9TH CIRCUIT CASE RULES GIVES STRONG ADVOCACY TOOLS TO FAMILIES

On September 13, 2017, the 9th Circuit Court of Appeals issued an opinion in the case R.E.B. v. State of Hawaii Dept. of Education that will provide strong advocacy tools to families. J.B. was a Kindergarten student transitioning to public kindergarten from an ABA-based private school. The court held that the Hawaii Department of Education violated the IDEA when it failed to:

• include transition services from a private, ABA-based preschool to public school;
• specify ABA as a teaching method;
• specify the LRE for services during the school breaks as well as school year; and
• provide more specificity of mainstreaming services.

Transition Services to Ease Transition between Institutions or Programs: The court extended transition services, as a “supplementary aid and services,” beyond students exiting the public school system. The court held that transitions services must be included in the IEP when they become necessary for a disabled child to be educated and participate in new academic environments.

IEP Must Specify LRE During the Regular and Extended School Year: The court looked at two things. First, does the IEP include an explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class. The IEP cannot leave the details of mainstreaming up to the general and special education teacher outside the IEP process. Second, does the IEP specify the anticipated frequency, location, and duration of the services and modifications. The language must allow the parent to use the IEP as a blueprint for enforcement. In order to avoid challenges, the school district must make a formal, specific offer.

Methodology May be Necessary in an IEP: The court rejected argument that the IEP did not need to address instructional methodology, stating “when a particular methodology plays a critical role in the student’s educational plan, it must be specified in the IEP rather than left up to the individual teachers’ discretion.” The court clarified that inclusion of a specific methodology does not preclude the school from using other methodologies. It acknowledged that writing it in would ensure the methodology would be used consistently.

Parents, advocates, and attorneys alike will be able to use this ruling to advocate during IEP meetings. I applaud the 9th circuit for clarifying these principles.

If you have any legal questions regarding if or how this case applies to your particular situation, feel free to contact Kristin at 925-551-1041.

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