Local Educational Agencies are Required to Consider Parent Requests for Insurance-Funded ABA Aide to Attend School with Student at an IEP Team Meeting.

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Author: Heather Edwards, Attorney at Law

In Student v. Tehachapi Unified School District (OAH Case No. 2016110289), 117 LRP 17194 (April 24, 2017), the Office of Administrative Hearings held that Student was denied a free appropriate public education when the school district failed to discuss and consider the parent’s request to allow an insurance-funded aide to accompany Student at school.

FACTS: Student was a 10 year old girl, eligible for special education under the categories of autism and speech and language impairment. Student’s parent received approval from her medical insurer for funding of 40 hours a week of services from a trained applied behavior analysis (“ABA”) aide, and supervision of the aide by a Board Certified Behavior Analyst. The services could be provided to Student in her home or school. This approval was based on a recent functional behavior assessment of Student. Student’s physician wrote a note on a prescription form ordering Student to receive ABA therapy at school from the insurance funded ABA aide. Parent provided the ABA prescription from Student’s doctor and the functional behavior assessment it was based upon to the District. Parent then asked that an IEP meeting be held to discuss the prescription and Parent’s request that Student’s insurance funded ABA aide be permitted to accompany Student at school to provide her with ABA services.

Before the IEP meeting was held, District’s Director of Programs conferred with other District administrators and determined the District would not honor the ABA prescription and would refuse to allow Student’s ABA aide to accompany Student at school. At the IEP meeting, District’s administrative representative told Parent that the District would not honor the prescription or allow the ABA aide on campus with Student. As a result, Parent kept Student home from school so she could receive the weekly 40 hours of insurance funded ABA therapy.

DISCUSSION: Because children with disabilities and their parents are frequently not represented by counsel during the IEP process, procedural errors at that stage are likely to be prejudicial and result in lost educational benefits. Consequently, compliance with the IDEA’s procedural safeguards “… is essential to ensuring that every eligible child receives a FAPE, and those procedures which provide for meaningful parent participation are particularly important.”  Amanda J. v. Clark Cty. Sch. Dist. (9th Cir. 2001) 267 F.3d 877, 891.) Procedural violations that interfere with parental participation in the IEP process undermine the essence of the IDEA. M.C. v. Antelope Valley Union High School District (9th Cir. March 27, 2017) ___ F.3d ___ (2017 WL 1131821 at p. 2).)

Here, in determining that the District had significantly interfered with the Parent’s right to participate in the IEP process by rejecting her request without an open and earnest discussion by the entire IEP team at a meeting, the hearing officer explained it would have been appropriate for the District IEP team members to do research about the ABA prescription and form opinions about Parent’s request before the IEP meeting. However, it was improper for the District to decide to reject the request before the IEP meeting.

In recent years, LEAs have seen an increase in requests from parents to allow an insurance-funded ABA aide accompany their child at school. These requests are likely the result of the passage of Senate Bill 946 in 2011 which required health insurance plans to provide coverage for behavioral health treatment for pervasive developmental disorder or autism. (Health & Safety Code § 1374.73 (a).)   Notably, this section further provides that the requirement of health plans to include services for students with autism “shall not affect or reduce any obligation to provide services under an individualized education program…”

Allowing an outside provider who is neither an employee nor a contractor of an LEA requires careful consideration of multiple variables including, but not limited to, whether the student requires the service in order to receive FAPE at no cost to the parent, an LEA’s right to select an appropriate IEP service provider, prevention of disruption of the learning environment, and potential liability if the individual is injured while on campus.  In order to ensure a parent’s right to participate in the development of their child’s IEP, these variables must be considered within the context of an IEP meeting. Also, whenever an LEA receives a “prescription” from a student’s physician ordering a child to receive a particular service, an LEA should attempt to obtain additional information from the physician by requesting parental permission to confer with the physician and/or to make arrangements for the physician to speak to the IEP team.

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