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CHANGING THE AMOUNT OF RELATED SERVICES
OR IEP OBJECTIVES FOR RELATED SERVICES

State and federal law are quite clear that IEP meetings must be held for purposes of "developing, reviewing, and revising" a student's individualized education program. [34 C.F.R. Sec. 300.343(a) and Part 300, App. C, Nos. 43 and 51.] Parents must be notified of the proposed changes prior to the IEP meeting. [34 C.F.R. Sec. 300.504 and Part 300, App. C., No. 43.] Again, this is true regardless of what agency actually provides the related service.

Further, if you disagree with a proposed reduction or termination of a related service at an IEP meeting, you can request a due process hearing. Your child must continue to receive the related service while the hearing (and court proceedings, if any) are under way. [20 U.S.C. Sec. 1415(e)(3); 34 C.F.R. Sec. 300.315; Cal. Ed. Code Sec. 56505(d).]

CHILDREN PLACED FULL TIME IN A REGULAR CLASSROOM
& ENTITLEMENT TO RECEIVE RELATED SERVICES

The education program for all students in special education must be based on individual needs. Any child who meets the eligibility requirements for special education is entitled to the related services needed to help him benefit from special education.

Special education law favors placement in regular classrooms whenever possible. Children who can be mainstreamed full time are entitled to the supportive services that enable them to attend school or to function in a regular classroom environment. State regulations also say explicitly that related services may be provided to students "who are served throughout the full continuum of educational settings." [5 Cal. Code Regs. Sec. 3051(a)(1).]

Even children with disabilities who are not eligible for special education and who would, thus, attend regular education classes, would be entitled to receive supportive services (for example, school health services) necessary to enable them to benefit from their school program under other state and federal laws that ensure access of persons with disabilities to state and federally funded programs. [For example, see Section 504 of the Rehabilitation Act of 1973]

DISTRICT RESPONSIBILITY FOR PROVIDING CHILDREN WITH INSTRUCTIONAL AIDES.

The school district must provide an aide if your child needs an aide to help her benefit from her education -- including situations where your child needs an aide to assist her in a regular classroom. Thus, an aide might be required to help a child with severe physical disabilities perform educational tasks (such as note taking), or to assist in a behavioral management program for a child with severe behavior problems. The aide should be qualified to perform the particular duties needed. Any required qualifications (for example, "trained in behavior modification", "knowledgeable in algebra", "fluent in signing") should be written in the IEP, as well as the frequency, amount and type of services the aide will provide.

WHEN A CHILD IS NOT RECEIVING A RELATED SERVICE, AS PROVIDED IN THE IEP BECAUSE THE PERSON WHO IS TO PROVIDE THE SERVICE IS ABSENT.

The best remedy is prevention. It would be proper to discuss the issue of a service provider's absence at the IEP meeting when the team writes the service in the IEP. The IEP team could then plan for, and set out in the IEP, what will happen if a related service provider is absent.

Obviously, advance planning is most critical in the case of services required to enable a child to attend school at all (such as transportation or school health services) or to attend school safely (such as a behavioral aide). It is not acceptable for a child to miss school or to be denied the right to participate in special activities like field trips because the school district fails to provide a necessary service. It is critical in these instances that the school district have plans for ensuring that a substitute provider will be available. In the case of other services, such as OT/PT, speech therapy, etc., occasional, unanticipated absences may be unavoidable. However, it would not be proper to deny services specified in an IEP when an absence occurs more than occasionally or is predictable.

Remember, school districts must provide services specified in a student's IEP. Failure to provide a service listed in the IEP can be the subject of a compliance complaint submitted to the CDE. See Chapter 6, Information on Due Process Hearings/Compliance Complaints. The same applies even when a private provider or another public agency (such as CCS or a local mental health agency under AB 3632/882) is to provide the related service.

DISTRICTS PROVIDING NON-ACADEMIC SERVICES.

In this day of scarce resources and limited school district budgets, there is a huge gap between the ideal in the law and the reality. While the law requires school districts to pay for any non-medical service necessary for a student to learn appropriately, federal and state legislatures have not given districts adequate money to provide all these services. As a result, except for transportation, speech and language therapy, OT/PT, and counseling, school districts will often assert that services not historically provided by school districts (for example, parent training, parent counseling, recreation, complicated health services, etc.) are not educationally necessary -- that is, not "related." The net effect of this political reality is that you should be prepared to use independent experts at the IEP meeting to support your child's need for related services. You should also be prepared to use the due process procedures when necessary. See Information on Evaluations/Assessments, for information on obtaining independent assessments at public expense.

CIRCUMSTANCES WHERE THE CHILD IS ENTITLED TO RESIDENTIAL PLACEMENT.

Federal law provides that "if placement in a public or private residential program is necessary to provide special education and related services to a handicapped child, the program, including non-medical care and room and board, must be at no cost to the parents of the child." [34 C.F.R. Sec. 300-302.] Thus, if a residential placement is necessary for educational purposes, then it must be provided at no cost to the parents. You need not give up custody of your child (for example, permit your child to be made a "ward of the court") in order to get residential placement.

Typically, the need for residential placement is indicated when a student needs the structure, intensity and consistency of programming that a day program could not offer. Due to behavioral or emotional problems, for example, a student may need a 24-hour therapeutic environment with programming that is consistent across the classroom and residential components of the program in order to meet the goals and objectives of his IEP.

A school district may contend that residential placement is needed, in a particular case, to meet a student's social, emotional or medical needs, rather than educational needs, and that the placement is not its responsibility. Except in cases where the child needs placement in a psychiatric hospital, courts presented with this question have consistently found that it is not possible to sever a child's social and emotional needs from his educational needs. The courts have, therefore, held that residential placements are necessary for educational reasons. In cases involving psychiatric hospitalization, courts have been less consistent. In limited circumstances, courts have found that placement does meet educational needs and is, therefore, the school district's responsibility. It is also helpful to keep in mind that addressing a child's social and emotional needs, as well as traditional academic needs, is part of special education. However, courts have held that school districts are not responsible for paying for the cost of psychiatric hospitalizations.

Residential placement would also be required if an appropriate day placement were located so far from the student's home that daily commuting would not be feasible. In this instance, residential placement would serve a purpose similar to transportation -- that is, it would enable the student to attend his education program.

CHILDREN IN A NON-PUBLIC SCHOOL AND RELATED SERVICES.

Students are entitled to receive related services through the public school system. However, the public school system may not be required to provide the service on the premises of the non-public school if the parents unilaterally placed the student there. See below for additional concerns when the non-public school is a religions school.

If the IEP team placed your child at a non-religious, non-public school, he is entitled to receive appropriate related services. This may, and often does, require delivery of services at the non-public school site.

If you placed your child at a non-religious, non-public school unilaterally, without the consent of the rest of the IEP team, he is still entitled to free appropriate related services, even though the school district is not required to pay for his tuition costs. This may mean delivery of the services on the non-public school site. [34 C.F.R. Secs. 300.403(a) and 300.450-300.460.] However, the U.S. Department of Education has interpreted these regulations differently and does not believe that a school district is obligated to provide related services to students placed in non-public schools by their parents at the non-public school site if the school district has offered an appropriate special education placement for the student at a public school site. [Education for the Handicapped Law Report (EHLR), Vol. 17, Page 523, 1991.]

CHILDREN IN A RELIGIOUS SCHOOL AND RELATED SERVICES.

A student placed at a school where religion is a significant part of the curriculum may receive related services as readily as a student placed by parents at a non-religious, non-public school as long as the related services do not promote the religion of the school.

The problem with getting related services at religious schools is that public employees are generally prohibited from promoting religion. This does not automatically bar a student placed by her parents in a religious school from receiving related services. However, it may mean that public employees cannot provide certain services at the religious school site. The U. S. Supreme Court in the Zobrest case held that a public school district's employment of an interpreter to provide services to a deaf student in a religious school does not impermissibly promote religion. [Zobrest v. Catalina School District, 113 S Ct 2462 (1993).]

33. Q. My Child Has Ongoing Behavior Problems. Does the School District Have Any Service Responsibility to Address Those Problems? A. Yes. Although not specifically identified as related services under federal or state special education law, services to address serious behavior problems must exist in California. In 1990, the Legislature enacted Assembly Bill 2586 (Hughes). [Cal. Ed. Code Sec. 56520 to 56524.] This law prohibited the use of aversive behavior interventions and mandated the development and implementation of positive behavior intervention plans for special education students with serious behavior problems. In addition, the law required that CDE develop regulations to implement positive behavior intervention services for special education students in school. The regulations are at Title 5, California Code of Regulations, Sections 3001 and 3052. The "Positive Behavioral Intervention Procedural Flowchart" at the end of this chapter sets out procedures to (1) identify and assess behavior problems, and (2) develop intervention plans. The second page of the flow chart sets out "Emergency Intervention Procedures." 34. Q. What Does "Behavioral Intervention" Mean and What Purpose Does it Serve? A. "Behavioral intervention" means the systematic use of procedures that results in lasting positive changes in the student's behavior. The intent of using a behavioral intervention program is to provide the student with greater access to a variety of community settings, social contacts and public events, and ensure that her behavior does not hinder her placement in the least restrictive educational setting. Positive behavioral interventions respect the student's dignity and personal privacy and assure physical freedom, social interaction, and individual choice. Positive behavioral interventions do not include procedures which cause pain or trauma. [5 Cal. Code Regs. Sec. 3001(d).] 35. Q. What Do the New Positive Behavior Intervention Regulations Require of School Districts? A. The new regulations require that every special education student who demonstrates a serious behavior problem receive a functional analysis assessment. The assessment is then used in developing a positive behavior intervention plan for him. The plan becomes part of his IEP. [5 Cal. Code Regs. Sec. 3001(f).] The plan has its own set of goals and objectives related to reducing maladaptive behaviors and substituting appropriate behaviors. Personnel with training in behavior analysis, with an emphasis on positive behavior intervention, must perform the functional analysis assessment, develop the positive behavior intervention plan, and supervise the implementation of the plan. This individual, called a behavior intervention case manager, becomes a member of the IEP team for every student with serious behavior problems. [5 Cal. Code Regs. Sec. 3052(a)(1).] The regulations include many other procedures for evaluating the intervention plan, for modifying the plan, and for documenting emergency interventions. You can obtain a copy of the positive behavior intervention regulations by calling a Protection and Advocacy office -- 1-800-776-5746. 36. Q. What Is a "Serious Behavior Problem" for Purposes of Qualifying for Positive Behavior Intervention Services under the Regulations? A. A "serious behavior problem" is a behavior problem which: (1) is self-injurious or assaultive or (2) causes serious property damage or (3) is severe, pervasive, and maladaptive, and for which instructional/behavioral approaches specified in the student's IEP are found to be ineffective. [5 Cal. Code Regs. Sec. 3001(y).] If the child's behaviors are not to the level of a serious behavior problem which would entitle her to a functional analysis assessment, parents should insist that any behavioral interventions used be specified in the IEP. If the milder behavioral problems develop into more severe, pervasive and maladaptive behaviors, but nothing has been specified in the IEP to address them, a child may not technically meet the definition of "serious behavior problem," and a school district may insist on one more opportunity to try to address the otherwise serious behaviors with "instructional/behavioral approaches" rather than a functional analysis. 37. Q. What Is a "Functional Analysis Assessment"? A. A functional analysis assessment report must include the following: (1) A description of the serious behavior problems targeted for change; (2) The current frequency of the behaviors; (3) A description of the circumstances that often lead to the behaviors (for example, the physical and social setting, the activities going on, and the student's degree of choice at the time); (4) The consequences that maintain the behaviors (for example, does the behavior serve a communicative function for the student -- is it a request or a protest?); (5) A description of the frequency of alternative behaviors, the circumstances under which they occur, and the consequences of those alternative behaviors. [5 Cal. Code Regs. Sec. 3052(b)(2).] The functional analysis assessment involves a great deal of observation of the student and study of his environments and past history as part of the process of obtaining the information described above. [5 Cal. Code Regs. Sec. 3052(b)(1).] 38. Q. What Is a "Positive Behavior Intervention Plan"? A. A positive behavior intervention plan must include the following: (1) A summary of information from the functional analysis assessment; (2) An objective and measurable description of the targeted serious behaviors and positive replacement behaviors; (3) Goals and objectives specific to the targeted behaviors; (4) a detailed description of the behavioral interventions to be used and the circumstances for their use; (5) Schedules for recording the frequency of use of the interventions and the demonstration of replacement behaviors; (6) Criteria for determining when the interventions will be phased out or replaced with less intense or less frequent interventions; (7) The extent to which interventions will be used in the student's home and in other settings. (8) Specific dates for the IEP team to review the behavior intervention program's effectiveness. [5 Cal. Code Regs. Sec. 3001(f).] Behavior intervention plans must contain sufficient detail to direct their implementation. [5 Cal. Code Regs. Sec. 3052(c).] 39. Q. What Are "Positive Behavior Interventions"? A. Positive behavior interventions are procedures which, for example, a teacher could use each time a student displays, or is likely to display, a targeted serious behavior problem. Behavior interventions must not simply eliminate serious behavior problems, but must simultaneously teach alternative positive behaviors. [5 Cal. Code Regs. Sec. 3052(a)(2).] In other words, school districts should not use techniques that simply contain or suppress problem behaviors unless they also teach the student substitute appropriate behaviors. The procedures include, but are not limited to: (1) Altering events in anticipation of a serious behavior problem to try to prevent its occurrence; (2) Teaching an alternative behavior that produces the same results for the student but is more socially acceptable; (3) Teaching adaptive behaviors, that is, methods of coping with unanticipated events; and/or (4) Manipulating the consequences for serious behavior problems and appropriate behavior so that appropriate behavior achieves the desired outcome and serious behavior problems are ignored. [5 Cal. Code Regs. Sec. 3052(d)(2).] Positive behavior interventions also include procedures for responding to and reinforcing appropriate behaviors. [5 Cal. Code Regs. Sec. 3052(e).] 40. Q. What Behavioral Interventions Are Prohibited? A. Behavior interventions cannot involve infliction of pain or trauma, including emotional trauma. [5 Cal. Code Regs. Secs. 3001(d), 3052(a)(5).] More specifically, behavior interventions cannot involve any of the following: (1) Release of toxic or unpleasant sprays near the student's face; (2) Denial of adequate sleep, food, water, shelter, bedding, comfort, or access to bathroom facilities; (3) Subjecting the student to verbal abuse, ridicule or humiliation, or causing emotional trauma; (4) Use of locked seclusion; (5) Prevention of adequate supervision of the student; (6) Depriving the student of one or more of his/her senses; (7) Employing any device, material or object that simultaneously immobilizes all four extremities (except for prone containment in emergencies). [5 Cal. Code Regs. Secs. 3052(i), 5052(l).] 41. Q. What Can School Personnel Do If My Child Suddenly Has A Dangerous Behavioral Outburst? A. If your child exhibits unpredictable spontaneous behavior which poses a clear and present danger to herself or others or serious property damage, the school personnel may use emergency interventions, including prone containment by trained staff, for the time necessary to address the emergency. [5 Cal. Code Regs. Sec. 3001(c), 3052(i).] To prevent emergency interventions from being used in place of systematic behavioral interventions, the parent (and residential care provider, if appropriate) shall be notified of the emergency intervention, or if serious property damage occurs, within one school day and a Behavioral Emergency Report shall be filed. If the student does not have a behavioral intervention plan, then an IEP meeting shall be scheduled within two days to determine whether a functional analysis assessment is necessary and to determine the necessity for an interim behavioral intervention plan. If a functional analysis assessment is not initiated, the IEP team must document the reasons for that decision. [5 Cal. Code Regs. Sec. 3052(i)(7).] If the student has a behavioral intervention plan which was not effective for the emergency behavior, then an IEP review shall be conducted to see if the plan needs to be modified. [5 Cal. Code Regs. Sec. 3052(i)(8).] 42. Q. What Is Assistive Technology under Idea? A. An assistive technology device is any item, piece of equipment, or product system -- whether acquired commercially off the shelf, modified or customized -- that is used to increase, maintain or improve the functional capabilities of children with disabilities. [34 C.F.R. Sec. 300.5.] Assistive technology services include: (1) evaluation for an assistive technology device; (2) purchasing, modifying or repairing such a device; and (3) training necessary for the student and others to use the device effectively. [34 C.F.R. Sec. 300.6.] An August 1990 letter from the Office of Special Education Programs (OSEP) clearly interpreted the definition of related services to include assistive technology. The letter emphasized the hallmark of special education law -- that the determination of what constitutes a free, appropriate public education must be made on an individual basis, and any needed services must be included in the student's IEP. Other OSEP policy letters and hearing decisions provide further clarification of the types of assistive services and devices that fall within the scope of IDEA's mandate. Assistive devices that OSEP found to be related services within IDEA's mandate include: Apple IIe computer; auditory training equipment; computer assistance; computerized communication system; device for loading/unloading students from a bus; and a $7,000 liberator communication device. A 1978 Bureau of Education for the Handicapped policy letter concluded that individually prescribed devices (such as glasses and hearing aids) are generally considered personal items and not the responsibility of educational agencies to provide. It is not clear how or whether this "related services exception" will be applied to assistive technology. 43. Q. How Can I Determine When Assistive Technology Is a Related Service? A. A determination of whether an assistive technology device or service is a related service under IDEA follows the basic legal mandates for providing a free, appropriate public education. It includes a determination of whether the device or service is necessary to assist the student in benefitting from his education, and/or whether the device or service is necessary to fulfill the school district's obligation to educate students with disabilities in the regular education environment unless "the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." In applying these standards, hearing officers have considered: (1) The importance of language to education, the lack of alternative systems, and positive prognosis in ordering a district to provide a communication device; (2) The ability of a lift to improve gross motor skills and safety, normalcy and family acceptance of the device in deciding which means of removing a child from a buss would be acceptable; and (3) Whether the student's IEP appropriately considered his potential. 44. Q. Can My Child Use the Assistive Technology Equipment Outside of the School Day? A. An increasingly common request is for the assistive technology to be available for the student to use at home. Hearing officers have consistently held that, even though the district owns the device, it cannot limit use to the school grounds if a student needs the device at home or in a community setting to receive a free, appropriate public education -- to complete school homework, to practice functional skills in non-school environments. 45. Q. Who Pays for Assistive Technology Devices? A. Although most assistive technology equipment is not expensive, one of the most frequent barriers to providing assistive technology devices is cost -- and the corresponding question of who is responsible for purchasing the needed equipment. IDEA places the ultimate responsibility on school districts for providing (and funding) all services necessary to provide a student with a free and appropriate education -- including assistive technology. School districts have no obligation to pay for services if there are alternate funding sources -- such as private insurance, Medicaid, EPSDT, and vocational rehabilitation. However, school districts cannot require parents to buy assistive devices. Districts can only require parents to use private insurance in limited circumstances. Return Home Previous Page