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The ADA, IDEA, and Section 504 in Education: Understanding the laws, advocacy strategies and current issues for our children with disabilities Presenter:

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Presentation on theme: "The ADA, IDEA, and Section 504 in Education: Understanding the laws, advocacy strategies and current issues for our children with disabilities Presenter:"— Presentation transcript:

1 The ADA, IDEA, and Section 504 in Education: Understanding the laws, advocacy strategies and current issues for our children with disabilities Presenter: Cheryl Theis, Education Advocate, DREDF

2 Unique alliance of people with disabilities and parents of children with disabilities. National law and policy center dedicated to protecting and advancing disability civil and human rights. Envisions a just world where all people, with and without disabilities, live full and independent lives free of discrimination. Disability rights are civil rights. Children have rights. Information is power.

3 Children & Family Advocacy Program: Parent Training and Information (PTI) Center for Alameda, Contra Costa & Yolo. Foster Youth Resources for Education (FYRE) for Alameda County. Legal advocacy and representation in Class Action cases involving systemic abuses. Educate legislators and policy makers on issues (such as IDEA, ADA) affecting the rights of people with disabilities.

4 Some reasons why we do what we do: Prior to IDEA in 1975, only 1 in 5 children with disabilities were served by US schools. In 2005, 56% of CA children enrolled in special education graduated with a diploma. In 2008, 36% of CA 10th graders enrolled in special education passed the CA High School Exit Exam (now a diploma requirement). 85% of services specified in Individualized Education Plans (IEPs) are actually provided. Children with disabilities who have consistent, knowledgeable advocates are most likely to receive appropriate services & supports!

5 Laws: That protect students with disabilities

6 No Child Left Behind / 2002 A federal Education Law. For ALL students, with a focus on traditionally “under-served” students. School accountability to increase school performance and outcomes. Requirements for “highly-qualified” teachers and paraprofessionals. Process to change school or get remediation if school fails to meet Adequate Yearly Progress (AYP) NCLB

7 Family Educational Rights & Privacy Act A federal Education Privacy Law. For ALL students. Right to inspect and review “any and all” records the district keeps. Timeline in CA: within 5 days Right to request correction of records that are inaccurate or misleading. Right to consent to disclosures of personally identifiable information contained in education records. FERPA

8 Section 504 of the Rehabilitation Act / 1973 A federal Anti-Discrimination Law. Protects ALL people with a disability that impairs one or more major life activity (learning is one). Prohibits discrimination in ANY program that receives federal dollars. Provides accommodations to remove discriminatory barriers. In education, a “504 Plan” removes barriers to learning and opportunities. 504

9 Individuals with Disabilities Education Act / 1975 A federal Education Law. For students with at least one of 13 qualifying categories of disability. Who ALSO need specialized support and instruction to benefit from education. Provides a “special education” plan: “IEP” - specialized instruction - related supportive services “IEP” must be individualized to meet a student’s unique needs. IDEA

10 A civil rights law to prohibit discrimination solely on the basis of disability in employment, public services, and accomodations. Protects: Any individual with a disability who: (1) has a physical or mental impairment that substantially limits one or more life activities; or (2) has a record of such impairment; or (3) is regarded as having such an impairment. Note: the person must be qualified for the program, service, or job. The ADA The Americans with Disabilities Act / 1990

11 ADA provided additional protection in combination with actions brought under Section 504. Reasonable accommodations are required for eligible students with a disability to perform essential functions of the job. ADA protections apply to nonsectarian private schools, but not to organization or private schools, or entities controlled by religious organization; Applies to any part of the special education program that may be community-based and involve job training/placement. Also applies to Childcare centers and recreation programs. The ADA The Americans with Disabilities Act / 1990 (cont.)

12 The Americans with Disabilities Act of 1990 (ADA), the Individuals with Disabilities Education Act (IDEA), and Section 504 of the Rehabilitation Act of 1973 represent three attempts to improve the living conditions of those with disabilities, to ensure equal access, and to promote inclusion. Go to: For a comparison of these laws. How do the ADA, 504 and IDEA relate to each other?

13 Section 504 covers disabled persons in programs receiving federal funds: - public schools explicitly, but also - publicly-funded programs such as day care programs, - after-school programs and even some private schools To be eligible for services and to ensure a Free and Appropriate Public Education (FAPE) and protection against discrimination under Section 504, a student must have a physical or mental impairment that substantially limits one or more major life activities. [29 U.S.C. 706 (8)(B)] CA statutes broaden “physical disability” definition. What is Section 504?

14 A student is entitled to a Free and Appropriate Public Education (FAPE) This can consist of special services and program modifications 504 Plan Designed to reasonably accommodate the student’s condition so that his/her needs are met as adequately as the needs of students without disabilities. Provided in the Least Restrictive Environment (LRE) --Removes Barriers, Provides equal access-- EXP: Ramp into the school to access learning like other students, Computer access so student can “show” what she knows. SECTION 504— Leveling the playing field

15 Students may receive services, accommodations and modifications for “equal access” to educational opportunities afforded all students. Accommodations are program adjustments made to remove disability-related barriers to full participation in school: “leveling the playing field” Academic modifications may be necessary even if major activity of “learning” is not affected. Ex: P.E. curriculum changes, school schedule Nonacademic AND extracurricular activities are included. Ex: field trips, athletics and assemblies. ALL determined by student’s individual needs. “504 Plan” describes services, accommodations & modifications

16 Accommodations for children with diabetes might include: Ability to leave class when needed Free access to food and water Preferential seating Administration of health protocols in class Additional time to complete assignments without penalty Ability to make up work missed to fulfill health-related needs or doctor’s appointments without penalty. See sample “504 Plan” for a child with diabetes on DREDF website under Special Education. Services, Accommodations and Modifications

17 Relationship of Protective Laws IDEA eligible ALL students 504 eligible IDEA-eligible students are protected by ALL these laws just discussed. A Student with an IEP may also need accommodations to prevent discrimination.

18 Cycle of Special Education Reason for Concern / Dx Request Assessment Assessment Plan: within 15 days Assessment: 60 days to complete IEP Meeting: within the 60 days Appropriate Placement: determined “PLOP”, Goals, Individualized Instruction and Services: determined Review IEP annually, or if requested Implementation “Informed consent”: 15 days for parent questions (if needed)

19 “(c) Findings. Congress finds the following: Disability is a natural part of the human experience and in no way diminishes the right of individuals to participate in or contribute to society. Improving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent living, and economic self sufficiency…” “(d) Purposes. The purposes of this title are - (1)(A) to ensure that all children with disabilities have available to them a free and appropriate public education…designed to meet their unique needs AND prepare them for further education, employment, and independent living…” —IDEA / 20 U.S.C. § 1400 IDEA: Purpose

20 IDEA: Eligibility Age 3 up to age 22* with 1 of 13 eligibility categories: AND who by reason of their disability needs special education and related services in order to benefit from their education. Determined by the assessments! * or sooner if the student earns a full high school diploma 1. Autism 2. Deafness / HH 3. Deaf-Blindness 4. Hearing Impairment 5. Mental Retardation 6. Multiple Disabilities 7. Orthopedic Impairment 8. Other Health Impairment 9. Serious Emotional Disturbance 10. Specific Learning Disabilities 11. Speech or Language Impairment 12. Traumatic Brain Injury 13. Visual Impairment / Blindness

21 IDEA: 6 Core Principles 1.Appropriate Evaluation/Assessment 2.Free & Appropriate Public Education (FAPE) 3.Individualized Education Plan (IEP) 4.Least Restrictive Environment (LRE) 5.Parent (and student if appropriate) participation in the decision-making process 6.Procedural Safeguards

22 Referral for Special Education SAFEGUARD: WRITTEN request triggers a strict timeline and an “affirmative obligation” to assess. “CHILD FIND” provision of IDEA law In 15 calendar days, the district must present you with an “Assessment Plan” for your consent. Parent can take 15 more days to ask their questions. Upon your consent, the district has 60 calendar days to evaluate your child and hold an IEP meeting. TIP: A request for special education assessment legally supercedes a Student Study Team (SST) meeting.

23 Referral for Special Education Parent generally makes initial referral for Special Education/504 assessment. But it can be a anyone concerned about the student’s educational needs. WRITE a “Request for Assessment” letter to Special Education director or District 504 coordinator (or both); cc others if needed. SAFEGUARD: If you ask verbally, the district is obligated to help you put your request in writing. Students must be comprehensively assessed “in all areas of suspected disability” to determine need for special education. TIP: If eligibility assessment, include “504 assessment” request in case child does not qualify under IDEA. Saves precious time.

24 Assessment Rights Parent consent is required. Independent (outside) assessments must be considered. Right to review results in advance of the IEP meeting. TIP: Request in your “request for assessment” letter! Remember: FERPA. Also, translate into Parent’s language. Assessment in child’s language/mode of communication. Variety of tools & strategies must be used to determine: If a child has a disability under IDEA Contents of the IEP document Technically sound instruments. Qualified professionals. Parent has a right to disagree via “IEE”

25 IEE Independent Educational Evaluation “at public expense” If parent disagrees with a district assessment, parent has a right to ask for an IEE and for the district to pay for it. Parent sends WRITTEN notice, or request, for IEE. Without unnecessary delay, district must agree to either: - pay for the IEE, or - file for a Due Process hearing to show assessment was appropriate. A judge decides. Independent Educational Evaluations MUST be considered, no matter who paid. Qualified evaluator. No requirement to pick from district list.

26 IDEA: Intent Expect success. Presume competence. Provide access to the general education curriculum. Prepare students for their future. Expand their future. Strengthen the role and responsibility of parents. Ensure that special education is a service rather than a place where children are sent. Provide appropriate instruction, services and supports in regular environments. Use technology to maximize accessibility. Promote democracy.

27 Meeting Preparation Talk to your child (DREAMS / CONCERNS / I WISH…) Gather Your Thoughts (VISION STATEMENT) Prior Meetings with Teachers Gather/Organize Independent Reports/Evaluations Find out availability of the people you will need to attend. Observe Placements. Network with families about placement. Make an Agenda. Make a List of Questions/Concerns. Prepare a “Parent Report” You are an EXPERT! Understand your rights.

28 IEP: Preparation District must provide WRITTEN NOTICE of IEP meeting. (date, time allotted & participants) Let district know ASAP if you need another date/time. Let district know what team members you need there. Provide WRITTEN notice at least 24 hours in advance: if you plan to tape record the meeting. if you plan to bring an attorney. Request/remind the district to provide all written materials & assessment reports 5 working days before meeting.

29 IEP: Good Record Keeping YOUR CHILD’S RECORDS ARE THE FOUNDATION OF THEIR FUTURE. Good records should provide a complete picture of your child. Approach like you are conducting BUSINESS. Request records when needed. Document your key concerns and understandings in writing…REAL writing. ALWAYS: Be truthful, reasonable, direct. Email: advantage and disadvantage Retain proof of delivery of correspondence you send to the school district. Keep Phone logs and email collections.

30 IEP: Team rules Translators as requested/needed. Others may attend at invitation of parent or district who has knowledge of student. Person inviting has the right to determine appropriateness. A team member may be excused when the parent AND the school district consent to the excusal. Parent must consent in writing. Member submits in writing input to the development of the IEP prior to the meeting. A team member may be excused when her area is not being discussed or modified. Parent must consent in writing. Teams can meet by alternate ways: Speakerphone, video conference, etc.

31 IEP: Think of it this way! - Special Education is a SERVICE - brought to the student through the IEP - in order to CLOSE THE GAP between the student’s - Present Level of Performance (PLOP) and the student’s - Expected Level of Performance. Visualize an Elevator!

32 IEP: Big Questions Where are we now? Present Levels of eduPerformance (PLOP) Where are we going? GOALS/OBJECTIVES How are we going to get there? SERVICES & INSTRUCTION How do we know when we have succeeded? MEASUREMENT: What objective DATA will tell us if we have? How and when progress will be reported to the parents? ACCOUNTABILITY. STAYING ON TRACK. Big questions the IEP team MUST answer:

33 IEP: PLOP Present Levels Of Performance Academic AND Functional performance* How disability affects student involvement and progress in the general curriculum. For Pre-K age children, how disability affects participation in appropriate activities. * Educational performance is a BROAD term specifically selected by Congress. PLOP is NOT limited to academic performance only.

34 IEP: S.M.A.R.T. Goals SPECIFIC: clear descriptions of the knowledge and skills that will be taught and how the child’s progress will be measured. MEASURABLE: you can count or observe it. ACTION WORDS: “child will be able to...” REALISTIC / RELEVANT: to child’s unique needs that result from the disability. TIME-LIMITED: what does the child need to know and be able to do after 1 year of special education? Monitored at regular intervals.

35 Goal: More than “being there” EXAMPLE #3: Kylie will participate in physical education. REWRITE! Provided with adapted equipment, strategies and training, within the general education physical education class, with support from the Adapted P.E. (APE) instructor, Kylie will acquire skills in 3 or more physical education activities that promote flexibility and strength in upper arms and body, promote balance, and independent movement, as measured by APE data collection and P.E. grade/comments in school report cards.

36 Goal: Clarity EXAMPLE #4: Stan will communicate better. REWRITE! Stan will increase his sign language vocabulary to 300 words as described in the sign language notebook that travels between home and school by June 30.

37 IEP: Placement LAST part of IEP Meeting Protect Least Restrictive Environment (LRE) Placement is a “set of services” provided to the student. NOT a place for the student to go! Watch for “label and sort” offers. LRE must be protected in offers of instructional and other settings. Consider supports and services to protect LRE. Appropriate placement is one in which the student has a reasonable expectation of achieving IEP goals.

38 IEP: LRE Least Restrictive Environment The extent to which the student will or will not learn with and participate in school with students without disabilities AND WHY. Usually expressed as percent. IDEA has a strong presumption that students with disabilities learn with their non-disabled peers. Home school. General Ed. Typical classes. Supports and services should protect LRE. Be vigilant. ASK: Where is the data to support removal from typical learning environments?

39 Meeting Tips: Building Partnerships Model what YOU expect from others! Protect relationships. Ask open-ended “help me understand…” questions. Be responsive. Follow through on your commitments. Share ideas about your child that will support the team. Encourage your child to value school. Don’t visit only when there are problems. Be proactive – not reactive. Let the team know what’s important to you. Say: “thank you.” Say: “I’m sorry.” Have “the courage to forget.” Always remember that you are an equal member of the TEAM.

40 Prior Written Notice (PWN) When district proposes or refuses to do something that involves the child's identification, assessments, placement, or FAPE. Parent is required to receive PWN. ASK FOR IT! PWN must include: (1) Description of action proposed or refused. (2) Explanation of why school proposes or refuses to take that action. (3) Each evaluation, procedure, test, report, etc. the school used as a BASIS. (4) Copy of the parent’s rights to challenge the action or inaction. (5) Sources of advocacy assistance for parents. (6) Other options the school considered and why they were rejected. (7) Other reasons for the school’s action or inaction. [20 U.S.C. Sec. 1415(b)(3); 34 C.F.R. Sec. 300.503(b); Cal. Education Code Sec. 56500.4.]

41 Disputes: When things go wrong in implementing the IEP or 504 plan. When parents and schools don’t even agree on the what is needed.

42 DOCUMENTATION RULE OF THUMB: “If it was never written, it was never said and will never be done.” Work out problems at the local level through letter WRITING. See “Letter to a Stranger” Make requests IN WRITING. Expect responses IN WRITING (PWN). Expect Timelines to be met. Tip: Send letters with proof of delivery Document conversations and calls. Date, time, who, title, contact info, what was discussed, what is understood, what is the expected result. Tips: Conflict Prep “just in case”

43 Alternative Dispute Resolution “ADR”: informal means to resolve disputes Write an effective letter. Involve key stakeholders/decision-makers: Superintendent; Director of SpEd; school board member “Facilitated” IEP School District or SELPA “Solution Teams” “Compliance Complaint” at district level “Mediation-Only”: FREE trained mediator from state before filing formal complaint

44 504: Civil Rights Discrimination Complaint Filed with: Office for Civil Rights (OCR) San Francisco is Regional Office 415-486-5555 / 877-521-2172 TDD Complaint alleges: Education institution that receives Federal financial assistance has discriminated against student on the basis of his/her disability. If educational opportunity is not commensurate with non-disabled peers (“level playing field”). File within 6 months of alleged violation.

45 IDEA Compliance Complaint Filed with: California Dept. of Education (CDE) Office of Procedural Safeguards & Referral Services (PSRS) 800-926-0648 Parent describes & provides evidence of how school district: - failed to carry out an agreed-to IEP and/or - violated procedural safeguards in IDEA law File within 1 year of alleged non-compliance. FYI: Teachers & Staff too may file. There are “whistle-blowing” protections for school district staff in IDEA 2004.

46 IDEA Due Process Complaint Office of Administrative Hearings (OAH) Special Education Division 916-263-0880 / 916-263-0890 Fax “Trial-like” When Parent & School District have BIG disagreements: - whether student is eligible for special education [or] - whether the IEP and particular services offered provide “Free and Appropriate Public Education (FAPE) Administrative Law Judge (ALJ) resolves disagreements about eligibility; or type, intensity, frequency or location of services. Must file within 2 years of alleged complaint

47 IDEA Due Process Complaint Complaining party MUST provide notice to OAH and the opposing party: Name, address of child (& contact if homeless) School Name Description of problem Desired solution Parents AND Districts can file for Due Process. Filing is VERY specific. Opposing party can challenge “sufficiency” of complaint for lack of detail. OAH has model forms for filing. Opportunities to resolve before a hearing: “Resolution Meeting” and/or “DP Mediation”

48 NEWS FROM THE TRENCHES: Current Issues, resources, problems related to these laws that we are hearing about from Families and Stakeholders “on the ground”

49 Current Issues, Resources Gatekeeping/Stalling ISSUE: Districts Stalling on providing a decision in WRITING so parent’s due process rights are triggered. When district proposes or refuses to do something that involves the child's identification, assessments, placement, or FAPE. Parent is required to receive PWN. ASK FOR IT! PWN must include: (1) Description of action proposed or refused. (2) Explanation of why school proposes or refuses to take that action. (3) Each evaluation, procedure, test, report, etc. the school used as a BASIS. (4) Copy of the parent’s rights to challenge the action or inaction. (5) Sources of advocacy assistance for parents. (6) Other options the school considered and why they were rejected. (7) Other reasons for the school’s action or inaction.

50 Current Issues, Resources Gatekeeping/Stalling ISSUE: Districts are denying requests for assessment for special education (Child Find responsibility is to actively seek out and identify all children with disabilities in the district) because of concerns over “over-identification”, or need to complete Response to Intervention (RTI) or SST (California) process. EXP: Special education assessment request denied because “resources of general education are not exhausted” ? TIP: Ask to see policy, and timelines! When general education interventions are being used, these should be short term, focused and data driven interventions that give team data—if they don’t work, go to higher level support. Don’t wait. NOTE: If parent asks for assessment, district cannot simply state that general education interventions and supports are not “exhausted”—must provide data in detail about why referral is not appropriate using PWN.

51 Current Issues, Resources Gatekeeping: FAPE MEANS FREE! ISSUE: When team agrees that a service or resource is necessary to student’s educational needs, school district is financially responsible. The buck stops with the school district. EXP: Telling parents that student needs after school tutoring and they should provide it is not FAPE! TIP: Try to get team agreement that service or support is necessary during IEP and write goal for it…parent can offer to do “extra” but required services relate to goals at no cost to parent.

52 Current Issues, Resources PLACEMENT IS NOT A PLACE! ISSUE: Placement is the set of services, supports, accomodations, specialized teaching. Placement is the last consideration for an IEP team, after all issues talked through. Must be Least Restrictive Environment. STUDENT IS OUT OF PLACEMENT IF PACKAGE OF SERVICES NOT PROVIDE. EXP: Telling parents that student needs after school tutoring and they should provide it is not FAPE! TIP: Try to get team agreement that service or support is necessary during IEP and write goal for it…parent can offer to do “extra” but required services relate to goals at no cost to parent.

53 Current Issues, Resources Individualization Districts often create programs for specific disabilities or types of students. IDEA says IEP must be written to the specific and unique needs of each student—one size fits all is not FAPE! For young children, Developmental and Educational needs are interchangeable—and if the report card or progress report measures it (group cooperation, citizenship) and student is struggling, ask that it be addressed!

54 Current Issues, Resources Transportation ISSUE: Students with Disabilities must have equal access to school sponsored events, including field trips, graduation ceremonies, etc. EXP: Student not allowed to ride bus to field trip because not wheelchair accessible, or not able to get diploma on stage, no ramp. SDC kindergarten not allowed to go to promotion ceremony (“they” won’t behave). These are ADA and 504 issues! Remember—students with an IEP also covered under 504. TIP: Make sure IEP or 504 plan ANTICIPATE these potential barriers and write goals around participation, and LRE

55 Current Issues, Resources Assistive Technology ISSUE: AT Assessments done by a certified AT Specialist can provide simple to highly complex technologies (pencil grip, laser pointer) to allow students to learn better, participate more fully, and DEMONSTRATE THEIR KNOWLEDGE. TIP: Ask for these assessments, esp. when student hits middle school! Digital books available to districts and students for free, eg Bookshare. Voice Recognition Software (Dragon, etc) can be invaluable—but include TRAINING IN IEP OR 504 plan! See Center for Accessible Technology Website:

56 Current Issues, Resources Seclusion and Restraint ISSUE: School Districts may use emergency interventions ONLY when there is a serious risk of harm to student or others—not student jumping on desk, but student running into traffic. See 18 U.S.C. 1365(h)(3) for definition of serious bodily harm. EXP: Student who refuses to comply and is locked in “time out room” unattended, student with autism who is held down because of meltdown. Harm is done—students do not feel safe at school.

57 Current Issues, Resources Seclusion and Restraint (Cont.) State policies vary widely. – See: state-summary.html for a state by state summary of policies. state-summary.html Restraint and Seclusion should never be interventions allowed in the Behavior Plan—and parents should never be asked to proactively “consent” to them. – See Aprais website “The Alliance to Prevent Restraint, Aversive Interventions and Seclusion”.

58 Current Issues, Resources Addressing Challenging Behavior Addressing Behavior needs is an EDUCATION issue! FUNCTIONAL BEHAVIORAL ASSESSMENTS (FBA) are research based, data driven tools that are used to develop a MEANINGFUL Behavior Support Plan. If behavior needs are serious, and endanger person or others, than ask for a BEHAVIOR INTERVENTION PLAN (BIP) or similar instrument that can be predictive, identify necessary skills deficits, teach replacement behaviors.

59 Current Issues, Resources Addressing the needs of Youth in Transition FUNCTIONAL VOCATIONAL ASSESSMENTS (FVA) can be important tool—remember that services and supports are driven by assessment—WHERE ARE WE NOW, AND WHERE DO WE WANT TO BE IN YEAR?. OSEP Indicator 13 checklist lets families, advocates see what school district/state are being expected to do under IDEA 2004 Plan must be in IEP NO LATER THAN age 16, and address independent living, post secondary, and vocational needs. Support must be provided!

60 Current Issues, Resources Foster and other Vulnerable Students Children with disabilities who are in foster care, kincare, homeless, or otherwise vulnerable need advocacy the most— more often abused and neglected, more often underserved, poorest outcomes These children are often the least served—no one to advocate for them. See DREDF website: Foster Youth Resources for Education (FYRE) and Foster Youth with Disabilities in Transition (FYDT) Clearinghouse Special protections, in IDEA part C, and in new Fostering Connections Law.

61 DOWNLOAD DREDF Training Materials!!! “Info-to-go”: TRANSITION from Early Intervention to PreK and from PreK to Kindergarten: ITG_TRANS_PRE-K.pdf CARS+: CDE Special Education: CDE CDE/PENT (Behavior) Disability Rights CA (DRC) NICHCY: OSEP: Wright’s Resource Links

62 GOALS: “From Gobbledygook to Clearly Written Annual IEP Goals” “Writing Measurable IEP Goals and Objectives” Barbara D. Bateman ADVOCACY: “From Emotions to Advocacy” SPECIAL EDUCATION RIGHTS & PROCESS: “Special Education Rights & Responsibilities” (CA specific) CA Dept. of Ed “A Composite of Laws” order form: Other CDE Publications: “Negotiating the Special Education Maze” Winifred Anderson, et. al. “The Complete IEP Guide” Nolo Press Lawrence M. Siegel “Special Education Law” Resource Books

63 A network of Parent Training & Information (PTI) Centers is available for every county across the country. PTI’s provide technical assistance and training to parents/guardians of school-age children with disabilities, and professionals who serve these students and their families. Here is a list by region/state: Contact DREDF at: Phone 510.644.2555 Toll Free 800.348.4232 Fax 510.841.8645

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