|SPECIAL EDUCATION RIGHTS AND RESPONSIBILITIES|
Information on Related Services
From a 12-Chapter Manual - Available by Chapter and in Manual Form
Community Alliance for Special Education (CASE)
and Protection and Advocacy, Inc. (PAI)
Copyright © 1992 by CASE and PAI - Revised January 1998
Written permission of the Community Alliance for Special Education (CASE) and Protection and Advocacy, Inc. (PAI) must be obtained for duplication of the materials contained in Special Education Rights and Responsibilities.
These materials are based on special education laws and court decisions in effect at the time of publication. Federal and state special education law can change at any time. If there is any question about the continued validity of any information in the handbook, contact CASE, PAI or a legal authority in your community.
Community Alliance for Special Education (CASE), provides legal support, representation, technical assistance consultations, and training to parents throughout the greater San Francisco Bay Area whose children need appropriate special education services. Trained advocates and attorneys assist parents at IEP meetings, Mediation Conferences and Due Process Hearings. CASE also provides free consultations about special education rights and services to parents and professionals by telephone or face-to-face. CASE is a nonprofit organization serving all children with disabilities who need or may need special education services. For more information, contact:
Protection and Advocacy, Inc. (PAI), is a private, nonprofit organization that protects the legal, civil and service rights of Californians who have developmental or mental disabilities. PAI provides a variety of advocacy services, including information and referral, technical assistance, and direct representation. For information or assistance with an immediate problem, call:
Toll Free/TTY: (800) 776-5746
8:30 AM to 5:00 PM - Monday through Friday
PAI receives funding under the Developmentally Disabled Assistance and Bill of Rights Act and the Protection and Advocacy for Mentally Ill Individuals Act. Any opinions, findings, recommendations or conclusions expressed in this publication are those of the authors and do not necessarily reflect the views of the organizations which fund PAI.
On June 4, 1997, the Individuals with Disabilities Education Act (IDEA) was amended by Congress and signed into law by President Clinton. Most of the new provisions in IDEA became effective on that date. Community Alliance for Special Education (CASE) and Protection & Advocacy, Inc. (PAI) have incorporated these amended IDEA provisions into the Seventh Edition of the Special Education Rights and Responsibilities (SERR) manual.
Because special education services in California are funded in part with federal money, these IDEA amendments take precedence over any prior inconsistent federal law or current state law, except where state law provides more protections or at least the same level of protections. In this edition of SERR, citations of federal law refer to the section numbers where these amendments appear in federal law at Title 20 of the United States Code. Citations of federal regulations refer to current, unrevised federal regulations at Title 34 of the Code of Federal Regulations. State citations refer to current California law and regulations.
New federal regulations must now be developed to implement the new federal statutes. The new federal regulations are supposed to be issued by July 1, 1998. However, this process may take longer. In addition, California special education law and implementing regulations will also be amended once federal regulations are issued. CASE and PAI will monitor the development of these final federal regulations, and state law and regulations, so that final federal and state laws and regulations can be incorporated into later supplements and editions of SERR.
It is important for you to know that the Individual Education Program (IEP) provisions of the IDEA amendments do not become effective until July 1, 1998. Since IEPs written for the 1998099 school year must meet the new IDEA IEP requirements, CASE and PAI have chosen to include these new IEP provisions in this edition of the SERR manual (Chapter 4). We hope that this information will help as you develop IEPs for the 1998-99 school year and beyond.
For further information on the development of federal and state law and regulation, or clarification about IDEA implementation, please contact CASE or PAI.
RIGHTS AND RESPONSIBILITIES
TABLE OF CONTENTS
TABLE OF CONTENTS
Chapter 1 Information on Basic Rights and Responsibilities
Chapter 2 Information on Evaluations/Assessments
Chapter 3 Information on Eligibility Criteria
Chapter 4 Information on IEP Process
Chapter 5 Information on Related Services
Chapter 6 Information on Due Process Hearings/Compliance Complaints
Chapter 7 Information on Least Restrictive Environment
Chapter 8 Information on Discipline of Students with Disabilities
Chapter 9 Information on Inter-Agency Responsibility for Related Services (AB 3632/882)
Chapter 10 Information on Vocational Education
Chapter 11 Information on Preschool Education Services
Chapter 12 Information on Early Intervention Services
NOTE: The text in each chapter refers to specific questions in other chapters by using the titles shown above.
RIGHTS AND RESPONSIBILITIES
Information on Related Services
TABLE OF CONTENTS
18. My child needs health services such as tracheostomy care or catheterization in order to attend school, but the school district told me it does not have to provide such services because they are "medical." Is this true?
31. My child is placed in a non-public school. Can he receive related services from the public school system if he needs the services to benefit from education, and the services are not available from the non-public school?
32. My child attends a religious school. Can she receive related services from the public school system if she needs such services to benefit from education and the services are not available at the religious school?
>> Positive Behavioral Intervention Procedural Flowchart (not attached - to ask for a copy, e-mail firstname.lastname@example.org)
>> Positive Behavioral Intervention Procedural Flowchart -- Emergency Intervention Procedures (not attached - to ask for a copy, e-mail email@example.com)
RIGHTS AND RESPONSIBILITIES
Information on Related Services
1.What are related services?
Put simply, related services are any services which are necessary to help a student benefit from his special education program. The following definition is quoted from the current version of the federal regulations, but the list of related services also includes any new related services recently added by amendments to federal special education law [Title 20 United States Code (U.S.C.) Sec. 1401(22) ]:
34 Code of Federal Regulations (C.F.R.) Sec. 300.16: Related Services
(a) As used in this part, the term "related services" means transportation and such developmental, corrective, and other supportive services as are required to assist a handicapped child to benefit from special education, and includes speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, early identification and assessment of disabilities in children, counseling services, including rehabilitation counseling, and medical services for diagnostic or evaluation purposes. The term also includes school health services, social work services in schools, and parent counseling and training.
As a result of recent amendments to federal law, the definition has been expanded to include "orientation and mobility services" . [See Title 20 U.S.C. Sec. 1401(22).] This term is not defined in either the statute or regulations at this time.
Existing Title 34 C.F.R. Sec. 300.16 furthers defines some of these services as follows:
(1) Audiology includes:
(i) Identification of children with hearing loss;
(ii) Determination of the range, nature, and degree of hearing loss, including referral for medical or other professional attention for the habilitation of hearing;
(iii) Provision of habilitative services, such as language habilitation, auditory training, speech reading (lip reading), hearing evaluation, and speech conservation;
(iv) Creation and administration of programs for prevention of hearing loss;
(v) Counseling and guidance of students, parents and teachers regarding hearing loss; and
(vi) Determination of the child's need for group and individual amplification, selecting and fitting an appropriate aid, and evaluating the effectiveness of amplification.
(2) Counseling services, including rehabilitation counseling, means services provided by qualified social workers, psychologists, guidance counselors, or other qualified personnel.
(3) Early identification means the implementation of a formal plan for identifying a disability as early as possible in a child's life.
(4) Medical services means services provided by a licensed physician to determine a child's medically related handicapping condition which results in the child's need for special education and related services.
(5) Occupational therapy includes:
(i) Improving, developing or restoring functions impaired or lost through illness, injury or deprivation;
(ii) Improving ability to perform tasks for independent functioning when functions are impaired or lost;
(iii) Preventing, through early intervention, initial or further impairment or loss of function.
(6) Parent counseling and training means assisting parents in understanding the special needs of their child and providing parents with information about child development.
(7) Physical therapy means services provided by a qualified physical therapist.
(8) Psychological services include:
(i) Administering psychological and educational tests, and other assessment procedures;
(ii) Interpreting assessment results;
(iii) Obtaining, integrating, and interpreting information about child behavior and conditions relating to learning;
(iv) Consulting with other staff members in planning school programs to meet the special needs of children as indicated by psychological tests, interviews, and behavioral evaluations; and
(v) Planning and managing a program of psychological services, including psychological counseling for children and parents.
(9) Recreation includes:
(i) Assessment of leisure function;
(ii) Therapeutic recreation services;
(iii) Recreation programs in schools and community agencies; and
(iv) Leisure education.
(10) Rehabilitation counseling services means services provided by qualified personnel in individual or group sessions that focus specifically on career development, employment preparation, achieving independence, and integration in the workplace and community of a student with a disability. The term also includes vocational rehabilitation services provided to students with disabilities by vocational rehabilitation programs funded under the Rehabilitation Act of 1973, as amended.
(11) School health services means services provided by a qualified school nurse or other qualified person.
(12) Social work services in schools include:
(i) Preparing a social or developmental history on a handicapped child;
(ii) Group and individual counseling with the child and family;
(iii) Working with those problems in a child's living situation (home, school and community) that affect the child's adjustment in school; and
(iv) Mobilizing school and community resources to enable the child to receive maximum benefit from his or her educational program.
(13) Speech pathology includes:
(i) Identification of children with speech or language disorders;
(ii) Diagnosis and appraisal of specific speech or language disorders;
(iii) Referral for medical or other professional attention necessary for the habilitation of speech or language disorders;
(iv) Provision of speech and language services for the habilitation or prevention of communicative disorders; and
(v) Counseling and guidance of parents, children, and teachers regarding speech and language disorders.
(14) Transportation includes:
(i) Travel to and from school and between schools;
(ii) Travel in and around school buildings; and
(iii) Specialized equipment (such as special or adapted buses, lifts and ramps), if required to provide special transportation for a handicapped child.
The comment to this regulation states:
The list of related services is not exhaustive and may include other developmental, corrective, or supportive services (such as artistic and cultural programs, and art, music, and dance therapy), if they are required to assist a student with a disability to benefit from special education.
The comment to the regulation further makes clear that not all related services will be required for each individual child. Related services may be provided by persons from varying professional backgrounds. Not all such personnel will be directly employed by school districts; they may be provided by other public agencies or by contracts between school districts and private providers. However, in all cases the state education agency (generally through the local education agencies) is ultimately responsible for ensuring that related services are provided. [34 C.F.R. Sec. 300.600; California Education Code (Cal. Ed. Code) Secs. 56360, 56361, 56363.]
Although not specifically identified as a related service, federal law requires that districts
ensure that assistive technology devices and/or services are available to special education
students who need them as part of their special education or related services or as part of
the supplemental aids and services used to assist them in being placed in the least
restrictive environment. [34 C.F.R. Sec. 300.308.] See Questions 38 to 41 below.
2.What is the difference between "Related Services" and "Designated Instruction and Services" (DIS)?
"Designated Instruction and Services" (DIS), is California's definition of the term "related
services." [Cal. Ed. Code Sec. 56363; 5 California Code of Regulations (Cal. Code Regs.) Sec.
3051.] California's definition of DIS basically follows the federal definition of related services,
although it is narrower in scope in some respects. However, a child's entitlement to special
education and related services is a right established under federal law; state law cannot be
applied to deny services to which a child would be entitled under federal law.
3.What does "required to assist a child with a disability to benefit from special education" mean?
This phrase is the key in determining whether a school district is responsible for providing a
related service to a student with a disability. A school district does not have to provide a service
to a student with a disability just because he will benefit from the service, or even if he requires
the service. The service is only "related" if it is necessary to help him benefit from educational
instruction. Examples of such situations are given in the questions and answers below.
4.What is an example of a needed service that is not "related" to education?
A student and her family could require social work services because of problems at home, but she
is progressing appropriately in school in spite of the problems. The student needs the service, but
not for educational reasons. If she were not performing appropriately in school as a result of
family problems, social work services could be "related" to her ability to succeed in school. In that
case, the services would be the school district's responsibility.
5.When can my child get transportation as a related service?
Transportation is a related service when it is necessary in order for a student to attend a special education program due to the distance he lives from school or his disability. Transportation is also available to and from related services which are not provided at the school site. Note that while the state reimburses school districts only for certain types of transportation, the school district cannot use lack of reimbursement as a reason to deny needed services. [34 C.F.R. Sec. 300.16.]
The California Department of Education (CDE) developed guidelines for use by IEP teams in determining when transportation is needed as a related service. The guidelines, issued November 23, 1993, state in part:
Guidelines for Use by the Individualized Education Program (IEP) Team
... The specific needs of the pupil must be the primary consideration when an IEP team is determining any transportation needs. These may include, but are not limited to:
1. Medical diagnosis and health needs.
Consideration of whether long bus rides could affect a certain pupil's health (duration, temperature control, need for services, health emergencies); general ability and/or strength to ambulate/wheel; approximate distance from school or the distance needed to walk or wheel oneself to the school; consideration of pupil needs in inclement or very hot weather, other;
2. Physical accessibility.
For pupils using wheelchairs who may live close to school or use public transportation, consideration of the physical accessibility of curbs, sidewalks, streets, and public transportation systems;
3. Pupil capacity.
Consideration of a pupil's capacity to arrive at school on time, to avoid getting lost, to avoid dangerous traffic situations, and to avoid other potentially dangerous of exploitative situations o the way to and from school;
4. Behavior Intervention Plans.
Behavior intervention plans (5 Cal. Code Regs. 3001) specified by the pupil's IEP and consideration of how to implement such plans while a pupil is being transported;
5. Other transportation needs.
Mid-day or other transportation needs as required on a pupil's IEP (for example, occupational or physical therapy or mental health services at another site, community based classes, etc.) must also be taken into consideration when the IEP team discusses a pupil's placement and transportation needs...
Considering the identified needs of the pupil, transportation options may include, but not be limited to: walking, riding the regular school bus, utilizing available public transportation (any out-of-pocket costs to pupil or parents are reimbursed by the local education agency), riding a special bus from a pick up point, and portal-to-portal special education transportation via a school bus, taxi, reimbursed parent's driving with a parent's voluntary participation, or other mode as determined by the IEP team.
When developing specific IEP goals and objectives related to the pupil's use of public transportation, the IEP team may wish to consider a blend of transportation services as the pupil's needs evolve. Specialized transportation as a related service must be written on the pupil's IEP with specificity and should be approved by the transportation administrator. It is recommended that transportation services be described in sufficient enough detail to inform the parties of how, when and from where to where transportation will be provided and, where arrangements for the reimbursement of parents are required, the amount and frequency of reimbursement.
Suspension from the school bus:
Occasionally pupils receiving special education services are suspended from bus transportation (Cal. Ed. Code 48900-48900.5, Grounds for Suspension). The suspension of a pupil receiving special education services from California transportation can constitute a significant change of placement if the district: 1) has been transporting the student; 2) suspends the student from transportation as a disciplinary measure; and 3) does not provide another mode of transportation (Office of Civil Rights, Letter of Finding, Complaint No. 04-89-1236, December 8, 1989).
A significant change in placement requires a meeting of the IEP team to review the pupil's IEP. During the period of any exclusion from bus transportation, pupils must be provided with an alternative form of transportation at no cost to the pupil or parent in order to be assured of having access to the required special education instruction and services [Cal. Ed. Code 48915 .5(j)]...
The guidelines do not override the general provisions of federal law that require districts to
provide transportation to special education students when, because of distance or disability, the
transportation is necessary for the child to get to his school program. [Cal. Ed. Code Sec. 56040,
6.Can the school district refuse to provide out of district transportation for my child?
Yes. However, it may be possible to compel the district to provide out of district transportation when the transportation is necessary and appropriate to meet the individual needs of the child. When establishing the necessity and appropriateness of out of district transportation, consider the following:
(1) The unique nature of the program or service to be provided out of district;
(2) The availability of comparable programs or services within the district/lack of appropriate alternatives;
(3) The specific needs of the child and family;
(4) The child's disability and level of functioning;
(6) Academic and non-academic benefits;
(7) Least restrictive environment;
(8) Inability to secure alternative means of transportation.
7.Can the school district stop providing transportation if my child is mainstreamed in regular classes?
No. So long as the IEP team determines that your child needs transportation, he is entitled to
receive it. For example, even though your child with learning disabilities is in regular classes for
more than half the day, his learning disabilities may make it unsafe or very difficult for him to take
public transportation to school. Thus, transportation should be provided.
8.May a school district provide transportation only to those students who live at least a specified minimum distance from their school site (for example, two miles)?
No. Such a categorical limitation would be inconsistent with the requirement that related services
be provided based on individual need. If, because of the child's disability, she needs transportation
to attend school, the school district must provide it.
9.May a school district require parents to provide transportation if they are able?
No. The parents' ability to provide transportation does not relieve the school district of its
responsibility. In some instances, where the parents have agreed, school districts have
reimbursed parents for mileage for providing transportation which the school district would
otherwise have to provide. In these instances, parents are entitled to be reimbursed at the rate the
district reimburses its employees and to be reimbursed for the total round trip mileage.
10.When can my child get occupational or physical therapy as a related service?
Occupational therapy and physical therapy (OT/PT) address a student's gross and fine motor functioning. For example, a student may have difficulty running, walking, throwing, catching, jumping, etc. (gross motor), or writing, drawing, buttoning and zipping clothes, etc. (fine motor). In addition, a student's motor functioning may affect independent living skills. If a student of normal intelligence has verbal skills that are higher than motor skills, or if a more severely disabled student has difficulty with daily living skills such as feeding, dressing, etc., this may be an informal indicator that could prompt a request for evaluation of OT/PT as "related services."
OT/PT are among the services affected by California legislation commonly referred to as "AB 3632", which shifted responsibility for providing certain related services from school districts to other agencies (in this case, to California Children Services (CCS)) under certain circumstances. Many of the issues that arise concerning OT/PT are discussed in Chapter 9, Information on Inter-Agency Responsibility for Related Services (AB 3632/882). Among these issues are the following:
(1) What are the procedures for obtaining OT/PT?
(2) What happens if a student does not meet CCS's eligibility requirements but still needs OT/PT?
(3) If CCS determines that OT/PT is not "medically necessary", is the student still entitled to
receive the service as a related service? If so, who provides it?
11.When can my child get psychological counseling or other mental health services as a related service?
Psychological services include counseling and psychotherapy. The difference between the two is determined by the qualifications of the provider. Counseling is provided by a credentialed counselor or school psychologist. Psychotherapy in California must be provided by a psychiatrist, licensed psychologist, a licensed marriage, family, and child counselor (MFCC), or a licensed clinical social worker (LCSW). Counseling generally focuses on school and school-related issues such as behavior in school, grades, curriculum, etc. Psychotherapy generally focuses on a student's emotional status, and feelings towards peers and family. Psychotherapy is available when your child's emotional status has a negative effect on his educational performance. Other mental health services such as "day treatment programs" which integrate psychological counseling throughout the school day can also be provided.
Like OT/PT, AB 3632 affects some mental health services, including psychotherapy. In this case, responsibility for mental health services was given to the California Department of Mental Health (DMH) and local mental health agencies. Among the issues concerning AB 3632 and mental health services, which are addressed in Chapter 9, Information on Inter-Agency Responsibility For Related Services (AB 3632/882), are the following:
(1) What are the procedures for obtaining mental health services from mental health agencies?
(2) Which mental health services are available from mental health agencies?
(3) What happens if a child does not meet eligibility requirements for services from a local mental
health agency but still needs mental health services to help him benefit from special education?
12.Does my child need to be classified as "seriously emotionally disturbed" to receive mental health services?
No. Mental health services, such as counseling and psychotherapy, must be provided to any child
who needs the service to help her benefit from special education.
13.When can my child get speech or language therapy as a related service?
Speech and language therapy may be the most frequently requested related service, primarily because language is so closely related to education. Speech therapy addresses articulation difficulties, a common disability. Language therapy addresses difficulties with memory, verbal expression, and listening problems. If your child has any difficulties with speech or language, you should ask school district, in writing, to do a speech and language evaluation.
Any student eligible for special education may receive speech and language therapy if he needs the
service to benefit from special education. Special education students do not need to meet the
special education eligibility criteria for speech and/or language disorders in order to receive
speech and language therapy as a related service.
14.Can the school district limit all children to two half-hour speech therapy sessions per week because it only has one speech therapist on staff?
No. The frequency of a related service and the amount of time in each session must be individually
determined based on your child's needs at the IEP team meeting. Frequency and amount of time
should be written on the IEP. See Question 23.
15.Can my child get communication services and equipment if he is non-oral?
Yes. If your child is non-oral, you may want to ask the school district to contract with a non-oral
communications specialist to do an assessment. Depending on the results of the assessment, the
IEP team may decide that your child would benefit from specialized services such as a
computerized communications device and instruction in using this device. [Cal. Ed. Code Sec.
16.Can my child receive vision therapy as a related service?
Yes, if your child needs vision therapy in order to benefit from special education. Vision therapy
may include remedial and/or developmental instruction provided directly by or in consultation
with an optometrist, ophthalmologist, or by another qualified licensed physician or surgeon. [5
Cal. Code Regs. Sec. 3051.75.]
17.What are school health services and who provides them?
School health services are services provided by a qualified school nurse or other qualified person. These services include health and nursing services such as:
(1) Managing a student's health problems on the school site;
(2) Consulting with students, parents, teachers and others;
(3) Counseling with parents and students concerning health problems; and
(4) Providing specialized physical health care services which are necessary during the school day to enable the child to attend school. [5 Cal. Code Regs. Sec. 3051.12.]
California law defines specialized physical health care services to include "catheterization, tube feeding, suctioning or other services that require medically related training." [Cal. Ed. Code Sec. 49423.5(d).]
Under state law, there are two ways in which specialized physical health care services may be provided. The California Department of Health Services (DHS) is responsible for providing a home health aide through Medi-Cal if the following conditions exist:
(1) The child is eligible for Medi-Cal;
(2) The child is being considered for a less restrictive placement from home to school;
(3) The child requires the personal assistance or attention of a nurse, home health aide, or other specially trained adult; and,
(4) Medical support services through the Medi-Cal program are being provided during the time the student would be in school, or traveling to or from school. [California Government Code (Cal. Gov. Code) Sec. 7575(e); 2 Cal. Code Regs. Sec. 60400.]
For special education students who do not meet these conditions, specialized physical health care
needs are to be provided by the responsible local school district. [Cal. Ed. Code Secs. 49423.5,
56363(b)(12); 5 Cal. Code Regs. Sec. 3051.12; 2 Cal. Code Regs. Sec. 60400.]
18.My child needs health services such as tracheostomy care or catheterization in order to attend school, but the school district told me it does not have to provide such services because they are "medical." Is this true?
The distinction between "medical services" and school health services is important. Except for
those medical services that are for "diagnostic or evaluation purposes", school districts are not
responsible for providing medical services as related services. The U.S. Supreme Court addressed
this issue in the Tatro case. The court pointed out that "medical services" are defined in federal
law as "services provided by a licensed physician." Therefore, the court reasoned that if a service
can be performed by a school nurse or other qualified person and is not one that must be
provided by a licensed physician, then it is not a medical service -- but it is a related service if it is
necessary to help a child with a disability benefit from special education. If your child needs the
health service to be able to attend school at all, then she needs it to benefit from special education.
19.My child needs nursing services in order to attend school, but the school district told me it does not have to provide such services because they are "medical." Is this true?
The law in this area is not entirely settled. Courts in other states have ruled that school districts need not provide nursing services as related services if they are intensive or continuous in nature. School districts are more likely to challenge their responsibility for providing such services, especially if only a full-time skilled RN or LVN can provide the service.
If you are confronted with this situation, you should get clear documentation from your child's
doctor as to what services he needs and the necessary qualifications of the persons who can
provide the services. If you cannot resolve the issue with the school district informally, it may be
necessary to use the compliance complaint or due process procedures. See Chapter 6,
Information on Due Process Hearings/Compliance Complaints.
20.Can the school district require me to attend school with my child to perform health-related services?
No. Any such requirement would violate the idea of a free appropriate public education, since it is
not free to the parents if they must commit their time. Nor can your child's right to attend school
be legally conditioned on your presence at the school.
21.Can I have the school district provide a certain type of related service?
There are frequently different "methods" of providing a particular service. For example, the State
Office of Special Education has determined that "sensory integration therapy" is one method for
providing OT. While a school district must provide a related service that is educationally
necessary, it has been decided generally that the district has no obligation to provide a specific
method. Unless you can show that the school district's chosen method would be
inappropriate for your child, the choice of method usually is up to the trained specialist
providing the service.
22.How do I decide who is qualified to provide a related service?
State and federal regulations specify that a person is qualified if they meet federal and state certification, licensing or registration requirements. In addition, the person must adhere to the standards of professional practice established under state or federal law. If you have questions about a person's qualifications, you should ask what licenses or certifications they hold.
If provider qualifications are a central component to ensuring your child's appropriate education,
you should ask that the qualifications be written into your child's IEP.
23.What must be written in my child's IEP concerning related services?
Related services should be requested at an IEP meeting and, if determined appropriate, written in your child's IEP. It is not enough to merely list related services (e.g., "speech therapy", "OT/PT", "psychotherapy", etc.) that your child is to receive in the IEP. The IEP must also set out the specific frequency and duration of the service to be provided. [34 C.F.R. Sec. 300.346 and Part 300, App. C, Nos. 44, 45, 51; 5 Cal. Code Regs. Sec. 3051(a)(2).]
The U.S. Department of Education's clarification to the regulations [34 C.F.R. Part 300, App. C, No. 51], which is legally binding, states:
The amount of services to be provided must be stated in the IEP, so that the level of the agency's commitment of resources will be clear to parents and other IEP team members. The amount of time to be committed to each of the various services to be provided must be (1) appropriate to that specific service, and (2) stated in the IEP in a manner that is clear to all who are involved in both the development and implementation of the IEP.
Changes in the amount of services listed in the IEP cannot be made without holding another IEP meeting. However, as long as there is no change in the overall amount, some adjustments in scheduling the services should be possible (based on the professional judgment of the service provider) without holding another IEP meeting. (NOTE: The child's parents should be notified whenever this occurs.)
It is also appropriate to detail clearly the services required. Instead of "speech therapy", the statement might include: "individual instruction for a minimum of one hour on a weekly basis in phonology and syntax provided by a credentialed Language, Speech and Hearing Specialist, with supportive group activities on a daily basis in the classroom, provided by the teacher or aide in consultation with the Specialist."
Other examples of appropriate provider qualifications include "health aide with CPR training", "instructional aide fluent in signing", etc.
In addition, the IEP should include the goals and objectives of each service, and appropriate objective criteria, evaluation procedures and schedules for determining whether the objectives are being achieved. (Obviously, this would not be required for a service intended only to enable the child to get to or attend school, such as transportation.)
The above information must be written in the IEP regardless of whether the service is to be
provided directly by the school district, by a private provider or by another public agency (such as
CCS) or a local mental health agency under AB 3632/882). [34 C.F.R., Part 300, Appendix C,
No. 44.] [For more information on requirements for the IEP, see Chapter 4, Information on IEP
24.Can the amount of related services, or IEP objectives for related services, be changed without convening an IEP meeting?
No. 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. [Cal. Ed. Code Secs. 56340, 56341(a), 56343(c); 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).]
25.If my child is placed full time in a regular classroom is he entitled to receive related services?
Yes. 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; Cal. Gov. Code Sec.
26.Are school districts responsible for providing children with instructional aides?
Yes. The school district must provide an aide if your child needs an aide to 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.
27.What can I do if my 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.
28.Looking at the list of related services stated in the law, it seems that school districts must provide many non-academic services. Do school districts actually provide these 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 Chapter 2,
Information on Evaluations/Assessments, for information on obtaining independent assessments
at public expense.
29.Under what circumstances is my child entitled to residential placement?
Federal law provides that "[i]f 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. In fact, in California, residential placement for this purpose is
classified as "transportation." [Cal. Ed. Code Sec. 41850(b)(3).]
30.Must my child be classified as seriously emotionally disturbed before she is entitled to a residential placement?
No. There is some confusion because AB 3632 addresses procedures and responsibilities for
obtaining residential placement for seriously emotionally disturbed children. Other children who
need residential placement for educational purposes are still entitled to such placements. They
would not be covered by AB 3632, but the local school districts would remain responsible for
their residential placement. See Chapter 9, Information on Inter-Agency Responsibility for
Related Services (AB 3632/882).
31.My child is placed in a non-public school. Can he receive related services from the public school system if he needs the services to benefit from education, and the services are not available from the non-public school?
Yes. 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 Question 32 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.]
32.My child attends a religious school. Can she receive related services from the public school system if she needs such services to benefit from education and the services are not available at the religious school?
Federal law gives limited rights to children placed in private schools unilaterally by their parents.
The school district must provide for the participation of these students in the district's special
education programs. However, the amount of money spent on these students may be limited to
only a proportionate share (based on the number of these students there are in the district) of the
federal dollars received by the district. Currently, only about 8% of the dollars required to provide
special education are federal dollars. In a district with 1,000 children, 10 of whom are children
with disabilities enrolled in private schools unilaterally by their parents, a district would only have
to spend 1% of the 8% of its special education revenue on making provision for the participation
of these 10 students in its special education programs. Services may be provided on the premises
of private schools, even parochial schools "to the extent consistent with law." [20 U.S.C.
33.My child has ongoing behavior problems. Does the school district have any service responsibility to address those problems?
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.What does "behavioral intervention" mean and what purpose does it serve?
"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.
35.What do the new positive behavior intervention regulations require of school districts?
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.What is a "serious behavior problem" for purposes of qualifying for positive behavior intervention services under the regulations?
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.What is a "functional analysis assessment"?
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.What is a "positive behavior intervention plan"?
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.What are "positive behavior interventions"?
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.What behavioral interventions are prohibited?
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.What can school personnel do if my child suddenly has a dangerous behavioral outburst?
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.What is assistive technology under IDEA?
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.How can I determine when assistive technology is a related service?
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 bus would be acceptable; and
(3) Whether the student's IEP appropriately considered his potential.
44.Can my child use the assistive technology equipment outside of the school day?
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.Who pays for assistive technology devices?
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.
>> Positive Behavioral Intervention Procedural Flowchart (not attached; e-mail firstname.lastname@example.org to ask for a copy; or call 1-800-776-5746)
>> Positive Behavioral Intervention Procedural Flowchart - Emergency Intervention Procedures (not attached; e-mail email@example.com to ask for a copy; or call 1-800-776-5746)
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