Leigh Law Group partner Mandy Leigh argues case before 9th Circuit Court of Appeals

Leigh Law Group founder and partner Mandy Leigh recently argued before the United States Ninth Circuit Court of Appeals in a longstanding special education case raising issues of first impression in the Ninth Circuit.

Any appearance before a Ninth Circuit panel is of course a privilege but more so in this case due to the participation of the United States Department of Justice who argued in favor of an interpretation of the Individuals with Disabilities in Education Act (IDEA) urged by Ms. Leigh.

The issue of first impression revolved around the interpretation of whether an auditory processing disorder constituted an “other health impairment” for purposes of IDEA eligibility.  Leigh Law Group consistently argued that point in district court proceeding in the case stretching over 8 years.  The history of the case is well articulated by a previous Ninth Circuit opinion in the case here.

The United States Department of Education, the agency charged with interpretation of the IDEA regulations regarding categories of eligibility, concurred and its interpretation of the regulations is entitled to “Chevron” deference, a standard derived from the United States Supreme Court case of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 ( 1984).  Chevron deference means that the agency’s interpretation will be deferred to so long as it is a permissible one.  Here, the interpretation that an auditory processing disorder may constitute an other health impairment appears to be a permissible interpretation of the IDEA.

Ms. Leigh then zealously advocated for her client’s eligibility at the time in question, due to his chronic auditory processing disorder which adversely impacted his education, in response to questioning from the panel of judges.  Regardless of the ultimate result, this case will help define the contours of the IDEA for educators, parents, the judiciary and administrative bodies and legal representatives in the States of California, Washington, Oregon, Idaho, Montana,  Nevada, Arizona and Hawaii and Alaska.

Leigh Law Group considers it an honor to participate in the shaping of law and the process of resolving disputes.  Only from fidelity to legal precepts and principles can an orderly society maintain. Leigh Law Group is a California law firm located in San Francisco and Marin counties practicing in the areas of special education law, education law, higher education law, employment law, business litigation and civil rights litigation.

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 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 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.