Special Education Update


In September 2020, the U.S. Department of Education’s Office of Civil Rights (“OCR”) released a publication, Questions and Answers for K-12 Public Schools In The Current COVID-19 Environment.  Among other things, OCR noted that school districts could waive face coverings for students with disabilities, if certain criteria were met, and school districts, where in-person learning is suspended, should “make individual determinations as to whether students’ IEPs or Section 504 plans need to be revised to ensure . . . a FAPE.”


On July 17, 2020, the California Department of Public Health released information regarding the reopening of schools (found at the following link: https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/COVID-19/Schools%20Reopening%20Recommendations.pdf) and a publication regarding COVID-19 guidance for schools and school-based programs (found at the following link: https://files.covid19.ca.gov/pdf/guidance-schools.pdf).   Governor Newsom also held a press conference.

The State of California will not permit a school or a school district to have in-person instruction if the local health jurisdiction (LHJ) “has been on the monitoring list within the last 14 days”.  If that is the case, “the school must conduct distance learning only, until their LHJ has been off the monitoring list for at least 14 days.” At this time, the majority of counties in the state are not eligible for in-person instruction.  A waiver may be granted for elementary schools, if the request is made by the superintendent and other criteria are met.


On June 8, 2020, the California Department of Education released a new guidebook entitled STRONGER TOGETHER A Guidebook for the Safe Reopening of California’s Public Schools.  It may be found at the following link: https://www.cde.ca.gov/ls/he/hn/documents/strongertogether.pdf.  Information specific to special education is found on page 19.  Other interesting areas include: protective equipment for students (p. 6), instructional scheduling models (p. 12), transportation (p. 41), and meals (p. 43).

The California Department of Education has posted information on its website regarding COVID-19 and special education.  It may be found at the following link: https://www.cde.ca.gov/ls/he/hn/specialedcovid19guidance.asp


Mr. Jewell’s webinar on “Effective Advocacy for Special Needs Children” presented to the Southern California Tri-Counties Branch of the International Dyslexia Association on September 14, 2020 was a success.  Thank you to Regina Richards and all the participants. The webinar can be found at  https://socal.dyslexiaida.org  Click the button for “webinars”.  Click the button for “This Year’s Webinar”.  Click the icon above “2020 Webinars”. Click “Advocacy & IEPs: Effective Advocacy for Special Needs Children”. You will have to provide information to gain access to the webinar.  After you do so, click the screen shot from the presentation.


Mr. Jewell’s presentation on November 2, 2019 at the CHOC Children’s conference “Managing the Mental Health of Children with Chronic Disease: Within the Office, Schools, and Community” was a success.  Thank you to all those at CHOC who helped to make the event possible.


Mr. Jewell’s presentation on “Dyslexia – Understanding Legal Issues and Tools for Success” on November 8, 2018 at Prentice School was a success.  Thank you to the Southern California Tri-Counties Branch of the International Dyslexia Association and Prentice School for making the event possible.


Mr. Jewell’s presentation at the Orange County Chapter of the American Academy of Pediatricians School Health Conference on September 20, 2018 at Prentice School was a success. For more information, contact the American Academy of Pediatricians, Orange County Chapter at www.aap-oc.org.


The Rand Group’s panel discussion with Mr. Jewell and other experts on May 16, 2018 was a success.  Information from the event may be found at hightoweradvisors.com.


Michael E. Jewell is the author of a chapter regarding special education laws in the Handbook of Long Term Care of The Childhood Cancer Survivor (Grace A. Mucci and  Lilibeth R. Torno editors) published by Springer (2015).


Michael E. Jewell was interviewed by Dr. Bill Frea of Autism Spectrum Therapy on the subject of parent advocacy for Autism Spectrum Therapy’s Internet radio program.  The episode is available through this link http://www.voiceamerica.com/episode/60808/planning-for-special-education-and-autism-care

Information for AUTISM SPEAKS walking events is available at www.walknowforautismspeaks.org.

The 9th Circuit Court of Appeals found that a school district was bound to provide the services it had outlined in the IEP (which had been accepted by the parent), even if the services contained an error.  The school district’s unilateral change to the IEP (to correct the error) was a procedural violation which interfered with the parent’s ability to meaningfully participate in and enforce the child’s IEP.  The court also found that when a school district fails to timely file an answer to a due process complaint, the administrative law judge must “order a response and shift the cost of the delay to the school district, regardless of who is ultimately the prevailing party.”  M.C. v. Antelope Valley Union Sch. Dist. (9th Cir. 2017) No. 14-56344.

The 9th Circuit Court of Appeals confirmed the critical role of the parent in the IEP process. Doug C. v. State of Hawaii Dept. of Ed. (9th Cir. 2013) No. 12 – 15079.  In Doug C., a special needs student had been attending a private school funded by the state department of education.  Several IEP dates were set and then moved.  A date was finally set just prior to when the annual IEP was due.  On the date set for the IEP meeting, early in the morning, the child’s father notified the state department of education that he wanted, but was unable to attend the meeting due to illness.  The department and the father discussed rescheduling the meeting, however, a date which occurred in time for the annual IEP and which worked for department staff and the parent could not be found.  The department decided to hold IEP meeting without the father or a representative from the private school the student was attending – the IEP proposed to change the student’s placement to a different school.  The department later convened an IEP meeting with the father and a representative of the private school, however, it still offered the new school placement.  The court held that convening the IEP meeting without the parent who was willing but unable to attend the meeting, denied the child a free appropriate public education.

Parents may be entitled to recover damages from a school district under the Rehabilitation Act of 1973.  In order to prevail on their claims, parents of two autistic daughters in Hawaii would have to show that the school district: failed to provide their children “with the reasonable accommodations of autism-specific education services”; failed to design the children’s “IEPs to meet . . . [their] needs as adequately as the needs of non-disabled students are met”; and acted with deliberate indifference.  Mark H. v. Hamamoto (9th Cir. 2010).

Failing to conduct a full and complete assessment as required by law can render an IEP inappropriate.  A school district which failed to conduct a functional analysis assessment for a student with significant behaviors fell short of assessment requirements and failed to develop an appropriate IEP.  Compton Unified School Dist. v. A.F. (C.D. Cal. 2010).

The National Autism Center published an important report regarding various treatments for Autism Spectrum Disorders.  In its report, the National Autism Center reviewed “the level of scientific evidence available that exists in support of the many educational and behavioral treatments currently available for individuals with Autism Spectrum Disorders”.  “National Standards Report”, National Autism Center (2009), p. 1.  The report can be found at the following link: www.nationalautismcenter.org/pdf/NAC%20Standards%20Report.pdf (** the report may no longer be available at this link)

This information is for general purposes only and is not intended as legal advice.  Any liability that might arise from your use or reliance on this information is expressly disclaimed.  The reader is cautioned to seek the guidance of an experienced attorney when making any decision which might have legal implications.