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Legal Update

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Overview• Insulin, Diastat, and other Medical Issues • OSERS Guidance about IEPs &

Assessments• Audiological Assessments • Parental Consent • Mental Health Services for Juvenile Hall

Students • Revised ADA Regulations: Service

Animals

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Insulin, Diastat, & other Medical Issues

• June 8, 2010: American Nurses Association v. O’Connell

• Nursing Practice Act prohibits unlicensed staff from administering insulin to students

• Administration of medication, which includes the injection of insulin, is a function of a licensed nurse under Bus. & Prof. § 2725

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Insulin, Diastat, & other Medical Issues

• Current Status:– California Supreme Court has agreed to

review– Appellate decision stayed until Supreme Court

resolves (potentially 1 - 1 ½ years)– AB 1802 (Insulin)– SB 1051 (Diastat)

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Insulin, Diastat, & other Medical Issues

• What is the current law?– Federal– State

• Who can administer medication to students?– Parent/guardian or parent/guardian designee– Student– Licensed nurse or physician– Unlicensed voluntary school employee with

appropriate training, but only in emergencies

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Insulin, Diastat, & other Medical Issues

• What forms are needed to administer medication to students?

– IEP, 504 Plan, or Individual Healthcare Plan– Physician authorization – Parent authorization

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Insulin, Diastat, & other Medical Issues

• What is the parent’s obligation?– Appropriate documentation– Medication, supplies, and equipment– Updated information – Comply with the school policy

• Must the parent release the district from liability?

– No, except student’s self-administering asthma medication and epinephrine

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Insulin, Diastat, & other Medical Issues

• What about other medical conditions and medications?– Asthma, Allergies, Diabetes, and G-Tube

• What about home-hospital programs? – “Temporary disability”– In Student v. Los Angeles USD, District not

obligated to provide home instruction because no current medical referral

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OSERS Guidance about IEPs & Assessments

• Out-of-State Transfer Students: What if a child with an IEP transfers to a different state and parent refuses to consent to a new evaluation?

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OSERS Guidance about IEPs & Assessments

• Medical Diagnosis: Must the assessments used to determine eligibility, particularly for students with autism or ADD/ADHD, include a doctor’s medical diagnosis?

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OSERS Guidance about IEPs & Assessments

• Amending IEPs: Who must participate in making changes to the IEP when it is amended without convening an IEP team meeting?

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OSERS Guidance about IEPs & Assessments

• Inviting the Transition Services Agency: Must a district obtain parental consent to invite a representative of an agency likely to be responsible for transition services to an IEP team meeting?

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OSERS Guidance about IEPs & Assessments

• Mental Health Services: Is the district responsible for paying for mental health services if the IEP team includes these services in the child’s IEP?

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OSERS Guidance about IEPs & Assessments

• Postsecondary Goals: Must an IEP include measurable postsecondary goals based on age-appropriate transition assessments for every 16-year-old student?

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Audiological Assessments

• In Perusse v. Poway USD, a federal court ruled an audiological assessment not required for a student with an auditory processing deficit

• Why? A school psychologist, speech and language pathologist conducted assessments, and school nurse performed a hearing screening

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Audiological Assessments

• In Student v. East Whittier City School Dist. (2010), OAH ruled student received FAPE despite district’s refusal to conduct a central auditory processing assessment

• Parent’s concerns about student’s progress were not corroborated by teachers or the academic records

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Parental Consent

• AB 1841 conforms state law with federal law by prohibiting districts from initiating a due process hearing if parents revoke consent

• In Student v. Corona-Norco USD (2010), OAH ruled that a parentally placed private school student was not entitled to related services without consent to the public placement

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Parental Consent

• OAH stated, “While the law permitted them to accept parts of that IEP offer and not others, the [related] services were tied to the public school placement. Student's parents could not accept the services at a different location.”

Student v. Corona-Norco USD (OAH 2010)

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Mental Health Services for Juvenile Hall Students

• Student v. Los Angeles USD (OAH 2010) – 16-year old student, foster child, and a

dependent of the Superior Court of Los Angeles since the age of two

– In juvenile hall, expanded IEP team determines placement in RTC appropriate

• Issue: Which LEA is responsible for RTC placement?

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Mental Health Services for Juvenile Hall Students

• OAH declined to rule on the responsibility for RTC placement

• Student still in juvenile hall at the time of hearing, responsibility remains with LACOE

• LACOE must implement placement and may seek reimbursement from responsible LEA or state agency

• BUT OAH did not identify the LEA responsible post-release Student v. Los Angeles USD (OAH 2010)

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Mental Health Services for Juvenile Hall Students

• Senate Bill 1059 (“SB 1059”)

• Amends Education Code § 48645.2 and 56028

• Clarifies which LEA is responsible for juvenile hall student placed in an RTC by his/her expanded IEP team

• Vetoed by Governor on September 30due to “pending litigation”

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Impact of SB 1059

• County Office of Education in which juvenile court school is located must identify the LEA responsible for the RTC placement

• Responsible LEA based on:– Whether or not student has a “parent”– In-State vs. Out-of-State Placement

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Impact of SB 1059

• Students who have a “parent,” as defined by EC § 56028(a)(1) & (a)(4)– Biological, adoptive parent, legal guardian– Individual acting in place of parent

• Responsible LEA = The school district where the parents or legal guardian resides

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Impact of SB 1059

• Different standard for “parentless” students, defined as students with– “Foster parent” – EC § 56028(a)(2)– “Surrogate parent” – EC § 56028(a)(5)– “Responsible adult” – Welfare & Institutions

Code § 361 & 726

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“Parentless” Juvenile Hall Students

RESPONSIBLE LEA (SB 1059)

IN-STATE RTC OUT-OF-STATE RTC

School district in which RTC is located

Last school district at which pupil was enrolled prior to placement in juvenile hall.

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Impact of SB 1059

• Other effects of SB 1059– Clarifies existing law regarding responsibility

for residential placement– Amends Section 56028(b) to state that

residence of a surrogate parent or responsible adult will NOT determine district of residence responsible for student

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Current Status of SB 1059

• Passed by California LegislatureAugust 19, 2010

• Enrolled and sent to Governor for signature on September 2, 2010

• If signed, effective January 1, 2011

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Revised ADA Regulations Service Animals

• Effective March 15, 2011

• Require public entities, including K-12 school districts, to allow service dogs on campus

• Schools must modify policies and practices accordingly for students, school staff, and visitors

(28 C.F.R § 35.136.)

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Revised ADA Regulations Service Animals

• “Service animal” definition– “Any dog that is individually trained to do work

or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.” (28 C.F.R. § 35.104.)

• Includes miniature horses in limited circumstances

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Revised ADA Regulations Service Animals

• May inquire (1) whether the animal is required because of a

disability; and (2) what work or task the animal has been trained to

perform

• May ask individual to remove if animal is out of control or not housebroken

• Cannot inquire about the nature or extent of disability or require documentation of animal’s service training

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• The California Supreme Court has reinstated the Governor’s furlough order

• As a result OAH will be closed on the 2nd, 3rd and 4th Fridays of the month

OAH Furloughs

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Extra-Extra Read All About ItS.F. lawyer accused of

fraud in autism care

San Francisco

Chronicle

August 26, 2010

• Trust, but verify• Yes, it is true

sometimes parents cheat

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Q & A

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