SES Fall 2012 Legal Update

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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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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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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


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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


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FactsParent filed a due process complaintRequested three years of prospective

placement at Stellar Academy (including transportation) as compensatory education


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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


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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’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


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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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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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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


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Hearing officer found for parentDistrict appealed decision

District court found in favor of DistrictParent appealed to 9th Circuit


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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


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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 .

Fagen Friedman & Fulfrost LLP understands that the state's financial situation must not impede student access to educational opportunities. As advocates for excellent

education, we offer a series of financial awards for students attending California public schools.

For more information, visit www.fagenfriedman.com

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SES Fall 2012 Legal Update

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Transcript of SES Fall 2012 Legal Update