ADVOCATING FOR A CHILD WITH SPECIAL NEEDS

Presented By

Dina C. Kaplan, Esq.Andrea D. Lorant, M.A.

Overview of The Individuals With Disabilities Education Act “IDEA”

History Eligibility Parents Rights Procedural Safeguards

HISTORYOF SPECIAL EDUCATION

Until 1975 disabled children were often excluded from school

Despite compulsory attendance laws, most states allowed school authorities to exclude children if they believed child would not benefit from education or be a disruption to other non-disabled children and teachers

SPECIAL EDUCATION COURT CASES

1954 - Brown v. Board of Education -the Supreme Court found that creating separate schools for African American children was unconstitutional

1971 – Pennsylvania Association for Retarded Children (PARC) v. PA Dealt with the exclusion of mentally retarded children from public schools

SPECIAL EDUCATION COURT CASES (CONTINUED)

1972 – Mills v. Board of Education Involved the practice of suspending, expelling and excluding “exceptional” children from the public schools

IDEA 20 U.S.C. Sec. 1400 et. seq.

Originally enacted in 1975 as the Education for All Handicapped Children Act

Reauthorized in 1997 and 2004 Serves ages 3-22 Serves ages 0-3 in early

intervention programs Receives federal funding Includes legal timelines

PURPOSE OF IDEA 2004 High expectations for children to

access general education curriculum

Prepare children to lead productive and independent adult lives

Prepare children for further education

Strengthen role and responsibility of parents

PURPOSE OF IDEA 2004(continued)

Highly qualified teachers in accordance with NCLB

Increase academic achievement and functional performance of children using scientifically based instructional practices

Reduce paperwork

IDEA PROVIDES

Free Appropriate Public Education (FAPE)

Least Restrictive Environment (LRE) Appropriate Assessments Individualized Education Program Emphasizes the Role of the Parents Related Services (in CA called

Designated Instructional Services or DIS)

DEFINITION of FAPE

The term “free appropriate public education,” means special education and related services that: Have been provided at public expense Meet the State educational standards Include an appropriate education, and Are provided in conformity with the

individualized education program (IEP)

Board of Education v. Rowley1982 U.S. Supreme Court

First U.S. Supreme Court decision to define FAPE

Special Education is specially designed instruction to meet the unique needs of the child supported by such services as necessary to permit the child to benefit from the instruction

Held public education does not have to maximize a child’s potential

DEFINITION OF LEAST RESTRICTIVE ENVIRONMENT

(LRE)

Children with disabilities are educated with their non-disabled peers to the maximum extent possible

Removal of children from the regular education environment occurs only when the nature or severity of the disability is such that education in the regular classes with the use of supplementary aids and services cannot be achieved satisfactorily

RELATED SERVICES INCLUDE

Transportation Speech and language pathology Audiology Interpreting services (2004) Psychological services Physical and occupational

therapy

RELATED SERVICES (CONTINUED)

Recreation, including therapeutic recreation

Social work services Orientation and mobility services Counseling services including

parent training Diagnostic medical services Assistive technology evaluation and

devices

RELATED SERVICES(CONTINUED)

School nurse services necessary for child to receive FAPE (2004)

All related services required to assist child with disability benefit from special education

Does not include medical device surgically implanted (2004)

ELIGIBILITY

Hearing impairments (including deafness)

Visual impairments (including blindness)

Speech or language impairments

Orthopedic impairments Autism

ELIGIBILITY(CONTINUED)

Mental retardation Emotionally disturbed Learning disabled Traumatic brain injury Other health impaired Specific learning disabilities

SPECIFIC LEARNING DISABILITIES UNDER IDEA

2004

Eliminates need for local educational agency to use severe discrepancy between ability and achievement model

Local educational agency to use a process for determining a learning disability that includes determining if the child responds to scientific, research-based intervention as part of the evaluation process

ELIGIBILITY (CONTINUED)

AND WHO BY REASON OF THEIR DISABILITY NEED SPECIAL EDUCATION AND RELATED SERVICES

OVERVIEW OF SECTION 504

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 701, et. seq.

Anti-discrimination statute Eligibility: If one has a mental or

physical impairment which substantially limits a major life activity (learning); having a record of such impairment; or being regarded as having such an impairment.

SECTION 504 (CONTINUED)

Applies from birth to death In education, employment &

recreation Applies to any agency receiving

federal money Fewer procedural protections Complaints to Office of Civil

Rights

COMPARISON: IDEA & 504

504 was designed to level the playing field by eliminating barriers that exclude people with disabilities

IDEA is more of an affirmative action law as children who qualify are given more services and protections than children without disabilities

COMPARISON(CONTINUED)

IDEA requires more from schools and provides funding

504 does not provide any financial support to schools

The definition of disability is much broader under 504

All IDEA students are eligible for 504 services but not vice versa

NO CHILD LEFT BEHIND ACTOF 2001

Annual testing of children in grades 3-8

Schools must show Adequate Yearly Progress (AYP)

100% proficiency in reading, math and science for ALL students by 2012

Failure to make AYP for 2 years, must offer students the option to transfer to another school and pay for the cost of transportation

NCLB 2001(CONTINUED)

Failure to make AYP for 3 years, the District must provide supplemental instructional services from a provider chosen by parents

Failure to make AYP for 4 years, the District must implement corrective action

Failure to make AYP for 5 years, the District must implement a plan for significant change in how the school is run

NCLB 2001(CONTINUED)

Requires states to ensure all teachers who teach a core academic subject are highly qualified by 2005-2006 school year, no waivers or emergency credentials

Core academic subjects are english, reading or language arts, history and geography

NCLB (CONTINUED)

“highly qualified” means teacher has obtained full state certification and holds license to teach in the state, has minimum of a bachelor’s degree, and demonstrated subject area competence in each academic subject that he/she teaches

Increases qualifications for teacher’s aids: must have at least 2 years of study in college or an associates degree, or passed a test demonstrating knowledge of academics

BACK TO THE INDIVIDUALS WITH

DISABILITIES EDUCATION

ACT

HIGHLY QUALIFIED SPECIAL EDUCATION TEACHERS

“Highly qualified” special education teachers under IDEA 2004 need to have met the requirements under NCLB, and/or

Are licensed by the state as special education teachers, do not have an emergency credential and have a bachelor’s degree

HIGHLY QUALIFIED SPECIAL EDUCATION TEACHERS

(CONTINUED)

Special ed teachers who teach alternative achievement standards and those who teach multiple subjects, must also be “highly qualified” under NCLB and IDEA 2004

See definitions, Section 1401 of IDEA 2004, for further information

EVALUATIONS UNDER IDEA

Request for initial evaluation can be made by parent, state educational agency, other state agency, or local school district

Parents should send a written request for an evaluation in all areas of child’s suspected disability, by certified mail or hand deliver, to district/school offices, obtain a receipt, and keep copy for their files

LEGAL TIME LINESCALIFORNIA LAW

School district has 15 days to send parent an assessment plan

Plan should be in the primary language of the parent

Plan should be easily understood and explain the types of evaluations

If request for an initial evaluation, district must include a copy of the notice of parental rights and procedural safeguards

LEGAL TIME LINESCALIFORNIA LAW (CONTINUED)

Parents have at least 15 days to approve the plan

Parents must provide informed consent; if parent refuses, the district may file for due process

Sign plan and write directly on it that you are requesting copies of the evaluation reports 3-5 days prior to the Individualized Education Program (IEP) meeting *not law but best practice

LEGAL TIMELINESIDEA 2004

IDEA 2004 provides 60 day timeline from time of the parental request to time that evaluations are completed and an IEP meeting is held

California law recently changed to adopt this timeline

IDEA 2004 - no exception for vacation days

LEGAL TIMELINESIDEA 2004

California timeline does not count days between regular school sessions or terms or days of school vacation in excess of five school days

If parent fails or refuses to consent to an initial evaluation, the District may pursue Due Process. If the parent refuses consent to services, the District will not be responsible for failure to provide FAPE and does not need to have an IEP meeting

LEGAL TIME LINESIDEA 2004

If no new evaluation is requested, district has 30 days to hold IEP

If request for evaluation is made 20 days or less prior to the end of the school year, district has 30 days from the start of the next school year to complete evaluation and hold IEP

ALL AREAS OF CHILD’S SUSPECTED DISABILITY

Evaluations should be in all areas of child’s suspected disability including:health and development, vision and hearing, motor abilities, general abilities and self-help skills, language function, academic performance, orientation and mobility skills, career and vocational abilities, social/emotional development and behavior

EVALUATION PROCEDURES

Instruments must be free of racial or cultural bias

They must be valid and reliable for the purposes for which they are used

No single instrument is to be used as sole criterion

Must consider information provided by parents

EVALUATION PROCEDURES(CONTINUED)

Must be provided and administered in language and form most likely to yield accurate information on what child knows and can do academically and functionally, unless it is not feasible to do so

REEVALUATIONSIDEA 2004

Reevaluations shall not occur more frequently than once a year unless both the district and parent agree otherwise

Reevaluations are to occur at least every three years, unless the parent and the district agree that a reevaluation is not necessary

REEVALUATIONSIDEA 2004 (CONTINUED)

Must do reevaluation prior to determining a child is no longer eligible, unless child is graduating or aging out of special education

In that case, must provide a summary of child’s academic achievement and functional performance and make recommendations how to assist child in meeting post-secondary goals

INDEPENDENT EVALUATIONS

If parent disagrees with results of district’s evaluation(s), parent is entitled to obtain an independent evaluation at district’s expense

Must inform district in writing that you disagree and want them to pay for independent evaluation

Make sure assessors are as qualified as district’s assessors

If district doesn’t want to pay, they have to file for due process

SCHOOL RECORDS

Parents are entitled to obtain copies of their child’s school records

Entitled to copies of all personally identifiable information regarding the child that is collected, maintained or used by district

If child has IEP, district must provide records within 5 calendar days of written request

THE INDIVIDUALIZED EDUCATION PROGRAM[PROCESS, CONTENTS

AND SERVICES]

IEP TEAM MEMBERS

Parents of child Not less than one regular education

teacher if the child participates at all in general ed

Not less than one special education teacher, or where appropriate, not less than one special education provider

Individual able to interpret evaluation results, including related services personnel

IEP TEAM MEMBERS (CONTINUED)

Representative of the local educational agency (lea) who is qualified to provide or supervise the provision of specially designed instruction to meet unique needs of children with disabilities, is knowledgeable about the general curriculum, and knowledgeable about availability of resources in the district and has authority to approve services

IEP TEAM MEMBERS (CONTINUED)

The child, when appropriate Others at the discretion of the

parents or district who have knowledge or special expertise regarding the child, including agency personnel from Regional Center, California Children’s Services, etc.

IEP TEAM MEMBERS (CONTINUED)

Members can be excused from attending the meeting by written agreement of the parents if,

Member’s area of curriculum or related services is not being discussed, or

If all agree and member submits, in writing, input into the development of the IEP prior to the meeting (IDEA 2004)

WHEN IEP MEETINGS MUST BE HELD

IEP must be in effect at beginning of school year

To change or amend an IEP, parents and district can agree that a meeting is not necessary

Changes in an IEP can be made by amendment rather than rewriting entire IEP, but parents can request a revised copy of the IEP with the amendments incorporated

WHEN IEP MEETINGS MUST BE HELD

IEP team meetings must be held a least once a year

Parents can request IEP meeting at any time something needs to be changed or addressed regarding child’s program

With agreement of the parents, meetings can be held by video conference and conference telephone calls

MATTERS TO BE CONSIDERED BY THE IEP

TEAM

Strengths of the child and concerns of the parents for enhancing the education of the child

All evaluation results, including independent assessments

Consideration of positive behavioral interventions, when behavior is impacting the child’s learning

MATTERS TO BE CONSIDERED BY THE IEP

TEAM (CONTINUED)

For a child with limited English proficiency, consideration of language needs in relation to child’s IEP

Braille instruction, if appropriate, for a visually impaired child

For a child who is deaf or hard of hearing, consideration of child’s means of communication, and instruction in that means of communication

MATTERS TO BE CONSIDERED BY THE IEP

TEAM (CONTINUED)

Consideration of whether or not child requires assistive technology devices or equipment

The academic, developmental and functional needs of the child

(IDEA 2004)

CONTENTS OF THE IEP

Statement of present levels of educational performance, including impact of child’s disability on involvement and progress in general curriculum

For preschool children, how child’s disability affects his/her participation in appropriate activities

IDEA 2004 requires statement to include present levels in academic achievement and functional performance

CONTENTS OF THE IEP(CONTINUED)

For children taking regular statewide assessment of academic achievement, annual goals are still required, but short term objectives are not (IDEA 2004)

For children taking alternative assessment of achievement, both goals and objectives are still required

CONTENTS OF THE IEP(CONTINUED)

Annual goals must be measurable and include academic and functional goals to meet child’s needs that result from the disability, to enable him/her to be involved in and make progress in the general education curriculum, and

Meet each of the child’s other educational needs resulting from the disability

CONTENTS OF THE IEP(CONTINUED)

Description of how child’s progress toward meeting the annual goals will be measured, and when periodic reports on the progress child is making toward meeting the annual goals ( such as the use of quarterly or other periodic reports) will be provided

CONTENTS OF THE IEP(CONTINUED)

Statement of special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable, to be provided for the child

Statement of program modifications or supports for school personnel that will be provided for the child

CONTENTS OF THE IEP(CONTINUED)

To advance toward reaching the annual goals

To be involved in and make progress in the general education curriculum and to participate in extracurricular and other nonacademic activities, and

To be educated and participate with other children, with and without disabilities in all activities

CONTENTS OF THE IEP(CONTINUED)

Explanation of extent child will not participate with non-disabled children in regular class and related activities

Statement of individual modifications for participation in the administration of state or district-wide assessments of student achievement and functional performance

CONTENTS OF THE IEP(CONTINUED)

If IEP team determines child shall take an alternate assessment, a statement of why child cannot participate in the regular assessment, and the particular alternate assessment selected that is appropriate for child

Projected date for beginning services and the frequency, location and duration of services

CONTENTS OF THE IEP(CONTINUED)

Beginning not later than first IEP to be in effect when child is 16, and updated annually thereafter:

Appropriate measurable post-secondary goals, based upon age appropriate transition assessments related to training, education, employment, and where appropriate, independent living skills;

Transition services, including courses of study, needed to assist the child in reaching those goals (IDEA 2004)

CONTENTS OF THE IEP(CONTINUED)

Beginning not later than one year before child reaches age of majority under State law (18 in CA), a statement that child has been informed of his/her educational rights, if any, that will transfer to him/her on reaching the age of majority