SES Spring 2015: All Things Considered - Related Services

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All Things Considered

A Legal Overview of Related Services

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What We’ll Consider . . . Legal Definitions and Standards

IDEA and California Law IEP Requirements Related Services Providers

Specific Related Services Transportation PT, OT and APE Assistive Technology School Health and Nursing Services Hearing and Vision Services Speech and Language Services Mental Health Services Recreation Services Related Services for Parents

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I. Legal Definitions and Standards

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What Are Related Services? IDEA

Related services means transportation and such developmental, corrective and other supportive services as are required to assist a child with a disability to benefit from special education

California Ed Code and Title 5 Regulations Ed Code restates IDEA definition Amended Title 5 regulations contain separate

definitions for each enumerated related service Regs also substitute “related services” for

“designated instruction and services” (“DIS”)

(34 C.F.R. §300.34; Ed. Code §56363; Cal. Code. Regs., tit. 5, §§ 3051.1-3051.24)

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Related Services Include . . . Transportation Speech/language Audiological services Interpreting services Psychological services Physical and

occupational therapy Orientation and mobility Health care services Vision/vision therapy

(CA)

Recreation, including therapeutic recreation

Counseling services Rehabilitation counseling Parent counseling and

training Medical services (for

diagnostic and evaluation purposes only)

(34 C.F.R. §300.34; Ed. Code §56363; Cal. Code. Regs., tit. 5, §§ 3051.1-3051.24)

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. . . And More U.S. Department of Education:

Related services include other supportive services that are required to assist a child with a disability to benefit from special education

The list of services in [34 C.F.R. § 300.34] is “not exhaustive”

“It would be impractical to list every service that could be a related service. . . .”

(71 Fed. Reg. 46569 (Aug. 14, 2006))

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What Is Not a Related Service? Medical services

Except to determine medical disability that results in need for special education and related services

Otherwise apply U.S. Supreme Court’s “bright-line rule”

Districts must provide health care services, if necessary, unless the service can only be provided by a licensed physician (Tatro and Cedar Rapids decisions)

Surgically implanted devices Optimization (mapping) of that device’s functioning,

maintenance of the device or its replacement

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IEP Requirements

Need for related services determined on individualized basis

At no cost to parents Based on valid assessment data Must be reflected in IEP

Anticipated frequency, location and duration “Clearly stated . . . in a manner that can be

understood by all involved in the development and implementation of the IEP”

(71 Fed. Reg. 46667 (Aug. 14, 2006))

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Related Services Providers Qualifications consistent with state-approved or state-recognized certification, licensing and/or registration requirements

Providers must be either: Employees of district/COE Employed under contract Employees/vendors/contractors of State Dep’t of

Health Care Services or State Hospitals or designated local public health/mental health agency

Title 5 regulations list specific provider qualification requirements for each related service(34 C.F.R. §300.156; Cal. Code. Regs., tit. 5, § 3051)

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II. Specific Related Services

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Transportation If district provides to general education

population…it MUST provide to students with disabilities If district does NOT provide to general education

population…it must DECIDE whether transportation is needed as related service

Definition of “transportation” includes: To and from school and between schools In and around school buildings Specialized equipment if required to provide

transportation (i.e., adapted buses, lifts, ramps)(34 C.F.R. §300.34(c)(16))

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Transportation Also can include:

Safety devices, curb cuts, specialized seats, harnesses, handrails, two-way radios, emergency medical equipment, and more . . .

Determined based on student’s unique needs Medical health needs Accessibility of curbs, sidewalks, etc. Age of student Cognitive ability, adaptive behavior, and/or communication

skills Behavior plans during transport Distance/duration of ride Nature of areas traveling through Other public assistance in route

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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

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TransportationCase Example: Hemet USD (OAH 2014)

Facts: 3-year-old with Down syndrome District offered bus transportation to SDC preschool

located 39 miles from Student’s home (1 hour 10 minutes)

Parents expressed concern about travel time (it upset Student’s stomach) and safety issues due to Student’s inability to remain seated

District proposed either harnessing Student or providing aide or reimbursing Parents if they would transport Student themselves

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TransportationCase Example: Hemet USD (OAH 2014)

Decision: ALJ: Lengthy bus trip did not deny Student FAPE IDEA does not address appropriate length of bus rides Although later disclosed that Student’s extreme acid

reflux caused great discomfort when traveling, District did not have this information when it developed IEP

District’s proposed transportation alternatives were appropriate given what it knew at time of IEP meeting

(Student v. Hemet Unified School Dist. (OAH 2014) Case Nos. 2013090788 and 2014010760, 114 LRP 17829)

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TransportationCase Example: Los Angeles USD (OAH 2008)

Facts: 10-year-old with SLD and no physical limitations Student transferred to non-home school under

NCLB District provided school-to-school transportation Parents asked for home-to-school Parents claimed that Student was vulnerable on

walk and that bus waiting area was unsafe

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TransportationCase Example: Los Angeles USD (OAH 2008)

Decision: District’s school-to-school transportation provided

FAPE Parents’ home-to-school request was based on their

concerns about transporting Student’s siblings and not on Student’s unique needs

Student’s only needs were related to academics Evidence showed home school bus zone was safe

(Student v. Los Angeles Unified School Dist. (OAH 2008) Case No. 2008090736, 51 IDELR 292)

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IEP Team Practice Pointers

Determining need for transportation: Do students’ disabilities make it problematic to

get to school in same manner as nondisabled peers?

If yes, IEP team should determine specific transportation arrangements necessary for student to benefit from educational program

If no, district may offer the same transportation that it offers to general student population

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PT, OT and APE OT includes:

Improving, developing, or restoring functions impaired or lost through illness, injury or deprivation

Improving ability to perform tasks for independent functioning if functions are impaired or lost

Preventing, through early intervention, initial or further impairment or loss of function

PT defined simply as “services provided by qualified physical therapist” Concerns addressed by PT include balance,

coordination, posture, endurance, etc. (34 C.F.R. §300.34(c)(6), (9))

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PT, OT and APE Districts are not responsible for providing OT

and/or PT unless IEP team determines that student has educationally related need that only OT or PT (or both) can address

OT and PT issues are frequently litigated in OAH due process hearings Whether student requires services Manner/location in which services are provided Frequency and duration of services

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PT, OT and APE “Adapted physical education”

For students who are precluded from participation in general physical education program, modified general physical education program or in a specially designed physical education program in a special class

Need for APE may be based on: Movement delays or difficulties Physical or neurological difficulties Health and physical factors Emotional disorders, behavior difficulties or cognitive

delays(Cal. Code. Regs., tit. 5, § 3051.5)

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PT, OT and APECase Example: Los Angeles USD (OAH 2011)

Facts: 4-year-old with significant medical needs District offered 30 minutes/week of PT, 50

minutes/week of OT and 50 minutes/week at OT clinic

Parents claimed services insufficient to “close the gap” between Student and peers

Asked District to double the amount of all services District believed current services met Student’s

needs

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PT, OT and APECase Example: Los Angeles USD (OAH 2011)

Decision: ALJ found for District, stating that Parents “merged

or confused Student’s medical needs with his educational needs”

Medical and educational models for OT and PT are not the same

Districts are not responsible for providing OT/PT as medical treatment – just owe duty to provide sufficient services to allow Student to benefit from education

(Student v. Los Angeles Unified School Dist. (OAH 2011) Case Nos. 2011010530 and 2011030805, 57 IDELR 149)

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PT, OT and APECase Example: L.R. v. Bellflower USD (C.D. Cal. 2012)

Facts: APE specialist assessed 3-year-old Student in 2009

and concluded Student did not require APE services Student would not perform several tasks, so specialist

did not have total picture of all gross motor skills APE specialist reassessed Student in 2010 and

recommended APE based on Student’s difficulties with kicking, throwing and catching a ball

District amended IEP to include APE Parents claimed Student should have been provided

APE services in 2009

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PT, OT and APECase Example: L.R. v. Bellflower USD (C.D. Cal. 2012)

Decision: Court disagreed with Parents, noting that at the time of

the initial assessment, Student would not perform a number of tasks

Based on the information the APE specialist was able to obtain at the time, which placed Student’s gross motor skills in the low-average to average range, it was reasonable for her to wait to observe Student later and reasonable for District not to include APE in initial IEP

(L.R. v. Bellflower Unified School Dist. (C.D. Cal. 2012) 59 IDELR 105)

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Assistive Technology IEP team must consider whether student requires

AT devices and services in order to receive FAPE AT “device”:

Item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve student’s functional capabilities

AT “services”: Any service that directly assists a child with a disability

in the selection, acquisition or use of AT device

(34 C.F.R. §§300.5, 300.6)

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Assistive TechnologyCase Example: Los Angeles USD (OAH 2011)

Facts: Parents requested iPad for 7-year-old Student with

orthopedic impairments After 60-day touchscreen trial period, District

found Student understood and grasped concepts easier when he could manipulate objects, in a way more beneficial to him than using the touchscreen

Parent argued that Student could use iPad independently and appropriately, and used his home iPad on a daily basis

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Assistive TechnologyCase Example: Los Angeles USD (OAH 2011)

Decision: ALJ denied iPad request: No duty to maximize

Student’s potential District’s decision to forego touchscreen

technology after 60-day trial, and focus instead on using other methods to address Student’s needs – particularly in the area of writing – was reasonable, given success Student had demonstrated using those methods, and given the lack of success on touchscreen

(Student v. Los Angeles Unified School Dist. (OAH 2012) Case Nos. 2012061201, 113 LRP 2044)

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Health and Nursing Services May include:

Providing services by qualified personnel

Managing the student’s health problems on the school site

Consulting with students, parents, teachers, and other personnel

Group and individual counseling with parents and students regarding health problems

Maintaining communication with health agencies that provide care to student

(Cal. Code. Regs., tit. 5, § 3051.12)

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Health and Nursing Services May also include “specialized physical health

care services” if necessary to meet student’s needs Services as prescribed by student’s

physician/surgeon Require medically related training for the individual

who performs the service Necessary during the school day to enable the

student to attend school Must be included in IEP

(Cal. Code. Regs., tit. 5, § 3051.12)

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Health and Nursing ServicesCase Example: San Diego USD (OAH 2007)

Facts: 13-year-old Student with autism and genetic

metabolic disorder that required daily G-Tube feedings

District did not identify person responsible for feedings at time of IEP meeting, stating it would detail procedures later in health care management plan

Resulted in confusion between school nurse and behavioral aides as to who would provide G-Tube services

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Health and Nursing ServicesCase Example: San Diego USD (OAH 2007)

Decision: G-Tube feeding was specialized physical health care

service that must be performed by individual with medical training (as detailed in Title 5 regulations)

Behavioral aides did not qualify IEP’s failure to specify qualified individual who

would assist Student with G-Tube feeding resulted in denial of FAPE

ALJ ordered modifications to IEP

(Student v. San Diego Unified School Dist. (OAH 2007) Case Nos. 2007010848 and 2006120002, 107 LRP 64067)

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IEP Team Practice Pointers

Tips to help ensure compliant IEPs when student requires health services: Make sure IEP team members understand

qualification requirements for particular services student may need

Partner with medical professionals to ensure staff responsible for implementing health care provisions receive appropriate training

Collaborate with parents and physicians throughout school year to keep abreast of changing needs and convene IEP meeting ASAP if those needs change

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Hearing and Vision Services Includes

Audiology Identification of hearing loss,

determining range of loss, provision of habilitative activities, counseling

Interpreting services Vision services and vision therapy

Adaptations in curriculum and environment; consultative services; remedial and/or developmental services

Orientation and mobility services Provided to visually impaired students to help them attain

systematic orientation to – and safe movement within – their environments at school, home and in community

(34 C.F.R. §300.34(c)(1), (4), (7); Cal. Code Regs., tit. 5, § § 3051.7, 3051.75)

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Hearing and Vision ServicesCase Example: Yucaipa-Calimesa JUSD (OAH 2014)

Facts: 16-year-old with autism and visual impairment Received 30 minutes per week of orientation and

mobility services designed to teach him to navigate campus and other environments

Services provided by certified orientation and mobility teacher and noncertified aides working under teacher’s supervision

During two-month period at beginning of 2012-2013 school year, teacher was unavailable and Student worked with untrained aides

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Hearing and Vision ServicesCase Example: Yucaipa-Calimesa JUSD (OAH 2014)

Decision: Student was denied FAPE during two months when he

received services from untrained aides who confused him by placing him in unfamiliar environments

Resulted in regression in orientation and mobility skills Orientation and mobility goals over two years were

improper because they were not measurable (but did not result in denial of FAPE)

ALJ awarded 32 hours of orientation and mobility services as compensatory education

(Student v. Yucaipa-Calimesa Joint Unified School Dist. (OAH 2014) Case No. 2013100045)

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Speech and Language Services Includes

Identification/diagnosis of children with speech or language impairments

Referral for medical or other professionalattention necessary for the habilitation of speech or language impairments

Provision of speech and language services for the habilitation or prevention of communicative impairments

Counseling and guidance Like OT/PT, extent and nature of

speech/language services are frequently litigated at due process(34 C.F.R. § 300.34(c)(15))

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Speech and Language ServicesCase Example: Los Angeles USD (OAH 2013)

Facts: 3-year-old Student with intellectual disability Previously received weekly one-hour one-on-one

language and speech therapy at Regional Center “early-start” program

District offered 30 minutes per week with speech/language therapist in small group (4 students) and 30 minutes per week in more individualized setting (one other student)

Parents believed Student needed one-on-one therapy

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Speech and Language ServicesCase Example: Los Angeles USD (OAH 2013)

Decision: ALJ found for District Assessment showed Student participated in

structured activities and showed interest in similar-aged children

Student had potential to produce sounds based on peer imitation/modeling

Expressive language goal could be achieved through two 30-minute sessions per week

(Student v. Los Angeles Unified School Dist. (OAH 2013) Case Nos. 2013071175 and 2013100045, 113 LRP 46331)

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Mental Health Services AB 114 (2011) shifted

responsibility back to districtsfor educationallyrelated mental healthservices that are necessary toprovide FAPE

School-based mental health services now governed by the IDEA

Rowley standard Mental health is a related service

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Mental Health Services Can include (in addition to school

health/nursing services): Psychological services Counseling and guidance services Social worker services Family counseling

School psychologist can provide most forms of counseling, but not social work

Beginning to see increase in OAH decisions involving mental health therapy issues

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Mental Health ServicesCase Example: Sacramento City USD (OAH 2014)

Facts: 15-year-old with ED who had history of suicidal and

dangerous behaviors September 2013: Student ingested cocaine before

school; Parent brought her to emergency room Student placed on “section 5150” involuntary

psychiatric hold Upon Student’s release from hospital, Parents

unilaterally placed her in out-of-state RTC and sought reimbursement

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Mental Health ServicesCase Example: Sacramento City USD (OAH 2014)Decision:

ALJ found mental health services were adequate – until September 2013 when circumstances changed

District should have known Student required increased level of mental health therapy services

ALJ ordered reimbursement, rejecting District’s argument that it provided all necessary educationally related mental health services

Cited absences from school due to hospitalization(Student v. Sacramento City Unified School Dist. (OAH 2014) Case No. 2013100405, 114 LRP 29157)

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IEP Team Practice Pointers

Tips for addressing student’s changing mental health needs: Involve all needed individuals – psychologist and/or

mental health professionals – in IEP review to understand whether current services are inadequate

If team does not believe it has clear picture of how/why needs have changed, consider reassessment

Remember that appropriateness of IEP is determined at time it is developed; revising to add additional services does not infer that prior IEP denied FAPE

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Recreation Services Includes

Therapeutic recreation services (to help students become independent in leisure activities)

Recreation programs in schools and the community Provision of nonacademic and extracurricular

leisure activities Leisure education programs (including teaching of

social skills necessary to engage in leisure activities) Very few OAH decisions involving recreation

services, although one is worthy of note . . . (Cal. Code Regs., tit. 5, § 3051.15)

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Recreation ServicesCase Example: Monrovia USD (OAH 2008)

Facts: 16-year-old Student with neurological condition Parent requested that competitive wrestling be

added to Student’s IEP Did not ask for supplementary aids, supports or

accommodations to allow him to participate Claimed wrestling would address Student’s social,

psychological and behavioral needs

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Recreation ServicesCase Example: Monrovia USD (OAH 2008)

Decision: ALJ: If Student’s participation in wrestling

was required to meet his needs, it could qualify as “recreation services”

But, although Student would benefit from being on wrestling team, no evidence that he had unique needs that could only be met such participation

Participation in wrestling was not necessary for Student to receive FAPE

(Student v. Monrovia Unified School Dist. (OAH 2008) Case No. N2007120717, 108 LRP 40496)

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Related Services for Parents Several related services provisions

in IDEA and California regulations also allow for the services to be provided to the student’s parents and other family members when they are required for the student to benefit from his or her education

For example, social work service can include individual and group counseling with the student and his or her immediate family; psychological services can consist of consultative services to students and parents; and transportation can include reimbursements for visits to residential placement

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Related Services for Parents “Parent counseling and training” includes:

Assisting parents in understanding special needs of their child

Providing parents with information about child development

Helping parents to acquire necessary skills that will allow them to support implementation of their child's IEP or IFSP

(34 C.F.R. § 300.34(c)(8).)

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Related Services for ParentsCase Example: Capistrano USD (OAH 2009)

Facts: Parent of 18-year-old with SLD claimed District

had general obligation to offer parental counseling and training

Believed such services should have offered in every IEP

Filed for due process claiming denial of FAPE back to beginning of statute of limitation period

Requested reimbursement for costs of hiring her advocate

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Related Services for ParentsCase Example: Capistrano USD (OAH 2009)

Decision: ALJ: No evidence Parent needed counseling and

training in order for Student to benefit from his education

Never previously made request Was involved in every IEP meeting and was

represented by attorneys and advocates Remedy requested by Parent was “not supported by

either the evidence, the circumstance or by case law”

(Student v. Capistrano Unified School Dist. (OAH 2009) Case No. 2008031002 114 LRP 29157)

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Related Services for ParentsCase Example: Los Angeles USD (OAH 2009)

Facts: 15-year-old Student attended RTC in Colorado IEP provided for reimbursements for parental visits

under District travel reimbursement guidelines Guidelines allowed reimbursement if purpose of

visit was family therapy Parents took 5-day trip to Colorado to visit Student

(and to ski) Father attended family therapy session; Mother did

not

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Related Services for ParentsCase Example: Los Angeles USD (OAH 2009)Decision:

ALJ noted that related service of transportation allowed for reimbursement for Parents if Student required the visits to receive FAPE

No indication that Student’s IEP reflected such need Therefore, reimbursement was allowed only per

District travel guidelines Mother denied reimbursement, but District ordered

to reimburse Father since he attended therapy session

(Student v. Los Angeles Unified School Dist. (OAH 2009) Case No. 2008090252, 52 IDELR 144)

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IEP Team Practice Pointers

Tips on determining when to include parent counseling and training in IEP If parents are in need of assistance and information

to understand nature of student’s disability If parents need to learn skills to assist student with

services (e.g., how to operate assistive technology device)

If parents directly involved in supporting implementation of IEP (e.g., at-home behavior management strategies)

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Finally . . . A Few Words About 504 “Related service” means service to student with

disability that he or she needs to benefit from and/or access school’s education program

Unlike IDEA, Section 504 has no educational need component as prerequisite in order to be eligible So the only “service” a 504-eligible student may

need is a related service

Also unlike IDEA, there is no list of examples of related services under 504 But OCR has said repeatedly that related services

available under 504 are substantially same as IDEA

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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 .

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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 .