SES Fall 2012 Legal Update

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SES Fall 2012 Legal Update

  1. 1. 1 Legal Update
  2. 2. 2 Overview  New Case Law  Hot Topics  New and Proposed Legislation
  3. 3. 3 New Case Law  District Missteps  Assessment  Litigious Parent  Staff Venting  Reimbursement  High School Transition Plans  Eligibility
  4. 4. 4 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
  5. 5. 5 District Misstep: Assessment  Facts  Assessment plan provided to parent in December 2007  Academic assessment in March 2008  No 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)
  6. 6. 6 District Misstep: Assessment  Facts  Annual IEP held in September 2009  Due to lack of progress, team discussed other placement options  No clear placement offer made, no offer to reconvene  District offered to assess academics, but no assessment plan developed Ravenswood v. JS (N.D.Cal., March 30, 2012)
  7. 7. 7 District Misstep: Assessment  Facts  District held IEP in February 2010 to discuss results of assessments  Student required intensive reading intervention  District offered general education classroom using the Inside Program  Parent did not consent Ravenswood v. JS (N.D.Cal., March 30, 2012)
  8. 8. 8 District Misstep: Assessment  Facts  Parent filed a due process complaint  Requested three years of prospective placement at Stellar Academy (including transportation) as compensatory education Ravenswood v. JS (N.D.Cal., March 30, 2012)
  9. 9. 9 District Misstep: Assessment  District’s arguments  Claim 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)
  10. 10. 10 District Misstep: Assessment  District’s arguments  Lack 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 PLOP  Baseline data must be clear to measure progress  Goals were inadequate, denied FAPERavenswood v. JS (N.D.Cal., March 30, 2012)
  11. 11. 11 District Misstep: Assessment  District’s arguments  Lack 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)
  12. 12. 12 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
  13. 13. 13 District Misstep: Litigious Parent  Facts  In the meantime, 2006 IEP expired  February 2008, District held IEP meeting to update expired IEP (3rd grade)  Parent did not attend but provided extensive written comments  District decided to postpone further meetings until appeals were decided Anchorage School District v. M. P. (9th Cir., July 19, 2012)
  14. 14. 14 District Misstep: Litigious Parent  Facts  Parent enrolled Student in another school where he repeated 3rd grade  School 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)
  15. 15. 15 District Misstep: Litigious Parent  Hearing officer found for parent  District appealed decision  District court found in favor of District  Parent appealed to 9th Circuit Anchorage School District v. M. P. (9th Cir., July 19, 2012)
  16. 16. 16 District Misstep: Litigious Parent  9th Circuit found  District denied FAPE  District had affirmative duty to update IEP  Duty 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)
  17. 17. 17 District Misstep: Staff Venting Oxford, PA Area High School  Facts  School 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“
  18. 18. 18 District Misstep: Staff Venting  Outcome  Principal suspended  Later reinstated with restriction that he no longer work with special education students  Underwent 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
  19. 19. 19 Reimbursement-Primary Purpose Munir v. Pottsville Area School District (M.D. Pa., June 14, 2012)  Facts  17-year old boy with severe depression  Hospitalized in 2005, series of hospitalizations in 2008  Generally maintained in school with Bs and Cs  District offered 504 plan in November 2008
  20. 20. 20 Reimbursement  Facts  Parent placed in residential facility, then private boarding school  Parents filed for hearing, requested reimbursement from District  Finding  In favor of District  District court agreed Munir v. Pottsville Area Sch. Dist. (M.D. PA., June 14, 2012)
  21. 21. 21 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)
  22. 22. 22 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
  23. 23. 23 High School Transition Plans Student v. Los Angeles Unified School District (OAH 2012)  Fact  HS student challenged graduation with diploma as denial of FAPE alleging  Not prepared academically, socially, or functionally for graduation
  24. 24. 24 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)
  25. 25. 25 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
  26. 26. 26 Eligibility Student v. San Rafael City Schools (OAH 2012)  Facts  Student had difficult-to-define special education needs  Parents vigorously opposed eligibility due to autistic-like behaviors  Claimed eligibility category drives placement  Inaccurate classification = denial of FAPE
  27. 27. 27 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)
  28. 28. 28 Hot Topics
  29. 29. 29 Administering Anti-Seizure Medicine  Nonmedical school employees may volunteer to administer anti-seizure medication  Diastat 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
  30. 30. 30 Administering Anti-Seizure Medicine  Emergency regulations cover  Training and supervision  Circumstances where emergency provision of medication is allowed See the California Department of Education website for extensive guidance http://www.cde.ca.gov/ls/he/hn/epilepsymedadmin.asp
  31. 31. 31 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
  32. 32. 32 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
  33. 33. 33 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 . . .
  34. 34. 34 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
  35. 35. 35 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
  36. 36. 36 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!
  37. 37. 37 California Children’s Services (CCS)  CCS has not been repealed  CDE’s 2010 Guidelines for Occupational Therapy and Physical Therapy de-published  For recommendations see Letter Re: California Children’s Services Obligations to Provide IEP- Based Occupational and Physical Therapy Services
  38. 38. 38 Health Care Coverage: ABA Therapy  Health insurers  Required to cover behavioral therapy, including ABA therapy, for individuals with autism and PDD  What this means  Without clearly defined "medically necessary“ services, the effect of this legislation on special education services is unclear
  39. 39. 39 Health Care Coverage: ABA Therapy What 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
  40. 40. 40 High School Graduation  Students with disabilities are exempt from CAHSEE requirement until the BOE determines the feasibility of an alterative  Proposed CAHSEE Alternative  Tier I: Use CST testing  Tier II: Task-based work samples
  41. 41. 41 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
  42. 42. 42 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
  43. 43. 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 Celebrate Success Education Awards

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