How My Boy Kicked Autism
Chapter 13 School District v. Regional Center
My Boy Blank: 2 weeks shy of 3
Your Initial IEP
The Regional Center went first. There was no advocating, unless by that you mean yawning. It was right after lunch. The Regional Center assessment findings are favorable. You are eligible and the Regional Center is continuing funding for AAA at current levels, 25 hours per week of ABA. They have also offered to fund a combined total of 10 clinical supervision hours per month. Enrique explained that under Title 17, they can pay for only one therapist and one supervisor to attend a clinic meeting and that the agency could otherwise divide the clinic time and program supervision accordingly.
The clinical supervisor from AAA presented next with your most recent progress report and the underlying data to support it. She recommended that your home program be increased to 40 hours per week of ABA, 8 hours per month of program supervision and 16 hours per month of clinic attendance, 52 weeks per year. She also explained the importance of specialized training for all people working with you, including training in data collection. In addition to specialized training, she explained the importance of program consistency across domains so as not to confuse you and to help generalize the skills you are learning at home to school and community environments. As generalization increases, so should your time exposure to school.
The school district presented their assessment collaboratively. They read from their reports and referred to you a lot as kiddo, which I guess is apropos given that they met you only once (except the psychologist, she met you twice.) Their assessment findings were along the same lines as Dr. Bank’s and deemed you eligible for special education services under the designation of “Autistic-like behaviors.”
Free Appropriate Public Education (FAPE)
Much to the pleasant surprise of Melanie and me, the school district recommended an intensive in-home ABA program because they don’t think you have the readiness skills required to be successful in their classroom environment. In order to get you ready, they want to send a district employee to our house to work with you doing something called Intensive Behavior Intervention (IBI) which they say is “embedded with ABA” and they propose to accomplish this in one hour per school day. 5 hours per week as opposed to the recommended 40? And a therapy embedded in the recommended ABA? Melanie asked who this person and what their training is. Apparently the person has not been hired yet so nobody knows. The District also wants you to go to a school site two days a week for a half hour speech therapy session. There is no speech therapist available at our home school so we would have to drive you more than 30 minutes just to get there and back. The school District does not have a clinic for occupational therapy so they are going to pay the therapist that you go to now. We get to keep you jumping; I know it is your favorite hour (3/4 hour) of the week.
After the District presented their supposed FAPE offer, Melanie spoke on our behalf. She disagreed that one hour a day of being “embedded in ABA” is going to help you meet the goal of getting you into a regular education classroom or for that matter meet their recommendation for an intensive ABA program. She requested a copy of any outcome data showing that the program they offered has been effective. The District said no. She requested the qualification, training and caseloads of the mystery District employee once it was determined and for the speech therapist. The District said they do not know if they have that information but they will get back to her. They will also get back to her about where and when the speech services will occur. She asked if the District has a Master Contract with AAA. The District said they did. She asked if they would be willing to fund AAA for the 5 hours per week of services offered but made clear that 5 hours per week is not intensive. The District said no. She requested that the District fund the academic portion of the AAA program that the Regional Center was not responsible for.14 She explained that you need more practice at home and in a less stimulating environment than a classroom. She explained the importance of program consistency and pointed out that the Regional Center was paying for a bulk of home services. The District said no. She requested that the District fund 4 hours per week of NPA speech therapy15 until the District could fit you into their schedule. The District denied the request for the increase in hours. The District denied the request to fund your current provider despite demonstrable progress. She requested an additional hour and 15 minutes of NPA OT. I know how you appreciate patterns, I am sure you can see the pattern here Blank. Guess what the District said? It was Sassy’s first and remains her favorite word. NO. We agreed to the OT service, although noted that it was insufficient. We disagreed with everything else, notified the District of our intention to pay for your program privately16 and seek reimbursement for everything that Melanie asked them to pay for17 and attorney fees.18
Following the IEP meeting, Ms. Segal went to the Fictitious house to strategize. She explained that the next step was to file for a due process hearing (transcript Due Process Hearing) against the district based on failure to offer a FAPE.
Once she filed for due process against the school district thereby documenting the dispute, she requested that the Regional Center, as the payor of last resort, fund Blank’s entire program pending resolution with the school district. She explained why this may necessitate a separate fair hearing against the Regional Center. She discussed what to expect in terms of timing, results and cost.
My Boy Blank- 3 years
Melanie came over today to talk about our next steps. She left us befuddled. A Due Process Hearing? A Fair Hearing? I don’t know if I have the emotional fortitude to withstand either, let alone both. And I am going to have to borrow money from somewhere, which believe you me ain’t so easy today. Our financial resources will only take us so far. I am going to go crunch some numbers.
I’m back. I think that we can afford to do one hearing and keep your program alive for a little while. I am going to call Melanie and see how long these things take. I have to figure out which hearing is more likely to be cost-effective and successful because we can only really afford to do one at this time. BRB.19
Back again. I got my answers from Melanie. The actual cost for each hearing will likely be the same, however, if we take the school district to hearing and prevail, there is a fee shifting statute in IDEIA that allows for reimbursement of attorney fees for issues that we prevail on. The Regional Center has no fee shifting statute so no fee reimbursement. That being said, the Regional Center has a maximization standard that the District does not, so it may end up actually being more cost effective to do Regional Center hearing and pay for the attorney fees.
Melanie suggested that we file against both entities. After we file against the district, there will be a Resolution Session which is an informal meeting to try to resolve the dispute. If nothing is resolved, which based on her experience will be the case, we then go to Mediation. Mediation is a formal meeting presided by a “neutral” mediator wherein both of the parties come together to try and reach a compromise. In our school district, 98% of the cases filed last year were closed prior to hearing, meaning they were withdrawn or settled.
After we file against the Regional Center, we can go to an informal meeting which is how we resolved things already with your Regional Center, and if things are not resolved at that level, there is a Mediation. If we are not successful at the mediation level, we will then do a cost-benefit analysis for either hearing, but for right now, let’s not get ahead of ourselves.
We are going to increase your program to the 40 hours that are recommended so your days are about to get way longer. We are going to go ahead and file against the school district to get funding and/or reimbursement for the increase. Once we do that, we will ask the Regional Center to pay for your whole program20 while we are fighting with the school district.
District Due Process Hearing Transcript
When the parents of a student with disabilities and the educational agency disagree about the child’s eligibility, placement, program needs or related services, either side can request a due process hearing. At the hearing, both sides present evidence by calling witnesses and submitting any reports and evaluations that support their position. An independent hearing officer (hired by the state) decides whose witnesses and documents are correct and what program is appropriate.
As of July 2005, the Office of Administrative Hearings (OAH) conducts Mediations and Due Process Hearings in California. The OAH is a California state agency that provides Administrative Law Judges (ALJs)21 to over 150 state and over 800 local agencies. Administrative Law Judges conduct Due Process Hearings in a manner similar to civil court trials. Each party makes an opening statement, calls witnesses, offers other relevant evidence, and makes closing arguments. The ALJs are neutral22 fact-finders who are fully independent of the agencies whose attorneys appear before them.
Resolution Session
The Resolution Session was a step added to the Due Process Complaint procedure in IDEA 2004. When a parent (not a school district) files a Due Process Complaint, this meeting is intended to create an early opportunity for parents and school district officials to come to an agreement about the issues that have led up to or resulted in a Due Process Complaint. It is an informal meeting with the parent and a representative of the school district. If the parent brings an attorney, there are no fees recoverable for attendance. The parent explains the reason for the complaint and proposes a solution, and school personnel have the opportunity to respond and resolve the conflict. Generally, District’s re-propose the IEP offer without modification.
Special Education Mediation:
OAH also provides mediators to aid in the resolution of disputes between parents and school districts. Mediation is a voluntary process in which the parent of a student with a disability and a school district representative meet with an OAH mediator. OAH requires mediators to have a law degree. By asking questions and discussing all information with both parties, a competent mediator can help the parent and the school district representative resolve disagreements, reach a more complete understanding of each other’s concerns, and agree in a cooperative and timely manner upon the appropriate special education program for the student. Attorney fees for mediation are recoverable.
Regional Center Fair Hearing Transcript
Payor of Last Resort
When a consumer reasonably declines school district services while diligently and in good faith pursuing a not unmeritorious due process case against the district, the Lanterman Act obligates a regional center to provide full funding of his ABA service needs pending resolution of his dispute.
The OAH also conducts Regional Center fair hearings. There is an informal meeting and mediation procedure similar to the procedure for school districts.
Maximization Standard
The Lanterman Act requires that the services and supports(see services and supports below) provided to any consumer must be individually suited to meet the unique needs of the individual while maximizing the consumer’s potential to live independent, productive, normal lives.
Welfare and Institutions Code §4501, 4502
Services and Supports
Lanterman services and supports may include, but are not limited to, diagnosis, evaluation, treatment, personal care, day care, domiciliary care, special living arrangements, physical, occupational, and speech therapy, training, education, supported and sheltered employment, mental health services, recreation, counseling of the individual with a developmental disability and of his or her family, protective and other social and sociolegal services, information and referral services, follow-along services, adaptive equipment and supplies, advocacy assistance, including self-advocacy training, facilitation and peer advocates, assessment, assistance in locating a home, child care, behavior training and behavior modification programs, camping, community integration services, community support, daily living skills training, emergency and crisis intervention, facilitating circles of support, habilitation, homemaker services, infant stimulation programs, paid roommates, paid neighbors, respite, short-term out-of-home care, social skills training, specialized medical and dental care, supported living arrangements, technical and financial assistance, travel training, training for parents of children with developmental disabilities, training for parents with developmental disabilities, vouchers, and transportation services necessary to ensure delivery of services to persons with developmental disabilities.
Welfare and Institutions Code §4501, 4502
My Boy Blank-3 years 6 months
Blank, I have been so over-scheduled with my work schedule and your 40 hours plus schedule every week that I have not been good at keeping up with our journal. Actually, I don’t really need to write in here so much because you and I can kind of talk to each other now, well at least we can understand each other now. The legal stuff is in bureaucratic lala land with the District. After we filed against the Regional Center,
they agreed to fund 10 more hours a week of your therapy and 10 more hours a month of clinical supervision while we are fighting with the school district. They did not agree that they were the payor of last something or other but we didn’t have to go to hearing. We paid for Melanie to write them a letter and they pay the bulk of your program, less the 5 hours per week of ABA and 6 hours per month of clinical supervision that I pay for.
Meanwhile, we are going to try to get all of that money paid back to us by the school District. We have mediation next week which will hopefully be more productive than the first meeting that we had. It was called a Resolution Session and was a complete waste of time. The District simply re-stated the same offer they made at the IEP. Dr. Bank is coming to the mediation and we have a library of data to show your amazing progress so I just know it is going to go better.