Home Hospital Instruction and the IEP

Home hospital instruction is not meant to replace the rights of special education students to receive an appropriate offer of placement and services. It should never be raised as an option if the placement is based on the child’s category of disability. Your child is entitled to the full panopoly of services and placement.

What is home hospital? The Home and Hospital Instruction Program (California Education Code Section 48206.3) serves students who incur a temporary disability, which makes attendance in the regular day classes or alternative education program impossible or inadvisable.

The purpose of home and hospital instruction is to provide instruction to a student with a temporary disability in the student’s home or in a hospital or other residential health facility, excluding state hospitals.

“Temporary disability” means a physical, mental, or emotional disability incurred while a student is enrolled in regular day classes or an alternative education program and after which a student can reasonably be expected to return to regular day classes or an alternative educational program without special interventions.

Notice the word “temporary”. Children who are determined to be eligible for special education services based on any one of the 13 categories of eligiblity should not count their special area of need such as autism, other health impairment etc. as “temporary”.

However, there are circumstances when the IEP team jointly believes that a child will be most appropriately served in the home setting. That is different than home hospital instruction because there it is determined that the child’s needs can appropriately be served in a home setting and that home setting is not meant to be a temporary placement. However, that is not to say that if the child makes progress that moving the child to a less restrictive setting such as at a non public school or public school setting.

Assuming your child is IEP eligible and has still incurred a temorary disability, when making a decision about placing a child in the home setting through an IEP the following questions should be raised by the parents or the IEP team:

1. How long will the home placement last? (note this may depend on your doctor’s own report about when your child is ready to return to the classroom).
3. What are the number of hours of instruction and is that enough to avoid regression?
4. Will the instruction include supports and services such as an aide?
5. How will the delivery of speech and other related services be provided?
6. What is the requirement that an adult be present other than the teacher?
7. How will the management and coordination of classroom work be exchanged between the classroom teacher and the home instructional teacher?

The above are just a few examples of questions to have answered.

Autism Private Health Insurance Impact on the IEP and ISP

The Autism Private Health Insurance Mandate Reform bill was signed by Governor Brown. The law provides for behavioral treatment services for individuals with autism or pervasive developmental disorder through their private health insurance plans. Each plan is required to keep and maintain an adequate list of behavioral treatment options. However, how will this impact school special education services and regional center services?

Key provisions from the bill:
1. SECTION 1374.73 of the Health and Safety Code:
(a) (1) Every health care service plan contract that provides hospital, medical, or surgical coverage shall also provide coverage for behavioral health treatment for pervasive developmental disorder or autism no later than July 1, 2012.
2. This section shall not affect or reduce any obligation to provide services under an individualized education program, or under an
individualized service plan.

The key here is that school districts must still look to the child’s unique needs in order to determine IEP services. Additionally, Regional Center clients receiving Individual Services Plans cannot use the new law to deny services under an ISP.

From a special education attorney’s perspective practically speaking there may be pro’s and cons at the IEP and ISP meetings. A few examples of pros and cons:

Good news first:
1. With highly effective behavioral therapy showing progress in therapy outside of the school setting, schools and regional centers will be less likely to be able to speculate that ABA therapy isn’t required for your child to learn or to benefit.
2. With a highly effective behavioral therapy program in place, you now have new person to consider inviting to your IEP and ISP meetings. This person can provide valuable information to the participants and be a wonderful supporter of more behavioral therapy.
3. The law now states firmly that behavioral therapy is an evidence based form of treatment for autism. Let’s hope this takes us out of the dueling expert battles we see in special education due process hearings that ABA is not scientifically based and proven as a method helpful for children with autism.

Now, the cons:
1. The coin flips both ways, if a child who is not making progress using behavior therapy fails to meet goals, the question then is whether this is evidence that ABA is not the appropriate method. Obviously, a school district or regional center looking to avoid ABA therapy in the schools will want to use this information to state that the treatment isn’t appropriate. Keep in mind, however, that the new health law requires that the goals set in the program be reviewed every six months. A tip is to make sure you are actively involved in the program- reviewing data, goals and progress with your provider.
2. District’s or Regional Centers may attempt to separate this sort of therapy as “clinical” in nature rather than being “naturalistic”. Believe me- our firm has seen special education directors make this argument time and time again- and unfortunately, cases have been ruled in favor of district’s on this argument. Make sure you and the behaviorist are prepared at IEP and ISP meetings to tie in the program’s benefits to those that could equally be matched in a school setting.

This list is not meant to be exhaustive and as we go foward with following the progress of this law, we will update this post. Meanwhile, be sure to visit us on our website for more updates.

California Mental Health Services

The Gov. proposed suspending the AB 3632, that places a requirement on counties to provide mental health services for special education students. School Districts would provide the services likely on a phased in approach. Stay tuned for more…

Special education for student’s who turn 18

When a disabled student turns 18 a, the student and his or her parent need to consider how the law impacts this event especially in terms of educational decision making.

First, the law states: When a student receiving special education services who is legally competent reaches 18 years of age, the local educational agency shall provide any required notice of procedural safeguards to both the student and the student’s parents. (34 C.F.R. § 300.517(a); Ed. Code, § 56041.5.) All other special education rights previously accorded to the parents shall transfer to the student.

Consider asking whether it’s appropriate to transfer educational rights from the student, who has reached 18, to the parent. This can be done with a form that confirms by signatures of the parent/guardians and the student that the student wishes to have all educational decisions made by the parent.
Often school district’s have a form.

A legal guardianship can also be obtained to transfer these rights and should be considered for student’s who are reaching the age of majority and do not have the ability to care for themselves.

All of the above are important to consider if your child is going to continue on in public k-12 school beyond 18 or you are contesting graduation.

If you contest graduation, it’s critical that you do this on the record in writing and before the child actually graduates.

California Education Code section 56026.1(a) and 34 Code of Federal Regulations part 300.122(a)(3)(i) provide that a student who graduates from high school with a regular high school diploma is no longer eligible for special education services. Some courts have found that any claim that a FAPE was denied becomes moot upon a valid graduation. Along these lines, some courts have long held that there is authority to order compensatory education to an adult if it is necessary to cure a past violation. (Bd. of Education of Oak Park & River Forest High School Dist. 200 v. Ill. State Bd. of Education (7th Cir. 1996) 79 F.3d 654, 656; see also Capistrano Unified School Dist. v. Wartenberg (9th Cir. 1995) 59 F.3d 884, 890 [request for reimbursement for private school tuition is not moot after the student graduates from high school]; Maine School Administrative Dist. No. 35 v. Mr. and Mrs. R. (1st Cir. 2003) 321 F.3d 9, 18 [a child eligible for special education services may be entitled to further services in compensation for past violations even after his or her eligibility for special education services has expired]; Pihl v. Mass. Dept. of Education (1st Cir. 1993) 9 F.3d 184, 189, relying upon Zobrest v. Catalina Foothills School Dist. (1993) 509 U.S. 1, 4 fn. 3 [request for reimbursement of educational services remains a live controversy after student’s graduation from high school].)

If you believe you require transference of ed rights or contesting graduation, it’s critical you seek legal advice.

Disability Rights for Students

Section 504, as well as several other state and federal laws, assist disabled students in both public elementary, secondary and post secondary (college and or university) institutions.

In explaining the rights of disabled students under Section 504 and Section 504 plans, OCR that depending on the institution involved as well as whether the student meets the eligibility criteria for having a disability under Section 504, public elementary and secondary recipients are required to provide a free appropriate public education to qualified students with disabilities. Such an education consists of regular or special education and related aids and services designed to meet the individual educational needs of students with disabilities as adequately as the needs of students without disabilities are met.

At the post secondary level, the Office of Civil Rights (OCR) states that the college, university or post secondary institution is required to provide students with appropriate academic adjustments and auxiliary aids and services that are necessary to afford an individual with a disability an equal opportunity to participate in a school’s program. However, these institutions are not required to make adjustments or provide aids or services that would result in a fundamental alteration of a recipient’s program or impose an undue burden.

For more on Section 504 guidance visit:

http://ed.gov/about/offices/list/ocr/504faq.html

California Teacher Rights

California Teacher update: California Public Employee Relations Board upholds administrative decision that California Santa Ana Unified School District substitute teachers are guaranteed the right to select an employee organization of their choice and be members of an appropriate bargaining unit. For more on this topic click here:
California Teacher Rights.

California School Psychologist Role

What can school psychologists do? Is there a duty of confidentiality if they are providing services to your child? What if your child is receiving special education by a school psychologist…what is their role then?
The California Association of School Psychologists has several free publications available to answer these questions. Visit :

http://www.casponline.org/

Click on publications and make sure you review the code of ethics.

Special Education College Admission

Are you the parent of a disabled child who is considering college? Or, are you a disabled adult considering university admission? A recent email from a former client who has now been admitted to college notified us she was admitted under the Admission by Exception Policy offered by many campuses. Here is a sample polic…y:

http://senate.ucsc.edu/cafa/AbyE%20Policy%20072009.pdf

Special Education Regulations Update

The U.S. Dept. of Educ. has a department called OSERS which is required to provide federal regulations as well as guidance to regulations which implement the law contained in the IDEA. OSERS puts out guidance and policy letters on issues ranging from transportation rights to discipline. For a lis…t of guidance docs put out by OSERS visit: http://idea.ed.gov/explore/view/p/%2Croot%2Cdynamic%2CQaCorner%2C

California Disability Rights IHSS Services

IHSS stands for In-Home Supportive Services. IHSS provides services to
adults and children with developmental disabilities who live in the
community in their own or family homes.

Some services provided by IHSS are:
-Personal care, which includes assistance with walking or moving around,
bathing, bowel or bladder care, dressing, feeding, grooming, menstrual care,
repositioning and skin care.
-Domestic Services, which includes cleaning, chores, shopping, preparation
of food, laundry, meal cleanup, menu planning, and restaurant meal
allowance.
-Other services such as heavy cleaning, protective supervision, respite
care, teaching and demonstration, transportation, and yard hazard abatement.

If you want to know if you are eligible visit:

http://www.dss.cahwnet.gov/cdssweb/PG135.htm

For those who are trying to receive benefits for IHSS, a denial can be
stressful.

The process for challenging a denial can be daunting because there are
timelines and a hearing involved. The matter can also involve the courts. If
you are denied IHSS, here is a little bit of information you should know. To
determine whether you should file an appeal you should ask the question: Is
the county decision appropriate, and are there laws and medical records to
support the appeal? If the person is already receiving IHSS services, file
the request for appeal during the 10 calendar days BEFORE the Notice of
Action is effective. The benefits will not change until there is a hearing
and a decision is issued. A request for hearing MUST be filed within 90
calendar days after the date of the county action or inaction. A written
request for a rehearing must be filed within 30 calendar days of receipt
after the decision is received. A request for a state hearing may be written
or oral and there is a request form on the back of the Notice of Action. The
request for a state hearing should include: the aid program involved (i.e.,
IHSS), the reason for the disagreement with the county action, if an
interpreter is needed and what kind, and a copy of the applicable Notice of
Action.

The IHSS denial challenge process can be very complicated involving
witnesses and evidence. Also, since an appeal to a court of competent
jurisdiction is involved, it is critical that your initial appeal of denial
be based on solid evidence. If you believe you require an IHSS appeal of a
denial or, you are appealing a final decision of an appeal and are prepared
to appeal to a court of competent jurisdiction, you should consider hiring
an attorney.