NEW RULING: A SCHOOL MUST OFFER AN IEP REASONABLY CALCULATED TO ENABLE A CHILD TO MAKE PROGRESS APPROPRIATE IN LIGHT OF THE CHILD’S CIRCUMSTANCES

Earlier this week, the Supreme Court issued a ruling in Endrew F. v. Douglas County School District. The Supreme Court unanimously issued a ruling on the level of benefit IDEA requires public schools to provide to students with disabilities. In the past, the level of benefit school districts were required to provide was de minimis, or negligible. In this week’s ruling the court ruled that schools must offer an IEP that is reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.

School districts have often argued that the level of benefit only needs to provide some benefit, as opposed to no benefit. This standard has long been a source of frustration for parents.  The Supreme Court in Endrew recognized the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.

The Supreme Court recognizes the need to defer to the judgment of school officials, informed by their own expertise and in light of the views of a child’s parents or guardians. The Supreme Court recognized the decisions made by an IEP team are of critical importance to the life of a child with a disability.

 

(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)

HELP! I HAVE AN IEP AND THE SCHOOL DIDN’T PROVIDE THE ASSESSMENT REPORTS

I was recently preparing for an IEP when the school district representative indicated that they wouldn’t be able to provide the assessment reports until the day of the IEP. The staff recognized providing the reports prior to the IEP as “best practices.” This is not the law.

34 CFR 300.613(a) provides the legal requirement for the school district to permit parents to inspect and review any education records relating to their children, including assessment reports. If a parent makes a request, the school district is required to comply without unnecessary delay and before any meeting regarding an IEP.

Case law supports a parent’s rights to review the assessment reports prior to the IEP. “[T]he informed involvement of parents” is central to the IEP process. (Winkelman v.Parma City School Dist. (2007) 550 U.S. 516, 524 [127 S.Ct. 1994]. Protection of parental participation is “[a]mong the most important procedural safeguards” in the Act. (Amanda J. v. Clark County School Dist. (9th Cir. 2001) 267 F.3d 877, 882.)

Parents should always request a copy of their child’s educational records, including assessment reports, prior to an IEP. In order to provide enough time to receive the documents and review them I suggest making the request at least two weeks prior to the scheduled IEP.

Should you have any further questions, please contact Kristin Springer at specialedlegaljourney@comcast.net.

(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)

 

Fry v. Napoleon Community Schools

Issue: Whether the Handicapped Children’s Protection Act of 1986 commands exhaustion in a suit, brought under the Americans with Disabilities Act and the Rehabilitation Act that seeks damages – a remedy that is not available under the Individuals with Disabilities Education Act.

Yesterday the Supreme Court of the United States issued a unanimous decision stating that exhaustion of administrative remedies under IDEA is not necessary when plaintiff’s suit is something other than based on IDEA’s core guarantee of a free and appropriate education.  Therefore, a student who files a claim that the school discriminated against them because of his or her disability does not need to file administrative proceedings as required by IDEA because the alleged discrimination happened at school.

 

 

I THINK MY CHILD’S SPECIAL EDUCATION PROGRAM IS NOT PROVIDING SUFFICIENT HELP FOR MY CHILD: HOW CAN I DEMONSTRATE THIS?

As a special education attorney I approach everything as if the parties will end up in front of a judge, administrative or otherwise. As a mediator I am a big proponent of voluntary conflict resolution.  Balancing the two mindsets can be an effective way to advocate for your child without sacrificing the relationship with the school. So, if we are going to put forth our “case” then what do we need to show? What is our evidence?

20 U.S.C. Section 1414(d)(1) requires, in part, that IEPs contain a statement of the child’s present levels of academic achievement and functional performance, a statement of measurable goals, and a description of how the child’s progress toward meeting the goals will be measured. The school is required to provide progress reports throughout the year, quarterly or in conjunction with the issuance of report cards. Progress must be measured using objective means, not subjective means.

If you believe your child’s special education program is not helping your child make progress you will need to assemble evidence in the form of data from testing done. I make a request to the school for all progress reports, test scores, and work samples.  I organize these records so I can determine if appropriate progress monitoring is being done. If time permits, and objective data is missing from the educational records, I will write the school before the IEP to ask that this information be gathered before the IEP.  Sometimes, due to time constraints, you have to appear at the IEP and request objective data.

You do not have to be an expert to look at the data and determine whether your child is making progress. Comparing data before and after the implementation of an IEP will help you understand whether or not your child is making progress. I typically use the bell curve and percentile ranks. This information can be put into a chart so you can easily reference it.

I often find that heavy case loads prevent school staff from going to this degree of analysis. As an equal part of the IEP team, it is appropriate for you to present this information at the IEP. The IEP team is usually receptive to considering the data. If they aren’t, don’t give up. Trust the data and advocate for your child.

If you would like assistance reviewing your child’s file, please contact Kristin Springer at (925) 551-1041. Below is information regarding my fees to complete a file review.

Document Request, File and IEP Review, and Recommendations:   $350.00

Once a fee agreement is signed, I will ask that you execute a Release of Information so that I am able communicate directly with the school.

Upon receiving your child’s educational file I ask that you provide a copy to me. I will review it to determine if there are any obvious documents missing. In my experience, schools often only provide a portion of the child’s educational record. I will prepare a letter to the school to request additional records that should be a part of the educational file. Your child’s educational file is extremely important to your participation at your child’s IEP.

Next I will review your child’s educational file in more detail. This typically takes about an hour to an hour and a half.  I will be looking at:

  • What are the students present levels of performance?
  • Are the goals measurable?
  • Has the child been placed in the least restrictive environment?
  • Are the services related to the goals?
  • Are there any identifiable violations of the child’s free and appropriate public education?

I will schedule a 30 minute phone conference with the family to discuss any questions regarding their child’s educational file. During this call I will give you my initial impressions of your child’s educational file.

Once we complete our phone conference I will prepare a summary of my impressions and recommendations. This usually takes about an hour. We will set up an additional 30 minute phone conference to discuss my impressions and recommendations. This completes the file review process.

 

(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)

 

 

 

 

 

 

UPDATED FEE STRUCTURE

Initial Consultation (20 minutes) With Sample Letter to School Requesting Records: Free

During this meeting we will discuss your child’s disability, your history with the school district, and attempt to identify any areas of need. We will discuss what steps can be taken to determine if your child is receiving a free and appropriate public education in the least restrictive environment.

Document Request, File and IEP Review, and Recommendations:   $350.00

Once a fee agreement is signed, I will ask that you execute a Release of Information so that I am able communicate directly with the school.

Upon receiving your child’s educational file I ask that you provide a copy to me. I will review it to determine if there are any obvious documents missing. In my experience, schools often only provide a portion of the child’s educational record. I will prepare a letter to the school to request additional records that should be a part of the educational file. Your child’s educational file is extremely important to your participation at your child’s IEP.

Next I will review your child’s educational file in more detail. This typically takes about an hour to an hour and a half.  I will be looking at:

  • What are the students present levels of performance?
  • Are the goals measurable?
  • Has the child been placed in the least restrictive environment?
  • Are the services related to the goals?
  • Are there any identifiable violations of the child’s free and appropriate public education?

I will schedule a 30 minute phone conference with the family to discuss any questions regarding their child’s educational file. During this call I will give you my initial impressions of your child’s educational file.

Once we complete our phone conference I will prepare a summary of my impressions and recommendations. This usually takes about an hour. We will set up an additional 30 minute phone conference to discuss my impressions and recommendations. This completes the file review process.

Document Request, File Review, and 504 Plan Recommendations:   $200.00

The process for a child with a 504 Plan is similar to the one described above for a child with an IEP. However, the review will focus on:

  • Whether the accommodations are appropriate;
  • Whether the child is receiving appropriate special services; and
  • Whether the student should be evaluated for an IEP.

A child with a 504 Plan usually does not have any assessments or classroom data to review. This is reflected in the modified price from an IEP file review.

Document Request, File Review, and Eligibility Challenges: $250.00

Has your child been assessed and denied special education? I will review your child’s educational records and current assessments to determine whether your child meets the legal standards for eligibility. I will also review your file to determine whether an Independent Educational Evaluation (IEE) is appropriate. If an IEE is appropriate I will provide a sample letter to the family. If further services are needed they will be charged on an hourly basis.

General Legal Services: Billed Hourly

All other services are billed at my current hourly rate. Please contact me for the current rate.

CHILD FIND: A SCHOOL’S RESPONSIBILITY TO IDENTIFY, LOCATE AND EVALUATE CHILDREN WITH DISABILITIES

Child Find is a mandate under the Individuals with Disabilities Education Act (IDEA) which requires all school districts to identify, locate, and evaluate all children with disabilities who are in need of special education and related services. This mandate applies to children in public and private, even religious, schools. It also applies to children who are migrants, homeless or wards of the state.

IDEA requires that the school districts establish policies and procedures to ensure that a free and appropriate public education (FAPE) is available to disabled children. The school districts obligation is not dependent on the nature or severity of the disability. Students are not required to fail before the school district’s obligation is applicable.

It is important for there to be public awareness and professional training to help identify children with suspected disabilities. It would be helpful for physicians, all teachers, day care workers, etc., to be educated about disabilities. There is a lot of information on-line. Here are a few resources:

LD Online: http://www.ldonline.org/ldbasics/signs

Autism Speaks: https://www.autismspeaks.org/what-autism/learn-signs

Referral can be made by a representative of the school district or parent.

Many schools districts are implementing a Response to Intervention (RTI) approach to determine if a child with a specific learning disability responds to scientific, research-based intervention as a part of the assessment process. The school district’s use of RTI does not remove the requirement that school districts locate, identify, and evaluate a student with a suspected disability. The Federal regulation addressing referrals to special education respects the parents’ ultimate right to request an evaluation at any time.

The Child Find mandate passes an important legal responsibility on school districts. School districts are not obligated to assess every student referred under this mandate. However, school districts should use caution when denying a request for assessment. The threshold for suspecting that a child has a disability is relatively low. A denial may trigger a parent’s right to file for a due process hearing. Failure to identify is a complete violation of the right to FAPE.

 

(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)

 

 

 

 

OCR AND OSERS ISSUE A WEBINAR ON THE RIGHTS OF STUDENTS WITH DISABILITIES IN PUBLIC CHARTER SCHOOLS

Today, the Office of Civil Rights and Office of Special Education and Rehabilitative Services jointly released a webinar on the rights of students with disabilities in public charter schools. You can view the webinar here:  https://innovation.ed.gov/2017/01/18/rights-students-disabilities-public-charter-schools-webinar-january-18-2017/

 

EDUCATION AND SPECIAL EDUCATION: FERPA AND YOUR CHILD’S EDUCATIONAL RECORD

Every parent of a child under the age of 18 has a right to inspect and review your child’s educational records. The Federal Educational Rights and Privacy Act (FERPA) is a federal statute that addresses privacy of educational records of children enrolled in public elementary and secondary schools. FERPA applies to schools which receive any amount of funding from the U.S. Department of Education. FERPA does not apply to most private schools.

Records Subject to FERPA

Parents are entitled to review all records, files, documents, and other materials that are maintained by the school system and contain information relating to their child. The only items excluded under FERPA are:

  • Notes of teachers, counselors, and/or school administrators made for their own personal use and not shared with anyone; and
  • Personnel records of school employees.

FERPA does not mandate what documents a school must keep. However, a student’s cumulative file generally includes: registration and health records, test scores, reading and math test scores, and special education records. A student’s file should also have records regarding any disciplinary issues.

Amendment of Educational Records

Upon review of a student’s educational file, a parent may request the educational records be amended. Records are only amended if they are inaccurate, misleading, or in violation of the privacy rights of the student. The right does not extend to challenge substantive decisions made by school officials. The school must provide the parent an opportunity to be heard regarding the challenge.

If the challenge is denied, the parent may request a statement be placed in the student’s record, alongside the contested information.

Right to Consent to Disclosure

A student’s educational records may generally not be disclosed without parental consent. However, the school may disclose them in certain circumstances:

  • During an audit, evaluation, or enforcement/compliance of federal or state-supported education programs;
  • To school officials with a legitimate educational interest;
  • To another school where the student seeks to enroll so long as the disclosure is related to a school transfer;
  • In connection with a financial aid request by the student;
  • To comply with a judicial order/subpoena;
  • To health officials in connection with a state of emergency; and
  • Disclosure of appropriate information may take place in connection with a school official’s disciplinary action.

Right to File a Complaint

A parent may file a complaint with the Family Policy Compliance Office for an alleged violation of FERPA.  The complaint must:

  • Be in writing and contain specific allegations of fact giving reasonable cause to be a FERPA violation has occurred;
  • Be filed by the parent of a student at an elementary or secondary school under the age of 18 or an eligible student (defined below); and
  • Filed within 180 days of the alleged violation or within 180 days after the complainant knew or should have known about the violation.

FPCO will review and investigate the complaint. Upon completion of the investigation FPCO will provide written notice to the parties of their findings. If the violation is substantiated, FPCO may require specific corrective action.

Eligible Students

Students who reach the age of 18 or attend a postsecondary school are called “eligible students.” Rights related to educational records under FERPA transfer from parents to eligible students.

If believe your rights under FERPA have been violated, do not hesitate to contact Kristin Springer at 925-551-1041.

(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)

 

UPDATE: ENDREW F. V. DOUGLAS COUNTY SCHOOL DISTRICT

On January 11, 2017, the United States Supreme Court heard oral arguments in the case Endrew F. v. Douglas County School District. The Chief Justices listen to oral arguments from counsel for Endrew, Douglas County School District, and the Solicitor General. The Justices were concerned that there were varying standards among District Courts of Appeal. They were also concerned about setting a standard that would promote lawsuits and take away funds for services from students with disabilities.

The attorney for Endrew suggested, “… as a general rule, the IEP provisions and, therefore, the FAPE requirement of the Act, demands a level of educational services designed to allow the child to progress from grade to grade in the general education curriculum.” The attorney suggested that , where a student’s disability prevents him from progressing at that level, the school would set alternate achievement standards.

Counsel for the Solicitor General promoted a standard that “is reasonable calculated to make progress that is appropriate in light of the child’s circumstances.” The Justices seemed to rely on the Solicitor General’s “expertise” in these matters.

Counsel for Douglas County School District argued in favor of keeping a “more than de minimis” standard.

The Justices recognized that it is appropriate to revisit the standard in light of the revision of IDEA. They also believe there is ambiguity in the current standard which came out of Rowley.

We don’t know the exact standard that the Supreme Court will adopt. However, it seems they are leaning toward moving away from the “more than de minimis” standard. This would be a positive move for students with disabilities.

You can find the entire transcript here: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2016/15-827_gfbh.pdf

(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)