Mental Health Services in State of Chaos in California - Part 2: What Happens Next?

On October 8, 2010, Governor Schwarzanegger used his line item veto to cut billions from the state budget for fiscal year 2010-2011, including $133 allocated to County Mental Health agencies for AB 3632 services. Please read Part 1 in this Series on this blog for more information about the suspension of the AB 3632 mandate.

The Governor has made it clear that he intended to suspend the mandate for AB 3632 (mental health services) in California. AB 3632 allocated responsibility for the provision of mental health services pursuant to a child's IEP, as well as residential placements for emotionally disturbed students, to county mental health agencies.

Mental health services under AB 3632 included

• individual or group psychotherapy
• collateral services
• medication monitoring
• intensive day treatment
• day rehabilitation
• case management services

Title 2, California Code of Regulations, Section 60020(i).

Outpatient services are provided at a clinic or public DMH agency, or may be located on a school campus in some circumstances. "Intensive day treatment" and "day rehabilitation" services are intensive mental health services provided in community based or residential treatment program settings.

Additionally, residential placements were funded under the AB 3632 mandate for students who were eligible under the category of "emotional disturbance" and who required a residential educational placement in order to receive an appropriate special education program. (*note: residential placements for students under other categories of eligibility were already the responsibility of the school districts / local education agencies).

Residential placement is an out-of-home placement in a residential treatment facility with a school program certified as a Non Public School (NPS) and appropriate mental health and day rehabilitation services as part of the program. *Residential placements are on the "continuum of placement options" under the California Education Code.

The Governor's suspension of the mandate has caused chaos, confusion, and controversy throughout the state. Because mental health services are mandated by federal law (the IDEA) to be provided as part of a student's IEP if they are required for that student to access an educational benefit, the suspension of the California-specific AB 3632 mandate does NOT eliminate mental health services for students who require them. Nor does the Governor's action mean that residential placements will, as a matter of course, no longer be available for students in California.

The State of Chaos for County Departments of Mental Health

On October 12, 2010, the Executive Director of the state Mental Health Directors Association sent a memo to all County Mental Health agencies regarding the current state of AB 3632 services. The memo addresses questions arising from the suspension of the mandate, such as whether the Governor actually had the legal authority to suspend a mandate. Additionally, it indicated that there was uncertainty about factors such as the date on which the suspension was effective (October 8th or retroactive to the start of the fiscal year), whether / how counties will ever be reimbursed for the costs incurred from 2004 forward for providing services, and how funding will be accessed / provided for transition of services to school districts.

The Memo set forth "Issues/Actions" for counties to consider, discussing the pros and cons of each action. Subsequently, County Mental Health agencies across the state have each interpreted / implemented these "actions" individually, giving rise to a true state of confusion across California.

It appears to be fairly consistent that most County Mental Health agencies in Southern California are no longer accepting any new IEP referrals from school districts, stating that they do not have the legal right or responsibility to be involved in the IEP process. Los Angeles County Department of Mental Health (LACDMH) and San Diego County Department of Mental Health have reportedly taken this position. Additionally, counties that have taken this action are in most cases refusing to attend IEP meetings or participate any further in cases in which the DMH assessment had already occurred but the IEP meeting had yet to be held.

Reportedly, County Mental Health agencies have also been communicating with school districts, SELPAs, and contracted-residential placement staff, with inconsistent statements made. In some reports, Counties have indicated that students already in residential placements will continue to be funded through the end of this year, but in other reports, Counties have indicated that students will no longer be funded in residential placements effective immediately.

What is truly the "unknown" is what action County Mental Health agencies have taken / are taking to work with SELPAs and school districts to determine how to effectively transition students' services to the school districts.

The State of Chaos for School Districts / Local Education Agencies

Related services and appropriate placements (even residential placements) must be provided to a student as part of a Free Appropriate Public Education in order to meet the child's unique needs and provide them with educational benefit. If mental health services are required as a part of FAPE, they must be provided. It has always been the case that even though California allocated funding-responsibility to county mental health agencies under the AB 3632 mandate, the state education agency (CDE) through the school districts / local education agencies remained ultimately responsible for ensuring that the child was provided with a FAPE. See 20 U.S.C. sections 1400(8), 1401(22); 1412(a)(11)&(12); 34 C.F.R. sections 300.341, 300.360; California Education Code section 5600 & 56031; California Government Code sections 7570 et seq.

As courts have stated;

When disputes between agencies over funding arise, the school district must "ensure that the placement is at no cost to Parent, as provided for in 20 U.S.C. section 1412(a)(10)(B)(i). In other words, if there is to be a fight over payment, it is to be between the [school district] and [the other public agency], not between the parent and the [agency]."

School Board of Lee County Florida v. E.S., 561 F. Supp. 2d 1282 (M.D. Fl. 2008).

"Compliance with duties under the IDEA is a serious matter... Thus, it is not surprising that Congress would impose a duty on local education agencies to continue services to students if local a mental health agency refused to do so."

County of Tuolumne v. Special Education Hearing Office, James G, et al, 45 IDELR 15 (C. Ct. App. 2006) (citing 20 U.S.C. section 1412(a)(12)(B)(ii)).

All related services necessary for a child to benefit from special education / required for the child to make progress towards IEP goals, are the responsibility of the child's school district. Provision of an appropriate placement, including, when required, a residential placement, is also the responsibility of the child's school district. These responsibilities fall within the general duty of the school district to make a FAPE available to each child within its jurisdiction.

Thus, school districts in California are now left with the obligation and responsibility to continue to provide mental health services and residential placements, even though just a few weeks ago the funding responsibility fell on another agency. School districts are not permitted to refuse to provide services pursuant to an IEP, or to refuse to include services that are necessary in the IEP when it is developed, simply because a funding source is not identified. If the county mental health agency refuses to fund services, or ceases funding previously funded services, for any reason (such as the current suspension of the mandate), the school district must assume responsibility.

On October 18, 2010, the California Department of Education, Special Education Division, issued a memorandum to all SELPAs, County Offices of Education, the Advisory Committee on Special Education, Nonpublic School Administrators, and "Interested Individuals, Agencies and Organizations" addressing the present issues. In that memo, CDE called the Governor's actions "unconsionable" and indicated that the suspension of the mandate had created a "state of chaos" in California.

The intention of the memo was to "remind all special education local planning areas (SELPAs), county offices of education (COEs), and local education agencies (LEAs) [school districts] of their responsibility to provide mental health services to students with disabilities." The CDE cited to California Government Code sections and the IDEA. It stated "If a public agency other than an educational agency fails to provide or pay for the special education and related services... the LEA (or State agency responsible for developing the child's IEP) must provide or pay for these services to the child in a timely manner." (quoting 34 C.F.R. section 300.154(b)(2).

Despite this reminder, and the clear legal mandate from the federal law, a state of confusion has definitely ensued, and many school districts are reportedly telling parents that residential placements will no longer be offered, IEP meetings will not be held to discuss needed mental health services, etc.

The State of Chaos for Parents, Students and the Community

Many strange things have happened since the Governor's actions on October 8th. Some parents have been told by school districts (or by residential school staff, who were told by school districts or mental health agencies) that all residential placements would cease to be funded immediately. Other parents have reported that they have heard that the school districts won't continue to fund the residential placements if the child can "survive" outside of that setting. IEP meetings that were scheduled to review assessments by County Department of Mental Health professionals, and thus to determine necessary mental health services, are reportedly being canceled across the state.

School districts and IEP teams in California are so used to having the AB 3632 mandate, that they have forgotten the fact that residential placements and mental health services are not something "special" or "unique" to California. Thus, some school districts are understandably confused about how to make the determination of necessary services and placement under the genre of "mental health."

The community as a whole is certainly affected by the chaos, and litigation on these issues will likely be plentiful. It will take the collaborative efforts of non-profit legal services offices and the community of special education attorneys, advocates and parents, likely working with school districts, mental health agencies, etc, to address this issue in the long term. On October 21, 2010, in Los Angeles, a class action lawsuit was filed in federal court by Public Counsel, Disability Rights California, Mental Health Advocacy Services, and Gibson, Dunn & Crutcher, in order to "preserve lifeline services for more than 20,000 students." (You can find read the press release on Disability Rights California's website, as well as the complaint filed).

Here are some final points to keep in mind if you are being told that services are going to stop, that placement is going to end, etc:

1. Most importantly, remember that ANY change to your child's IEP, including the placement and services he/she receives, cannot be done unilaterally / outside of the IEP process. At the least, an IEP meeting should be held and/or you should be given prior written notice of any proposed changes, after which you have the right to disagree with the proposal. You shouldn't sign an "administrative addendum" or other IEP document that is simply sent to you stating that residential placement is no longer available.

2. If a service is listed in an IEP already (i.e. outpatient mental health services, residential placement), that service / placement is, by definition, related to the student's education. No matter what agency was funding them before, services that were not related to a child's education and necessary for the child to make progress should not have been listed in the IEP. Thus, the school district's should not be able to argue that they are not responsible for mental health services or residential placement because those things were not "educationally related."

3. If a school district has made a referral for assessment by County Mental Health under AB 3632, and now that assessment will not go forward because of suspension of the mandate, the obligation to evaluate the child in this area falls back onto the District. The school district is obligated to evaluate a child in all areas of suspected disability, and the referral can be argued to be indication that the district acknowledges this as an area of suspected disability / an area that needs to be assessed.

4. A district's unilateral determination to stop services or placement due to the lack of funding through the department of mental health may give rise to a compliance issue, which can be addressed through a compliance complaint filed with the CDE, or to due process issues, which can be addressed by requesting a due process hearing with the Office of Administrative Hearings. Likely, there will be an influx of these types of cases in the coming weeks.

Finally, this is certainly all confusing and chaotic, and school districts, mental health agencies, providers, and parents are left to figure out on a case by case basis what will happen next. If you are impacted by this and fear that services will be eliminated, you should consult with a special education attorney for assistance.

Back to School: Help I need a placement! (and other concerns)

It's back to school time around here, with some school districts starting back this week and many starting immediately after Labor Day. As expected, it is a busy time for all of us advocates and attorneys. Here are some of the concerns we hear all too often from parents as school starts back:

1) Where is my kid going to school?!

One of the common back-to-school disasters happens when a kid doesn't have a placement. Knowing where your kid will be in school when the year starts out seems like a pretty basic question, regardless of if your kid is on an IEP. How, you may ask, could not having a placement possibly happen?! Here are some examples based on real-life scenarios:

Scenario A: Child has been in an SDC for the past couple of years and now has "aged out" of that particular class. Parents disagreed with the offer of placement for the next school year, as the new SDC is substantially different and won't meet their kids needs. The school year starts, and parents and district are still in dispute. A problem arises because there is no "stay put" placement, since the child aged out of the previous classroom. Where does the kid go for the first day of school?

Scenario B: Child's specialized program, which the IEP team offered for this school year in the most recent IEP last spring, closed down over the summer based on an "administrative decision" and probably due to budgetary concerns, and no staff was available at that time to hold an IEP meeting.

Scenario C: Family moved into a new school district over the summer, and did not take the IEP document in to the school district because the office was closed, or they didn't know where to take it, or whatever the reason. On the first day of school, parents show up with the kid and the IEP, but the District does not have a placement readily available that is comparable to what the child previously received.

Scenario D: Child had significant emotional problems during the previous school year, to the point that he/she was unable to attend school due to anxiety. Parents requested assessments and an IEP at the end of the year, which have not yet been completed. Because there is no IEP, there is no offer of an appropriate placement, but because of the significant anxiety, child's doctor says he/she cannot return to school without a different program in place.

There are many scenarios which could lead to an issue about placement at the start of the school year. Advocates and parents (and districts) are often scrambling around at the last minute to locate an option that can be implemented. Here are a few tips on dealing with this:

Make lots of phone calls! In these circumstances, talking to a live person about the urgency of your concerns may get you further than starting off by sending a letter documenting all of the ways the district is out of compliance. That's not to say that you won't need to ultimately document all of your concerns, but starting out with a personal call may be the best first step.

Consider alternatives, but don't compromise your ultimate position. It's likely that what you are facing is a situation where there is a placement dispute that you may need to deal with further down the line through additional IEP meetings and due process complaints. In the meantime, you may have to be willing to accept some other alternative so that your child can go to school. Even if it isn't the best case scenario, this may be a situation where something is better than nothing, so you may need to consent to the placement being offered while documenting that you don't believe it is appropriate and you want to have an IEP meeting to discuss placement.

Try to anticipate these disputes. Although school is not in session and timelines for things like holding IEP meetings or conducting assessments may be different, parents can still pursue due process and all of their related rights during the summer. If you can anticipate that there will be a placement problem in the fall, try to resolve it early on. And if you have to file for due process, do so early in the summer so that the issue may be addressed in mediation, and so that you will have time to file for stay put before the school year starts if you have to.

Don't keep the kid out of school unless there is not any other option, or unless the child will be harmed in some way by going to school. Ultimately, it is the parent's choice, not the advocate's / attorney's. Parents have many factors that they have to weigh in these situations. If there is no placement in place, and the District offers something inappropriate for the start of the school year, you have to balance the advantages / disadvantages of keeping your child at home versus advantages / disadvantages of sending your child to an inappropriate placement. These are tough decisions! But ultimately, refusing to allow your child to attend the school at all, barring some clear indication that the child would be harmed, may work against you in later disputes.

2) I just got a call from the school - and they don't have an aide for my child!

This happens more often than you would think. It's the week before school, or even the day before, and parents get a phone call to say "we don't know if your child can start on the first day because we can't find an aide."

Is the aide support called for in your IEP to be provided by District staff or through a Non-Public Agency? If the aide is to be provided through an NPA, you may be able to do some of the "leg-work" yourself. Start calling around to see if any of the NPAs in your area have an aide available, then let the school know what you found out. Sometimes it is just a matter of getting the information to the right people.

Remind the District that compliance with the IEP is mandatory. If the District is saying that your child can't attend school because they don't have an aide (or other support) in place yet, document that statement in writing and also document your concerns regarding the fact that your child will lose educational benefit if he/she doesn't start the school year with all of the other kids.

Show up the first day anyway! Refusing to let your child attend school because they can't comply with the IEP is basically excluding your child from class because he/she has a disability. If school starts and there is still no aide in place, show up the first day with your child and a copy of your child's IEP and remind the District that they are obligated to implement the program called for in the IEP document. If they refuse to let your child attend class, you can follow this up with a letter documenting what happened.

3) My kid's IEP calls for transportation, but no bus showed up this morning to take him to school!

These situations arise when the school district's transportation schedule isn't all worked out before the school year starts. Sometimes, parents find out beforehand that their kid isn't on the bus schedule. Sometimes parents wait and wait the first morning, and no bus shows up. Other transportation mishaps can also happen the first week of school, like the wrong bus picking up the child, or the bus taking the child to the wrong school location.

Be patient and remember that mistakes happen. While you should document your concerns about the failure to implement transportation (which is a related service) pursuant to your IEP, you should also give the district an opportunity to correct this problem. Bus schedules are complicated, and some transportation guru who isn't part of the IEP process is working hard somewhere to map everything out and make sure the schedule covers every kid that is being transported. Make a phone call and let the school and district staff know that this happened, and that you expect the issue to be resolved immediately so that transportation is provided. Get an estimate as to when you can expect your child's bus schedule to be fixed. If multiple days go by, you may want to request that the district reimburse you for transportation you have had to provide yourself when the IEP wasn't being implemented.

4) My child is in general education, and his teacher didn't even know he had an IEP!

The start of the school year involves a lot of planning for school staff and teachers. They are busy getting their classrooms set up, creating lesson plans, studying new curriculum that will be used, organizing supplies, meeting parents, etc. If you find out that your child's teacher doesn't even know your child has an IEP, doesn't know what accommodations must be implemented, etc, it can be a very upsetting discovery! Reserve your frustration for the school district and the administrator involved in your child's IEP, not the teacher. Talk to the teacher frankly about your child's disability and why you think the IEP is important. Then make sure you let the school district know of the problem, and of your concerns regarding the fact that no one made sure the teacher had the IEP so that it could be implemented.


Ultimately, back-to-school can be a busy, stressful time for everyone involved. There are things you can do to prepare, and to help to ensure that everything will be implemented as needed for your child. But that doesn't guarantee that there won't be any back-to-school problems! Remember to stay calm, and to communicate with your child's school about the issues. Patience and persistence will help you get through whatever happens!

And one more thing- if you already have an attorney/advocate, give them a call as soon as you know these kinds of things are happening! All to often we get a phone call after-the-fact, when most likely there may have been something we could have done in the moment to help things get resolved faster! That being said, don't expect miracles! Ultimately, the District has the power to either comply with the IEP or not, to make resources available or not, or to come up with alternatives to ensure the child is educated even if disputes are happening.

Fast Fact Friday: School of Residence

The terms "neighborhood school," "school of residence," or "home school" are often used interchangeably by school districts, parents and others. A child's "school of residence" is the specific school site that he or she would attend if not disabled. "School of residence" is determined by a district procedure that is used to determine what school each child in the district is assigned to, usually it is determined geographically according to the address of the parents. This is the school you would enroll your child in if there wasn't an IEP in the mix.

There is no absolute requirement that children attend their school of residence, even if they are fully included in a general education setting. The choice of appropriate placement depends on the child's unique needs as determined by the IEP team. Some school districts have policies that require all kids with IEPs who are placed in general education to be placed in their home school. Although this may be beneficial to some kids, there are parents who have concerns about the lack of an individualized decision in these situations. On the other hand, many parents may be in a school district that does not have such a policy, but instead may have a practice of grouping kids with IEPs at particular school sites that have inclusion support and other services. Parents in those districts may be concerned about the fact that their child then cannot be included in their "neighborhood school" with kids from their community.

Ultimately, parents have to be included in any team that is making placement decisions about their child. A child's school of residence is one placement consideration on the continuum of available options, and parents should think about the positive benefits of placement in the neighborhood school and discuss these benefits with the team.

Private Placements Part 3: Locate an Appropriate Unilateral Placement

In a unilateral placement case, when parents are seeking reimbursement for a private school placement, parents must demonstrate that the private placement the child is attending is "appropriate" for that child. This presents what the courts have deemed a "stringent but not impossible" task. Parents meet this burden by demonstrating that the private placement meets the child's needs and provides the child with educational benefit. Courts will look at whether the placement reasonably serves the child's individual needs.

This analysis is obviously fact-sensitive and varies in every single case. The "appropriateness" of the private placement is something parents need to keep in mind at every stage of this process, from deciding to disagree with the district's proposed placement, to searching for an appropriate alternative, to deciding if/when to seek reimbursement.

Things to Consider:

There are many things parents can consider when deciding on a placement. Its helpful to start out with a list of your child's unique needs as a starting place so that you can keep in mind how the different components of various options may (or may not) meet those needs. Then make a list of the things that would be required to be in a program for it to be appropriate for the child. Utilize your experts and evaluators during this stage if possible.

Examples of factors to think about include:

* Class size: does your child need a small class size with fewer peers? higher teacher:student ratio?

* Campus size / setting: does your child get overwhelmed in a large campus setting? are there safety concerns that may arise in larger settings?

* Specialized Instructional Methods: what specialized instructional programs does your child need? for example, does your child need specialized instruction for reading and is it available at this placement?

* Behavioral Components: what type of behavioral program does your child require? will class-wide behavior modification work? does your child require staff with certain training or experience to address his/her behavior?

* Social Skills Components: does your child need social skills instruction as part of a classroom curriculum component? in-the-moment training and facilitation throughout the day? does your child need access to appropriate social-models in terms of peers?

* Training of Staff: does your child require access to staff with specific training or experience working with kids with particular needs / disabilities?

Thinking about topics like these will help parents to ensure that if they are in the situation of having to choose a private alternative for placement, that placement is one that meets the child's needs so as to be considered "appropriate" when they are later seeking reimbursement.

Remember that the appropriateness of the private placement is only one factor, and only applies if the District's proposed placement is found to be inappropriate. While making a list of your child's unique needs and considering these factors when analyzing placement offers and options naturally will lead to some comparison between the District's placement and the private one, remember that comparing them is not the analysis the court will use. It is not enough simply to show that the private placement is "better," because ultimately you must show that the District's placement was not appropriate.

Private Placements Part 2: When an alternative may be necessary

Unilateral placement cases are highly fact-specific and each case is unique. It is advisable that a parent seeking to place their child unilaterally and obtain reimbursement for the costs of that placement obtain assistance from a special education attorney or highly experienced advocate from the initial stages of this process. An attorney or advocate can assist the parent with following all of the necessary steps in the process along the way.

The previous post in this series talks about when and how a parent gives notice to the school district of their decision to place their child unilaterally at a private school. Prior to reaching the point of providing notice, parents must go through the process of determining that a private placement is necessary for their child. The case law recognizes that such a determination is made at the parents' financial risk; that is, there is no guarantee that the parent would ultimately be reimbursed. Therefore, the determination to take such a step should only be made when it is necessary, and must be done cautiously. This second part of the "private placement" blog series discusses factors and situations that may give rise to such a determination.

Parents have attempted to work with the District to find another suitable alternative

Generally, parents should not rush into a unilateral, private placement without first trying to work within the District's system to locate an appropriate alternative. This doesn't mean that every child has to necessarily "try" the District's proposed classroom before the private placement occurs. But it does mean that parents should work cooperatively with the District, attend and participate in IEP meetings, voice their concerns about placements proposed by the District, go and observe District programs when possible, and provide the District with input from private experts or independent evaluators. If the District has not been given the "opportunity" to provide the student with an appropriate program, ultimately it is likely that a judge will find that reimbursement is not appropriate.

Private placement should be considered, therefore, in situations where the parent has actively and cooperatively participated in IEPs and placement discussions and has made efforts to work with the District to secure an approrpiate publicly funded placement. Many parents only turn to a unilateral placement after visiting / observing all of the recommended placements by the District, having multiple meetings with the District about placement, voicing their concerns, etc, and then determining that there is no appropriate option within the District's alternatives and private placement is therefore necessary. To read an example of such a case, see Board of Education of the City School District of the City of New York, 39 IDELR 56 (SEA NY 2002).

The District delayed completion of or implementation of an appropriate IEP, thereby denying educational benefit

In some circumstances, the district's unjustifiable delay in completing or implementing an IEP may cause such a loss of educational benefit to the student as to support the need for a private placement and reimbursment to parents. Consider whether the district has failed to complete an IEP at all, leaving it "in limbo" such that the student has no program in place. If this has happened, parents may be faced with a choice between leaving their child with no specialized program, or unilaterally placing the child in an appropriate program and seeking reimbursement. If the issue is not development of the IEP, but implementation, it is important to look at whether the component that has not been implemented was essential to the IEP, and the lack of that component meant that the program itself was no longer appropriate. Again, parents are then faced with a difficult choice between allowing their child to continue in the inappropriate program or unilaterally placing him/her. The cases on this issue are very fact specific, so it should not be simply assumed that any time the district fails to implement the IEP, unilateral placement will be justified. Again, it would be a good idea to have an expert opinion regarding the impact of the delay or non-implementation. For examples of such cases, read Board of Educ. of Chatham Cent. Sch. Dist., 39 IDELR 144 (SEA NY 2003 and Ms. M ex rel K.M. v. Portland Sch. Comm., 39 IDELR 33 (D. Me. 2003).

Student has made no progress in the District's program

When a student has already been in a specific program offered and provided by the school district, and that program has proved to be inappropriate or ineffective, it may be time for parents to consider an alternative. This scenario necessitates looking objectively at the data and information about the child to adequately determine if there has been progress or not, and therefore usually requires an expert's opinion. If the student has been in the program / methodology, ask yourself if he/she has made little to no progress in the specific area being addressed. Also, it is important to look at what the District knew or should have been aware of with regards to the lack of progress. Is this a situation where ongoing progress reports, IEP documents and other data were demonstrating for a significant amount of time that no progress was being made, yet the district ignored such data and continued to offer the same kind of program? Or is it a situation where there was no clear data on an ongoing basis, so maybe no one was aware of the lack of progress until the child was reevaluated much later? An alternative placement may be more appropriate in a situation where not only was the district's program ineffective and inappropriate, but the district also continued to offer said program despite indication that it wasn't working. For an example of such a case, read Draper v. Atlanta Indep. Sch. System, 108 LRP 13764 (11th Circuit 2008).

In some cases, there may be data and evidence that not only establishes lack of progress, but actual regression in some areas. If the child is regressing, rather than progressing, under the district's program, then parents may need to look for an alternative. In these situations, expert opinion would be critical to establish regression. Also, you should consider factors such as whether the district knew the child was regressing, how they responded, and whether they are now offering something different. Fo an example, read J.P. v. County Sch. Bd. of Hanover County, Va 46 IDELR 133 (E.D. Va. 2006).

District has offered a prospective placement that is not appropriate

Commonly, parents consider unilateral placements because of a dispute about what the district has offered prospectively. When the district's IEP and placement offer will not meet the child's needs or enable him/her to obtain educational benefit, the parents may need to consider rejecting that offer and unilaterally placing the child. Again, this is a very fact sensitive scenario, and the parents must consider the IEP offer carefully. An expert who can not only evaluate the child's unique needs, but also observe the proposed placement will most likely be necessary. It is important to look at what the child's identified unique needs are and evaluate the proposed IEP on whether or not it will meet those needs. Consider if there is a specific type of setting, for instance, that the child requires, or whether the child needs a therapuetic component to address his/her social / emotional needs. The totality of the factors will be considered in these situations to determine if the district offered FAPE, and ultimately if the parent is entitled to reimbursement for the unilateral placement. For examples of such cases, read Lamoine Sch. Comm. v. Ms. Z. ex rel N.S. 42 IDELR 172 (D. Me. 2005) and Board of Educ. of the City Sch. Dist. for the City of N.Y. 35 IDELR 28 (SEA NY 2001).


Remember that whatever situation arises that causes parents to consider a unilateral placement, parents need to be careful and consider all of the district's options before making such a decision. Consult with experts, providers and persons who know your child. It may also be necessary to consult with a special education advocate or attorney.

The next blog in this series will discuss another issue in private placement cases, which is consideration of whether the unilateral, private placement is appropriate.

Private Placements Part 1: Notice of Unilateral Placement

Parents may obtain reimbursement for the costs of private school placement if the Court or Hearing Officer finds that the school district failed to make a free appropriate public education available to the student in a timely manner prior to the student's enrollment in the private school, and that the private school placement was appropriate. Parents considering this option need to consider the notice requirements under the IDEIA. Notice to the school district will be one of the many factors the Court or Hearing Officer will consider in determining if reimbursement is appropriate, and if there should be any reduction in the amount to be reimbursed.


Under the IDEIA, reimbursement can be reduced or denied if:
(1) At the most recent IEP meeting parents attended prior to removal from the school district, parents did not inform the IEP team that they were rejecting the placement proposed by the school district, state their concerns, and state their intent to enroll their child in private school at public expense;
OR
(2) At least 10 business days prior to the removal, parents did not give written notice to the school district of the fact that they reject the proposed placement by the school district, their concerns, and their intent to enroll their child in private school at public expense.
See 34 C.F.R. 300.148(d)

Notice to the school district is one consideration under the equitable factors that may affect the outcome of unilateral placement cases. The basic idea is that the parent needs to let the school district know about their concerns, their disagreement with the offered placement, and their intent to enroll the child elsewhere. This is based upon a fairness principal - if you are ultimately expecting that the District is going to reimburse you for that placement, it is only fair that you put them on notice of that intention and expectation! Although their are exceptions to this rule and certainly different interpretations and findings, parents in general need to provide the District notice and comply with this requirement in order to preserve their right to seek reimbursement. Ultimately, failure to give notice at the IEP or in writing may result in a finding that parents were withholding information and thereby acting in bad faith.

At the IEP Meeting

Parents can give notice at the IEP meeting, but should be careful not to seem as though they came into the meeting with a firm committment to enrolling their student in the private school and unwillingness to consider what the District has to offer. If notice is being given at the IEP meeting, parents should

1. Carefully articulate their concerns about the school district's offer AFTER the school district has had the opportunity to develop the IEP and make an offer of placement. Make sure to ask questions and participate in the discussion about the placement, and then provide clear information to show that you considered the offered placement but did not find it to be appropriate.

2. Clearly state that you are rejecting the school district's offered placement because it is not appropriate, and not because you simply prefer a private placement.

3. Clearly state that you intend to enroll the student in a private placement. Indicate why you think this placement is appropriate. State that you will want the District to reimburse for this placement because you believe it is necessary to provide your child with a FAPE.

4. Don't fall into a "parentally placed private student" trap. Many times the District will try to get you to sign a document that states that you have been offered a FAPE and choose to enroll your child in a private placement anyway. The District will then use this to identify your child as a privately placed student. Emphasize that you are not rejecting the District's offer because it is not FAPE, and that therefore you will not agree to designate your child as a privately placed student because you believe the District still has an obligation to him/her in terms of his educational program.

Written Notice

Parents can also give notice in writing directly to the school district. If written notice is being provided, parents should

1. Clearly state in writing that they disagree with the District's offered placement / the current placement that the child is in. The letter should state that the parents no longer feel this placement is appropriate.

2. Briefly state concerns regarding the placement and other issues as appropriate. Give reasons why the current placement is not appropriate.

3. Provide a date that the child will be removed from the district's program and the date upon which unilateral placement will begin. Remember that the notice must be given 10 business days prior to the removal from the district's program.

4. Specifically state that the parent will be seeking reimbursement for this placement. Parents should specify that they believe that the unilateral placement is appropriate and necessary to provide the student with a FAPE.

Why Not Do Both?

It is not a bad idea to provide notice in both ways. Although the strategy for a unilateral placement will vary on a case by case basis, remember that the ultimate goal is to make sure you give the District a heads up about the disagreement and the unilateral placement and allow them the opportunity to respond. If there is an IEP meeting happening, and you already know that you disagree with the District's placement and are seeking a different placement, you can give notice at that time, and then follow it up in writing. Sometimes, parents may know that they disagree with what the district is offering but don't know whether they are going to unilaterally place the child. You could still give notice that you disagree, and even that you are going to be seeking an alternative placement, and then follow it up with specific details in the notice letter. Remember, these facts will all be considered under the principles of "equity," or fairness, so think of it in terms of how you can be fair to the District by giving them notice rather than withholding information.

Ultimately, notice is just one factor among many in these cases, but unfortunately many unilateral placement cases do not come out in favor of the parents if the parents failed to give proper notice or withheld information from the District. For specific information on a case by case basis, it would be advisable for you to seek guidance from an attorney or experienced educational advocate as you go through this process.

Switzer Learning Center

Yesterday, I visited and toured the Switzer Learning Center, a Nonpublic School (NPS) (for more about NPS placements - read our previous blog post from April 2009) in Torrance, California. Switzer if a specialized school for students grades 3 through 12 with learning disabilities, emotional disabilities, attention deficit disorders and behavioral disorders. It is an extremely small school, with currently around 92 students total.

Overview of the Program:

Switzer incorporates a clinical treatment program and behavior management throughout the school program. All students at all grade levels are on a behavior program that is based on reinforcement for positive behaviors, meaning that the students earn points for appropriate behaviors in each period of the school day. Additionally, the school keeps data on both negative or inappropriate behaviors and positive or "involvement" behaviors for every student, and utilizes a computer program to track progress and compare the student to the overall population of the school. The clinical treatment component also includes DIS counseling services for all students on a weekly basis, and availability of the counselors in the moment on an as needed basis.

There is one elementary school classroom, with students ranging from third through sixth grade, and one middle school class, with students from sixth through eighth grade. The high school classrooms are separate from the lower grade levels. The high school program includes six periods per day with the students changing classes and teachers for each class, similar to a traditional high school schedule. High school students can also be dually enrolled, either in a public high school in their home district, at the Southern California Regional Occupational Center (SCROC) in Torrance.

Other Things to Note:

Switzer is a good option for students who have behavior difficulties related to their disability.

It provides modified and individualized instruction within grade level curriculum standards, and also utilizes a specialized reading program, SRA-reading, to provide specialized intervention.

The behavior system is very positive and seems to be implemented consistently.

Switzer offers a diploma-bound curriculum, but does not provide the necessary classes and credits for a student to go straight into a 4-year university.

For more information about Switzer, visit their site directly at www.switzercenter.org. We can also help you with specific information about Non Public School placements.

District obligations when you transfer schools

For any parent, the decision to transfer a child from one school to another is an overwhelming one. For parents of children with special needs, this decision is even more daunting. What does the school district have to do about your child's IEP? Does the new school have to assess? Does the new school have to hold an IEP meeting? Where should your child be placed in the mean time?

This blog is a brief overview of what the new school district must do, at least initially, to meet your child's educational needs. The following only applies to students, in California, who already have an IEP when they transfer.

1. Transfer from one district to another, within the same state

If you transfer within your same state to a new school district, then for up to 30 days the local educational agency must provide your child with FAPE. This offer of FAPE must include services comparable to those described in the previous IEP document and the new district should consult with the parents in determining what is "comparable."

At the 30 day point, the new school district must adopt the previously approved IEP that is consistent with the law.

2. Transfer from one district to another, within the same special education local plan area ("SELPA")

If you transfer districts, but you are within the same SELPA as the previous school (what is a SELPA?) the new district must continue, without delay, to provide services comparable to those described in the existing approved IEP unless the parent and the local educational agency agree to develop, adopt, and implement a new IEP that is consistent with the law.

3. Transfer from one state to another

If you transfer from another state into California, the local educational agency must provide the student with FAPE. These services must be comparable to those described in the previously approved IEP and the new district should consult with parents in determining what is "comparable."

In this scenario, the Education Code vaguely addresses assessments by stating that the local educational agency must provide FAPE until it conducts an assessment, if determined to be necessary by the local educational agency, and develops a new IEP, if appropriate, that is consistent with the law. However, there is no mandatory obligation that the new district conduct assessments.

4. Other Requirements

In addition to the above, the following requirements also apply:

• The new school must "take reasonable steps to promptly obtain the pupil's records."
• Each local educational agency must ensure that assessments of individuals with exceptional needs are coordinated with the individual's prior and subsequent schools, as necessary and as expeditiously as possible.
  

5. The Big Picture

So what does this all mean? If any confusion arises, remember, the bottom line is that the District still has the obligation to provide your child with FAPE. Even where there is an interim period, after the first 30 days, every child should be provided with an appropriate education to meet his or her unique educational needs.

What to watch out for? If you enter a new district and its offer of FAPE does not appear to be "comparable" to the placement and services in the previous IEP, then do not blindly accept the new district's offer. You still maintain all your parental rights. In this scenario, request a full battery of assessments and then an IEP meeting where those assessment results can be shared. It is important to keep in mind that the new school district does not yet know your child, so you may have to advocate harder than before to ensure it learns what your child's unique needs are, and what services are appropriate to meet those needs.

Any strategy? To avoid any additional confusion, in most cases, it is the best idea to ensure that before you transfer districts that you have an agreed upon and implemented IEP. However, this does not mean that you should consent to an IEP just for the sake of transferring - but where there is an appropriate IEP, make sure it is consented to and implemented before the transfer.

My situation is a little different.... Please, let us know if your scenario is not covered in the above, and we would love to participate in a discussion with you and other blog readers about what your options may be! (Contact special education attorneys)

Fast Fact Friday: When do you have to enroll your child in Kindergarten?

If your child turns 5 years old on or before December 2, then in California, the school district has to accept your child into Kindergarten for that school year. Furthermore, if this applies to your child, then he or she may also be admitted to the prekindergarten summer program maintained by the district for pupils who will be enrolling in kindergarten in September.

However, this does not mean that you have to enroll your child when he or she is 5 years old. The only requirement regarding when you have to enroll your child in school is that each person between the ages of 6 and 18 is subject to "compulsory full-time education" (California Education Code section 48200). Thus, you do not have to enroll your child into school until he or she is six years old (of course, certain exceptions may apply for those parents who choose to home school their child). In fact, there is no requirement that your child has to attend Kindergarten. If a child is determined to be ready for first grade work then, at the discretion of the school administration and with parental consent, the child can be admitted directly to first grade.

So, if you are a parent of a special needs child and a part time preschool program is appropriate to meet the needs of your 5 year old and the typical Kindergarten program is not, then continuing in the preschool program for an additional year should be discussed by the IEP team.

Additional Information:
To learn when an exception can be made that permits your child to enter Kindergarten younger than 5 years old, click here.

For more information on Kindergarten requirements in California, click here.

For more information on the "Kindergarten Readiness Pilot Program," click here.

Residential Placements

What is a residential placement? When is it required? Who pays for the room and board cost? This blog will cover a basic overview of residential placements. Because often is is the student with mental health needs that need a therapeutic program like a residential school, this blog is part of our series for Children's Mental Health Awareness Day.

Residential schools can provide students with much needed consistency and intensity in their program, and can provide a therapeutic environment that may not be available in other settings. They exist on the "continuum of placements" under the IDEIA and state special education laws. Generally, residential placements are very restrictive settings, are very expensive, and are burdensome on the family unit, as the child has to be out of the home. Therefore, they are only appropriate as a consideration of the IEP team in situations where it is shown that they are required for that student.

Overview and Definitions:

A "residential placement" is a facility in which the student essentially lives at the school site and is in 24 hour custody. Residential schools are a type of therapeutic placement, and they provide a therapeutic component to address the student's mental health needs in conjunction with addressing the core educational curriculum and academics.

Students require residential placements for a variety of reasons and in a variety of situations. Residential placement is deemed appropriate when the therapeutic and residential components of the program are necessary in order for the student to receive an educational benefit. If placement in a residential program is necessary for the appropriate provision of special education and related services to the student, the program (including both therapeutic and educational components) must be provided at no cost to parents. Students who require residential programs are those for whom the educational needs and emotional needs are "intertwined" or "inseparable" from emotional needs, and a determination is made by the IEP team that the child requires therapeutic and habilitation services in order to "benefit from special education."

Some Basic Examples:

Student with extreme behavioral difficulties, who has been unable to learn appropriate behaviors in the school and community settings, or who is unable to generalize learned behaviors across settings to the extent that they are not able to benefit from the general education campus placement.

Students who require intensive 24-hour supervision and interventions to address aggressive, assaultive, destructive or self-injurious behaviors.

Students whose mental health needs are so significant that they impact their ability to participate in the school environment, attend school regularly, and function on a regular campus.

Students who have not made any progress in their emotional and behavioral goals in a less restrictive setting, and who require interventions across settings and in a therapeutic environment in order to benefit.

Payment for Residential Programs:

If a residential program is required for the student to receive FAPE, then it must be provided at no cost to parents. This does not mean, necessarily, that your school district will be paying the entire cost. Rather, states are permitted to have specific procedures and mechanisms in place to deal with funding for residential schools. In many states, there are cost-sharing arrangements between school districts (or "local education agencies" - LEAs), the state department of education (or "state education agencies" - SEAs), and / or other local or state government agencies. For example, in California, there are state-specific cost provisions that require the Department of Mental Health to fund the residential and therapeutic components of the program, if the child is eligible to recieve mental health services under the state's AB3632 provision.

Ultimately, it is the school district's responsibility to provide individual students with a free appropriate public education (FAPE). And the bottom line, therefore, is that if the student requires residential placement to recieve a FAPE, the District bears the burden of ensuring that it is provided at no cost to parents. There are certainly instances where a child may not qualify for eligibility under AB3632 or whatever program/agency the state has for mental health services, but still requires residential placement as part of their educational program. In those situations, the District must fund the placement, including the residential component, because to fail to do so would be a denial of FAPE to the student.

The Gilbert Hall School: A New Perspective on Learning to Learn

On Saturday, I attended the Open House for a new private school, Gilbert Hall School (GHS), which is located in Culver City. The Gilbert Hall School is based on a model of learning developed by Dr. Gutstein, director of the Relationship Development Research Institute. Dr. Gutstein has basically taken the principles of Relationship Development Intervention (RDI) and applied them to classroom based learning in an innovative new school.

A few years ago, I was involved in a Fair Hearing with the Westside Regional Center that was on the issue of RDI for a child with autism. At that time, RDI was not widely used or even known here in the LA area, and I read everything I could find on the topic as we were preparing for the case. Those inquiries lead me to contact Dr. Gutstein, who gave me a lot of information about his research and the RDI program. So, when I learned that the GHS model was based on Dr. Gutstein's research and the theories behind RDI, I was intrigued to hear more about it.

During the Open House, Dr. Gutstein gave a very informative lecture on the research and theories behind the GHS model. The focus of the model is on brain development, which Dr. Gutstein argues should be the primary focus in all of education utilizing "best practices." Dr. Gutstein discussed the downfall of the typical educational system's focus on measuring success by tracking specific skills learned or academic milestones met. This focus doesn't allow for the development of flexibility to solve "fuzzy problems," to improvise or deal with "grey areas," or to come up with alternative solutions. A repertoire of skills is not enough to make it in the world; rather, individuals have to develop what Dr. Gutstein refers to as "nueral integration," which is what allows all of us to problem solve and adapt in new situations.

Neural Integration was defined by Dr. Gutstein as a "lifelong process in which the brain's different processing centers learn to work together in increasingly more sophisticated and efficient ways." The brain basically grows and forms with experiences that present mental challenges, and most children develop nueral integration through "guided participation" by their parents. Children learn not only how to address the specific situation they are faced with, but in addressing that situation, they are learning how to think through the next, unique situation.

What does all of this have to do with special needs kids? Dr. Gutstein explained that in 100% of children on the Autism spectrum, the process of developing nueral integration breaks down. Despite the fact that children on the spectrum are diverse in so many other ways, this is the one thing that unites them. Furthermore, other children affected by disabilities such as ADHD and executive dysfunction, Tourette's, Bi-Polar, Seizure Disorder, and Severe Learning Disabilities can also be affected by this neuro-vulnerability.

Dr. Gutstein's model for the Gilbert Hall School is focused on using dynamic and innovative curriculum to specifically address the development of neuro-integration. The GHS school day is focused on intensively developing specific dynamic processes. Classroom activities and academics are a part of the program, and these activities are used not only to teach the specific skill addressed in that lesson (math, reading, etc) but also as a means of teaching the students to think, problem-solve, relate, etc. The curriculum is competency based, and the program operates on a "level" system, very similar to the levels within the RDI program, in the sense that it is an assumption of the program that an individual must reach competency on one level before they will be able to be successful on the next.

This is the core uniqueness of the program - it doesn't focus on the typical measures of academic progress that we see in educational programs, but on the bigger picture of learning - learning to learn, learning to think, problem-solve, and relate to the world. Like the RDI model focuses on underlying relationship functions rather than superficial social skills, the GHS model focuses on the underlying components of thinking and learning rather than on skill sets and achievement markers.

Another unique aspect of the school is the parent involvement component. The RDI program, which forms the basis for much of what the GHS model is, focuses on parental involvement in the development of the child's ability to problem solve and relate to others. The GHS model incorporates this focus, in that the learning goes beyond the classroom and into the home setting. Parents are integrally involved at GHS, and must have a willingness to incorporate new ways of interacting with their child at home in order to allow their child to truly develop and grow.

GHS is a very small school setting, and is currently not a certified Non Public School. For more information about GHS, check out their very extensive website at www.gilberthallschool.com. Also, if you are interested in more information about RDI and Dr. Gutstein's research, check out www.rdiconnect.com.

So what is a NPS anyways?

A Non-Public School ("NPS") is a privately operated, publicly funded school that specializes in providing educational services for students with needs so exceptional they cannot be met in a public school setting. (cacfs.org)

Can my child go to a NPS?

The decision to place a child in a NPS is an IEP team decision. In making a placement determination, the local education agency ("LEA") must ensure that a continuum of program options is available to meet the needs of your child. Thus, when a school district is making its offer to your child, it must consider all or any combination of the following:

• Regular Education
• Resource Specialist Program ("RSP")
• Designated Instruction and Services ("DIS")
• Special Day Classes ("SDC")
  
• Nonpublic, nonsectarian school ("NPS")
• State Special schools
• Instruction in other settings
• Itinerant instruction
• Instruction using telecommunication and instruction in the home, in hospitals and in other institutions

A NPS must be made available to your child if no appropriate public education program is available. ( Education Code section 56365). When an appropriate public education program is not available and a NPS program exists that is appropriate for your child, then the district, SELPA or county office must pay the full amount of the tuition.

Once your child is enrolled in a NPS, that NPS must provide all services specified in the IEP, unless the NPS and LEA agree otherwise.

NPS & the least restrictive environment ("LRE")

A frequently used phrase in special education is least restrictive environment.

Under the IDEIA, LRE is: "to the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled, and . . . removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." 20 U.S.C. 1412(a)(5)(A).

Because NPS placement generally means that your child will not be educated with non-disabled peers, the IEP team should take into consideration your child's right to be educated in the LRE before placing him/her in a NPS. In accordance with the IDEIA and LRE, a NPS is appropriate if even with the use of supplementary aides and services, the student will not be able to access an educational benefit in the regular education environment.

Therefore, if you are at an IEP meeting and placement options are being discussed, and the resource, SDC and other supplementary aides/services available within the District are not appropriate to meet your child's unique needs and provide him/her with an educational benefit, then the appropriateness of a NPS should be discussed.