to have the actual and reasonably expected effect of materially disrupting classwork, creating substantial disorder... .
In addition, the students in the above scenario are facing criminal charges.
For many children, communicating to their parents or getting help is a nonexistent option. For children who are disabled, sensitive to social norms or simply afraid to be different, bullying can rise to the level of trauma.
We hope that parents, educators, counselors and all adults who work with children in our schools take very seriously all forms of bullying whether it is in writing or it involves some physical abuse.
While this is not intended as legal advice, if you believe that your child may be the subject of bullying consider the following:
1. If you are the  parent of a child with special needs, consider asking for supports in the IEP such as extra counselling, behavior services or supervision during unstructured time.
2. If your child is not disabled, and you are aware of bullying or suspect your child is being bullied, immediately contact the school administration in writing and file a formal complaint.
3. Sometimes it is necessary to seek a restraining order and this can be done through the Court system. See e.g.
This post is not intended as legal advice. If you believe you require legal advice, you should seek a consultation or to retain an attorney.

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