Date post: | 08-May-2015 |
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1
Legal Update
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Overview
New Case Law Hot Topics New and Proposed Legislation
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New Case Law District Missteps
Assessment Litigious Parent Staff Venting
Reimbursement High School
Transition Plans Eligibility
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District Misstep: Assessment
Ravenswood v. JS (N.D.Cal., March 30, 2012) Facts
Student struggled upon entering kindergarten, repeated 1st grade
Parent requested assessment in March 21, 2007
District told parent no assessment until results of medical vision and hearing tests received
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District Misstep: Assessment
FactsAssessment plan provided to parent in
December 2007Academic assessment in March 2008No psychological assessment until May 29,
2008 (due to lack of school psychologists) Initial IEP held September 2008
(18 months after referral)
Ravenswood v. JS (N.D.Cal., March 30, 2012)
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District Misstep: Assessment
FactsAnnual IEP held in September 2009Due to lack of progress, team discussed
other placement optionsNo clear placement offer made, no offer to
reconveneDistrict offered to assess academics, but
no assessment plan developed
Ravenswood v. JS (N.D.Cal., March 30, 2012)
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District Misstep: Assessment
FactsDistrict held IEP in February 2010 to
discuss results of assessmentsStudent required intensive reading
interventionDistrict offered general education
classroom using the Inside ProgramParent did not consent
Ravenswood v. JS (N.D.Cal., March 30, 2012)
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District Misstep: Assessment
FactsParent filed a due process complaintRequested three years of prospective
placement at Stellar Academy (including transportation) as compensatory education
Ravenswood v. JS (N.D.Cal., March 30, 2012)
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District Misstep: Assessment
District’s argumentsClaim was barred by two-year statute of
limitations Finding
District knew its statement regarding medical assessment was erroneous, misrepresented process
Statute of limitations extended
Ravenswood v. JS (N.D.Cal., March 30, 2012)
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District Misstep: Assessment
District’s argumentsLack of baselines not a denial of FAPE
because they are not mandatory components of IEP
Observational and other data was enough Finding
IEP begins with PLOPBaseline data must be clear to measure
progressGoals were inadequate, denied FAPERavenswood v. JS (N.D.Cal., March 30, 2012)
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District Misstep: Assessment
District’s argumentsLack of progress result of mother’s failure
to address Student’s undiagnosed ADD Finding
Mother’s refusal to have Student tested for ADD does not relieve District from duty to assess, develop adequate IEP, and provide FAPE
Ravenswood v. JS (N.D.Cal., March 30, 2012)
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District Misstep: Litigious Parent
Anchorage School District v. M. P.(9th Cir., July 19, 2012. No. 10-36065)
Facts Student diagnosed with high functioning autism,
PDD, and sensory integration dysfunction Parent consented to IEP in August 2006 (2nd grade) Parent filed due process complaint in April 2007 Parent awarded 15 hours compensatory instruction
Parent wanted more and appealed Both superior court and Alaska Supreme Court affirmed
hearing officer decision
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District Misstep: Litigious Parent
Facts In the meantime, 2006 IEP expiredFebruary 2008, District held IEP meeting
to update expired IEP (3rd grade)Parent did not attend but provided
extensive written commentsDistrict decided to postpone further
meetings until appeals were decided
Anchorage School District v. M. P. (9th Cir., July 19, 2012)
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District Misstep: Litigious Parent
FactsParent enrolled Student in another
school where he repeated 3rd gradeSchool implemented 2006 IEP In August and September 2008, Parent
filed four due process complaints related to FAPE during 2008 calendar year
Anchorage School District v. M. P. (9th Cir., July 19, 2012)
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District Misstep: Litigious Parent
Hearing officer found for parentDistrict appealed decision
District court found in favor of DistrictParent appealed to 9th Circuit
Anchorage School District v. M. P. (9th Cir., July 19, 2012)
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District Misstep: Litigious Parent
9th Circuit foundDistrict denied FAPEDistrict had affirmative duty to update IEPDuty not contingent on parental
cooperation If parents did not agree, District should
have Continued working with parents, or Filed for hearing
Anchorage School District v. M. P. (9th Cir., July 19, 2012)
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District Misstep: Staff Venting
Oxford, PA Area High School
FactsSchool principal was observed sending
obscene and insulting text messages during IEP meeting
Called bipolar student a "manipulator," psychopath," the next "Hinckley, Booth, or Oswald,“
Noted that "guilty people" have more rights than "the innocent“
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District Misstep: Staff Venting
OutcomePrincipal suspendedLater reinstated with restriction that he no
longer work with special education studentsUnderwent psychological evaluation and
drug test before being reinstated Bottom Line
If you need to vent, do it privately Definitely not in front of student advocate!
Oxford, PA Area High School
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Reimbursement-Primary PurposeMunir v. Pottsville Area School District
(M.D. Pa., June 14, 2012) Facts
17-year old boy with severe depressionHospitalized in 2005, series of
hospitalizations in 2008Generally maintained in school with Bs and
CsDistrict offered 504 plan in November 2008
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Reimbursement Facts
Parent placed in residential facility, then private boarding school
Parents filed for hearing, requested reimbursement from District
Finding In favor of DistrictDistrict court agreed
Munir v. Pottsville Area Sch. Dist. (M.D. PA., June 14, 2012)
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Reimbursement Ruling
Parents not entitled to reimbursement because primary purpose of placement was medical, not educational
Munir v. Pottsville Area Sch. Dist. (M.D. PA., June 14, 2012)
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Reimbursement Bottom Line: Where primary purpose
of residential placement is to address emotional needs and student had no demonstrated educational deficiencies, ancillary educational benefits do not entitle parents to reimbursement
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High School Transition Plans
Student v. Los Angeles Unified School District(OAH 2012)
FactHS student challenged graduation with
diploma as denial of FAPE alleging Not prepared academically, socially, or
functionally for graduation
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High School Transition Plans Ruling
IEP must include measurable post-secondary goals
However, districts are not required to ensure students are successful in achieving all of their transition goals
Graduation from high school with a diploma terminated special education service
Student v. Los Angeles USD (OAH 2012)
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High School Transition Plans Bottom Line
IEP that identifies student's post-secondary interests and is reasonably calculated to provide some educational benefit meets requirements of IDEA
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Eligibility
Student v. San Rafael City Schools (OAH 2012)
FactsStudent had difficult-to-define special
education needs Parents vigorously opposed eligibility due to
autistic-like behaviorsClaimed eligibility category drives
placement Inaccurate classification = denial of FAPE
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Eligibility Ruling
Eligibility categories serve as gatekeepers for special education
Accuracy of a student's eligibility category is not relevant so long as the student is receiving a FAPE
Student v. San Rafael City Schools (OAH 2012)
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Hot Topics
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Administering Anti-Seizure Medicine Nonmedical school employees may
volunteer to administer anti-seizure medicationDiastat is currently the only FDA-approved
Emergency regulations are in place through approximately December 14, 2012
Permanent CDE guidelines for training and supervision of volunteers are forthcoming
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Administering Anti-Seizure Medicine Emergency regulations cover
Training and supervisionCircumstances where emergency provision
of medication is allowed
See the California Department of Education website for extensive guidancehttp://www.cde.ca.gov/ls/he/hn/
epilepsymedadmin.asp
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Hughes Bill BIP mandate is operative
Governor's proposal to suspend mandate rejected
Trailer bill’s partial repeal failed Hearing before State Mandate
Commission in January 2013 To consider reimbursement of $10.64 per
ADA
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Transitional Kindergarten Districts must provide the same special
education services for students in transitional kindergarten
as in kindergarten Requirement for special education services
for children age three and older remains in effect
Districts may receive funding for eligible TK children Revenue limit funding AB 602 funding Any other applicable categorical program funding
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New and Proposed Legislation Mental Health Updates California Children’s Services' (CCS)
Medical Therapy Program (MTP) Health Care Coverage: ABA Therapy High School Graduation On the Horizon –
If the tax initiative fails . . .
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Mental Health Updates Shift to funding allocation based on
ADA (money will no longer follow individual children with special needs)
Prop. 98 Mental Health funds are not contingent on passage of the Governor's tax initiative in November
Early Mental Health Initiative was line-item vetoed by Governor Brown
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Mental Health Updates Accessing Medi-Cal dollars for Mental Health
Services Medi-Cal funding available by contracting with
mental health agencies approved as Early and Periodic Screening Diagnosis and Treatment (“EPSDT”) providers
Workgroup examining alternative means of accessing Medi-Cal funds. Proposed solutions include
Changing the law to allow more liberal billing under Medi-Cal, or
Giving educational institutions status as medical agencies to allow access to Medi-Cal dollars
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Cautionary Tips “Day Treatment” has a specific
meaning Services should be “unbundled”
Counseling, therapy, education, and other services should be identified with specificity on the IEP
Wrap-around is not an IEP service – unbundle!
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California Children’s Services (CCS) CCS has not been repealed CDE’s 2010 Guidelines for
Occupational Therapy and Physical Therapy de-publishedFor recommendations see Letter Re:
California Children’s Services Obligations to Provide IEP-Based Occupational and Physical Therapy Services
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Health Care Coverage: ABA Therapy Health insurers
Required to cover behavioral therapy, including ABA therapy, for individuals with autism and PDD
What this meansWithout clearly defined "medically
necessary“ services, the effect of this legislation on special education services is unclear
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Health Care Coverage: ABA TherapyWhat Is Clear School districts are still responsible for
educationally necessary services Services are reimbursable regardless of
site of delivery Medically necessary ABA services by
private insurance companies on school sites are problematic
Parents should request the services at home to avoid these complications until the implications are clear
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High School Graduation Students with disabilities are exempt
from CAHSEE requirement until the BOE determines the feasibility of an alterative
Proposed CAHSEE AlternativeTier I: Use CST testingTier II: Task-based work samples
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High School Graduation Exemption from high school exit exam
extended until June 30, 2015 Possible CAHSEE waiver for basic score
on the CST for grade 10 ELA and/or Algebra I or proficient score on the CMA for grade 10 ELA or Algebra 1
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On the Horizon . . . If the Governor's tax initiative fails
Potential for shortened school year (may be reduced to 160 days)
Impact on ESY and regression plans Impact on IEPs: Delineating specific
number could result in noncompliance Example: OT services twice weekly throughout
school year, rather than OT 2X/week for 48 weeks
Impact on Basic Aid Districts Weighted Pupil Formula
Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances .
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