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.

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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.

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 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