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Building Parameters
To Manage
Scarce Resources
Overview
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Transportation
NPA Services
One-to-One Aide Services
Insulin Administration
Transportation
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Transportation Services
• If school district provides to
general education
population…it MUST provide to
students with disabilities
• If school district does NOT
provide to general education
population…it must DECIDE
whether transportation is
needed as related service
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Transportation: Related Service
A related service is:
A supportive service
Required to assist student to benefit from
special education
IDEA identifies transportation as a related
service
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Transportation Defined
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To and from school
Between schools
In and around school buildings
Specialized equipment if required to
provide transportation
What is Included?
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Safety devices
Curb cuts
Specialized seats
Harnesses
Handrails
Two-way radios
Emergency medical
equipment
And more …
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Transportation Golden Rules
• Transportation should not be given
automatically
• Decisions regarding transportation are IEP
team decisions
• IEP team determines transportation needs
on case-by-case basis
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Transportation Required for
Off Campus Activities?
• If necessary for FAPE, YES
• Provided at no cost to
parents
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Determine Student’s
“Unique Need”
• Medical health needs
• Accessibility of curbs,
sidewalks, etc.
• Age of student
• Cognitive ability,
adaptive behavior,
and/or communication
skills
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Additional Unique Needs
• Behavior plans during
transport
• Distance/duration of ride
• Nature of areas traveling
through
• Other public assistance in
route
• Transportation needs
during school day
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Practice Pointer
If student cannot be transported in same
manner as non-disabled peers due to
disability, IEP team must identify specific
transportation arrangements
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Transportation Options
• None
• Regular school bus
• Regular school bus with
supports
• Public transportation
• Special education
designated bus
• Taxi or specialized shuttle
• Parent transport with
reimbursement
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Practice Pointer
• District generally has
discretion to manage
equipment purchases,
bus personnel, and bus
route and bus stops
• EXCEPT when a
student’s unique needs
call for specific
requirements
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Practice Pointer
• In IEP, don’t just check off transportation
box or write “transportation offered”
• Specify the pick-up and drop-off points,
plus any needed equipment, behavior or
health care plans, or other supports
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Parent Convenience
Case Example #1
FACTS:
• Ten-year-old with SLD; no physical limitations
• Student transferred to non-home school under
NCLB
• District provided school-to-school transportation
• Parents requested home-to-school
• Alleged that student was vulnerable on walk and
that bus waiting area unsafe
(Student v. Los Angeles USD (OAH 2008).)
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cont.
Parent Convenience
Case Example #1
RULING:
• District’s offer of transportation
was FAPE
• Parents’ request was based on
their ability to timely transport
student’s siblings, not on
student’s unique needs
• Student’s only needs were
academic
• Evidence showed home school
bus zone was safe
(Student v. Los Angeles USD (OAH 2008).)
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Parent Convenience
Case Example #2
FACTS:
• District divided into geographical “cluster sites”
• District policy requires transportation pick-up and
drop-off points to be within the student’s cluster site
• Parent asked district to drop student at day care
outside of cluster site boundaries; district refused
• Hearing decision in favor of district was appealed
(Fick ex rel Fick. v. Sioux Falls Sch. Dist. 49-5 (8th Cir. 2003).)
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cont.
Parent Convenience
Case Example #2
RULING:
• District court, 8th Circuit upheld
decision
• Parent’s request was for reasons of
non-educational parental preference
• Okay for district to apply facially
neutral transportation policy to
disabled child when deviation from
policy based on parent convenience
rather than child’s needs
(Fick ex rel Fick. v. Sioux Falls Sch. Dist. 49-5 (8th Cir. 2003).)
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Parent Preference
Case Example
FACTS:
• Ten-year-old with autism and cortical blindness
• Student had bus aide and BSP for behaviors on bus
• Mom liked previous aide, who walked student to front
door in violation of district policy
• New aide complied with policy and would not get off bus
to drop off student; did not chat with Mom
• Mom asked new bus driver to give her “thumbs up” or
“down” every day re: Student’s behavior; driver refused
• Mom argued that student had to be transported by taxi
with aide
(Student v. Los Angeles USD (OAH 2007).)
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cont.
Parent Preference
Case Example
RULING:
• District’s offer of transportation was FAPE
• Mom’s dislike of aide and bus driver did not make
district’s offer inappropriate
• District had supports in place to address student’s
safety and behavior on bus
• No evidence that taxi drivers were as experienced,
trained or vetted as district bus drivers re: Safety
and behavior
(Student v. Los Angeles USD (OAH 2007).)
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Compare Student to Peers
Case Example
FACTS:
• Five-year-old with SLI offered transportation, but
parent chose to transport
• Later, parent requested transportation again
• District said transportation offered in error;
student not eligible for it
• Parent argued that student lacked hazard
awareness and communication skills
(Student v. Soquel Union Elementary SD (OAH 2007).)
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cont.
Compare Student to Peers
Case Example
RULING:
• Student did not need transportation
for educational benefit
• Student’s hazard awareness was
comparable to his typical same-age
peers
• OAH: All preschool students lack
hazard awareness
• Because student’s need for
transportation was same as that of
his peers, he did not require
transportation to receive FAPE
(Student v. Soquel Union Elementary SD (OAH 2007).)
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Parent Reimbursement
OCR Complaint
FACTS:
• Medically fragile student in wheelchair
• District offered bus rides of two hours each way
• Parent argued that this was too long; felt
compelled to transport herself instead
• District agreed to reimburse parent for one round
trip per day
• Same thing happened to other SPED parents
• Parent filed OCR complaint
(Henderson County (NC) Public Schools (OCR 2009).)
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cont.
Parent Reimbursement
OCR Complaint
FINDING:
• OCR found against the district
• No evidence that district considered
student’s unique needs when it
offered two-hour bus rides
• Parent felt she had no other option
but to accept reimbursement
• District’s failure to completely
reimburse parent (for two round trips
per day) was discriminatory
(Henderson County (NC) Public Schools (OCR 2009).)
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Road Conditions/Vehicle Problems
Case Example
FACTS:
• 16-year-old with CP in wheelchair
• Picked up/dropped off at corner down the street
from home
• Home was uphill from bus stop, slope steep, and
sidewalk uneven
• Vehicles parked on both sides of street; street
narrow, ending in unimproved section
• District: Smallest wheelchair bus could not travel on
this street, so bus pick up/drop off was at corner
(Student v. Los Angeles USD (OCR 2007).)
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cont.
Road Conditions/Vehicle Problems
Case Example
RULING:
• Student’s needs required pick up
and drop off at home
• Unsafe for student to be
physically pushed up and down
steep, uneven sidewalk in heavy
wheelchair
• District ordered to provide vehicle
capable of home-to-school
transportation, even if student
only passenger
(Student v. Los Angeles USD (OCR 2007).)
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Potholes To Avoid
• Do not automatically offer
transportation based on type
of disability
• No shortened school day to
accommodate transportation
• Instructional day for SPED
students must be the same
period of time as typical
peers unless otherwise
specified in IEP
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Transportation and Section 504
• Section 504 guarantees
students with disabilities equal
access to non-educational as
well as educational activities
• Thus, transportation may be
required under Section 504
even when unnecessary for
FAPE (e.g., for a class field trip
or to an extracurricular activity)
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NPA Services
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NPA Services
• Shall be provided under contract
• Shall be used to provide appropriate
special education or DIS required by the
student
… If no appropriate public education
program is available
(Ed. Code, § 56365.)
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Use of NPA Services
• For related services that a district does not
provide itself
• When there aren’t enough district
providers to serve all students who require
a particular service
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NPA Contracts
Contracts must:
• Include procedures for
recordkeeping
• Describe district’s process for
overseeing whether a student is
making progress
• Include an ISA for each student
• Provide termination for cause by
either party with 20 days’ notice
(Ed. Code, § 56366(a).)
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NPA Contracts
Under the contract, NPA services:
• Can be changed only based on
revisions to the student’s IEP
• Shall be provided only during the
student’s regular or extended
school year, unless otherwise
specified in the IEP
(Ed. Code, § 56366(a).)
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Contract Enforcement
• If a NPA is not following
reporting provisions, follow
up!
• Regularly review NPA
reports to see if action is
required – e.g., special IEP
team meeting
• Check in with the NPA
before an IEP team
meeting to make sure there
are no surprises
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Maintaining Control of NPA Services
• Don’t allow the NPA to be the only
assessor of a student
• A NPA can draft IEP goals, but don’t
completely delegate goal development to
them
• Avoid writing into an IEP that services will
be provided by a NPA
– If unavoidable, do not name a particular NPA
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Addressing Parent Preference
• So long as qualified personnel are
available, the determinations as to which
personnel will provide services to a child for
services under the IDEA are left to state and
local authorities
(Moubry v. Independent School Dist. No. 696 (D. Minn.1997).)
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Addressing Parent Preference
Case Example
FACTS:
• 2003 settlement agreement required that:
– Parties meet to discuss any transition from thencurrent NPA; and
– Any proposed transition be approved by IEP team
• In 2004, district terminated its contract with NPA
• District proposed a new NPA, PLAY, to take over
(San Ramon Valley USD v. Student (OAH 2005).)
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cont.
Addressing Parent Preference
Case Example
• District tried three times to hold IEP team
meeting to discuss transition
• After third time, district developed a transition
plan w/o parent
• Parents removed student from school and hired
a new NPA, Stepping Stones, to provide
services
• District denied parents’ request for Stepping
Stones, but did develop a transition plan from
Stepping Stones to district in-house provider
(since parents refused to accept PLAY)
(San Ramon Valley USD v. Student (OAH 2005).)
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cont.
Addressing Parent Preference
Case Example
RULING:
• OAH found that district offered FAPE.
– Attempts to implement transition were
reasonable (San Ramon Valley USD v. Student (OAH 2005).)
• A district court upheld the ALJ’s decision
– “Plaintiff is not entitled to his choice of service
providers… The [IDEA] requires only that the
service provider be able to meet [Student’s]
needs.”
(N.R. v. San Ramon Valley USD (N.D. Cal. 2007).)
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Practice Pointer
• When denying a parental request for a preferred
NPA, remember to give prior written notice of the
denial pursuant to 34 C.F.R. § 300.503
– Explain that the student’s needs can be
addressed by other qualified providers
– Note that the law gives districts the right to
choose who provides services
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Need for NPA Services
Case Example #1
FACTS:
• Student was seven-year-old with autism
• Speech significantly delayed
• District reduced speech services
• Parents wanted more plus 100 minutes/week of
NPA clinic-based speech
(Student v. Garvey SD (OAH 2008).)
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cont.
Need for NPA Services
Case Example #1
RULING:
• District’s offer of 30 minutes/week of group
speech insufficient
• Student also needed 90 minutes/week of
individual speech
• But student did not need clinic-based NPA
speech
– District not required to maximize student’s
progress
(Student v. Garvey SD (OAH 2008).)
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Need for NPA Services
Case Example #2
FACTS:
• 13-year-old with autism was fully included in 7th
grade; had average cognitive ability
• Received NPA speech, in-home behavior
services, and OT
• Student had expressive language delays
• Student followed directions and interacted with
others
• At triennial IEP, district offered only district
services
(Corona-Norco USD v. Student (OAH 2009).)
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cont.
Need for NPA Services
Case Example #2
RULING:
• District offered a FAPE
• Evidence showed only that student
could generally benefit from OT NPA,
not that he required OT to obtain
educational benefit
• No evidence that student needed
NPA speech
• No need for NPA in-home ABA
services, district offered a social
skills group led by ABA-trained
specialists
(Corona-Norco USD v. Student (OAH 2009).)
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Choose NPAs Wisely
Contract with agencies that:
• Are properly certified
• Understand their role
• Understand the legal standard
for determining when related
services are necessary for
FAPE
• Promote independence
• Maintain a professional
relationship with parents
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Reducing the Need for NPAs
• Develop capacity and expertise in-house
• Be careful about contracting with noncertified agencies - state may penalize
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One-to-One Aide Services
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One-to-One Aides
• A related service necessary for some
students to receive a FAPE
• Essential in some cases, builds
unnecessary dependence in others
• The personal nature of the service makes
it very difficult to change personnel, modify
the service, or eliminate it
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One-to-One Aides
Alternatives
Can the student’s needs be met by less
intrusive means?
• Attention difficulties
– BSP, classroom modifications or
accommodations, IEP goals
• Aggressive behaviors
– FAA, BIP
• Academic difficulties
– Change in curriculum or
instructional setting
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cont.
One-to-One Aides
Alternatives
If the student has already received supports:
• Can needs be met by adjusting or
increasing existing supports?
• Does the student need instruction in how
to use supports more effectively?
• Do teachers or service providers need
training or consultation re: Implementing
the supports?
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Use of Classroom Aides
Case Example
FACTS:
• 2nd grader in general education 20:1 class with RSP and
speech
– Student did well in RSP with 4:1 student-teacher ratio
• Had 1:1 ABA-trained aide 15 hours/week in K and first
grade
• For second grade, district offered:
– Placement in class with classroom aide for three
hours/day
– 1:1 ABA-trained 15 hours/week for one month only as
transition
(Student v. Garvey SD (OAH 2008).)
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cont.
Use of Classroom Aides
Case Example
RULING:
• Student did not need 1:1 ABA-trained aide.
• Student needs could be addressed by
classroom aide
• BUT district’s offer was not FAPE
• Student required more attention
• ALJ ordered classroom aide for three hours/day,
but aide could be assigned to no more than four
students; plus ten days for transition from 1:1
aide to new aide
(Student v. Garvey SD (OAH 2008).)
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Practice Pointer
• Does student really need 1:1 support for the
entire school day?
• Collect data from classroom observations
• Can needs be met with classroom aide or
other supports for certain activities or periods
of the day?
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No Specific End Date
Case Example
FACTS:
• Four-year-old with autism; strong cognitive skills
• In-home ABA for 20 hours/week, 1:1 ABA support at
preschool for ten hours/week
• Originally placed in inclusive Headstart program with
DTT for five hours/week; no aide support
• Later added 1:1 aide for first month of school year
only; parents wanted 40 hours/week of ABA
(Student v. Hacienda La Puente USD (OAH 2007).)
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cont.
No Specific End Date
Case Example
RULING:
• Offer of aide for one month only
did not consider need for
gradually weaning student from
dependence on aide
• Significant inattentiveness and
need for hand-over-hand
instruction showed student would
not succeed in class without aide
• District’s failure to offer aide and
to determine a fade-out plan
denied FAPE
(Student v. Hacienda La Puente USD (OAH 2007).)
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The Fade-Out Plan
• Fading criteria should be specific and
measurable
• Include plan for aide to fade proximity as
student starts to meet fading criteria
• If fading plan can’t be agreed upon,
convene IEP team meeting in set
timeframe to review aide support
• Collect data re: Student’s progress
towards independence
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Assessing Need for One-to-One
Case Example
FACTS:
• 11-year-old with cerebral palsy
• Difficulty with physical act of writing
• Aide for six hours/day in general ed.
• Subsequently, district offered “temporary 1:1 aide”
support “as needed”
• IEP team member who wrote offer based it on a year old
observational report
• Observation did not include observation of writing tasks
(Coachella Valley USD v. Student (OAH 2008).)
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cont.
Assessing Need for One-to-One
Case Example
RULING:
• District denied FAPE by withdrawing aide
support based on single, outdated criterion
• Offer of “temporary” aide support was
inadequate
(Coachella Valley USD v. Student (OAH 2008).)
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Practice Pointer
• Have data to back your determination re:
student’s need for 1:1 aide support
• Have psycho-educational assessment report
include section on need for aide support.
• Include same language and findings in IEP
notes
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Insulin Administration
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Insulin Administration
• Should unlicensed but
trained volunteer employees
be allowed to administer
insulin?
• Or does the California
Nursing Practices Act forbid
such a practice?
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K.C. v. O’Connell
• Filed in 2005 by parents and the
American Diabetes Association
• Alleged that districts failed to provide
trained personnel to assist with
administering insulin
• 2007 settlement resulted in CDE Legal
Advisory
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CDE Legal Advisory
• Who can administer insulin?
– Student via self-administration
– School nurse or school physician
– Licensed school employee (e.g., RN or LVN) with
supervision
– Contracted RN or LVN
– Parent/guardian
– Parent/guardian designee
– Unlicensed voluntary school employee with training,
but only in emergencies
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CDE Legal Advisory
• Legal Advisory added an eighth category:
– Voluntary school employee who is unlicensed
– But who has been adequately trained to
administer insulin
– Per treating physician’s orders
– As required by the IEP or Section 504 plan
• Available when no school nurse, school
physician, RN, LVN, or other appropriate
licensed individual is available
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American Nurses Association v.
O’Connell
• Nurses sued, asked
court to find that the
“eighth category”
violates state law
• Their position: Illegal
for nurses to train or
supervise unlicensed
personnel to administer
insulin
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American Diabetes Association
• Appeared as intervenor
• Their position: In light of the nurse
shortage, the ANA’s position
“unjustifiably interferes with the
mandate… that these students receive
insulin in the school setting.”
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Trial Court Decision
• Sacramento County Superior Court ruled
in favor of the ANA in December 2008
• Judgment prohibited CDE from enforcing
its Legal Advisory
• CDE and American Diabetes Association
appealed
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Stay of Decision
• In April 2009, the California Court of
Appeal stayed the trial court’s ruling during
the appeal
• So the Legal Advisory remains in effect
pending resolution of the appeal
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Pending Legislation
• AB 1430
– Sponsored by nurses
– Would amend Education Code to
require that any prescription
medication taken at school be
administered by a licensed health
care professional
• AB 426
– Would require CDE to make
recommendations to the legislature
on this issue by July 2010
– Public hearings have begun
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School District Options
• Prohibit unlicensed school personnel from
administering insulin; OR
• Rely on CDE Legal Advisory, and utilize
voluntary unlicensed personnel with
training to administer insulin
– But may have to contract with non-nurse
personnel to provide training
– State Board has directed nurses that
providing such training violates state law and
could result in discipline
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Bottom Line
Building Parameters for Resources
• Think critically
• Base decision on student’s current
individual needs
• Focus resources and services to what
student actually requires
• Detail service provision on IEP
• Don’t automatically check transportation
• Focus on student, not someone else’s
preference
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Bottom Line
• Don’t be embarrassed to save money
within legal requirements
• Everyone appreciates the responsible use
of tax $$
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Thank you!
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