building parameters to manage scarce resources

Building Parameters To Manage Scarce Resources

Overview

• Transportation

• NPA Services

• One-to-One Aide Services

• Insulin Administration

Transportation

Transportation Services

• If school district provides to general education population…it MUST provide to students with disabilities

• If school district does NOT provide to general education population…it must DECIDE whether transportation is needed as related service

Transportation: Related Service

A related service is:A supportive serviceRequired to assist student to benefit from

special education

IDEA identifies transportation as a related service

Transportation Defined

• To and from school

• Between schools

• In and around school buildings

• Specialized equipment if required to provide transportation

What is Included?

• Safety devices • Curb cuts• Specialized seats• Harnesses• Handrails• Two-way radios• Emergency medical

equipmentAnd more …

Transportation Golden Rules

• Transportation should not be given automatically

• Decisions regarding transportation are IEP team decisions

• IEP team determines transportation needs on case-by-case basis

Transportation Required forOff Campus Activities?

• If necessary for FAPE, YES

• Provided at no cost to parents

Determine Student’s “Unique Need”

• Medical health needs

• Accessibility of curbs, sidewalks, etc.

• Age of student

• Cognitive ability, adaptive behavior, and/or communication skills

Additional Unique Needs

• Behavior plans during transport

• Distance/duration of ride• Nature of areas traveling

through• Other public assistance in

route• Transportation needs

during school day

Practice Pointer

If student cannot be transported in same manner as non-disabled peers due to disability, IEP team must identify specific transportation arrangements

Transportation Options

• None• Regular school bus• Regular school bus with

supports• Public transportation• Special education

designated bus• Taxi or specialized shuttle• Parent transport with

reimbursement

• District generally has discretion to manage equipment purchases, bus personnel, and bus route and bus stops

• EXCEPT when a student’s unique needs call for specific requirements

Practice Pointer

• In IEP, don’t just check off transportation box or write “transportation offered”

• Specify the pick-up and drop-off points, plus any needed equipment, behavior or health care plans, or other supports

Parent Convenience Case Example #1

FACTS:• Ten-year-old with SLD; no physical limitations• Student transferred to non-home school under

NCLB• District provided school-to-school transportation• Parents requested home-to-school• Alleged that student was vulnerable on walk and

that bus waiting area unsafe

(Student v. Los Angeles USD (OAH 2008).)

Parent Convenience Case Example #1

RULING:• District’s offer of transportation

was FAPE• Parents’ request was based on

their ability to timely transport student’s siblings, not on student’s unique needs

• Student’s only needs were academic

• Evidence showed home school bus zone was safe

Parent ConvenienceCase Example #2

FACTS:

• District divided into geographical “cluster sites”

• District policy requires transportation pick-up and drop-off points to be within the student’s cluster site

• Parent asked district to drop student at day care outside of cluster site boundaries; district refused

• Hearing decision in favor of district was appealed

(Fick ex rel Fick. v. Sioux Falls Sch. Dist. 49-5 (8th Cir. 2003).)

Parent ConvenienceCase Example #2RULING:• District court, 8th Circuit upheld

decision• Parent’s request was for reasons of

non-educational parental preference• Okay for district to apply facially

neutral transportation policy to disabled child when deviation from policy based on parent convenience rather than child’s needs

(Fick ex rel Fick. v. Sioux Falls Sch. Dist. 49-5 (8th Cir. 2003).)

Parent PreferenceCase Example

FACTS:• Ten-year-old with autism and cortical blindness• Student had bus aide and BSP for behaviors on bus• Mom liked previous aide, who walked student to front

door in violation of district policy• New aide complied with policy and would not get off bus

to drop off student; did not chat with Mom• Mom asked new bus driver to give her “thumbs up” or

“down” every day re: Student’s behavior; driver refused• Mom argued that student had to be transported by taxi

with aide(Student v. Los Angeles USD (OAH 2007).)

Parent PreferenceCase Example

RULING:• District’s offer of transportation was FAPE• Mom’s dislike of aide and bus driver did not make

district’s offer inappropriate• District had supports in place to address student’s

safety and behavior on bus• No evidence that taxi drivers were as experienced,

trained or vetted as district bus drivers re: Safety and behavior

Compare Student to PeersCase Example

FACTS:• Five-year-old with SLI offered transportation, but

parent chose to transport• Later, parent requested transportation again• District said transportation offered in error;

student not eligible for it• Parent argued that student lacked hazard

awareness and communication skills

(Student v. Soquel Union Elementary SD (OAH 2007).)

Compare Student to PeersCase Example

RULING:• Student did not need transportation

for educational benefit• Student’s hazard awareness was

comparable to his typical same-age peers

• OAH: All preschool students lack hazard awareness

• Because student’s need for transportation was same as that of his peers, he did not require transportation to receive FAPE

(Student v. Soquel Union Elementary SD (OAH 2007).)

Parent ReimbursementOCR Complaint

FACTS:

• Medically fragile student in wheelchair

• District offered bus rides of two hours each way

• Parent argued that this was too long; felt compelled to transport herself instead

• District agreed to reimburse parent for one round trip per day

• Same thing happened to other SPED parents

• Parent filed OCR complaint(Henderson County (NC) Public Schools (OCR 2009).)

Parent ReimbursementOCR Complaint

FINDING:• OCR found against the district• No evidence that district considered

student’s unique needs when it offered two-hour bus rides

• Parent felt she had no other option but to accept reimbursement

• District’s failure to completely reimburse parent (for two round trips per day) was discriminatory

(Henderson County (NC) Public Schools (OCR 2009).)

Road Conditions/Vehicle ProblemsCase Example

FACTS:• 16-year-old with CP in wheelchair• Picked up/dropped off at corner down the street

from home• Home was uphill from bus stop, slope steep, and

sidewalk uneven• Vehicles parked on both sides of street; street

narrow, ending in unimproved section• District: Smallest wheelchair bus could not travel on

this street, so bus pick up/drop off was at corner

(Student v. Los Angeles USD (OCR 2007).)

Road Conditions/Vehicle ProblemsCase Example

RULING:• Student’s needs required pick up

and drop off at home• Unsafe for student to be

physically pushed up and down steep, uneven sidewalk in heavy wheelchair

• District ordered to provide vehicle capable of home-to-school transportation, even if student only passenger

(Student v. Los Angeles USD (OCR 2007).)

Potholes To Avoid

• Do not automatically offer transportation based on type of disability

• No shortened school day to accommodate transportation

• Instructional day for SPED students must be the same period of time as typical peers unless otherwise specified in IEP

Transportation and Section 504

• Section 504 guarantees students with disabilities equal access to non-educational as well as educational activities

• Thus, transportation may be required under Section 504 even when unnecessary for FAPE (e.g., for a class field trip or to an extracurricular activity)

NPA Services

• Shall be provided under contract

• Shall be used to provide appropriate special education or DIS required by the student

… If no appropriate public education program is available

(Ed. Code, § 56365.)

Use of NPA Services

• For related services that a district does not provide itself

• When there aren’t enough district providers to serve all students who require a particular service

NPA ContractsContracts must:• Include procedures for

recordkeeping• Describe district’s process for

overseeing whether a student is making progress

• Include an ISA for each student• Provide termination for cause by

either party with 20 days’ notice

(Ed. Code, § 56366(a).)

NPA Contracts

Under the contract, NPA services:

• Can be changed only based on revisions to the student’s IEP

• Shall be provided only during the student’s regular or extended school year, unless otherwise specified in the IEP

(Ed. Code, § 56366(a).)

Contract Enforcement

• If a NPA is not following reporting provisions, follow up!

• Regularly review NPA reports to see if action is required – e.g., special IEP team meeting

• Check in with the NPA before an IEP team meeting to make sure there are no surprises

Maintaining Control of NPA Services

• Don’t allow the NPA to be the only assessor of a student

• A NPA can draft IEP goals, but don’t completely delegate goal development to them

• Avoid writing into an IEP that services will be provided by a NPA – If unavoidable, do not name a particular NPA

Addressing Parent Preference

• So long as qualified personnel are available, the determinations as to which personnel will provide services to a child for services under the IDEA are left to state and local authorities

(Moubry v. Independent School Dist. No. 696 (D. Minn.1997).)

Addressing Parent PreferenceCase Example

FACTS:• 2003 settlement agreement required that:

– Parties meet to discuss any transition from then-current NPA; and

– Any proposed transition be approved by IEP team• In 2004, district terminated its contract with NPA• District proposed a new NPA, PLAY, to take over

(San Ramon Valley USD v. Student (OAH 2005).)

• District tried three times to hold IEP team meeting to discuss transition

• After third time, district developed a transition plan w/o parent

• Parents removed student from school and hired a new NPA, Stepping Stones, to provide services

• District denied parents’ request for Stepping Stones, but did develop a transition plan from Stepping Stones to district in-house provider (since parents refused to accept PLAY)

RULING:• OAH found that district offered FAPE.

– Attempts to implement transition were reasonable

• A district court upheld the ALJ’s decision– “Plaintiff is not entitled to his choice of service

providers… The [IDEA] requires only that the service provider be able to meet [Student’s] needs.”

(N.R. v. San Ramon Valley USD (N.D. Cal. 2007).)

Practice Pointer

• When denying a parental request for a preferred NPA, remember to give prior written notice of the denial pursuant to 34 C.F.R. § 300.503

– Explain that the student’s needs can be addressed by other qualified providers

– Note that the law gives districts the right to choose who provides services

Need for NPA ServicesCase Example #1

FACTS:• Student was seven-year-old with autism• Speech significantly delayed• District reduced speech services • Parents wanted more plus 100 minutes/week of

NPA clinic-based speech

(Student v. Garvey SD (OAH 2008).)

RULING:• District’s offer of 30 minutes/week of group

speech insufficient• Student also needed 90 minutes/week of

individual speech• But student did not need clinic-based NPA

speech– District not required to maximize student’s

progress

FACTS:• 13-year-old with autism was fully included in 7th

grade; had average cognitive ability• Received NPA speech, in-home behavior

services, and OT• Student had expressive language delays• Student followed directions and interacted with

others• At triennial IEP, district offered only district

services

(Corona-Norco USD v. Student (OAH 2009).)

RULING:• District offered a FAPE• Evidence showed only that student

could generally benefit from OT NPA, not that he required OT to obtain educational benefit

• No evidence that student needed NPA speech

• No need for NPA in-home ABA services, district offered a social skills group led by ABA-trained specialists

(Corona-Norco USD v. Student (OAH 2009).)

Choose NPAs Wisely

Contract with agencies that:• Are properly certified• Understand their role• Understand the legal standard

for determining when related services are necessary for FAPE

• Promote independence• Maintain a professional

relationship with parents

Reducing the Need for NPAs

• Develop capacity and expertise in-house

• Be careful about contracting with non-certified agencies - state may penalize

One-to-One Aide Services

One-to-One Aides

• A related service necessary for some students to receive a FAPE

• Essential in some cases, builds unnecessary dependence in others

• The personal nature of the service makes it very difficult to change personnel, modify the service, or eliminate it

One-to-One AidesAlternatives

Can the student’s needs be met by less intrusive means?

• Attention difficulties– BSP, classroom modifications or

accommodations, IEP goals• Aggressive behaviors

– FAA, BIP• Academic difficulties

– Change in curriculum or instructional setting

One-to-One AidesAlternatives

If the student has already received supports:

• Can needs be met by adjusting or increasing existing supports?

• Does the student need instruction in how to use supports more effectively?

• Do teachers or service providers need training or consultation re: Implementing the supports?

Use of Classroom AidesCase Example

FACTS:• 2nd grader in general education 20:1 class with RSP and

speech– Student did well in RSP with 4:1 student-teacher ratio

• Had 1:1 ABA-trained aide 15 hours/week in K and first grade

• For second grade, district offered:– Placement in class with classroom aide for three

hours/day– 1:1 ABA-trained 15 hours/week for one month only as

transition

Use of Classroom AidesCase Example

RULING:• Student did not need 1:1 ABA-trained aide.• Student needs could be addressed by classroom

aide• BUT district’s offer was not FAPE• Student required more attention• ALJ ordered classroom aide for three hours/day,

but aide could be assigned to no more than four students; plus ten days for transition from 1:1 aide to new aide

Practice Pointer

• Does student really need 1:1 support for the entire school day?

• Collect data from classroom observations

• Can needs be met with classroom aide or other supports for certain activities or periods of the day?

No Specific End DateCase Example

FACTS:• Four-year-old with autism; strong cognitive skills• In-home ABA for 20 hours/week, 1:1 ABA support at

preschool for ten hours/week• Originally placed in inclusive Headstart program with

DTT for five hours/week; no aide support• Later added 1:1 aide for first month of school year

only; parents wanted 40 hours/week of ABA

(Student v. Hacienda La Puente USD (OAH 2007).)

No Specific End DateCase Example

RULING:• Offer of aide for one month only

did not consider need for gradually weaning student from dependence on aide

• Significant inattentiveness and need for hand-over-hand instruction showed student would not succeed in class without aide

• District’s failure to offer aide and to determine a fade-out plan denied FAPE

(Student v. Hacienda La Puente USD (OAH 2007).)

The Fade-Out Plan

• Fading criteria should be specific and measurable

• Include plan for aide to fade proximity as student starts to meet fading criteria

• If fading plan can’t be agreed upon, convene IEP team meeting in set timeframe to review aide support

• Collect data re: Student’s progress towards independence

Assessing Need for One-to-OneCase Example

FACTS:• 11-year-old with cerebral palsy• Difficulty with physical act of writing• Aide for six hours/day in general ed.• Subsequently, district offered “temporary 1:1 aide”

support “as needed”• IEP team member who wrote offer based it on a year old

observational report• Observation did not include observation of writing tasks

(Coachella Valley USD v. Student (OAH 2008).)

Assessing Need for One-to-OneCase Example

RULING:

• District denied FAPE by withdrawing aide support based on single, outdated criterion

• Offer of “temporary” aide support was inadequate

(Coachella Valley USD v. Student (OAH 2008).)

Practice Pointer

• Have data to back your determination re: student’s need for 1:1 aide support

• Have psycho-educational assessment report include section on need for aide support.

• Include same language and findings in IEP notes

Insulin Administration

• Should unlicensed but trained volunteer employees be allowed to administer insulin?

• Or does the California Nursing Practices Act forbid such a practice?

K.C. v. O’Connell

• Filed in 2005 by parents and the American Diabetes Association

• Alleged that districts failed to provide trained personnel to assist with administering insulin

• 2007 settlement resulted in CDE Legal Advisory

CDE Legal Advisory

• Who can administer insulin?– Student via self-administration– School nurse or school physician– Licensed school employee (e.g., RN or LVN) with

supervision– Contracted RN or LVN– Parent/guardian– Parent/guardian designee– Unlicensed voluntary school employee with training,

but only in emergencies

CDE Legal Advisory

• Legal Advisory added an eighth category:– Voluntary school employee who is unlicensed– But who has been adequately trained to

administer insulin– Per treating physician’s orders– As required by the IEP or Section 504 plan

• Available when no school nurse, school physician, RN, LVN, or other appropriate licensed individual is available

American Nurses Association v. O’Connell

• Nurses sued, asked court to find that the “eighth category” violates state law

• Their position: Illegalfor nurses to train or supervise unlicensed personnel to administer insulin

American Diabetes Association

• Appeared as intervenor

• Their position: In light of the nurse shortage, the ANA’s position “unjustifiably interferes with the mandate… that these students receive insulin in the school setting.”

Trial Court Decision

• Sacramento County Superior Court ruled in favor of the ANA in December 2008

• Judgment prohibited CDE from enforcing its Legal Advisory

• CDE and American Diabetes Association appealed

Stay of Decision

• In April 2009, the California Court of Appeal stayed the trial court’s ruling during the appeal

• So the Legal Advisory remains in effect pending resolution of the appeal

Pending Legislation

• AB 1430– Sponsored by nurses– Would amend Education Code to

require that any prescription medication taken at school be administered by a licensed health care professional

• AB 426– Would require CDE to make

recommendations to the legislature on this issue by July 2010

– Public hearings have begun

School District Options

• Prohibit unlicensed school personnel from administering insulin; OR

• Rely on CDE Legal Advisory, and utilize voluntary unlicensed personnel with training to administer insulin– But may have to contract with non-nurse

personnel to provide training– State Board has directed nurses that

providing such training violates state law and could result in discipline

Bottom Line Building Parameters for Resources

• Think critically• Base decision on student’s current

individual needs• Focus resources and services to what

student actually requires• Detail service provision on IEP• Don’t automatically check transportation• Focus on student, not someone else’s

preference

Bottom Line

• Don’t be embarrassed to save money within legal requirements

• Everyone appreciates the responsible use of tax $$

Thank you!

building parameters to manage scarce resources

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