SES Fall 2012 Legal Update

2
Overview
 New Case Law
 Hot Topics
 New and Proposed Legislation

3
New Case Law
 District Missteps
 Assessment
 Litigious Parent
 Staff Venting
 Reimbursement
 High School Transition
Plans
 Eligibility

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
 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
 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

7
 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

8
 Facts
 Parent filed a due process complaint
 Requested three years of prospective placement
at Stellar Academy (including transportation) as
compensatory education

9
 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

10
 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
 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

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
 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
 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

15
 Hearing officer found for parent
 District appealed decision
 District court found in favor of District
 Parent appealed to 9th
Circuit

16
 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

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
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
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
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
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
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
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
 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
 Bottom Line
 IEP that identifies student's post-secondary
interests and is reasonably calculated to provide
some educational benefit meets requirements of
IDEA

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
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)

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
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
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
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
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
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
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
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
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
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
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
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
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
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