Case3:05-cv-04077-MMC Document1 Filed10/11/05 Page1 of 33

1 James M. Wood (SBN 58679)

Kenneth J. Philpot (SBN 62401)

2 Michael F. McCabe (SBN 111151)

Kurtis J. Kearl (SBN 114977) 3 Jayne E. Fleming (SBN 209026)
REED SMITH LLP

ORIGINAL FILED

4 1999 Harrison Street, Suite 2400 Oakland, CA 94612-3572

oc·r 1 1 zoos

5 Telephone: 510.763.2000 Facsimile: 510.273.8832
6 jmwood@reedmith.com

RICHARD W. WIG:KING CLERK U.S. D!STR!CI COURT,
NORtHERN QISTRIQT Qf QAb\FQRNIA

kphilpot@reedsmith.com

7

Arlene M_ayerson (SBN 79310)

8 Larisa Cummings (SBN 131076)

DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, INC.

9 2212 Sixth Street

Berkeley, CA 94710

10 Telephone: 510.644.2555

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Facsimile: 510.841.8645 lcummings@dredf.org

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

K.C., by and through Erica C., her guardian, A.A., by and through Stacey A., her guardian, M.C., by and through Laurie C., her guardian, K.F., by and through Sheree F., her guardian, each one individually and on behalfof all other

Case No.
CIVIL RIGHTS COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (CLASS ACTION)

similarly situated children, and the AMERICAN

18 DIABETES ASSOCIATION, an organization, DEMAND FOR JURY TRIAL

19

Plaintiffs,

20

vs.

21 JACK O'CONNELL, in his official capacity as Superintendent of Public Schools For the State of
22 California; RUTH E. GREEN, GLEE JOHNSON, ALAN BERSIN, RUTH BLOOM,
23 YVONNECHAN,DONALDG.HSHE~ KENNETH NOONAN, JOE NuNEZ,
24 BONNIE REISS, and JONATHAN WILLIAMS, each in his or her official capacity
25 as a member of the Board of Education of the State of California; THE BOARD OF
26 EDUCATION OF THE STATE OF CALIFORNIA; the CALIFORNIA
27 DEPARTMENT OF EDUCATION; ROBERT KESSLER, in his official capacity as.
28 Su erintendent for San Ramon Valle Unified

Civil Rights Complaint For Declaratory And Injunctive Relief (Class Action)

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Case3:05-cv-04077-MMC Document1 Filed10/11/05 Page2 of 33

1 School District; JOAN BUCHANAN, NANCY

PETSUCH, BILL CLARKSON, PAUL

2 GARDNER and GREG MARVEL, each in his

or her official capacity as a member of the Board

3 of Trustees of the San Ramon Valley Unified

School District; the BOARD OF TRUSTEES

4 OF THE SAN RAMON VALLEY UNIFIED

SCHOOL DISTRICT; the SAN RAMON

5 VALLEY UNIFIED SCHOOL DISTRICT;

DOUGLAS GEPHART, in his official capacity

6 as the Superintendent of the Fremont Unified

School District; PEGGY HERNDON, LARRY

7 SWEENEY, NINA MOORE, GUY

EMANUELE, IVY WU, each in his or her

8 official capacity as a member of the Board of

Trustees of the Fremont Unified School District;

9 the BOARD OF TRUSTEES OF THE

FREMONT UNIFIED SCHOOL DISTRICT;

10 the FREMONT UNIFIED SCHOOL

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INTRODUCTION

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1. This action is commenced to compel San Ramon Valley Unified School District and

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<( 17 its Board of Trustees (collectively "SRVUSD"), the Fremont Unified School District and its Board

18 of Trustees (collectively "FUSD"), the California Department of Education, its Board and the State

19 Superintendent of Public Instruction (collectively "CDE"), to provide to every eligible child with

20 diabetes living within each defendant's respective jurisdiction a free and appropriate public

21 education in the least restrictive environment as required by Section 504 of the Rehabilitation Act of

22 1973, 29 U.S.C. § 794 ("Section 504"), Title II ofthe Americans with Disabilities Act, 42 U.S.C.

23 § 12131 et seq. ("Title II"), the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et

24 seq. (amended by Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No.

25 108-446, Title I) ("IDEA"), and other related federal laws and regulations. The named Plaintiffs,

26 who bring this lawsuit as a class action on behalf of all similarly situated school children in grades

27 Kindergarten through Twelve within the jurisdiction of California's public schools, have diabetes,

28 are in need of related services, and are persons with a "disability" within the meaning of applicable

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Civil Rights Complaint For Declaratory And Injunctive Relief (Class Action)

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Case3:05-cv-04077-MMC Document1 Filed10/11/05 Page3 of 33

1 provisions of Section 504 and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et

2 seq. ("ADA"), in that the condition and effects of their diabetes substantially limit one or more

3 major life activities. In addition, some of these individuals are eligible for special education and

4 related services under IDEA. The American Diabetes Association, is an organizational plaintiff on

5 behalf of its members.

6

2. Diabetes is one of the most common chronic diseases in school-aged children,

7 affecting about 206,000 young people nationwide in 2002. About 1 in every 400 to 500 children

8 and adolescents has type 1 diabetes (formerly known as juvenile diabetes). The incidence of type 2

9 diabetes, formerly known as adult onset diabetes, is rising among school-aged children.

10

3. Both type 1 and type 2 diabetes present serious risks to school-aged children and

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require careful monitoring and treatment. To maintain health and to prevent serious and potentially

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fatal consequences, diabetes must be managed 24 hours a day, 7 days a week. Treating diabetes

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requires a careful balancing of insulin intake, food, and physical activity to keep blood glucose levels within the normal range. Blood glucose levels must be frequently monitored and appropriate treatment responses (such as administering insulin or eating a snack) must be taken depending on

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the measured glucose level. For most school children with type 1 diabetes, blood glucose levels

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18 insulin pump) must be given during school hours. In addition to blood glucose monitoring, some

19 students with type 2 diabetes also require insulin and/or oral diabetes medications during the school

20 day. In many instances children with diabetes, because of their age or other condition, need

21 assistance throughout the school day in managing their condition to maintain their health and well-

22 being.

23

4. Recent surveys conducted by the California PTA suggest that California schools with

24 full-time nurses fell from 7 percent in 1998 to 5 percent in 2003 and schools with no nurse at all

25 increased to 26 percent in 2003. Schools with a part-time non-medical employee to handle student

26 health care increased in 2003 from 44 percent to 66 percent. Most school nurses in districts that do

27 provide them are obligated to service several schools within one district.

28

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Case3:05-cv-04077-MMC Document1 Filed10/11/05 Page4 of 33

1

5. The assistance required by school children with diabetes can be provided by school

2 nurses or by non-medical school personnel who have been adequately trained by health care

3 professionals, or other qualified individuals with expertise or training in the care and treatment of 4 diabetes in youth. Indeed, school personnel ,are regularly trained to assi~t in the monitoring of a

5 student's diabetes, which include checking glucose levels, administering insulin, and responding to

6 emergency situations, all pursuant to the regimen prescribed by the student's health care team

7 (usually contained in a written DMMP or physician's orders). There are at present a number of

8 California schools that are meeting the needs of their students with diabetes in grades Kindergarten

9 through Twelve by providing diabetes-related care, services and treatment, particularly by allowing

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trained non-medical personnel to administer insulin and to take appropriate action in emergency situations.
6. In violation of Section 504, the ADA, IDEA and applicable federal regulations, SRVUSD and FUSD fail to provide sufficient policies, programs, plans and practices to meet the needs of students with diabetes in grades Kindergarten through Twelve. Specifically, SRVUSD and FUSD refuse to assign any school personnel to assist students with the injection of insulin, as needed, despite the fact that students with type 1 diabetes, and some students with type 2 diabetes, require insulin to survive and, without access to insulin during the school day, are at risk of serious,

18 and possibly fatal, short-term consequences and long-term health complications.

19

7. CDE is responsible for ensuring that all children with disabilities in the State receive

20 a free appropriate public education, including school health services. CDE exercises this

21 responsibility through investigation and monitoring, and sanctions, including mandating corrective

22 action, withholding of funds and litigation. CDE has .failed to ensure that children with diabetes in

23 California have the services they need to safely attend school and has failed to investigate and

24 monitor school districts' compliance with federal law requiring such services.

25

8. To ensure that Plaintiffs receive a free and appropriate public education in the least

26 restrictive environment as required by Section 504, the ADA, IDEA, and applicable federal

27 regulations, Plaintiffs· seek the following relief in general (stated more specifically in the prayer

28 below): an injunction compelling (1) SRVUSD and FUSD to develop appropriate diabetes policy

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Civil Rights Complaint For Declaratory And Injunctive Relief (Class Action)

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Case3:05-cv-04077-MMC Document1 Filed10/11/05 Page5 of 33

1 and to offer and provide a sufficient number of adequately trained school personnel to check

2 students' blood glucose levels, monitor students for symptoms ofhypoglycemia (low blood glucose)

3 and hyperglycemia (high blood glucose), and administer insulin and glucagon or other treatment as

4 per a student's written diabetes medical management plan ("DMMP") developed in conjunction

5 with the student's family and treating physician, and (2) CDE to design and implement a written

6 policy, program or directive that adequately addresses the needs of students with diabetes in grades

7 Kindergarten through Twelve, to investigate all complaints regarding diabetes care and services, and

8 to regularly monitor and enforce implementation of policies and directives concerning such care.

9

JURISDICTION

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9. This Court has jurisdiction under 28 U.s.c: § 1343(a)(3) and (4), because this is an action to redress the deprivation under Section 504, the ADA, and IDEA. Because this action arises under these laws, this Court also has jurisdiction under 28 U.S.C. § 1331.
VENUE 10. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b) as some of the Defendants reside in this district and a substantial part of the events or omissions giving rise to this action arose in the counties of Contra Costa and Alameda, which are both located within this district.

18

INTRADISTRICT ASSIGNMENT

19

11. This action must be assigned to the San Francisco or Oakland Divisions of this

20 District pursuant to Local Rule 3-2(d) because a substantial part of the events or omissions giving

21 rise to this action arose in the counties of Contra Costa and Alameda.

22 I II II

23 IIIII

24 IIIII

25 IIIII

26 IIIII

27 IIIII

28 IIIII

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1

THE PARTIES

2

Plaintiffs

3

12. Plaintiff K.C. is eleven years old. K.C. resides with her parents in Danville, in

4 Contra Costa County, California, and comes within the jurisdiction of Defendants SRVUSD and

5 CDE. K.C. has type 1 diabetes, bi-polar disorder, and dyslexia and other learning disabilities, each

6 of which substantially limits her participation in major life activities, including eating, learning and

7 caring for herself. K.C. has a disability that entitles her to receive special education and related

8 services within the meaning of IDEA, Section 504 and the ADA. SRVUSD and CDE have denied

9 K.C. her right to a free and appropriate public education because SRVUSD has failed to include

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diabetes care or a specialized physical DMMP in K.C.'s Individualized Education Program ("IEP") and because K.C. cannot safely attend school without written assurances that her blood glucose will be checked, that she will be given sufficient opportunities to eat, and that she will be given insulin and/or glucagon to treat her diabetes in accordance with the written DMMP determined by her treating pediatric endocrinologist. K.C. brings this action by and through her guardian- her mother, Erica C.
13. Plaintiff A.A. is five years old. A.A. resides with her parents in Danville, in Contra Costa County, California, and comes within the jurisdiction of Defendants SRVUSD and CDE.

18 A.A. has type 1 diabetes, which substantially limits her major life activities, including eating,

19 learning and caring for herself and entitles her to receive related services; she is therefore a child

20 who has a disability within the meaning of Section 504, the ADA and possibly IDEA. SRVUSD

21 and CDE have denied A.A. her right to a free and appropriate public education because school

22 district officials have refused to provide needed services and because she cannot safely attend school

23 without written assurances that her blood glucose will be checked, that she will be given sufficient

24 ·opportunities to eat, and that she will be given insulin and/or glucagon to treat her diabetes in

25 accordance with the written DMMP determined by her treating pediatric endocrinologist. A.A.

26 brings this action by and through her guardian- her mother, Stacey A.

27

14. Plaintiff M.C. is five years old. M.C. resides with her parents in Danville, in Contra

28 Costa County, California, and comes within the jurisdiction of Defendants SRVUSD and CDE.

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Civil Rights Complaint For Declaratory And Injunctive Relief (Class Action)

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Case3:05-cv-04077-MMC Document1 Filed10/11/05 Page7 of 33

1 M.C. has type 1 diabetes, which substantially limits her major life activities, including eating,

2 learning, and caring for herself and entitles her to receive related services; she is, therefore, a child

3 who has a disability within the meaning of Section 504, the ADA and possibly IDEA. SRVUSD
and 4 and CDE have denied M.C. her right to a free appropriate public education because school

5 district officials have refused to fully provide needed services and because she cannot safely attend

6 school without written assurances that her blood glucose will be checked, that she will be given

7 sufficient opportunities to eat, and that she will be given insulin and/or glucagon to treat her diabetes

8 in accordance with the written DMMP determined by her treating pediatric endocrinologist. M.C.

9 brings this action by and through her guardian - her mother, Laurie C.

10

15. Plaintiff K.F. is 7 years old. K.F. resides with her parents in Fremont, Alameda

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County, California, and comes within the jurisdiction of Defendants FUSD and CDE. K.F. has type

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1 diabetes, which substantially limits her major life activities, including eating, learning and caring

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for herself and entitles her to receive related services; she is, therefore, a child who has a disability within the meaning of Section 504, the ADA and possibly IDEA. FUSD and CDE have denied K.F.

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her right to a free and appropriate public education because school district officials have refused to

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provide needed services and because she cannot safely attend school without assurances that her

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18 be given insulin and/or glucagon to treat her diabetes in accordance with the written DMMP

19 determined by her treating pediatric endocrinologist. K.F. brings this action by and through her

20 guardian, Sheree F.

21

16. Plaintiff American Diabetes Association is a nationwide, nonprofit, voluntary health

22 organization founded in 1940 and made up of persons with diabetes, health professionals who treat

23 persons with diabetes, research scientists and other concerned individuals. The mission of the

24 Association is to prevent and cure diabetes and· to improve the lives of all people affected by

25 diabetes. The Association is the predominant non-governmental organization that deals with the

26 treatment and impact of diabetes. With over 435,000 general members, nearly 18,000 health

27 professional members, and over 1,000,000 volunteers, the Association is the largest voluntary health

28 organization addressing diabetes-related concerns. The Association establishes, reviews and

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Case3:05-cv-04077-MMC Document1 Filed10/11/05 Page8 of 33

1 maintains the most authoritative and widely followed clinical practice recommendations, guidelines

2 and standards for the treatment of diabetes. The Association publishes the .most influential

3 professional journals concerning the treatment of diabetes and developments in diabetes research.

4 Among the Association's principal concerns is the fair and equitable treatment of persons with

5 diabetes. The failure of defendant CDE to monitor and enforce the rights of children with diabetes

6 to adequate medical care and appropriate aids and services in California public schools will cause

7 the Association to devote its resources to remedying this problem, including counseling of members

8 of the Association in the San Ramon and Fremon~ areas, and in other areas of California, on

9 addressing the inadequate care and accommodations and monitoring of the treatment of members of

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the Association or their family members. The Association will also s.eek to ensure that students with diabetes in grades Kindergarten through Twelve. receive adequate care and services while at school. Plaintiff American Diabetes Association sues on its own behalf, on behalf of the school children with diabetes to whom it provides services, and on behalf of its members. Neither the claim asserted, nor the relief requested, requires the participation of the Association's individual members in the lawsuit.
Defendants 17. Defendant Jack O'Connell ("O'Connell") is the Superintendent of Public Instruction

18 for the State of California. It is Defendant O'Connell's duty to oversee the operation of all public

19 schools in California, to execute policies that implement federal laws regarding the provision of

20 education to children in California, including those which guarantee equality of educational

21 opportunity to all children, to monitor compliance of public schools with such laws, and to ensure

22 that violations of such laws in public schools are promptly investigated and corrected. Defendant

23 O'Connell is sued only in his official capacity.

24

18. Defendants Ruth E. Green, Glee Johnson, Alan Bersin, Ruth Bloom, Yvonne Chan,

25 Donald G. Fisher, Kenneth Noonan, Joe Nufiez, Bonn~e Reiss and Jonathan Williams are members

26 of the Board of Education for the State of California (collectively the "Members of the Board of

27 Education"). Defendant Members of the Board of Education are being sued only in their official

28

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1 capacities. The Board of Education is an elected body responsible for setting policy for CDE and

2 ensuring that such policy is properly implemented.

3

19. Defendant California Department of Education is the governmental entity created

4 and mandated to oversee the operation of public schools in the State of California. It is the

5 department's responsibility to ensure that all children in the State of California receive education

6 services pursuant to federal laws and regulations.

7

20. Defendants O'Connell, the California Department of Education, the Members of the

8 Board of Education for the State of California and the Board of Education for the State of California

9 were fully informed, or should have been informed had they fulfilled their duty, concerning the

10 failure of SRVUSD and FUSD to provide to all eligible children with diabetes a free and

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collectively referred to as the "CDE."

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21. Defendant Robert Kessler is the Superintendent of the San Ramon Valley Unified School District. Defendant Kessler is appointed by the Board of Trustees of the School District to

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implement policies created by the Board of Trustees and/or mandated by federal laws and

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regulations. Defendant Kessler is responsible for ensuring that children in the School District are

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18 Defendant Kessler is also responsible for ensuring that all eligible children with diabetes are

19 provided a free appropriate public education including special education and related services in

20 compliance with federal laws and regulations. Defendant Kessler is sued only in his official

21 capacity.

22

22. Defendants Joan Buchanan, Nancy Petsuch, Bill Clarkson, Paul Gardner, and Greg

23 Marvel are members of the Board of Trustees of the San Ramon Valley Unified School District

24 (collectively "Members of the Board of Trustees of the San Ramon Valley School District").

25 Defendant Members of the Board of Trustees are sued only in their official capacities. The Board of

26 Trustees of the San Ramon Valley Unified School District retains ultimate responsibility for the

27 education of the School District's students.

28

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Case3:05-cv-04077-MMC Document1 Filed10/11/05 Page10 of 33

1

23. Defendant San Ramon Valley Unified School District is a government agency

2 responsible for providing school children full and equal access to the public education programs and

3 activities it offers in compliance with the requirements of federal laws and regulations. On

4 information and belief, it is chartered and incorporated under California law. Its responsibilities

5 include making and implementing educational decisions for the schools within its jurisdiction.

6

24. Defendants Kessler, the Members of the Board of Trustees of the San Ramon Valley

7 Unified School District, the Board of Trustees of the San Ramon Valley Unified School District and

8 the San Raillon Valley Unified School District are collectively referred to as the "SRVUSD."

9

25. Defendant Douglas Gephart is the Superintendent of the Fremont Unified School

10 District. Defendant Gephart is appointed by the Board of Trustees of the School District to

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provided equal access to public education programs and activities offered in the School District. Defendant Gephart is also responsible for ensuring that all eligible children with diabetes are

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provided a free appropriate public education including special education and related services in

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18

26. Defendants Peggy Herndon, Larry Sweeney, Nina Moore, Guy Emanuele, and Ivy

19 Wu are members of the Board of Trustees of the Fremont Unified School District (collectively

20 "Members of the Board of Trustees of the Fremont Unified School District"). Defendant Members

21 of the Board of Trustees of the Fremont Unified School District are sued only in their official

22 capacities. The Board of Trustees of the Fremont Unified School District retains ultimate

23 responsibility for the education of the School District's students.

24

27. Defendant Fremont Unified School District is a government agency responsible for

25 providing school children full and equal access to the public education programs and activities it

26 offers in compliance with the requirements of federal laws and regulations. On information and

27 belief, it is chartered and incorporated under California law. Its responsibilities include making and

28 implementing educational decisions for the schools within its jurisdiction.

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1

28. Defendants Gephart, the Members of the Board of Trustees of the Fremont Unified

2 School District, the Board of Trustees of the Fremont Unified School District and the Fremont

3 Unified School District are collectively referred to as the "FUSD."

4

29. Defendant school districts receive federal financial assistance.

5

30. Plaintiffs are informed and believe and therefore allege that each of the Defendants is

6 responsible for the pattern and practice of events herein alleged in this Complaint, or is a necessary

7 party for obtaining appropriate relief. In performing each of the acts alleged below, and in their

8 failure tocarry out their legal responsibilities as set forth below, each Defendant acted jointly or

9 individually as agents for each and for all other Defendants. The injuries inflicted upon Plaintiffs,

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and each of them, occurred because of the actions and omissions of each and all of the Defendants. PLAINTIFF CLASS ACTION ALLEGATIONS
31. This action is maintainable as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure. With respect to injunctive and declaratory relief sought in this Complaint, Plaintiffs bring this action not only on their own behalf, but on behalf of all persons similarly situated.
32. . The class that Plaintiffs seek to represent is composed of all children in grades Kindergarten through Twelve with diabetes who are within the jurisdiction of California's public

18 schools and who are entitled to diabetes care and management but are not receiving such mandated

19 school health services that would enable them to participate equally and safely in school ("Plaintiff

20 Class").

21

33. This class is so numerous that joinder of all members is impracticable and the

22 disposition of their claims in a class action will benefit the parties and the Court.

23

34. There are questions of law and fact common to the Plaintiff Class. The claims of the

24 Plaintiff Class representatives are typical of the claims of the Plaintiff Class. Plaintiffs will fairly

25 and adequately protect the interests of the Plaintiff Class. Plaintiffs are represented by experienced

26 counsel who will adequately represent the interests of the Plaintiff Class.

27

28

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1

35. Defendants, and each one of them, have acted and refused to act on grounds

2 applicable to the entire Plaintiff Class, thereby making it appropriate that final injunctive relief or

3 corresponding declarative relief be awarded with respect to the Plaintiff Class as a whole.

4

STATEMENT OF FACTS

5

36. Diabetes is a non-curable, serious, chronic disease that prevents the body from

6 producing or properly using insulin, a hormof!.e that is needed to convert glucose, starches, and other

7 food into energy required for daily life. Insulin, a hormone produced by the pancreas, helps the

8 body convert food into energy. ·In people with diabetes, either the pancreas does not make enough

9 insulin or the body cannot use insulin properly. Type 1 diabetes occurs when the body destroys the

10 cells in the pancreas responsible for producing insulin, rendering the body unable to produce this

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properly use insulin. If insulin is not present, cells cannot convert the glucose from the food that a

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consequences. Even when a person with diabetes gets the insulin he or she needs to survive, longterm risks remain. Over time, high blood glucose levels can cause blindness, heart disease, stroke,

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37. Diabetes can cause serious and possibly fatal consequences in school-aged children.

18 To avoid these consequences, many students with diabetes in grades Kindergarten through Twelve

19 are now on treatment regimens which require 3 to 4 or more insulin administrations per day (some

20 of which must be given during school hours). In addition to routine insulin administration, students

21 may need to take insulin to. treat high blood glucose levels whenever they occur. The proper insulin

22 dosage to be given at a particular time will vary based on factors including current blood glucose

23 levels, anticipated meals and snacks, and anticipated physical activity levels. How insulin dosages

24 should be calculated is ordinarily specified by a child's physician in a written DMMP.

25

38. Low blood glucose, i.e., hypoglycemia, is the most common short-term health

26 problem for students with diabetes in grades Kindergarten through Twelve who require insulin. It

27 occurs when the body gets too much insulin, too little food, a delayed meal, or more than the usual

28 amount of exercise. Symptoms of mild to moderate hypoglycemia include tremors, sweating, light-

-11Civil Rights Complaint For Declaratory And Injunctive Relief (Cla~s Action)

... ' '

Case3:05-cv-04077-MMC Document1 Filed10/11/05 Page13 of 33

1 headedness, irritability, confusion and drowsiness. Mild to moderate hypoglycemia results in

2 impaired thinking ability. A student with this degree of hypoglycemia needs to ingest carbohydrates

3 promptly to increase the blood glucose level. Depending on the severity of the hypoglycemia and

4 whether the student's mental and physical states are altered as a result, the student may require

5 assistance with ingesting the carbohydrates. If the blood glucose level is. not raised, hypoglycemia

6 can become severe. Severe hypoglycemia may lead to unconsciousness and convulsions and can be

7 life-threatening if not treated promptly. When severe hypoglycemia resulting in unconsciousness,

8 seizures/cO"nvulsions or the inability to swallow occurs at school, it should be treated with the

9 administration of an injection of glucagon. Glucagon is a hormone that raises blood glucose levels

10 by causing the release of glycogen (a form of stored carbohydrate) from the liver.

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food not covered by insulin or too little exercise. It may also be caused by stress or an illness such

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as a cold. The most common symptoms of hyperglycemia are thirst, frequent urination, nausea and

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blurry vision. If untreated over a period of days or hours, hyperglycemia can cause a serious condition called diabetic ketoacidosis ("DKA") in which the body begins to burn fat for energy and

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is characterized by nausea, vomiting and a high level of ketones in the blood and urine. For students

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18 DKA more rapidly. DKA can be life-threatening and thus requires immediate medical attention.

19

40. Studies show a significant link between the level of blood glucose control and later

20 development of diabetes complications. To achieve blood glucose control, a child's blood glucose

21 must be monitored frequently, and appropriate responses (such as giving a dose of insulin or giving

22 a snack) must be made.

23

41. Effective. diabetes management is crucial for the immediate safety and long-term

24 heath of students with diabetes in grades Kindergarten through Twelve. It is also essential to ensure

25 that students with diabetes in grades Kindergarten through Twelve are ready to learn and to

26 participate fully in school activities and to minimize the possibility that diabetes-related emergencies

27 will disrupt classroom activities and the learning process.

28

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Civil Rights Complaint For Declaratory And Injunctive Relief (Class Action)

,· ' ....

Case3:05-cv-04077-MMC Document1 Filed10/11/05 Page14 of 33

1

42. Because monitoring and treatment must occur during the school day, a properly

2 trained school health team-which may include school administrators, school nurses, principals,

3 teachers, office personnel, transportation providers, and other staff members-plays a critical role in

4 helping students manage their diabetes. The school health team must be properly trained and

5 knowledgeable about the management and treatment of diabetes and be able to perform diabetes

6 care tasks to avoid the immediate health risks of low and high blood glucose and to decrease risks

7 for later development of diabetes complications.

8

43. As of 2003, research indicated that more than 12,000 adolescents in California had

9 been diagnosed with diabetes. There are numerous students in grades Kindergarten through Twelve

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within the jurisdiction of SRVUSD and FUSD who are believed to have diabetes, the condition and effects of which make them eligible for related services under Section 504 and the ADA because their diabetes substantially limits at least one major life activity. In addition, some of these students are eligible for special education and related services under IDEA.
Allegations Of Plaintiff K.C. 44. K.C. is eleven years old and is in the Fifth Grade. K.C. resides with her mother, Erica C., her father and two sisters in Danville, in Contra Costa County, California. 45. K.C. has type 1 diabetes, bi-polar disorder, and dyslexia and other learning

18 disabilities, each of which substantially limits her participation in major life activities.

19

46. K.C. was diagnosed with type i diabetes in December 2002.

20

47. Because of her conditions, K.C. qualifies for special education services from the

21 SRVUSD and has had an Individualized Education Program ("IEP") since she started school at the

22 age of six in 2000. When K.C. initially qualified for an IEP, it was on the basis of serious emotional

23 disturbance. Since then, the SRVUSD has changed her qualification to specific learning disability

24 and then back to serious emotional disturbance, according to her most recent IEP dated June 2005.

25

48. Because of her type 1 diabetes and the treatment regimen it requires, her major life

26 activities (including eating, caring for herself, learning, thinking and others) are substantially

27 limited. Some of the limitations on her major life activities include: need for a controlled diet with

28 carbohydrate counting at each meal and snack, an inability to eat the foods she chooses at the times

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Civil Rights Complaint For Declaratory And Injunctive Relief (Class Action)

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~ \

Case3:05-cv-04077-MMC Document1 Filed10/11/05 Page15 of 33

1 she chooses, the need to constantly balance insulin dosages with food intake, blood glucose levels

2 and physical activity, adult-monitoring and supervision of her activities (especially exercise,

3 recreation and socializing).

4

49. Following diagnosis, K.C.'s family immediately began a strict regimen of checking

5 her blood glucose levels, injecting insulin and balancing insulin with her physical activity and food

6 intake in order to maintain her blood glucose level within her target range. K.C. is on a treatment

7 regimen which requires her to take multiple doses of insulin per day (some of which must be given

8 during school hours). To manage her diabetes, K.C. wears an insulin pump. Daily monitoring and

9 treatment of her type 1 diabetes consists of blood glucose checks at least six times and up to twelve

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times per day; continual insulin via her pump with five to ten additional doses of insulin via her pump as directed by her DMMP according to blood glucose levels and food intake.
50. K.C. has been wearing an insulin pump to assist in the management of her diabetes since the summer of 2003. Because pumps use only short acting insulin, any disruption in the flow of insulin for whatever reason -- from an empty reservoir to a kinked line to losing its settings due to low batteries -- can cause blood glucose levels to quickly rise dangerously high. Although K.C. uses an insulin pump in her diabetes treatment, she niay require alternative treatment, such as insulin injections, and adult assistance if her pump were to develop problems or in any other emergency.

18

51. Due to her dyslexia, and blurred vision that she experiences when her blood glucose

19 level is high, K.C. cannot operate her insulin pump independently. She is very responsible for her

20 diabetes management, given her age and other disabilities, but she requires adult supervision to

21 ensure that she checks her blood glucose levels when necessary and takes correct action to give

22 herself insulin with her pump. She is incapable of troubleshooting her diabetes at school without

23 adult supervision and guidance.

24

52. The SRVUSD has failed to include diabetes care or a specialized physical DMMP in

25 K.C.'s IEP. Prior to her entering third grade in "2003, Ms. C. attended a meeting with district

26 representatives where they discussed K.C.'s diabetes. The district agreed to maintain notes about

27 when K.C. checked her blood glucose but made no commitment to develop a DMMP, or to

28 administer insulin or glucagon when needed. The notes were not supplied to Ms. C. and, to the best

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Civil Rights Complaint For Declaratory And Injunctive Relief (Class Action)

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'

Case3:05-cv-04077-MMC Document1 Filed10/11/05 Page16 of 33

1 of her knowledge, the district stopped keeping notes of blood glucose checks and results after that

2 school year.

3

53. Following K.C.'s diabetes diagnosis, SRVUSD provided a form to Ms. C. entitled

4 "Parent Consent and Authorized Health Care Provider·Authorization for Management of Diabetes at

5 School and School Sponsored Events" which K.C.'s treating pediatric endocrinologist, Dr. Suruchi

6 Bhatia, at Children's Hospital in Oakland, completed and signed. The form signed by the doctor

7 covers when blood glucose testing should be performed, when K.C. s~ould be allowed to eat

8 (including on bus trips), what to do in the event of hypoglycemia (including administration of

9 glucagon), her pump management regimen and insulin administration by syringe as back-up plan,

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etc. The form generally allows trained and supervised non-medical personnel to perform specialized physical health care services, except for the administration of insulin, where only the following options are given: the student, parent, parent designee, or licensed nurse. On the latest form signed by Dr. Bhatia and dated September 7, 2005, the doctor crossed out parent and wrote in "adult" to designate the person responsible for determining the correct amount of insulin to be administered via K.C.'s pump.
54. Representatives from SRVUSD have consistently failed to carry out the regimen specified by K.C.'s doctor on the district's form. SRVUSD has refused to ensure that K.C. checks

18 her blood glucose when she should and have likewise rejected her parents' requests that a school

19 representative supervise K.C.'s use of her insulin pump during school hours. Although high blood

20 glucose levels cause K.C. to have difficulties focusing, blurred vision and a reduced ability to

21 concentrate - all of which impede her ability to learn - at times, K.C. has been forced to cope with

22 high blood glucose levels while at school because of~his lack of consistent support by individuals at

23 her school or by SRVUSD.

24

55. Despite Ms. C.'s requests, representatives from the SRVUSD refuse to administer

25 insulin to K.C. On several occasions since K.C. was diagnosed in 2002, Ms. Sharon Dodson, the

26 school nurse, told Ms. C. that SRVUSD employees will not administer insulin. Although Ms.

27 Dodson indicated that she may be able to administer insulin on occasion, she also emphasized that

28 she might be delayed depending upon her whereabouts as she said she is at the school only once

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Civil Rights Complaint For Declaratory And Injunctive Relief(ClassAction)

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'"~

Case3:05-cv-04077-MMC Document1 Filed10/11/05 Page17 of 33

1 every two weeks. Ms. Dodson told Ms. C. that Ms. C. or an individual designated by K.C.'s family

2 would have to be available to ·administer insulin to K.C. if needed. To Ms. C.'s knowledge, no one

3 employed by the SRVUSD has ever administered insulin to K.C.

4

56. Consequently, Ms. C., who is herself a registered nurse, has been unable to return to

5 work as she planned to in 2003 after her youngest child entered Kindergarten. She did try to work

6 part-time in the spring of 2004, but had to quit her job that fall because she was unable to respond to

7 calls from K.C. and she was not able to leave her patients to go to school when needed.

8

57. Since K.C.'s diagnosis, Ms. C. has had to be on-call to go to school whenever there

9 were complications with K.C.'s pump and she needed an injection of insulin. She has been called. to

10 school to administer insulin to K.C. on numerous occasions. Since 2003, K.C. accidentally ripped

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least three times she needed an injection; and at least four times Ms. C. was not able to get to school

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and K.C. had to wait until she got home for Ms. C. to attend to her medical needs.

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58. In addition to the district's failure to commit to administer insulin or designate staff to administer glucagon, Ms. C. has also been unsuccessful in getting the district to supply a current

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carbohydrate count of the school lunch menu and serving size so that Ms. C. can predetermine

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18 there is a total lack of defined protocols in the district and that the absence of a district-level diabetes

19 policy that requires care and continuity of diabetes care has contributed to the total lack of

20 appropriate diabetes care services to her daughter.

21

59. K.C. cannot safely attend school without assurances that her blood glucose will be

22 checked, that she will be given sufficient opportunities to eat and that her food intake will be

23 monitored, and that she will be given insulin and/or glucagon to treat her diabetes as necessary

24 and/or in accordance with a written DMMP. K.C. needs a DMMP at school that ensures that an

25 adult will always be present and designated to oversee her care while she is at school. She is a child

26 with learning and emotional disabilities who cannot independently monitor her own diabetes care at

27 this time.

28

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Civil Rights Complaint For Declaratory And Injunctive Relief (Class Action)

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Case3:05-cv-04077-MMC Document1 Filed10/11/05 Page18 of 33

1

60. As K.C. attends a special day class at the Rancho Romero Elementary School,

2 pursuant to her IEP, SRVUSD is providing transportation via bus for K.C. to attend this class. In

3 light of Ms. C.'s concerns about the management ofK.C.'s diabetes and the fact that the school bus

4 is scheduled to pick K.C. up nearly an hour and a half before school begins, at the beginning of this

5 school year Ms. C. contacted Ms. Sharon Dodson and asked that SRVUSD ensure that the bus

6 driver is adequately trained in dealing with type 1 diabetes management and is able to address and

7 resolve any emergency situation that may arise as a result of K.C.'s diabetes. Ms. Dodson,

8 however, referred Ms. C.. to the bus company. When Ms. C. specifically asked Ramona, the bus

9 driver who would be providing K.C.'s transportation, whether she knew that K.C. was a student

10 with diabetes and what to do in an emergency, the driver expressed that she did not know what to do

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and was merely instructed to call the transportation office in crisis situations. When Ms. C. called

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the bus company office and spoke to someone named Regina, she said that the bus drivers are not

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trained and are instructed to just call the office when necessary. Regina did not inquire about K.C.'s diabetes care needs.
61. On the first day of school, K.C. was told that she was not allowed to eat her lunch on

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18 physical and mental impairments, including possibly, life-threatening hypoglycemia. Again, Ms. C.

19 called the bus company and Ms. Sharon Dodson and the school office. Someone from the office at

20 K.C. 's school went to her and instructed her to eat before she got on the bus. K.C. ate and

21 administered too much insulin through her insulin pump. There is no adult on-site trained in K.C.'s

22 diabetes management. When she got home after the first day of school Ms. C. found that K.C.'s

23 blood glucose level was dangerously low. Ms. C. greeted the bus driver upon drop-off and the bus

24 driver indicated that it would be okay for her to eat on the bus in the future. However, Ms. C. has

25 since been informed that the bus driver has been re-assigned. The district has not provided any

26 assurances to Ms. C. that K.C.'s bus driver will be trained to carry out her diabetes management

27 regimen, including by making necessary accommodations, such as allowing her to eat on the bus.

28

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Civil Rights Complaint For Declaratory And Injlll_lctive Relief(Class Action)

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Case3:05-cv-04077-MMC Document1 Filed10/11/05 Page19 of 33

1

62. K.C. experiences high and low blood glucose levels regularly and too often at school,

2 and Ms. C. believes that this is having a dramatic adverse impact on her learning. She misses

3 opportunities to learn every time she feels poorly as a result of poor management of her diabetes at

4 school. She is often physically tired, overwhelmed, irritable, and unable to concentrate on her

5 homework after school, and this is due in large part to consistently inadequate diabetes management

6 at school.

7

Allegations Of Plaintiff A.A.

8

63-: A.A. is five years old and is now in Kindergarten. A.A. resides with her mother,

9 Stacey A., her father and two sisters in Danville, in Contra Costa County, California.

10

64. A.A. was diagnosed with type 1 diabetes when she was two years old.

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life activities (including eating, caring for herself, learning, thinking and others) are substantially

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limited. Some of the limitations on her major life activities include: need for a controlled diet with carbohydrate counting at each meal and snack, an inability to eat the foods she chooses at the times she chooses, the need to constantly balance insulin dosages with food intake, blood glucose levels

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and physical activity, adult-monitoring· and supervision of her activities (especially exercise,

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18

66. Following diagnosis, A.A.'s family immediately began a strict regimen of checking

19 her blood glucose levels, injecting multiple daily dosages of insulin and balancing insulin with her

20 physical activity and food intake in order to maintain her blood glucose level within her target

21 range.

22

67. Daily monitoring and. treatment of A.A.'s type 1 diabetes consists of 8-10 blood

23 glucose checks per day, 4-5 injections of insulin by syringe, and counting of carbohydrate intake at

24 every meal.

25

68. Since her diabetes diagnosis, A.A. has experienced the following complication as a

26 result of her type 1 diabetes: glucagon has been administered twice to raise her blood glucose level

27 from a life-threatening low level.

28

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Civil Rights Complaint For Declaratory And Injunctive Relief (Class Action)

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Case3:05-cv-04077-MMC Document1 Filed10/11/05 Page20 of 33

1

69. A.A. began Kindergarten on August 29, 2005 at Greenbrook Elementary School in

2 Danville, California.

3

70. Ms. A. first contacted Greenbrook Elementary School on March 8, 2005 when she

4 had an impromptu meeting with Ms. Sharon Dodson, the school nurse.

5

71. During that meeting, Ms. A. informed Ms. Dodson that A.A. is a student with

6 diabetes, that she would require blood glucose testing in the classroom, and expressed interest in

7 creating a written placement plan adopted pursuant to Section 504 ("Section 504 Plan"). Ms.

8 Dodson agreed that a Section 504 Plan would need to be developed but she did not say when that

9 would happen.

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72. In another meeting with Greenbrook Elementary School personnel on May 31, 2005, Ms. Dodson told Ms. A. that school personnel would not give insulin injections. If A.A. required insulin during the school day, Ms. Dodson advised Ms. A. that either she or a family friend would have to go to the school to administer A.A.'s insulin. Ms. A. was not given clear direction on whether school personnel would administer a glucagon injection in the event of an emergency.
73. On August 17, 2005, Ms. A. wrote to Tom Ladouceur, the principal of Greenbrook Elementary, and reiterated her concerns regarding her daughter's diabetes maintenance and care while in school. Ms. A. told Mr.·Ladouceur that if school personnel would not provide A.A. with

18 insulin during school, as Ms. A. had been advised, she would need to be "on-call" at all times and,

19 thus, constantly be within a 10-minute radius of the school. But there may be times when Ms. A.

20 cannot get to school. She anticipates that A.A. will need an injection of insulin while at school two

21 times per week.

22

74. In response to Ms. A.'s request for a Section 504 Plan, Mr. Ladouceur told her that

23 the Section 504 Plan would not be developed until after school starts.

24

75. On August 26, 2005, Ms. A. met informally with school nurse Sharon Dodson, the

25 Kindergarten teachers, and an office staff member to discuss A.A.'s diabetes care, needs and

26 treatment. Ms. A. gave them a proposed Section 504 Plan that she recommends, and she gave them

27 a copy of a DMMP that she recommends, both ofwhich she completed according to A.A.'s specific

28

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Civil Rights Complaint For Declaratory And Injunctive Relief (Class Action)

. ~ '
' '

Case3:05-cv-04077-MMC Document1 Filed10/11/05 Page21 of 33

1 care needs. Although Ms. Dodson told Ms. A. that Mr. Ladouceur, the principal, would be writing

2 A.A.'s Section 504 Plan, he was not in attendance at this meeting.

3

76. During the course of the meeting Ms. Dodson informed Ms. A. that staff will be

4 trained to administer glucagon but not insulin. Because Ms. Dodson "floats" to five other schools

5 and has other assignments, she could be called to administer insulin but would need to be the third

6 contact for insulin injections after Ms. A. and her designee. Ms. Dodson said it would be best if Ms.

7 A. was designated the first contact and after that, Laurie C. (the mother of Plaintiff M.C.), because

8 she assumed that Ms. A. and Ms. C. would be able to respond more quickly. Ms. Dodson reiterated

9 that there is no one on-site who could be assigned.

10

77. Despite the meeting, the school has not provided Ms. A. with a written Section 504

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as necessary and/or in accordance with a written DMMP. In response to Ms. Dodson's request at

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the August 26, 2005 meeting, Ms. A. has given her a copy of A.A.'s most current doctor's orders, completed on a district form Ms. Dodson provided to Ms. A, and signed on May 4, 2005 by Dr. Suruchi Bhatia, her pediatric endocrinologist at Children) Hospital in Oakland, California. The

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18 contains a general authorization for non-medical personnel to perform specialized physical health

19 care services. However, the section pertaining to persons responsible for insulin dosage and

20 administration asks the parent and doctor to select from only the following options: student, parent,

21 parent designee, or licensed nurse, and there is no option to select non-medical personnel.

22

23

Allegations Of Plaintiff M.C.

24

78. Plaintiff M.C. is five years old and is now in Kindergarten. M.C. resides with her

25 mother, Laurie C., her father, and her brother, in Danville, in Contra Costa County, California.

26

79. M.C. was diagnosed with type 1 diabetes at the age of 13 months. She is currently

27 under the care of Dr. Suruchi Bhatia, a pediatric endocrinologist at Children's Hospital in Oakland,

28 California for treatment of her type 1 diabetes.

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Civil Rights Complaint For Declaratory And Injunctive Relief (Class Action)

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' t

Case3:05-cv-04077-MMC Document1 Filed10/11/05 Page22 of 33

1

80. Because of her type 1 diabetes and the treatment regimen it requires, her major life

2 activities (including eating, caring for herself, learning, thinking and others) are substantially

3 limited. Some of the limitations on her major life activities include: need for a controlled diet with

4 carbohydrate counting at. each meal and snack, an inability to eat the foods she chooses at the times

5 she chooses, the need to constantly balance insulin dosages with food intake, blood glucose levels

6 and physical activity, adult-monitoring and supervision of her activities (especially exercise, 7 recreation and socializing).

8

81. Daily monitoring and treatment of her type 1 diabetes consists of 7-12 blood glucose

9 checks daily and insulin doses as appropriate based on blood glucose readings and food consumed.

10

82. In or around March 2004, M.C. began wearing an insulin pump to assist in the

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injecting insulin. If one enters M.C.'s blo·od glucose level into the pump and information about

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what she plans to eat, the pump measures the amount of insulin M.C. needs and guides the user

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through the process such that the machine injects M.C. with the correct amount of insulin. Given M.C.'s age and the fact that she is unable to read, she cannot use the pump without an adult's

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18 flow of insulin for whatever reason can cause blood glucose levels to quickly rise dangerously high. 19 Although M.C. uses an insulin pump in her diabetes treatment, she may require alternative

20 treatment, such as insulin injections, and adult assistance if her pump were to develop problems or 21 in any other emergency.

22

83. M.C. began Kindergarten on August 29, 2005 at Greenbrook Elementary School in

23 Danville, California.

24

84. In or around May 10,2005, Ms. C. met with Ms. Sharon Dodson, the school's nurse,

25 on several occasions to inform the school of M.C.'s condition and to discuss how the school would

26 assist M.C. with her monitoring and insulin needs.

27

85. At that time Ms. Dodson told Ms. C. that school personnel would not give injections

28 and was noncommittal as to whether school personnel would assist with blood glucose monitoring

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Case3:05-cv-04077-MMC Document1 Filed10/11/05 Page23 of 33

1 or operation of M.C.'s insulin pump. Although Ms. Dodson told Ms. C. that school staff was

2 trained in administering glucagon injections, given the policy against school personnel giving

3 injections, the· nurse was noncommittal as to whether school personnel would administer the

4 glucagon, even if it meant the difference between life and death.

5

86. During her conversations with the nurse, Ms. C. requested a meeting with school

6 personnel to create a Section 504 Plan, but Ms. Dodson told her that the meeting could not take

7 place until after registration - just days before school started. Ms. C. also asked Ms. Dodson

8 whether she should request that an IEP be prepared for M.C., but Ms. Dodson stated that M.C.

9 would not qualify for an IEP and that the school does not do IEPs under such circumstances.

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87. On or around August 26, 2005, Ms. C. met with school personnel to discuss M.C.'s diabetes care, needs and treatment. Prior to the meeting, Ms. C. provided the district with a complete diabetes management regimen on a form supplied by the district and signed by ~.C.'s pediatric endocrinologist. The district form signed by the doctor generally allows trained and supervised non-medical personnel to perform specialized physical health care services, except for the administration of insulin, where only the following options are given: the student, parent, parent designee, or licensed nurse.
88. Ms. C. also provided the district with other supporting documents, including a draft

18 Section 504 Plan specific to M.C.'s needs for the district's review and consideration.. During the

19 meeting, Ms. C.· demonstrated to M.C.'s teacher, co-teacher, an office staff member and Ms.

20 Dodson how to check blood glucose levels and how to use M.C. 's insulin pump. She also instructed

21 these staff members on M.C.'s snack schedule, testing schedule and when she should be contacted.

22 These staff members agreed to test M.C. 's glucose levels, monitor her snacks, and work her insulin

23 pump. Although Ms. C. was told that the principal would be writing M.C.'s Section 504 Plan, he

24 was not in attendance at this meeting. Despite the meeting, the school has not provided a written

25 Section 504 Plan for M.C. nor adequate assurances that M.C. will receive insulin or glucagon

26 injections in accordance with a written DMMP.

27

28

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Civil Rights Complaint For Declaratory And Injunctive Relief (Class Action)

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Case3:05-cv-04077-MMC Document1 Filed10/11/05 Page24 of 33

1

Allegations Of Plaintiff K.F.

2

89. Plaintiff K.F. is seven years old and is now in Second Grade. K.F. resides with her

3 mother, Sheree F., her father, and her sister, in Fremont in Alameda County, California.

4

90. K.F. was diagnosed with type 1 diabetes in May 2004, when she was five years old.

5

91. Because of her type 1 diabetes and the treatment regimen it requires, K.F.'s major

6 life activities (including eating, caring for herself, learning, thinking and others) are substantially

7 limited. Some of the limitations on her major life activities include: need for a controlled diet with

8 carbohydrate counting at each meal and snack, an inability to eat the foods she chooses at the times

9 she chooses, the need to constantly balance insulin dosages with food intake, blood glucose levels

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and physical activity, adult-monitoring and supervision of her activities (especially exercise, recreation and socializing).
92. Daily monitoring and treatment of K.F.'s type 1 diabetes consists of 7 to 10 blood glucose checks per day, 4 to 6 injections of insulin by syringe, and counting of carbohydrate intake at every meal.
93. K.F. began Second Grade on August 30, 2005 at Haley Durham School in the Fremont Unified School District, in Fremont, California.
94. K.F.'s mother and guardian, Ms. F., contacted Durham Elementary School on or

18 around October 2004 to discuss K.F.'s diabetes and had an impromptu meeting with Ms. Nada

19 Graham, the school nurse and Ms. Erica Donahue (Principal) and other personnel from K.F.'s after-

20 school program, the YMCA on the Durham school site in Fremont.

21

95. During that meeting, Ms. F. informed Ms. Graham that K.F. is a student with

22 diabetes, that she would require blood glucose checks in the classroom, and expressed interest in

23 creating a Section 504 Plan. Ms. Graham agreed that a Section 504 Plan would need to be

24 developed but she did not say when that would happen. The Principal and nurse both insisted that a

25 specific DMMP would be in place for K.F. Ms. F. provided the Principal with a current copy of

26 K.F.'s diabetes care regimen on a Fremont Unified School District form given to Ms. F. when she

27 enrolled K.F. for the first time in the district in October 2004. The form was signed by her pediatric

28 endocrinologist, Dr. Anna Sandstrom at Kaiser Permanente in Hayward, California. The orders set

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Civil Rights Complaint For Declaratory And Injunctive Relief (Class Action)

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Case3:05-cv-04077-MMC Document1 Filed10/11/05 Page25 of 33

1 forth K.F. 's diabetes care regimen, including administration of insulin via syringe and glucagon as

2 needed during the school day. · The form signed by the doctor generally allows trained and

3 supervised non-medical personnel to perform these tasks, except for the administration of insulin,

4 where the doctor is asked to select from the following options: the pupil independently or "after

5 staff verification of insulin syringe/pen/pump nurnber(s)", parent or parent designee ("non FUSD

6 employee trained by parent").

7

96. In another meeting with Durham Elementary School personnel on or about

8 November 2004, Ms. Graham told Ms. F. that school personnel would not give injections. If K.F.

9 required insulin during the school day, Ms. Graham told Ms. F. that either she or a family member

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would have to go to the school to administer insulin. Ms. F. was also instructed that gluc.agon would not be administered by school personnel. 911 would be called instead.
97. K.F.'s First Grade school year, 2004-2005, was very difficult with many issues arising throughout the year. Ms. F. was constantly "on-call" to attend to K.F.'s diabetes. K.F. normally checked her blood glucose under supervision daily at 10:55 a.m. Whenever K.F.'s blood glucose readings were above 240, Ms. F. was called and expected to come to school to administer insulin. This happened three to four times per week. Ms. F. works in Livermore, about 30 miles from the school, and her husband works throughout the San Francisco Bay Area in concrete

18 construction. Most of the time, Ms. F. or her mother went to school to administer insulin. The

19 school principal informed Ms. F. that she wanted one ofK.F.'s family members there to administer

20 insulin when necessary within 10 to 20 minutes and that if Ms. F. or another family member did not

21 arrive within one hour, she would call 911. In addition, whenever K.F.'s blood glucose levels did

22 not return to the range determined acceptable by her physician within 15 minutes of getting a shot of

23 insulin, Ms. F. and her husband were told to remove her from school or remain with her until her

24 blood glucose level returned to normal, because the principal said it was unsafe for her to remain on

25 site. This happened about fifteen to twenty times.

26

98. A school secretary supervised K.F.'s blood glucose checks in the school office one

27 time per day, but supervision of further blood glucose tests as needed occurred only after Ms. F. and

28 her husband made numerous requests. Ms. F. was unsuccessful at getting any school personnel to

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Civil Rights Complaint For Declaratory And Injunctive Relief (Class Action)

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Case3:05-cv-04077-MMC Document1 Filed10/11/05 Page26 of 33

1 assist with carbohydrate counting at the school-sponsored hot lunch time. No one monitored her

2 food intake at all, so Ms. F. had to pack a lunch for K.F with pre-d~termined counts of

3 carbohydrates. Because no one monitored K.F.'s food intake, she was constantly at risk of

4 hypoglycemia any time she ate less than what Ms. F packed for her.

5

99. Ms. F. informed the meeting participants last year of the many reasons why she

6 thought it was unacceptable to expect her to be on-call to administer insulin during school hours,,

7 including that it is not a safe plan to not have anyone on-site trained and designated to administer

8 insulin ana glucagon whenever necessary and/or in accordance with K.F.'s written DMMP. She

9 also expressed concern about the amount of classroom instruction K.F. missed while traveling to

10 and from the school office, having her blood sugar tested, and, often, waiting a significant period of

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and had to remain there until Ms. F. or another family member could get to school to administer

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insulin, three to four times per week K.F. spent more than one hour sitting in the office. On those

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days she also missed lunch with her classmates and missed recess after lunch. Because she missed so much class time, she was required to complete additional homework most days of the week and

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100. On or about August 26, 2005, Ms. F. called her Kaiser diabetes educator, Lynil

18 Franks, to get updated doctor's orders as requested by a school nurse who called her that day saying

19 she needed to get updated orders. Ms. F. informed Ms. Franks of all of her difficulties attending to

20 K.F.'s diabetes at school last year, and Ms. F. very reluctantly suggested that maybe her insulin

21 regimen could be changed to avoid having to administer insulin during school hours. Ms. Franks

22 said that she would talk to Dr. Sandstrom the following Monday. On August 29, 2005, Ms. F.

23 talked with Dr. Sandstrom who changed the orders so that K.F. will not need insulin unless her

24 blood glucose level is over 300 instead of240. This change to the treatment regimen is not what the

25 doctor recommended and does not correspond to K.F. 's treatment regimen at home or in any other

26 setting.

27

101. On August 30, 2005, Ms. F. met with Erica Donahue, the school Principal, Dagmar

28 Sandoval and Pat Golden, district school nurses, and Peggy Cline, a third school nurse who

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Case3:05-cv-04077-MMC Document1 Filed10/11/05 Page27 of 33

1 appeared mid-way through the meeting. K.F. 's Second Grade classroom teacher was not present.

2 Again, all the school nurses present told Ms. F. that the district would not administer insulin. Ms. F.

3 left the meeting without a written commitment about what the district would do to assist K.F. in

4 managing her diabetes, and indeed did not receive any written documentation until approximately

5 September 12, 2005 when she received a copy of the district's "Individualized Health Care Plan"

6 ("IHCP") for K.F. dated September 6, 2005. The primary commitment that is contained in the

7 September 6 IHCP is that K.F.'s primary teacher and other class teachers would recognize when she

8 needed to check her blood glucose other than at the routine time of 10:55 a.m., would allow her to

9 test her blood glucose at the back of the classroom and assist in recording and reporting the test

10 results as well as assist by giving her juice as specified in the September 6 IHCP. The only place

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where she would be closely supervised in testing blood glucose is in the office.

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102. On September 19,2005, the district revised the September 6 IHCP to provide that the

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teacher's responsibility for assisting K.F. is limited to observing for signs and symptoms of

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hyperglycemia and hypoglycemia and calling the office for someone to come to the classroom to assist K.F. with blood glucose testing, treat with juic~ for low blood glucose levels as specified in

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the IHCP, and contact Ms. F., who is still expected to come to school to administer insulin whenever

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18 19 IHCP for K.F.

19

103. Ms. F. and her husband removed K.F. from that teacher's classroom on September

20 19, 2005 and asked the Principal to assign K.F. to another classroom because K.F. could not safely

21 be in a classroom without an adult present to observe for signs and symptoms of hyperglycemia and

22 hypoglycemia and summon help, as described in the September 19 IHCP. K.F. was reassigned to

23 another classroom on September 21, 2005, but this new classroom does not have the benefit of

24 being a bi-lingual program. K.F.'s new teacher has committed to follow the September 19 IHCP.

25

104. On or about September 23, 2005, Ms. F. and her husband received a copy of a "504

26 plan" for K.F. This was the first time Ms. F. or her husband received any Section 504 Plan from the

27 district. The Section 504 Plan includes the September 19 IHCP and does not commit the district to

28 administer insulin or glucagon under any circumstances.

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Civil Rights Complaint For Declaratory And Injunctive Relief (Class Action)

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Case3:05-cv-04077-MMC Document1 Filed10/11/05 Page28 of 33

1

105. K.F.'s parents are being forced to jeopardize her health and well being because of the

2 district's failure to follow the proper treatment regimen. Not getting insulin when needed and on-

3 time will continue to interrupt her learning and pose significant threats to her long-term health.

4 When K.F. misses instruction, she misses opportunities to learn. A constant high blood glucose

5 level in the range of 300, without insulin, is a very significant health risk to her organs and her long-

6 term health. When she has high blood glucose levels, she feels sick and her ability to concentrate on

7 learning is hampered. She complains of nausea, headache, blurred vision, and stomachaches and

8 feels excluoed from participating in normal school activities.

9

10

GENERAL ALLEGATIONS

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106. On November 2, 2004, the Disability Rights Education & Defense Fund ("DREDF"),

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on behalf of students with diabetes attending the SRVUSD, filed a compliance complaint with CDE requesting (a) a state directive by CDE to the SRVUSD which sets forth its obligation to administer insulin to children with diabetes in district schools so that the parents and children are not left to the

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unlawful policy/practice of the school district; (b) CDE to require corrective action that will bring

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18 clarify that the district is responsible for administering insulin in accordance with the child's DMMP

19 developed in conjunction with the family and the child's doctor, when necessary while the child is at

20 school; and (d) that CDE clarify that there is no legal prohibition against the administration of

21 insulin by properly trained and supervised non-medical personnel. DREDF submitted evidence of

22 the district's unlawful prohibition on the administration of insulin, by enclosing with the complaint

23 two SRVUSD forms used to designate persons authorized to administer insulin to students during

24 school hours. Both forms contain explicit prohibitions on the administration of insulin by SRVUSD

25 employees. A true and correct copy ofDREDF's November 2, 2004 complaint is attached hereto as

26 Exhibit A.

27

107. In a letter dated February 25, 2005, CDE summarily dismissed the unlawful

28 discrimination allegations in DREDF's November 2, 2004 compliance complaint, on the grounds

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Civil Rights Complaint For Declaratory And Injunctive Relief(Class Action)

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Case3:05-cv-04077-MMC Document1 Filed10/11/05 Page29 of 33

1 that DREDF "failed to identify a specific student that was allegedly harmed as a result of the

2 District[']s policies regarding the administration of insulin." The CDE's response did not address

3 the allegations of violations of IDEA and it was not provided within the 60-day timeframe required

4 under goverrting state and federal regulations. A true and correct copy of CDE's February 25, 2005

5 letter is attached hereto as Exhibit B.

6

108. On March 22,2005, DREDF, again on behalf of students with diabetes attending the

7 SRVUSD, filed a compliance complaint with CDE identifying three affected students by name and

8 requesting (a) a state directive by CDE to SRVUSD which sets forth its obligation to administer

9 insulin to children with diabetes in ~istrict schools so that the parents and children are not left to the

10 unlawful policy/practice of the school district; (b) CDE to require correctiye action that will bring

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the SRVUSD in compliance with applicable laws such as IDEA and Section 504; (c) that CDE

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clarify that the district is responsible for administering insulin in accordance with the child's DMMP

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developed in conjunction with the family and the child's doctor, when necessary while the child is at

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school; and (d) that CDE clarify that there is no legal prohibition against the administration of

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copy ofDREDF's March 22, 2005 complaint is attached hereto as Exhibit C.

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109. By letter dated May 20, 2005, CDE again summarily dismissed the unlawful

18 discrimination allegations in DREDF's March 22, 2005 compliance complaint without any inquiry

19 or investigation on the grounds that it "fail[ed] to specifically identify the actual acts of

20 discrimination that resulted in the loss of educational benefits to the three individuals named."

21 Nevertheless, CDE indicated that had it evaluated SRVUSD's policies, it would probably have

22 found them to be acceptable. The CDE's response did not address the allegations of violations of

23 IDEA. A true and correct copy ofCDE's May 20, 2005 letter is attached hereto as Exhibit D.

24

110. By refusing to respond to and summarily dismissing these complaints, CDE has

25 violated governing federal regulations requiring it to maintain Section 504, Title II and IDEA

26 complaint resolution procedures that meet these regulations. By failing to take corrective action,

27 CDE has aided or perpetuated prohibited discrimination against qualified persons in violation of the

28 governing federal regulations. 34 C.F.R. § 104.4. With respect to Section 504 and Title II, CDE

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Civil Rights Complaint For Declaratory And Injunctive Relief (Class Action)

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Case3:05-cv-04077-MMC Document1 Filed10/11/05 Page30 of 33

1 must maintain a grievance procedure with "appropriate due process standards and that provide for

2 the prompt and equitable resolution of complaints alleging any action prohibited by this part." 34

3 C.F.R. § 104.7. With respect to IDEA, CDE must maintain complaint resolution procedures that

4 provide for investigation of a complaint made by an organization specifying "facts on which the

5 complaint is based," that includes "review of all relevant information" and issuance of a written

6 decision within sixty (60) days, during which time the complainant must be given an "opportunity to

7 submit additional information." 34 C.F.R. § 300.660-662. Where complaints allege blanket illegal

8 policies, the applicable federal regulations do not require an organizational complaint on behalf of a

9 group of children to identify affected students by name or to identify specific actions of

10 discrimination suffered by individual students.

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satisfy any exhaustion requirements, particularly in this case. Given the summary dismissal of

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DREDF's complaints regarding SRVUSD, it would be futile to file another complaint with CDE on

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behalf of the named plaintiffs alleging the same violations and requesting the same relief. The

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multiple complaints to the CDE also proved futile. Accordingly, Plaintiffs have exhausted all

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CDE Has Responsibility To Investigate, Monitor And Enforce

19

112. CDE has also failed to ensure that all children with diabetes who reside in California

20 receive a free and appropriate public education by: (a) failing to adequately monitor compliance

21 with federal laws and regulations related to the education of children with diabetes; (b) failing to

22 adequately investigate complaints regarding school districts' noncompliance with these laws; and,

23 (c) failing to enforce these laws to require districts to comply with federal laws and regulations

24 designed to protect children with diabetes.

25

113. CDE has provided contradictory information to the school districts and their

26 administrators about the proper role of school personnel in the management of diabetes in schools.

27 In or around May 2005, CDE issued a "Program Advisory on Medication Administration" in which

28 it expresses that unlicensed school personnel should not be permitted to administer medication by

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Civil Rights Complaint For Declaratory And Injunctive Relief (Class Action)

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Case3:05-cv-04077-MMC Document1 Filed10/11/05 Page31 of 33

1 injection, except for emergency medications as allowed by law. This Advisory provides

2 recommendations to local education agencies on administering medication to students and was

3 accessible on the CDE's official website as ofthe filing of this Complaint. Although the Advisory

4 may not be binding authority, it is intended to provide guidance and is undoubtedly persuasive to the

5 individual school districts. It is actions such as this that have perpetuated the widespread belief

6 among school districts that non-medical personnel should not administer insulin to students with

7 diabetes in grades Kindergarten through Twelve.

8

114. In contrast to CDE's approach, other government agencies, including the United

9 States Department of Education, have recognized that trained non-medical personnel can provide

10 diabetes care, including injections, in schools. For example, this is the view articulated in "Helping

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2003 by the National Diabetes Education Program, a Joint Program between the National Institutes of Health and the Centers for Disease Control and Prevention and has received explicit endorsement from the United States Department of Education. In contradiction to CDE's Advisory, this Guide

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recommends that non-medical school personnel be trained to assist in diabetes care tasks in the

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18 medical personnel should be trained, CDE's failure to provide a consistent directive on the issue of

19 administration of injectable medication by school personnel is inexcusable.

20

21 Failure To Ensure That All Eligible Children With Diabetes Receive A Free And Appropriate

22

Public Education under IDEA

23

115. IDEA requires school districts to ensure that all children with disabilities receive a

24 free and appropriate public education, including "related services" as may be required to assist a

25 qualifying child with a disability to benefit fro!ll special education. "Related services" include (1)

26 "supportive services" and (2) school health services provided by a qualified school nurse or other

27 qualified person, including a trained layperson.

28

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Civil Rights Complaint For Declaratory And Injunctive Relief(Class Action)

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Case3:05-cv-04077-MMC Document1 Filed10/11/05 Page32 of 33

1

116. Defendants school districts have failed to offer and provide "related services" to

2 assist children with diabetes so that they are able to benefit from special education.

3

117. In particular, Defendants have failed to offer and provide the "related services" that

4 are necessary to assist children with diabetes to benefit from special education by failing to ensure

5 that there are a sufficient number of trained adults willing and able to perform the following: (i)

6 checking of blood glucose levels including the monitoring and recording of results, (ii) recognizing

7 and treating hypoglycemia and hyperglycemia, (iii) administering insulin and glucagon, and (iv)

8 learning the schedule of and monitoring the student's meals and snacks and working with the

9 student's parent or guardian to coordinate this schedule with that of the other pupils as closely as

10 possible.

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implement IEPs that include needed diabetes care services. IEPs for these students must include appropriate diabetes care services, which should be based on explicit directions from a student's doctor, and must ensure there are a sufficient number of trained adults who are willing and able to

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18 and glucagon, and (iv) learning the schedule of and monitoring the student's meals and snacks and

19 working with the student's .parent or guardian to coordinate this schedule with that of the other

20 pupils as closely as possible.

21

119. None of these "related services" require a physician's assistance, and all may be

22 provided by either a school nurse or a trained layperson.

23

24 Failure To Ensure That All Eligible Children With Diabetes Receive A Free And Appropriate

25

Public Education Under Section 504

26

120. Section 504 prohibits school districts from excluding any otherwise qualified

27 individual, solely by reason of disability, from participation in or the benefits of the operations of a

28

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Civil Rights Complaint For Declaratory And Injunctive Relief (Class Action)

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Case3:05-cv-04077-MMC Document1 Filed10/11/05 Page33 of 33

1 local school system, and from subjecting such individual to discrimination under any such

2 operations.

3

121. Defendant school districts, as part of their obligations to ensure that all children with

4 disabilities receive a :free and appropriate public education, are obligated to offer and provide

5 regular or special education and related aids and services that are designed to meet individual

6 educational needs of disabled children as adequately as the needs of non-disabled children are met.

7

122. Defendants have failed to offer and provide related aids and services designed to

8 meet the individual educational needs of children with diabetes as adequately as the needs of

9 children without disabilities are met.

10

123. In particular, Defendants have failed to offer and provide the related aids and

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number of trained adults who are willing and able to perform tasks necessary for the safety and ability to learn of children with diabetes, including: (i) checking of blood glucose levels including the monitoring and recording of results, (ii) recognizing and -treating hypoglycemia and

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hyperglycemia, (iii) administering insulin and glucagon, and (iv) learning the schedule of and

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18 coordinate this schedule with that of the other pupils as closely as possible.

19

124. None of the aforementioned accommodations require a physician's assistance, and

20 all may be provided by either a school nurse or trained layperson.

21

22

Discrimination Against Children Who Have Or Are Perceived To Have Disabilities

23

125. Defendants have discriminated and continue to discriminate against children with

24 diabetes by the following act~ or omissions:

25

a. Defendants deny children with diabetes equal access to district programs,

26 field trips and other extra-curricular activities by inappropriately refusing to assist them in managing

27 their diabetes.

28

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Civil Rights Complaint For Declaratory And Injunctive Relief (Class Action)

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Case3:05-cv-04077-MMC Document1-1 Filed10/11/05 Page1 of 32

1 Failure to Educate Disabled Children In The Least Restrictive Environment as Required

2

Under IDEA

3

126. IDEA requires school districts receiving federal financial assistance, to the maximum

4 extent appropriate, to educate children with disabilities together with children who are not disabled,

5 and to remove children with disabilities from the regular educational environment only when the

6 nature or severity of the disability of a child is such that education in regular classes, with the use of

7 supplementary aids and services, cannot be achieved satisfactorily.

8

127. Defendants have failed and continue to fail to educate children with diabetes in the

9 least restrictive environment as required by IDEA. Defendants fail to ensure that children with

10 diabetes participate in non-academic and extracurricular services and activities (including health

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CDE's Failure To Ensure That All Eligible Children With Diabetes Receive A Free And

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Appropriate Public Education

18

128. Defendant CDE has failed and continues to fail to ensure that all children with

19 diabetes residing in the jurisdiction of Defendant school districts receive a free and appropriate

20 public education.

21

129. CDE is perpetuating unlawful disability discrimination and violations of special

22 education law by failing to address complaints alleging blanket policies of refusing to provide

23 related services and supports to children with diabetes and by condoning such practices. CDE's

24 failures include the following acts and omissions:

25

a. CDE fails to monitor adequately Defendant school districts' compliance with

26 federal laws and regulations which mandate that districts provide a free appropriate public education

27 to all children with diabetes.

28

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Civil Rights Complaint For Declaratory And Injunctive Relief (Class Action)

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Case3:05-cv-04077-MMC Document1-1 Filed10/11/05 Page2 of 32

1

b. CDE fails to investigate adequately complaints regarding Defendant school

2 districts' failure to provide a free appropriate public education to all eligible children with diabetes

3 and to otherwise comply with federal laws and regulations that protect children with diabetes.

4

c. By issuing its "Program Advisory on Medication Administration" and

5 suggesting that non-medical personnel not be permitted to administer injectable medication, CDE is

6 perpetuating a practice of failing to afford all children with diabetes their right to a free and

7 appropriate public education.

8

FIRST CLAIM FOR RELIEF

(Violations of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C § 794)

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130. Plaintiffs incorporate by reference all the allegations in paragraphs 1 through 129, above.
131. Plaintiffs are qualified individuals with disabilities within the meanmg of the Rehabilitation Act of 1973. Defendants are the recipients of federal funds sufficient to invoke the coverage of the Rehabilitation Act of 1973.
132. Under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Section 504"), Plaintiffs have an implicit right to bring a civil action in the District Court of the United States to seek redress for the violation of rights protected under. Section 504. Together and

18 separately, these statutes provide the authority under which Plaintiffs now petition this Court for

19 declaratory and injunctive relief for the violations of Section 504 alleged herein.

20

133. By the acts and omissions alleged herein, taken under color of law, Defendants, and

21 each of them, have denied Plaintiffs and similarly situated members of the Plaintiff Class of their

22 rights to a free appropriate public education in the least restrictive environment guaranteed under

23 Section 504, and the regulations promulgated thereunder, 34 C.F.R. § 104, et seq.

24

134. Furthermore, by the acts and omissions alleged herein, taken under color of law,

25 Defendants, and each of them, have violated the rights of Plaintiffs and similarly situated members

26 of the Plaintiff Class to be free from discrimination against handicapped persons by recipients of

27 federal funds in the administration of their programs guaranteed under Section 504, and the

28 regulations promulgated thereunder, 34 C.F.R. § 104, et seq.

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Civil Rights Complaint For Declaratory And Injunctive Relief (Class Action)

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Case3:05-cv-04077-MMC Document1-1 Filed10/11/05 Page3 of 32

1

135. As a direct and proximate result of Defendants' violations of Section 504, Plaintiffs

2 and similarly situated members of the Plaintiff Class have or will suffer irreparable harm, including

3 threats to immediate health and safety.

4

136. Wherefore, Plaintiffs request relief as set forth below.

5

SECOND CLAIM FOR RELIEF

(Violations of the Americans with Disabilities Act of 1990,42 U.S.C. § 12131 et seq.)

6

7

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8 paragraphs 1 through 136 above.

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Americans with Disabilities Act of 1990. Defendants are the recipients of federal funds sufficient to invoke the coverage ofthe Act.
139. Under 42 U.S.C. §12133, Plaintiffs have an explicit right to bring a civil action in the district court of the United States to seek redress for the violation of rights protected under the Americans with Disabilities Act, 42 U.S.C. §12131, et seq. Together and separately, these statutes provide the authority under which Plaintiffs now petition this Court for declaratory and injunctive relief for the violations ofthe Americans with Disabilities Act alleged herein.
140. Defendants, and each of them, acting under color of law, by 1) their failure to

18 discharge their duties to provide a free and appropriate public education to students with disabilities,

19 2) their failure to provide equal education to children with diabetes, and, 3) their discriminatory

20 treatment of children with diabetes, have violated the rights of Plaintiffs and similarly situated

21 members of the Plaintiff Class under the Americans with Disabilities Act, 42 U.S.C. § 12131, and

22 the regulations promulgated thereunder, 28 C.F.R § 35, et seq.

23

141. As a direct and proximate result of Defendants' violations of the American with

24 Disabilities Act, Plaintiffs and similarly situated members of the Plaintiff Class have or will suffer

25 irreparable harm, including threats to immediate health and safety.

26

142. Wherefore, Plaintiffs request relief as set forth below.

27

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Civil Rights Complaint For Declaratory And Injunctive Relief (Class Action)

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Case3:05-cv-04077-MMC Document1-1 Filed10/11/05 Page4 of 32

1

THIRD CLAIM FOR RELIEF

(Violations of the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq.)

2

3

143. Plaintiffs reallege and incorporate by reference as though fully set forth herein

4 paragraphs 1 through 142, above.

5

144. Defendants are the recipients of federal funds sufficient to invoke the coverage of the

6 Individuals with Disabilities Education Act. Under 20 U.S.C. § 1415(i)(2), Plaintiffs have an

7 explicit right to bring a civil action in the District Court ofthe United States to seek redress for the

8 violation of rights protected under the Individuals with Disabilities Education Act, 20 U.S.C.

9 § 1400, et seq. Together and separately, these statutes provide the authority under which Plaintiffs

10 now petition this Court for declaratory and injunctive relief for the violations of the Individuals with

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each of them, have denied Plaintiffs who require IEPs and similarly situated members of the Plaintiff Class of their rights to a free and appropriate public education in the least restrictive environment guaranteed under the Individuals with Disabilities Education Act, 20 U.S.C. § 1401, et

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146. As a direct and proximate result of Defendants' violations of the Individuals with

18 Disabilities Education Act, Plaintiffs and similarly situated members of the Plaintiff Class have or

19 will suffer irreparable harm, including threats to il.1Ui:lediate health and safety.

20

147. No administrative remedy exists under IDEA to address these wholesale violations

21 by Defendants. Accordingly, Plaintiffs are not required to exhaust the administrative procedures set

22 forth in IDEA.

23

148. Wherefore, Plaintiffs request relief as set forth below.

24

25

26

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Civil Rights Complaint For Declaratory And Injunctive Relief (Class Action)

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Case3:05-cv-04077-MMC Document1-1 Filed10/11/05 Page5 of 32

1

PRAYER FOR RELIEF

2

Wherefore, Plaintiffs respectfully pray that this Court:

3

1. Declare in accordance with Rule 23 ofthe Federal Rules of Civil Procedure that this

4 action may be maintained as a class action;

5

2. Certify a class of all children in California entering or in grades Kindergarten through

6 Twelve with diabetes who are within the jurisdiction of California's public schools and who are

7 entitled to diabetes care and management but are not receiving such mandated school health services

8 that would enable them to participate equally and safely in school, and;

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3. Declare that Defendants' practices, actions and omissions have violated the rights of

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children with diabetes protected under Section 504 ofthe Rehabilitation Act of 1973,29 U.S.C. § 794, the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., and the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq.;
4. Enjoin Defendants from violating the rights of children with diabetes, specifically with regard to their immediate health and safety, as protected under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., and the Individuals with Disabilities Education Act of 2004, 20 U.S.C. § 1400, et seq.;

18

5. Enter a mandatory injunction compelling Defendants to provide to every eligible

19 child with diabetes living within each defendant's respective jurisdiction a free and appropriate

20 public education in the least restrictive environment in conformity with the provisions of

21 Section 504 of the Reh~bilitation Act of 1973,29 U.S.C. § 794, and regulations promulgated

22 thereunder ("Section 504"), Title II ofthe Americans with Disabilities Act, 42 U.S.C. § 12131 et

23 seq. ("Title II"), the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq. (as

24 amended by Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-

25 446, Title I) ("IDEA"), and other related federal laws and regulations by designing, adopting and

26 implementing policies, procedures, programs, plans and practices that will meet the needs of

27 children with diabetes in grades Kindergarten through Twelve, including the following:

28

a. Order defendants SRVUSD and FUSD to design, adopt and implement

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Case3:05-cv-04077-MMC Document1-1 Filed10/11/05 Page6 of 32

comprehensive policies, procedures, programs and/or directives that will provide for

sufficient advance notice to parents so that an individualized DMMP ("DMMP") for each

eligible student may be developed in conjunction with the parents and the treating physician

of the student, and that a DMMP so developed shall be incorporated into and made a part of

each student's Individualized Education Program ("IEP") adopted pursuant to IDEA and/or

written placement plan adopted pursuant to Section 504 ("Section 504 Plan"), as appropriate.

IEPs and Section 504 Plans developed in compliance with this section shall:

1.

Afford to each student with diabetes access to diabetes care, including

testing ofblood glucose levels and responding with appropriate care including

needed medication, food, and liquids, with such care to be self-administered or

provided by trained adults ("Trained Personnel") in accordance with the student's

DMMP;

ii.

Permit diabetes care to be administered in the classroom, in any

location where a student is participating in a school activity, and/or in a private area

close to where the student is located when the student's DMMP so provides;

111.

Permit any student with diabetes to see a nurse or other school staff

member trained in diabetes treatment, in conformity with the student's DMMP;

1v.

Ensure that in every school with at least one student with diabetes,

there are sufficient numbers of Trained Personnel who are willing and able to

perform any of the following: (a) observe and recognize signs and symptoms of

hypoglycemia and hyperglycemia; (b) test blood glucose levels and monitor and

record test results, when the student's DMMP so provides;· (c) treat hyperglycemia

and hypoglycemia by taking actions specified in the student's DMMP; (d) administer.

insulin, glucagon and other diabetes medication, administer food or liquids, and take

any other necessary actions as specified by the student's DMMP; and (e) monitor the

student's meals, snacks, and medication and work with the student's parent or

guardian to coordinate the student's meal and snack schedule with that of the other

pupils as closely as possible. The number of Trained Personnel shall be sufficient to

-38-
Civil Rights Complaint For Declaratory And Injunctive Relief (Class Action)

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Case3:05-cv-04077-MMC Document1-1 Filed10/11/05 Page7 of 32

ensure that at least one adult is present to perform the above-described tasks in a

timely manner while the student is at school, on field trips, during extracurricular

activities or other school-sponsored events, and in the event of a natural disaster,

including but not limited to an earthquake;

v.

Ensure that in the event a student with diabetes suffers acute

hypoglycemia Trained Personnel administer glucagon as necessary and in conformity

with the student's DMMP; contact local emergency response personnel; notify the

on-call credentialed school nurse or other appropriate school personnel and the

pupil's parent or guardian; and take any other actions prescribed under such

circumstances by the student's DMMP;

VI.

Ensure that all food, medications and supplies needed by each student

with diabetes as prescribed by the student's DMMP, in the event of a natural disaster,

including but not limited to an earthquake, are properly stored and readily accessible

to Trained Personnel;

vn.

Ensure that training as described in subparagraph 5.a.iv above is

provided in a timely manner by health care professionals or other qualified

individuals with expertise or training in the care and treatment of diabetes in youth;

viii.

Ensure that in every school that has at least one pupil with diabetes

Trained Personnel are immediately available to administer insulin and glucagon;

IX.

Permit any student with diabetes: (a) to miss school without

consequences for required medical appointments related to the student's diabetes

when the student presents a doctor's note if such note is generally required by school

policy; and (b) be allotted extra time for tests and other graded work if necessary due

to hypoglygemia or hyperglycemia;

x.

Permit any student with diabetes: (a) to use the restroom as necessary;

and (b) to have access to fluids as necessary;

XI.

Permit students with diabetes to carry their diabetes-related supplies

and equipment on their person and/or provide a location for insulin and/or glucagon

-39-
Civil Rights Complaint For Declaratory And Injunctive Relief (Class Action)

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Case3:05-cv-04077-MMC Document1-1 Filed10/11/05 Page8 of 32

storage, if necessary, that allows immediate access to these supplies;

xu.

Comply with the universal precautions and requirements for handling

and disposing of contaminated sharps, as prescribed by regulations adopted by the

California Department of Industrial Relations;

xm.

Incorporate all other necessary school health services in order for a

student with diabetes to receive a free appropriate public education in the least

restrictive environment in conformity with applicable law and to benefit from special

education and/or related services; and

XIV.

Ensure that assignment of students to schools and classes in grades

Kindergarten through Twelve is made without regard to the student's diabetes.

b. Order Defendant CDE:

1.

To design, adopt and implement written policies, procedures,

programs and/or directives that will require SRVUSD, FUSD and all other California

school districts to comply with all of the provisions of subparagraph 5.a, above;

u.

To monitor SRVUSD, FUSD and all other public California school

districts to ensure ongoing compliance with all of the provisions of subparagraph 5.a,

above;

m.

To investigate and act upon complaints made by interested third

parties on behalf of a discernible class or group of individuals alleging a practice or

policy in violation of Section 504, Title II or IDEA without requiring that such

complaints identify affected children by name or supply facts pertaining to the

individual children; and

IV.

To ensure each school district provides informational materials

explaining to the parents or guardians of students with diabetes in grades

Kindergarten through Twelve within their jurisdictions the rights of the students and

parents under Section 504, ADA, IDEA, other applicable federal laws and

regulations, and the policy, procedure, program and/or directive implemented in

compliance with subparagraph 5.a, above.

-40-
Civil Rights Complaint For Declaratory And Injunctive Relief (Class Action)

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Case3:05-cv-04077-MMC Document1-1 Filed10/11/05 Page9 of 32

c. Order Defendants SRVUSD and FUSD to adopt, implement and comply with

any policy, program and/or directive established and implemented by CDE as it relates to

Plaintiffs and similarly situated members ofthe Plaintiff Class.

d. Order Defendants SRVUSD and FUSD to comply with and implement

DMMPs developed in conjunction with parents and treating physician of students with

diabetes.

e. Order Defendant SRVUSD to conduct a meeting between school

administrators, nurse, teachers, parents and any other relevant school personnel to discuss

SRVUSD's responsibilities and duties with regard to the services required for students with

diabetes in grades Kindergarten through Twelve within the jurisdiction ofSRVUSD.

f.

Order Defendant FUSD to conduct a meeting between school administrators,

nurse, teachers, parents and any other relevant school personnel to discuss FUSD's

responsibilities and duties with regard to the services required for students with diabetes in

grades Kindergarten through Twelve within the jurisdiction ofFUSD.

g. Order Defendants SRVUSD and FUSD to provide informational materials

and documentation explaining the rights of students with diabetes in grades Kindergarten

through Twelve and their parents within the jurisdictions of SRVUSD and FUSD under the

aforementioned policy, program or directive regarding diabetes care in schools, Section 504,

ADA, IDEA and other applicable federal laws and regulations.

h. Order all Defendants to provide, by a specified date, written documentation

demonstrating that they are providing students with diabetes in grades Kindergarten through

Twelve mandated school health services that enable them to participate equally and safely in

school to ensure a free and appropriate public education and that they are meeting the

requirements of such an order and Section 504, ADA, and IDEA.

1.

Retain jurisdiction over all Defendants until such time as the Court is satisfied

that their unlawful policies, practices, acts and omissions complained of herein no longer

exist and will not recur, and that Defendants are fully and completely fulfilling their duties to

provide all children with diabetes within the appropriate jurisdictions mandated school

-41-
Civil Rights Complaint For Declaratory And Injunctive Relief (Class Action)

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Case3:05-cv-04077-MMC Document1-1 Filed10/11/05 Page10 of 32
health services that enable them to participate equally and safely in school to ensure a free appropriate public education in the least restrictive environment. 6. Award Plaintiffs' costs, disbursements, and reasonable attorney's fees. 7. Grant any other relief as this Court may deem just and proper.

DATED: October 1/,2005.

REED SMITH LLP

and
DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, INC. Arlene Mayerson Larisa Cummings 2212 Sixth Street Berkeley, CA 94710 Telephone: 510.644.2555 Facsimile: 510.841.8645
Attorneys for Plaintiffs

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Case3:05-cv-04077-MMC Document1-1 Filed10/11/05 Page11 of 32

DEMAND FOR JURY TRIAL Plaintiffs hereby demand a jury trial.

DATED: October f/, 2005.

REED SMITH LLP

and
DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, INC. Arlene Mayers~n Larisa Cummings 2212 Sixth Street Berkeley, CA 94710 Telephone: 510.644.2555 Facsimile: 510.841.8645
Attorneys for Plaintiffs

-43-
Civil Rights Complaint For Declaratory And Injunctive Relief (Class Action)

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Case3:05-cv-04077-MMC Document1-1 Filed10/11/05 Page12 of 32

1

CERTIFICATION OF INTERESTED ENTITIES OR PERSONS

2 Pursuant to Civil LR 3-16, the undersigned certifies that as of this date, other than the named
3 parties, there is no such interest to report.
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5 DATED: October // , 2005.
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DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, INC. Arlene Mayerson Larisa Cummings 2212 Sixth Street Berkeley, CA 94710 Telephone: 510.644.2555 Facsimile: 510.841.8645
Attorneys for Plaintiffs

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-44-
Civil Rights Complaint For Declaratory And Injunctive Relief (Class Action)

 
 Case: 12-16178 08/11/2014

ID: 9199551 DktEntry: 23-1 Page: 1 of 17

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

K.C., by and through Erica C., her guardian; A.A., by and through Stacey A., her guardian; M.C., by and through Laurie C., her guardian; K.F., by and through Sheree F., her guardian; AMERICAN DIABETES ASSOCIATION,
Plaintiffs-Appellants,

No. 12-16178 D.C. No.
3:05-cv-04077MMC
OPINION

v.

TOM TORLAKSON, in his official capacity as Superintendent of Public Instruction for the State of California,
Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California
Maxine M. Chesney, Senior District Judge, Presiding
Argued and Submitted April 10, 2014—San Francisco, California
Filed August 11, 2014
Before: John T. Noonan, Jacqueline H. Nguyen, and Paul J. Watford, Circuit Judges.
Opinion by Judge Nguyen

Case: 12-16178 08/11/2014

ID: 9199551 DktEntry: 23-1 Page: 2 of 17

2

K.C. V. TORLAKSON

SUMMARY*

Ancillary Jurisdiction / Attorneys’ Fees
The panel reversed the district court’s denial, for lack of jurisdiction, of plaintiffs’ motion for attorneys’ fees for monitoring defendants’ compliance with a settlement agreement in an action under the Americans with Disabilities Act and other statutes concerning services for students with diabetes in California public schools.
The district court retained limited jurisdiction to enforce the settlement agreement. Plaintiffs sought attorneys’ fees after the court’s jurisdiction to enforce the settlement agreement had expired under the terms of that agreement. The panel held that the motion for attorneys’ fees did not seek to enforce the settlement agreement; consequently, the conclusion that the district court lacked ancillary jurisdiction to enforce the settlement agreement was irrelevant. The panel also held that the district court independently had ancillary jurisdiction over the post-judgment attorneys’ fees dispute, irrespective of the fact that the court’s jurisdiction to enforce the settlement agreement had expired. The panel remanded for the district court in its discretion to decide whether to exercise ancillary jurisdiction over the motion for attorneys’ fees.

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

Case: 12-16178 08/11/2014

ID: 9199551 DktEntry: 23-1 Page: 3 of 17

K.C. V. TORLAKSON

3

COUNSEL

Donna Brorby (argued), Law Office of Donna Brorby, San Francisco, California; Arlene B. Mayerson, Larisa M. Cummings and Charlotte L. Lanvers, Disability Rights Education and Defense Fund, Inc., Berkeley, California, for Plaintiffs-Appellants.

Paul E. Lacy (argued), Deputy General Counsel, Amy Bisson Holloway, General Counsel, Edmundo Aguilar, Assistant General Counsel, and Ava C. Yajima, Deputy General Counsel, California Department of Education, Sacramento, California, for Defendants-Appellees.

OPINION
NGUYEN, Circuit Judge:
The common-law doctrine of ancillary jurisdiction over related claims, codified as part of a federal court’s supplemental jurisdiction under 28 U.S.C. § 1367, is generally well understood. Yet, as the Supreme Court observed, the “doctrine of ancillary jurisdiction can hardly be criticized for being overly rigid or precise,” because the more obscure doctrine of ancillary jurisdiction over collateral proceedings remains a matter of case law. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 379 (1994); see 13 Charles Alan Wright et al., Federal Practice & Procedure § 3523 (3d ed.). The present appeal involves the latter—ancillary jurisdiction over proceedings related to, but technically separate from, a federal lawsuit. Under this doctrine, a federal court may exercise ancillary jurisdiction over collateral proceedings in two distinct contexts that are

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relevant here: to enforce a settlement agreement, and to resolve an attorney’s fees dispute.

Four juvenile plaintiffs, by and through their respective guardians, and the American Diabetes Association (collectively, “Plaintiffs”) filed a putative class action against Jack O’Connell, in his official capacity as Superintendent of Public Instruction for the State of California,1 the State Board of Education and the California Department of Education (collectively, “Defendants”). The parties eventually settled, and the district court retained limited jurisdiction to enforce their settlement agreement. After the court’s jurisdiction to enforce the settlement agreement had expired under the terms of that agreement, Plaintiffs filed a motion seeking attorneys’ fees for monitoring Defendants’ compliance with the agreement. The district court denied the motion for lack of jurisdiction on the ground that its jurisdiction to enforce the settlement agreement had expired.

On appeal, Plaintiffs’ argument is two-fold. First, they argue that their motion for attorneys’ fees does not seek to enforce the settlement agreement. Consequently, the conclusion that the district court lacks ancillary jurisdiction to enforce the settlement agreement is irrelevant. Second, they argue that the district court independently has ancillary jurisdiction over a post-judgment attorneys’ fees dispute, irrespective of the fact that the court’s jurisdiction to enforce the settlement agreement has expired. We agree. Therefore, we reverse and remand.

1 Tom Torlakson subsequently replaced Jack O’Connell as superintendent.

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BACKGROUND

In October 2005, Plaintiffs filed a putative class action alleging that Defendants failed to provide necessary services for students with diabetes in California public schools. Plaintiffs alleged violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq., Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. § 794, and the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.

In July 2007, the parties entered into a settlement agreement, resolving Plaintiffs’ claims (the “Settlement Agreement”). On August 8, 2007, “pursuant to the settlement agreement between the parties, the terms of which [we]re expressly incorporated [t]herein,” the district court entered an order of dismissal with prejudice. Under the Settlement Agreement, Plaintiffs’ attorneys were awarded $400,000 in fees.2

Under paragraph 14 of the Settlement Agreement, the district court retained jurisdiction for two and one-half years from the effective date of the Settlement Agreement, “solely to rule on any motion filed pursuant either to Paragraph 1.b. or to Paragraph 10, of [the Settlement Agreement].” The district court found that the “effective date” of the Settlement Agreement was July 24, 2007.

On November 18, 2011, almost two years after the district court’s jurisdiction to enforce the Settlement Agreement had

2 Separately, Plaintiffs’ pro bono co-counsel were awarded $30,000 in costs, waiving a claim for potential attorneys’ fees in excess of $1,800,000.

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expired, Plaintiffs filed a motion for an additional $288,627.41 in attorneys’ fees, pursuant to the ADA, 42 U.S.C. § 12205, Section 504, 29 U.S.C. § 794a(b), and the IDEA, 20 U.S.C. § 1415(i)(3)(B), “for their work monitoring implementation of the settlement with the California Department of Education in this matter.”

On April 20, 2012, the district court denied Plaintiffs’ motion for lack of jurisdiction. The court ruled that the Settlement Agreement limited the “time within which the Court may entertain a motion for such fees,” and that the time had expired. On May 15, 2012, Plaintiffs timely appealed.

JURISDICTION

The district court had jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291. Cf. Balla v. Idaho, 677 F.3d 910, 915 (9th Cir. 2012) (“Periodic fee awards for monitoring compliance with a final judgment are appealable [under Section 1291] if the award disposes of the attorneys’ fee issue for the work performed during the time period covered by the award.”).

STANDARDS OF REVIEW

“A district court’s decision to deny attorney’s fees is reviewed for an abuse of discretion.” United States v. One 1997 Toyota Land Cruiser, 248 F.3d 899, 903 (9th Cir. 2001). “An abuse of discretion occurs if the district court based its decision on an erroneous legal conclusion or a clearly erroneous finding of fact.” Andrew v. Bowen, 837 F.2d 875, 877 (9th Cir. 1988). “Any elements of legal analysis and statutory interpretation that figure in the district court’s attorneys’ fees decision are reviewed de novo.” Barrios v.

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Cal. Interscholastic Fed’n, 277 F.3d 1128, 1133 (9th Cir. 2002). Here, “[t]he existence of subject matter jurisdiction is a question of law that we review de novo.” Marin Gen. Hosp. v. Modesto & Empire Traction Co., 581 F.3d 941, 944 (9th Cir. 2009).

DISCUSSION

I

The “doctrine of ancillary jurisdiction . . . recognizes federal courts’ jurisdiction over some matters (otherwise beyond their competence) that are incidental to other matters properly before them.” Kokkonen, 511 U.S. at 378. Broadly speaking, federal courts exercise ancillary jurisdiction “for two separate, though sometimes related, purposes: (1) to permit disposition by a single court of claims that are, in varying respects and degrees, factually interdependent; and (2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees.” Id. at 379–80 (emphases added).

The first and well-known purpose—ancillary jurisdiction over factually interdependent claims—is codified as part of 28 U.S.C. § 1367. See Peacock v. Thomas, 516 U.S. 349, 354 n.5 (1996) (“Congress codified much of the common-law doctrine of ancillary jurisdiction as part of ‘supplemental jurisdiction’ in 28 U.S.C. § 1367.”). That purpose, however, is not relevant here.

This case instead involves the second, less common purpose—ancillary jurisdiction over collateral proceedings. Nat’l City Mortgage Co. v. Stephen, 647 F.3d 78, 85 (3d Cir. 2011) (“Ancillary jurisdiction is a common law doctrine that

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survived the codification of supplemental jurisdiction in 28 U.S.C. § 1367.”); see 13 Charles Alan Wright et al., Federal Practice & Procedure § 3523.2 (3d ed.) (differentiating “supplemental jurisdiction over claims asserted in federal court” from “jurisdiction over related proceedings that are technically separate from the initial case that invoked federal subject matter jurisdiction” (emphasis in original)).

As the Tenth Circuit has explained, this less common exercise of non-statutory ancillary jurisdiction “rests on the premise that a federal court acquires jurisdiction of a case or controversy in its entirety. Incident to the disposition of the principal issues before it, a court may decide collateral matters necessary to render complete justice.” Jenkins v. Weinshienk, 670 F.2d 915, 918 (10th Cir. 1982).

In particular, this appeal turns on the distinction between a court’s ancillary jurisdiction to enforce a settlement agreement and its ancillary jurisdiction over collateral matters such as an attorney’s fees dispute.

II

A

We first address a court’s authority to enforce settlement agreements. Federal courts “have no inherent power to enforce settlement agreements entered into by parties litigating before them.” Arata v. Nu Skin Int’l, Inc., 96 F.3d 1265, 1268 (9th Cir. 1996) (citing Kokkonen, 511 U.S. at 378). Rather, courts have ancillary jurisdiction to enforce a settlement agreement only “if the parties’ obligation to comply with the terms of the settlement agreement ha[s] been

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made part of the order of dismissal—either by separate provision (such as a provision ‘retaining jurisdiction’ over the settlement agreement) or by incorporating the terms of the settlement agreement in the order.” Kokkonen, 511 U.S. at 381.

In the event the settlement agreement is breached, the court would have ancillary jurisdiction that arises from breach of the court’s dismissal order. Id.; see also Alvarado v. Table Mountain Rancheria, 509 F.3d 1008, 1017 (9th Cir. 2007) (stating that where “the dismissal order incorporates the settlement terms, or the court has retained jurisdiction over the settlement contract . . . . the party seeking enforcement of the settlement agreement must allege a violation of the settlement agreement in order to establish ancillary jurisdiction” (citing Kokkonen, 511 U.S. at 381–82, and O’Connor v. Colvin, 70 F.3d 530, 532 (9th Cir. 1995)).

B

In this case, there is no dispute that the terms of the parties’ Settlement Agreement “had been made part of the order of dismissal . . . by incorporating the terms of the settlement agreement in the order.” Kokkonen, 511 U.S. at 381. Further, the district court specifically retained jurisdiction over the Settlement Agreement. Consequently, any breach of the Settlement Agreement “would be a violation of the order, and ancillary jurisdiction to enforce the agreement would therefore exist.” Id.

As the district court noted, the Settlement Agreement, and the court’s order incorporating its terms, “limit[ed] the Court’s exercise of that jurisdiction in both time and manner.” The district court retained jurisdiction for two and

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one-half years from the effective date of the Settlement Agreement—that is, until January 24, 2010—“solely to rule on any motion filed pursuant either to Paragraph 1.b. or to Paragraph 10, of [the Settlement Agreement].” Because Plaintiffs’ motion for attorneys’ fees was filed well after that date, and was not filed pursuant to either Paragraph 1.b. or Paragraph 10, the district court correctly concluded that it has no ancillary jurisdiction to enforce the parties’ Settlement Agreement.

III

That conclusion, however, does not end the matter. The dispositive question is whether the court nevertheless has ancillary jurisdiction over Plaintiffs’ motion for attorneys’ fees, even though it no longer has jurisdiction to enforce the Settlement Agreement. To answer that question, we turn to the case law regarding ancillary jurisdiction over a postjudgment attorney’s fees dispute.

A

1

There is no debate that a federal court properly may exercise ancillary jurisdiction “over attorney fee disputes collateral to the underlying litigation.” Fed. Sav. & Loan Ins. Corp. v. Ferrante, 364 F.3d 1037, 1041 (9th Cir. 2004) (citing cases); White v. N.H. Dep’t of Employment Sec., 455 U.S. 445, 454 (1982) (discussing postjudgment motion in which the plaintiff sought attorney’s fees, as the prevailing party under 42 U.S.C. § 1988, four and one-half months after the parties had signed a settlement agreement and the district court had approved a consent decree); Sprague v. Ticonic

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Nat’l Bank, 307 U.S. 161, 164 (1939) (“Allowance of such costs in appropriate situations is part of the historic equity jurisdiction of the federal courts.”); Schmidt v. Zazzara, 544 F.2d 412, 414 (9th Cir. 1976) (quoting Sprague, 307 U.S. at 164); Wright et al., supra, §3523.2 (“One of the bestestablished uses of ancillary jurisdiction is over proceedings concerning costs and attorney’s fees.”).

Moreover, such ancillary jurisdiction exists even after the underlying litigation has concluded. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395 (1990). As the Supreme Court explained, “motions for costs or attorney’s fees are ‘independent proceeding[s] supplemental to the original proceeding and not a request for a modification of the original decree.’” Id. (quoting Sprague, 307 U.S. at 170). “Thus, even ‘years after the entry of a judgment on the merits’ a federal court could consider an award of counsel fees.” Id. at 395–96 (quoting White, 455 U.S. 451 n.13); see also Zucker v. Occidental Petroleum Corp., 192 F.3d 1323, 1329 (9th Cir. 1999) (“No Article III case or controversy is needed with regard to attorneys’ fees . . . because they are but an ancillary matter over which the district court retains equitable jurisdiction even when the underlying case is moot.”); Reiser v. Del Monte Props. Co., 605 F.2d 1135, 1140 (9th Cir. 1979) (“[A]n attorneys’ fees question ancillary to the case survives independently under the court’s equitable jurisdiction.” (citing Schmidt, 544 F.2d at 414)); United States v. Ford, 650 F.2d 1141, 1143–44 (9th Cir. 1981) (same); Carter v. Veterans Admin., 780 F.2d 1479, 1481 (9th Cir. 1986) (same (citing Ford, 650 F.2d at 1143–44)).

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2

Importantly, a district court’s ancillary jurisdiction over an attorney’s fees dispute is inherent and broader than its ancillary jurisdiction to enforce a settlement agreement. The Second Circuit’s decision in In re Austrian & German Bank Holocaust Litigation, 317 F.3d 91 (2d Cir. 2003), is illustrative. There, the parties had settled a complicated class action lawsuit and agreed that attorneys’ fees would be awarded pursuant to the decision of two arbitrators. Id. at 92–97. Certain class members objected to the arbitrators’ eventual fee award. Id. at 96–97. The district court found that it lacked jurisdiction and denied the petition for fee forfeiture. Id. at 97. The Second Circuit affirmed on different grounds, but disagreed on the jurisdictional question. Id. at 92.

In its discussion, the Second Circuit differentiated between ancillary jurisdiction to enforce the agreement and ancillary jurisdiction over the collateral fee dispute, stating:

Appellees contend that the District Court lacked jurisdiction . . . because the Consolidated Complaint had been dismissed without any reservation of continuing court authority. They rely on [Kokkonen], which held that a district court lacks ancillary jurisdiction to enforce a settlement agreement after the underlying lawsuit has been dismissed unless the parties agree to such continuing authority or the court retains jurisdiction for such purpose. In Appellees’ view, because the fees were provided pursuant to the German Compact, any review of fees

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would constitute a review of the Compact, which would amount to an attempt to enforce a settlement in violation of Kokkonen.

. . . .

We disagree. [The objectors are] not seeking to implement any aspect of the German Compact or any of its constituent parts. [They are] not contending, as did the claimants in Kokkonen, that some provision of a settlement (here, the Compact or its components) obligates the Appellees to take the action [the objectors seek]. Rather, [the objectors] merely seek[] to adjudicate a lawyer’s entitlement to retain fees earned, at least in part, for services rendered in connection with a case within a district court’s jurisdiction.

Id. at 97–99 (citations omitted).

B

Likewise, here, Plaintiffs are “not seeking to implement any aspect” of the Settlement Agreement or “any of its constituent parts.” Id. at 99. Nor are they “contending . . . that some provision” of the Settlement Agreement or “its components[] obligates” Defendants to pay attorneys’ fees for the monitoring of post-settlement compliance. Id. Instead, they argue that they are the “prevailing party” under the relevant federal statutes—e.g., the ADA, Section 504, and the IDEA—and seek to collect attorneys’ fees on this basis. As such, the fact that the district court lacks ancillary jurisdiction

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to enforce the Settlement Agreement under Kokkonen is irrelevant.

The district court’s error was in failing to recognize the distinction between ancillary jurisdiction to enforce a settlement agreement and ancillary jurisdiction over an attorney’s fees dispute. As discussed above, the district court has broad, inherent authority over collateral matters such as attorney’s fees, and such ancillary jurisdiction extends beyond dismissal of the underlying lawsuit. See, e.g., Ferrante, 364 F.3d at 1041 (citing cases); Zucker, 192 F.3d at 1329; see also In re Austrian & German Bank Holocaust Litig., 317 F.3d at 98 (“Whenever a district court has federal jurisdiction over a case, it retains ancillary jurisdiction after dismissal to adjudicate collateral matters such as attorney’s fees.” (discussing Cooter & Gell, 496 U.S. 384)).

Consequently, while the Settlement Agreement (as incorporated into the district court’s dismissal order) limited the district court’s ancillary jurisdiction to enforce the terms of the parties’ settlement, it did not affect the court’s ancillary jurisdiction over an attorney’s fees dispute. Unlike its ancillary jurisdiction to enforce the Settlement Agreement, the court’s ancillary jurisdiction over Plaintiffs’ motion for attorneys’ fees need not have been explicitly “retained.”

In Schmidt, we rejected the defendant’s argument that the district court had erred in “retaining jurisdiction over the question of attorney’s fees after the consent judgment had been entered.” 544 F.2d at 414. We reasoned that “[a]llowance of attorney’s fees ‘is part of the historic equity jurisdiction of the federal courts,’ and the district court could properly retain jurisdiction to determine appropriate attorney’s fees ancillary to the case.” Id. (citing Sprague,

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307 U.S. at 164). But neither Schmidt nor any other case requires that a district court explicitly “retain” ancillary jurisdiction to adjudicate a post-judgment motion for attorney’s fees. See In re Austrian & German Bank Holocaust Litig., 317 F.3d at 97–99 (concluding that the district court had ancillary jurisdiction over the fee dispute even though the complaint “had been dismissed without any reservation of continuing court authority”); cf. Peacock, 516 U.S. at 356 (“We have reserved the use of ancillary jurisdiction in subsequent proceedings for the exercise of a federal court’s inherent power to enforce its judgments.”). Similarly, Defendants have identified no authority for the proposition that a district court’s dismissal order can divest (or otherwise impose a time limit upon) the court’s inherent jurisdiction over a collateral attorney’s fees dispute. See Cooter & Gell, 496 U.S. at 396 (“Like the imposition of costs, attorney’s fees, and contempt sanctions, the imposition of a Rule 11 sanction is not a judgment on the merits of an action. Rather, it requires the determination of a collateral issue . . . . Such a determination may be made after the principal suit has been terminated.”).

It bears repeating that Plaintiffs are seeking attorneys’ fees pursuant to federal law. This is not an attorney-client fee dispute that could be resolved in state court as a breach of contract claim. As the Seventh Circuit has said, “[t]he purpose of the ancillary jurisdiction of the federal courts . . . is to enable a federal court to render a judgment that resolves the entire case before it and to effectuate its judgment once it has been rendered.” Shapo v. Engle, 463 F.3d 641, 644–45 (7th Cir. 2006). “It is not to enable a federal court to encroach on the jurisdiction reserved to the states merely because the parties would prefer to have a federal court resolve their future disputes . . . .” Id. at 645.

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Moreover, even assuming that Plaintiffs could recast their motion as a claim for attorneys’ fees in a separate federal lawsuit, it is not “necessary” for them to do so. Schmidt, 544 F.2d at 414 (citation and internal quotation marks omitted). Requiring a separate lawsuit – that hypothetically would invoke federal question jurisdiction – not only would interfere with the district court’s powers to render a judgment that resolves the entire case and to effectuate its judgment, but also would harm judicial economy and efficiency. Practically speaking, any such separate “attorneys’ fees only” lawsuit likely would be referred to the district judge who presided over the underlying lawsuit anyway.

Thus, we hold that the district court has ancillary jurisdiction over Plaintiffs’ motion for attorneys’ fees.

IV

Our holding is limited to the jurisdictional question. Whether Plaintiffs are entitled to attorneys’ fees is a question for the district court on remand. See Reiser, 605 F.2d at 1140 (“We . . . express no opinion concerning the propriety of an award in this case, a matter within the discretion of the trial judge.”).

Further, the exercise of ancillary jurisdiction over an attorney’s fees dispute is discretionary. See In re Austrian & German Bank Holocaust Litig., 317 F.3d at 101 (“We have previously recognized that the existence of ancillary jurisdiction to adjudicate a fee dispute after the dismissal of a lawsuit calls for the sound exercise of a district court’s discretion whether to entertain the merits of the dispute . . . .”); cf. Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991)

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(“Because of their very potency, inherent powers must be exercised with restraint and discretion.”).

CONCLUSION

On remand, the district court in its discretion will decide whether to exercise ancillary jurisdiction over Plaintiffs’ motion for attorneys’ fees.

We need not address any other arguments raised on appeal.

REVERSED and REMANDED.

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United States Court of Appeals for the Ninth Circuit

Office of the Clerk 95 Seventh Street San Francisco, CA 94103

Information Regarding Judgment and Post-Judgment Proceedings

Judgment • This Court has filed and entered the attached judgment in your case. Fed. R. App. P. 36. Please note the filed date on the attached decision because all of the dates described below run from that date, not from the date you receive this notice.

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Petition for Panel Rehearing (Fed. R. App. P. 40; 9th Cir. R. 40-1) Petition for Rehearing En Banc (Fed. R. App. P. 35; 9th Cir. R. 35-1 to -3)

(1) A. •
•

Purpose (Panel Rehearing): A party should seek panel rehearing only if one or more of the following grounds exist: ► A material point of fact or law was overlooked in the decision; ► A change in the law occurred after the case was submitted which
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addressed in the opinion. Do not file a petition for panel rehearing merely to reargue the case.

B. Purpose (Rehearing En Banc) • A party should seek en banc rehearing only if one or more of the following
grounds exist:

Post Judgment Form - Rev. 08/2013

1

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► Consideration by the full Court is necessary to secure or maintain uniformity of the Court’s decisions; or
► The proceeding involves a question of exceptional importance; or ► The opinion directly conflicts with an existing opinion by another
court of appeals or the Supreme Court and substantially affects a rule of national application in which there is an overriding need for national uniformity.
(2) Deadlines for Filing: • A petition for rehearing may be filed within 14 days after entry of judgment. Fed. R. App. P. 40(a)(1). • If the United States or an agency or officer thereof is a party in a civil case, the time for filing a petition for rehearing is 45 days after entry of judgment. Fed. R. App. P. 40(a)(1). • If the mandate has issued, the petition for rehearing should be accompanied by a motion to recall the mandate. • See Advisory Note to 9th Cir. R. 40-1 (petitions must be received on the due date). • An order to publish a previously unpublished memorandum disposition extends the time to file a petition for rehearing to 14 days after the date of the order of publication or, in all civil cases in which the United States or an agency or officer thereof is a party, 45 days after the date of the order of publication. 9th Cir. R. 40-2.
(3) Statement of Counsel • A petition should contain an introduction stating that, in counsel’s judgment, one or more of the situations described in the “purpose” section above exist. The points to be raised must be stated clearly.
(4) Form & Number of Copies (9th Cir. R. 40-1; Fed. R. App. P. 32(c)(2)) • The petition shall not exceed 15 pages unless it complies with the alternative length limitations of 4,200 words or 390 lines of text. • The petition must be accompanied by a copy of the panel’s decision being challenged. • An answer, when ordered by the Court, shall comply with the same length limitations as the petition. • If a pro se litigant elects to file a form brief pursuant to Circuit Rule 28-1, a petition for panel rehearing or for rehearing en banc need not comply with Fed. R. App. P. 32.

Post Judgment Form - Rev. 08/2013

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• The petition or answer must be accompanied by a Certificate of Compliance found at Form 11, available on our website at www.ca9.uscourts.gov under Forms.
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Bill of Costs (Fed. R. App. P. 39, 9th Cir. R. 39-1) • The Bill of Costs must be filed within 14 days after entry of judgment. • See Form 10 for additional information, available on our website at www.ca9.uscourts.gov under Forms.
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Post Judgment Form - Rev. 08/2013

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Form 10. Bill of Costs ................................................................................................................................(Rev. 12-1-09)

United States Court of Appeals for the Ninth Circuit

BILL OF COSTS

Note:

If you wish to file a bill of costs, it MUST be submitted on this form and filed, with the clerk, with proof of service, within 14 days of the date of entry of judgment, and in accordance with 9th Circuit Rule 39-1. A late bill of costs must be accompanied by a motion showing good cause. Please refer to FRAP 39, 28 U.S.C. § 1920, and 9th Circuit Rule 39-1 when preparing your bill of costs.

v.

9th Cir. No.

The Clerk is requested to tax the following costs against:

Cost Taxable under FRAP 39, 28 U.S.C. § 1920, 9th Cir. R. 39-1
Excerpt of Record Opening Brief Answering Brief

REQUESTED Each Column Must Be Completed

ALLOWED To Be Completed by the Clerk

No. of Pages per Cost per

Docs.

Doc.

Page*

TOTAL COST

$

$

$

$

$

$

No. of Pages per Cost per

Docs.

Doc.

Page*

TOTAL COST

$

$

$

$

$

$

Reply Brief

$

$

$

$

Other**

$

$

$

$

TOTAL: $

TOTAL: $

* Costs per page may not exceed .10 or actual cost, whichever is less. 9th Circuit Rule 39-1.
** Other: Any other requests must be accompanied by a statement explaining why the item(s) should be taxed pursuant to 9th Circuit Rule 39-1. Additional items without such supporting statements will not be considered.

Attorneys' fees cannot be requested on this form.

Continue to next page.

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I,

, swear under penalty of perjury that the services for which costs are taxed

were actually and necessarily performed, and that the requested costs were actually expended as listed.

Signature ("s/" plus attorney's name if submitted electronically) Date
Name of Counsel:

Attorney for:

(To Be Completed by the Clerk) Date

Costs are taxed in the amount of $ Clerk of Court By:

, Deputy Clerk

 
 Case3:05-cv-04077-MMC Document124 Filed04/20/12 Page1 of 6

United States District Court For the Northern District of California

1

2

3

4

5

6

7

8 IN THE UNITED STATES DISTRICT COURT
9

10

FOR THE NORTHERN DISTRICT OF CALIFORNIA

11

12

K.C., by and through Erica C., her guardian, et al.,

13

Plaintiffs,

14 v.

15 TOM TORLAKSON, in his official capacity

16

as Superintendent of Public Instruction for the State of California, et al.,

17

Defendants.

/

18

No. C 05-4077 MMC ORDER DENYING PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND EXPENSES

19

Before the Court is plaintiffs’ “Motion for Reasonable Fees and Expenses,” filed

20 November 18, 2011, pursuant to 42 U.S.C. § 12205, 29 U.S.C. § 794a(b), and 20 U.S.C.

21 § 1415(i)(3)(B). Defendants have filed opposition, to which plaintiffs have replied. The

22 matter came on regularly for hearing January 27, 2012. Donna Brorby of the Law Office of

23 Donna Brorby and Arlene B. Mayerson and Larissa M. Cummings of Disability Rights

24 Education and Defense Fund, Inc. appeared on behalf of plaintiffs. Paul E. Lacy and Ava

25 C. Yajima, Deputy General Counsel for the California Department of Education, appeared

26 on behalf of defendants. Having read and considered the parties’ respective written

27

28

Case3:05-cv-04077-MMC Document124 Filed04/20/12 Page2 of 6

1 submissions,1 and having considered the arguments of counsel at the hearing, the Court

2 rules as follows.

3

BACKGROUND

4

On October 11, 2005, plaintiff K.C., by and through Erica C., her guardian, plaintiff

5 A.A., by and through Stacey A., her guardian, plaintiff M.C., by and through Laurie C., her

6 guardian, plaintiff K.F., by and through Shereé F., her guardian, and plaintiff American

7 Diabetes Association filed a putative class action complaint against, inter alia, defendants

8 Jack O’Connell, in his official capacity as Superintendent of Public Instruction for the State 9 of California,2 the State Board of Education, and the California Department of Education 10 (“CDE”),3 alleging said defendants failed to provide necessary services for students with

11 diabetes in California public schools, in violation of the Americans with Disabilities Act, 42

12 U.S.C. § 12131 et seq. (“ADA”), Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §

13 794 (“Section 504"), and the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et

14 seq. (“IDEA”).

15

In July 2007, the parties resolved plaintiffs’ claims by entering into a settlement

16 agreement (hereinafter, “Settlement Agreement”). (See Mot. for Attorneys’ Fees, filed 17 Nov. 18, 2011, App. A (hereinafter, “App. A”).)4 On August 8, 2007, pursuant to the terms

18 of the Settlement Agreement, the Court entered an Order of Dismissal with Prejudice, 19 expressly incorporating the terms of the Settlement Agreement. (See id.)5 By the instant

20 motion, plaintiffs seek attorneys’ fees for legal work performed in monitoring defendant’s

21

22

1 In addition to their initial briefing, the parties were afforded leave to file

23 supplemental briefs, after which, on March 22, 2012, the matter was deemed submitted.

24

2 Jack O’Connell subsequently was replaced as superintendent by Tom Torlakson.

25

3 Also sued were the San Ramon Valley Unified School District and the Fremont Unified School District.

26

4 Plaintiffs’ claims against the other defendants were resolved by settlements and

27 dismissals filed earlier in the action.

28

5 The Settlement Agreement resolved the claims of the five named plaintiffs, no motion to certify a class having been filed.

2

Case3:05-cv-04077-MMC Document124 Filed04/20/12 Page3 of 6

1 compliance with the terms of the Settlement Agreement.

2

DISCUSSION

3

Ordinarily, in cases brought under the ADA, Section 504, and/or the IDEA, a district

4 court may award reasonable attorneys’ fees to the “prevailing party.” See, e.g., 42 U.S.C.

5 § 12205 (“[T]he court . . . in its discretion, may allow the prevailing party . . . a reasonable

6 attorney’s fee, including litigation expenses, and costs . . . .”); see also 29 U.S.C.

7 § 794a(b); 20 U.S.C. § 1415(i)(3)(B). A plaintiff who brings an action under one or more of

8 said statutes and “who obtains a legally enforceable settlement agreement qualifies as a

9 ‘prevailing party,’” see Prison Legal News v. Schwarzenegger, 608 F.3d 446, 451 (9th Cir.

10 2010), provided the district court either “retains jurisdiction to enforce the agreement,” id.,

11 or “incorporat[es] the terms of the settlement agreement in [its] order,” see Kokkonen v.

12 Guardian Life Ins. Co. of Am., 511 U.S. 375, 381 (1994). The “reasonable attorneys’ fees”

13 to which such a prevailing party is entitled include fees “for monitoring [the defendant’s]

14 post-settlement compliance.” See Prison Legal News, 608 F.3d at 451 (holding prevailing

15 party may recover fees for monitoring compliance “even when such monitoring does not

16 result in any judicially sanctioned relief”; noting “monitoring serves the . . . purpose [of]

17 causing defendants to fulfill their obligations more speedily and reliably”) (internal quotation 18 and citation omitted).6

19

Here, however, the Court, in accordance with the express terms of the parties’

20 Settlement Agreement, only “retain[ed] jurisdiction for two and one-half years from the

21 effective date of [the] Agreement.” (See App. A, Settlement Agreement ¶ 14.) As further

22

23

6 The Court finds unpersuasive defendants’ argument that plaintiffs’ request for such

24

fees is time-barred under Rule 54 of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 54(d)(2) (providing motion for attorney’s fees and expenses “must . . . be filed no later

25

than 14 days after the entry of judgment”). To apply Rule 54 to fees for monitoring compliance, services that, as a practical matter, will not be performed within the 14-day

26

window of time available following an initial judgment, would effectively preclude an award of such fees in every otherwise eligible case in which a settlement is incorporated in a court

27

order, unless a judgment based on non-compliance is issued thereafter. Such a result would be wholly inconsistent with case authority recognizing a prevailing party’s entitlement

28

to fees for monitoring compliance “even when it does not lead to a judgment or order.” See Prison Legal News, 608 F.3d at 451-52.

3

Case3:05-cv-04077-MMC Document124 Filed04/20/12 Page4 of 6

1 provided in the Settlement Agreement, the “effective date” of the Settlement Agreement is

2 July 24, 2007. (See id. ¶ 26.) Consequently, the Court’s ancillary jurisdiction over the

3 above-titled action ended January 24, 2010.

4

Citing various paragraphs of the Settlement Agreement, plaintiffs argue they did not

5 “waive” their right to recover fees for monitoring work conducted after the effective date of

6 the Settlement Agreement. (See Mot. at 11:7-13:11.) The Court agrees. (See App. A,

7 Settlement Agreement ¶ 9 (releasing defendants from claims “occurring up until the

8 Effective Date of this Agreement”); id. ¶ 13 (providing for payment of attorneys’ fees and

9 costs in amount of $430,000; releasing further claims to fees or costs “incurred . . . to 10 date”); id. ¶ 15 (stating plaintiffs “do not waive any claims not expressly settled herein”).7

11

The issue before this Court, however, is not waiver of the right to monitoring fees,

12 but, rather, a limitation on the time within which the Court may entertain a motion for such

13 fees. In the absence of such an agreed upon limitation, a district court has broad

14 jurisdiction to enforce, as well as to modify, the terms of a settlement agreement

15 incorporated in a court order. See, e.g., Nehmer v. U.S. Dep’t of Veterans Affairs, 494 F.3d

16 846, 860 (9th Cir. 2007) (noting “[i]t is well established that the district court has the

17 inherent authority to enforce compliance with a consent decree that it has entered in an

18 order, to hold parties in contempt for violating the terms therein, and to modify a decree”);

19 see also Prison Legal News, 608 F.3d at 451 (holding, for purposes of court’s ancillary

20 jurisdiction, difference between consent decree and settlement agreement incorporated in

21 court order is “immaterial”). Here, by their inclusion of ¶ 14 in their Settlement Agreement,

22 the parties clearly manifested their intent to limit the Court’s exercise of that jurisdiction in

23 both time and manner, as consistent with their respective interests in arriving at a mutually

24 acceptable resolution. (See App. A, Settlement Agreement ¶ 14; id. ¶ 10 (providing

25 procedure for and limits of court’s exercise of jurisdiction to enforce); id. ¶ 1.b (providing

26

27

7 The Court also agrees the integration clause (see id. ¶ 23) does not constitute a waiver or release of future claims for fees. Cf. Wakefield v. Mathews, 852 F.2d 482, 484

28

(9th Cir. 1988) (finding claim for attorneys’ fees waived where agreement provided for release of all claims and costs without any limitation).

4

Case3:05-cv-04077-MMC Document124 Filed04/20/12 Page5 of 6

1 procedure for and limits of court’s exercise of jurisdiction to modify).)

2

Plaintiffs cite to no authority suggesting the parties to an action, by a settlement

3 agreement incorporated in the court’s order of dismissal, cannot limit the court’s jurisdiction

4 in such regard. Indeed, to the extent relevant authority exists, it supports the parties’ right

5 to do so. See, e.g., Alvarado v. Table Mountain Racheria, 509 F.3d 1008, 1018 (9th Cir.

6 2007) (noting parties’ settlement agreement, entered June 16, 1983, “only extended

7 jurisdiction ‘for a period of one year from entry of judgment’”; holding “whatever ancillary

8 jurisdiction the district court had expired on June 16, 1984”).

9

Moreover, the limitation set forth in ¶ 14 is consistent with the other provisions of the

10 Settlement Agreement. First, the parties, by the Settlement Agreement, placed on

11 defendant CDE the primary burden of monitoring compliance by the local school districts,

12 and set forth in detail the “procedural safeguards” to be instituted by the CDE in performing

13 its monitoring obligations. (See App. A, Settlement Agreement ¶ 5.c.; see also id. ¶¶ 5-8.)

14 Although the assignment of substantial monitoring obligations to the CDE would not bar an

15 award of monitoring fees to plaintiffs’ counsel, see, e.g., Keith v. Volpe, 833 F.2d 850, 858

16 (9th Cir. 1987) (holding “routine monitoring by plaintiffs’ counsel was compensable where it

17 did not duplicate the court-appointed monitor’s activities”), the parties’ determination to

18 allocate their respective obligations in such fashion suggests they were not anticipating a

19 substantial additional award of fees to plaintiffs’ counsel. (See App. A, Settlement

20 Agreement ¶¶ 5-8.)

21

Second, in recognition of the limitations placed on this Court’s retained jurisdiction,

22 the parties expressly provided for plaintiffs’ right to enforce compliance in state court

23 without restriction. (See id. ¶ 10 (“Nothing in this agreement limits the ability of [p]laintiffs to

24 seek redress in state court under principles of contract law for any alleged breach of this

25 agreement not covered in this paragraph.”).)

26

Lastly, as part of its monitoring responsibilities, the CDE was required to meet twice

27 a year with plaintiffs’ counsel; the dates of said meetings are specified in the Settlement

28 Agreement, the last of which being September 30, 2009 (see id. ¶ 8), a date well in

5

Case3:05-cv-04077-MMC Document124 Filed04/20/12 Page6 of 6

1 advance of the expiration of the Court’s jurisdiction (see id. ¶¶ 14, 26) and allowing ample

2 time for plaintiffs, to the extent they had not already done so in the preceding two years, to

3 move for any fees incurred in monitoring compliance with and/or enforcing their settlement.

4

As the Ninth Circuit has observed, a prevailing party “may not pursue reimbursement

5 of attorney’s fees in the federal court indefinitely.” See Prison Legal News, 608 F.3d at

6 455. There comes a time when “the district court’s jurisdiction over the agreement must

7 eventually end.” Id. Although, and in all likelihood because, that time otherwise would be 8 left to the district court’s later determination, with all the uncertainties attendant thereto,8 the

9 parties here agreed upon and made it part of their settlement, the terms of which, in turn,

10 became the Court’s order.

11

Accordingly, the Court’s ancillary jurisdiction over the above-titled action having

12 ended in January 2010, and plaintiffs’ motion having been filed in November 2011, said

13 motion will be denied for lack of jurisdiction.

14

CONCLUSION

15

For the reasons set forth above, the instant motion for attorneys’ fees and expenses

16 is hereby DENIED.

17

IT IS SO ORDERED.

18 Dated: April 20, 2012

19

MAXINE M. CHESNEY

United States District Judge

20

21

22

23

24

25

26

27

28

8 See, e.g., id. (noting “[w]hether the time has come for the district court to terminate its jurisdiction . . . cannot be discerned from the record before us”).

6

 
 Case3:05-cv-04077-MMC Document84 Filed04/16/07 Page1 of 2

1 James M. Wood (SBN 58679)

Kenneth J. Philpot (SBN 62401)

2 Michael F. McCabe (SBN 111151) Kurtis J. Kearl (SBN 114977)

3 Jayne E. Fleming (SBN 209026) REED SMITH LLP

4 1999 Harrison Street, Suite 2400 Oakland, CA 94612-3572

5 Telephone: 510.763.2000

Facsimile: 510.273.8832

6

Arlene Mayerson (SBN 79310)

7 Larisa Cummings (SBN 131076)

DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, INC.

8 2212 Sixth Street Berkeley, CA 94710

9 Telephone: 510.644.2555 Facsimile: 510.841.8645

10

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Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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K.C., by and through Erica C., her guardian,

Case No. COS 4077 MMC

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AA, by and through Stacey A, her guardian, M.C., by and through Laurie C., her guardian, REQUEST FOR DISMISSAL WITH K.F., by and through Sheree F., her guardian, PREJUDICE AND ORDER

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each one individually and on behalf of all

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16

other similarly situated children, and the AMERICAN DIABETES ASSOCIATION, an

Honorable Maxine M. Chesney

q: 17 organization,

18

Plaintiffs,

19

vs.

20 SAN RAMON VALLEY UNIFIED SCHOOL

DISTRICT, et al.

21

Defendants.

22

23

Plaintiffs, K.C., by and through Erica C., her guardian, AA, by and through Stacey

24 A, her guardian, M.C., by and through Laurie C., her guardian, each one individually, and

25 the American Diabetes Association, an organization, and defendants, SAN RAMON

26 VALLEY UNIFIED SCHOOL DISTRICT, BOARD OF TRUSTEES OF THE SAN RAMON

27 VALLEY UNIFIED SCHOOL DISTRICT, ROBERT KESSLER, JOAN BUCHANAN,

28

-1Request for Dismissal with Prejudice and Order (Case No. C05 4077 MMC)

DOCSSFO-12475785.1

Case3:05-cv-04077-MMC Document84 Filed04/16/07 Page2 of 2 April 16, 2007

Case3:05-cv-04077-MMC Document84-1 Filed04/16/07 Page1 of 17
EXHIBIT A TO REQUEST FOR DISMISSAL WITH
PREJUDICE AND ORDER PART 1 OF 4

Case3:05-cv-04077-MMC Document84-1 Filed04/16/07 Page2 of 17
SETTLEMENT AGREEMENT This Settlement Agreement (the "Agreement") is entered into as of the _ day of March 2007, by and among SAN RAMON VALLEY UNIFIED SCHOOL DISTRICT and ROBERT KESSLER, in his official capacity as Superintendent for San Ramon Valley Unified School District, JOAN BUCHANAN, RACHEL HURD, BILL CLARKSON, PAUL GARDNER and GREG MARVEL, each in his or her official capacity as a member of the Board of Trustees of the San Ramon Valley Unified School District, and THE BOARD OF TRUSTEES OF THE SAN RAMON VALLEY UNIFIED SCHOOL DISTRICT (collectively, the "DISTRICT"), on the one hand, and K.C., by and through Erica C., her guardian ad litem, A.A., by and through Stacey A., her guardian ad litem, M.C., by and through Laurie C., her guardian ad litem, each one individually, and the AMERICAN DIABETES ASSOCIATION, an organization, (collectively, "PLAINTIFFS") on the other hand. Each of the Parties may be referred to individually as "Party" or the DISTRICT and PLAINTIFFS are sometimes collectively referred to as the "PARTIES."
RECITALS 1. On October 11,2005, PLAINTIFFS filed their complaint in the U.S. District Court for the Northern District of California bearing Case No. C 05-4077 MMC (hereinafter referred to as the "Action"). The Complaint included causes of action for declaratory relief and injunctive relief based upon Section 504 of the Rehabilitation Act of 1973,29 U.S.C. §794, the Americans with Disabilities Act of 1990,42 U.S.C. §12131 et seq., and the Individuals with Disabilities Education Act, 20 U.S.C. §1400 et seq.. 2. The Parties wish to settle their differences and to amicably resolve all issues and disputes embodied in and regarding the Action as between the Parties.

1

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AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals, the mutual covenants and agreements and the terms and conditions set forth herein and other valuable consideration, the DISTRICT and PLAINTIFFS agree as follows:
1. Consideration. A. Within 30 days of the Effective Date of this Agreement, the DISTRICT agrees to implement the Diabetes Care Protocol (the "PROTOCOL"), attached as Exhibit A5-B. B. In implementing this PROTOCOL, the District will use the following forms which have been approved by the PARTIES: • Consent of Parent/Guardian for Management of Diabetes at School and attached Physician Instructions & Authorization for Diabetes Management at School, attached as Exhibit A1-4; • Individualized Health Care Plan (Students with Diabetes), attached as Exhibit A9-13; • The Parent Letter, attached as Exhibit B, • The document Possible Modifications And Accommodations For Students With Diabetes, intended as an attachment to the Parent Letter, attached as Exhibit C; and • The Recruiting Plan, attached as Exhibit D. C. The DISTRICT agrees to include the agreed upon language regarding Section 504 eligibility in Section 504 Forms A, B & C, attached as Exhibit E.

2

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Case3:05-cv-04077-MMC Document84-1 Filed04/16/07 Page4 of 17
D. The DISTRICT agrees to include the agreed upon language regarding parental notification of their rights and responsibilities in the Annual Parents Informational Pamphlet each year. This Notice is attached as Exhibit F.
E. The DISTRICT agrees to use its best efforts to identify any new students who have diabetes. To further this goal, the PARTIES have agreed to the use of the Emergency Contact and Medical Information forms attached as Exhibit G. These forms are filled out by parents/guardians for each student in the District at the beginning of each school year.
F. The Parties shall execute and file a request for dismissal of the Action within five (5) business days of the execution of this Agreement by the PARTIES. The request for dismissal shall indicate that the Action is being dismissed, as to the DISTRICT only, with prejudice, each party to bear its own attorneys' fees and costs. A copy of the Request for Dismissal is attached as Exhibit
H.
G. The DISTRICT agrees to provide to PLAINTIFFS' counsel periodic reports regarding the DISTRICT's provision of diabetes care services to students with diabetes. The District will provide a monitoring report on the following schedule: May 15, 2007, October 15,2007, May 15, 2008, October 15, 2008, and May 15, 2009. The form for this report is attached hereto as Exhibit I.

3

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2. Compliance with State and Federal Law. PLAINTIFFS agree that the PROTOCOL, procedures and practices agreed to by the PARTIES in this Agreement are in compliance with and/or meet the requirements of all current State and Federal laws and regulations regarding the care of students with diabetes at schobl, during school-sponsored activities and on field-trips.
3. Affirmative Representations. PLAINTIFFS and PLAINTIFFS' counsel approve of the PROTOCOL and forms agreed upon as part of this Agreement and agree that said PROTOCOL and forms are consistent with current applicable law and will assist students with diabetes, who attend school in the San Ramon Valley Unified School District, to receive appropriate care during the course of the school day. As such, when contacted by students who attend school within the SanRamon Valley Unified School District, those students' parent(s)/guardian(s) and/or their treating physicians, PLAINTIFFS and PLAINTIFFS' counsel will refer those students, their parents(s)/guardian(s) and/or their treating physicians to the DISTRICT or to the forms attached as Exhibits A - D as the example of what the DISTRICT should be doing for those students.
4. Release of the District by Plaintiffs. Except for the executory obligations hereunder, PLAINTIFFS, on behalf of themselves and their guardian ad litems, parents, heirs, predecessors, successors, agents, affiliates, parent and/or subsidiary entities, successors and assigns, servants, attorneys, employees, officers, directors, attorneys and assigns hereby release and forever discharge the DISTRICT and its assigns, successors, agents, -servants, employees, elected officials, Board of Trustee members, officers, superintendents, and attorneys, from any and all claims, including but not

4

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Case3:05-cv-04077-MMC Document84-1 Filed04/16/07 Page6 of 17
limited to any claims for malicious prosecution and/or abuse of process, losses, damages, causes of action, and/or liabilities, known or unknown, asserted or unasserted, liquidated or unliquidated, in any manner, occurring up until the Effective Date of this Agreement and which relate to or arise from: (1) the allegations of the Action; (2) matters that could have been alleged in the Action; and (3) any and all disputes between the PARTIES.
5. Waiver of Civil Code Section 1542. THE PARTIES SPECIFICALLY WAIVE ANY RIGHT THAT THEY HAVE UNDER SECTION 1542 OF THE CALIFORNIA CIVIL CODE AS TO UNKNOWN OR UNSUSPECTED CLAIMS, AND ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTOOD THE FOLLOWING STATUTORY LANGUAGE OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." THE PARTIES UNDERSTAND AND ACKNOWLEDGE THE SIGNIFICANCE AND CONSEQUENCES OF SUCH SPECIFIC WAIVER OF SECTION 1542 OF CALIFORNIA CIVIL CODE AND HEREBY ASSUME FULL RESPONSIBILITY FOR THEIR OWN INJURIES, DAMAGES, LOSSES OR LIABILITY THAT MAY HEREAFTER OCCUR.

5

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Case3:05-cv-04077-MMC Document84-1 Filed04/16/07 Page7 of 17
6. Obligations Under Agreement Survive Releases. Notwithstanding any other provision in the Agreement to the contrary, the obligations arising under this Agreement are not affected by and shall survive the releases granted in this Agreement.
7. Notification to Court of Settlement. Within two (2) court days of execution of this Agreement by the PARTIES, counsel for PLAINTIFFS shall file a Notice of Settlement with the United States District Court for the Northern District of California.
8. No Admission of Liability. The PARTIES acknowledge that the purpose of this Agreement is to avoid the expense and delay of protracted litigation and the expenses associated therewith. This Agreement is the result of a compromise of disputed claims. Throughout this Action, the DISTRICT has denied any liability and/or fault. In executing the document, no party to this Agreement shall be deemed to have admitted any fault or liability in connection with any matter or thing.
9. Enforcement of this Agreement: In the event of any issue or dispute arising out of or related to any alleged failure of the DISTRICT to perform in accordance with the terms of this Agreement, PLAINTIFFS shall notify counsel for the DISTRICT in writing of the alleged non-compliance, pursuant to the notice provisions of paragraph 25 of this Agreement. Upon receipt of this notification, the DISTRICT will have 14 days, excluding school holidays, to respond and engage PLAINTIFFS in a meet and confer process to resolve the issue. Only if the parties are unable to resolve the dispute through the meet and confer process may PLAINTIFFS file or encourage anyone else to file a formal complaint with the District. All formal complaints must be filed in accordance with the District's Uniform Complaint Resolution Procedure, attached as
Exhibit J or under the 504 complaint process if applicable, attached as Exhibit K. If

6

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required by law, only upon the completion and exhaustion of the District and State complaint procedures mayan aggrieved party file an action to enforce the terms of this Agreement in a court of competent jurisdiction. Each Party wit'l bear the cost of its own attorney's fees and costs incurred to enforce this Agreement or defend itself from allegations regarding the implementation of this Agreement.
10. Representation by Counsel. The PARTIES respectively acknowledge that they have been represented by and have relied upon counsel of their choice throughout the negotiations that preceded the execution of this Agreement and that they have read this Agreement, have had its contents fully explained by such counsel and are fully aware of and understand all of its terms and the legal consequences thereof. The PARTIES further respectively acknowledge that they have, through their respective counsel, mutually participated in the preparation of this Agreement and that no provision herein shall be construed against any party by virtue of the activities of that party or its attorneys.
11 . Authority to Execute Agreement. Each person executing this Agreement in a representative capacity represents and warrants that he or she is empowered and fully authorized to do so.
12. Governing Law. This Agreement is executed and delivered within the State of California, and the rights and obligations of the parties shall be construed, enforced, and governed by the laws of the State of California and applicable Federal law.

7

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Case3:05-cv-04077-MMC Document84-1 Filed04/16/07 Page9 of 17
13. Each Party to Bear Own Attorneys' Fees and Costs. Except as otherwise expressly provided herein, each party shall bear its own costs and attorneys' fees incurred in connection with the Action.
14. Other Documents. The Parties agree to execute such other documents and to take such other and further action as may be necessary to finalize and perform this Agreement, with the PARTIES to bear their own costs and attorneys' fees.
15. Successors in Interest. This Agreement is binding upon, and inures to the . benefit of the Parties, their successors, agents, servants, employees, officers, attorneys
and assigns. 16. No Oral Modifications. In no event will any waiver, release, alteration or
modification of any of the terms of this Agreement be valid unless it is in writing and signed by all parties (specifically, on the District's behalf, by the Board of Trustees). This Agreement cannot be modified or terminated orally.
17. Severability. If any term or provision of this Agreement shall be held invalid or unenforceable by a court of competent jurisdiction, the validity of the remaining terms shall not be affected.
18. Counterparts. This Agreement may be signed in one or more counterparts, each copy having the same force and effect as an original, and shall be effective upon its execution by the parties.
19. Captions and Interpretation. Section titles or captions contained herein are inserted as a matter of convenience and for reference, and in no way define, limit, extend or describe the scope of this Agreement or any provision hereof. This Agreement is mutually drafted, and no provision in this Agreement is to be interpreted

8

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Case3:05-cv-04077-MMC Document84-1 Filed04/16/07 Page10 of 17
for or against either Party because that Party or its legal representative drafted such provision.
20. Number and Gender. Whenever required by the context hereof, the singular shall be deemed to include the plural and the plural shall be deemed to include the singular, and the masculine, feminine and neutral genders shall each be deemed to include the other.
21. Entire Agreement. This Agreement, including Exhibits A - K, constitutes the entire agreement between the PARTIES pertaining to the subject matter hereof and fully supersedes any and all prior understandings, representations, warranties and agreements between the PARTIES pertaining to the subject matter hereof. The consideration recited herein is the sole, complete and entire consideration for the releases, and there is no agreement, oral or written, express or implied, whereby the undersigned are to receive at any time or in any event or upon the happening of any contingency or upon the development or the discovery of any fact, circumstance or condition, any further consideration of any kind whatsoever from any Party.
22. Voluntarv Agreement. Each of the Parties further represents and declares that it has carefully read this Agreement and knows its contents and that each Party signs the same freely and voluntarily.
23. Facsimile Signatures. This Agreement may be executed by facsimile signatures, and any such signature should have the same force and effect as an original signature.

9

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Case3:05-cv-04077-MMC Document84-1 Filed04/16/07 Page11 of 17

24. Effective Date. The "Effective Date" of this Agreement shall be
Ae8/t.:,G;leo7- This Agreement shall remain in effect until the last day of school for the

2008-2009 school year.

25. follows:

Notices. Any written.notice under this Agreement shall be deliv~red as
, .....

If to the District:

Louis Leone

Stubbs & Leone

2175 N. California Blvd., Suite 900

Walnut Creek, CA 94596

Facsimile: (925) 974-8601

Email:

louis.teone@stubbsleone.com

Superintendent of Schpols San Ramon Valley Unified School District 699 Old Orchard Drive Danville, CA 94526 .
Facsimile: (925) 838-3147

If to Plaintiffs:

James M. Wood

Kenneth J. Philpot

Reed Smith LLP

1999 Harrison Street, Suite .2400

Oakland, CA 94612-3572

.Facsimile: (510) 273-8832

Email:

jmwood@reedsmith.com

kphilpot@reedsmith.com

DATED: March 2~, 2007
DArED: March _ , 2007

K.C. by and through Erica C., her guardian
~cL- t-:.
AA by and through Stacey A, her guardian

10

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Case3:05-cv-04077-MMC Document84-1 Filed04/16/07 Page12 of 17

24. Effective Date. The "Effective Date" of this Agreement shall be

_ _ _ _ _. This Agreement shall remain in effect until the last day of school for the'

2008-2009 school year.

25. follows:

Notices. Any written notice under.this Agreement shall be delivered as
, .....

If to the District:

louis leone

Stubbs & leone

2175 N. California Blvd., Suite 900

Walnut Creek, CA 94596

Facsimile: (925) 974-8601

. Email:

louis.leone@stubbsleone.com

Superintendent of Schools San Ramon Valley Unified School District 699 Old Orchard Drive Danville, CA 94526 Facsimile: (925) 838-3147

If to Plaintiffs:

James M. Wood

Kenneth J. Philpot

Reed Smith llP

1999 Harrison Street, Suite 2400

Oakland, CA 94612-3572

.Facsimile: (510) 273-8832

Email:

jmwood@reedsmith.com

kphilpot@reedsmith.com

DATED: March _ , 2007
DA'FED: March~, 2007

K.C. by and through Erica C., her guardian A.A. by and through Stacey A., her guardian

. 10

9862569\1.1

Case3:05-cv-04077-MMC Document84-1 Filed04/16/07 Page13 of 17

DATED: March &1,2007
..-,,,0.
DATED: March _ , 2007
DATED: March _ , 2007
DATED: March _ , 2007
DATED: March _ ',2007

M.C. by and through Laurie C., her guardian
AMERICAN DIABETES ASSOCIATION
By_ _ _ _- -_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _- - - -
Its._ _ _ _ _ _ _ _ __
SAN RAMON VALLEY UNIFIED SCHOOL DISTRICT
IByt s - - - - - - - - - - - - - - - - - - - - - - -
SAN RAMON. VALLEY UNIFIED SCHOOL DISTRICT BOARD OF TRUSTEES
By___________________________
Its_ _ _ _ _ _ _ _ _ _ _ _ _ __
ROBERT KESSLER, in his official capacity as the SUPERINTENDENT OF THE SAN RAMON VALLEY UNIFIED SCHOOL DlSTRICT
By____________________________

11

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Case3:05-cv-04077-MMC Document84-1 Filed04/16/07 Page15 of 17

DATED: March _ , 2007 DATED: March _ , 2007
Z: DATED: March / 2007
DATED: March I ~2007
DATED: March 12-;2007

M.e. by and through Laurie C., her guardian
By____________________________
AMERICAN DIABETES ASSOCIATION
By____________________________ Its._ _ _ _ _ _ _ _ __
SAN RAMON VALLEY UNIFIED SCHOOL DISTRICT
BYC!4d~ Robert Kessler, SGPerJntendent of Schools
SAN RAMON VALLEY UNIFIED SCHOOL DISTRICT BOARD OF TRUSTEES
B02U1:~ Robert Kessler, 'superintendent of Schools
ROBERT KESSLER, in his official capacity as the SUPERINTENDENT OF THE SAN RAMON VALLEY UNIFIED SCHOOL DISTRICT

11

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Case3:05-cv-04077-MMC Document84-1 Filed04/16/07 Page16 of 17
Approved as to form and content Attorneys for the DISTRICT: STUBBS & L NE
By:
LO 's A. Leone
Katherine A. Alberts
Attorneys for PLAINTIFFS
REED SMITH, LLP
By: -~ t/ . ~
Kenneth J. Philpot
DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, INC.
By: Arlene Mayerson Larisa Cummings

12

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PAGE 02/02
Filed04/16/07 Page17 of 17

Approved as to form and content: Attorneys for the DISTRICT: STUBBS & LEONE
By: louis A. Leone KatherinE! A. Alberts
Attomeys tor PLAINTIFFS
REED SMITH, LlP
By: James M. Wood Kenneth ,I. Philpot
DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, INC.
By:

12

9002569 •• 1

Case3:05-cv-04077-MMC Document84-2 Filed04/16/07 Page1 of 23
EXHIBIT A TO REQUEST FOR DISMISSAL WITH
PREJUDICE AND ORDER PART 2 OF 4

Case3:05-cv-04077-MMC Document84-2 Filed04/16/07 Page2 of 23

Exhibit A

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Case3:05-cv-04077-MMC Document84-2 Filed04/16/07 Page3 of 23
SAN RAMON VALLEY UNIFIED SCHOOL DISTRICT Office of the Assistant Superintendent
699 Old Orchard Drive, Danville, California 94526 (925) 552-2914· FAX (925) 743-3902

Consent of Parent/Guardian for Management of Diabetes at School
Student Name------------------------- School ___________________________
Birth date________ Grade ------- Teacher ------------------------------
I, the undersigned, the Parent/Guardian of the above named student, request that the specialized physical health care service for Management of Diabetes in school as specified below by our (my) student's physician be administered to my student I understand it is my responsibility to:
1. Provide the necessary supplies and equipment. 2. Provide a copy of the product manual and/or instructions for any diabetes management device to be used in my student's
diabetes care at school, including but not limited to an insulin pump, insulin pen, or blood glucose monitor. 3. Notify the School Nurse ifthere is a change in my student's health status or attending physician. 4. Notify the School Nurse immediately and provide new consent for any changes in doctor's orders.
I authorize the school nUrse and school personnel providing care to communicate with [student]'s physician in an emergency or a situation not clearly addressed by the medical orders and have completed the attached confidential information disclosure form. I understand that I will be provided a copy of my student's completed Individualized Health Care Plan (lHCP), which will be based on input from me and my child's treating physician.
Parent/Guardian Signature,_____________________ Date____________

Physician Instructions & Authorization for Diabetes Management in School
My signature provides authorization for the written orders specified below. I understand that unlicensed school employees, who have received appropriate training by a school nurse or other health care professional with experience in diabetes, may perform specialized physical health care services. This authorization is for a maximum of one year from today's date, but will expire in August before the next school year. If changes are indicated, I will provide new written authorization (may be faxed).

I have instructed,__________________(Student's Name) in the proper way to:

o check blood glucose

o administer insulin

It is my professional opinion that _____________________ (Student's Name):

o should! 0 should not be allowed to carry diabetes supplies (meter, insulin, etc.)

o can! 0 cannot check blood glucose independently

o can administer insulin independently
o can self-administer insulin but needs supervision/assistance (verification of dosage) o cannot self-administer insulin o can maintain possession of the following diabetes supplies and equipment:

I authorize care for ________________________ (Student's Name) pursuant to the following written orders:

Physician: Please initial and check ALL boxes that apply

1. Blood Glucose Monitoring: Target range for blood glucose:___---;==---=-_

Times: DBefore meals

DBefore exercise

DWhen there are symptoms ofhypoglycemia/hyperglycemia

DBefore snacks

DAfter exercise

OAt specific times:_____________

Comments/Guidelines:

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2. Routine Care of Hypoglycemia when blood glucose is below: 0 Self-treatment of mild lows Symptoms:
OAssistance for a1llows
Treatment: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Notify Parent/Guardian when._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _- - - - - - - - - - - -

3. Emergency Care of Severe Hypoglycemia:

(where student is unconscious or unable to swallow)

Treatment: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _~_ _ _ _ _ _ __

o Give glucagon injection

, Dosage:,____ Best site for injection:,_ _ _ _ __

Notify:

o Parent/Guardian

0911

o Student's Physician

4. Care of Hyperglycemia:

0240 or above

0300 or above

OOther: _ _ _ __

Symptoms:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Treatment: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Check ketones if 300 or above as follows:

OBystudent

ONeeds assistance

5. Insulin at school: DYes

ONot at this time

If Insulin at school:

Brand Name and Type:

o Equipment used: OSyringe and vial OInsulin pen OInsulin pump Inhaler

OLunchtime dose- use sliding scale:

Blood glucose from __to _ _= __Units Blood glucose from __to _ _= __Units Blood glucose from __to __=__Units
Blood glucose from __to __=__Units

OCorrection dose- use sliding scale: (at right) Blood glucose from __to _ _= __Units
Blood glucose from __to __=__Units

Blood glucose from _ _to __= __Units

Blood glucose from __to __= __Units

OCarb counting:_# units per_gms. Carbohydrate

OMoming snack

o Lunch

OAftemoon snack

Other times to give insulin: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

For students using insulin pumps:
o Student needs assistance with pump -- Assistance needed: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Typeofpump: __________

Basal rates:

12 am to

to

to Type of insulin in pump: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Type of infusion set: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Insulin/carbohydrate ratio: _ _ _ _ _ _ _ _ _ _ Correction factor: _ _ _ _ _ __

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6. Exercise and sports
Restrictions: 0 No exercise if blood glucose above _ _ _ or below _ _ or if moderate to large urine ketones present
Other restrictions: _ _----,_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ 7. Instructions for meals and snacks: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
8. Other Needs (specify; e.g., special instructions in the event of emergencies/shelter in place situations, etc.,):

Physician's Name,_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ (stamp or print)

Address,_ _ _ _ _ _ _ _ _ _ _ _ _ _ City_________

Zip,_ _ _ _ _ __

Physician's Signature_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Date_ _ _ _ _ __

For School Use Only - To Be Filled Out by School in Coordination with Parent/Guardian

Instructions & Authorization for Insulin Administration at School: (check as many as apply)

Dose calculated by:

oOStudent OParent/Guardian OParent/Guardian Designated Family Member or Friend* Parent/Guardian Designated Trained School Employee OSchool Nurse

Dose prepared by: Insulin administered by:

OStudent OParent/Guardian OParent/Guardian Designated Family Member or Friend*
o o Parent/Guardian Designated Trained School Employee School Nurse
o Student DStudent with staff verification ofInsulin Pen or Pump #
DParent/Guardian 0 Parent/Guardian Designated Family Member or Friend*
OParent/Guardian Designated Trained School Employee DSchool Nurse

(*All Parent/Guardian designated family members or friends are trained by the Parent/Guardian and are not employees ofthe school or school district)

Parent/Guardia!l Designee: _ _ _ _ _ _ _ _ _ _ _ _ _,Phone: _ _ _ _ _ _ Cell phone: _ _ _ _ _ __

Parent/Guardian Designated Trained Staff Member: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Position: _ _ _ _ _ _ _ _ __

Parent/Guardian Designated

Trained Staff Member: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Position: _ _ _ _ _ _ _ _ __

Insulin pump supplier name and toll free number (if supplied by Parent/Guardian): ____________

Reviewed by Parent/Guardian (Signature) _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Date._ _ _ _ _ __

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Reviewed by School Nurse (Signature)_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Date_ _ _ _ __

Reviewed by Principal (Signature)_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Date_ _ _ _ __

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SAN RAMON VALLEY UNIFIED SCHOOL DISTRICT DIABETES CARE PROTOCOL

I.

PURPOSE

The purpose of this document is to establish procedures in the San Ramon Valley Unified School District for the administration of health care services for students with diabetes as prescribed by their health care providers and implemented through a plan developed by the Parent/Guardian, school nurse, and other school personnel. The goal of this care is to maintain blood glucose levels within a student's target range and to enable a student with diabetes to safely and fully participate in the educatiomtl program and in all schoolsponsoted activities. These protocols and procedures shall be followed during the school day, at all schoolsponsored activities on or off school premises, while on a school bus or other school property, and in the event of emergency evacuation, natural disaster, or shelter-in-place situation.

II. MANAGEMENT PLAN FOR DIABETES CARE

A. An Individualized Health Care Plan (IHCP) identifies the health care needs of, and services to be provided to, a student with diabetes. This plan is developed and approved by a student's school health care team and family and implements the medical orders of the student's personal health care provider.

B. Each student with diabetes who needs assistance with health care services while at school should be offered such services, as set forth in the student's IHCP, pursuant to a 504 Plan. If the student otherwise qualifies for an IEP, the IHCP ill be incorporated into that student's IEP. If a student is eligible and qualifies for accommodations pursuant to Section 504 of the Rehabilitation Act or the Individuals with Disabilities Education Act, the student's Section 504 Plan or Individualized Education Program (IEP) will incorporate the accommodations in the IHCP together with other needed provisions for special education and/or related aids and services so the student can be assured a free and appropriate public education. Each 504 and IEP plan should be based on the student's individual needs, abilities, and medical condition and should include only those items that are relevant to the needs of the particular child. A student with an individualized education program (IEP) or Section 504 plan who requires medication during the school day is entitled to receive such medication in accordance with his or her written plan (CCR, Title 5, Section 61O(d)). Nothing in this protocol is intended to restrict development ofa student's individually determined IEP or 504 plan.

ill. SELF-MONITORING AND TREATMENT

Where a student's IHCP indicates that a student is able to perform diabetes care tasks independently, the student shall be permitted to perform these tasks independently while in school or at school-sponsored activities. In particular, if specified in a student's IHCP, the student shall be permitted to perform blood glucose checks, administer insulin through the insulin delivery system the student uses, treat hypoglycemia and hyperglycemia, and otherwise attend to the care and management of his or her diabetes in the classroom, in any area of the school or school grounds, and at any school-sponsored activity. Also, if specified in the health care provider'S orders and the student's IHCP, the student shall be permitted to possess on his or her person at all times all supplies and equipment needed to perform diabetes care. The student will be provided a private location for care and management of diabetes upon request.

IV. CARE TO BE PROVIDED

A. If a student is not independent with regard to insulin administration (see Section III, above) and requires insulin to be administered at school, the parent(s)/guardian(s) will have the ability to work with school personnel to determine who will administer insulin to their student: a parent/guardian, a parent/guardiandesignated family member or friend, a parent/guardian designated trained school employee (see Paragraph B, below) and/or a school nurse. If a parent/guardian requests that diabetes care be provided by parent/guardian designated trained school employees, the school will make all reasonable efforts to find employees willing to be trained and to provide the needed care. The parent will make the ultimate decision about which individuals will be designated and trained to provide care. The school will arrange for training of these individuals in accordance with Section V, below. If, despite these efforts, an unlicensed school employee cannot be found to provide care, the district will ensure that the student's needs are met through the use of school nurses or licensed healthcare professionals. If the
. parentes)/guardian(s) designate a family member or a friend to administer insulin to the student, the parent(s)/guardian(s) are responsible for training and supervising any so designated family member or friend. Furthermore, these designated family-members or friends are not employees of the SRVUSD.

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B. As set forth in the student's IHCP, the parent/guardian, parent/guardian's designated family members or friends, school employees, who are either school nurses or other school employees who have been designated by the parent/guardian and trained in accordance with Section V ("parent designated trained school employees"), shall perform the care tasks specified below or assist the student in performing these tasks as set forth in the student's IHCP. School employees are defined as any person employed by the San Ramon Valley Unified School District, any person employed by a local health department who is assigned to a school in the SRVUSD, or any subcontractor designated by SRYUSD for this function.
The following diabetes care, if required by the student's IHCP, shall be administered, in the classroom, in any location where a student is participating in a school activity, and/or in a private area close to where the student is located as selected by the student or the parent/guardian:
1. Checking blood glucose level at the times and under the circumstances specified; 2. Responding to blood glucose monitoring results; 3. Administering oral diabetes medication; 4. Administering glucagon and taking the additional actions set out in Section IV(E); 5. Checking for ketones in the urine; 6. Recording blood glucose and/or ketone results, medication dosages and time administered; and 7. Following instructions regarding meals, snacks, and physical activity.
C. The diabetes care tasks set forth in Section IV (B) may be performed by a school nurse, a parent/guardian designated school employee, who is willing to perform the duties, is not a licensed health care professional, and has been trained pursuant to Section V. The district will ensure that sufficient employees (whether licensed health care professionals or not) are selected and trained such that one trained employee is on site whenever the student is at school, on a field trip, or participating in a schoolsponsored extracurricular activity unless the parent/guardian chooses to either perform the needed diabetes care tasks or to have a parent/guardian-designated family member or friend perform the tasks.
D. As indicated in the IHCP, trained personnel will be available at the school to supervise a student using an insulin pump when the student needs assistance in reading, verifying and recording the blood glucose result and/or carbohydrate count and entry of that information into the pump. If the student requires insulin, insulin will be administered to the student in accordance with the student's IHCP.
E. If a student's IHCP calls for insulin to be administered by a parent/guardian designated trained school employee and that parent/guardian designated trained school employee is not available on a particular day or for a field trip or school sponsored activity where a student will require medical assistance for diabetes, the parent/guardian may designate in the student's IHCP that the school can assign a "qualified school employee" to provide the care set forth in the student's IHCP. A "qualified school employee" is an employee who is either a licensed health care provider or unlicensed employee trained in accordance with Section V. Should this situation arise, the parent/guardian will be notified and informed of the change in care providers. The parent/guardian will have the ability to choose the qualified school employee or provide someone of their own choosing to provide the necessary care to their student.
F. When a student cannot administer his or her own insulin and the student's IHCP specifies that insulin is to be administered to the student by a parent/guardian designated trained school employee (as opposed to the parent/guardian or parent/guardian designated friend or family member), at least one parent/guardian designated school employee or qualified school employee, as defined in Paragraph E above, shall be on site and available to administer insulin to the student whenever the student is in school or participating in school-sponsored activities.
G. When a student cannot administer his or her own insulin and the student's IHCP specifies that only a licensed nurse will administer insulin to the student, the nurse will be available within 30 minutes of being notified that the student requires an unscheduled administration of insulin (for example, to correct a high blood glucose value). Unless there are other complications, the student will continue with regular scheduled activities until the nurse arrives. If the student's IHCP specifies that insulin is to be given at a specified time each day, a nurse will be present to administer the insulin at that time each day. In the unusual event that a nurse cannot be present at the scheduled time on a particular day, a nurse will administer the insulin within 30 minutes of the scheduled time. The timeframes specified in this section may be shortened if necessary to meet the needs of an individual student, as specified by the student's treating physician, or the student's health care team.
H. Students with diabetes shall be able to perform diabetes care tasks or receive assistance with diabetes care tasks, including insulin administration, at any location in school, including, but not limited to the

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classroom, on school grounds, the cafeteria, at field trips or sites of school-sponsored extracurricular activities, or on the school bus.
I. Students with diabetes shall be permitted to have unrestricted access to fluids and use of the restroom, to miss school without consequence for required medical appointments or diabetes care, and to have extra time and/or rescheduled time for school or classroom tests and other graded work if the student is experiencing hypoglycemia or hyperglycemia at school.
J. If a student becomes unconscious or unresponsive due to severe hypoglycemia, trained school personnel shall administer emergency medication such as glucagon (if specified in the student's IHCP), contact 911 and the student's parent(s)/guardian(s), and take other actions as specified in the student's IHCP. No student shall be left unattended or shall be sent alone to another location to receive care if the student's symptoms or results of blood glucose tests indicate hypoglycemia.
K. The assignment of students with diabetes to schools shall be made in accordance with district placement policies, and diabetes care shall be provided at the student's assigned school. The school assignment of a student shall not be changed because of the student's need for diabetes care at school, unless requested or approved by the student's parent(s)/guardian(s).
L. No parent/guardian shall be required to attend any field trip or other school-sponsored activity as a condition of having his or her child participate in that activity. However, a parent/guardian, or parent/guardian's designated family member or friend, shall be invited to attend the field trip, regardless of the limited number of parents permitted to attend the field trip. If the student's IHCP requires assistance in monitoring or performing diabetes care tasks and/or administration of insulin at school and a parent/guardian or parent/guardian designated family member or friend chooses to not attend the field trip or school-sponsored extracurricular activity, a school employee (either the parent/guardian designated trained employee or a qualified school employee, as defined in Paragraph E above) will accompany the student to provide the care specified in the student's IHCP.
M. The District will provide carbohydrate counts of foods available in the school's hot lunch program by making those menus available at each school site and on the District's website www.srvusd.k12.ca.us. For students requiring assistance with meals and snacks due to their diabetes, the District will, if requested by the parents/guardians, include a provision in the student's IHCP that designated school personnel will monitor the student's food intake at lunch and snack by confirming at the end of lunch and snack the amount of food a student eats and notifying personnel responsible for the student's care after lunch and snack if the student failed to eat a significant part of the meal and therefore is at higher risk of hypoglycemia. Requests for additional supervision during lunch and snacks will be evaluated on a case by case basis based on the needs ofthe student.
V. TRAINING OF SCHOOL EMPLOYEES WHO ARE NOT LICENSED HEALTH CARE PROFESSIONALS
A. All training set forth below with regard to routine and emergency diabetes care tasks shall be based upon and be consistent with the current American Diabetes Association's Position Statement Care ofChildren with Diabetes in the School and Day Care Setting, American Diabetes Association's Diabetes Care Tasks in the School: What Key Personnel Need to Know, and the National Diabetes Education Program's Helping the Student with Diabetes Succeed: A Guide for School Personnel.
B. All teachers and other school personnel who have primary responsibility for the student shall receive training including general information about diabetes and recognition and appropriate response to hypoglycemia and hyperglycemia. This training shall be provided by a school nurse with current knowledge of diabetes management or a health care professional with expertise in diabetes.
C. Each school year a minimum of two school employees at each school where a student with diabetes is attending, shall be trained by a school nurse or a health care professional with expertise in diabetes, with appropriate supervision and follow-up training. The training shall include instruction in:
1. recognition and treatment of hypoglycemia and hyperglycemia; 2. understanding the appropriate actions to take when blood glucose levels are outside of target
ranges; 3. understanding health care provider instructions concerning diabetes medication, drug dosage,
frequency, and the manner of administration; 4. performance of finger-stick blood glucose checks, ketone checks, and recording ofresults; 5. administration of glucagon and recording of administration; and

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SAN RAMON VALLEY UNIFIED SCHOOL DISTRICT Office of the Assistant Superintendent
699 Old Orchard Drive, Danville, California 94526 (925) 552-2914 • FAX (925) 743-3902
Individualized Health Care Plan (Student with Diabetes)

StudentName: ______________________ Date: ___________

First name

Last name

Birthdate: _ _ _ _ _ _ __

Grade: - - - School: -----------

Doctor: ___________

Phone Number: ___________

Parent(s)!Guardian(s) Contact:

Home#: ________

Mother Contact: Work #: _________

Cell#: _ _ _ _ _ _ __

Father Contact: Work #: _ _ _ _ _ _ __

Cell #: _ _ _ _ _ _ __

Emergency: Name: _____________ Relationship: __________

Home #: _ _ _ _ _ _ _ _Work #: _ _ _ _ __

Cell #: _ _ _ __

OBJECTIVE! GOALS OF THIS PLAN
This plan is designed to enable [first name] to safely and fully participate in the educational program and in all school-sponsored activities by implementing the medical orders of [first namers treating physician and providing needed accommodations. As the student's medical requirements change, school personnel and the Parent(s)!Guardian(s) will assess the student's school healthcare needs (at least annually at the beginning of the school year). Appropriate 'accommodations to provide for the safety of the student will be determined each year based on the student's age, grade, level of self-care, and information provided on the Parent/Guardian Consent and Physician Instruction & Authorization Form. The following modifications and accommodations will be provided to [first name]:
MODIFICATIONS AND ACCOMMODATIONS
(Replace all [First Name] with student's first name and eliminate all modifications/accommodations that do not apply)
CLASSROOM PROTOCOL:
• [First name]'s Parent/Guardian will be notified at the start of school regarding who [First name]'s core/classroom teacher(s) will be. School placement will be based on district policy, which does not discriminate based on a medical condition.
• The school nurse or other qualified licensed health care professional with expertise in diabetes will provide training and information to the teacher and all relevant staff regarding the diabetes-related needs of [First name] while in the school/classroom setting. '
• [First name] andlor [First name]'s Parent/Guardian may set a time with the teacher to discuss diabetes with [First name] 's homeroom classmates, if desired by the family.
• A copy of this plan will be included with class information provided to a substitute teacher.
• [First name] will not be penalized for absences or tardiness required for medical appointments or illness provided [First namers Parent/Guardian notifies school and clears the absence in the school-required timeframe.
• [First name] shall be permitted to leave class to see the nurse or other trained personnel for diabetes-related issues. If necessary (due to low blood sugar), an adult will accompany [First name].

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• Diabetes care tasks may be done at any location in school, including, but not limited to the classroom, on school grounds, the cafeteria, at field trips or sites of school-sponsored extracurricular activities, or on the school bus.
DIABETES CARE:
BLOOD GLUCOSE MONITORING:
• [First name] shall have immediate access to all items necessary for the treatment of diabetes, including but not limited to blood glucose testing equipment, insulin, and glucagon.
• [First name] shall be permitted to carry needed diabetes supplies at all times with doctor and Parent/Guardian written permission.
• If required in [First name]'s Physician Instructions & Authorization:
• The following people have been trained to and will be available to monitor, test and record [First namers blood glucose:

HYPOGLYCEMIA AND HYPERGLYCEMIA:

• A school nurse with current knowledge of diabetes management or other health care professional with expertise in diabetes and [First namers parent/guardian, if they so desire, will train all teachers, as well as anyone else who may be supervising [First name] in the school setting, on the signs of hypolhyperglycemia and the proper treatments.

• If [First name] shows signs of hypoglycemia, the appropriate treatment as identified by the Physician Instructions & Authorization will be administered immediately (for mild hypoglycemia treatment may be self administered if provided for in the physician's instruction). [First name] will not be left without adult supervision until the treatment has been completed. The Parent/Guardian will provide Parent/Guardian Consent and Physician Instructions & Authorization regarding the type of treatment to be administered.

Select one ofthe next two statements by deleting the other statement and this line:

• Since [First name] is independent, should [First name] show signs of hyperglycemia, [First name] will be allowed to administer the appropriate treatment in accordance with hislher physician's instructions and this IHCP. School personnel will provide care in an emergency situation or where the student is otherwise unable to provide selfcare.

• Since [First name] is not independent, should [First name] shows signs of hyperglycemia, the appropriate treatment will be administered in accordance with the student's physician's instructions and this IHCP.

ADMINISTRATION OF INSULIN:

• Insulin will be administered in accordance with the level of self-care listed in the Parent/Guardian Consent and Physician Instruction & Authorization Form. [Note: If "School Nurse" is selected as the administrator of insulin, it may take up to 30 minutes for your child to receive insulin from a nurse in the event a nurse is unavailable.]
• Insulin will be provided based on the following numbered order of preference:

Student

Parent/Guardian

_ _ Parent/Guardian Designee (FamilylFriend)

_ _ Parent/Guardian Designee (Trained School Employee)

School Nurse

Name(s) of Parent/Guardian Designee(s):

FamilylFriend (Name and Number):

Trained School Employee (Name and Position):

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• [Delete if not needed] If a parent/guardian designated trained school employee is not yet identified, parents and

the school team will meet again by

During this time, the school and

parent/guardian will work together to identify an appropriate onsite school employee. Every effort will be made

to have trained staff available at [First namers school at the start ofthe school year as needed.

• If a parent/guardian designates one or more trained school employees to oversee or administer insulin injections or boluses (via pump), that parent/guardian designated trained school employee will be on site with [First name] to provide the diabetes care set forth in this IHCP.

• If none of the above named designees is available, the parent/guardian will be notified and either a qualified school employee or someone of the parent/guardian's choosing will administer insulin to [First name] in accordance with his or her Physician Instructions & Authorization.

oDIn the event that the parent/guardian designated trained school employee(s) are unavailable on a particular day or for a field trip or school sponsored activity where the student will require medical assistance for diabetes, [First namers parent/guardian designates the school to have a qualified school employee administer insulin to [First name] in accordance with hislher Physician Instructions & Authorization.

ADMINISTRATION OF GLUCAGON:

• The following school employees have been trained in the administration of a glucagon injection at the student's school (minimum of two).

• At least one adult staff member with training will be on site with [First name] during school hours, school sponsored extracurricular activities, and field trips to administer glucagon if needed.
• In the event of a seizure or unconsciousness, the treatment called for in the Parent/Guardian Consent and Physician Instruction & Authorization Form will be given immediately by the nearest trained adult.
• In the event of a seizure or unconsciousness, the school will also call 911, the Parent/Guardian, and the school nurse immediately, in that order.
DOCUMENTATION OF MEDICATIONS ADMINISTERED:
• If [Fin;t name] is not independent, a daily log will be kept in [First namers classroom to record all blood glucose test results and insulin administered.
• Records will be kept regarding all instances in which glucagon is administered to any student.
• The school will provide [First namers Parent/Guardian with daily reports (if requested) as to [First namers blood sugar levels and any and all treatments provided during the school day. (If school personnel are supervising the reading of blood sugar levels and/or the administration of treatments.)
• The following trained staff member will complete the daily log: (For student who is not independent)

SNACK, LUNCH, WATER, AND BATHROOM PRIVILEGES:
• [Delete if not needed] School personnel will monitor [First name]'s intake of food at lunch and snack by confirming at the end of lunch and snack the amount of food a student eats and notifying personnel responsible for the student's care after lunch and snack if the student failed to eat a significant part of the meal and therefore is at higher risk of hypoglycemia.
• [First name] shall be permitted to use the bathroom as needed.
• [First name] shall be permitted to have immediate access to water, including keeping a water bottle in [First namers possession and being allowed to use the drinking fountain as needed.
• [First name] shall be permitted to have food and/or juice whenever necessary during the school day and on field trips and be allowed sufficient time to consume either.
• [First name] shall be permitted to have food and/or juice whenever necessary when being transported to and from school or on field trips.
ACADEMIC TESTING:

SRVUSD Rev. 2/14/2007

Diabetes Management in School Documents

11 of 13

Case3:05-cv-04077-MMC Document84-2 Filed04/16/07 Page13 of 23
• If [First name] is affected by high or low blood glucose levels at the time of regular testing, the test may be taken at another time without penalty (For timed state or standardized testing, the student may not receive a valid score if the test is not taken within the required testing limitations.)
• If [First name] needs to take breaks to use the water fountain or bathroom, do a blood glucose test, or to treat hypoglycemia or hyperglycemia during a test or a classroom assignment, extra time will be given to fmish the test or assignment without penalty. (For timed state or standardized testing, the student may not receive a valid score if the test is not taken within the required testing limitations.)
FIELD TRIPS/SCHOOL-SPONSORED EXTRACURRICULAR ACTIVITIES:
• [First name] will be permitted to participate in all field trips and school-sponsored extracurricular activities (such as sports, clubs and enrichment programs) without restriction and with all of the accommodations and modifications set forth in this plan.
• [First name]'s Parent/Guardian, or another adult family member or friend designated by the Parent/Guardian, will be invited to accompany [First name] on field trips, regardless of the limited number of Parents/Guardians permitted to attend the field trip.
• If either a Parent/Guardian or a Parent/Guardian designated family member or friend does not choose to attend the field trip or school-sponsored extracurricular activity and [First name] requires assistance in monitoring or performing diabetes care tasks and/or administration of insulin at school,. a school employee (either the parent/guardian designated trained school employee or another employee designated and trained by the school) will accompany [First name] to provide the care specified in the Parent/Guardian Consent and Physician Instruction & Authorization Form and this IHCP.
• [First name] will be allowed to take a sack lunch on field trips even if a lunch is provided at the site of the field trip.
IN THE EVENT OF AN EMERGENCYIDISASTER:
• In the event of an emergency, disaster, or drill, a designated staff member will take [First namel's diabetes, as well as other emergency, supplies to the designated class location.
• If [First namel's Parent(s)/Guardian(s) cannot be contacted regarding any aspect of their child's medical treatment, the school will contact [First name]'s physician and/or call 911. (See attached Release of Confidential Information form.)
OTHER: (specify; e.g., special instructions in event of emergencies/shelter in place situations, additional medical conditions)

I understand the requirements of this Individualized Health Care Plan:

Parent/Guardian: -------------------------------------- Date: --------------Teacher: -------------------------------------------- Date: ---------------
Principal: _________________________________________ Date: _______________

Health Educator/School Nurse: ---------------------------- Date: ---------------

Parent/Guardian Designee: _______________________________ Date: ______________

SRVUSD Rev. 2/14/2007

Diabetes Management in School Documents

12 of 13

Case3:05-cv-04077-MMC Document84-2 Filed04/16/07 Page14 of 23
Student (optional): _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Date: _ _ _ _ _ __
Distribution: Parent/Guardian Student's Health, Special Ed and/or Section 504 file (as applicable)
Health Office File

SRVUSD Rev. 2114/2007

Diabetes Management in School Documents

13 of 13

Case3:05-cv-04077-MMC Document84-2 Filed04/16/07 Page15 of 23 Exhibit B

Case3:05-cv-04077-MMC Document84-2 Filed04/16/07 Page16 of 23
January 11, 2007
Letterhead and Logo to be placed here SAN RAMON VALLEY UNIFIED SCHOOL DISTRICT
Dear Parents,
The purpose of this letter is to help you understand the health care services in the San Ramon Valley Unified School District that may be available for your student with diabetes. The goal of diabetes care is to maintain blood glucose levels within your child's target range and to enable your child with diabetes to safely and fully participate in the educational program and in all school-sponsored activities while attending school in the San Ramon Valley Unified School District.
What to Expect: Diabetes is not considered in determining where a student attends school. Your child will be assigned to a school without discrimination and in accordance with the district's placement policies.
All teachers and other school personnel who have primary responsibility for your child will receive training including general information about diabetes and recognition and appropriate response to hypoglycemia and hyperglycemia.
An Individualized Health Care Plan (IHCP) will be developed using information obtained from your physician and you. The IHCP sets forth the procedures and practices necessary to manage your child's diabetes care while at school. The IHCP is developed during a meeting between you and your child's school health care team to implement the medical orders of your child's physician. The school health care team includes your child's principal, teacher, school nurse and any other school personnel necessary to assist with your child's health care. Attached is a list of possible accommodations that are available to students with diabetes depending on their level of need. Please take a few minutes to review these as they will be discussed at the meeting along with the physician'S information in order to develop the individualized health care plan for your child.
If your physician indicates that your student is able to perform diabetes care tasks independently~ the IHCP will state that your child shall be permitted to attend to the care and management of his or her diabetes in the classroom, in any area of the school or school grounds, and at any schoolsponsored activity. Also, if specified in the health care provider's orders, your student will be permitted to possess on his or her person at all times all supplies and equipment needed to perform diabetes care.
If your child is not independent in performing diabetes care tasks, you and your school health care team will identify who may provide the care during school hours. Parents are always welcome to participate in the care of their child but will not be required to provide care. School personnel (whether nurses or trained school employees) will perform diabetes care tasks or assist your child in performing these tasks unless you choose to provide your child's diabetes care yourself or have a friend or family member provide such care.

Case3:05-cv-04077-MMC Document84-2 Filed04/16/07 Page17 of 23
You and your child's school health care team will work together to determine who can best provide care for your child. The school will help you fmd school employees willing to be trained and to provide the needed care to your child if you so choose. You will make the ultimate decision about who will be designated and trained to provide care. Your child's Individual Health Care,Plan will state whether performance or assistance is required for each diabetes taskfrom daily monitoring and insulin to emergency care.
As specified in the IHCP, whenever your student is in school or participating in schoolsponsored activities, at least one designated, trained school employee will be on site and available to provide care. Parents may attend field trips and other school-sponsored activities to provide care, but are not required to do so. Also, if your child becomes unconscious or unresponsive due to severe hypoglycemia, trained school personnel shall administer emergency medication such as glucagon (if specified in the student's IHCP), contact 911, and take other actions as specified in the student's plan.
If your child participates in the school lunch program, menus with carbohydrate counts are available at the school. These menus are available online at the District website: www.srvusd.k12.ca.us. Additionally, if your student needs assistance in monitoring food intake during school hours, school staffis available.
Additionally, if your child is eligible and qualifies for accommodations pursuant to Section 504 of the Rehabilitation Act or the Individuals with Disabilities Education Act, the student's Section 504 Plan or Individualized Education Program (IEP) will incorporate the accommodations in the IHCP along with other needed provisions for special education andlor related aids and services so the student can be assured a free and appropriate public education. Each student with diabetes who needs assistance with health care services while at school·will be offered such services as set forth in an IHCP pursuant to a Section 504 plan unless the student is also entitled to an IEP. Each 504 and IEP plan is based on the student's individual needs, abilities, and medical conditions and includes only those items that are relevant to the particular child.
Getting Started: The first step in providing care at school requires you to complete the "Parental Consent for Management of Diabetes at School" form and to contact your health care provider to complete and sign the "Physician Authorization for Diabetes Management in School" form. Without these signed documents, the District cannot provide care for your child. These forms are attached to this letter. Please return the completed forms to your child's school as soon as possible.
Step Two: Once these required forms have been completed and returned to your child's school, you will be invited to attend a meeting where together, you and the school's health care team will review the physician's orders and develop an Individualized Health Care Plan (IHCP) for your child. Your child's qualification for a 504 Plan or IEP will also be discussed at this meeting. If your child does qualify, then the appropriate plan and accommodations will be discussed and developed. If at any time you have any questions or concerns about the diabetes care your child is receiving while he or she is at school, please contact your child's principal, or any other member of your
2

Case3:05-cv-04077-MMC Document84-2 Filed04/16/07 Page18 of 23 child's school health care team. The District's Diabetes Care Protocol is available for review upon request at your child's school or the District Office. You may also call the District Office at 552-2914 if you need help, information or have additional questions or concerns. Our primary concern is for the safety of your child. This can be accomplished if we work together. Sincerely, Principal Name
3

Case3:05-cv-04077-MMC Document84-2 Filed04/16/07 Page19 of 23 Exhibit C

Case3:05-cv-04077-MMC Document84-2 Filed04/16/07 Page20 of 23 POSSIBLE MODIFICATIONS AND ACCOMMODATIONS FOR STUDENTS WITH DIABETES

Below isa list of possible accommodations available to students with diabetes in the San Ramon Valley Unified School District. Not all accommodations are needed by all students. This list will be used along with the physician's information to discuss and develop your child's Individualized Health Care Plan (IHCP) during your meeting with the school health care team. Your child's particular needs will determine which accommodations are necessary. Please review the list and contact your child's school if you have any questions prior to the meeting.

CLASSROOM PROTOCOL:
• Student's Parent/Guardian will be notified at the start of school regarding who Student's core/classroom teacher(s) will be. School placement will be based on district policy, which does not discriminate based on a medical condition.
• The school nurse or other qualified licensed health care professional with expertise in diabetes will provide training and information to the teacher and all relevant staff regarding the diabetes-related needs of Student while in the schooVclassroom setting.
• Student and/or Student's Parent/Guardian may set a time with the teacher to discuss diabetes with Student's homeroom classmates, if desired by the family.
• A copy of this plan will be included with class information provided to a substitute teacher.
• Student will not be penalized for absences or tardiness required for medical appointments or illness provided Student's Parent/Guardian notifies school and clears the absence in the school-required timeframe.
• Student shall be permitted to leave class to see the nurse or other trained personnel for diabetes-related issues. If necessary (due to low blood sugar), an adult will accompany Student.
• Diabetes care tasks may be done at any location in school, including, but not limited to the classroom, on school grounds, the cafeteria, at field trips or sites of school-sponsored extracurricular actiVities, or on the school bus.
DIABETES CARE:
BLOOD GLUCOSE MONITORING:
• Student shall have immediate access to all items necessary for the treatment of diabetes, including but not limited to blood glucose testing equipment, insulin, and glucagon.
• Student shall be permitted to carry needed diabetes supplies at all times with doctor and Parent/Guardian written permission.
• If required in Student's Physician Instructions & Authorization:
• The following people have been trained to and will be available to monitor, test and record Student's blood glucose:

HYPOGLYCEMIA AND HYPERGLYCEMIA:

• A school nurse with current knowledge of diabetes management or other health care professional with expertise in diabetes and Student's parent/guardian, ifthey so desire, will train all teachers, as well as anyone else who maybe supervising Student in the school setting, on the signs of hypolhyperglycemia and the proper treatments.

• If Student shows signs of hypoglycemia, the appropriate treatment as identified by the Physician Instructions & Authorization will be administered immediately (for mild hypoglycemia treatment may be self administered if provided for in the physician's instruction). Student will not be left without adult supervision until the treatment has been completed. The Parent/Guardian will provide Parent/Guardian Consent and PhYSician Instructions & Authorization regarding the type of treatment to be administered.

Select one of the next two statements by deleting the other statement and this line:

• Since Student is independent, should Student shows signs of hyperglycemia, Student will be allowed to administer the appropriate treatment in accordance with hislher physician's instructions and this IHCP. School personnel will provide care in an emergency situation or where the student is otherwise unable to provide selfcare.

SRVUSD Rev. 1110/2007

Attachment to Parent Letter Regarding Possible Accommodations

10f4

Case3:05-cv-04077-MMC Document84-2 Filed04/16/07 Page21 of 23 POSSIBLE MODIFICATIONS AND ACCOMMODATIONS FOR STUDENTS WITH DIABETES

• Since Student is not independent, should Student shows signs of hyperglycemia, the appropriate treatment will be administered in accordance with the student's physician's instructions and this IHCP.

ADMINISTRATION OF INSULIN:

• Insulin will be administered in accordance with the level of self-care listed in the Parent/Guardian Consent and Physician Instruction & Authorization Form. [Note: If "School Nurse" is selected as the administrator of insulin, it may take up to 30 minutes for your child to receive insulin from a nurse in the event a nurse is unavailable. When a student cannot administer his or her own insulin and the student's IHCP specifies that only a licensed nurse will administer insulin to the student, the nurse will be available within 30 minutes of being notified that the student requires an urlscheduled administration of insulin (for example, to correct a high blood glucose value). Unless there are other complications, the student will continue with regular scheduled activities until the nurse arrives. If the student's IHCP specifies that insulin is to be given at a specified time each day, a nurse will be present to administer the insulin at that time each day. In the unusual event that a nurse cannot be present at the scheduled time on a particular day, a nurse will administer the insulin within 30 minutes of the scheduled time. ]

• Insulin will be provided based on the following numbered order of preference:

Student

Parent/Guardian

_ _ Parent/Guardian Designee (FamilylFriend)

_ _ Parent/Guardian Designee (Trained School Employee)

School Nurse

Name(s) of Parent/Guardian Designee(s):

FamilylFriend (Name and Number):

Trained School Employee (Name and Position):

• [Delete if not needed] If a parent/guardian designated trained school employee is not yet identified, parents and

the school team will meet again by

During this time, the school and

parent/guardian will work together to identify an appropriate onsite school employee. Every effort will be made

to have trained staff available' in each school at the start of each school year as needed.

• If a parent/guardian designates one or more trained school employees to oversee or administer insulin injections or boluses (via pump), that parent/guardian designated trained school employee will be on site with Student to provide the diabetes care set forth in this IHCP.

• If none of the above named designees is available, the parent/guardian will be notified and either a qualified school employee or someone of the parent/guardian's choosing will administer insulin to Student in accordance with his or her Physician Instructions & Authorization.

oDIn the event that the parent/guardian designated trained school employee(s) are unavailable on a particular day or for a field trip or school sponsored activity where the student will require medical assistance for diabetes, [First namers parent/guardian designates the school to have a qualified school employee administer insulin to [First name] in accordance with hislher Physician Instructions & Authorization. A "qualified school employee" is either an employee who is a licensed health care provider or an unlicensed employee who has been trained to administer insulin and provide diabetes care tasks by a school nurse or a health care professional with expertise in diabetes.

ADMINISTRATION OF GLUCAGON:

• The following school employees have been trained in the administration of a glucagon injection at the student's school (minimum of two).

SRVUSD Rev. 1110/2007

Attachment to Parent Letter Regarding Possible Accommodations

20f4

Case3:05-cv-04077-MMC Document84-2 Filed04/16/07 Page22 of 23 POSSIBLE MODIFICATIONS AND ACCOMMODATIONS FOR STUDENTS WITH DIABETES

• At least one adult staff member with training will be on site with Student during school hours, school -sponsored extracurricular activities, and field trips to administer glucagon if needed.
• In the event of a seizure or unconsciousness, the treatment called for in the Parent/Guardian Consent and Physician Instruction & Authorization Form will be given immediately by the nearest trained adult.
• In the event of a seizure or unco:nsciousness, the school will also call 911, the Parent/Guardian, and the school nurse immediately, in that order.
DOCUMENTATION OF MEDICATIONS ADMINISTERED:
• If Student is not independent, a daily log will be kept in Student's classroom 'to record all blood glucose test results and insulin administered.
• Records will be kept regarding all instances in which glucagon is administered to any student.
• The school will provide Student's Parent/Guardian with daily reports (if requested) as to Student's blood sugar levels and any and all treatments provided during the school day. (If school personnel are supervising the reading of blood sugar levels and/or the administration of treatments.)
• The following trained staffmember will complete the daily log: (For student who is not independent)

SNACK, LUNCH, WATER, AND BATHROOM PRIVILEGES:

• [Delete if not needed] School personnel will monitor Student's intake of food at lunch and snack by confirming the approximate amount of food eaten to determfne the need for insulin.

• Student shall be permitted to use the bathroom as needed.

• Student shall be permitted to have immediate access to water, including keeping a water bottle in Student's possession and being allowed to use the drinking fountain as needed.

• Student shall be permitted to have food and/or juice whenever necessary during the school day and on field trips and be allowed sufficient time to consume either.

• Student shall be permitted to have food and/or juice whenever necessary when being transported to and from school or on field trips.

ACADEMIC TESTING:

• If Student is affected by high or low blood glucose levels at the time of regular testing, the test may be taken at another time without penalty (For timed state or standardized testing, the student may not receive a valid score if the test is not taken within the required testing limitations.)

• If Student needs to take breaks to use the water fountain or bathroom, do a blood glucose test, or to treat hypoglycemia or hyperglycemia during a test or a classroom assignment, extra time will be given to finish the test or assignment without penalty. (For timed state or standardized testing, the student may not receive a valid score if the test is not taken within the required testing limitations.)

FIELD TRIPS/SCHOOL-SPONSORED EXTRACURRICULAR ACTIVITIES:

• Student will be permitted to participate in all field trips and school-sponsored extracurricular activities (such as sports, clubs and enrichment programs) without restriction and with all of the accommodations and modifications set forth in this plan.

• Student's Parent/Guardian, or another adult family member or friend designated by the Parent/Guardian, will be invited to accompany Student on field trips, regardless of the limited number of Parent/Guardian permitted to attend the field trip.

• If either a Parent/Guardian or a Parent/Guardian designated family member or friend does not choose to attend the field trip or school-sponsored extracurricular activity and Student requires assistance in monitoring or performing diabetes care tasks and/or administration of insulin· at school, a school employee (either the parent/guardian designated trained school employee or another employee designated and trained by the school) will accompany Student to provide the care specified in the Parent/Guardian Consent and Physician Instruction & Authorization
Form and this mep.

SRVUSD Rev. 1110/2007

Attachment to Parent Letter Regarding Possible Accommodations

3 of 4

Case3:05-cv-04077-MMC Document84-2 Filed04/16/07 Page23 of 23
POSSIBLE MODIFICATIONS AND ACCOMMODATIONS FOR STUDENTS WITH DIABETES
• Student will he allowed to take a sack lunch on field trips even if a lunch is provided at the site ofthe field trip. IN THE EVENT OF AN EMERGENCYIDISASTER: • In the event of an emergency, disaster, or drill, a designated staff member will take Student's diabetes, as well as
other emergency, supplies to the designated class location. • If Student's Parent(s)/Guardian(s) cannot be contacted regarding any aspect of their child's medical treatment, the
school will contact Student's physician and/or call 911. (See attached Release ofConfidential Information form.) OTHER: (specify; e.g., special instructions in event of emergencies/shelter in place situations, any additional medical conditions)

SRVUSD Rev. 1110/2007

Attachment to Parent Letter Regarding Possible Accommodations

4of4

Case3:05-cv-04077-MMC Document84-3 Filed04/16/07 Page1 of 20
EXHIBIT A TO REQUEST FOR DISMISSAL WITH
PREJUDICE AND ORDER PART 3 OF 4

Case3:05-cv-04077-MMC Document84-3 Filed04/16/07 Page2 of 20 Exhibit 0

Case3:05-cv-04077-MMC Document84-3 Filed04/16/07 Page3 of 20 SRVUSD Recruitment Plan

Annually and as needed by an individual student's Individual Health Care Plan (IHCP), San Ramon Valley Unified School District will take the following steps, in order to recruit non-licensed school employees to assist students with diabetes as "parent designated trained school employees."

1) The District will review the new protocol and forms regarding assistance to students with diabetes with all school nurses, principals and assistant principals to review and educate them on the role of "parent designated trained school employees."
2) At each school site that either currently does not have students with diabetes or where there are students with diabetes, but no parent designated trained school employees, each principal with the assistance of their school nurse will seek volunteers amongst their school staff to serve as "parent designated trained school employees." Staff members who are in daily contact with a student with diabetes and those who have experience with diabetes will be approached first. A list of volunteers will be sent to the District.
3) If a principal is unable to identify volunteers, the District will conduct an inservice at that school site regarding students with diabetes and the role of "parent designated trained school employees" in assisting students with diabetes. The District will ask staff members to volunteer following this inservice.
4) If no volunteers can be identified and a student at that school is diagnosed with diabetes, the principal will again seek out volunteers from those staff members who are in daily contact with the student and those who have experience with diabetes. If at this point no volunteers can be identified, and the parent/guardian wishes to designate trained school employees to provide care to their student while at school, then depending on the requirements of the students' IHCPs, the District will take reasonable and appropriate steps that are the most effective to have trained school employees at the site. Such steps may include, but are not limited to, hiring from the outside or assigning an existing district employee to the school site.

Revised 1-10-07

SRVUSD Recruitment Plan

Page 1 of2

Case3:05-cv-04077-MMC Document84-3 Filed04/16/07 Page4 of 20 SRVUSD Recruitment Plan
5) Every effort will be made to have trained staff available in each school at the start of each school year as needed.

Revised 1-10-07

SRVUSD Recruitment Plan

Page 2 of2

Case3:05-cv-04077-MMC Document84-3 Filed04/16/07 Page5 of 20 Exhibit E

Case3:05-cv-04077-MMC Document84-3 Filed04/16/07 Page6 of 20

SAN RAMON VALLEY UNIFIED SCHOOL DISTRICT
699 Old Orchard Drive, Danville, California 94526 Educational Services
(925) 552-5500 • FAX (925) 743-3902

SECTION 504 SUMMARY OF FINDINGS (FORM A)

Student's Name- - - - - - - - - - - - - - -
Student's ID#_ _ _ _ _ _ _ _ _ _ _ _ _ __
School._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Birthdate----------- Age----- Sex~---_ crradeorSu~ect~ _ _ _ _ _ _ _ _ ____
Teacher/Counse1or_ _ _ _ _ _ _ _ _ _ __

Section 504 Coordinator----------------Phone #- - - - - - - - - - - - - - - - -

Date of Parent Conference_ _ _ _ _ _ _ _ _ __

Annual Review Date for 504 Plan._---.,,-------

Educational Concemc.-_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _- - - - - - - - - - - - -

Summary of Review of Records

Summary of Intellect and Academic Abilities

Summary of Teacher Information

Summary of Parent Information

Summary Statement of FindingslRecommendations
The 504 Team determined that:
o This student is a Section 504 disabled individual.
o This student is not a Section 504 disabled individual because: o The student does not exhibit a Section 504 disability.
o The student does not exhibit a substantial limitation in learning or other major life activity.
Comments

o Parent has received due process rights.
Signatures of the Section 504 Team:

- - - - - - - - - - - - - - -504 Coordinator

-------------~Parent

- - - - - - - - - - - - - - -Teacher
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _Other

DISTRIBUTION: White - Student Cum

Canary - Teacher/Counselor

- - - - - - - - - - - - - - -Teacher

- - - - - - - - - - - - - -Other

ES:STU:II014 (4-Part NCR)

Pink - Education Services

Gold - Parent

Case3:05-cv-04077-MMC Document84-3 Filed04/16/07 Page7 of 20
SAN RAMON VALLEY UNIFIED SCHOOL DISTRICT SECTION 504 ACCOMMODATION PLAN (FORM 8)

Student's Name

Date

School

Section 504 Disability:

Grade

Date of Birth- - - - - - -

Teacher/Counselor- - - - - - - - - - - - - - - -

o Mental or 0 Physical impairment, which substantially limits one or more major life activities

Major Life Activity:

o Caring for Self
o Speaking

o Hearing o Working

o Walking o Leaming

o Seeing

o Breathing

o Other:----------------

Section 504 Accommodations in Regular Educational Programs:

o Inservice all relevant school personnel of Section 504 Plan

o Tape record lecture L)

o Short answer tests L ) o Open book/open note tests L )

o Use "books on tape" L)

o Stand in front of student when giving instruction L )

o Assignments and explanations on board when possible L)

o Extended time for completion of assignments and/or tests L)

o Modified assignments L-">

o Parent attends class with child L-">

o Student organizer/planner/notebook L)

o Positive reinforcement for productivity L )

o Positive reinforcement for behavior L)

o Preferential seating or special study area L )

o Concise and clear directions L )

o Parent checks homework L)

o Peer tutoring/lab partner L)

o Parent attends school conferences L-">
o Parent maintains contact with teacher L)

o Use ofcomputer lab L)

o Peer note taker L)

Key:

o Non-verbal cues to stay on task L)

o Behavior contract L J

S = Student

o School Counseling and Intervention Program-"SCIP" L )
o Handouts given one at a time L )

T=Teacher

o Daily/weekly progress reports L-"> o

P = Parent

o

o Take medication as prescribed L )

Medication Schedule:

o daily

0 weekly

0 as needed

o administered by_ _ _ _~_ __

Medication(s)_________________________________ Schedule___________________

Physician Name_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Phone_ _ _ _ _ _ _ _ _ _ __

DISTRIBUTION: White - Student Cum

Canary - Teacher/Counselor

Pink - Education Services

ES:STU:I1015 (4-PartNCR) Gold - Parent

Case3:05-cv-04077-MMC Document84-3 Filed04/16/07 Page8 of 20
SAN RAMON VALLEY UNIFIED SCHOOL DISTRICT SECTION 504 ACCOMMODATION PLAN (FORM C)

Student Name_ _~_ _ _ _ _ _ _ _ _ _ _ Grade

Date ofBirth:-_ _ __

Date_ _ _ _ _School

Teacher/Counselor_ _ _ _ __

Section 504 Disability:

o Mental or 0 Physical impa~rment, which substantially limits one or more major life activities

Major Life Activity:

o Caring for Self o Speaking

o Hearing o Working

o Walking
o Learning

o Seeing

o Breathing

o Other: _ _ _ _ _ _ _ __

Section 504 Accommodations in Regular Educational Programs:

o Parent has received due process rights.

Signatures of the Section 504 Team:

_ _ _ _ _ _ _ _ _ _ _ _ _ _--'504 Coordinator _ _ _ _ _ _ _ _ _ _ _ _-----'Parent

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _Teach~

- - - - - - - - - - - - - - -Other

White- Student Cum

CanarY-Teacher/Counselor

- - - - - - - - - - - - - -Teacher

- - - - - - - - - - - - - -Other

Pink- Educational Services

Gold-Parent

Case3:05-cv-04077-MMC Document84-3 Filed04/16/07 Page9 of 20 Exhibit F

Case3:05-cv-04077-MMC Document84-3 Filed04/16/07 Page10 of 20
ANNUAL PARENTS' RIGHTS AND RESPONSIBILITIES NOTICE
Each year the school district is required to send certain information to all parents who have children in the public schools. Some of this information requires a response from each parent, some requires a response only if the parent so desires, and some requires no response at all. To assist you in understanding your role as parents, the following descriptions and notices are provided.
GENERAL INFORMATION
1. Emergency Card: Schools are required to have emergency information on file for each student. Incomplete or wrong data on this card could endanger the safety of your child in an emergency. Please read, provide information, sign Cafter reading the Annual Parents' Rights and Responsibilities Notice, Civil Defense Notice, District Discipline Code and Behavior Guidelines, and Student Acceptable Use Policy for District Computer Network), and return to school. Please Note: CONTACT THE SCHOOL IF ADDRESS AND/OR TELEPHONE NUMBERS ARE CHANGED AT ANY TIME DURING THE YEAR.
2. Medical Health Care and 504 Plan and/or IEP: Students with a medical condition, such as diabetes, that requires management and/or emergency care during the school day will be provided needed care as specified by their physician through an individualized health care plan. Students may also be eligible for a Section 504 plan or Individualized Education Program CIEP). Contact the school for additional information.
3. FreelReduced Lunch Notice: The government provides a free and reduced price lunch program to all families. If you are eligible, complete the application and return it to your child's school. READ AND RESPOND IF ELIGIBLE.
4. Student Insurance Notice: Parents are financially responsible for students at all times. The district does not pay for the costs of accidental injuries to students, nor does the district pay for student accident insurance. Student accident insurance must be provided by your own policy and/or the student insurance offer enclosed. If you desire this coverage, follow the instructions on the notice. READ AND RESPOND, IF DESIRED.
5. Civil Defense and Disaster Policy and Procedure: District information is available at the local school or the Educational Services Depal talent at the District Office.
6. News Media: On occasion, news media request an interview with a student or group of students and, many times, desire to take pictures. Parents may request otherwise by contacting the principal.
7. Liability When Students Are Not On School Property: The district is not responsible nor in any way liable for the conduct or safety of any student at any time when such student is not on school property, unless the district has undertaken to provide transportation for such student to and from the school premises, has undertaken a school-sponsored activity off the premises of the school, has otherwise specifically assumed such responsibility, or has failed to exercise reasonable care under the circumstances. In the event of such a specific undertaking, the district, board, or person authorized by the district shall be liable or responsible for the conduct

Case3:05-cv-04077-MMC Document84-3 Filed04/16/07 Page11 of 20
or safety of any student only while such student is or should be under the immediate and direct supervision of an employee of such district or board. Parents shall be informed of any field trips or other activities that require their student's absence from the school premises during the regular school day and shall be informed if their student is allowed to leave school premises during the lunch period. (E.C. 44808)
8. Education Code (E.C.): Questions regarding sections cited in this notice may be directed to the school office or the Educational Services Department at the District Office.
9. Family Educational Rights and Privacy Act (FERPA): Questions regarding sections cited in this notice may be directed to the school office or the Educational Services Department at the District Office.

Case3:05-cv-04077-MMC Document84-3 Filed04/16/07 Page12 of 20 EXHIBIT G

Case3:05-cv-04077-MMC Document84-3 Filed04/16/07 Page13 of 20

SAN RAMON VALLEY UNIFIED SCHOOL DISTRICT

STUDENT EMERGENCY CARD

Teacher (Grades K-5 only)

Student Name _ _ _ _ _ _ _ _ __

STUDENT INFORMATION

Last Name

Grade

Gender MIF

Resident Address Resident City/Zip Home Phone Birthdate

First Name

Initial

(Provide Mailing Address if different than resident address)

Mailing Address

Mailing City/Zip

Social Security No.

PARENT INFORMATION

Parent/Guardiau (Name)

e-mail address

Relationship

Employer

Street Address

Work Phone

City

Home Phone

Cell Phone

Pager

TIDS SECTION MUST BE FILLED OUT Please print 2nd Parent/Guardian (Name)

Relationship

Street Address

City

State

2

Home Phone

Emplover

Work Phone

Cell Phone

e-mail

Only the people listed below have my permission to authorize medical or surgical services/or my child or to
pick up my child in the event ofillness or emergency: (LIST ANY ADDITIONAL EMERGENCY CONTACTS ON THE REVERSE)

EMERGENCY CONTACTS Other JDaycare (Name) Daytime Phone Relationship Address City

Other (Name) Daytime Phone Relationship Address City

IN ACTUAL EMERGENCY CALL: Physician Phone No. Insurance Co. or Plan

Dentist Phone No. LD. #

HEALTH INFORMATION -MEDICAL CONCERNS (will be shared with school staff members)

o I I I PRIMARY ETHNICITY GROUP Please circle primary and check all that apply

100-Native AmericanlEskimo 0400-

0500-Hispanic or Latino 0 600-African American or Black 0 700-White (not of

Asian

BFilipino

Hispanic origin)

201-Chinese D 202-Japanese D 203-Korean D 204-Vietnamese D 205-Asian Indian D 206-Laotian

207-Cambodian D 209-0ther Asian

Pacific Islander

I D 30 I-Native Hawaiian D 302-Guamanian D 303-Samoan D304-Tahitian D 399- D 999-Declined

Other Pacific
I HIGHEST PARENT EDUCATION LEVEL CODE: 10 - Grad:Sch/Post Grad

to state 11 - College Grad.

I

12 - Some College (AA) 13 - High School Grad 14 - Not a High School Grad 15 - Decline to StatelUnknown

Case3:05-cv-04077-MMC Document84-3 Filed04/16/07 Page14 of 20

I verify that the above information is true and correct.

Parent/Guardian Signature Please Continue on Reverse

Parent/Guardian Signature

Student Signature

Case3:05-cv-04077-MMC Document84-3 Filed04/16/07 Page15 of 20

RESIDENCY VERIFICATION
I verify that the stated address of the legal guardian is correct. I understand that falsification of residence information will result in the student's immediate reassignment to the correct school of enrollment. I further agree that if! move I will . inform the school within five (5) days of my change of residence.

.Signature of Parent/Guardian For school use only: Grid Code:

Date Signed

PARENT AGREEMENTS
Under ordinary circumstances, every effort will be made to contact the parentes) in case of illness or emergency. However, some situations dictate that the school must obtain permission from or turn the care of my child over to one of the adults I have indicated on this card. In the absence of these or any other specific directions, the school authorities are empowered to use their best judgment in the interest of the health and the safety of my child.
In the event of a civil defense emergency, I hereby give my permission for my child to be transported to a safe location as determined by the school district or its designee, or be housed at a congregate care center until such time as a member of the immediate family can assume responsibility for my child. Transportation may be by private car, school bus, or other means of public transportation.
If my child drives hislher own or the family automobile to school, he/she has my permission to drive said vehicle to the relocation site in the event of a civil defense emergency. I understand by signing this waiver I am assuming full responsibility for my child's safe transportation and that the school will not assign my child responsibilities related to transporting students in a civil defense emergency.

Signature of Parent/Guardian

Date Signed

PARENT NOTIFICATION
I have received and am aware of the Annual Parent Notice, the Civil Defense letter, the District Discipline Code and Behavior Guidelines and the Sexual Harassment Policy provided to me by the school. (Please be certain you have discussed the above with your child.)

Signature ofParent/Guardian

Student Signature

ADDITIONAL EMERGENCY CONTACT (Optional)

Date Signed

Address Daytime Phone
CUM sent:

Date:_ _ _ _ _ _ _ _ _ _ __

Address:

Student Name: __________________

Case3:05-cv-04077-MMC Document84-3 Filed04/16/07 Page16 of 20

San Ramon Valley Unified School District 699 Old Orchard Drive Danville, CA 94526
PARENT'S REQUEST FOR EMERGENCY TREATMENT FOR A STUDENT WITH LIFE-THREATENING MEDICAL PROBLEM

NOTE: Complete This Form Only If Your Child Has a Life-Threatening Medical Problem
Directions: Ifyour child has a medical problem that might result in a life-threatening emergency situation at school (e.g. Cardiac disorders, diabetes, severe asthma, severe allergic reactions to insects or food, or other miscellaneous life-threatening conditions), please complete this form and return to the School Nurse at your child's school.

Studem,_____________________________________________

Date ofBirth,_______-'-_______

School,________________________

Grade,_ _ __

Teacher/Counselor_ _ _ _ _ _ _ _ __

Medical Diagnosis and Description of Illness:_______________________________________________

Emergency Plan to' Follow: IF YOU SEE THESE SYMPTOMS

DOTIDS:

You have my permission to contact my child's doctor to discuss the above medical condition and medical plan.

Doctor's Name

Doctor's Office Phone Number

This form will be attached to your child's emergency card and shared with appropriate staff. Additionally, a school nurse will review the information provided. Based on the doctor's orders, should a more comprehensive Individualized Health Care Plan ("IHCP") be needed, the
school health care team will work with you to develop one. The mcp identifies how health care
services are to be provided to a student requiring medical care at school. Moreover, your child may be eligible for services pursuant to Section 504 of the Rehabilitation Act or the Individuals with Disabilities Act. Please see the Annual Parent Information Packet or contact the school for further information.

I understand this plan will not replace usual emergency procedures such as calling 911.

Case3:05-cv-04077-MMC Document84-3 Filed04/16/07 Page17 of 20

Parent/Guardian Signature Phone Number

Date

Relationship

This form was reviewed by_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ on _ _ _ _ _ _ _ _ _ _ _ __

School Nurse

Date

Case3:05-cv-04077-MMC Document84-3 Filed04/16/07 Page18 of 20 EXHIBIT H

Case3:05-cv-04077-MMC Document84-3 Filed04/16/07 Page19 of 20

1

2

3

4

5

6

7

8

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James M. Wood (SBN 58679) Kenneth J. Philpot (SBN 62401) Michael F. McCabe (SBN 111151) Kurtis J. Kearl (SBN 114977) Jayne E. Fleming (SBN 209026) REED SMITH LLP 1999 Harrison Street, Suite 2400 Oakland, CA 94612-3572 Telephone: 510.763.2000 Facsimile: 510.273.8832

Arlene Mayerson (SBN 79310) Larisa Cummings (SBN 131076) DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, INC. 2212 Sixth Street Berkeley, CA 94710 Telephone: 510.644.2555 Facsimile: 510.841.8645

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

K.C., by and through Erica C., her guardian, A.A., by and through Stacey A., her guardian, M.C., by and through Laurie C., her guardian, K.F., by and through Sheree F., her guardian, each one individually and on behalf of all other similarly situated children, and the AMERICAN DIABETES ASSOCIATION, an organization,

Case No. COS 4077 MMC REQUEST FOR DISMISSAL WITH PREJUDICE AND ORDER Honorable Maxine M. Chesney

18

Plaintiffs,

19

vs.

20 SAN RAMON VALLEY UNIFIED SCHOOL

DISTRICT, et a/.

21

Defendants.

22

23

Plaintiffs, K.C., by and through Erica C., her guardian, A.A., by and through Stacey

24 A., her guardian, M.C., by and through Laurie C., her guardian, each one individually, and

25 the American Diabetes Association, an organization, and defendants, SAN RAMON

26 VALLEY UNIFIED SCHOOL DISTRICT, BOARD OF TRUSTEES OF THE SAN RAMON

27 VALLEY UNIFIED SCHOOL DISTRICT, ROBERT KESSLER, JOAN BUCHANAN,

28

Case3:05-cv-04077-MMC Document84-3 Filed04/16/07 Page20 of 20

1

2

3

4

5

6

7

8

9

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23

24

25

26

27

28

RACHEL HURD, BILL CLARKSON, PAUL GARDNER and GREG MARVEL (collectively

"SRVUSD"), by and through respective counsel, hereby enter the following stipulation:

Having executed a full settlement in this matter, a true and correct copy of which i

attached as Exhibit A, the claims against SRVUSD as stated in the Complaint, filed by

Plaintiffs, are hereby dismissed with prejudice. Each party is to bear their own costs and

attorneys' fees.

DATED: March _ _, 2007

REED SMITH LLP

Dated:

April _ _, 2007

ByJ-A-M-E~S-M-.-W~O~O~D~--------~ Attorneys for Plaintiffs
and
DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, INC. Arlene Mayerson Larisa Cummings Attorneys for Plaintiffs
STUBBS & LEONE

IT IS SO ORDERED:
Dated: ---------------------

LOUIS A. LEONE KATHERINE A. ALBERTS Attorneys for Defendants SAN RAMON VALLEY UNIFIED SCHOOL DISTRICT, BOARD OF TRUSTEES OF THE SAN RAMON VALLEY UNIFIED SCHOOL DISTRICT, ROBERT KESSLER, JOAN BUCHANAN NANCY PETSUCH, BILL CLARKSON, PAUL GARDNER, and GREG MARVEL

THE HONORABLE MAXINE M. CHESNEY

Case3:05-cv-04077-MMC Document84-4 Filed04/16/07 Page1 of 19
EXHIBIT A TO REQUEST FOR DISMISSAL WITH
PREJUDICE AND ORDER PART 4 OF 4

Case3:05-cv-04077-MMC Document84-4 Filed04/16/07 Page2 of 19 Exhibit I

Schools

SAN RAMON VAllEY UNIFIED SCHOOL DISTRICT DIABETES MONITORING REPORT

Case3:05-cv-04077-MMC Document84-4 Filed04/16/07 Page3 of 19

Case3:05-cv-04077-MMC Document84-4 Filed04/16/07 Page4 of 19 EXHIBIT J

Case3:05-cv-04077-MMC Document84-4 Filed04/16/07 Page5 of 19

Community Relations

BP 1312.3 a

UNIFORM COMPLAINT PROCEDURES

The Governing Board recognizes that the disttict has primary responsibility for insuring that it complies with state and federal laws and regulations governing educational programs, except those complaints related to instructional materials, condition offacilities, or teacher vacancies
or misassignments shall be processed in accordance with Board Policy 1312.4. The district shall investigate and seek to resolve complaints at the local level. The district shall follow uniform complaint procedures when addressing complaints alleging unlawful discrimination or failure to comply with state or federal law in adult basic education, consolidated categorical aid programs, migrant education, career/vocational education, child care and development programs, child nutrition programs and special education programs, and allegations ofunlawful discrimination (age, sex, sexual orientation, gender, ethnic group identification, race, ancestry, national origin, religion, color, or mental/physical disability).

The Board prohibits retaliation in any form for the filing of a complaint, the reporting of instances of discrimination, or for participation in complaint procedures. Such participation shall not in any way affect the status, grades, or work assignments of the complainant.

The Board acknowledges and respects students and employee rights to privacy. Discrimination complaints shall be investigated in a manner that protects the confidentiality ofthe parties and the facts. This includes keeping the identity of the complainant confidential except to the extent necessary to carry out the investigation or proceedings, as determined by the Superintendent or designee on a case-by-case basis.

The Superintendent or designee shall ensure that employees designated to investigate complaints are knowledgeable about the laws and programs for which they are responsible. Such employees may have access to legal counsel as determined by the Superintendent or designee.

Nothing in this policy precludes a complainant from pursuing available civil law remedies, such as injunctions, restraining orders, pUblic/private interest groups, attorneys, or mediation centers. The Board recognizes that a neutral mediator can often suggest an early compromise that is agreeable to all parties in a dispute. Whenever all parties to a complaint agree to try resolving their problem through mediation, the Superintendent or designee shall initiate a mediation process before beginning a formal compliance investigation. The Superintendent or designee shall ensure that mediation results are consistent with state and federal laws and regulations. The following alternative dispute resolution is available:
Contra Costa Conflict Resolution Panels Project ofthe Center for Human Development 391 Taylor Blvd, Suite 120 Pleasant Hill, CA 94523 (925) 798-6132

The Governing Board designates the following compliance officer to receive and investigate complaints and ensure district compliance with law:
Roberta Silverstein, Assistant Superintendent San Ramon Valley Unified School District 699 Old Orchard Drive Danville, California 94526

Case3:05-cv-04077-MMC Document84-4 Filed04/16/07 Page6 of 19

Community Relations

BP 1312.3 b

UNIFORM COMPLAINT PROCEDURES

Complaints of employment discrimination are not subject to the State's uniform complaint procedure. Such complaints shall be sent to the following administrator who may use the procedures contained in this policy as general guidelines in the handling of such complaints:

Assistant Superintendent, Human Resources San Ramon Valley School District 699 Old Orchard Road Danville, CA 94526

Overview of Timelines:

1. The affected person or another person on hislher behalf must initiate the complaint no later than six months from the date when the alleged discrimination occurred or when the complainant first obtained knowledge ofthe facts of the alleged discrimination. (Title 5, Section 4630)

2. At any time in the process, the compliance officer shall discuss with the complainant the

possibility of using mediation. The Compliance officer shall than make arrangements for

a mediation conference.

'

3. Within 60 days of receipt of a complaint, the Superintendent or designee shall complete the investigation and send a written decision to the complainant.

4. The written decision shall include notice ofthe complainant's right to appeal the decision within 15 days of receiving the District written report to the California Department of Education.

This policy will be distributed annually to students, employees, parents, district-site advisory committees and other interested parties. For a full description of the Uniform Complaint Procedures, parties should request Administrative Regulation 1312.3.

cf 0410 - Nondiscrimination in District Programs and Activities cf 0420.1 - School-Based Coordinated Programs cf 0420. 2- School Improvement Programs cf 0430 - Comprehensive Local Plan for Special Education cf 3553 - Free and Reduced Lunch Programs cf 4119.23 - Unauthorized Release ofConfidential/Privileged Information cf 5125 - Student Records cf 6171 - Chapter 1 Programs cf 6174 - Education for Students ofLimited English Proficiency cf 6178 - Vocational Education cf 6179 - Child Care and Development Programs cf 9011 - Disclosure ofConfidential/Privileged Information cf 9124 -Attorney

Legal Reference: . EDUCATION CODE 200-262.3 Prohibition ofdiscrimination 35160.5 Requirement ofschool district policies: parental complaints reo employees 48985 Notices in language other than English

Case3:05-cv-04077-MMC Document84-4 Filed04/16/07 Page7 of 19

Community Relations

BP 1312.3 c

UNIFORM COMPLAINT PROCEDURES

49060-49079 Student Records 60650 Personal belieft CODE OF REGULATIONS, TITLE 5 3080 Application ofsection 4600-4671 4600-4671 Uniform Complaint Procedures GOVERNMENT CODE 54957-5495 7.8 Closed sessions CIVIL RIGHTS ACT OF 1964 42US.CA. section 2000c et seq. TITLE IX EDUCATION AMENDMENTS OF1972 20 US. CA. Section 1231q,1681 et seq. SECTION 504, REHABILITATIONACT OF 1973 29 . u.s. CA. section 721.761 EDUCATION CONSOLIDATION AND IMPROVEMENT ACT OF 1981 20 Us. CA. Section 3801 et seq. GENERAL EDUCATION PROVISIONS ACT 20 US. CA. 1221 et seq., especially: FAMILY EDUCATION AND PRIVACY RIGHTS ACT OF 1974 20 U.S. CA. Section 1221, 1232g 34 code offederal regulations, Section 100.7(e)

Case3:05-cv-04077-MMC Document84-4 Filed04/16/07 Page8 of 19

Community Relations

AR 1312.3 a

UNIFORM COMPLAINT PROCEDURES

Purpose and Scope

The District is the local agency primarily responsible for compliance with federal and state laws and regulations. Persons responsible for conducting investigations shall be knowledgeable about the laws and programs, which they are assigned to investigate. This complaint procedure is adopted in order to comply with Code of Regulations, Title 5 Section 4620 et seq. and governs (1) complaints of discrimination on the basis of age, sex, sexual orientation, gender, ethnic group identification, race, ancestry, national origin, religion, color, or mental or physical disability; and (2) complaints of violations ofthe laws and regulations governing the following programs:

Adult Education Career/Technical Education Child Development Special Education Nutrition Services

Consolidated Categorical Aid, such as: - No Child Left Behind - Economic Impact Aid (SCE, EIA-LEP - Peer Assistance and Review - School Improvement Program - Tenth Grade Counseling - Tobacco Use Prevention Education

Compliance Officers

The Governing Board designates the following compliance officer to receive and investigate complaints and ensure district compliance with law:

SuperintendentlDesignee San Ramon Valley Unified School District 699 Old Orchard Drive Danville, California 94526

Complaints of employment discrimination are not subject to the State's uniform complaint procedure. Such complaints shall be sent to the following administrator who may use the procedures contained in this policy as general guidelines in the handling of such complaints:

Assistant Superintendent of Human Resources San Ramon Valley School District 699 Old Orchard Road Danville, CA 94526

Notifications

The Superintendent/designee shall meet the notification requirements ofthe Code of Regulations, Title 5, Section 4622, including the annual dissemination of district complaint procedures and information about available appeals, civil law remedies and conditions under which a complaint may be taken directly to the California Department of Education. (cf.5145.6 Notifications Required by Law)

Case3:05-cv-04077-MMC Document84-4 Filed04/16/07 Page9 of 19

Community Relations

AR 1312.3 b

UNIFORM COMPLAINT PROCEDURES

Procedures

The following procedures shall be used to address all complaints that allege that the district has violated federal or state laws or regulations governing educational programs, except those complaints related to instructional materials, condition of facilities, or teacher vacancies or misassignments shall be processed in accordance with Administrative Regulations 1312.4. Compliance officers shall maintain a record of each complaint and subsequent related actions, including all information required for compliance with the Code of Regulations, Title 5, and Section 4632.

Complainants shall not be subject to retaliation as a result of the filing of a complaint. Investigations ofdiscrimination complaints shall be conducted in a manner that protects confidentiality of the parties and the facts. (Title 5, Section 4630)

All parties involved in allegations shall be notified when a complaint is filed, when a complaint meeting or hearing is scheduled, and when a decision or ruling is made.

Steps 1: Filing of Complaint

Any individual, public agency or organization may file a written complaint alleging a matter, which, if true, would constitute a violation of federal, or state law or regulation governing the educational programs set forth above or unlawful discrimination.

The Complaint shall be presented to the Superintendent for the.District except that complaints of employment discrimination shall be presented to the Assistant Superintendent, Human Resources.

A complaint must be in writing and contain a concise statement of the facts constituting the ground for the complaint, and, where applicable, the laws or regulations violated. The complainant must sign and date the complaint. If a complainant is unable to put a complaint in writing due to conditions such as illiteracy or other handicaps, district staff shall help himlher to file the complaint. (Title 5, Section 4600)

Complaints alleging unlawful discrimination may be filed by a person who alleges personal discrimination or by a person who believes that an individual or any specific class of individuals has been subjected to unlawful discrimination. The complaint must be initiated no later than six months from the date when the alleged discrimination occurred or when the complainant first obtained knowledge of the facts of the alleged discrimination (Title 5, Section 4630) The period for filing a complaint may be extended by the SuperintendentlDesignee, upon written request by the complainant and upon a showing of good cause. In no case shall the time for filing a complaint be extended beyond 90 days following expiration of the 6 month period. (Title 5, Section 4630(b)).

At any stage of processing the complaint, the parties may mutually agree to attempt mediation a; an alternative dispute resolution. If needed, the parties may extend the timeline for completion 0: the investigation or seek an extension ofthe timeline for the complainant to file an appeal.

Case3:05-cv-04077-MMC Document84-4 Filed04/16/07 Page10 of 19

Community Relations

AR 1312.3 c

UNIFORM COMPLAINT PROCEDURES

Extensions of timelines must be by written agreement of the complainant. (Title 5, Section 4631 (a».

Step 2: Investigation of Complaint

The Compliance Officer shall investigate the complaint. The investigation shall provide an opportunity for the complainant, the complainant's representative, or both, and district representatives, to present the complaint(s) and evidence or information leading to evidence to support the allegations ofnon-compliance. (Title 5, Section 463(b». The investigation may include an opportunity for the parties to the dispute to meet to discuss the complaint or to question each other and each other's witnesses.

Step 3: Preliminary Decision

The Compliance Officer shall hold a hearing within 20 days of receiving the complaint. At the hearing the complainant and the District's representative shall have the opportunity to present relevant information regarding the complaint. Parties to the dispute may discuss the complaint and ask questions. To ensure that all pertinent facts are made available, the complainant or the Compliance Officer may invite other individuals to attend the hearing and provide additional relevant information.

The Compliance Officer will issue a preliminary decision within 30 days from the date of the filing of the complaint. If further investigation is deemed warranted after the preliminary decision is issued, the Compliance Officer may further investigate the complaint

Step 4: Response and Final Decision

Within 60 days from receipt of a complaint, the Superintendent or designee shall complete the investigation in accordance with this procedure, prepare a written decision, and send a copy of the decision to the complainant. Extensions of timelines must be by written agreement of the complainant. (Title 5, Section 4631 (a»

The written decision shall be written in English and in the language ofthe complainant wheneverfeasible or required by law. The decision shall contain:

(a) The findings and disposition of the complaint, including corrective actions, if any.

(b) The rationale for the above disposition.

(c) Notice of the complainant's right to appeal the decision to the California Department of Education, and procedures to be followed for initiating such an appeal.

Appeals

Any complainant may appeal a district decision to the State Superintendent of Public Instruction by filing a written appeal with the State Superintendent of Public Instruction within 15 days of

Case3:05-cv-04077-MMC Document84-4 Filed04/16/07 Page11 of 19

Community Relations

AR 1312.3 d

UNIFORM COMPLAINT PROCEDURES

receiving the district decision. For good cause the State Superintendent of Public Instruction may grant extensions for filing appeals.

The appeal shall specify the reason(s) for appealing the district decision and shall include a copy of the complaint and a copy ofthe district decision.

Upon notification by the State Superintendent of Public Instruction that the district decision is being appealed, the district shall forward the following to the State Superintendent of Instruction:

(a) The originai complaint.

(b) A copy ofthe district decision.

(c) A summary of the nature and extent of the investigation conducted by the district, ifnot covered in the decision.

(d) A report of an action taken to resolve the complaint.

(e) A copy ofthe district's complaint procedure.

(f) Such other relevant information as the State Superintendent of Instruction may require.

Basis of Direct State Intervention

1. The State Superintendent of Public Instruction shall respond directly to the complainant without waiting for local agency action if one or more of the following conditions exist:

a) The complaint includes an allegation, and the department verifies, that a local educational agency failed to comply with the complaint procedures required by Title 5;

b) Discrimination is alleged by the complainant and the facts alleged indicate that the complainant will suffer an immediate loss of some benefit such as employment or education if the department does not intervene. However, nothing in this section gives the department jurisdiction over employment discrimination claims;

c) The complaint relates to agencies other than local educational agencies funded through the Child Development and Child Nutrition Programs;

d) The complainant requests anonymity and presents clear and convincing evidence, and the department verifies, that he or she would be in danger ofretaliation if a complaint were filed locally, or has been retaliated against because of past or present complaints;

Case3:05-cv-04077-MMC Document84-4 Filed04/16/07 Page12 of 19

Community Relations

AR 1312.3 e

UNIFORM COMPLAINT PROCEDURES

e) The complainant alleges that the local educational agency failed or refused to implement the final aecision resulting from its local investigation or local Mediation Agreement;

f) The local agency refuses to respond to the State Superintendent of Instruction's request for information regarding a complaint;

g) The complainant alleges, and the department verifies or the department has information, that no action has been taken by the local educational agency within 60 calendar days of the date the complaint was filed locally.

h) For complaints relating to special education the following shall also be conditions for direct state intervention:

1. The complainant alleges that a public agency, other than a local educational agency, as specified in Government Code Section 7570 et seq., fails or refuses to comply with an applicable law or regulation relating to the provision of free appropriate public education to student with a disability,

2. The complainant alleges that the local educational agency or public agency fails or refuses to comply with the due process procedures established pursuant to federal and state law and regulation; or has failed or refused to implement a due process hearing order;

3. The complainant alleges facts that indicate that the child or group of children may be in immediate physical danger or that the health, safety or welfare of a child or group of children are threatened;

4. The complainant alleges that a student with a disability is not receiving the special education or related services specified in his or her Individualized Educational Program (IEP).

5. The complaint involves a violation of federal law governing special education, 20 U.S.C. Section 1400 et seq., or its implementing regulations.

2. The complaint shall identify upon which basis, as described in paragraph (a) of this section, that direct filing to the state is being made.

Case3:05-cv-04077-MMC Document84-4 Filed04/16/07 Page13 of 19

EXHIBIT K

9862569v.1

Case3:05-cv-04077-MMC Document84-4 Filed04/16/07 Page14 of 19

Instruction IDENTIFICATION AND EDUCATION UNDER SECTION 504

BP 6164.6

The Governing Board recognizes the need to identify and evaluate residents with handicaps in order to provide them with appropriate educational opportunities. Such individuals may require reasonable accommodation under Section 504 of the federal Rehabilitation Act of 1973.

The Superintendent or designee shall establish procedures whereby parents/guardians or staff may request screening and evaluation for any student they believe to have a handicap that significantly impairs hislher learning.

A school site committee of knowledgeable professionals shall meet to evaluate the student's eligibility under Section 504, and the student's parent/guardian shall be invited to participate on this committee. The evaluation may include, but is not limited to, classroom and playground observation, performanc~ based testing, academic assessment information, and data offered by the parent/guardian.

If the student is found to have a defined handicap that significantly interferes with hislher learning or other major life activity, he/she shall be eligible for reasonable accommodation under Section 504, and the school site committee shall develop a written accommodation plan for the student. This plan shall specify the modifications which will be made in the regular education program in order to ensure the student a free appropriate education; it shall also include a schedule for periodic review of the student's needs and indicate that this review may occur sooner at the request ofthe parent/guardian or school staff.

The school site committee shall provide the parent/guardian with a written copy of the accommodation plan. If the committee determines that no accommodation is needed, the parent/guardian shall receive a record ofthe proceedings stating the basis for this decision. Parents/guardians shall also receive a copy of the procedural safeguards guaranteed under the Code of Federal Regulations, Title 34, Part 104.36.

(cf 0401 - Nondiscrimination in District Programs and Activities)
Legal Reference: UNITED STATES CODE. TITLE 20 1232g Family Educational Rights and Privacy Act of1974 1400 et seq. Individuals with Disabilities Education Act UNITED STATES CODE, TITLE 29 701 et seq. Rehabilitation Act of1973 794 Rehabilitation Act of 1973, Section 504 CODE OF FEDERAL REGULATIONS. TITLE 34 104.1-104.61 Nondiscrimination on the basis ofhandicap, especially 104.1 Purpose to effectuate Section 504 ofthe Rehabilitation Act of 104.3 Definitions 104.35 Evaluation and placement 104.36 Procedural safeguards Southeastern Community Collage v. Davis (1970) 442 US. 397; 99 Supreme Court 2361

SAN RAMON VALLEY UNIFIED SCHOOL DISTRICT

Policy adopted: January 17, 1995

Danville, California

Policy revised: September 5, 2006

9862S69v.1

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Instruction

AR 6164.6 (a)

IDENTIFICATION AND EDUCATION UNDER SECTION 504

1. Any student who, because of handicap, needs or is believed to need regular or special education and related aids and services not available through existing programs in order to receive a free appropriate public education, may be referred by a parent, teacher, other certificated school employee, or community agency to the school site principaL

2. The school site principal or hislher designee (as school 504 Team Coordinator) will bring the referral to the school's 504 Team which will be composed or persons knowledgeable about the student's individual needs, the student's school history, the meaning of evaluation .data, and placement/accommodation options. The 504 Team Coordinator will monitor the composition of the 504 Team to ensure that qualified personnel participate.

3. The 504 Team will promptly consider the referral and based upon a review of the student's school records (including academic, social, behavioral, and medical records), and the student's needs, make a determination as to whether an evaluation under this procedure is appropriate. Students requiring evaluation will be referred to appropriate evaluation specialists.

4. If a request for evaluation is denied, the 504 Team will inform the parent(s) or guardian of this decision and of their procedural rights as described herein.

Evaluation

The evaluation of qualified handicapped students within the meaning of Section 504 and formulation of a plan for services will be carried out by the Section 504 Team according to the following procedures.

1. The 504 Team will evaluate the nature of the student's handicap and the impact of the handicap upon the student's education. This evaluation will include consideration ofthe handicapping condition and how it interferes with the regular participation of a student who otherwise meets the criteria (such as age) for participation in the educational program andlor activities. The evaluation will comply with the requirements of34 CFR 104.35 (a) and (b).

2.

No final determination of whether the student will or will not be identified as a handicapped

individual within the meaning of Section 504 will be made by the 504 Team without first

inviting the parent(s) or guardian ofthe student to participate in a meeting concerning such

determination.

3.

A final decision will be made by the 504 Team in writing, and the parent(s) or guardian of

the student shall be notified ofthe Section 504 procedural safeguards available to them,

including the right to an impartial hearing as described herein.

Plan for Services

1.

For a student who has been identified as qualified handicapped within the meaning of

Section 504, the 504 Team shall be responsible for determining what special services are

necessary to ensure that the student receives a free appropriate public education.

2. In making this determination, the 504 Team shall consider all available relevant information, drawing upon a variety of sources, which may include, but not be limited to, comprehensive

9862569v.1

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Instruction

AR 6164.6 (b)

IDENTIFICATION AND EDUCATION UNDER-SECTION 504

assessments conducted by the district's professional staff.

3.

The parent(s) or guardian shall be invited to participate in the 504 Team meeting where

services for the student will be determined.

4. The 504 Team will develop a written plan describing the handicap and any modifications needed. The plan will specify how the regular or special education and related aids and services will be provided, and by whom. A copy ofthe plan shall be maintained in the student's cumulative tale. The student's teacher, aide, and other school employees who provide services to the student shall be informed of the services necessary for the student, to the extent that any ofthese individual(s) needs be informed in order to provide for the student in the school setting.
5. The 504 Team may also determine that no special services are necessary for the student. If the Team determines that no special needs are necessary, the record of the 504 Team meeting will reflect the identification of the student as a handicapped person under Section 504 and will state the basis for the decision that no special services are presently needed.
6. In all cases, a handicapped student shall be placed in the regular educational environment of the district, with the use of reasonable accommodations, unless the district demonstrates that such a placement cannot be achieved satisfactorily. The handicapped student shall be educated with those who are not handicapped to the maximum extent appropriate to the individual needs of the student.

7. The parent(s) or guardian shall be notified in writing of the final decision concerning the services to be provided, if any, and the Section 504 procedural safeguards, including the right to a district level review of the decision and if necessary, an impartial hearing ifthe parent(s) or guardian disagree with the Team's decision or compliance with the 504 Plan.

Review of the Student's Progress

1.

The 504 Team will monitor the progress of the handicapped student and the effectiveness

of the student's plan annually to determine whether the services are appropriate and

necessary, and that the handicapped student's needs are being met as adequately as the

needs of the non-handicapped students.

2.

Prior to any subsequent significant change in placement, a reevaluation of the student's

needs will be conducted.

Procedural Safeguards

1.

The parent(s) or guardian ofa qualified handicapped student shall be notified in writing of

all district decisions concerning the identification, evaluation, or educational placement of

their child made under this regulation.

2.

The parent(s) or guardian of a qualified handicapped student have the right to review

relevant records regarding the student. Records may be reviewed at the school site or at the

district office. Copies of student records may be obtained pursuant to Education Code

section 49065.

3. Any written request or notification regarding Section 504 must be filed in the office of the
9862569v.1

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Instruction

AR 6164.6 (c)

IDENTIFICATION AND EDUCATION UNDER SECTION 504
District 504 Coordinator, Educational Services Division, 699 Old Orchard Drive, Danville, CA 94526.
4. In the event that the parent(s) or guardian disagree with the school 504 Team decisions concerning the identification, evaluation, and/or educational placement of their child made under this regulation, the parent(s) or guardian shall notify the District in writing of their request for a District review of the decision. Upon receipt of this notification the District will have 30 days to respond and engage the parent(s) or guardian in a meet and confer process to resolve the issues.
5. lithe District and parent(s) or guardian are unable to resolve the complaint through the meet and confer process, the parent(s) or guardian within 30 days of the decision, may submit a request in writing to the district for an impartial hearing.
6. The parent(s) or guardian shall have the right to an impartial hearing ("Section 504 due process hearing"), with opportunity for participation by the parent(s) or guardian and representation by counsel, as to district decisions concerning the identification, evaluation, and/or educational placement of a student. In the notice of any district decision concerning identification, evaluation and/or placement of a student, the parent(s) or guardian will be advised of:

(a) the date on or before which they must file a request for a Section 504 due process hearing, as specified below, (b) the person to whom they shall make such request, as set forth below, (c) the procedures for conduct ofthe hearing, and (d) the fact that reimbursement of attorney's fees, expert witness and other costs is available only as authorized by law.

7.

A parent, guardian or student making an oral request will be assisted by the district in

making a written request. The written request for a hearing shall contain the following:

a. The specific nature ofthe decision(s) made by the district with which the person disagrees.

b. The specific relief the person seeks.

c. Any other information the person believes will assist in understanding the request.

8. Within 20 calendar days of receipt of a timely written request for hearing, the district Section 504 Coordinator will select an impartial hearing officer in each case for which a hearing has been requested, unless such time is extended for good cause or by mutual agreement of the parties.

9. A hearing officer selected by the district must satisfy the following requirements:

a. Be qualified to review district decisions relating to Section 504.

b. Not be an employee, or under contract with, the district or the SELPA of which the district is a member in any capacity other than that of a hearing officer.
c. Not have any professional or personal involvement that would affect his or her
impartiality or objectivity in the matter.

9862569v.1

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Instruction

AR 6164.6 (d)

IDENTIFICATION AND EDUCATION UNDER SECTION 504
10. Within 45 calendar days of the selection of the hearing officer, the hearing shall be conducted and a written decision mailed to all parties, unless such time is extended for good cause or by mutual agreement ofthe parties.
11. Any party to the hearing shall be afforded the following rights:
a The right to be accompanied and advised by counsel and by individuals with special knowledge or training related to the problems of students who are qualified handicapped within the meaning of Section 504.

b. .The right to present evidence, written and oral.

c. The right to question and cross-examine witnesses.

d The right to written findings of fact, conclusions of law and decision prepared by the hearing officer.
e. The right to a written or electronic verbatim record of the hearing prepared at the expense of the individual requesting such record.
f. The right to prohibit the introduction of evidence at the hearing that has not been disclosed to the other party or parties at least five calendar days prior to the hearing, except for good cause shown.

g. Receipt of notice from the other party or parties at least 10 calendar days prior to the

hearing that they will utilize the services of an attorney, except for good cause

shown.

.

10. The hearing officer shall render a decision pursuant to the legal standards set forth in 34 CFR Part 104.

11. Either party may seek review of the hearing officer's decision by a court of competent jurisdiction.

Regulation

SAN RAMON VALLEY UNIFIED SCHOOL DISTRICT

approved January 17, 1995

Danville, California

revised September 5,2006

9862569v.1

Case3:05-cv-04077-MMC Document84-4 Filed04/16/07 Page19 of 19
9862569v.l

 
 1

2

3

4

5

6

7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9

United States District Court For the Northern District of California

10 K.C., by and through Erica C., her guardian, 11 et al.,

12

Plaintiffs,

13 v.

14

TOM TORLAKSON, in his official capacity as Superintendent of Public Instruction for

15 the State of California, et al.,

16

Defendant.

17

/

No. C 05-4077 MMC
ORDER GRANTING IN PART AND DEFERRING IN PART RULING ON PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND EXPENSES

18 Before the Court is plaintiffs’ “Motion for Reasonable Attorneys’ Fees and
19 Expenses,” filed January 30, 2015, pursuant to 42 U.S.C. § 12205, 29 U.S.C. § 794a(b),
20 and 20 U.S.C. § 1415(i)(3)(B), by which plaintiffs seek attorneys’ fees and costs incurred in
21 connection with monitoring defendants’ compliance with the parties’ settlement agreement
22 as incorporated in the Court’s 2007 order of dismissal. The matter came on regularly for
23 hearing on March 20, 2015. Donna Brorby of the Law Office of Donna Brorby and Larissa
24 M. Cummings and Namita Gupta of Disability Rights Education and Defense Fund, Inc.
25 appeared on behalf of plaintiffs. Ava C. Yajima, Deputy General Counsel for the California
26 Department of Education, appeared on behalf of defendants. Having read and considered
27 the parties’ respective written submissions, and having considered the arguments of
28 counsel at the hearing, the Court rules as follows.

1

For the reasons stated in detail on the record at the hearing, the Court: (1) finds it

2 appropriate to exercise discretionary ancillary jurisdiction over plaintiffs’ motion; (2) finds

3 the motion is not barred by Rule 54 of the Federal Rules of Civil Procedure or any other

4 considerations regarding timeliness; and (3) finds plaintiffs neither expressly nor impliedly

5 waived their claim for post-settlement attorneys’ fees and costs.

6

Accordingly, the Court finds plaintiffs are entitled to an award of reasonable

7 attorneys’ fees and costs incurred for monitoring compliance with the parties’ settlement

8 agreement, and hereby GRANTS plaintiffs’ motion to said extent.

9

The Court hereby DEFERS ruling on the amount of such award, and the parties are

10 hereby DIRECTED to submit to the Court, no later than April 17, 2015, a proposed form of

11 order setting forth the parameters of the Court’s reference of the matter to a Magistrate

12 Judge for the purpose of overseeing the parties’ discussions as to resolution of the

13 remaining issue.

14

15

IT IS SO ORDERED.

16 Dated: March 20, 2015 17

MAXINE M. CHESNEY United States District Judge

18

19

20

21

22

23

24

25

26

27

28

2

 
 Case3:05-cv-04077-JCS Document176 Filed06/29/15 Page1 of 2

Donna Brorby (SBN 75936; lodb@earthlink.net) 1 Law Office of Donna Brorby
315 Hugo Street 2 San Francisco, California 94122 3 Telephone: (415) 377-8285
4 Arlene B. Mayerson (SBN 79310; amayerson@dredf.org) Larisa M. Cummings (SBN 131076; lcummings@dredf.org)
5 DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, INC. 3075 Adeline Street, Suite 210
6 Berkeley, CA 94703 Telephone: (510) 644-2555
7 Facsimile: (510) 841-8645
8 Attorneys for Plaintiffs

9 UNITED STATES DISTRICT COURT

10

FOR THE NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12

K.C., by and through Erica C., her guardian, Case No. C-05-4077 (JCS)

13 et al.,

REQUEST FOR DISMISSAL WITH

14

Plaintiffs,

PREJUDICE

15

vs.

16 Tom Torlakson, in his official capacity as Superintendent of Public Instruction For
17 the State of California, et al.,

18

Defendants.

19

20

Having received from defendants the sum for attorneys’ fees to which the parties agreed

21 during the settlement conference on June 2, 2015, the plaintiffs hereby request a dismissal with

22 prejudice of their attorneys’ fees motion in this case, any and all attorneys’ fees and costs claims

23 that have been or could have been or could be made in this case and any and all claims for

24 /////

25 /////

26 /////

27 /////

28 /////

REQUEST FOR DISMISSAL WITH PREJUDICE

Case No. C-05-4077 (JCS)

1

Case3:05-cv-04077-JCS Document176 Filed06/29/15 Page2 of 2

1 attorneys’ fees in this case, past, present and future.

2

3 DATED: June 29, 2015 4 5 6 7 8

/s/Donna Brorby_________________________ Donna Brorby
Arlene B. Mayerson Larisa M. Cummings DISABILITY RIGHTS EDUCATION AND DEFENSE FUND
Attorneys for Plaintiffs

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

REQUEST FOR DISMISSAL WITH PREJUDICE AND ORDER

Case No. C-05-4077 (JCS)

2

 
 Case3:05-cv-04077-JCS Document177 Filed07/01/15 Page1 of 1

1 Donna Brorby (SBN 75936; lodb@earthlink.net)

Law Office of Donna Brorby 2 315 Hugo Street

3

San Francisco, California 94122 Telephone: (415) 377-8285

4 Arlene B. Mayerson (SBN 79310; amayerson@dredf.org) 5 Larisa M. Cummings (SBN 131076; lcummings@dredf.org)
DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, INC. 6 3075 Adeline Street, Suite 210
Berkeley, CA 94703 7 Telephone: (510) 644-2555
Facsimile: (510) 841-8645
8 Attorneys for Plaintiffs
9

10

UNITED STATES DISTRICT COURT 11
FOR THE NORTHERN DISTRICT OF CALIFORNIA 12
SAN FRANCISCO DIVISION

13

14

K.C., by and through Erica C., her guardian, et al.,

Case No. C-05-4077 (JCS)

15

Plaintiffs,

DISMISSAL WITH PREJUDICE

16

vs.

17 Tom Torlakson, in his official capacity as

18

Superintendent of Public Instruction For the State of California, et al.,

19

Defendants.

20

21

The Court has received and reviewed plaintiffs’ request for dismissal. IT IS HEREBY

22 ORDERED that the attorneys’ fees motion in this case, any and all attorneys’ fees and costs

23 claims that have been or could have been or could be made in this case and any and all claims for

24 attorneys’ fees in this case, past, present and future are hereby dismissed. Each party is to bear its

25 own costs.

26

27 Dated: _J_u_l_y_1_,_2_0_1_5_____ 28

_/_s_/ _J_o_se_p_h__C_._S_p_e_r_o__________________ The Honorable Joseph C. Spero

DISMISSAL WITH PREJUDICE Case No. C-05-4077 (JCS)

 
 Case: 3:05-cv-04077-JCS As of: 07/29/2015 09:50 PM PDT 1 of 23
ADRMOP,CLOSED,CONSENT,E−Filing,PRVADR
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:05−cv−04077−JCS

K.C., et al v. O'Connell, et al Assigned to: Magistrate Judge Joseph C. Spero Case in other court: 12−16178 Cause: 29:0794 Job Discrimination (Handicap)
Plaintiff
K. C. by and through Erica C., her guardian, individually and on behalf of all other similarly situated children

Date Filed: 10/11/2005 Date Terminated: 07/01/2015 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Kenneth J. Philpot Reed Smith LLP 1999 Harrison Street, Suite 2400 Oakland, CA 94612−3572 (510) 763−2000 Fax: (510) 273−8832 Email: kphilpot@reedsmith.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Arlene Brynne Mayerson Disability Rights Education & Defense Fund, Inc. 3075 Adeline Street, Suite 210 Berkeley, CA 94703 (510) 644−2555 Fax: (510) 841−8645 Email: AMayerson@dredf.org ATTORNEY TO BE NOTICED

Charlotte L. Lanvers Disability Rights Education and Defense Fund, Inc. 3075 Adeline Street Suite 210 Berkeley, CA 94710 510−644−2555 Fax: 510−841−8645 Email: clanvers@dredf.org ATTORNEY TO BE NOTICED

Donna Jean Brorby Law Offices of Donna Brorby 605 Market St. Ninth Floor San Francisco, CA 94105 (415) 377−8285 Email: lodb@earthlink.net ATTORNEY TO BE NOTICED

James M. Wood Reed Smith LLP 101 Second Street Suite 1800 San Francisco, CA 94105 415−543−8700 Fax: 415−391−8269 Email: jmwood@reedsmith.com ATTORNEY TO BE NOTICED

Jayne E. Flemming

Case: 3:05-cv-04077-JCS As of: 07/29/2015 09:50 PM PDT 2 of 23

Reed Smith LLP 1999 Harrison Street, Suite 2400 Oakland, CA 94612−3572 (510) 763−2000 Fax: (510) 273−8832 ATTORNEY TO BE NOTICED

Kurtis J. Kearl 5183 Brookside Ln. Concord, CA 94521−3621 925−687−1663 Fax: 925−687−1663 Email: imkjkearl@att.net ATTORNEY TO BE NOTICED

Larisa M Cummings Disability Rights Education & Defense Fund, Inc. 3075 Adeline Street, Suite 210 Berkeley, CA 94703 (510) 644−2555 Fax: (510) 841−8645 Email: LCummings@dredf.org ATTORNEY TO BE NOTICED

Michael Francis McCabe Littler Mendelson 650 California Street 20th Floor San Francisco, CA 94108 415−677−3187 Fax: 415−391.8269 Email: mmccabe@reedsmith.com ATTORNEY TO BE NOTICED

Plaintiff
A. A. by and through Stacey A., her guardian, individually and on behalf of all other similarly situated children

represented by Kenneth J. Philpot (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Arlene Brynne Mayerson (See above for address) ATTORNEY TO BE NOTICED

Charlotte L. Lanvers (See above for address) ATTORNEY TO BE NOTICED

Donna Jean Brorby (See above for address) ATTORNEY TO BE NOTICED

James M. Wood (See above for address) ATTORNEY TO BE NOTICED

Jayne E. Flemming (See above for address) ATTORNEY TO BE NOTICED

Kurtis J. Kearl (See above for address) ATTORNEY TO BE NOTICED

Case: 3:05-cv-04077-JCS As of: 07/29/2015 09:50 PM PDT 3 of 23

Plaintiff M. C. by and through Laurie C., her guardian, individually and on behalf of all other similarly situated children
Plaintiff K. F. by and through Sheree F., her guardian, individually and on behalf of all other similarly situated children

Larisa M Cummings (See above for address) ATTORNEY TO BE NOTICED
Michael Francis McCabe (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth J. Philpot (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Arlene Brynne Mayerson (See above for address) ATTORNEY TO BE NOTICED
Charlotte L. Lanvers (See above for address) ATTORNEY TO BE NOTICED
Donna Jean Brorby (See above for address) ATTORNEY TO BE NOTICED
James M. Wood (See above for address) ATTORNEY TO BE NOTICED
Jayne E. Flemming (See above for address) ATTORNEY TO BE NOTICED
Kurtis J. Kearl (See above for address) ATTORNEY TO BE NOTICED
Larisa M Cummings (See above for address) ATTORNEY TO BE NOTICED
Michael Francis McCabe (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth J. Philpot (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Arlene Brynne Mayerson (See above for address) ATTORNEY TO BE NOTICED
Charlotte L. Lanvers (See above for address) ATTORNEY TO BE NOTICED
Donna Jean Brorby (See above for address) ATTORNEY TO BE NOTICED

Case: 3:05-cv-04077-JCS As of: 07/29/2015 09:50 PM PDT 4 of 23

Plaintiff
American Diabetes Association an Organization

James M. Wood (See above for address) ATTORNEY TO BE NOTICED
Jayne E. Flemming (See above for address) ATTORNEY TO BE NOTICED
Kurtis J. Kearl (See above for address) ATTORNEY TO BE NOTICED
Larisa M Cummings (See above for address) ATTORNEY TO BE NOTICED
Michael Francis McCabe (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth J. Philpot (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Arlene Brynne Mayerson (See above for address) ATTORNEY TO BE NOTICED
Charlotte L. Lanvers (See above for address) ATTORNEY TO BE NOTICED
Donna Jean Brorby (See above for address) ATTORNEY TO BE NOTICED
James M. Wood (See above for address) ATTORNEY TO BE NOTICED
Jayne E. Flemming (See above for address) ATTORNEY TO BE NOTICED
Kurtis J. Kearl (See above for address) ATTORNEY TO BE NOTICED
Larisa M Cummings (See above for address) ATTORNEY TO BE NOTICED
Michael Francis McCabe (See above for address) ATTORNEY TO BE NOTICED

V. Defendant

represented by

Case: 3:05-cv-04077-JCS As of: 07/29/2015 09:50 PM PDT 5 of 23

Jack O'Connell in his official capacity as Superintendent of Public Schools for the State of California TERMINATED: 08/08/2007

Ava Chikako Yajima California Department of Education Legal Office 1430 N Street, Suite 5319 Sacramento, CA 95814 916−319−0860 Fax: 916−319−0155 Email: ayajima@cde.ca.gov ATTORNEY TO BE NOTICED

Defendant
Ruth E. Green on her official capacity as a member of the Board of Education of the State of California TERMINATED: 02/23/2007

Defendant
Glee Johnson on their official capacity as a member of the Board of Education of the State of California TERMINATED: 02/23/2007

Defendant
Alan Bersin in his official capacity as a member of the Board of Education of the State of California TERMINATED: 02/23/2007

Defendant
Ruth Bloom in her official capacity as a member of the Board of Education of the State of California TERMINATED: 02/23/2007

Defendant
Yvonne Chan in her official capacity as a member of the Board of Education of the State of California TERMINATED: 02/23/2007

Defendant
Donald G. Fisher in his official capacity as a member of the Board of Education of the State of California TERMINATED: 02/23/2007

Defendant
Kenneth Noonan in his official capacity as a member of the Board of Education of the State of California TERMINATED: 02/23/2007

Defendant

Case: 3:05-cv-04077-JCS As of: 07/29/2015 09:50 PM PDT 6 of 23

Joe Nunez in his official capacity as a member of the Board of Education of the State of California TERMINATED: 02/23/2007

Defendant
Bonnie Reiss in her official capacity as a member of the Board of Education of the State of California TERMINATED: 02/23/2007

Defendant
Jonathan Williams in his official capacity as a member of the Board of Education of the State of California TERMINATED: 02/23/2007

Defendant
The Board of Education of the State of California TERMINATED: 08/08/2007

Defendant
California Department of Education TERMINATED: 08/08/2007

represented by Ava Chikako Yajima (See above for address) ATTORNEY TO BE NOTICED

Paul E. Lacy California Department of Education Legal Office 1430 N Street, Suite 5319 Sacramento, CA 95814 916−319−0860 Fax: 916−319−0155 Email: placy@cde.ca.gov ATTORNEY TO BE NOTICED

Defendant
Robert Kessler in his official capacity as Superintendent for San Ramon Valley Unified School District TERMINATED: 04/16/2007

Defendant
Joan Buchanan in her official capacity as a member of the Board of Trustees of the San Ramon Valley Unified School District TERMINATED: 04/16/2007

Defendant
Nancy Petsuch in her official capacity as a member of the Board of Trustees of the San Ramon Valley Unified School District TERMINATED: 04/16/2007

Case: 3:05-cv-04077-JCS As of: 07/29/2015 09:50 PM PDT 7 of 23

Defendant
Bill Clarkson in his official capacity as a member of the Board of Trustees of the San Ramon Valley Unified School District TERMINATED: 04/16/2007
Defendant
Paul Gardner in his official capacity as a member of the Board of Trustees of the San Ramon Valley Unified School District TERMINATED: 04/16/2007
Defendant
Greg Marvel in his official capacity as a member of the Board of Trustees of the San Ramon Valley Unified School District TERMINATED: 04/16/2007
Defendant
Board of Trustees of the San Ramon Valley Unified School District TERMINATED: 04/16/2007
Defendant
San Ramon Valley Unified School District TERMINATED: 04/16/2007
Defendant
Douglas Gephart in his official capacity as the Superintendent of the Fremont Unified School District TERMINATED: 05/21/2007
Defendant
Peggy Herndon in her official capacity as a member of the Board of Trustees of the Fremont Unified School District TERMINATED: 05/21/2007
Defendant
Larry Sweeney in his official capacity as a member of the Board of Trustees of the Fremont Unified School District TERMINATED: 05/21/2007
Defendant
Nina Moore in her official capacity as a member of the Board of Trustees of the Fremont Unified

represented by Peter Pratt Edrington Edrington Schirmer & Murphy LLP 2300 Contra Costa Boulevard, Suite 450 Pleasant Hill, CA 94523−3936 (925) 827−3300 Fax: (925) 827−3320 Email: pedrington@esmlawfirm.com ATTORNEY TO BE NOTICED
represented by Peter Pratt Edrington (See above for address) ATTORNEY TO BE NOTICED
represented by Peter Pratt Edrington (See above for address) ATTORNEY TO BE NOTICED
represented by Peter Pratt Edrington (See above for address) ATTORNEY TO BE NOTICED

Case: 3:05-cv-04077-JCS As of: 07/29/2015 09:50 PM PDT 8 of 23

School District TERMINATED: 05/21/2007

Defendant
Guy Emanuele in his official capacity as a member of the Board of Trustees of the Fremont Unified School District TERMINATED: 05/21/2007

represented by Peter Pratt Edrington (See above for address) ATTORNEY TO BE NOTICED

Defendant
Ivy Wu in her official capacity as a member of the Board of Trustees of the Fremont Unified School District TERMINATED: 05/21/2007

represented by Peter Pratt Edrington (See above for address) ATTORNEY TO BE NOTICED

Defendant
Board of Trustees of the Fremont Unified School District TERMINATED: 05/21/2007

Defendant
Fremont Unified School District TERMINATED: 05/21/2007

represented by Peter Pratt Edrington (See above for address) ATTORNEY TO BE NOTICED

Date Filed 10/11/2005
10/11/2005
10/11/2005 10/11/2005

# Docket Text
1 CIVIL RIGHTS COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (CLASS ACTION) DEMAND FOR JURY TRIAL against Jack O'Connell, Ruth E. Green, Glee Johnson, Alan Bersin, Ruth Bloom, Yvonne Chan, Donald G. Fisher, Kenneth Noonan, Joe Nunez, Bonnie Reiss, Jonathan Williams, The Board of Education of the State of California, California Department of Education, Robert Kessler, Joan Buchanan, Nancy Petsuch, Bill Clarkson, Paul Gardner, Greg Marvel, Board of Trustees of the San Ramon Valley Unified School District, San Ramon Valley Unified School District, Douglas Gephart, Peggy Herndon, Larry Sweeney, Nina Moore, Guy Emanuele, Ivy Wu, Board of Trustees of the Fremont Unified School District, Fremont Unified School District ( Filing fee $ 250.00, receipt number 3377256.). Filed byM. C., K. F., K. C., American Diabetes Association, A. A. (aaa, Court Staff) (Filed on 10/11/2005) Additional attachment(s) added on 10/13/2005 (aaa, Court Staff). Additional attachment(s) added on 10/13/2005 (aaa, Court Staff). Additional attachment(s) added on 10/13/2005 (aaa, Court Staff). Additional attachment(s) added on 10/13/2005 (aaa, Court Staff). (Entered: 10/12/2005)
Summons Issued as to Jack O'Connell, Ruth E. Green, Glee Johnson, Alan Bersin, Ruth Bloom, Yvonne Chan, Donald G. Fisher, Kenneth Noonan, Joe Nunez, Bonnie Reiss, Jonathan Williams, The Board of Education of the State of California, California Department of Education, Robert Kessler, Joan Buchanan, Nancy Petsuch, Bill Clarkson, Paul Gardner, Greg Marvel, Board of Trustees of the San Ramon Valley Unified School District, San Ramon Valley Unified School District, Douglas Gephart, Peggy Herndon, Larry Sweeney, Nina Moore, Guy Emanuele, Ivy Wu, Board of Trustees of the Fremont Unified School District, Fremont Unified School District. (aaa, Court Staff) (Filed on 10/11/2005) (Entered: 10/12/2005)
2 Scheduling Order for Cases Asserting Denial of Right of Access under Americans with Disabilities Act. Signed by Judge Maxine M. Chesney on 10/11/05. (aaa, Court Staff) (Filed on 10/11/2005) (Entered: 10/12/2005)
CASE DESIGNATED for Electronic Filing. (aaa, Court Staff) (Filed on 10/11/2005) (Entered: 10/12/2005)

Case: 3:05-cv-04077-JCS As of: 07/29/2015 09:50 PM PDT 9 of 23

10/18/2005 10/27/2005 11/02/2005 11/02/2005 11/02/2005
11/02/2005 11/02/2005
11/02/2005 11/02/2005
11/02/2005 11/02/2005 11/02/2005 11/02/2005

3 AMENDED ADR SCHEDULING ORDER: Case Management Statement due by 1/13/2006. Case Management Conference set for 1/20/2006 10:30 AM. Signed by Judge Maxine M. Chesney on 10/18/05. (aaa, Court Staff) (Filed on 10/18/2005) (Entered: 10/20/2005)
4 CLERK'S NOTICE: This case is NOT related to C96−4179 TEH. (rbe, COURT STAFF) (Filed on 10/27/2005) (Entered: 10/27/2005)
5 MOTION for Preliminary Injunction ; Memorandum of Points and Authorities in Support Thereof filed by M. C., K. F., K. C., American Diabetes Association, A. A.. Motion Hearing set for 12/9/2005 09:00 AM in Courtroom 7, 19th Floor, San Francisco. (Philpot, Kenneth) (Filed on 11/2/2005) (Entered: 11/02/2005)
6 Appendix re 5 MOTION for Preliminary Injunction ; Memorandum of Points and Authorities in Support Thereof : Appendix of Administrative Authorities filed byM. C., K. F., K. C., American Diabetes Association, A. A.. (Attachments: # 1 Exhibit)(Related document(s) 5 ) (Philpot, Kenneth) (Filed on 11/2/2005) (Entered: 11/02/2005)
7 *** FILED IN ERROR. PLEASE SEE DOCKET # 8 . *** Declaration of Kurtis J. Kearl in Support if 5 Motion for Preliminary Injunction filed by M. C., K. F., K. C., American Diabetes Association, A. A.. Motion Hearing set for 12/9/2005 09:00 AM in Courtroom 7, 19th Floor, San Francisco. (Kearl, Kurtis) (Filed on 11/2/2005) Modified on 11/3/2005 (aaa, Court Staff). Modified on 11/3/2005 (ewn, COURT STAFF). (Entered: 11/02/2005)
8 Declaration of Kurtis J. Kearl in Support of 5 MOTION for Preliminary Injunction ; Memorandum of Points and Authorities in Support Thereof CORRECTION OF DOCKET #7 filed byM. C., K. F., K. C., American Diabetes Association, A. A.. (Related document(s) 5 ) (Kearl, Kurtis) (Filed on 11/2/2005) (Entered: 11/02/2005)
9 Request for Judicial Notice re 5 MOTION for Preliminary Injunction ; Memorandum of Points and Authorities in Support Thereof filed byM. C., K. F., K. C., American Diabetes Association, A. A.. (Attachments: # 1 Exhibit Part 1 of 9# 2 Exhibit Part 2 of 9# 3 Exhibit Part 3 of 9# 4 Exhibit Part 4 of 9# 5 Exhibit Part 5 of 9# 6 Exhibit Part 6 of 9# 7 Exhibit Part 7 of 9# 8 Exhibit Part 8 of 9# 9 Exhibit Part 9 of 9)(Related document(s) 5 ) (Philpot, Kenneth) (Filed on 11/2/2005) (Entered: 11/02/2005)
10 Proposed Order re 5 MOTION for Preliminary Injunction ; Memorandum of Points and Authorities in Support Thereof by M. C., K. F., K. C., American Diabetes Association, A. A.. (Philpot, Kenneth) (Filed on 11/2/2005) (Entered: 11/02/2005)
11 *** FILED IN ERROR. PLEASE SEE DOCKET # 18 . *** Declaration of Barbara W. in Support of 5 MOTION for Preliminary Injunction ; Memorandum of Points and Authorities in Support Thereof filed byM. C., K. F., K. C., American Diabetes Association, A. A.. (Related document(s) 5 ) (Philpot, Kenneth) (Filed on 11/2/2005) Modified on 11/3/2005 (aaa, Court Staff). Modified on 11/3/2005 (ewn, COURT STAFF). (Entered: 11/02/2005)
12 Declaration of Stacey A. in Support of 5 MOTION for Preliminary Injunction ; Memorandum of Points and Authorities in Support Thereof filed byM. C., K. F., K. C., American Diabetes Association, A. A.. (Related document(s) 5 ) (Philpot, Kenneth) (Filed on 11/2/2005) (Entered: 11/02/2005)
13 Declaration of Laurie C. in Support of 5 MOTION for Preliminary Injunction ; Memorandum of Points and Authorities in Support Thereof filed byM. C., K. F., K. C., American Diabetes Association, A. A.. (Related document(s) 5 ) (Philpot, Kenneth) (Filed on 11/2/2005) (Entered: 11/02/2005)
14 Declaration of Laurie C. in Support of 5 MOTION for Preliminary Injunction ; Memorandum of Points and Authorities in Support Thereof − Supplemental Declaration filed byM. C., K. F., K. C., American Diabetes Association, A. A.. (Related document(s) 5 ) (Philpot, Kenneth) (Filed on 11/2/2005) (Entered: 11/02/2005)
15 Declaration of Sheree F. in Support of 5 MOTION for Preliminary Injunction ; Memorandum of Points and Authorities in Support Thereof filed byM. C., K. F., K. C., American Diabetes Association, A. A.. (Related document(s) 5 ) (Philpot, Kenneth)

Case: 3:05-cv-04077-JCS As of: 07/29/2015 09:50 PM PDT 10 of 23

11/02/2005 11/02/2005 11/02/2005 11/02/2005 11/02/2005 11/02/2005 11/02/2005 11/02/2005 11/02/2005 11/02/2005
11/22/2005 11/28/2005

(Filed on 11/2/2005) (Entered: 11/02/2005)
16 Declaration of Suruchi Bhatia, M.D. in Support of 5 MOTION for Preliminary Injunction ; Memorandum of Points and Authorities in Support Thereof filed byM. C., K. F., K. C., American Diabetes Association, A. A.. (Attachments: # 1 Exhibit)(Related document(s) 5 ) (Philpot, Kenneth) (Filed on 11/2/2005) (Entered: 11/02/2005)
17 Declaration of Anna E. Sandstrom, M.D. in Support of 5 MOTION for Preliminary Injunction ; Memorandum of Points and Authorities in Support Thereof filed byM. C., K. F., K. C., American Diabetes Association, A. A.. (Related document(s) 5 ) (Philpot, Kenneth) (Filed on 11/2/2005) (Entered: 11/02/2005)
18 Declaration of Erica C. in Support of 5 MOTION for Preliminary Injunction ; Memorandum of Points and Authorities in Support Thereof CORRECTION OF DOCKET # 11 filed byM. C., K. F., K. C., American Diabetes Association, A. A.. (Related document(s) 5 ) (Philpot, Kenneth) (Filed on 11/2/2005) (Entered: 11/02/2005)
19 Declaration of Francine Kaufman, M.D. in Support of 5 MOTION for Preliminary Injunction ; Memorandum of Points and Authorities in Support Thereof filed byM. C., K. F., K. C., American Diabetes Association, A. A.. (Related document(s) 5 ) (Philpot, Kenneth) (Filed on 11/2/2005) (Entered: 11/02/2005)
20 Declaration of James A. Stone in Support of 5 MOTION for Preliminary Injunction ; Memorandum of Points and Authorities in Support Thereof filed byM. C., K. F., K. C., American Diabetes Association, A. A.. (Related document(s) 5 ) (Philpot, Kenneth) (Filed on 11/2/2005) (Entered: 11/02/2005)
21 DUPLICATE OF DOCKET NUMBER 11 Declaration of Barbara W. in Support of 5 MOTION for Preliminary Injunction ; Memorandum of Points and Authorities in Support Thereof filed byM. C., K. F., K. C., American Diabetes Association, A. A.. (Related document(s) 5 ) (Philpot, Kenneth) (Filed on 11/2/2005) Modified on 11/3/2005 (aaa, Court Staff). (Entered: 11/02/2005)
22 Declaration of Tiffany D. in Support of 5 MOTION for Preliminary Injunction ; Memorandum of Points and Authorities in Support Thereof filed byM. C., K. F., K. C., American Diabetes Association, A. A.. (Related document(s) 5 ) (Philpot, Kenneth) (Filed on 11/2/2005) (Entered: 11/02/2005)
23 Declaration of Lynn T. in Support of 5 MOTION for Preliminary Injunction ; Memorandum of Points and Authorities in Support Thereof filed byM. C., K. F., K. C., American Diabetes Association, A. A.. (Related document(s) 5 ) (Philpot, Kenneth) (Filed on 11/2/2005) (Entered: 11/02/2005)
24 CERTIFICATE OF SERVICE by M. C., K. F., K. C., American Diabetes Association, A. A. re 5 MOTION for Preliminary Injunction ; Memorandum of Points and Authorities in Support Thereof (Philpot, Kenneth) (Filed on 11/2/2005) (Entered: 11/02/2005)
Docket Number re 11 Declaration of Erica C. in Support, was erroneously e−filed the true attachment is a Declaration of Barbara W. 7 First MOTION for Preliminary Injunction Declaration of Kurtis J. Kearl in Support, was erroneously e−filed the true attachment is a Declaration of Kurtis J. Kearl 21 Declaration Barbara W. in Support, was erroneously e−filed as a duplicate of Docket number 11 . The civil docket has been corrected to reflect the true attachments and the erroneous 7 Motion has been terminated. (aaa, Court Staff) (Filed on 11/2/2005) (Entered: 11/03/2005)
25 STIPULATION AND [PROPOSED] ORDER VACATING HEARING DATE by M. C., K. F., K. C., American Diabetes Association, A. A.. (Kearl, Kurtis) (Filed on 11/22/2005) Modified on 11/23/2005 (aaa, Court Staff). (Entered: 11/22/2005)
26 STIPULATION AND ORDER continuing hearing on 5 motion for preliminary injunction from December 9, 2005 to January 27, 2006 at 9:00 a.m. Signed by Judge Maxine M. Chesney on 11/28/2005. (mmclc2, COURT STAFF) (Filed on 11/28/2005) (Entered: 11/28/2005)

Case: 3:05-cv-04077-JCS As of: 07/29/2015 09:50 PM PDT 11 of 23

11/28/2005 01/05/2006
01/05/2006 01/09/2006 01/09/2006 01/10/2006 02/15/2006 02/15/2006 02/15/2006
02/15/2006 02/15/2006 02/16/2006 03/23/2006 03/23/2006 03/23/2006 03/23/2006

Set/Reset Deadlines as to 5 MOTION for Preliminary Injunction ; Memorandum of Points and Authorities in Support Thereof. Motion Hearing Continued for 1/27/2006 09:00 AM. Re 26 Stipulation and Order (aaa, Court Staff) (Filed on 11/28/2005) (Entered: 11/29/2005)
27 STIPULATION VACATING AND CONTINUING CASE MANAGEMENT CONFERENCE, INITIAL DISCLOSURE DEADLINE AND PRELIMINARY INJUNCTION HEARING DATE AND [PROPOSED] ORDER by M. C., K. F., K. C., American Diabetes Association, A. A.. (Wood, James) (Filed on 1/5/2006) (Entered: 01/05/2006)
28 STIPULATION AND ORDER continuing case management conference and hearing on 5 motion for preliminary injunction to March 3, 2006 at 9:00 a.m. Signed by Judge Maxine M. Chesney on 1/5/2006. (mmclc2, COURT STAFF) (Filed on 1/5/2006) (Entered: 01/05/2006)
Set Deadlines/Hearings: Case Management Conference Continued for 3/3/2006 09:00 AM. Re 28 Stipulation Order (aaa, Court Staff) (Filed on 1/9/2006) (Entered: 01/09/2006)
Set/Reset Deadlines as to 5 MOTION for Preliminary Injunction ; Memorandum of Points and Authorities in Support Thereof. Motion Hearing set for 3/3/2006 09:00 AM. Re 28 Stipulation and Order (aaa, Court Staff) (Filed on 1/9/2006) (Entered: 01/09/2006)
29 NOTICE by K. C. re 28 Stipulation and Order Notice of Entry of Order (Wood, James) (Filed on 1/10/2006) (Entered: 01/10/2006)
30 STIPULATION and [PROPOSED] ORDER Vacating and Continuing Case Management Conference and Hearing Date by K. C.. (Wood, James) (Filed on 2/15/2006) Modified on 2/23/2006 (aaa, Court Staff). (Entered: 02/15/2006)
31 Proposed Order re 30 Stipulation Vacating and Continuing Case Management Conference and Hearing Date by K. C.. (Wood, James) (Filed on 2/15/2006) (Entered: 02/15/2006)
32 STIPULATION AND ORDER continuing case management conference and hearing on 5 motion for preliminary injunction to April 7, 2006 at 9:00 a.m. The parties shall file a joint case management statement no later than March 31, 2006. Signed by Judge Maxine M. Chesney on 2/15/2006. (mmclc2, COURT STAFF) (Filed on 2/15/2006) (Entered: 02/15/2006)
Set/Reset Deadlines as to 5 MOTION for Preliminary Injunction ; Memorandum of Points and Authorities in Support Thereof. Motion Hearing Continued for 4/7/2006 09:00 AM. Re 32 Stipulation and Order (aaa, Court Staff) (Filed on 2/15/2006) (Entered: 02/23/2006)
Set Deadlines/Hearings: A Joint Case Management Statement due by 3/31/2006. Case Management Conference Continued for 4/7/2006 09:00 AM. Re 32 Stipulation and Order (aaa, Court Staff) (Filed on 2/15/2006) (Entered: 02/23/2006)
33 NOTICE by K. C. of Entry of Order (Wood, James) (Filed on 2/16/2006) (Entered: 02/16/2006)
34 MOTION for Preliminary Injunction Pltfs' Request To Take Hearing Off Calendar filed by K. C.. Motion Hearing set for 4/7/2006 09:00 AM in Courtroom 7, 19th Floor, San Francisco. (Wood, James) (Filed on 3/23/2006) (Entered: 03/23/2006)
35 [Proposed] Order Re Pltfs' 34 Request To Take Hearing Off Calendar filed by K. C. Motion Hearing set for 4/7/2006 09:00 AM in Courtroom 7, 19th Floor, San Francisco. (Wood, James) (Filed on 3/23/2006) Modified on 3/24/2006 (aaa, Court Staff). (Entered: 03/23/2006)
36 ORDER by Judge Maxine M. Chesney granting plaintiffs' request to withdraw 34 Motion for Preliminary Injunction, without prejudice. (mmclc2, COURT STAFF) (Filed on 3/23/2006) (Entered: 03/23/2006)
Docket Number 35 Motion for Preliminary Injunction [Proposed] Order was erroneously e−filed the true attachment is a [Proposed] Order. The civil docket has

Case: 3:05-cv-04077-JCS As of: 07/29/2015 09:50 PM PDT 12 of 23

03/27/2006 03/31/2006 03/31/2006 04/07/2006 04/20/2006 04/21/2006 05/18/2006 05/18/2006 06/14/2006 06/14/2006 06/14/2006
06/15/2006

been corrected to reflect the true attachment and the erroneous e−filed motion has been terminated. failure to hyper−link the civil docket has been corrected to reflect the hyper−link to the supporting document. (aaa, Court Staff) (Filed on 3/23/2006) (Entered: 03/24/2006)
37 NOTICE by K. C. re 36 Order on Motion for Preliminary Injunction,, Of Entry of Order Granting Plaintiff's Request To Take Off Calendar Their Hearing Re Preliminary Injunction, currently set for hearing on April 7, 2006 (Wood, James) (Filed on 3/27/2006) (Entered: 03/27/2006)
38 JOINT CASE MANAGEMENT STATEMENT AND PROPOSED ORDER filed by K. C.. (Wood, James) (Filed on 3/31/2006) (Entered: 03/31/2006)
39 REPORT of Rule 26(f) Planning Meeting Rule 26 F Disclosure of Plaintiffs. (Wood, James) (Filed on 3/31/2006) (Entered: 03/31/2006)
40 Minute Entry: Initial Case Management Conference held on 4/7/2006 before Maxine M. Chesney (Date Filed: 4/7/2006). Case Management Statement due by 6/16/2006. Further Case Management Conference set for 6/23/2006 10:30 AM. (Court Reporter Not Reported.) (tl, COURT STAFF) (Date Filed: 4/7/2006) (Entered: 04/07/2006)
41 STIPULATION Extending Time for Defendant San Ramon Valley Unified School District to Respond to Complaint by Robert Kessler, Joan Buchanan, Nancy Petsuch, Bill Clarkson, Paul Gardner, Greg Marvel, Board of Trustees of the San Ramon Valley Unified School District, San Ramon Valley Unified School District. (Leone, Louis) (Filed on 4/20/2006) (Entered: 04/20/2006)
42 STIPULATION AND ORDER extending deadline, to May 19, 2006, for defendant to respond to complaint. Signed by Judge Maxine M. Chesney on 4/20/2006. (mmclc2, COURT STAFF) (Filed on 4/21/2006) (Entered: 04/21/2006)
43 STIPULATION Extending Time for San Ramon Valley Unified School District defendants to Respond to Complaint by Robert Kessler, Joan Buchanan, Nancy Petsuch, Bill Clarkson, Paul Gardner, Greg Marvel, Board of Trustees of the San Ramon Valley Unified School District, San Ramon Valley Unified School District. (Alberts, Katherine) (Filed on 5/18/2006) (Entered: 05/18/2006)
44 STIPULATION AND ORDER extending deadline from May 19, 2006 to June 16, 2006 for defendant San Ramon Valley Unified School District to respond to complaint. Signed by Judge Maxine M. Chesney on 5/18/2006. (mmclc2, COURT STAFF) (Filed on 5/18/2006) (Entered: 05/18/2006)
45 MOTION to Dismiss Duplicative of docket number 46 filed by Douglas Gephart, Peggy Herndon, Larry Sweeney, Nina Moore, Guy Emanuele, Ivy Wu, Fremont Unified School District. Motion Hearing set for 8/4/2006 09:00 AM in Courtroom 7, 19th Floor, San Francisco. (Edrington, Peter) (Filed on 6/14/2006) Modified on 6/15/2006 (aaa, Court Staff). (Entered: 06/14/2006)
46 MOTION to Dismiss filed by Douglas Gephart, Peggy Herndon, Larry Sweeney, Nina Moore, Guy Emanuele, Ivy Wu, Fremont Unified School District. Motion Hearing set for 8/4/2006 09:00 AM in Courtroom 7, 19th Floor, San Francisco. (Attachments: # 1 # 2)(Edrington, Peter) (Filed on 6/14/2006) Modified on 6/15/2006 (aaa, Court Staff). With Memorandum of Points and Authorities in Support. (Entered: 06/14/2006)
Docket number re 45 MOTION to Dismiss was erroneously e−filed as duplicative of docket number 46 MOTION to Dismiss. Docket number 46 has a supporting document (Memorandum of Points & Authorities) attached which should have been e−filed as a separate document. Party erronously attached a duplicate of the motion to dismiss to docket number 46 as a supporting document. The civil docket has been corrected to reflect only one 46 Motion to dismiss. Docket number 45 Motion to Dismiss has been terminated as duplicative. (aaa, Court Staff) (Filed on 6/14/2006) (Entered: 06/15/2006)
47 STIPULATION Extending Time for Defendant San Ramon Valley Unified School District to Respond to Complaint by Robert Kessler, Joan Buchanan, Nancy Petsuch, Bill Clarkson, Paul Gardner, Greg Marvel, Board of Trustees of the San Ramon Valley Unified School District, San Ramon Valley Unified School District. (Alberts, Katherine) (Filed on 6/15/2006) (Entered: 06/15/2006)

Case: 3:05-cv-04077-JCS As of: 07/29/2015 09:50 PM PDT 13 of 23

06/16/2006 06/16/2006
06/23/2006
06/30/2006 08/11/2006 08/11/2006 08/14/2006
09/12/2006 10/12/2006 10/12/2006 10/16/2006
10/16/2006 10/31/2006 01/05/2007 01/12/2007

48 STIPULATION AND ORDER extending time for defendant San Ramon Valley Unified School District to respond to complaint to July 21, 2006. Signed by Judge Maxine M. Chesney on 6/15/2006. (mmclc2, COURT STAFF) (Filed on 6/16/2006) (Entered: 06/16/2006)
49 JOINT CASE MANAGEMENT STATEMENT and Proposed Order filed by Jack O'Connell, The Board of Education of the State of California, California Department of Education, Robert Kessler, Joan Buchanan, Nancy Petsuch, Bill Clarkson, Paul Gardner, Greg Marvel, Board of Trustees of the San Ramon Valley Unified School District, San Ramon Valley Unified School District, Board of Trustees of the Fremont Unified School District, Fremont Unified School District. (Leone, Louis) (Filed on 6/16/2006) (Entered: 06/16/2006)
50 Minute Entry: Further Case Management Conference held on 6/23/2006 before Maxine M. Chesney (Date Filed: 6/23/2006). Amended Pleadings due by 9/1/2006. Motions of dismissal by defendants San Ramon and State of California due by 9/29/2006. Motion Hearing on Fremont defendants' motion to dismiss set for 11/3/2006 09:00 AM in Courtroom 7, 19th Floor, San Francisco. (Court Reporter Not Reported.) (tl, COURT STAFF) (Date Filed: 6/23/2006) (Entered: 06/23/2006)
51 AMENDED DOCUMENT by K. C.. AMENDED RULE 26 DISCLOSURE OF PLAINTIFFS. (Wood, James) (Filed on 6/30/2006) (Entered: 06/30/2006)
52 STIPULATION Extending Deadlines by K. C.. (Wood, James) (Filed on 8/11/2006) (Entered: 08/11/2006)
53 Proposed Order re 52 Stipulation Extending Deadlines by K. C.. (Wood, James) (Filed on 8/11/2006) (Entered: 08/11/2006)
54 STIPULATION AND ORDER extending deadline to November 1, 2006 for plaintiffs to name any additional plaintiffs; extending deadline to November 29, 2006 for defendants San Ramon and State of California to file motions to dismiss; continuing hearing on Fremont defendants' motion to dismiss from November 3, 2006 to December 8, 2006. Signed by Judge Maxine M. Chesney on 8/14/2006. (mmclc2, COURT STAFF) (Filed on 8/14/2006) (Entered: 08/14/2006)
55 NOTICE by K. C. re 54 Stipulation and Order,, 53 Proposed Order, 52 Stipulation Notice of Entry of Order (Wood, James) (Filed on 9/12/2006) (Entered: 09/12/2006)
56 STIPULATION EXTENDING DEADLINES by M. C., K. F., K. C., American Diabetes Association, A. A.. (Kearl, Kurtis) (Filed on 10/12/2006) (Entered: 10/12/2006)
57 Proposed Order re 56 Stipulation Extending Deadlines by M. C., K. F., K. C., American Diabetes Association, A. A.. (Kearl, Kurtis) (Filed on 10/12/2006) (Entered: 10/12/2006)
58 STIPULATION AND ORDER extending to January 30, 2007 deadline for plaintiffs to name additional plaintiffs; extending to February 27, 2007 deadline for defendants San Ramon and State of California to file motions to dismiss; continuing from December 8, 2006 to March 9, 2007 at 9:00 a.m. the hearing on 46 Fremont defendants' motion to dismiss. Signed by Judge Maxine M. Chesney on 10/16/2006. (mmclc2, COURT STAFF) (Filed on 10/16/2006) (Entered: 10/16/2006)
Set/Reset Deadlines as to 46 MOTION to Dismiss. Motion Hearing Continued for 3/9/2007 09:00 AM. Re 58 Stipulation and Order (aaa, Court Staff) (Filed on 10/16/2006) (Entered: 10/17/2006)
59 NOTICE by K. C. re 58 Stipulation and Order, Notice of Entry of Order (Wood, James) (Filed on 10/31/2006) (Entered: 10/31/2006)
60 JOINT CASE MANAGEMENT STATEMENT and Proposed Order filed by K. C.. (Wood, James) (Filed on 1/5/2007) (Entered: 01/05/2007)
61 Minute Entry: Further Case Management Conference held on 1/12/2007 before Maxine M.Chesney (Date Filed: 1/12/2007), Case referred to Private ADR.. Discovery due by 11/23/2007. Expert discovery due by 1/18/2008. Dispositive Motions due by 2/1/2008. Final Pretrial Conference set for 4/22/2008 03:00 PM. Jury Trial (15 days) set for 5/5/2008 09:00 AM in Courtroom 7, 19th Floor, San Francisco. Status

Case: 3:05-cv-04077-JCS As of: 07/29/2015 09:50 PM PDT 14 of 23

01/16/2007 02/16/2007 02/22/2007 02/22/2007 02/22/2007
02/22/2007 02/23/2007 02/23/2007
02/23/2007 02/23/2007 02/23/2007
02/26/2007 03/05/2007
03/05/2007 03/05/2007
03/05/2007

Conference set for 4/27/2007 10:30 AM in Courtroom 7, 19th Floor, San Francisco, joint statement due by 4/20/2007. (Not Reported.) (tl, COURT STAFF) (Date Filed: 1/12/2007) (Entered: 01/12/2007)
62 PRETRIAL PREPARATION ORDER. Signed by Judge Maxine M. Chesney on 1/16/2007. (tl, COURT STAFF) (Filed on 1/16/2007) (Entered: 01/16/2007)
63 Memorandum in Opposition re 46 MOTION to Dismiss filed byK. C.. (Attachments: # 1 Certificate of Service)(Wood, James) (Filed on 2/16/2007) (Entered: 02/16/2007)
64 Letter from Plaintiffs' Counsel to The Honorable Maxine M. Chesney. (Philpot, Kenneth) (Filed on 2/22/2007) (Entered: 02/22/2007)
65 NOTICE by M. C., K. F., K. C., American Diabetes Association, A. A. NOTICE OF DISMISSAL BY PLAINTIFF (Rule 41(a)(1)F.R.Civ.P.) (Philpot, Kenneth) (Filed on 2/22/2007) (Entered: 02/22/2007)
66 STIPULATION EXTENDING DEADLINE FOR DEFENDANT CALIFORNIA DEPARTMENT OF EDUCATION TO FILE A MOTION TO DISMISS by M. C., K. F., K. C., American Diabetes Association, A. A.. (Philpot, Kenneth) (Filed on 2/22/2007) (Entered: 02/22/2007)
67 Proposed Order re 66 Stipulation EXTENDING DEADLINE by M. C., K. F., K. C., American Diabetes Association, A. A.. (Philpot, Kenneth) (Filed on 2/22/2007) (Entered: 02/22/2007)
68 ORDER dismissing defendants Green, Johnson, Bersin, Bloom, Chan, Fisher, Noonan, Nunez, Reiss and Williams. Signed by Judge Maxine M. Chesney on 2/23/2007. (mmclc2, COURT STAFF) (Filed on 2/23/2007) (Entered: 02/23/2007)
69 STIPULATION AND ORDER extending deadline to April 15, 2007 for defendant California Department of Education to file motion to dismiss. Signed by Judge Maxine M. Chesney on 2/23/2007. (mmclc2, COURT STAFF) (Filed on 2/23/2007) (Entered: 02/23/2007)
70 Reply to 63 Opposition to Motion to Dismiss filed byFremont Unified School District. (Edrington, Peter) (Filed on 2/23/2007) Modified on 2/26/2007 (aaa, Court Staff). (Entered: 02/23/2007)
71 Declaration of Valerie Williams in Support of 70 Reply to Opposition to Motion to Dismiss filed byFremont Unified School District. (Related document(s) 70 ) (Edrington, Peter) (Filed on 2/23/2007) (Entered: 02/23/2007)
72 STIPULATION EXTENDING DEADLINE FOR DEFENDANT SAN RAMON VALLEY UNIFIED SCHOOL DISTRICT TO FILE A MOTION TO DISMISS by M. C., K. F., K. C., American Diabetes Association, A. A.. (Wood, James) (Filed on 2/23/2007) (Entered: 02/23/2007)
73 STIPULATION AND ORDER extending deadline to April 15, 2007 for San Ramon defendants to file motion to dismiss. Signed by Judge Maxine M. Chesney on 2/26/2007. (mmclc2, COURT STAFF) (Filed on 2/26/2007) (Entered: 02/26/2007)
74 MOTION for Leave to File Plaintiffs' Surreply To Fremont Unified School District's Motion To Dismiss filed by K. C.. Motion Hearing set for 3/9/2007 09:00 AM in Courtroom 7, 19th Floor, San Francisco. (Wood, James) (Filed on 3/5/2007) (Entered: 03/05/2007)
75 Memorandum in Opposition Plaintiffs' Surreply To Fremont Unified School District's 46 Motion To Dismiss filed byK. C.. (Wood, James) (Filed on 3/5/2007) Modified on 3/6/2007 (aaa, Court Staff). (Entered: 03/05/2007)
76 AFFIDAVIT in Opposition re 74 MOTION for Leave to File Plaintiffs' Surreply To Fremont Unified School District's Motion To Dismiss Declaration of Kenneth J. Philpot In Support of Plaintiffs' Surreply To Defendant's Motion To Dismiss filed byK. C.. (Wood, James) (Filed on 3/5/2007) (Entered: 03/05/2007)
77 AFFIDAVIT in Opposition re 74 MOTION for Leave to File Plaintiffs' Surreply To Fremont Unified School District's Motion To Dismiss Declaration of Sheree F. In Support Of Plaintiffs' Surreply To Defendant's Motion To Dismiss filed byK. C..

Case: 3:05-cv-04077-JCS As of: 07/29/2015 09:50 PM PDT 15 of 23

03/07/2007 03/08/2007
03/12/2007 03/14/2007
03/14/2007 04/05/2007
04/12/2007
04/16/2007
05/15/2007 05/18/2007 05/21/2007
05/21/2007 05/31/2007 06/08/2007

(Wood, James) (Filed on 3/5/2007) (Entered: 03/05/2007)
78 Letter from Edrington, Schirmer & Murphy Edrington, Peter. (Edrington, Peter) (Filed on 3/7/2007) (Entered: 03/07/2007)
79 ORDER DISMISSING CASE without prejudice due to settlement; provided, however, that if any party hereto shall certify to this Court, within ninety days, with proof of service of a copy thereof on opposing counsel, that the agreed consideration for the settlement has not been delivered, the foregoing order shall stand vacated and the action shall forthwith be restored to the calendar to be set for trial. Signed by Judge Maxine M. Chesney on 3/8/2007. (mmclc2, COURT STAFF) (Filed on 3/8/2007) (Entered: 03/08/2007)
80 Letter from Kenneth J. Philpot of Reed Smith to The Honorable Maxine M. Chesney. (Philpot, Kenneth) (Filed on 3/12/2007) (Entered: 03/12/2007)
81 ORDER vacating 79 order of dismissal; continuing status conference from April 27, 2007 to June 15, 2007; continuing deadline for San Ramon and State defendants to file motions to dismiss from April 15, 2007 to June 15, 2007. Signed by Judge Maxine M. Chesney on 3/14/2007. (mmclc2, COURT STAFF) (Filed on 3/14/2007) (Entered: 03/14/2007)
Set Deadlines/Hearings: A Joint Status Report due by 6/8/2007. Case Management Conference Continued for 6/15/2007 10:30 AM. Re 81 Order (aaa, Court Staff) (Filed on 3/14/2007) (Entered: 03/15/2007)
82 NOTICE of Settlement As to San Ramon Valley Unified School District, Board of Trustees of The San Ramon Valley Unified School District, Robert Kessler, Joan Buchanan, Rachel Hurd, Bill Clarkson, Paul Gardner and Greg Marvel Only by M. C., K. C., American Diabetes Association, A. A. (Wood, James) (Filed on 4/5/2007) (Entered: 04/05/2007)
83 STIPULATION of Dismissal REQUEST FOR DISMISSAL WITH PREJUDICE AND [PROPOSED] ORDER by M. C., K. F., K. C., American Diabetes Association, A. A.. (Attachments: # 1 Exhibit A − Part 1 of 4# 2 Exhibit A − Part 2 of 4# 3 Exhibit A − Part 3 of 4# 4 Exhibit A − Part 4 of 4)(Philpot, Kenneth) (Filed on 4/12/2007) Modified on 4/13/2007 (aaa, Court Staff). (Entered: 04/12/2007)
84 STIPULATION AND ORDER dismissing with prejudice defendants San Ramon Valley Unified School District, Board of Trustees of the San Ramon Valley Unified School District, Robert Kessler, Joan Buchanan, Rachel Hurd, Bill Clarkson, Paul Gardner, and Greg Marvel. Signed by Judge Maxine M. Chesney on 4/16/2007. (Attachments: # 1 Exhibit A part 1# 2 Exhibit A pt. 2# 3 Exhibit A pt. 3# 4 Exhibit A pt. 4)(mmclc2, COURT STAFF) (Filed on 4/16/2007) (Entered: 04/16/2007)
85 NOTICE of Settlement as to Fremont Unified School District, et al. by K. C. (Wood, James) (Filed on 5/15/2007) (Entered: 05/15/2007)
86 NOTICE of Voluntary Dismissal with Prejudice by A. A. (Attachments: # 1 Proposed Order Order of Dismissal with Prejudice)(Wood, James) (Filed on 5/18/2007) (Entered: 05/18/2007)
87 ORDER dismissing with prejudice defendants Fremont Unified School District, Board of Trustees of the Fremont Unified School District, Douglas Gephart, Peggy Herndon, Larry Sweeney, Nina Moore, Guy Emanuele, and Ivy Wu. Signed by Judge Maxine M. Chesney on 5/21/2007. (mmclc2, COURT STAFF) (Filed on 5/21/2007) (Entered: 05/21/2007)
Fremont Unified School District; Board of Trustees of the Fremont Unified School District; Douglas Gephart; Peggy Herndon; Nina Moore; Larry Sweeney; Ivy Wu; and Guy Emanuele terminated. Signed by Judge Maxine M. Chesney on 5/21/2007. (mmclc2, COURT STAFF) (Filed on 5/21/2007) (Entered: 05/21/2007)
88 CLERK'S NOTICE Further Status Conference re−set for 6/15/2007 02:00 PM. (tl, COURT STAFF) (Filed on 5/31/2007) (Entered: 05/31/2007)
89 JOINT CASE MANAGEMENT STATEMENT AND PROPOSED ORDER filed by M. C., K. F., K. C., American Diabetes Association, A. A.. (Philpot, Kenneth) (Filed

Case: 3:05-cv-04077-JCS As of: 07/29/2015 09:50 PM PDT 16 of 23

06/15/2007
07/19/2007 07/19/2007 07/23/2007 07/23/2007 08/03/2007 08/03/2007 08/03/2007 08/08/2007
12/09/2010 10/07/2011 11/18/2011 11/18/2011
11/18/2011
11/18/2011 11/18/2011 11/19/2011

on 6/8/2007) (Entered: 06/08/2007)
90 Minute Entry: Status Conference (Date Filed: 6/15/2007). Further Status Conference set for 7/27/2007 10:30 AM in Courtroom 7, 19th Floor, San Francisco, joint statement due on or before 7/20/2007. (Not Reported.) (tl, COURT STAFF) (Date Filed: 6/15/2007) (Entered: 06/15/2007)
91 STIPULATION AND [PROPOSED] ORDER Continuing Case Management Conference and Hearing Date by K. C. (Wood, James) (Filed on 7/19/2007) Modified on 7/20/2007 (aaa, Court Staff). (Entered: 07/19/2007)
92 Proposed Order re 91 Stipulation Continuing Case Management Conference and Hearing Date by K. C.. (Wood, James) (Filed on 7/19/2007) (Entered: 07/19/2007)
93 ORDER continuing case management conference from July 27, 2007 to August 24, 2007 at 10:30 a.m. Signed by Judge Maxine M. Chesney on 7/23/2007. (mmclc2, COURT STAFF) (Filed on 7/23/2007) (Entered: 07/23/2007)
Set Deadlines/Hearings: Case Management Conference Continued for 8/24/2007 10:30 AM. Re 93 Order (aaa, Court Staff) (Filed on 7/23/2007) (Entered: 07/24/2007)
94 NOTICE by K. C. Of Settlement as to Jack O'Connell; State Board of Education of the State of California; and California Department of Education Only (Wood, James) (Filed on 8/3/2007) (Entered: 08/03/2007)
95 NOTICE by K. C. Request For Dismissal With Prejudice and Order (Wood, James) (Filed on 8/3/2007) (Entered: 08/03/2007)
96 Proposed Order re 95 Notice (Other) of Dismissal with Prejudice by K. C.. (Wood, James) (Filed on 8/3/2007) (Entered: 08/03/2007)
97 ORDER dismissing with prejudice claims against defendants Jack O'Connell, in his official capacity as Superintendent of Public Schools for the State of California; the State Board of Education of the State of California; and the California Department of Education. Signed by Judge Maxine M. Chesney on 8/8/2007. (mmclc2, COURT STAFF) (Filed on 8/8/2007) (Entered: 08/08/2007)
98 NOTICE of Change of Address by Arlene Brynne Mayerson : NOTICE OF CHANGE OF ADDRESS FOR DREDF (Mayerson, Arlene) (Filed on 12/9/2010) (Entered: 12/09/2010)
99 NOTICE of Appearance by Charlotte L. Lanvers :NOTICE OF APPEARANCE BY CHARLOTTE L. LANVERS AS ADDITIONAL COUNSEL FOR PLAINTIFFS (Lanvers, Charlotte) (Filed on 10/7/2011) (Entered: 10/07/2011)
100 NOTICE of Appearance by Donna Jean Brorby (Brorby, Donna) (Filed on 11/18/2011) (Entered: 11/18/2011)
101 MOTION for Attorney Fees filed by A. A., American Diabetes Association, K. C., M. C., K. F.. Motion Hearing set for 12/23/2011 09:00 AM in Courtroom 7, 19th Floor, San Francisco before Hon. Maxine M. Chesney. Responses due by 12/2/2011. Replies due by 12/9/2011. (Attachments: # 1 Appendix A)(Brorby, Donna) (Filed on 11/18/2011) (Entered: 11/18/2011)
102 Declaration of Larisa Cummings in Support of 101 MOTION for Attorney Fees filed byA. A., American Diabetes Association, K. C., M. C., K. F.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 101 ) (Brorby, Donna) (Filed on 11/18/2011) (Entered: 11/18/2011)
103 Declaration of Charlotte Lanvers in Support of 101 MOTION for Attorney Fees filed byA. A., American Diabetes Association, K. C., M. C., K. F.. (Related document(s) 101 ) (Brorby, Donna) (Filed on 11/18/2011) (Entered: 11/18/2011)
104 Declaration of Richard Pearl in Support of 101 MOTION for Attorney Fees filed byA. A., American Diabetes Association, K. C., M. C., K. F.. (Related document(s) 101 ) (Brorby, Donna) (Filed on 11/18/2011) (Entered: 11/18/2011)
105 Proposed Order re 101 MOTION for Attorney Fees by A. A., American Diabetes Association, K. C., M. C., K. F.. (Lanvers, Charlotte) (Filed on 11/19/2011) (Entered:

Case: 3:05-cv-04077-JCS As of: 07/29/2015 09:50 PM PDT 17 of 23

11/29/2011
12/01/2011 12/12/2011 12/12/2011 12/15/2011
12/15/2011 01/04/2012 01/05/2012 01/11/2012 01/18/2012 01/23/2012 01/27/2012 02/08/2012
02/09/2012

11/19/2011)
106 CERTIFICATE OF SERVICE by A. A., American Diabetes Association, K. C., M. C., K. F. re 103 Declaration in Support, 102 Declaration in Support, 101 MOTION for Attorney Fees, 104 Declaration in Support, 100 Notice of Appearance, 105 Proposed Order : PROOF OF SERVICE ON ATTORNEY FOR CALIFORNIA DEPARTMENT OF EDUCATION (Lanvers, Charlotte) (Filed on 11/29/2011) (Entered: 11/29/2011)
107 Renotice motion hearing previously noticed for 12/23/2011 filed byA. A., American Diabetes Association, K. C., M. C., K. F.. Motion Hearing set for 1/20/2012 09:00 AM in Courtroom 7, 19th Floor, San Francisco before Hon. Maxine M. Chesney. (Brorby, Donna) (Filed on 12/1/2011) (Entered: 12/01/2011)
108 STIPULATION AND [PROPOSED] ORDER by California Department of Education, Jack O'Connell. (Yajima, Ava) (Filed on 12/12/2011) Modified on 12/13/2011 (aaa, COURT STAFF). (Entered: 12/12/2011)
109 NOTICE by California Department of Education, Jack O'Connell Notice of Representation (Yajima, Ava) (Filed on 12/12/2011) (Entered: 12/12/2011)
110 ORDER TO RESCHEDULE BRIEFING SCHEDULE DATES ON MOTION FOR ATTORNEYS FEES. Defendants' opposition shall be filed on or before January 4, 2012. Plaintiff's reply shall be filed on or before January 11, 2012. A hearing on the motion shall be conducted on January 27, 2012. Signed by Judge Maxine M. Chesney on December 15, 2011. (mmclc2, COURT STAFF) (Filed on 12/15/2011) (Entered: 12/15/2011)
Set/Reset Deadlines as to 101 MOTION for Attorney Fees. Motion Hearing set for 1/27/2012 09:00 AM before Hon. Maxine M. Chesney. Re 110 Order (aaa, COURT STAFF) (Filed on 12/15/2011) (Entered: 12/16/2011)
111 *** FILED IN ERROR. REFER TO DOCUMENT 112 . *** RESPONSE (re 101 MOTION for Attorney Fees ) Opposition filed byCalifornia Department of Education. (Yajima, Ava) (Filed on 1/4/2012) Modified on 1/5/2012 (feriab, COURT STAFF). (Entered: 01/04/2012)
112 RESPONSE (re 101 MOTION for Attorney Fees ) Defendant's Opposition filed byCalifornia Department of Education. (Yajima, Ava) (Filed on 1/5/2012) (Entered: 01/05/2012)
113 REPLY (re 101 MOTION for Attorney Fees ) filed byA. A., American Diabetes Association, K. C., M. C., K. F.. (Brorby, Donna) (Filed on 1/11/2012) (Entered: 01/11/2012)
114 ORDER DIRECTING DEFENDANTS TO LODGE CHAMBES COPY IN COMPLIANCE WITH GENERAL ORDER 45 AND THE COURT'S STANDING ORDERS. Signed by Judge Maxine M. Chesney on January 18, 2012. (mmclc2, COURT STAFF) (Filed on 1/18/2012) (Entered: 01/18/2012)
115 NOTICE of Change of Address by Donna Jean Brorby (Brorby, Donna) (Filed on 1/23/2012) (Entered: 01/23/2012)
116 Minute Entry: Motion Hearing held on 1/27/2012 before Maxine M. Chesney (Date Filed: 1/27/2012) re 101 MOTION for Attorney Fees filed by M. C., K. C., American Diabetes Association, K. F., A. A.. (Court Reporter Belle Ball.) (tlS, COURT STAFF) (Date Filed: 1/27/2012) (Entered: 01/30/2012)
117 First MOTION for Leave to File Supplemental Memorandum Supporting Pltfs' Fees Motion (ECF No. 101) filed by A. A., American Diabetes Association, K. C., M. C., K. F.. (Attachments: # 1 Exhibit [PROPOSED] PLAINTIFFS SUPPLEMENTAL MEMORANDUM SUPPORTING FEES MOTION, # 2 Proposed Order)(Lanvers, Charlotte) (Filed on 2/8/2012) (Entered: 02/08/2012)
Set/Reset Deadlines as to 117 First MOTION for Leave to File Supplemental Memorandum Supporting Pltfs' Fees Motion (ECF No. 101). Responses due by 2/24/2012. Replies due by 3/2/2012. Motion Hearing set for 3/16/2012 09:00 AM in Courtroom 7, 19th Floor, San Francisco before Hon. Maxine M. Chesney. (tlS, COURT STAFF) (Filed on 2/9/2012) (Entered: 02/09/2012)

Case: 3:05-cv-04077-JCS As of: 07/29/2015 09:50 PM PDT 18 of 23

02/24/2012 03/02/2012 03/07/2012
03/07/2012 03/22/2012 03/26/2012 04/20/2012 05/15/2012 05/16/2012 05/16/2012 05/16/2012 06/14/2012 07/14/2012

118 RESPONSE (re 101 MOTION for Attorney Fees, 117 First MOTION for Leave to File Supplemental Memorandum Supporting Pltfs' Fees Motion (ECF No. 101) ) Opposition to Plaintiff's Motion to File Supplemental Memorandum filed byCalifornia Department of Education. (Yajima, Ava) (Filed on 2/24/2012) (Entered: 02/24/2012)
119 REPLY (re 117 First MOTION for Leave to File Supplemental Memorandum Supporting Pltfs' Fees Motion (ECF No. 101) ) filed byA. A., American Diabetes Association, K. C., M. C., K. F.. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Brorby, Donna) (Filed on 3/2/2012) (Entered: 03/02/2012)
120 ORDER RE: PLAINTIFFS' MOTION TO FILE SUPPLEMENTAL MATERIAL. Plaintiffs shall file, no later than March 9, 2012, the revised supplemental memorandum attached as Exhibit A to plaintiffs' Reply in Support of Motion to File Supplemental Material. No later than March 23, 2012, defendants shall file their responsive memorandum, not to exceed five pages in length, at which time, unless the Court finds a hearing is necessary, the matter will stand submitted. Signed by Judge Maxine M. Chesney on March 7, 2012. (mmclc2, COURT STAFF) (Filed on 3/7/2012) (Entered: 03/07/2012)
121 Brief re 101 MOTION for Attorney Fees, 120 Order, Terminate Motions,,,, Supplemental Memorandum Supporting Fees Motion filed byA. A., American Diabetes Association, K. C., M. C., K. F.. (Related document(s) 101 , 120 ) (Brorby, Donna) (Filed on 3/7/2012) (Entered: 03/07/2012)
122 REPLY (re 101 MOTION for Attorney Fees ) DEFENDANTS OPPOSITION TO PLAINTIFFS SUPPLEMENTAL MATERIAL filed byCalifornia Department of Education. (Lacy, Paul) (Filed on 3/22/2012) (Entered: 03/22/2012)
123 SECOND ORDER DIRECTING DEFENDANTS TO SUBMIT CHAMBERS COPY IN COMPLIANCE WITH GENERAL ORDER 45 AND THE COURT'S STANDING ORDERS. Signed by Judge Maxine M. Chesney on March 26, 2012. (mmclc2, COURT STAFF) (Filed on 3/26/2012) (Entered: 03/26/2012)
124 ORDER DENYING 101 PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND EXPENSES. Signed by Judge Maxine M. Chesney on April 20, 2012. (mmcsec, COURT STAFF) (Filed on 4/20/2012) (Entered: 04/20/2012)
125 NOTICE OF APPEAL to the 9th CCA A. A., American Diabetes Association, K. C., M. C., K. F..(Appeal fee of $455 receipt number 0971−6822594 paid.) (Brorby, Donna) (Filed on 5/15/2012) (Additional attachment(s) added on 5/16/2012: # 1 USCA NUMBER: 12−16178) (aaa, COURT STAFF). (Entered: 05/15/2012)
126 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 125 Notice of Appeal (aaa, COURT STAFF) (Filed on 5/16/2012) (Additional attachment(s) added on 5/16/2012: # 1 Civil Docket) (aaa, COURT STAFF). (Entered: 05/16/2012)
127 Copy of 125 Notice of Appeal and Docket sheet mailed to all counsel and to all parties without an e−mail address. (aaa, COURT STAFF) (Filed on 5/16/2012) (Additional attachment(s) added on 5/16/2012: # 1 Civil Docket) (aaa, COURT STAFF). (Entered: 05/16/2012)
128 USCA Case Number 12−16178 for 125 Notice of Appeal filed by M. C., K. C., American Diabetes Association, K. F., A. A. (aaa, COURT STAFF) (Filed on 5/16/2012) (Entered: 05/16/2012)
129 Transcript Designation and Ordering Form for proceedings held on January 27, 2012 before Judge Hon. Maxine M. Chesney, re 125 Notice of Appeal, 128 USCA Case Number Transcript due by 7/16/2012. (Brorby, Donna) (Filed on 6/14/2012) (Entered: 06/14/2012)
130 Transcript of Proceedings held on January 27, 2012, before Judge Maxine M. Chesney. Court Reporter/Transcriber Belle Ball, CSR, RMR, CRR, Telephone number (415)373−2529, belle_ball@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no

Case: 3:05-cv-04077-JCS As of: 07/29/2015 09:50 PM PDT 19 of 23

08/14/2014 08/28/2014 09/03/2014
09/08/2014 09/08/2014 09/15/2014 10/28/2014 10/29/2014
10/29/2014 12/05/2014 12/08/2014
12/10/2014 12/10/2014
12/12/2014

later than 5 business days from date of this filing. Release of Transcript Restriction set for 10/12/2012. (Ball, Belle) (Filed on 7/14/2012) (Entered: 07/14/2012)
131 USCA Opinion: REVERSED & REMANDED; as to 125 Notice of Appeal, filed by M. C., K. C., American Diabetes Association, K. F., A. A. (aaa, COURT STAFF) (Filed on 8/14/2014) (Entered: 08/14/2014)
132 BILL OF COSTS (with Declaration, itemization, invoices and Opinion) by A. A., American Diabetes Association, K. C., M. C., K. F.. (Cummings, Larisa) (Filed on 8/28/2014) (Entered: 08/28/2014)
133 MANDATE of USCA as to 125 Notice of Appeal: The judgment of this Court, entered August 11, 2014, takes effect this date.This constitutes the formal mandate of this Court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure.Costs are taxed against the appellee in the amount of $84.00.(ysS, COURT STAFF) (Filed on 9/3/2014) (Entered: 09/08/2014)
134 CLERK'S Letter Spreading Mandate to Counsel re 125 Notice of Appeal. (ysS, COURT STAFF) (Filed on 9/8/2014) (Entered: 09/08/2014)
135 ORDER of USCA as to 125 Notice of Appeal: Plaintiffs−appellants unopposed motion, under Ninth Circuit Rule 39−1.8, to transfer consideration of their application for attorneys fees on appeal to the district court is GRANTED. (ysS, COURT STAFF) (Filed on 9/8/2014) (Entered: 09/10/2014)
136 Costs Taxed in amount of $728.00, RE: ECF No. 132 against Tom Torlakson, et al. (ls, COURT STAFF) (Filed on 9/15/2014) (Entered: 09/15/2014)
137 STIPULATION WITH PROPOSED ORDER : STIPULATION AND [PROPOSED] ORDER SETTING CASE MANAGEMENT CONFERENCE filed by K. C.. (Cummings, Larisa) (Filed on 10/28/2014) (Entered: 10/28/2014)
138 ORDER SETTING CASE MANAGEMENT CONFERENCE A case management conference is set for December 12, 2014 at 10:30 a.m. A joint case management conference statement shall be filed no later than December 5, 2014. Signed by Judge Maxine M. Chesney on October 29, 2014. (mmclc2, COURT STAFF) (Filed on 10/29/2014) (Entered: 10/29/2014)
Set Deadlines/Hearings: Case Management Statement due by 12/5/2014. Case Management Conference set for 12/12/2014 10:30 AM in Courtroom 7, 19th Floor, San Francisco. (ysS, COURT STAFF) (Filed on 10/29/2014) (Entered: 10/30/2014)
139 CASE MANAGEMENT STATEMENT filed by California Department of Education. (Attachments: # 1 Proposed Order, # 2 Supplement Certification of Interested Entities or Persons, # 3 Certificate/Proof of Service)(Yajima, Ava) (Filed on 12/5/2014) (Entered: 12/05/2014)
140 AMENDED DOCUMENT/Amended Proposed Order by California Department of Education. Amendment to 139 Case Management Statement, . (Attachments: # 1 Amended Joint Case Management Statement , # 2 Certificate/Proof of Service)(Yajima, Ava) (Filed on 12/8/2014) Modified on 12/8/2014 (ysS, COURT STAFF). (Entered: 12/08/2014)
141 MOTION to Appear by Telephone filed by California Department of Education. (Attachments: # 1 Declaration of Ava C. Yajima, # 2 Proposed Order, # 3 Certificate/Proof of Service)(Yajima, Ava) (Filed on 12/10/2014) (Entered: 12/10/2014)
142 ORDER DIRECTING ALL PARTIES TO APPEAR BY TELEPHONE AT SCHEDULING CONFERENCE All parties shall appear via telephone at the Scheduling Conference on December 12, 2014. Signed by Judge Maxine M. Chesney on December 10, 2014. (mmclc2, COURT STAFF) (Filed on 12/10/2014) (Entered: 12/10/2014)
143 Minute Entry for proceedings held before Hon. Maxine M. Chesney: Telephonic Case Management Conference held on 12/12/2014.Court Reporter Name or FTR Time Not Reported. Plaintiff Attorney Donna Brorby, Larisa Cummings. Defendant Attorney Ava Yajima, Paul Lacy. Attachment Telephonic Case

Case: 3:05-cv-04077-JCS As of: 07/29/2015 09:50 PM PDT 20 of 23

12/23/2014 01/05/2015 01/06/2015 01/30/2015 01/30/2015 01/30/2015
01/30/2015 01/30/2015 02/20/2015 02/27/2015

Management Conference Minutes − 12/12/14.(tlS, COURT STAFF) (Date Filed: 12/12/2014) (Entered: 12/15/2014)
144 Supplemental JOINT CASE MANAGEMENT STATEMENT filed by California Department of Education. (Attachments: # 1 Proposed Order, # 2 Certificate/Proof of Service)(Yajima, Ava) (Filed on 12/23/2014) Modified on 12/24/2014 (ysS, COURT STAFF). (Entered: 12/23/2014)
145 ORDER ON SUPPLEMENTAL JOINT CASE MANAGEMENT STATEMENT The supplemental joint case management statement, Dkt. No. 144, is approved as the Case Management Order for this case and all parties shall comply with its provisions. Signed by Judge Maxine M. Chesney on January 5, 2015. (mmclc2, COURT STAFF) (Filed on 1/5/2015) (Entered: 01/05/2015)
Set/Reset Deadlines as to, Set Deadlines/Hearings: Responses due by 2/20/2015. Replies due by 2/27/2015. Plaintiff's Motion for Fees Hearing set for 3/20/2015 09:00 AM in Courtroom 7, 19th Floor, San Francisco before Hon. Maxine M. Chesney. Plaintiff's Motion for fees due by 1/30/2015. (tlS, COURT STAFF) (Filed on 1/6/2015) (Entered: 01/06/2015)
146 MOTION for Attorney Fees : PLAINTIFFS' MOTION FOR REASONABLE ATTORNEYS' FEES AND EXPENSES AND SUPPORTING MEMORANDUM (REVISED) filed by A. A., American Diabetes Association, K. C., M. C., K. F.. Motion Hearing set for 3/20/2015 09:00 AM in Courtroom 7, 19th Floor, San Francisco before Hon. Maxine M. Chesney. Responses due by 2/20/2015. Replies due by 2/27/2015. (Cummings, Larisa) (Filed on 1/30/2015) (Entered: 01/30/2015)
147 Appendix : APPENDIX A (ECF No. 101−1) to 146 Motion for Reasonable Attorney's Fee filed byA. A., American Diabetes Association, K. C., M. C., K. F.. (Cummings, Larisa) (Filed on 1/30/2015) Modified on 2/2/2015 (ysS, COURT STAFF). (Entered: 01/30/2015)
148 Declaration of Larisa Cummings in Support of 146 PLAINTIFFS' MOTION FOR REASONABLE ATTORNEYS' FEES AND EXPENSES AND SUPPORTING MEMORANDUM (REVISED) : CUMMINGS DECLARATION (ECF No. 102) filed byA. A., American Diabetes Association, K. C., M. C., K. F.. (Attachments: # 1 Exhibit − EXHIBIT A TO CUMMINGS DECLAR. (EFC No. 102−1), # 2 Exhibit − EXHIBIT B TO CUMMINGS DECLAR. (ECF No. 102−2))(Related document(s) 146 ) (Cummings, Larisa) (Filed on 1/30/2015) Modified on 2/2/2015 (ysS, COURT STAFF). (Entered: 01/30/2015)
149 Declaration of Charlotte Lanvers in Support of 146 PLAINTIFFS' MOTION FOR REASONABLE ATTORNEYS' FEES AND EXPENSES AND SUPPORTING MEMORANDUM (REVISED) : LANVERS DECLARATION (ECF No.103) filed byA. A., American Diabetes Association, K. C., M. C., K. F.. (Related document(s) 146 ) (Cummings, Larisa) (Filed on 1/30/2015) Modified on 2/2/2015 (ysS, COURT STAFF). (Entered: 01/30/2015)
150 Declaration of Richard M. Pearl in Support of 146 PLAINTIFFS' MOTION FOR REASONABLE ATTORNEYS' FEES AND EXPENSES AND SUPPORTING MEMORANDUM (REVISED) : PEARL DECLARATION (ECF No. 104) filed byA. A., American Diabetes Association, K. C., M. C., K. F.. (Related document(s) 146 ) (Cummings, Larisa) (Filed on 1/30/2015) Modified on 2/2/2015 (ysS, COURT STAFF). (Entered: 01/30/2015)
151 RESPONSE (re 146 MOTION for Attorney Fees : PLAINTIFFS' MOTION FOR REASONABLE ATTORNEYS' FEES AND EXPENSES AND SUPPORTING MEMORANDUM (REVISED) ) filed byCalifornia Department of Education. (Attachments: # 1 Certificate/Proof of Service)(Yajima, Ava) (Filed on 2/20/2015) (Entered: 02/20/2015)
152 REPLY (re 146 MOTION for Attorney Fees : PLAINTIFFS' MOTION FOR REASONABLE ATTORNEYS' FEES AND EXPENSES AND SUPPORTING MEMORANDUM (REVISED) ) filed byA. A., American Diabetes Association, K. C., M. C., K. F.. (Brorby, Donna) (Filed on 2/27/2015) (Entered: 02/27/2015)

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153 ORDER GRANTING IN PART AND DEFERRING IN PART RULING ON PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND EXPENSES The Court finds plaintiffs are entitled to an award of reasonable attorneys' fees and costs incurred for monitoring compliance with the parties' settlement agreement, and grants plaintiffs' motion to said extent. The Court defers ruling on the amount of such award, and the parties are directed to submit to the Court, no later than April 17, 2015, a proposed form of order setting forth the parameters of the Court's reference of the matter to a Magistrate Judge for the purpose of overseeing the parties' discussions as to resolution of the remaining issue. Signed by Judge Maxine M. Chesney on March 20, 2015. (mmclc2, COURT STAFF) (Filed on 3/20/2015) (Entered: 03/20/2015)
154 Minute Entry for proceedings held before Hon. Maxine M. Chesney: Motion Hearing held on 3/20/2015. ; Granting in part and deferring in part 146 Motion for Attorney Fees. Status Conference set for 4/24/2015 10:30 AM in Courtroom 7, 19th Floor, San Francisco before Hon. Maxine M. Chesney, joint status conference statement due by 4/17/2015.Court Reporter Name: Belle Ball. Plaintiff Attorney Donna Brorby; Namita Gupta; Larisa Cummings. Defendant Attorney Ava Yajima. Attachment Civil Minutes − 3/20/2015.(tlS, COURT STAFF) (Date Filed: 3/20/2015) (Entered: 03/20/2015)
155 TRANSCRIPT ORDER by California Department of Education for Court Reporter Belle Ball. (Yajima, Ava) (Filed on 3/24/2015) (Entered: 03/24/2015)
156 Transcript of Proceedings held on March 20, 2015, before Judge Maxine M. Chesney. Court Reporter Belle Ball, CSR, CRR, RDR, belle_ball@cand.uscourts.gov, telephone number (415)373−2529. Per General Order No. 59' and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 155 Transcript Order ) Release of Transcript Restriction set for 6/29/2015. (Related documents(s) 155 ) (Ball, Belle) (Filed on 3/30/2015) (Entered: 03/30/2015)
157 ***ERROENOUE FILING − PLEASE DISREGARD*** MOTION for Reconsideration re 154 Motion Hearing,,, Set Deadlines/Hearings,,, Order on Motion for Attorney Fees,, filed by California Department of Education. (Attachments: # 1 Notice of Motion, # 2 Request for Leave to file Reconsideration, # 3 Proposed Order, # 4 Certificate/Proof of Service)(Yajima, Ava) (Filed on 4/15/2015) Modified on 4/16/2015 (ysS, COURT STAFF). (Entered: 04/15/2015)
158 MOTION for Reconsideration re 153 Order,,, filed by California Department of Education. (Attachments: # 1 Notice of Motion, # 2 Request for Leave to file Reconsideration, # 3 Proposed Order, # 4 Certificate/Proof of Service)(Yajima, Ava) (Filed on 4/16/2015) (Entered: 04/16/2015)
159 TRANSCRIPT ORDER by A. A., American Diabetes Association, K. C., M. C., K. F. for Court Reporter Belle Ball. (Cummings, Larisa) (Filed on 4/17/2015) (Entered: 04/17/2015)
160 JOINT CASE MANAGEMENT STATEMENT AND PROPOSED ORDER filed by California Department of Education. (Yajima, Ava) (Filed on 4/17/2015) (Entered: 04/17/2015)
161 Amended MOTION for Reconsideration re 158 MOTION for Reconsideration re 153 Order,,, , 154 Motion Hearing,,, Set Deadlines/Hearings,,, Order on Motion for Attorney Fees,, filed by California Department of Education. (Attachments: # 1 Notice of Motion, # 2 Request for Leave to file Reconsideration, # 3 Proposed Order)(Yajima, Ava) (Filed on 4/17/2015) (Entered: 04/17/2015)
Set/Reset Deadlines as to 161 Amended MOTION for Reconsideration re 158 MOTION for Reconsideration re 153 Order,,, , 154 Motion Hearing,,, Set Deadlines/Hearings,,, Order on Motion for Attorney Fees,, . Responses due by 5/1/2015. Replies due by 5/8/2015. Motion Hearing set for 5/22/2015 09:00 AM in Courtroom 7, 19th Floor, San Francisco before Hon. Maxine M. Chesney. (tlS, COURT STAFF) (Filed on 4/21/2015) (Entered: 04/21/2015)

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162 ORDER DENYING MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION the State Defendants' motion for leave to file a motion for reconsideration is denied. Signed by Judge Maxine M. Chesney on April 21, 2015. (mmclc2, COURT STAFF) (Filed on 4/21/2015) (Entered: 04/21/2015)
163 MOTION to Appear by Telephone at Case Management Conference filed by California Department of Education. (Attachments: # 1 Proposed Order)(Yajima, Ava) (Filed on 4/22/2015) (Entered: 04/22/2015)
164 ORDER DIRECTING ALL PARTIES TO APPEAR BY TELEPHONE AT APRIL 24, 2015 CASE MANAGEMENT CONFERENCE Signed by Judge Maxine M. Chesney on April 22, 2015. (mmclc2, COURT STAFF) (Filed on 4/22/2015) (Entered: 04/22/2015)
165 ORDER REFERRING MATTER TO MAGISTRATE This matter is referred to Magistrate Judge Joseph C. Spero for the purpose of overseeing the parties' process towards resolving the amount of reasonable attorneys' fees and costs incurred for monitoring compliance with the express terms of the parties' settlement agreement and their reasonable attorneys' fees and expenses for the work necessary in this Court and the Ninth Circuit to resolve this motion forfees. Signed by Judge Maxine M. Chesney on April 24, 2015. (mmclc2, COURT STAFF) (Filed on 4/24/2015) (Entered: 04/24/2015)
166 Minute Entry for proceedings held before Hon. Maxine M. Chesney: Further Case Management Conference (by phone) held on 4/24/2015., CASE REFERRED to Magistrate Judge Joseph C. Spero for Settlement Conference. Not Reported. Plaintiff Attorney Donna Brorby. Defendant Attorney Ava Yajima. Attachment Civil Minutes.(tlS, COURT STAFF) (Date Filed: 4/27/2015) (Entered: 04/27/2015)
167 CLERK'S NOTICE :. (This is a text−only entry generated by the court. There is no document associated with this entry.) Telephonic Settlement/Scheduling Conference set for 5/5/2015 at 09:00 AM in Courtroom G, 15th Floor, San Francisco before Chief Magistrate Judge Joseph C. Spero. (klhS, COURT STAFF) (Filed on 4/29/2015) (Entered: 04/29/2015)
168 Minute Entry for proceedings held before Magistrate Judge Joseph C. Spero: TelephonicSettlement/Scheduling Conference held on 5/5/2015. Any stipulation shall be filed by COB on Friday, 5/8/15. Settlement conference set for 6/1/15 at 9:30 AM.Court Reporter Name or FTR Time: Not Reported. (klhS, COURT STAFF) (Date Filed: 5/5/2015) (Entered: 05/05/2015)
169 Notice of Settlement Conference and Order Setting Settlement Conference before Chief Magistrate Judge Joseph C. Spero. Settlement Conference set for 6/1/2015 09:30 AM in Courtroom G, 15th Floor, San Francisco. Signed by Chief Magistrate Judge Joseph C. Spero on 5/5/15. (klhS, COURT STAFF) (Filed on 5/5/2015) (Entered: 05/05/2015)
170 STIPULATION WITH PROPOSED ORDER RE: FINAL JUDGEMENT BY MAGISTRATE JUDGE SPERO filed by California Department of Education. (Yajima, Ava) (Filed on 5/7/2015) (Entered: 05/07/2015)
171 ORDER ON JOINT STIPULATION RE: FINAL JUDGMENT BY MAGISTRATE JUDGE SPERO; ORDER OF REFERENCE The Clerk of Court is directed to reassign the matter to Magistrate Judge Joseph C. Spero for all further proceedings and entry of judgment on the issue of attorneys' fees. Signed by Judge Maxine M. Chesney on May 8, 2015. (mmclc2, COURT STAFF) (Filed on 5/8/2015) (Entered: 05/08/2015)
172 ORDER REASSIGNING CASE. Case reassigned to Judge Magistrate Judge Joseph C. Spero for all further proceedings. Judge Hon. Maxine M. Chesney no longer assigned to the case.. Signed by Executive Committee on 5/11/15. (as, COURT STAFF) (Filed on 5/11/2015) (Entered: 05/11/2015)
173 Minute Entry for proceedings held before Magistrate Judge Joseph C. Spero: Settlement Conference held on 6/1/2015.FTR Time: 9:46−9:49;12:34−12:38;12:40−12:41. Plaintiff Attorney(s): Donna Brorby; Larisa Cummings. Defendant Attorney(s): Ava C. Yajima; Paul Lacy; Michelle Zumot. Interpreter None Needed. Attachment: Minutes of Settlement Conference; Case

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settled. Settlement put on the record.(rmm2S, COURT STAFF) (Date Filed: 6/1/2015) (Entered: 06/01/2015)
174 TRANSCRIPT ORDER by California Department of Education for Court Reporter FTR − San Francisco. (Yajima, Ava) (Filed on 6/2/2015) (Entered: 06/02/2015)
175 Transcript of Proceedings of the official sound recording held on 06/01/15, before Magistrate Joseph C. Spero. FTR/Transcriber Echo Reporting, Inc., Telephone number (858) 453−7590.;echoreporting@yahoo.com. Tape Number: FTR 9:46 − 9:49/12:34−12:38/12:40−12:41. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 174 Transcript Order ) Redaction Request due 6/24/2015. Redacted Transcript Deadline set for 7/6/2015. Release of Transcript Restriction set for 9/1/2015. (Related documents(s) 174 ) (tgb, COURT STAFF) (Filed on 6/3/2015) (Entered: 06/03/2015)
176 MOTION to Dismiss filed by A. A., American Diabetes Association, K. C., M. C., K. F.. Responses due by 7/13/2015. (Attachments: # 1 Proposed Order)(Brorby, Donna) (Filed on 6/29/2015) (Entered: 06/29/2015)
177 Order, signed 7/1/15 by Chief Magistrate Judge Joseph C. Spero granting 176 Motion to Dismiss with Prejudice.(klhS, COURT STAFF) (Filed on 7/1/2015) (Entered: 07/01/2015)

 
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K.C. Settlement Agreement & Legal Advisory - Health Services & School Nursing (CA Dept of Education)

California  Department  of  Education  (http://www.cde.ca.gov/ls/he/hn/legaladvisory.asp) Page  Generated:  10/24/2013  7:00:36  PM
K.C.  Settlement  Agreement  &  Legal  Advisory

This  settlement  agreement  and  legal  advisory  spell  out  the  legal  responsibilities  of  a  school  district  when  a  student  requires administration  of  insulin  during  the  school  day.

Acuerdo  Conciliatorio  de  K.C.  y  Asesoría  Legal  (Espanõl)  (Posted  15-­Apr-­2011)
NOTE:

On  December  26,  2008,  the  Sacramento  County  Superior  Court  held  that  the  portions  of  the  Legal  Advisory stating  that  trained  unlicensed  school  personnel  may  administer  insulin  in  the  absence  of  a  licensed  nurse violate  state  law.  The  trial  court's  ruling  did  not  affect  that  part  of  the  Legal  Advisory  stating  that  such personnel  may  administer  insulin  in  emergencies.
The  case  is  now  on  appeal,  and  the  Court  of  Appeal  has  confirmed  that  the  trial  court's  ruling  is  stayed  until the  appeal  is  finally  resolved.  The  entire  Legal  Advisory  therefore  remains  in  effect.    However,  interested parties  should  check  this  Web  site  periodically  for  updates  on  the  litigation  and  the  status  of  the  Legal Advisory.
EXHIBIT  A
LEGAL  ADVISORY  ON  RIGHTS  OF  STUDENTS  WITH  DIABETES  IN CALIFORNIA’S  K-­12  PUBLIC  SCHOOLS
Pursuant  to  the  recent  Settlement  Agreement  in  K.C.  et  al.  v.  Jack  O’Connell,  et  al.,  Case  No.  C-­05-­4077  MMC,  in  the United  States  District  Court  for  the  Northern  District  of  California,  the  California  Department  of  Education  (CDE)  has agreed  to  remind  all  California  school  districts  and  charter  schools  of  the  following  important  legal  rights  involving students  with  diabetes  who  have  been  determined  to  be  eligible  for  services  under  either  the  Individuals  with Disabilities  Education  Act  (IDEA)  and  related  California  law  or  Section  504  of  the  Rehabilitation  Act  of  1973  (Section 504)  and  related  California  law.
The  CDE  notes  that  this  is  a  complex  area  of  the  law.  Every  effort  has  been  made  to  be  clear  and  concise  in  providing this  advisory.
I.   The  Applicability  of  Two  Federal  Anti-­Discrimination  Statutes  (Section  504  and  the  ADA)  to  those  Public  School Students  with  Diabetes  Who  Require  Diabetes  Health  Related  Services  While  Attending  K-­12  Schools  in California
II.   California’s  Anti-­Discrimination  Statutes  and  Students  with  Diabetes  Who  Require  Diabetes  Health  Related Services  During  the  Day  In  Order  to  Safely  Attend  K-­12  Schools  in  California
III.   The  IDEA  and  Students  With  Diabetes  Who  Require  Diabetes  Health  Related  Services  During  the  Day  In  Order to  Safely  Attend  K-­12  Schools  in  California
IV.   Who  May  Administer  Insulin  in  California  to  Students  with  Diabetes  As  a  Related  Service  Under  Section  504 and  the  IDEA
V.   Monitoring  and  Compliance  by  CDE VI.   Impartial  Due  Process  Hearings VII.   Resources
Checklist Footnotes
I.  The  Applicability  of  Two  Federal  Anti-­Discrimination  Statutes  (Section  504 and  the  ADA)  to  those  Public  School  Students  with  Diabetes  Who  Require Diabetes  Health  Related  Services  While  Attending  K-­12  Schools  in  California

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Two  federal  anti-­discrimination  statutes,  Section  504  of  the  Rehabilitation  Act  of  1973  and  Title  II  of  the  Americans  with Disabilities  Act  of  1990  (ADA),  together  establish  rights  for  eligible  students  with  diabetes  in  California’s  public  schools. Together,  they  serve  to  protect  such  students  from  discrimination  based  upon  their  disability  including  the  right  to receive  a  free  appropriate  public  education  (FAPE).  The  two  statutory  schemes  are  treated  synonymously.  (Wong  v. Regents  of  University  of  California,  192  F.3d  807,  81  6  n.  26.)  Hence,  in  this  Legal  Advisory,  Section  504  will  mean both  Section  504  as  well  as  the  ADA  unless  otherwise  noted.

A.  Eligibility
In  general,  a  student  will  be  determined  to  have  a  disability  under  Section  504  if  he/she  has  a  mental  or  physical impairment  that  substantially  limits  one  or  more  major  life  activities,  such  as  eating,  breathing,  caring  for  oneself, performing  manual  tasks,  hearing,  speaking,  walking,  and  learning.  (See  34  CFR  sec.  104.4,  subds.  (j),  (k),  and  (i).) Accordingly,  learning  is  not  the  only  major  life  activity  that  must  be  considered  when  determining  eligibility  under Section  504.  (Rock  Hill  (OH)  Local  Schools,  37  IDELR  222  (OCR  2002).)
The  Ninth  Circuit  Court  of  Appeals  recently  determined  that  diabetes  is  a  “physical  impairment”  and  then  addressed whether  that  impairment  substantially  limited  a  major  life  activity  under  the  facts  of  that  case.  (Fraser  v.  Goodale,  342 F.3d  1032  (9th  Cir.  2003).)  In  finding  that  the  plaintiff  had  presented  evidence  that  she  was  substantially  limited  in eating,  the  court  noted  that  the  plaintiff  was  required  to  be  vigilant  about  testing  blood  glucose  levels  and  adjusting  food intake,  insulin  and  physical  activity  accordingly.  Id.  at  1040-­1041.
Fluctuations  in  blood  glucose  levels  can  impact  concentration  and  comprehension,  as  well  as  have  significant  and potentially  life-­threatening  short  and  long  term  health  implications.  See  Helping  the  Student  with  Diabetes  Succeed  -­  A Guide  for  School  Personnel     ,  U.S.  Department  of  Health  and  Human  Services  (2003).
To  avoid  these  fluctuations  in  blood  glucose  levels,  students  with  diabetes  must  be  vigilant  about  balancing  food consumption,  exercise,  and  administration  of  medication.  For  these  reasons,  the  Office  for  Civil  Rights  of  the  United States  Department  of  Education  (OCR)  has  found  that  students  with  diabetes  to  be  “disabled”  under  Section  504.  (See Bement  (IL)  Community  Unit  School  District  #5,  14  EHLR  353:383  (OCR  1989)  (holding  that  a  student  with  diabetes  is disabled  under  Section  504  when  she  required  close  monitoring  of  her  diet,  behavior,  and  activities  at  all  times  in  order for  her  to  be  able  to  attend  school);;  Irvine  (CA)  Unified  Sch.  Dist.,  19  IDELR  883,  884  (OCR  1  993)  (determining  that the  student  with  type  1  diabetes  was  a  “disabled  person”  as  defined  by  the  regulation  implementing  Section  504).

B.  504  Plans
Once  a  local  education  agency  (LEA)  determines  that  a  student  is  entitled  to  Section  504  protections,  this  includes  the provision  of  a  free  appropriate  public  education.  (34  CFR  sec.  104.35.)  Services,  and  accommodations  are  determined through  the  504  planning  process,  and  documented  in  a  504  plan.  Henderson  County  (NC)  Pub.   Schs.,  34  IDELR  43, 44  (OCR  2000)  (voluntary  resolution  agreement  reached  to  develop  Section  504  plan  providing  for  a  broad  range  of diabetes-­related  aids  and  services,  including  training  staff  to  monitor  blood  glucose,  count  carbohydrates,  manage student’s  insulin  pump,  and  establish  procedures  for  the  provision  of  appropriate  emergency  services);;  Prince  George’s County  (MD)  Schools,  39  IDELR  103,  104  (OCR  2003)  (district  required  to  develop  a  Section  504  Plan  tailored  to  the individual  needs  of  a  student  with  type  1  diabetes).
Academic  modifications  may  be  necessary  whether  or  not  the  major  life  activity  of  “learning”  is  affected.  A  student  with diabetes  may  need  to  have  his/her  curriculum  adapted  in  a  variety  of  ways  such  as  changes  in  physical  education instruction,  in  the  regular  school  day   schedule  (such  as  breaks  required  to  test  for  and  treat  abnormal  blood  sugar levels),  in  additional  breaks  or  other  time  modifications  during  tests,  and  in  the  regular  schedule  for  eating,  drinking  and toileting.  These  accommodations  should  be  documented  in  the  504  plan.  Decisions  about  what  health  care  services  a student  will  receive,  including  treatment  while  at  school,  such  as  the  timing  and  dosage  of  insulin  to  be  administered, usually  are  based  on  the  treating  physician’s  written  orders.  (See  Cal.  Ed.  Code  section  49423.)  In  rare  circumstances, the  504  team  will  question  the  doctor’s  treatment  plan  as  being  outside  standards  of  care  and  will  seek  a  second opinion  at  school  district  expense.  (See  section  of  this  advisory  discussing  IDEA  entitled  Related  Services  as Including  Management/Administration  of  Insulin  and  Other  Diabetes  Care  Tasks  for  Children  With  the  Disability  of  OHI below.)

C.  Individualized  Inquiries  Required;;  Blanket  Policies  Prohibited

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An  LEA  may  not  have  a  blanket  policy  or  general  practice  that  insulin  or  glucagon  administration,  or  other  diabetes-­ related  health  care  services,  will  only  be  provided  by  district  personnel  at  one  school  in  the  district  or  will  always require  removal  from  the  classroom  in  order  to  receive  diabetes  related  health  care  services.  For  example,  in Christopher  S.  v.  Stanislaus  County  Office  of  Educ.,  384   F.3d  1  205,  1212  (9th  Cir.  2004),  the  Ninth  Circuit  Court  of Appeals  noted  that  OCR  has  repeatedly  held  that  blanket  policies  that  preclude  individual  evaluation  of  a  particular child’s  educational  and  health  related  services  needs  violate  Section  504.  (See  also  Conejo  Valley  (CA)  Unified  Sch. Dist.,  20  IDELR  (LRP)  1276,  1280  (OCR  1993)  (district  violated  Section  504  by  failing  to  perform  an  evaluation  that  was individualized  by  proposing  changes  in  placement  based  upon  a  generalized  district  policy  regarding  who  could  perform injections  without  regard  to  student’s  individual  education  needs);;  Irvine  (CA)  Unified  Sch.  Dist.,  23  IDELR  1144,  1146 (OCR  1995)  (district’s  “unwritten  policy”  prohibiting  blood  glucose  testing  in  classroom  violated  34  CFR  sec.  104.35(c  ) (3)  requiring  that  a  team  of  pers ons  give  careful  consideration  to  all  of  the  information  available  and  makes determinations  based  upon  the  individual  needs  of  the  disabled  student).)  See  further  discussion  below  in  the  section of  this  advisory  discussing  IDEA  entitled  Related  Services  May  Include  Management/Administration  of  Insulin  and Other  Diabetes  Care  Tasks  for  Children  With  the  Disability  of  OHI.
In  addition,  a  school  or  district  may  not  require  the  parent  or  guardian  to  waive  any  rights  or  agree  to  any  particular placement  or  related  services  as  a  condition  of  administering  medications  or  assisting  a  student  in  the  administration of  medication  at  school.  (Berlin  Brothersvalley  (PA.)  School  Dist.,  EHLR  353:124  (OCR  1988)  (district  policy  of  giving school  officials  discretion  in  whether  to  administer  needed  medication  and   conditioning  the  provision  of  services required  by  Section  504  or  IDEA  on  parents  signing  a  waiver  of  liability  is  prohibited).  See  further  discussion  below  in the  section  of  this  advisory  discussing  IDEA  entitled  School  Placement  Decisions.

D.  FAPE  Under  Section  504
Pursuant  to  34  CFR  section  104.33,  school  districts  must  provide  a  free  appropriate  public  education  (FAPE)  to  all students  with  disabilities  in  public  elementary  and  secondary  schools.  Under  Section  504,  “appropriate  education” means  “the  provision  of  regular  or  special  education  and  related  aids  and  services  that  (i)  are  designed  to  meet individual  educational  needs  of  handicapped  persons  as  adequately  as  the  needs  of  nonhandicapped  persons  are  met and  (ii)  are  based  upon  adherence  to  procedures  that  satisfy  the  requirements  of  34  CFR  sections  104.34,  104.35,  and 104.36.”  (34  CFR  section  104.33  (b)(emphasis  added).)
The  OCR  has  applied  the  FAPE  obligation  broadly  to  ensure  nondiscrimination  by  providing  individual  accommodations that  provide  each  disabled  student  with  a  FAPE.  The  requirement  to  provide  FAPE  under  Section  504  has  been  applied in  the  context  of  the  administration  of  medication  in  general  and  diabetes-­based  related  services  in  particular.  (See Conejo  Valley  (CA)  Unified  Sch.  Dist.,  supra;;  Irvine  (CA)  Unified  Sch.  Dist.,  supra;;  and  Prince  George’s  County  (MD) Schools,  supra.)  See  also,  Chapter  4  of  Compliance  With  The  Americans  With  Disabilities  Act:  A  Self-­Evaluation Guide  for  Public  Elementary  and  Secondary  Schools     (last  visited  March  30,  2007)  Office  for  Civil  Rights  Department of  Education,  United  States  of  America  (1995).  Unlike  the  requirement  to  provide  auxiliary  aids  in  contexts  other  than FAPE  ...  the  obligation  to  provide  related  aids  and  services  necessary  to  the  provision  of  FAPE  is  not  subject  to  the limitations  regarding  undue  financial  and  administrative  burdens  or  fundamental  alteration  of  the  program.”  Id.  at  73.
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II.  California’s  Anti-­Discrimination  Statutes  and  Students  with  Diabetes  Who Require  Diabetes  Health  Related  Services  During  the  Day  In  Order  to  Safely Attend  K-­12  Schools  in  California

California’s  anti-­discrimination  statutes  prohibit  discrimination  on  the  basis  of  disability  under  any  program  or  activity funded  directly  by  the  State.  (Cal.  Gov.  Code  sec.  11135(a).)  “Disability”  means  any  mental  or  physical  disability  as defined  by  Government  Code  section  12926.  (Cal.  Gov.  Code  sec.  11135(d)(1).)  “Physical  disability”  is  defined  in Government  Code  section  12926(k)(1)  and  (2).  It  affords  broader  coverage  than  Section  504  because  it  requires  a “limitation”  rather  than  a  “substantial  limitation”  of  a  major  life  activity.  (Cal.  Gov.  Code  secs.  12926(k)(1)(B);; 12926.1(c ),  (d)(2);;  see  generally  Colmenares  v.  Braemar  Country  Club,  Inc.  (2003)  29  Cal.4th  1019,  1022-­1032.)
In  addition,  whether  a  physical  disability  limits  a  major  life  activity  under  California’s  statutory  scheme  must  “be determined  without  regard  to  mitigating  measures  such  as  medications....”  (Cal.  Gov.  Code  sec.  12926(k)(1)(B)(i).)  This prov is ion  has   made  the  Supreme  Court’s   holding  in  Sutton  v .  Unit ed  Airlines ,  527  U.S.  471  (1999),  whic h  required consideration  of  such  mitigating  measures  inapplicable  under  California  law.  Furthermore,  section  1  2926(k)(2)  of  the Government  Code  provides  that  all  students  with  diabetes  who  require  special  education  or  related  services  (i.e., health-­related  services)  are  protected  by  state  anti-­discrimination  laws.
Government  Code  section  111  35  incorporates  the  rights  under  the  ADA  and  thus  Section  504.  (See  Gov.  Code  sec. 11135(b)  and  42  USC  sec.  1  2133;;  28  CFR  sec.  35.103(a)).  Therefore,  the  discussion  above  regarding  Section  504  and students  with  diabetes  is  applicable  under  the  broad  definitions  of  physical  disability  in  California.
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III.  The  IDEA  and  Students  With  Diabetes  Who  Require  Diabetes  Health Related  Services  During  the  Day  In  Order  to  Safely  Attend  K-­12  Schools  in California

The  primary  purpose  of  the  IDEA  is  “to  ensure  that  all  children  with  disabilities  have  available  to  them  a  free appropriate  public  education  (FAPE)  that  emphasizes  special  education  and  related  services  designed  to  meet  their unique  needs  and  prepare  them  for  further  education,  employment,  and  independent  living.”  (20  USC  secs.  1400(d)(1) (A),  1401  (a).)  California  law  sets  the  same  standard  for  educating  individuals  with  exceptional  needs  as  the reauthorized  IDEA.  (Cal.  Ed.  Code  secs.  56000,  56363(a).)

A.  Eligibility
The  IDEA  requires  LEAs  to  conduct  “child  find”  activities  to  ensure  that  children  with  diabetes  are  identified,  located, and  evaluated.  (20  USC  sec.  141  2(a)(3).)  Under  the  IDEA,  a  child  with  diabetes  is  evaluated  for  eligibility  under  one  of the  13  categories  of  disability,  including  the  disability  of  “other  health  impaired”  (OHI).  (20  USC  sec.  1401(3)(A);;  34 CFR  sec.  300.8;;  Cal.  Ed.  Code  sec.  56026;;  Cal.  Code  Regs.,  Tit.  5,  sec.  3030.)  The  reauthorized  IDEA  defines  “child with  a  disability”  in  the  following  way:
The  term  “child  with  a  disability”  means  a  child  -­
(i)  with  ...  other  health  impairments  ....  and (ii)  who,  by  reason  thereof,  needs  special  education  and  related  services.  (20  USC  sec.  1401(3)(A).)
The  term  “other  health  impairments”  (OHI)  is  further  defined  in  the  recently  promulgated  regulations  as  follows: (c  )  Definitions  of  disability  terms.  The  terms  used  in  this  definition  of  a  child  with  a  disability  are  defined  as  follows:
(9)  Other  health  impairment  means  having  limited  strength,  vitality,  or  alertness,  including  a  heightened  alertness  to environmental  stimuli,  that  results  in  limited  alertness  with  respect  to  the  education  environment,  that  -­
(i)  is  due  to  chronic  or  acute  health  problems  such  as  diabetes  and (ii)  adversely  affects  a  child’s  educational  performance.
Hence,  an  individualized  education  program  (IEP)  team  can  determine  that  a  child  with  diabetes  is  eligible  under  the disability  of  OHI  because  high  or  low  blood  glucose  levels  can  cause  symptoms  giving  him/her  limited  strength,  limited alertness,  and  creating  chronic  or  acute  health  problems  that  adversely  affect  the  student’s  educational  performance. (See  Helping  the  Student  with  Diabetes  Succeed  -­  A  Guide  for  School  Personnel     ,  U.S.  Department  of  Health  and Human  Services,  2003).  Fluctuations  in  blood  glucose  levels  may  have  an  adverse  effect  on  education  in  a  variety  of ways,  including  the  effect  on  concentration,  comprehension,  and  energy  levels.  It  should  be  noted  that  the  IEP  team “must  make  an  individual  determination  as  to  whether,  notwithstanding  the  child’s  progress  in  a  course  or  grade,  he  or she  needs  or  continues  to  need  special  education  and  related  services.”  (34  CFR  sec.  300.101(c).)
B.  Special  Education  Defined
The  IDEA  defines  “special  education”  as  meaning  “specially  designed  instruction,  at  no  cost  to  parents,  to  meet  the unique  needs  of  a  child  with  a  disability,  including  -­
(A)  instruction  conducted  in  the  classroom,  in  the  home,  in  hospitals  and  institutions,  and  in  other  settings;; and (B)  instruction  in  physical  education.”  (20  USC  section  1401  (29).)
"Specially  designed  instruction”  means  “adapting,  as  appropriate  to  the  needs  of  the  eligible  child  under  this  part,  the content,  methodology,  or  delivery  or  instruction  (i)  to  address  the  unique  needs  of  the  child  that  result  from  the  child’s disability  and  (ii)  to  ensure  access  of  the  child  to  the  general  curriculum,  so  that  the  child  can  meet   the  educational standards  within  the  jurisdiction  of  the  public  agency  that  apply  to  all  children.”  (34  CFR  sec.  300.39(b)(3).)
For  example,  an  IEP  team  could  determine  that  a  child  who  meets  the  criteria  for  eligibility  under  the  category  of  OHI based  upon  chronic  or  acute  health  problems  arising  from  diabetes  would  need  to  have  his/her  curriculum  adapted  in ways  such  as  changes  in  the  physical  education  instruction,  in  the  regular  school  day  schedule  (such  as  various breaks  required  by  abnormal  blood  sugar  levels  involving  medical  treatment),  in  allowed  time  for  taking  tests,  in  the regular  schedule  for  eating,  drinking  and  toileting,  in  assignment  due  dates,  and  in  various  other  academic  adaptations.
C.  Individualized  Education  Program
Determinations  about  eligibility,  special  education  and  related  services  under  the  IDEA  and  relevant  state  statutes  are made  generally  by  the  child’s  Individualized  Education  Program  (IEP)  team.  (See  generally  Cal.  Ed.  Code  secs.  56340-­ 56347.)  Such  determinations  are  always  based  upon  the  unique  needs  of  the  individual  child.

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The  term  “individualized  education  program”  (IEP)  means  a  written  statement  for  each  child  with  a  disability  that  is developed,  reviewed,  and  revised  in  accordance  with  20  USC  section  141  4(d).  As  a  part  of  each  IEP,  there  must  be  “a statement  of  the  special  education  and  related  services  and  supplementary  aids  and  services,  based  on  peer-­reviewed research  to  the  extent  practicable,  to  be  provided  to  the  child,  or  on  behalf  of  the  child,  and  a  statement  of  the  program modifications  or  supports  for  school  personnel  that  will  be  provided  for  the  child....”  (20  USC  sec.  1414(d)(1)(A)(i)(IV))  in school  and  in  extracurricular  and  other  nonacademic  activities.  The  2006  implementing  regulations  are  located  at  34 CFR  sections  300.320  through  300.328.

D.  Related  Services  May  Include  Management/Administration  of  Insulin  and  Other  Diabetes Care  Tasks  for  Children  With  the  Disability  of  OHI
In  general,  the  reauthorized  IDEA  includes  “school  nurse  services”  as  a  “related  service.”  (20  USC  sec.  1401  (26).)  The statutory  definition  was  expanded  in  the  regulations  to  include  school  health  services.  (34  CFR  sec.  300.34.) California’s  definition  of  designated  instruction  and  services/related  services  is  located  in  Education  Code  section 56363  and  is  synonymous  with  related  services  in  the  reauthorized  IDEA  in  20  USC  section  1401  (26).  California’s designated  instruction  services  thus  do  not  deviate  from  the  federal  related  services.
If  a  child  needs  both  special  education  and  health  services,  then,  as  determined  by  the  child’s  IEP  team,  school nurse/health  services  should  be  made  available  to  a  child  with   the  eligible  disability  of  OHI  as  documented  in  the student’s  IEP.  Services  related  to  an  OHI-­eligible  child’s  diabetes  health  care  needs  at  school,  including  those involving  the  management  and  administration  of  insulin,  are  covered  under  the  IDEA  as  nursing  and  health  services rather  than  excluded  from  coverage  as  medical  services  requiring  a  physician  to  provide  them.  (See  Clovis  Unified School  Dist .  v.  Office  of  Administrative  Hearings,  903  F.3d  635,  641-­643  (9th  cir.  1990)  discussing  and  applying  Irving Independent  School  District  v.  Tatro,  468  u.s.  883  (1984).)
In  California,  by  statute  both  a  written  statement  from  the  child’s  physician  as  well  as  a  written  statement  from  the child’s  parent  are  required  before  either  a  school  nurse  or  other  designated  school  personnel  may  assist  the  child  with the  administration  of  medication.  (Cal.  Ed.  Code  sec.  49423.)  Hence,  decisions  about  what  health  care  services  a student  will  receive,  including  treatment  while  at  school,  such  as  the  timing  and  dosage  of  insulin  to  be  administered usually  are  based  on  the  treating  physician’s  written  orders.  (See  Cal.  Ed.  Code  sec.  49423.)  In  rare  circumstances  the IEP  team  will  question  the  doctor’s  treatment  plan  as  being  outside  the  standard  of  care  and  then  request  clarification from  the  treating  physician  or  a  second  opinion  with  the  consent  of  the  parent,  at  the  district’s  expense.  (See  34  CFR sec.  300.300;;  Shelby  S.  ex  rel.  Kathleen  T.  v  Conroe  Independent  School  Dist.,  454  F.3d  450,  454-­455  (5th  Cir.  2006) (school  district  authorized  to  compel  medical  examination  over  parent  objection  and  necessity  demonstrated).)  In addition,  the  IEP  team  is  responsible  for  determining  educational  modifications.  (See,  Special  Education  Defined, above).

E.  Individualized  Inquiries  Required;;  Blanket  Policies  Prohibited
As  with  Section  504  determinations  discussed  above  in  Part  l.C.,  decisions  by  IEP  teams  must  be  based  upon individualized  inquiries.  The  IDEA  and  its  implementing  regulations  are  premised  upon  the  fact  that  each  child  is “unique”  (20  USC  sec.  1400(d)(1)(A))  and  must  receive  an  “individualized  education  program”  (20  USC  sec.  1401(14);; see  generally  Porter  v.  Board  of  Trustees  of  Manhattan  Beach  Unified  School  Dist.,  307  F.3d  1064,  1066  (9th  Cir. 2002)  quoting  Bd.  of  Educ.  v.  Rowley,  458  U.S.  176,  188-­189  (1982)  (“right  to  public  education  for  students  with disabilities  ‘consists  of  educational  ins truction  specially  designed  to  meet  the  unique  needs  of  the  handicapped  child, supported  by  such  services  as  are  necessary  to  permit  the  child  “to  benefit”  from  the  instruction”.)  As  a  consequence, decisions  about  a  specific  child’s  eligibility  for  services  under  the  IDEA  must  not  be  based  upon  the  generalized  or “blanket”  policies  of  a  local  education  agency  rather  than  the  unique  needs  of  the  indiv idual  child.  (See  Part  l.C., supra.)  Therefore,  policies  that  restrict  the  availability  of  health  related  services  across-­the-­board  would  be  out  of compliance  with  the  mandate  to  individualize  decisions  about  special  education  and  related  services  needs.

F.  School  Placement  Decisions
School  placement  decisions  may  not  be  based  upon  the  unwillingness  of  a  district  to  provide  needed  related  services to  a  child  with  OHI-­diabetes  disability  at  the  school  that  the  child  would  otherwise  attend.  A  district  may  not  require  the parent  to  waive  any  rights,  hold  the  district  harmless,  or  agree  to  any  particular  placement  or  related  services  as  a condition  of  administering  medication  or  assisting  a  student  in  the  administration  of  medication  at  school.  (See Comment  to  IDEA  regulations  at  p.  46587  (federal  register)  involving  34  CFR  sec.  300.116(c):  “Unless  the  IEP  of  a child  with  a  disability  requires  some  other  arrangement,  the  child  is  educated  in  the  school  that  he  or  she  would  attend if  nondisabled  Public  agencies  must  not  make  placement  decisions  based  on  a  public  agency’s  needs  or  available resources,  including  budgetary  considerations  and  the  ability  of  the  public  agency  to  hire  and  recruit  qualif ied  staff;;” see  also  Berlin  Brothers  Valley  (PA.)  School  Dist.,  EHLR  353:124  (OCR  1988)  (blanket  waiver  of  liability  as  condition to  provision  of  medical  services  prohibited).  For  example,  a  district  may  not  have  a  blanket  policy  or  general  practice that  insulin  or  glucagon  administration  or  other  diabetes-­related  health  care  service  are  only  going  to  be  provided  by district  personnel  at  one  school  in  the  district,  or  that  a  child  will  always  need  to  be  removed  from  the  classroom  in order  to  receive  diabetes  related  health  care  services.  An  IEP  developed  in  the  legally-­required  manner,  which  takes into  account  all  of  the  relevant  medical  and  education  factors  under  the  IDEA  for  each  disabled  child,  is  the  only  way  to ensure  that  such  a  student  receives  an  individualized  determination  of  what  cons titutes  FAPE  under  the  IDEA  and relevant  state  statutes.

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G.  Administrative  Procedures;;  Financial  Burden  Not  a  Defense
A  parent  of  a  child  with  the  disability  of  OHI  or  an  organization  can  file  an  administrative  complaint  with  the  CDE alleging  that  a  school  district  is  violating  the  IDEA  or  relevant  state  statutes  by  failing  to  identify,  evaluate,  or  provide  a FAPE  to  a  student  with  diabetes  or  a  group  of  students  with  diabetes,  including  challenging  a  district  policy  or  practice that  restricts  the  provision  of  related  health  services  to  students  eligible  for  such  services  under  the  IDEA.  (34  CFR secs.  300.151-­300.153;;  Calif.  Code  Regs.,  Tit.  5,  secs.  4600-­4671.)
In  the  alternative,  a  parent  who  disagrees  with  the  IEP  decision  regarding  identification,  evaluation,  or  the  provision  of FAPE  and  related  services  can  file  for  an  impartial  due  process  hearing  with  the  Office  of  Administrative  Hearings.  (20 USC  sec.  1415  (e)-­(i).)  An  OAH  judge  can  order  that  the  applicable  required  related  school  health  services  be  provided by  the  district,  including  the  administration  of  insulin  during  the  school  day.  (20  USC  sec.  1415(f)(3)(E).)  Financial burden  is  not  a  valid  defense  available  to  the  LEA  under  the  Garret  F.  case.  (Cedar  Rapids  v.  Garret  F.,  526  U.S.  66, 75,  fn.  6,  78-­79  (1999)  (district  required  to  fund  related  school  health  services  under  34  CFR  sec.  300.13(a)  where necessary  in  order  to  provide  student  with  meaningful  access  to  public  school).)
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IV.  Who  May  Administer  Insulin  in  California  to  Students  with  Diabetes  As  a Related  Service  Under  Section  504  and  the  IDEA

A.  California  Law
It  is  the  position  of  the  CDE  that  the  Business  and  Professions  Code  section  2725(b)(2)  and  the  California  Code  of Regulations,  Title  5,  section  604  authorize  the  following  types  of  persons  to  administer  insulin  in  California’s  public schools  pursuant  to  a  Section  504  Plan  or  an  IEP:
1.   self  administration,  with  authorization  of  the  student’s  licensed  health  care  provide  and  parent/guardian;;1
2.   school  nurse  or  school  physician  employed  by  the  LEA;; 3.   appropriately  licensed  school  employee  (i.e.,  a  registered  nurse  or  a  licensed  vocational  nurse)  who  is
supervised  by  a  school  physician,  school  nurse,  or  other  appropriate  individual;;
4.   contracted  registered  nurse  or  licensed  vocational  nurse  from  a  private  agency  or  registry,  or  by  contract  with  a public  health  nurse  employed  by  the  local  county  health  department;;
5.   parent/guardian  who  so  elects;;
6.   parent/guardian  designee,  if  parent(/guardian  so  elects,  who  shall  be  a  volunteer  who  is  not  an  employee  of  the LEA;;   and
7.   unlicensed  voluntary  school  employee  with  appropriate  training,  but  only  in  emergencies  as  defined  by  Section 2727(d)  of  the  Business  and  Professions  Code  (epidemics  or  public  disasters).2
B.  Federal  Law
As  noted  above  in  Parts  I  and  III,  federal  law  under  Section  504  and  the  IDEA  provides  that  the  administration  of insulin  can  be  determined  to  be  a  related  service  that  must  be  provided  to  a  student  pursuant  to  a  Section  504  Plan  or an  IEP  in  order  to  ensure  FAPE.  CDE  has  recognized  in  the  regulations  which  implement  Education  Code  section 49423  regarding  the  administration  of  medication  to  students  during  the  school  day  that  they  did  not  affect  “in  any  way” either  the  content  or  implementation  of  a  student’s  Section  504  Plan  or  IEP.  (Calif.  Code  Regs.,  Tit.  5,  section  610(d).) Further,  CDE’s  Program  Advisory  on  Medication  Administration   (PDF)  (required  by  Section  611  of  the  regulations) recognized  that  students’  rights  under  Section  504  and  the  IDEA  are  distinct  from  state  legal  requirements.
C.  Reconciliation  of  State  and  Federal  Law
The  difficult  issue  in  this  area  is  reconciling  state  and  federal  requirements.  Clearly  the  first  set  of  personnel  who  are authorized  to  administer  insulin  pursuant  to  a  Section  504  Plan  or  an  IEP  are  those  persons  who  are  expressly  so authorized  under  California  law,  as  set  forth  in  Part  IV.A,  supra.  The  question  is  what  should  occur  when  no  expressly authorized  school  personnel  are  available.
In  CDE’s  view,  the  list  cannot  be  taken  as  exhaustive  because  LEAs  must  also  meet  federal  requirements  -­  even  if  the pers onnel  ex pres s ly   authoriz ed  by   California  are  not  av ailable.  In  prac tic al  terms ,  this   m eans   that  the  methodology followed  by  some  LEAs  of  training  unlicensed  school  employees  to  administer  insulin  during  the  school  day  to  a student  whose  Section  504  Plan  or  IEP  so  requires  it  is  a  valid  practice  pursuant  to  federal  law.  If  the  LEA  determines that  insulin  administration  by  the  types  of  persons  listed  in  categories  2-­4  are  not  available  or  feasible,  then  unlicensed school  employees  with  appropriate  training  would  be  authorized  under  federal  law  to  administer  insulin  in  accordance with  the  student’s  Section  504  Plan  or  IEP.  What  is  not  valid  is  for  an  LEA  to  adopt  a  general  policy  or  practice  that  a Section  504  Plan  or  IEP  need  not  be  developed  or  followed  because  the  LEA  is  not  able  to  comply  with  the  student’s federal  rights  based  upon  the  express  provisions  of  state  law.

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When  federal  and  state  laws  are  reconciled,  it  is  clear  that  it  is  unlawful  for  an  LEA  to  have  a  general  practice  or  policy that  asserts  that  it  need  not  comply  with  the  IDEA  or  Section  504  rights  of  a  student  to  have  insulin  administered  at school  simply  because  a  licensed  professional  is  unavailable.  In  such  situations,  federal  rights  take  precedence  over strict  adherence  to  state  law  so  that  the  educational  and  health  needs  of  the  student  protected  by  the  Section  504  Plan or  IEP  are  met.
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V.  Monitoring  and  Compliance  by  CDE

A.  IDEA
Under  the  IDEA,  the  CDE  monitors  compliance  with  federal  and  state  special  education  statutes  and  regulations  with its  Quality  Assurance  Process  (QAP).  That  process  is  characterized  by  the  gathering  and  evaluating  of  data  in  order  to identify  districts  and  areas  within  districts  to  aid  in  the  inquiry,  evaluation,  and  review  of  compliance  issues.  This enables  the  LEA  and  the  CDE  to  develop  corrective  action  plans,  program  improvement  goals,  and  provide  technical assistance  to  improve  services  to  special  education  students  throughout  California.
Pursuant  to  the  K.C.  Settlement  Agreement,  the  CDE  has  agreed  to  modify  its  QAP  monitoring  instruments  and process  to  include  special  evaluation  items  related  to  students  with  the  disability  of  OHI  with  chronic  or  acute  health problems  arising  from  diabetes.
The  CDE  also  assures  compliance  under  the  IDEA  by  maintaining  an  administrative  complaints  system  as  required  by federal  regulation.  (See  34  CFR  sections  300.151-­300.153.)  Under  34  CFR  section  300.153(a),  a  complainant  can  be either  an  organization  or  an   individual  who  files  a  signed  written  complaint  alleging  any  violation  concerning identification,  evaluation,  placement,  or  the  provision  of  a  FAPE  in  the  least  restrictive  environment  including  the provision  related  services.  For  example,  a  complaint  may  allege  policies  and/or  practices  that  violated  the  child’s  right to  receive  an  individualized  assessment  or  eligibility  and/or  the  provision  of  diabetes  related  health  care  services pursuant  to  the  IEP  process  and/or  any  dispute  arising  out  of  the  IEP  process.
The  required  elements  of  a  complaint  are  set  forth  in  34  CFR  section  300.153(b).  Of  particular  note  is  the  requirement that  a  complaint  alleging  child-­specific  issues  must  contain  the  name  and  address  of  the  residence  of  the  child  (34 CFR  sec.  300.153(b)(4)(a).)  Complaints  of  a  systemic  nature  under  the  IDEA  do  not  need  to  identify  the  individual student  by  name,  although  they  still  must  provide  facts  of  the  alleged  violation  that  are  sufficient  for  the  CDE  or  the district  to  conduct  an  effective  investigation,  and  they  must  be  signed.
B.  Section  504/State  Statutes
As  required  by  the  Uniform  Complaints  Procedure,  CDE’s  Office  of  Equal  Opportunity  will  continue  to  accept  and investigate  complaints  pursuant  to  Section  504  and  Government  Code  section  111  35  which  are  filed  by  an organization  or  a  student  with  a  disability  that  alleges  individual  or  systemic  discrimination  arising  from  an  alleged  non-­ compliant  policy  or  practice  or  the  failure  to  provide  diabetes-­related  health  services,  reasonable  accommodations  or modifications  to  the  student’s  educational  program.  (See  Chapter  5.1,   the  Uniform  Complaint  Procedures  (Sections 4600-­4670)  and  Chapter  5.3,  involving  Nondiscrimination  and  Educational  Equity,  Sections  4900-­4965.)
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VI.  Impartial  Due  Process  Hearings

Parents  who  disagree  with  a  school  district’s  decisions  regarding  their  child’s  eligibility  and/or  placement  under  the IDEA  also  have  a  federal  right  to  request  a  due  process  mediation  and/or  hearing.  (20  USC  sec.  1415.)    Procedural rights  to  an  impartial  hearing  provided  by  the  local  district  if  a  parent  disagrees  with  a  Section  504  team  decision  are also  required  by  federal  law.  (34  CFR  sec.  04.36.)
VII.  Resources

CDE  recommends  that  local  education  agencies  and  special  education  local  plan  areas  (SELPAs)  use  the  following documents  as  guidelines  for  compliance:  Program  Advisory  on  Medication  Administration   (PDF)  (California  State Board  of  Education,  2005);;  Sample  Section  504  Plan  and  Diabetes  Medical  Management  Plan     ,  and  Helping  the Student  with  Diabetes  Succeed  -­  A  Guide  for  School  Personnel     (U.S.  Department  of  Health  and  Human  Services, 2003).
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Checklist:  Who  May  Administer  Insulin  in  California’s  Schools  Pursuant  to  An IEP  or  a  Section  504  Plan

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Business  and  Professions  Code  section  2725(b)(2)  and  the  California  Code  of  Regulations,  Title  5,  section  604 authorize  the  following  types  of  persons  to  administer  insulin  in  California’s  public  schools  pursuant  to  a  Section  504 Plan  or  an  IEP:
1.   self  administration,  with  authorization  of  the  student’s  licensed  health  care  provide  and  parent/guardian;; 2.   school  nurse  or  school  physician  employed  by  the  LEA;; 3.   appropriately  licensed  school  employee  (i.e.,  a  registered  nurse  or  a  licensed  vocational  nurse)  who  is
supervised  by  a  school  physician,  school  nurse,  or  other  appropriate  individual;; 4.   contracted  registered  nurse  or  licensed  vocational  nurse  from  a  private  agency  or  registry,  or  by  contract  with  a
public  health  nurse  employed  by  the  local  county  health  department;; 5.   parent/guardian  who  so  elect;; 6.   parent/guardian  designee,  if  parent/guardian  so  elects,  who  shall  be  a  volunteer  who  is  not  an  employee  of  the
LEA;;  and 7.   unlicensed  voluntary  school  employee  with  appropriate  training,  but  only  in  emergencies  as  defined  by  Section
2727(d)  of  the  Business  and  Professions  Code  (epidemics  or  public  disasters). 3  
When  no  expressly  authorized  person  is  available  under  categories  2-­4,  supra,  federal  law  -­  the  Section  504 Plan  or  the  IEP  -­  must  still  be  honored  and  implemented.  Thus,  a  category  #8  is  available  under  federal  law: 8.   voluntary  school  employee  who  is  unlicensed  but  who  has  been  adequately  trained  to  administer  insulin pursuant  to  the  student’s  treating  physician’s  orders  as  required  by  the  Section  504  Plan  or  the  IEP.
1  Unlicensed  school  personnel  are  authorized  under  state  law  to  assist  students  as  needed  with  insulin  self-­ administration.  Cal.  Ed.  Code  sec.  49423  provides  that  unlicensed  school  personnel  may  assist  with  medication administration.
2  In  such  emergency  cases,  an  unlicensed  voluntary  school  employee  should  have  been  trained  to  at  least  the standards  specified  by  the  American  Diabetes  Association’s  training  slides  entitled  “Diabetes  Care  Tasks  At  School: What  Key  Personnel  Need  to  know:  Insulin  Administration”  (Attachment  A).  Such  a  voluntary  school  employee  should be  regularly,  and  at  least  quarterly,  supervised  by  a  school  nurse,  physician,  or  other  appropriate  individual  under contract  with  the  LEA,  providing  the  training,  and  with  emergency  communication  access  to  the  same  school  nurse  or physician.  Documentation  of  training,  ongoing  supervision,  and   annual  written  verification  of  competency  are  strongly recommended,  and  such  documentation  should  be  annually  submitted  to  the  LEA  employing  the  unlicensed  person  by the  school  nurse  or  physician.
3  In  such  emergency  cases,  an  unlicensed  voluntary  school  employee  should  have  been  trained  to  at  least  the standards  specified  by  the  American  Diabetes  Association’s  training  slides  entitled  Diabetes  Care  Tasks  At  School: What  Key  Personnel  Need  to  Know     .  Such  a  voluntary  school  employee  should  be  regularly,  and  at  least  quarterly, supervised  by  a  school  nurse,  physician,  or  other  appropriate  individual  under  contract  with  the  LEA,  providing  the training,  and  with  emergency  communication  access  to  the  same  school  nurse  or  physician.  Documentation  of  training, ongoing  supervision,  and  annual  written  verification  of  competency  are  strongly  recommended,  and  such documentation  should  be  annually  submitted  to  the  LEA  employing  the  unlicensed  person  by  the  school  nurse  or physician.
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Questions:      Procedural  Safeguards  Referral  Service,  Special  Education  Division  |  800-­926-­0648 Office  of  Equal  Opportunity  |  916-­445-­9174  
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California Department of Education (http://www.cde.ca.gov/ls/he/hn/legaladvisory.asp) Page Generated: 10/11/2014 5:02:46 PM
K.C. Settlement Agreement & Legal Advisory
This settlement agreement and legal advisory spell out the legal responsibilities of a school district when a student requires administration of insulin during the school day.

Acuerdo Conciliatorio de K.C. y Asesoría Legal (Espanõl) (Revised 21-Nov-2013)
NOTE:

Update as of November 6, 2013
On August 12, 2013, the California Supreme Court issued a decision in American Nurses Association v. Tom Torlakson, 57 Cal.4th 570 (2013). In its decision, the Court stated that the "California law does permit trained, unlicensed school personnel to administer prescription medications, including insulin, in accordance with written statements of individual students' treating physicians, with parental consent (Ed. Code §§ 49423, 49423.6; tit. 5 §§ 600-611.)…" Id. at 591. The California Supreme Court’s decision may be found in American Nurses Association v. Torlakson 57 Cal. 4th 570 (PDF). The Supreme Court remanded the case back to the Court of Appeals to resolve any outstanding claims. Once the case is complete, CDE will review whether the Legal Advisory needs to be revised to comply with the courts’ orders.
On December 26, 2008, the Sacramento County Superior Court held that the portions of the Legal Advisory stating that trained unlicensed school personnel may administer insulin in the absence of a licensed nurse violate state law. The case was heard by the Court of Appeals, which upheld the trial court’s decision. 110 Cal. Rptr. 3d 305 (2010). This decision was appealed by the defendants to the California Supreme Court.
EXHIBIT A
LEGAL ADVISORY ON RIGHTS OF STUDENTS WITH DIABETES IN CALIFORNIA’S K-12 PUBLIC SCHOOLS
Pursuant to the recent Settlement Agreement in K.C. et al. v. Jack O’Connell, et al., Case No. C-05-4077 MMC, in the United States District Court for the Northern District of California, the California Department of Education (CDE) has agreed to remind all California school districts and charter schools of the following important legal rights involving students with diabetes who have been determined to be eligible for services under either the Individuals with Disabilities Education Act (IDEA) and related California law or Section 504 of the Rehabilitation Act of 1973 (Section 504) and related California law.
The CDE notes that this is a complex area of the law. Every effort has been made to be clear and concise in providing this advisory.
I. The Applicability of Two Federal Anti-Discrimination Statutes (Section 504 and the ADA) to those Public School Students with Diabetes Who Require Diabetes Health Related Services While Attending K-12 Schools in California
II. California’s Anti-Discrimination Statutes and Students with Diabetes Who Require Diabetes Health Related Services During the Day In Order to Safely Attend K-12 Schools in California
III. The IDEA and Students With Diabetes Who Require Diabetes Health Related Services During the Day In Order to Safely Attend K-12 Schools in California
IV. Who May Administer Insulin in California to Students with Diabetes As a Related Service Under Section 504 and the IDEA
V. Monitoring and Compliance by CDE VI. Impartial Due Process Hearings VII. Resources
Checklist Footnotes

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I. The Applicability of Two Federal Anti-Discrimination Statutes (Section 504

and the ADA) to those Public School Students with Diabetes Who Require

Diabetes Health Related Services While Attending K-12 Schools in

California

Two federal anti-discrimination statutes, Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990 (ADA), together establish rights for eligible students with diabetes in California’s public schools. Together, they serve to protect such students from discrimination based upon their disability including the right to receive a free appropriate public education (FAPE). The two statutory schemes are treated synonymously. (Wong v. Regents of University of California, 192 F.3d 807, 81 6 n. 26.) Hence, in this Legal Advisory, Section 504 will mean both Section 504 as well as the ADA unless otherwise noted.

A. Eligibility
In general, a student will be determined to have a disability under Section 504 if he/she has a mental or physical impairment that substantially limits one or more major life activities, such as eating, breathing, caring for oneself, performing manual tasks, hearing, speaking, walking, and learning. (See 34 CFR sec. 104.4, subds. (j), (k), and (i).) Accordingly, learning is not the only major life activity that must be considered when determining eligibility under Section 504. (Rock Hill (OH) Local Schools, 37 IDELR 222 (OCR 2002).)
The Ninth Circuit Court of Appeals recently determined that diabetes is a “physical impairment” and then addressed whether that impairment substantially limited a major life activity under the facts of that case. (Fraser v. Goodale, 342 F.3d 1032 (9th Cir. 2003).) In finding that the plaintiff had presented evidence that she was substantially limited in eating, the court noted that the plaintiff was required to be vigilant about testing blood glucose levels and adjusting food intake, insulin and physical activity accordingly. Id. at 1040-1041.
Fluctuations in blood glucose levels can impact concentration and comprehension, as well as have significant and potentially life-threatening short and long term health implications. See Helping the Student with Diabetes Succeed - A Guide for School Personnel , U.S. Department of Health and Human Services (2003).
To avoid these fluctuations in blood glucose levels, students with diabetes must be vigilant about balancing food consumption, exercise, and administration of medication. For these reasons, the Office for Civil Rights of the United States Department of Education (OCR) has found that students with diabetes to be “disabled” under Section 504. (See Bement (IL) Community Unit School District #5, 14 EHLR 353:383 (OCR 1989) (holding that a student with diabetes is disabled under Section 504 when she required close monitoring of her diet, behavior, and activities at all times in order for her to be able to attend school); Irvine (CA) Unified Sch. Dist., 19 IDELR 883, 884 (OCR 1 993) (determining that the student with type 1 diabetes was a “disabled person” as defined by the regulation implementing Section 504).

B. 504 Plans
Once a local education agency (LEA) determines that a student is entitled to Section 504 protections, this includes the provision of a free appropriate public education. (34 CFR sec. 104.35.) Services, and accommodations are determined through the 504 planning process, and documented in a 504 plan. Henderson County (NC) Pub. Schs., 34 IDELR 43, 44 (OCR 2000) (voluntary resolution agreement reached to develop Section 504 plan providing for a broad range of diabetes-related aids and services, including training staff to monitor blood glucose, count carbohydrates, manage student’s insulin pump, and establish procedures for the provision of appropriate emergency services); Prince George’s County (MD) Schools, 39 IDELR 103, 104 (OCR 2003) (district required to develop a Section 504 Plan tailored to the individual needs of a student with type 1 diabetes).
Academic modifications may be necessary whether or not the major life activity of “learning” is affected. A student with diabetes may need to have his/her curriculum adapted in a variety of ways such as changes in physical education instruction, in the regular school day schedule (such as breaks required to test for and treat abnormal blood sugar levels), in additional breaks or other time modifications during tests, and in the regular schedule for eating, drinking and toileting. These accommodations should be documented in the 504 plan. Decisions about what health care services a student will receive, including treatment while at school, such as the timing and dosage of insulin to be administered, usually are based on the treating physician’s written orders. (See Cal. Ed. Code section 49423.) In rare circumstances, the 504 team will question the doctor’s treatment plan as being outside standards of care and will seek a second opinion at school district expense. (See section of this advisory discussing IDEA entitled Related Services as Including Management/Administration of Insulin and Other Diabetes Care Tasks for Children With the Disability of OHI below.)

C. Individualized Inquiries Required; Blanket Policies Prohibited

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An LEA may not have a blanket policy or general practice that insulin or glucagon administration, or other diabetesrelated health care services, will only be provided by district personnel at one school in the district or will always require removal from the classroom in order to receive diabetes related health care services. For example, in Christopher S. v. Stanislaus County Office of Educ., 384 F.3d 1 205, 1212 (9th Cir. 2004), the Ninth Circuit Court of Appeals noted that OCR has repeatedly held that blanket policies that preclude individual evaluation of a particular child’s educational and health related services needs violate Section 504. (See also Conejo Valley (CA) Unified Sch. Dist., 20 IDELR (LRP) 1276, 1280 (OCR 1993) (district violated Section 504 by failing to perform an evaluation that was individualized by proposing changes in placement based upon a generalized district policy regarding who could perform injections without regard to student’s individual education needs); Irvine (CA) Unified Sch. Dist., 23 IDELR 1144, 1146 (OCR 1995) (district’s “unwritten policy” prohibiting blood glucose testing in classroom violated 34 CFR sec. 104.35(c )(3) requiring that a team of persons give careful consideration to all of the information available and makes determinations based upon the individual needs of the disabled student).) See further discussion below in the section of this advisory discussing IDEA entitled Related Services May Include Management/Administration of Insulin and Other Diabetes Care Tasks for Children With the Disability of OHI.

In addition, a school or district may not require the parent or guardian to waive any rights or agree to any particular placement or related services as a condition of administering medications or assisting a student in the administration of medication at school. (Berlin Brothersvalley (PA.) School Dist., EHLR 353:124 (OCR 1988) (district policy of giving school officials discretion in whether to administer needed medication and conditioning the provision of services required by Section 504 or IDEA on parents signing a waiver of liability is prohibited). See further discussion below in the section of this advisory discussing IDEA entitled School Placement Decisions.

D. FAPE Under Section 504
Pursuant to 34 CFR section 104.33, school districts must provide a free appropriate public education (FAPE) to all students with disabilities in public elementary and secondary schools. Under Section 504, “appropriate education” means “the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to procedures that satisfy the requirements of 34 CFR sections 104.34, 104.35, and 104.36.” (34 CFR section 104.33 (b)(emphasis added).)
The OCR has applied the FAPE obligation broadly to ensure nondiscrimination by providing individual accommodations that provide each disabled student with a FAPE. The requirement to provide FAPE under Section 504 has been applied in the context of the administration of medication in general and diabetes-based related services in particular. (See Conejo Valley (CA) Unified Sch. Dist., supra; Irvine (CA) Unified Sch. Dist., supra; and Prince George’s County (MD) Schools, supra.) See also, Chapter 4 of Compliance With The Americans With Disabilities Act: A Self-Evaluation Guide for Public Elementary and Secondary Schools (last visited March 30, 2007) Office for Civil Rights Department of Education, United States of America (1995). Unlike the requirement to provide auxiliary aids in contexts other than FAPE ... the obligation to provide related aids and services necessary to the provision of FAPE is not subject to the limitations regarding undue financial and administrative burdens or fundamental alteration of the program.” Id. at 73.
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II. California’s Anti-Discrimination Statutes and Students with Diabetes Who Require Diabetes Health Related Services During the Day In Order to Safely Attend K-12 Schools in California

California’s anti-discrimination statutes prohibit discrimination on the basis of disability under any program or activity funded directly by the State. (Cal. Gov. Code sec. 11135(a).) “Disability” means any mental or physical disability as defined by Government Code section 12926. (Cal. Gov. Code sec. 11135(d)(1).) “Physical disability” is defined in Government Code section 12926(k)(1) and (2). It affords broader coverage than Section 504 because it requires a “limitation” rather than a “substantial limitation” of a major life activity. (Cal. Gov. Code secs. 12926(k)(1)(B); 12926.1(c), (d)(2); see generally Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1022-1032.)
In addition, whether a physical disability limits a major life activity under California’s statutory scheme must “be determined without regard to mitigating measures such as medications....” (Cal. Gov. Code sec. 12926(k)(1)(B)(i).) This provision has made the Supreme Court’s holding in Sutton v. United Airlines, 527 U.S. 471 (1999), which required consideration of such mitigating measures inapplicable under California law. Furthermore, section 1 2926(k)(2) of the Government Code provides that all students with diabetes who require special education or related services (i.e., healthrelated services) are protected by state anti-discrimination laws.
Government Code section 111 35 incorporates the rights under the ADA and thus Section 504. (See Gov. Code sec. 11135(b) and 42 USC sec. 1 2133; 28 CFR sec. 35.103(a)). Therefore, the discussion above regarding Section 504 and students with diabetes is applicable under the broad definitions of physical disability in California.
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III. The IDEA and Students With Diabetes Who Require Diabetes Health

Related Services During the Day In Order to Safely Attend K-12 Schools in

California

The primary purpose of the IDEA is “to ensure that all children with disabilities have available to them a free appropriate public education (FAPE) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.” (20 USC secs. 1400(d)(1)(A), 1401 (a).) California law sets the same standard for educating individuals with exceptional needs as the reauthorized IDEA. (Cal. Ed. Code secs. 56000, 56363(a).)

A. Eligibility
The IDEA requires LEAs to conduct “child find” activities to ensure that children with diabetes are identified, located, and evaluated. (20 USC sec. 141 2(a)(3).) Under the IDEA, a child with diabetes is evaluated for eligibility under one of the 13 categories of disability, including the disability of “other health impaired” (OHI). (20 USC sec. 1401(3)(A); 34 CFR sec. 300.8; Cal. Ed. Code sec. 56026; Cal. Code Regs., Tit. 5, sec. 3030.) The reauthorized IDEA defines “child with a disability” in the following way:
The term “child with a disability” means a child -
(i) with ... other health impairments .... and (ii) who, by reason thereof, needs special education and related services. (20 USC sec. 1401(3)(A).)
The term “other health impairments” (OHI) is further defined in the recently promulgated regulations as follows: (c ) Definitions of disability terms. The terms used in this definition of a child with a disability are defined as follows:
(9) Other health impairment means having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the education environment, that -
(i) is due to chronic or acute health problems such as diabetes and (ii) adversely affects a child’s educational performance.
Hence, an individualized education program (IEP) team can determine that a child with diabetes is eligible under the disability of OHI because high or low blood glucose levels can cause symptoms giving him/her limited strength, limited alertness, and creating chronic or acute health problems that adversely affect the student’s educational performance. (See Helping the Student with Diabetes Succeed - A Guide for School Personnel , U.S. Department of Health and Human Services, 2003). Fluctuations in blood glucose levels may have an adverse effect on education in a variety of ways, including the effect on concentration, comprehension, and energy levels. It should be noted that the IEP team “must make an individual determination as to whether, notwithstanding the child’s progress in a course or grade, he or she needs or continues to need special education and related services.” (34 CFR sec. 300.101(c).)

B. Special Education Defined
The IDEA defines “special education” as meaning “specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability, including -
(A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education.” (20 USC section 1401 (29).)
"Specially designed instruction” means “adapting, as appropriate to the needs of the eligible child under this part, the content, methodology, or delivery or instruction (i) to address the unique needs of the child that result from the child’s disability and (ii) to ensure access of the child to the general curriculum, so that the child can meet the educational standards within the jurisdiction of the public agency that apply to all children.” (34 CFR sec. 300.39(b)(3).)
For example, an IEP team could determine that a child who meets the criteria for eligibility under the category of OHI based upon chronic or acute health problems arising from diabetes would need to have his/her curriculum adapted in ways such as changes in the physical education instruction, in the regular school day schedule (such as various breaks required by abnormal blood sugar levels involving medical treatment), in allowed time for taking tests, in the regular schedule for eating, drinking and toileting, in assignment due dates, and in various other academic adaptations.

C. Individualized Education Program
Determinations about eligibility, special education and related services under the IDEA and relevant state statutes are made generally by the child’s Individualized Education Program (IEP) team. (See generally Cal. Ed. Code secs. 5634056347.) Such determinations are always based upon the unique needs of the individual child.

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The term “individualized education program” (IEP) means a written statement for each child with a disability that is developed, reviewed, and revised in accordance with 20 USC section 141 4(d). As a part of each IEP, there must be “a statement of the special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable, to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child....” (20 USC sec. 1414(d)(1)(A)(i)(IV)) in school and in extracurricular and other nonacademic activities. The 2006 implementing regulations are located at 34 CFR sections 300.320 through 300.328.

D. Related Services May Include Management/Administration of Insulin and Other Diabetes Care Tasks for Children With the Disability of OHI
In general, the reauthorized IDEA includes “school nurse services” as a “related service.” (20 USC sec. 1401 (26).) The statutory definition was expanded in the regulations to include school health services. (34 CFR sec. 300.34.) California’s definition of designated instruction and services/related services is located in Education Code section 56363 and is synonymous with related services in the reauthorized IDEA in 20 USC section 1401 (26). California’s designated instruction services thus do not deviate from the federal related services.
If a child needs both special education and health services, then, as determined by the child’s IEP team, school nurse/health services should be made available to a child with the eligible disability of OHI as documented in the student’s IEP. Services related to an OHI-eligible child’s diabetes health care needs at school, including those involving the management and administration of insulin, are covered under the IDEA as nursing and health services rather than excluded from coverage as medical services requiring a physician to provide them. (See Clovis Unified School Dist. v. Office of Administrative Hearings, 903 F.3d 635, 641-643 (9th cir. 1990) discussing and applying Irving Independent School District v. Tatro, 468 u.s. 883 (1984).)
In California, by statute both a written statement from the child’s physician as well as a written statement from the child’s parent are required before either a school nurse or other designated school personnel may assist the child with the administration of medication. (Cal. Ed. Code sec. 49423.) Hence, decisions about what health care services a student will receive, including treatment while at school, such as the timing and dosage of insulin to be administered usually are based on the treating physician’s written orders. (See Cal. Ed. Code sec. 49423.) In rare circumstances the IEP team will question the doctor’s treatment plan as being outside the standard of care and then request clarification from the treating physician or a second opinion with the consent of the parent, at the district’s expense. (See 34 CFR sec. 300.300; Shelby S. ex rel. Kathleen T. v Conroe Independent School Dist., 454 F.3d 450, 454-455 (5th Cir. 2006) (school district authorized to compel medical examination over parent objection and necessity demonstrated).) In addition, the IEP team is responsible for determining educational modifications. (See, Special Education Defined, above).

E. Individualized Inquiries Required; Blanket Policies Prohibited
As with Section 504 determinations discussed above in Part l.C., decisions by IEP teams must be based upon individualized inquiries. The IDEA and its implementing regulations are premised upon the fact that each child is “unique” (20 USC sec. 1400(d)(1)(A)) and must receive an “individualized education program” (20 USC sec. 1401(14); see generally Porter v. Board of Trustees of Manhattan Beach Unified School Dist., 307 F.3d 1064, 1066 (9th Cir. 2002) quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 188-189 (1982) (“right to public education for students with disabilities ‘consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child “to benefit” from the instruction”.) As a consequence, decisions about a specific child’s eligibility for services under the IDEA must not be based upon the generalized or “blanket” policies of a local education agency rather than the unique needs of the individual child. (See Part l.C., supra.) Therefore, policies that restrict the availability of health related services across-the-board would be out of compliance with the mandate to individualize decisions about special education and related services needs.

F. School Placement Decisions
School placement decisions may not be based upon the unwillingness of a district to provide needed related services to a child with OHI-diabetes disability at the school that the child would otherwise attend. A district may not require the parent to waive any rights, hold the district harmless, or agree to any particular placement or related services as a condition of administering medication or assisting a student in the administration of medication at school. (See Comment to IDEA regulations at p. 46587 (federal register) involving 34 CFR sec. 300.116(c): “Unless the IEP of a child with a disability requires some other arrangement, the child is educated in the school that he or she would attend if nondisabled Public agencies must not make placement decisions based on a public agency’s needs or available resources, including budgetary considerations and the ability of the public agency to hire and recruit qualified staff;” see also Berlin Brothers Valley (PA.) School Dist., EHLR 353:124 (OCR 1988) (blanket waiver of liability as condition to provision of medical services prohibited). For example, a district may not have a blanket policy or general practice that insulin or glucagon administration or other diabetes-related health care service are only going to be provided by district personnel at one school in the district, or that a child will always need to be removed from the classroom in order to receive diabetes related health care services. An IEP developed in the legally-required manner, which takes into account all of the relevant medical and education factors under the IDEA for each disabled child, is the only way to ensure that such a student receives an individualized determination of what constitutes FAPE under the IDEA and relevant state statutes.

G. Administrative Procedures; Financial Burden Not a Defense

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A parent of a child with the disability of OHI or an organization can file an administrative complaint with the CDE alleging that a school district is violating the IDEA or relevant state statutes by failing to identify, evaluate, or provide a FAPE to a student with diabetes or a group of students with diabetes, including challenging a district policy or practice that restricts the provision of related health services to students eligible for such services under the IDEA. (34 CFR secs. 300.151300.153; Calif. Code Regs., Tit. 5, secs. 4600-4671.)

In the alternative, a parent who disagrees with the IEP decision regarding identification, evaluation, or the provision of FAPE and related services can file for an impartial due process hearing with the Office of Administrative Hearings. (20 USC sec. 1415 (e)-(i).) An OAH judge can order that the applicable required related school health services be provided by the district, including the administration of insulin during the school day. (20 USC sec. 1415(f)(3)(E).) Financial burden is not a valid defense available to the LEA under the Garret F. case. (Cedar Rapids v. Garret F., 526 U.S. 66, 75, fn. 6, 7879 (1999) (district required to fund related school health services under 34 CFR sec. 300.13(a) where necessary in order to provide student with meaningful access to public school).)

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IV. Who May Administer Insulin in California to Students with Diabetes As a Related Service Under Section 504 and the IDEA

A. California Law
It is the position of the CDE that the Business and Professions Code section 2725(b)(2) and the California Code of Regulations, Title 5, section 604 authorize the following types of persons to administer insulin in California’s public schools pursuant to a Section 504 Plan or an IEP:
1. self administration, with authorization of the student’s licensed health care provide and parent/guardian;1
2. school nurse or school physician employed by the LEA;
3. appropriately licensed school employee (i.e., a registered nurse or a licensed vocational nurse) who is supervised by a school physician, school nurse, or other appropriate individual;
4. contracted registered nurse or licensed vocational nurse from a private agency or registry, or by contract with a public health nurse employed by the local county health department;
5. parent/guardian who so elects;
6. parent/guardian designee, if parent(/guardian so elects, who shall be a volunteer who is not an employee of the LEA; and
7. unlicensed voluntary school employee with appropriate training, but only in emergencies as defined by Section 2727(d) of the Business and Professions Code (epidemics or public disasters).2

B. Federal Law
As noted above in Parts I and III, federal law under Section 504 and the IDEA provides that the administration of insulin can be determined to be a related service that must be provided to a student pursuant to a Section 504 Plan or an IEP in order to ensure FAPE. CDE has recognized in the regulations which implement Education Code section 49423 regarding the administration of medication to students during the school day that they did not affect “in any way” either the content or implementation of a student’s Section 504 Plan or IEP. (Calif. Code Regs., Tit. 5, section 610(d).) Further, CDE’s Program Advisory on Medication Administration (PDF) (required by Section 611 of the regulations) recognized that
students’ rights under Section 504 and the IDEA are distinct from state legal requirements.

C. Reconciliation of State and Federal Law
The difficult issue in this area is reconciling state and federal requirements. Clearly the first set of personnel who are authorized to administer insulin pursuant to a Section 504 Plan or an IEP are those persons who are expressly so authorized under California law, as set forth in Part IV.A, supra. The question is what should occur when no expressly authorized school personnel are available.
In CDE’s view, the list cannot be taken as exhaustive because LEAs must also meet federal requirements - even if the personnel expressly authorized by California are not available. In practical terms, this means that the methodology followed by some LEAs of training unlicensed school employees to administer insulin during the school day to a student whose Section 504 Plan or IEP so requires it is a valid practice pursuant to federal law. If the LEA determines that insulin administration by the types of persons listed in categories 2-4 are not available or feasible, then unlicensed school employees with appropriate training would be authorized under federal law to administer insulin in accordance with the student’s Section 504 Plan or IEP. What is not valid is for an LEA to adopt a general policy or practice that a Section 504 Plan or IEP need not be developed or followed because the LEA is not able to comply with the student’s federal rights based upon the express provisions of state law.

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When federal and state laws are reconciled, it is clear that it is unlawful for an LEA to have a general practice or policy that asserts that it need not comply with the IDEA or Section 504 rights of a student to have insulin administered at school simply because a licensed professional is unavailable. In such situations, federal rights take precedence over strict adherence to state law so that the educational and health needs of the student protected by the Section 504 Plan or IEP are met.

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V. Monitoring and Compliance by CDE

A. IDEA
Under the IDEA, the CDE monitors compliance with federal and state special education statutes and regulations with its Quality Assurance Process (QAP). That process is characterized by the gathering and evaluating of data in order to identify districts and areas within districts to aid in the inquiry, evaluation, and review of compliance issues. This enables the LEA and the CDE to develop corrective action plans, program improvement goals, and provide technical assistance to improve services to special education students throughout California.
Pursuant to the K.C. Settlement Agreement, the CDE has agreed to modify its QAP monitoring instruments and process to include special evaluation items related to students with the disability of OHI with chronic or acute health problems arising from diabetes.
The CDE also assures compliance under the IDEA by maintaining an administrative complaints system as required by federal regulation. (See 34 CFR sections 300.151-300.153.) Under 34 CFR section 300.153(a), a complainant can be either an organization or an individual who files a signed written complaint alleging any violation concerning identification, evaluation, placement, or the provision of a FAPE in the least restrictive environment including the provision related services. For example, a complaint may allege policies and/or practices that violated the child’s right to receive an individualized assessment or eligibility and/or the provision of diabetes related health care services pursuant to the IEP process and/or any dispute arising out of the IEP process.
The required elements of a complaint are set forth in 34 CFR section 300.153(b). Of particular note is the requirement that a complaint alleging child-specific issues must contain the name and address of the residence of the child (34 CFR sec. 300.153(b)(4)(a).) Complaints of a systemic nature under the IDEA do not need to identify the individual student by name, although they still must provide facts of the alleged violation that are sufficient for the CDE or the district to conduct an effective investigation, and they must be signed.
B. Section 504/State Statutes
As required by the Uniform Complaints Procedure, CDE’s Office of Equal Opportunity will continue to accept and investigate complaints pursuant to Section 504 and Government Code section 111 35 which are filed by an organization or a student with a disability that alleges individual or systemic discrimination arising from an alleged non-compliant policy or practice or the failure to provide diabetes-related health services, reasonable accommodations or modifications to the student’s educational program. (See Chapter 5.1, the Uniform Complaint Procedures (Sections 4600-4670) and Chapter 5.3, involving Nondiscrimination and Educational Equity, Sections 4900-4965.)
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VI. Impartial Due Process Hearings

Parents who disagree with a school district’s decisions regarding their child’s eligibility and/or placement under the IDEA also have a federal right to request a due process mediation and/or hearing. (20 USC sec. 1415.) Procedural rights to an impartial hearing provided by the local district if a parent disagrees with a Section 504 team decision are also required by federal law. (34 CFR sec. 04.36.)

VII. Resources

CDE recommends that local education agencies and special education local plan areas (SELPAs) use the following documents as guidelines for compliance: Program Advisory on Medication Administration (PDF) (California State Board of Education, 2005); Sample Section 504 Plan and Diabetes Medical Management Plan , and Helping the Student with Diabetes Succeed - A Guide for School Personnel (U.S. Department of Health and Human Services, 2003).
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Checklist: Who May Administer Insulin in California’s Schools Pursuant to

An IEP or a Section 504 Plan

Business and Professions Code section 2725(b)(2) and the California Code of Regulations, Title 5, section 604 authorize the following types of persons to administer insulin in California’s public schools pursuant to a Section 504 Plan or an IEP:

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1. self administration, with authorization of the student’s licensed health care provide and parent/guardian;
2. school nurse or school physician employed by the LEA;
3. appropriately licensed school employee (i.e., a registered nurse or a licensed vocational nurse) who is supervised by a school physician, school nurse, or other appropriate individual;
4. contracted registered nurse or licensed vocational nurse from a private agency or registry, or by contract with a public health nurse employed by the local county health department;
5. parent/guardian who so elect;
6. parent/guardian designee, if parent/guardian so elects, who shall be a volunteer who is not an employee of the LEA; and
7. unlicensed voluntary school employee with appropriate training, but only in emergencies as defined by Section 2727(d) of the Business and Professions Code (epidemics or public disasters).3

When no expressly authorized person is available under categories 2-4, supra, federal law - the Section 504 Plan or the IEP - must still be honored and implemented. Thus, a category #8 is available under federal law:
8. voluntary school employee who is unlicensed but who has been adequately trained to administer insulin pursuant to the student’s treating physician’s orders as required by the Section 504 Plan or the IEP.

1 Unlicensed school personnel are authorized under state law to assist students as needed with insulin selfadministration. Cal. Ed. Code sec. 49423 provides that unlicensed school personnel may assist with medication administration.
2 In such emergency cases, an unlicensed voluntary school employee should have been trained to at least the standards specified by the American Diabetes Association’s training slides entitled “Diabetes Care Tasks At School: What Key Personnel Need to know: Insulin Administration” (Attachment A). Such a voluntary school employee should be regularly, and at least quarterly, supervised by a school nurse, physician, or other appropriate individual under contract with the LEA, providing the training, and with emergency communication access to the same school nurse or physician. Documentation of training, ongoing supervision, and annual written verification of competency are strongly recommended, and such documentation should be annually submitted to the LEA employing the unlicensed person by the school nurse or physician.

3 In such emergency cases, an unlicensed voluntary school employee should have been trained to at least the standards specified by the American Diabetes Association’s training slides entitled Diabetes Care Tasks At School: What Key Personnel Need to Know . Such a voluntary school employee should be regularly, and at least quarterly, supervised by a school nurse, physician, or other appropriate individual under contract with the LEA, providing the training, and with emergency communication access to the same school nurse or physician. Documentation of training, ongoing supervision, and annual written verification of competency are strongly recommended, and such documentation should be annually submitted to the LEA employing the unlicensed person by the school nurse or physician.

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Questions: Procedural Safeguards Referral Service, Special Education Division | 800-926-0648 Office of Equal Opportunity | 916-445-9174
Last Reviewed: Thursday, November 21, 2013

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I. The Applicability of Two Federal Anti-Discrimination Statutes (Section 504

and the ADA) to those Public School Students with Diabetes Who Require

Diabetes Health Related Services While Attending K-12 Schools in

California

Two federal anti-discrimination statutes, Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990 (ADA), together establish rights for eligible students with diabetes in California’s public schools. Together, they serve to protect such students from discrimination based upon their disability including the right to receive a free appropriate public education (FAPE). The two statutory schemes are treated synonymously. (Wong v. Regents of University of California, 192 F.3d 807, 81 6 n. 26.) Hence, in this Legal Advisory, Section 504 will mean both Section 504 as well as the ADA unless otherwise noted.

A. Eligibility
In general, a student will be determined to have a disability under Section 504 if he/she has a mental or physical impairment that substantially limits one or more major life activities, such as eating, breathing, caring for oneself, performing manual tasks, hearing, speaking, walking, and learning. (See 34 CFR sec. 104.4, subds. (j), (k), and (i).) Accordingly, learning is not the only major life activity that must be considered when determining eligibility under Section 504. (Rock Hill (OH) Local Schools, 37 IDELR 222 (OCR 2002).)
The Ninth Circuit Court of Appeals recently determined that diabetes is a “physical impairment” and then addressed whether that impairment substantially limited a major life activity under the facts of that case. (Fraser v. Goodale, 342 F.3d 1032 (9th Cir. 2003).) In finding that the plaintiff had presented evidence that she was substantially limited in eating, the court noted that the plaintiff was required to be vigilant about testing blood glucose levels and adjusting food intake, insulin and physical activity accordingly. Id. at 1040-1041.
Fluctuations in blood glucose levels can impact concentration and comprehension, as well as have significant and potentially life-threatening short and long term health implications. See Helping the Student with Diabetes Succeed - A Guide for School Personnel , U.S. Department of Health and Human Services (2003).
To avoid these fluctuations in blood glucose levels, students with diabetes must be vigilant about balancing food consumption, exercise, and administration of medication. For these reasons, the Office for Civil Rights of the United States Department of Education (OCR) has found that students with diabetes to be “disabled” under Section 504. (See Bement (IL) Community Unit School District #5, 14 EHLR 353:383 (OCR 1989) (holding that a student with diabetes is disabled under Section 504 when she required close monitoring of her diet, behavior, and activities at all times in order for her to be able to attend school); Irvine (CA) Unified Sch. Dist., 19 IDELR 883, 884 (OCR 1 993) (determining that the student with type 1 diabetes was a “disabled person” as defined by the regulation implementing Section 504).

B. 504 Plans
Once a local education agency (LEA) determines that a student is entitled to Section 504 protections, this includes the provision of a free appropriate public education. (34 CFR sec. 104.35.) Services, and accommodations are determined through the 504 planning process, and documented in a 504 plan. Henderson County (NC) Pub. Schs., 34 IDELR 43, 44 (OCR 2000) (voluntary resolution agreement reached to develop Section 504 plan providing for a broad range of diabetes-related aids and services, including training staff to monitor blood glucose, count carbohydrates, manage student’s insulin pump, and establish procedures for the provision of appropriate emergency services); Prince George’s County (MD) Schools, 39 IDELR 103, 104 (OCR 2003) (district required to develop a Section 504 Plan tailored to the individual needs of a student with type 1 diabetes).
Academic modifications may be necessary whether or not the major life activity of “learning” is affected. A student with diabetes may need to have his/her curriculum adapted in a variety of ways such as changes in physical education instruction, in the regular school day schedule (such as breaks required to test for and treat abnormal blood sugar levels), in additional breaks or other time modifications during tests, and in the regular schedule for eating, drinking and toileting. These accommodations should be documented in the 504 plan. Decisions about what health care services a student will receive, including treatment while at school, such as the timing and dosage of insulin to be administered, usually are based on the treating physician’s written orders. (See Cal. Ed. Code section 49423.) In rare circumstances, the 504 team will question the doctor’s treatment plan as being outside standards of care and will seek a second opinion at school district expense. (See section of this advisory discussing IDEA entitled Related Services as Including Management/Administration of Insulin and Other Diabetes Care Tasks for Children With the Disability of OHI below.)

C. Individualized Inquiries Required; Blanket Policies Prohibited

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An LEA may not have a blanket policy or general practice that insulin or glucagon administration, or other diabetesrelated health care services, will only be provided by district personnel at one school in the district or will always require removal from the classroom in order to receive diabetes related health care services. For example, in Christopher S. v. Stanislaus County Office of Educ., 384 F.3d 1 205, 1212 (9th Cir. 2004), the Ninth Circuit Court of Appeals noted that OCR has repeatedly held that blanket policies that preclude individual evaluation of a particular child’s educational and health related services needs violate Section 504. (See also Conejo Valley (CA) Unified Sch. Dist., 20 IDELR (LRP) 1276, 1280 (OCR 1993) (district violated Section 504 by failing to perform an evaluation that was individualized by proposing changes in placement based upon a generalized district policy regarding who could perform injections without regard to student’s individual education needs); Irvine (CA) Unified Sch. Dist., 23 IDELR 1144, 1146 (OCR 1995) (district’s “unwritten policy” prohibiting blood glucose testing in classroom violated 34 CFR sec. 104.35(c )(3) requiring that a team of persons give careful consideration to all of the information available and makes determinations based upon the individual needs of the disabled student).) See further discussion below in the section of this advisory discussing IDEA entitled Related Services May Include Management/Administration of Insulin and Other Diabetes Care Tasks for Children With the Disability of OHI.

In addition, a school or district may not require the parent or guardian to waive any rights or agree to any particular placement or related services as a condition of administering medications or assisting a student in the administration of medication at school. (Berlin Brothersvalley (PA.) School Dist., EHLR 353:124 (OCR 1988) (district policy of giving school officials discretion in whether to administer needed medication and conditioning the provision of services required by Section 504 or IDEA on parents signing a waiver of liability is prohibited). See further discussion below in the section of this advisory discussing IDEA entitled School Placement Decisions.

D. FAPE Under Section 504
Pursuant to 34 CFR section 104.33, school districts must provide a free appropriate public education (FAPE) to all students with disabilities in public elementary and secondary schools. Under Section 504, “appropriate education” means “the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to procedures that satisfy the requirements of 34 CFR sections 104.34, 104.35, and 104.36.” (34 CFR section 104.33 (b)(emphasis added).)
The OCR has applied the FAPE obligation broadly to ensure nondiscrimination by providing individual accommodations that provide each disabled student with a FAPE. The requirement to provide FAPE under Section 504 has been applied in the context of the administration of medication in general and diabetes-based related services in particular. (See Conejo Valley (CA) Unified Sch. Dist., supra; Irvine (CA) Unified Sch. Dist., supra; and Prince George’s County (MD) Schools, supra.) See also, Chapter 4 of Compliance With The Americans With Disabilities Act: A Self-Evaluation Guide for Public Elementary and Secondary Schools (last visited March 30, 2007) Office for Civil Rights Department of Education, United States of America (1995). Unlike the requirement to provide auxiliary aids in contexts other than FAPE ... the obligation to provide related aids and services necessary to the provision of FAPE is not subject to the limitations regarding undue financial and administrative burdens or fundamental alteration of the program.” Id. at 73.
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II. California’s Anti-Discrimination Statutes and Students with Diabetes Who Require Diabetes Health Related Services During the Day In Order to Safely Attend K-12 Schools in California

California’s anti-discrimination statutes prohibit discrimination on the basis of disability under any program or activity funded directly by the State. (Cal. Gov. Code sec. 11135(a).) “Disability” means any mental or physical disability as defined by Government Code section 12926. (Cal. Gov. Code sec. 11135(d)(1).) “Physical disability” is defined in Government Code section 12926(k)(1) and (2). It affords broader coverage than Section 504 because it requires a “limitation” rather than a “substantial limitation” of a major life activity. (Cal. Gov. Code secs. 12926(k)(1)(B); 12926.1(c), (d)(2); see generally Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1022-1032.)
In addition, whether a physical disability limits a major life activity under California’s statutory scheme must “be determined without regard to mitigating measures such as medications....” (Cal. Gov. Code sec. 12926(k)(1)(B)(i).) This provision has made the Supreme Court’s holding in Sutton v. United Airlines, 527 U.S. 471 (1999), which required consideration of such mitigating measures inapplicable under California law. Furthermore, section 1 2926(k)(2) of the Government Code provides that all students with diabetes who require special education or related services (i.e., healthrelated services) are protected by state anti-discrimination laws.
Government Code section 111 35 incorporates the rights under the ADA and thus Section 504. (See Gov. Code sec. 11135(b) and 42 USC sec. 1 2133; 28 CFR sec. 35.103(a)). Therefore, the discussion above regarding Section 504 and students with diabetes is applicable under the broad definitions of physical disability in California.
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III. The IDEA and Students With Diabetes Who Require Diabetes Health

Related Services During the Day In Order to Safely Attend K-12 Schools in

California

The primary purpose of the IDEA is “to ensure that all children with disabilities have available to them a free appropriate public education (FAPE) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.” (20 USC secs. 1400(d)(1)(A), 1401 (a).) California law sets the same standard for educating individuals with exceptional needs as the reauthorized IDEA. (Cal. Ed. Code secs. 56000, 56363(a).)

A. Eligibility
The IDEA requires LEAs to conduct “child find” activities to ensure that children with diabetes are identified, located, and evaluated. (20 USC sec. 141 2(a)(3).) Under the IDEA, a child with diabetes is evaluated for eligibility under one of the 13 categories of disability, including the disability of “other health impaired” (OHI). (20 USC sec. 1401(3)(A); 34 CFR sec. 300.8; Cal. Ed. Code sec. 56026; Cal. Code Regs., Tit. 5, sec. 3030.) The reauthorized IDEA defines “child with a disability” in the following way:
The term “child with a disability” means a child -
(i) with ... other health impairments .... and (ii) who, by reason thereof, needs special education and related services. (20 USC sec. 1401(3)(A).)
The term “other health impairments” (OHI) is further defined in the recently promulgated regulations as follows: (c ) Definitions of disability terms. The terms used in this definition of a child with a disability are defined as follows:
(9) Other health impairment means having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the education environment, that -
(i) is due to chronic or acute health problems such as diabetes and (ii) adversely affects a child’s educational performance.
Hence, an individualized education program (IEP) team can determine that a child with diabetes is eligible under the disability of OHI because high or low blood glucose levels can cause symptoms giving him/her limited strength, limited alertness, and creating chronic or acute health problems that adversely affect the student’s educational performance. (See Helping the Student with Diabetes Succeed - A Guide for School Personnel , U.S. Department of Health and Human Services, 2003). Fluctuations in blood glucose levels may have an adverse effect on education in a variety of ways, including the effect on concentration, comprehension, and energy levels. It should be noted that the IEP team “must make an individual determination as to whether, notwithstanding the child’s progress in a course or grade, he or she needs or continues to need special education and related services.” (34 CFR sec. 300.101(c).)

B. Special Education Defined
The IDEA defines “special education” as meaning “specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability, including -
(A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education.” (20 USC section 1401 (29).)
"Specially designed instruction” means “adapting, as appropriate to the needs of the eligible child under this part, the content, methodology, or delivery or instruction (i) to address the unique needs of the child that result from the child’s disability and (ii) to ensure access of the child to the general curriculum, so that the child can meet the educational standards within the jurisdiction of the public agency that apply to all children.” (34 CFR sec. 300.39(b)(3).)
For example, an IEP team could determine that a child who meets the criteria for eligibility under the category of OHI based upon chronic or acute health problems arising from diabetes would need to have his/her curriculum adapted in ways such as changes in the physical education instruction, in the regular school day schedule (such as various breaks required by abnormal blood sugar levels involving medical treatment), in allowed time for taking tests, in the regular schedule for eating, drinking and toileting, in assignment due dates, and in various other academic adaptations.

C. Individualized Education Program
Determinations about eligibility, special education and related services under the IDEA and relevant state statutes are made generally by the child’s Individualized Education Program (IEP) team. (See generally Cal. Ed. Code secs. 5634056347.) Such determinations are always based upon the unique needs of the individual child.

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When federal and state laws are reconciled, it is clear that it is unlawful for an LEA to have a general practice or policy that asserts that it need not comply with the IDEA or Section 504 rights of a student to have insulin administered at school simply because a licensed professional is unavailable. In such situations, federal rights take precedence over strict adherence to state law so that the educational and health needs of the student protected by the Section 504 Plan or IEP are met.

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V. Monitoring and Compliance by CDE

A. IDEA
Under the IDEA, the CDE monitors compliance with federal and state special education statutes and regulations with its Quality Assurance Process (QAP). That process is characterized by the gathering and evaluating of data in order to identify districts and areas within districts to aid in the inquiry, evaluation, and review of compliance issues. This enables the LEA and the CDE to develop corrective action plans, program improvement goals, and provide technical assistance to improve services to special education students throughout California.
Pursuant to the K.C. Settlement Agreement, the CDE has agreed to modify its QAP monitoring instruments and process to include special evaluation items related to students with the disability of OHI with chronic or acute health problems arising from diabetes.
The CDE also assures compliance under the IDEA by maintaining an administrative complaints system as required by federal regulation. (See 34 CFR sections 300.151-300.153.) Under 34 CFR section 300.153(a), a complainant can be either an organization or an individual who files a signed written complaint alleging any violation concerning identification, evaluation, placement, or the provision of a FAPE in the least restrictive environment including the provision related services. For example, a complaint may allege policies and/or practices that violated the child’s right to receive an individualized assessment or eligibility and/or the provision of diabetes related health care services pursuant to the IEP process and/or any dispute arising out of the IEP process.
The required elements of a complaint are set forth in 34 CFR section 300.153(b). Of particular note is the requirement that a complaint alleging child-specific issues must contain the name and address of the residence of the child (34 CFR sec. 300.153(b)(4)(a).) Complaints of a systemic nature under the IDEA do not need to identify the individual student by name, although they still must provide facts of the alleged violation that are sufficient for the CDE or the district to conduct an effective investigation, and they must be signed.
B. Section 504/State Statutes
As required by the Uniform Complaints Procedure, CDE’s Office of Equal Opportunity will continue to accept and investigate complaints pursuant to Section 504 and Government Code section 111 35 which are filed by an organization or a student with a disability that alleges individual or systemic discrimination arising from an alleged non-compliant policy or practice or the failure to provide diabetes-related health services, reasonable accommodations or modifications to the student’s educational program. (See Chapter 5.1, the Uniform Complaint Procedures (Sections 4600-4670) and Chapter 5.3, involving Nondiscrimination and Educational Equity, Sections 4900-4965.)
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VI. Impartial Due Process Hearings

Parents who disagree with a school district’s decisions regarding their child’s eligibility and/or placement under the IDEA also have a federal right to request a due process mediation and/or hearing. (20 USC sec. 1415.) Procedural rights to an impartial hearing provided by the local district if a parent disagrees with a Section 504 team decision are also required by federal law. (34 CFR sec. 04.36.)

VII. Resources

CDE recommends that local education agencies and special education local plan areas (SELPAs) use the following documents as guidelines for compliance: Program Advisory on Medication Administration (PDF) (California State Board of Education, 2005); Sample Section 504 Plan and Diabetes Medical Management Plan , and Helping the Student with Diabetes Succeed - A Guide for School Personnel (U.S. Department of Health and Human Services, 2003).
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Checklist: Who May Administer Insulin in California’s Schools Pursuant to

An IEP or a Section 504 Plan

Business and Professions Code section 2725(b)(2) and the California Code of Regulations, Title 5, section 604 authorize the following types of persons to administer insulin in California’s public schools pursuant to a Section 504 Plan or an IEP:

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1. self administration, with authorization of the student’s licensed health care provide and parent/guardian;
2. school nurse or school physician employed by the LEA;
3. appropriately licensed school employee (i.e., a registered nurse or a licensed vocational nurse) who is supervised by a school physician, school nurse, or other appropriate individual;
4. contracted registered nurse or licensed vocational nurse from a private agency or registry, or by contract with a public health nurse employed by the local county health department;
5. parent/guardian who so elect;
6. parent/guardian designee, if parent/guardian so elects, who shall be a volunteer who is not an employee of the LEA; and
7. unlicensed voluntary school employee with appropriate training, but only in emergencies as defined by Section 2727(d) of the Business and Professions Code (epidemics or public disasters).3

When no expressly authorized person is available under categories 2-4, supra, federal law - the Section 504 Plan or the IEP - must still be honored and implemented. Thus, a category #8 is available under federal law:
8. voluntary school employee who is unlicensed but who has been adequately trained to administer insulin pursuant to the student’s treating physician’s orders as required by the Section 504 Plan or the IEP.

1 Unlicensed school personnel are authorized under state law to assist students as needed with insulin selfadministration. Cal. Ed. Code sec. 49423 provides that unlicensed school personnel may assist with medication administration.
2 In such emergency cases, an unlicensed voluntary school employee should have been trained to at least the standards specified by the American Diabetes Association’s training slides entitled “Diabetes Care Tasks At School: What Key Personnel Need to know: Insulin Administration” (Attachment A). Such a voluntary school employee should be regularly, and at least quarterly, supervised by a school nurse, physician, or other appropriate individual under contract with the LEA, providing the training, and with emergency communication access to the same school nurse or physician. Documentation of training, ongoing supervision, and annual written verification of competency are strongly recommended, and such documentation should be annually submitted to the LEA employing the unlicensed person by the school nurse or physician.

3 In such emergency cases, an unlicensed voluntary school employee should have been trained to at least the standards specified by the American Diabetes Association’s training slides entitled Diabetes Care Tasks At School: What Key Personnel Need to Know . Such a voluntary school employee should be regularly, and at least quarterly, supervised by a school nurse, physician, or other appropriate individual under contract with the LEA, providing the training, and with emergency communication access to the same school nurse or physician. Documentation of training, ongoing supervision, and annual written verification of competency are strongly recommended, and such documentation should be annually submitted to the LEA employing the unlicensed person by the school nurse or physician.

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Questions: Procedural Safeguards Referral Service, Special Education Division | 800-926-0648 Office of Equal Opportunity | 916-445-9174
Last Reviewed: Thursday, November 21, 2013

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