1. ADVOCATING FOR A CHILD WITH SPECIAL NEEDS
Presented By
Dina C. Kaplan, Esq.
Andrea D. Lorant, M.A.

2. Overview of The Individuals With Disabilities Education Act “IDEA”
History
Eligibility
Parents Rights
Procedural Safeguards

3. 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

4. SPECIAL EDUCATION COURT CASES
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

5. 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

6. IDEA U.S.C. Sec 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Originally enacted in 1975 as the Education for All Handicapped Children Act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

7. 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

8. 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

9. 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)

10. 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)

11. 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

12. 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

13. RELATED SERVICES INCLUDE
Transportation
Speech and language pathology
Audiology
Interpreting services (2004)
Psychological services
Physical and occupational therapy

14. 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

15. 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)

16. ELIGIBILITY Hearing impairments (including deafness)
Visual impairments (including blindness)
Speech or language impairments
Orthopedic impairments
Autism

17. ELIGIBILITY (CONTINUED)
Mental retardation
Emotionally disturbed
Learning disabled
Traumatic brain injury
Other health impaired
Specific learning disabilities

18. 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

19. ELIGIBILITY (CONTINUED)
AND WHO BY REASON OF THEIR DISABILITY NEED SPECIAL EDUCATION AND RELATED SERVICES

20. 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.

21. 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

22. 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

23. 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

24. 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

25. 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

26. NCLB 2001 (CONTINUED)
Requires states to ensure all teachers who teach a core academic subject are highly qualified by school year, no waivers or emergency credentials
Core academic subjects are english, reading or language arts, history and geography

27. 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

28. BACK TO THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT

30. 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

31. 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

32. 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

34. 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

35. 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

36. 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 no exception for vacation days

37. 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

38. 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

39. 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

40. 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

41. 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

42. 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

43. 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

44. 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

45. 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

46. THE INDIVIDUALIZED EDUCATION PROGRAM [PROCESS, CONTENTS AND SERVICES]

48. 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

49. 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

50. 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.

51. 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)

52. 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

53. 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

54. 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

55. 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

56. 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)

58. 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

59. 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

60. 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

61. 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

62. 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

63. 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

64. 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

65. 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

66. 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)

67. 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