ADVOCATING FOR A CHILD WITH SPECIAL NEEDS

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. 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

4. 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

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 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 • Originally enacted in 1975 as the Education for All Handicapped Children Act • Reauthorized in 1997 and 2004 • Serves ages 3-22 • Serves ages 0-3 in early intervention programs •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

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. 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

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 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

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 2005-2006 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 WITHDISABILITIES 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. EVALUATIONSUNDER 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 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

35. 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

36. 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

37. 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

38. 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

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. 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

43. 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

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.