Agins & Gilman LLC
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Updated 6.26.17

Shoe of the Month Blog
January 9, 2017

LONG OVERDUE AUTISM INSURANCE REFORM ENACTED 

In December, Ohio became the 45th state to pass autism insurance legislation. Parents, advocates and attorneys have fought for years to obtain payment for expensive yet critical behavioral health services for children with autism. Educators claimed that the services were medical and not educational. Insurers and Medicaid officials claimed that the services were habilitative or educational and not medical. They argued that ABA was ‘experimental’ despite years of research proving its effectiveness. While service systems pointed responsibility to each other,, parents were forced to mortgage homes and quit their jobs to pay for services themselves or, watch their children struggle in the absence of services. With the passage of this new law, parents now may be able to use their private insurance and the Autism Scholarship to pay for private placements and services.

Why is this a big deal? Because it makes significant progress in the hard fought journey in advancing the rights of children with autism. Thirty plus years ago, children with autism were often placed in state run children’s psychiatric hospitals, far away from their families and communities. These institutions primarily medicated and contained the children; no empirically based behavioral services were available. Chemical, mechanical and physical restraints were not uncommon. 

As public institutions closed, some parents in desperation gave up custody of their children with autism because of the uncontrollable behaviors and the lack of community based services. Over time, more parents opted to keep their children at home, cobbling together services as best as they could.

Some families managed to obtain community based services for their children with autism but began to lose those services because of changes to State policies. Potentially life threatening behaviors that had been almost extinguished reemerged. In 2008, a few dozen parents of children with autism filed a groundbreaking federal court case. The court granted a preliminary injunction to stop the State of Ohio from changing rules that would have ended Medicaid payment for applied behavior analysis (ABA). The U.S. Court of Appeals for the Sixth Circuit upheld the lower court’s decision (Parents League for Effective Autism Services v. Jones-Kelley, Case No. 08-3931, 6th Cir. 2009) and the case was settled. But that agreement only directly benefited those who participated in the case.

In 2014, through an executive order, Ohio Governor John Kasich required state employee health plans to cover ABA and other medically necessary services to treat autism. But until H.B. 463 amended Section 1751.84 of the Ohio Revised Code, other insurers were not required to pay for treatment of autism.

The new law finally requires ‘parity’ by prohibiting dollar limits, deductibles, or coinsurance provisions that are less favorable to an enrollee with autism than the dollar limits, deductibles, or coinsurance provisions that apply to other medical and surgical benefits under insurance policies.

The law also requires coverage of, at minimum, all of the following: 
(1) Twenty visits per year for speech and language therapy or occupational therapy;
(2) Twenty hours per week for clinical therapeutic intervention;
(3) Thirty visits per year for mental or behavioral health outpatient services for consultation, assessment, development, or oversight of treatment plans.
In order to be covered, the insurer must give “prior authorization” and the services must be prescribed or ordered by either a developmental pediatrician or a psychologist trained in autism.
The law specifies that its requirements do not limit any obligation to provide services under an individualized family service plan, an individualized education program, or an individualized service plan. Thus families can use their insurance to supplement educational services, including those provided through the Autism Scholarship Program.
The law also includes definitions and specifies which professionals make the determination of medical necessity. Finally, coverage is limited to children who are under the age of fourteen.
While the new law has its limitations, it is long overdue and will most certainly help many children who have autism and their families.

February 20, 2017

RELATIONSHIP BETWEEN BEHAVIOR AND CURRICULUM

The management of disordered behavior is one of the most common issues in special education. This particular concern is not limited to students with any one type of disability, but occurs in connection with many students facing a variety of challenges. The examination of behaviors and their function is a highly specialized area, and has become a niche practice for many professionals.  

In matters where the child’s behavior is a problem, we usually work with experts in behavior analysis to help us determine why the child is behaving the way he/she is and who will then determine the best way to address the problem. Invariably, our experts always tell us that behavior cannot be looked at in a vacuum, and that one of the first places to look in ascertaining the function of behavior is the child’s curriculum. Is it too easy? Too hard? Let’s look at some real life examples to see why curriculum matters in managing behaviors.
Louis is a fifth grade student attending his local elementary school. He spends most of his day in a classroom with other disabled students, some of whom are nonverbal. Louis is identified as a student with a cognitive disability. While Louis has an articulation issue, his language is otherwise appropriate for his age. Louis’ academics are abysmal however, and he is 3-4 grade levels behind in reading and math. Almost every day, Louis screams and becomes aggressive with his teachers, who then place him in a time out room where he continues to scream and throw objects. An independent expert evaluates Louis and determines that he has no cognitive disability, but does have a learning disability in reading and math. The evaluator recommends specialized reading and math programs, and says that Louis needs to be removed from the multihandicapped classroom. Louis’ behavior improves as his reading and math improve.
Patrick is a sixth grade student with severe spastic cerebral palsy, is nonverbal, has a cortical vision impairment and is confined to a wheelchair. Patrick cannot respond to yes/no questions. At school, Patrick is taught the Ohio extended content standards including material about the Civil War in social studies, and physics in Science class. Patrick frequently screams and attempts to hit his teachers and aide. The school is unable to ascertain why Patrick’s behaviors continue to escalate. A behavior specialist is brought in who determines that Patrick cannot understand the material presented to him, and is lashing out at his teachers because he cannot make himself heard any other way. Patrick is removed from the program and taught to communicate basic wants and needs. His behavior issues decline significantly and he is taught to communicate using a card system as his motor skills allow.  

Arlen is a second grade student with high functioning autism. Arlen’s IQ is in the very superior range and his reading and math are at a sixth grade level as a result of computer programs and books provided to him by his parents. At school, Arlen disrupts the class, talks out of turn, cries frequently and engages in stigmatizing self-stimulatory behavior. The district is at a loss. A behavior expert from the County comes in and creates a basic reinforcement system which fails to improve the student’s behavior. The child’s private speech therapist is brought in, and after observing the class, says that Arlen needs enrichment every day in every subject in order to manage his behavior. Arlen is allowed to move ahead and assist the other students who need help. His behavior improves and he is motivated to self regulate his behavior in order to continue to move ahead with his academics.

Each of these scenarios really occurred. This is not to say that every case in which a child’s behavior impacts their learning or the learning of others is attributable to the curriculum. Behavior is a complicated thing, and most particularly those behaviors resulting from underlying mental health issues. But where a child’s behavior is a problem, regardless of the disability, the school’s program should be one of the first things to consider. Unfortunately, the curriculum is frequently never considered as a possible cause of unwanted behaviors. The notion that children with disabilities, including those with significant cognitive disabilities, do not get bored when presented with the same material over and over again must be debunked. Students with disabilities get bored just as nondisabled students do. And children with learning disabilities are often well aware that they cannot read or write at the level of their peers, and may act out in an effort to detract attention from their academic deficits.  
Parents know their children best and should be proactive in helping their child’s school understand what their child’s needs are. While districts are supposed to teach to the content standards, the practical application of how that is done is not something that the Ohio Department of Education weighs in on. We all need to learn to think outside the box and make sure the child’s program is designed to meet their unique needs. A child’s educational program must be part of the solution to disordered behaviors instead of part of the problem.  

April 4, 2017

TRANSITION PLANNING FOR STUDENTS WITH DISABILITIES 

If your child is on an IEP, he or she has a right to have a plan to transition into a postsecondary setting after high school. The type of setting does not obviate the need for a transition plan. School districts in Ohio are required to have these plans when a student on an IEP turns 14.

The need for good transition planning cannot be overstated. Regardless of whether the student is college bound or slated to participate in vocational programming, transition is essential to enable students with disabilities to be successful when the district’s obligation to provide a free appropriate public education ends. The transition should be a “roadmap” which directs what the student intends to do, and defines the services and activities which will enable him or her to get there. The transition plan also includes a section on independent living, which for many students, is critical in how they will manage either independently or in a supported living environment as adults. As a colleague once said, “parents must picture their child’s life when they are no longer in it.” 

Most of the transition plans we see have statements such as “John will explore options for college,” or “Susie will learn functional skills in the resource room.” Those kinds of statements do not comply with requirements for transition planning. Not even close. Parents interested in advising their districts about compliant transition planning should explore the website at NSTTAC.org. This website has comprehensive examples of compliant transition plans for a variety of students with a variety of disabilities. Remember that the failure to have a transition plan is a significant denial of FAPE. By the time a student is in high school, the transition plan should be the centerpiece of their IEP.

Early planning for students intending to go to college is essential. While colleges are required to comply with the ADA and Section 504, they do not have to alter their admission requirements for students with disabilities. Students need to determine what those requirements are, whether they can meet them, and what services will be required to enable that student to be admitted into the program of their choice. Students also need to learn about what their rights are as adults, what accommodations they are entitled to, and how to advocate for themselves with schools and employers.

Students with significant impairments are often relegated to one or two programs after high school, many of which are segregated from the community. Transition planning for these students needs to include development of workplace skills, self- help skills, and skills that will enable them to be as functionally independent as possible. Districts are required to bring in outside agencies to enable transition plans to be comprehensive in the options offered. Parents should not assume that the only option for their child is something akin to a sheltered workshop. Adults with disabilities have the right to work and live in the community, and the transition plan needs to be geared toward that objective.

Look at the NSTTAC.org website. Pull up the sample transition plan for the student who most closely resembles your child. Bring it with you to your IEP meeting and tell the District that if the plan doesn’t resemble that, it is not going to fly. Remember that for a student in high school, the transition plan is the centerpiece of that student’s IEP. Everything else in the IEP should come from what is in that plan.  



April 19, 2017

SCHOOL CHOICE FOR CHILDREN WITH DISABILITIES

There has been a lot of discussion recently around the issue of school choice in Ohio. At present, there is a proposal pending in the Ohio Senate Education Committee (Sen. Bill 85) to create additional vouchers for non-disabled students to attend private schools of their choice. There is not expected to be any impact of this proposed program on the availability of school vouchers for students with disabilities. As to the impact it will have more globally, we cannot say, though there is concern that the exodus of students from public schools would result in greater segregation for students with disabilities who may not have all of the same options.

Ohio currently has two voucher programs serving students with disabilities-the Autism Scholarship program and the Jon Peterson Scholarship program. The Autism Scholarship program allows parents of students with an IDEA classification of Autism to receive up to $27,000 per year to pay for private services by an approved provider(s). The Peterson Scholarship allows for varying amounts depending on the child’s eligibility category under the IDEA. The information about qualifying and application is available on the Ohio Department of Education’s website.  

Articles published recently in the New York Times and elsewhere have highlighted the ups and downs of vouchers. Regardless of where you stand on school choice, parents need to be aware of the consequences of their decision to obtain a voucher for their child. In Ohio, parents who use either one of the scholarship programs agree to give up their child’s right to receive a free appropriate public education from their local school district. That means that if you are unhappy with the choice you made regarding the private voucher provider you are using, you will have no recourse to proceed against your school district as you would if your child were in public school. The purpose of the scholarship programs was to allow parents a choice of programs in exchange for which they have given up the right to FAPE.

What about your rights vis-á-vis the voucher school? What rights do parents have to proceed against those schools in the event they violate the child’s rights?  

First, parents should always be careful to read the contract they enter into with the private school. That document will govern much of the relationship between the parents and school. Make sure you understand the policies regarding admission, classroom placement, service provision, contract renewal and discipline. Schools receiving voucher funds (and even those that are not) may still be required to comply with the Americans with Disabilities Act, which would require them to make reasonable accommodations for a student with disabilities. So if your child is in a private school, and the school fails to renew your child for the coming year based on his or her disability, you may have a claim against them in the event the school has failed to make reasonable accommodation.

Autism Scholarship students, at least until Ohio changes the law, may have a third party action against a voucher program in the event the program fails to provide a free appropriate public education. That is because at present, the law requires autism voucher schools to comply with all the laws governing the education of children with disabilities, including the IDEA. That provision of the law is under consideration and will likely be removed. This provision is not present in the Jon Peterson Scholarship law.

What if your child is abused or gets injured as the result of someone’s behavior at school? You can sue a private school as well as the individuals who work there, for negligence. This type of action is not afforded to students who attend public school where simple negligence cannot be alleged against either the school district or its staff. Again, however, the contract you sign with the school may limit your rights so be sure to check it carefully.  

What if your child is excluded from the private school? Again, many private schools must make reasonable accommodation for students with disabilities. However, a private school need not make substantive changes to its program to make it suitable for your child, so a voucher program can choose the students they believe are best suited to their program. Even if they accept voucher money, they do not have to admit your child with a disability if your child does not meet the admission requirements of their school.  

What about a civil rights action for discrimination against a private voucher program? Voucher programs cannot discriminate against students on the basis of race, color or nationality. They may, under certain circumstances, restrict students by gender and religion. Most private schools receive some federal funding, and that is certainly true of voucher programs for students with disabilities.  

If your child is the victim of bullying by another student or students, you may have an action against the school for failing to protect them. However, most of the time those matters are better handled by the Office for Civil Rights (“OCR”) rather than in an action against the school. So long as the school receives some federal funding, the OCR may receive complaints about it. Those complaints can be filed online without assistance from a lawyer.

The school choice programs in Ohio have afforded parents many more options than they otherwise might have had. Remember though, that parents need to be educated consumers. Not all programs are created equal and some are better than others. Not every program is designed to meet every need. There is not a lot of accountability in Ohio regarding the quality of individual programs, so do your homework to make sure your scholarship dollars are well spent.  

June 5, 2017

WHAT IS A DUE PROCESS HEARING?

Most parents are aware that when they have a dispute with their school district, they have various ways in which they can pursue a remedy on behalf of their child. One of those is to file a due process request. Due process in the special education context is an administrative proceeding that begins by filing a complaint with your superintendent. This complaint generally requests a hearing before an impartial hearing officer appointed by the Ohio Department of Education (“ODE”). Hearing officers in Ohio are attorneys who have specialized knowledge in matters relating to special education law. They are not employees of the State.  

A due process complaint is basically a lawsuit against your school district; it is just not filed in a court (at least initially). Such complaints must contain specific information in order to be deemed “sufficient.” You can check the requirements for a complaint here. (http://education.ohio.gov/getattachment/Topics/Special-Education/Dispute-Resolution/Due-Process-Complaint-and-Request-for-Due-Process-Hearing-2-28-17.pdf.aspx) . The school district has 15 calendar days from the date of the hearing request to convene a resolution session with the parent to address the issues raised in the due process complaint. Resolution sessions are similar to IEP meetings as far as who should attend. There are no third party mediators or hearing officers at a resolutions session. Parties may also request mediation which is an informal means of dispute resolution facilitated by a third person appointed by ODE. Mediation is voluntary and must be agreed to by both sides. Parties may have resolution or mediation or both, but if the school district demands a resolution session, the parents must attend or they cannot proceed to a hearing. Mediators do not make decisions for either party. Their role is to broker an agreement that will be acceptable to both sides.  

If the parties reach agreement at resolution or mediation, a written agreement must be entered into and signed by both parties. The due process case will then be dismissed. If no agreement is reached, the hearing officer appointed to the case will set hearing dates. The due date for a decision by a hearing officer is no more than 75 days from the date the due process is filed. Either side can request an extension of the decision date, which is a common practice in this area of the law simply because the timelines are so restrictive.  

At least five business days prior to the start of the hearing, the parties will have a disclosure conference where they must disclose all the documents they intend to present at the hearing, and provide the hearing officer and the other side with a witness and exhibit list. Due process hearings are frequently held on nonconsecutive days and sometimes occur over a period of several months to accommodate the parties’ schedules. The length of a hearing depends on the complexity of the issues, (and the verbosity of those presenting the evidence). Hearings are just like trials you may see on T.V.- each side can compel the attendance of witnesses through a subpoena issued by the hearing officer, and there is examination and cross examination of witnesses, evidentiary objections, etc. Most hearing officers require a legal brief from each side after the hearing to argue the relevant law and show how it applies to the facts that came into evidence at the hearing. While it is not necessary to have a lawyer representing you at a hearing, most parents would be smart to consider retaining one as the complexity of these proceedings makes it difficult for most parents to navigate. The special education laws permit parents who prevail at a hearing to recoup their reasonable attorneys’ fees from the school district.  

The hearing is transcribed by a court reporter and each side will receive a copy. The district must pay for the parents’ copy of the hearing transcript. After briefs are filed with the hearing officer, the hearing officer will issue a written decision within the time frames allowed or agreed to by the parties. Either side may appeal a hearing officer’s decision to a second tier administrative hearing officer within 45 days of the decision. Sometimes each side will prevail on some issues but not others so it is possible for both sides to appeal. The second tier in Ohio consists of a state level review officer who receives the record of the case, generally has the parties brief the issues remaining, and issues a decision within 30 days. Again, extensions are often requested. These second tier hearing officers may request a brief but usually do not allow additional evidence in the record beyond what was already admitted at the hearing. Once the state level review officer has issued a written decision, either side may seek review in federal or state court.

The decision to seek a due process hearing is not one that should be made lightly. Due process hearings are very labor intensive and time consuming. Preparation is key, particularly since Ohio does not permit any depositions or other pre-hearing discovery. You will not know what is going to come out in evidence until you are in the hearing. Many parents feel as though they want their day in court. But litigation is expensive, and is to be avoided unless there is no other option for the student. Some attorneys, including those in this office, will take some cases without payment, but the ability to do that will depend on the strength of the case, anticipated cost of experts and time available. Most attorneys charge a flat rate and will agree to try and collect the remainder of their fees if they prevail.  

Finally, parents who pursue due process need to know that if they or their attorney files a claim that is found to be frivolous or filed for an improper purpose, the school district can seek fees against them and their lawyer. Generally, it is very difficult for districts to obtain fees under this provision as the evidence necessary to prove that a claim was frivolous is quite high, as it should be. But this provision should give parents pause about pursuing claims on their own.  

When deciding whether to file a due process, ask the attorney about their track record. How many hearings have they had? How many were successful? How much will it cost? How long will it take? And most important, is what the student will be getting worth the time and expense of fighting