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Georgia Special Education Law Blog

Medicaid Rule Change

on Tue, 02/26/2013 - 20:44

Earlier this month, the U.S. Department of Education issued revised regulations on school district use of Medicaid funds, which will go into effect on in the middle of March. For those who did not know, Medicaid is a program that provides medical insurance to those with financial need. Additionally, children with severe medical need can receive a waiver to be accepted into the program (commonly known as the Katie Beckett Deeming Waiver).  

Anyway, the regulations require that a child’s parents consent to use of Medicaid to pay for services in school.1 Further, the use of Medicaid benefits may not:  

(A) Decrease available lifetime coverage or any other insured benefit;  

(B) Result in the family paying for services that would otherwise be covered by the public benefits or insurance program and that are required for the child outside of the time the child is in school;  

(C) Increase premiums or lead to the discontinuation of benefits or insurance; or  

(D) Risk loss of eligibility for home and community-based waivers, based on aggregate health-related expenditures;2  

Under the old version of the rule, the school district was required to get parental consent each time the public benefit (i.e. Medicaid) was used to pay for something. Under the new rule, parental consent is only required the first time Medicaid is used.  

Now, I represent children with special needs who are dealing with the public schools. In short, I am an IEP lawyer and a Section 504 plan lawyer, not a Medicaid lawyer. I do not know how likely it is that school district use of a child’s Medicaid benefit could screw up that child’s health insurance in the future. But if it were impossible for school districts to mess things up, no regulation would be required to tell school districts not to mess things up.  

Most importantly, the school district is obligated to provide a free, appropriate, public education whether or not you authorize use of Medicaid. The school district is expressly prohibited from conditioning services in school on your authorization to use Medicaid benefits.3  

My readers whose children receive Medicaid should be informed advocates. As a practical matter, I suggest you ask the school district (a) whether they are using your child’s Medicaid benefits, and (b) what services are being paid for with Medicaid. Perhaps the school district is providing services above the basic “floor of opportunity”4 required by law, and you want to continue providing those services in school.  

But if those services are necessary for providing a free, appropriate, public education, then consider revoking your consent to use up your child’s Medicaid benefit and save your child’s benefits for medical services that are not provided by the public schools. The school district is required to do what is necessary, and the whole point of free appropriate education is that you are not required to help pay, even indirectly.  

 

1 34 C.F.R. § 300.154(d)(2)(iv)(A) 

2 34 C.F.R. § 300.154(d)(2)(iii

3 34 C.F.R. § 300.154(d)(2)(i

JSK v. Hendry County Sch. Bd., 941 F.2d 1563 (11th Cir. 1991)  

***  

Upcoming Events:  

February 27-28: I will be among the speakers at the “Across the Spectrum” Autism / Asperger Conference and Expo. Information here.  

March 7: Allison Vrolijk, a special education attorney colleague of mine, will be presenting “Parental Rights in Special Education: Advocating for Your Child in the Public Schools” at Kids R Kids in Johns Creek. More information here.  

April 19: I will be presenting “Understanding the Basics of Special Education Law” at the Art it Out Therapy Center in Marietta at 10 am. The presentation is free, but please RSVP to 770‑726‑9589.  

Have your own event for children with special needs? Submit it here for inclusion in future events lists.

Delaying Federal Rights

on Fri, 02/08/2013 - 21:04

In addition to interventions like the Individual Education Program (IEP) and the Section 504 plan, the State of Georgia has created the Student Support Team process to try to help students struggling to achieve academic success.1 SST is a state law process, not part of your child’s federal rights. Nothing in federal law requires (or prohibits) the use of the SST process. 

SST is implemented in three tiers.  The first tier is basically the level of support provided to any student in the public schools. In the second tier, more intensive support is provided. If that does not turn around the problem, more intensive third tier interventions are put in place. If that does not work, it is pretty clear that a medical disability of some kind exists, which means that a special education plan must be put in place. 

The process is intended to provide support for children who are having academic difficulty, but do not have a disability and therefore do not require an IEP or 504 plan. The problem is that some school districts require or strongly press for completion of the SST process before beginning to create a special education plan. However, federal law does not incorporate or address the SST process. In short, nothing in federal law requires that state education interventions be exhausted before creating an IEP. School districts that discourage parents from asking for an expert evaluation are placing a barrier between children and their legal rights. 

In fact, your child is entitled to evaluation at the school district’s expense to determine if a special need exists. That right exists whether or not the SST process is complete, or has even started. The evaluation process can be very time consuming, and that delay is only made worse if the school district declines to start the clock until third tier SST interventions are unsuccessful. I appreciate the skills of teachers, but there is no shame in getting an expert involved to figure out what special needs are present and to suggest more effective strategies for educating a child. 

Under the Individuals with Disabilities in Education Act, a school district has 60 days from when it receives your consent to evaluation to complete the evaluation.2 There is some dispute about how the 60 days are calculated, but the relevant Georgia regulations do not require that the district finish SST before your child can begin the initial evaluation process.3 Keep in mind that you have a right to a second opinion of this evaluation, also paid for by the school district. 

In short, invoking your rights under federal law requires you to make a written request for an evaluation. In the letter (or email), you should plainly state what you believe are your child’s learning deficits and request your federal right to appropriate evaluation designed to discover the relative contribution of cognitive, behavioral, physical, or developmental factors on your chid’s difficulty learning. Be sure to explicitly say that you consent to the appropriate evaluations. This is not the place to complain about the problems, failed solutions, missed opportunities, or miscommunications in the education process. Instead, the only purpose of the letter is to start the clock on the evaluation timeline I described above. 

 

1 Student Support Teams are defined in GA Dept. Edu. R. 160-4-2-.32

2  See 20 U.S.C. § 1414(a)(1)(C)(i)(I). Federal law allows a State to create a different timeline, but Georgia has not required completion of SST in the regulations on evaluation timelines.

3 Georgia's regulations on evaluations are found in GA Dept. Edu. R. 160-4-7-.04

Tragedy

on Fri, 02/01/2013 - 16:23

Our hearts and thoughts go out to those who have been affected by the tragedy yesterday at Prince Middle School, part of the Atlanta Public Schools. But for those of us who follow public education closely, it is not news to learn that some students come to school with substantial difficulties – whether medical problems or difficult home lives. In short, the tragedy that happened yesterday is also a symptom of larger problems that constantly trouble public education.  

Solving these types of problems is hard, and cannot be done solely through the school system. I wish I knew what could be done to prevent these shooting incidents in the future, from keeping kids from getting access to guns to a better mental health safety net to helping people generally to deal with difficult circumstances in their lives. If I know one thing, it is that society does not truly know how to address these types of problems, because we would already be doing what was needed if we knew what that was.  

I hope that psychologists, sociologists, and other experts are studying this issue and come up with good solutions soon, because every dollar we mistakenly spend on some intervention that is not working is a dollar that we could have used to make our education system better.

Behavior Improvement Plans and Extinction Burst

on Fri, 01/18/2013 - 16:57

Sometimes school district’s lack of expertise can hurt your child. For example, when your child with behavior problems is going through what experts call an extinction burst. Let me explain:  

As I discussed last week, it is possible to figure out the function of a child’s problem behavior – in non-technical language: the reason why this problem behavior is happening. Sometimes an expert, such as a Board Certified Behavior Analyst, determines that the function of the behavior is causing the caregiver or teacher to give extra attention to the child. In other words, receiving attention is rewarding the problem behavior and maintaining the frequency of the behavior.    

In those circumstances, the expert is likely to recommend that caregivers or teachers ignore or stop giving attention to the child in response to the behavior. Experts call this “putting the behavior on extinction.” What that means in practice often depends on that the problem behavior is. When a behavior is no longer rewarded with attention, what occasionally happens is a dynamic that experts call an “extinction burst.”    

What is an extinction burst?  

Imagine you are at work and complete some task that arises from time to time. When you report this to your boss, your boss immediately gives you a reward – maybe something like a bonus on a gift card. Then, every time you complete that task and tell your boss, you get another reward. In this metaphor, the task at work is the behavior from your child, and the boss is you, the caregiver, or the teacher.  
 
Continuing the metaphor, if the next time you completed the task, your boss acknowledges you but does not give you the bonus – without any explanation. Assuming the task is still necessary, you might have thoughts like “I've been rewarded before for completing this task. Maybe I am not being rewarded now because I did the task incorrectly in some way.” Thus, you might go back to the task, but put even more effort into it, in the hopes that this will cause your boss to resume giving you the reward. Only after that doesn’t work would you would just give up and decide to avoid doing that task in the future if possible.  
 
This is same dynamic happens with problem behavior from your child. The problem behavior is getting rewarded with attention and when the attention stops, the child might act as if doing the behavior more intensely will cause the reward to return. Thus, one predictable effect of implementing extinction of a problem behavior is that the intensity or frequency of the behavior will get worse before it gets better. If this intensity increase really is an extinction burst, then it should pass quickly. But when the school district does not understand the implication of scientific concepts like the extinction burst, the school district could think that the brief increase in behavior problems is evidence that the behavior improvement plan is not working, and therefore pressure you to accept a new, more restrictive placement for your child.  
 
Federal law requires a behavioral improvement plan after a disciplinary infraction is determined to be a manifestation of the child’s disability. Further, federal laws strongly prefers that the child remain in the same placement after a behavior problem leads to consideration of serious school discipline, with the school district implementing a behavioral improvement plan to provide support for the child in that placement. But when the school district believes the behavioral improvement plan is not working, you risk losing your child’s placement just because the school district does not sufficiently understand what is going on.  
 
In short, if there is a problem with the implementation of the behavioral improvement plan, that means the school district should involve a behavioral expert at the school district’s expense to reexamine the problem by observing the behavior as it occurs. The goal is for the school district to create and implement a successful plan that allows the child to remain in the same, less restrictive placement, if possible.
 
***
 
Upcoming Events:
 
I will be giving a free presentation on the basics of special education law tomorrow, January 19 at 10 am at the Art It Out Therapy Center. Please call 770-726-9489 to RSVP.
 
If you can’t make that meeting, Talk About Curing Autism is hosting a similar presentation by Christy Calbos, another special needs attorney here in Georgia. More information here.
 
January 27: Kids Enabled Resource Fair. Register here.
 
February 1-2: 23rd Annual “Dimensions of Dyslexia” Convention. Info here.  
 
February 27-28: “Across the Spectrum” Autism / Asperger Conference and Expo. Info here.
 
Have your own event for children with special needs? Submit it here for inclusion in future events lists.

Special Education is Good for Everyone

on Fri, 01/11/2013 - 15:20

After the long break, I want to take a step back from specific legal rules to talk about big picture issues that confront special needs education. Specifically, I want to confront the strange idea that one hears from time to time – that there is a conflict between educating children with special needs and educating typical children.

Some school districts assert that diverting limited resources from regular education to service children with special needs hurts regular education. This is mostly a deflection by the school district, trying to divide various groups that the district serves. If different interest groups attack each other, the school district can avoid discussing the ways it falls short of the education goals society has set for it. This deflection should be resisted on the general principle that distractions from important issues should not prevent us from addressing those issues.

 
Moreover, it's almost always a false conflict. Special education generally requires training teachers to be better and more effective at overcoming difficulties in teaching. If teachers can learn skills to be more effective at teaching special needs children, they can apply those skills when teaching regular education students as well.
 
For example, the Individuals with Disabilities in Education Act (IDEA) requires a Manifestation Hearing when a school district is considering serious discipline of a special needs child. Part of the hearing process is an evaluation called a Functional Behavorial Assessment (FBA). Further, the district must create and implement a Behavorial Intervention Plan (BIP) if the misconduct is determined to be a manifestation of the disability.
 
What are FBAs and BIPs?
An FBA is an evaluation of behavior, often performed by a Board Certified Behavior Analyst. By looking at the context of the behavior, including what was happening before the behavior and what happened after it, an expert is able to draw conclusions about why a particular behavior occurs – formally speaking, the function of the behavior. Once the function of a behavior is determined, it is easier to plan interventions to reduce the frequency of problem behavior, perhaps trying to replace it with more socially appropriate behavior.
 
For example, a child who misbehaves to avoid a task should receive extra attention in order to redirect the student back to the task. By contrast, a child who misbehaves to get attention or some other reward – the proverbial tantrum in the store to bet the candy - should be ignored. Obviously, that is very vague analysis, and an expert would be able to give much more concrete advice after examining a particular situation.
 
A BIP is the plan of what interventions will be done, and how they will be implemented. Thus, a BIP describes the modifications, accommodations, or support services that will support the child in whatever placement is appropriate – preferably the placement that the child was in before the behavior problems led to consideration of school discipline. If the school district does not follow the BIP, then the district is violating its legal obligations, just as if the district did not correctly implement the IEP.
 
Further, the principles for reducing the frequency of misbehavior can be applied to all students, not simply those with skill or cognitive deficits. An FBA or a BIP is not legally required when a typical student misbehaves, but teachers who use the perspective of “purpose of behavior” will likely be more effective at dealing with problem behaviors of typical children. In general, the more sophisticated techniques teachers are able to use, the more effective they will be in dealing with students. And the source of these perspectives and skills is usually the training and research that exists to help serve children with particular problems.  
 
In short, a clever school district can draw from the expertise its personnel have developed in dealing with specialized problems in order to solve more generalized problems. Becoming more effective at solving a type of problem frees the district to focus on the core mission – educating the students. That’s why there’s not really a conflict between special education and regular education.
 
***
 
Upcoming Events:
 
I will be giving a free presentation on the basics of special education law on January 19 at 10 am at the Art It Out Therapy Center. Please call 770-726-9489 to RSVP.
 
If you can’t make that meeting, Talk About Curing Autism is hosting a similar presentation by Christy Calbos, another special needs attorney here in Georgia. More information here.
 
January 27: Kids Enabled Resource Fair. Register here.
 
February 1-2: 23rd Annual “Dimensions of Dyslexia” Convention. Info here. Today (January 11) is the last day for an early bird discount.
 
February 27-28: “Across the Spectrum” Autism / Asperger Conference and Expo. Info here.
 
Have your own event for children with special needs? Submit it here for inclusion in future events lists.

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