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

HISTORY OF 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 Originally enacted in 1975 as the Education for All Handicapped Children Act Reauthorized in 1997 and 2004 Serves ages 3-22 Serves ages 0-3 in early intervention programs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. Rowley 1982 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 ACT OF 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 LINES CALIFORNIA 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 LINES CALIFORNIA 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 TIMELINES IDEA 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 TIMELINES IDEA 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 LINES IDEA 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

REEVALUATIONS IDEA 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

REEVALUATIONS IDEA 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