SUPREME COURT TO HEAR FRY V. NAPOLEON COMMUNITY SCHOOL DISTRICT

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.

On June 28, the Supreme Court of the United States issued an order accepting to hear an appeal out of Michigan in the case Fry v. Napoleon Community Schools, No. 15-497, order granting cert, (June 28, 2016), that presents the issue whether parents must exhaust the administrative due process procedures under the Individuals with Disabilities Education Act (IDEA) before filing a lawsuit for money damages for disability-based discrimination under Section 504 of the Rehabilitation Act and the Americans with Disabilities Act.

In January 2014, the district court dismissed the case reasoning that the Fry family was required to exhaust administrative remedies under IDEA. The court of appeals was split but upheld the district court’s ruling. In October 2015, the Fry family appealed the case to the US Supreme Court. The US Supreme Court asked the Solicitor General to help determine whether the US Supreme Court should hear the case.

The ACLU argues that students with disabilities should be allowed to file with the courts without going through due process to save time and money. The school argues that alternative methods for achieving resolution should be the preferred route.

In May 2016, the Solicitor General filed a brief and stated that the US Supreme Court should hear the case. The brief stated that the Court of Appeals’ decision was incorrect. The Solicitor General opined that even if the Frys won all their arguments under IDEA they “would have had to file exactly the same suit under” the ADA and the Rehabilitation Act. The Courts of Appeals are split about the proper interpretation of the exhaustion requirement. Therefore, the Solicitor General concluded that the issue is important and recurring, and the Supreme Court should hear it.

The Supreme Court will hear arguments on October 31, 2016.

 

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/)

DISABILITY SPOTLIGHT: DOWN SYNDROME

According to the CDC Down syndrome continues to be the most common chromosomal disorder. Each year about 6,000 babies are born with Down syndrome, which is about 1 in every 700 babies born. Parents, early intervention teams, and schools can help babies and children with Down syndrome improve their physical and intellectual abilities.

Although most children with Down syndrome have mild to moderate impairments, they are also very similar to other children. They have their own unique strengths and talents. It is important to remember that children with Down syndrome have feelings just like anyone else.

Definition:

The Mayo Clinic provides the following definition of Down syndrome:

Down syndrome is a genetic disorder caused when abnormal cell division results in extra genetic material from chromosome 21. This genetic disorder, which varies in severity, causes lifelong intellectual disability and developmental delays, and in some people it causes health problems.

Early Intervention:

At-risk infant or toddler means an individual under three years of age who would be at risk of experiencing a substantial developmental delay if early intervention services were not provided to the individual. (34 C.F.R. Section 303.5; 20 U.S.C. Section 1432(1))

Early intervention is a system of services designed to help infants and toddlers with disabilities (before their 3rd birthday) and their families. (34 C.F.R. Section 303.13; 20 U.S.C. Section 1432(4) Early intervention is designed to assist with physical, cognitive, communication, social or emotional, or adaptive development.

The National Society of Down Syndrome recognizes that research indicates that early intervention improves outcomes for children with Down syndrome. Under 20 U.S.C. Section 1436 an infant or toddler with a disability receives a multi-disciplinary assessment to identify the strengths and needs of the infant or toddler in a effort to identify the services appropriate to meet the child’s unique needs. Once the assessment is completed, a multidisciplinary team, including the parents, develops what is known as an Individualized Family Services Plan, or IFSP. The IFSP is similar to the IEP. Early intervention services may be provided on a sliding-fee basis, meaning that the costs to the family will depend upon their income.

To identify the EI program in your neighborhood, contact your child’s pediatrician. Your local school district’s special education office may also have the information.

School-Aged Children

IDEA requires the public school system to become responsible for educating the child with Down syndrome and addressing the child’s unique needs after his or her 3rd birthday. Children with Down syndrome are entitled to a Free Appropriate Public Education (FAPE). Children with Down syndrome experience various degrees of developmental delays. Once the assessments are complete, it is important for the IEP team to meet to discuss the unique needs of each child with Down syndrome. The legal rights and limitations are the same under IDEA for a child with Down syndrome and other disabilities.

 

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/)

 

 

FOCUS ON THE IEP: LEAST RESTRICTIVE ENVIRONMENT

After the IEP team establishes measurable goals for the student it is their job to determine the least restrictive environment (“LRE”) for the student to be educated. There cannot be a one size fits all class for disabled students. Therefore, many schools offer various alternatives to consider for their special education students.

Federal and California Statutes

One of the discussions that can quickly bring adversity to an IEP meeting is the discussion regarding the LRE for receiving special education services. While most people only think about the least restrictive environment relating to classroom setting, however other services may be subject to the same legal analysis.

Special education students have a right to be educated to the maximum extent possible with non-disabled peers. Removal from regular classes can only occur if the nature or severity is such that supplementary aids and services cannot assist in the student satisfactorily participating in the regular education class. (34 C.F.R. Section 300.114; 20 U.S.C. Section 1412(a)(5)(A); Cal. Ed. Code Section 56031.) Per statute, the IEP must contain an explanation of the extent, if any, to which the child will not participate with non-disabled children in the regular class and in the activities.

General Terms

Federal and state laws do not define the terms “mainstream” or “inclusion”. However, they are often used during IEP meetings. Therefore, it is important to have a general understanding of these terms.

Mainstreaming typically refers to placing the student in the regular education classroom without aids or support. Mainstreamed students are generally required to keep up with their students.

Inclusion typically refers to educating the student in the general education classroom while bringing the services to the student. Inclusion provides the students individualized attention.

Many parents confuse the two terms. Federal and state law support the idea that a student should be included in a regular classroom environment and removed only when appropriate services cannot e provided in the regular classroom.

Court Guidance

In Sacramento City Unified School District v. Rachel H. (9th Cir. 1994) 14 F.3d 1398, 1400-1402, the Ninth Circuit held that the determination of whether a particular placement is the “least restrictive environment” for a particular child involves an analysis of four factors, including:

(1) the educational benefits to the child of placement full-time in a regular class;

(2) the non-academic benefits to the child of such placement;

(3) the effect the disabled child will have on the teacher and children in the regular class; and (4) the costs of educating the child in a regular classroom with appropriate services, as compared to the cost of educating the child in the district’s proposed setting.

The IEP Team must look at each proposed educational placement using this balancing test.

Contact Our Office

If you have any questions regarding this or any other special education issue, feel free to contact our office via email 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/)

 

DISABILITY SPOTLIGHT: ADHD

According to the CDC, ADHD is one of the most common neurodevelopmental disorders of childhood. According to the American Academy of Psychiatry 5% of children and 2.5% of adults have ADHD. Advocating for a child with ADHD requires a good grasp of the disability and the tools for supporting them in school.

General Information

ADHD is listed in the DSM-5TM  as a neurodevelopmental disorder. The DSM-5TM defines ADHD as a persistent pattern of inattention and/or hyperactivity-impulsivity that interferes with functioning or development, has symptoms presenting in two or more settings (e.g. at home, school, or work; with friends or relatives; in other activities), and negatively impacts directly on social, academic or occupational functioning. Several symptoms must have been present before age 12 years.

The American Academy of Pediatrics has released guidelines on the treatment of ADHD. My understanding is that they recommend behavioral therapy as a first line of treatment of preschoolers and combination therapy of medication and behavioral therapy for children between the ages of 6 -17. If you believe your child has ADHD you can read more by following this link: http://pediatrics.aappublications.org/content/108/4/1033.

Can a Child with ADHD Qualify for Special Education?

Three federal laws exist to protect students with disabilities in public school: IDEA, Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act. A child with ADHD may qualify under Section 504 of the Rehabilitation act and/or IDEA for special education services, accommodations, and interventions. Both statutes, under Child Find, require schools to identify and evaluate any student who is believed to need special education or related services because of a disability. Both statutes also require the school to provide a free and appropriate public education that meets the student’s unique needs.

In order for a student to qualify under Section 504 of the Rehabilitation Act, it must be shown that the student meets any of the following criteria:

  • Physical or mental impairment that substantially limits one or more major life activity;
  • Has a record of such an impairment; or
  • Is regarded as having such an impairment.

In order for a student to qualify under IDEA it must be demonstrated that the student meets the criteria applicable to one or more specific disability category and they need special education and related services because of their disability.

A student who qualifies for protection under IDEA is automatically protected under Section 504. A student who qualifies under Section 504 does not necessarily qualify for services under IDEA.

Office of Civil Rights: Guidance for Students with ADHD

On July 26, 2016, the US Department of Education’s Office of Civil Rights (OCR) published a Notice of Rights: Students with ADHD and a “Dear Colleague” letter to provide clarification and guidance to schools receiving federal funds regarding students with ADHD. Both documents can be found using the following links:

http://www2.ed.gov/about/offices/list/ocr/docs/dcl-know-rights-201607-504.pdf

http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201607-504-adhd.pdf.

The guidance letter was written because between 2011 and 2015 OCR received more than 16,000 complaints alleging discrimination. Approximately 2,000, or one in nine, allege discrimination of students with ADHD.

OCR’s letter clarifies the school’s obligation to identify and evaluate students with ADHD. A school may not use the student’s IQ as the sole basis for determining eligibility. The student and their teacher(s) benefit when appropriate accommodations, services are put in place.

Whether a child qualifies for an IEP or 504 Plan it is necessary to establish clear accommodations, tools, services, and, if applicable, goals for students with ADHD. Parents, teachers, and school administration should all be able to read the document and understand the expectations contained therein. The school shall use an evidence-based system of interventions. Each student may be different. Therefore their individual educational needs should be considered.

Contact Our Office

If you have any questions regarding this or any other special education issue, feel free to contact our office via email 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/)

 

SECTION 504 OF THE REHABILITATION ACT OF 1973

While preparing for my blog on ADD/ADHD I realized I hadn’t covered Section 504 of the Rehabilitation Act. Students with ADD/ADHD may receive services under Section 504 so this general guide should be helpful for my next blog.

Section 504: General Information

The Office for Civil Rights (OCR) is a division of the U.S. Department of Education. It oversees enforcement of Section 504 of the Rehabilitation Act as well as other anti-discrimination laws. They do not handle claims relating to enforcement of IDEA. That is the job of Office of Special Education Rehabilitative Services (OSERS). Students who qualify for special education under IDEA automatically fall under the protections of Section 504. Students who qualify for services or accommodations under Section 504 do not automatically qualify for protections of IDEA. Section 504 protects a much broader student population.

Section 504 states that “no qualified individual with a disability in the United States shall be excluded from, denied the benefits of, or be subjected to discrimination under” any program or activity that either receives Federal financial assistance or is conducted by any Executive agency or the United States Postal Service. [29 U.S.C. §794(a), 34 C.F.R. §104.4(a)]. To be protected under Section 504, a student must be determined to:
(1) have a physical or mental impairment that substantially limits one or more major life activities; or

(2) have a record of such an impairment; or

(3) be regarded as having such an impairment.  [34 C.F.R. §104.3(j)(1)].

A few examples of major life activities include: walking, seeing, speaking, learning, breathing, eating, reading, caring for one’s self, working, etc.

Students who are protected under Section 504 shall be afforded a “free appropriate public education” (FAPE) regardless of the nature or severity of the disability. Under Section 504, FAPE consists of the provision of regular or special education and related aids and services designed to meet the student’s individual educational needs as adequately as the needs of nondisabled students are met.

Section 504 requires recipients to provide to students with disabilities appropriate educational services, accommodations, and modifications designed to meet the individual needs of such students. One of the major differences between a 504 Plan and IEP is the 504 Plan does not contain annual goals.

Section 504: Process

  • Referral to the 504 Coordinator
  • Written Consent for Evaluation by parent
  • Evaluation Completed (Not required to include formalized testing, unless the team determines it is necessary.) Evaluation should:
    1. Be based on information from a variety of sources (teachers, other school staff, parent/guardian, physician, nurse, other professionals, or persons in the community). This may include interviews, reports, and observations.
    2. Document and consider all pertinent information (records, assessment data, medical reports).
    3. Conducted by a team or group of persons including those who are knowledgeable about the child, the suspected condition, evaluative procedures, the meaning of evaluative data, and accommodation/ placement options.
    4. Utilize assessment materials, tests, and/or evaluation procedures, which are tailored to assess specific areas of educational need.
  • Team Meeting
  • Idenficiation/Determination
  • Draft a 504 Accommodation Plan/Services
  • Implementation
  • Review/Re-evaluation

(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/)

 

FOCUS ON THE IEP: MEASURABLE GOALS

Once the IEP team identifies present levels of academic achievement and functional performance for a student eligible for special education services they can begin to formulate measurable goals for the student. According to 20 U.S.C. Section 1414(II) and (III) an IEP must include:

 (II) a statement of measurable annual goals, including academic and functional goals, designed to—

          (aa) meet the child’s needs that result from the child’s disability to enable the child to be involved in and make progress in the general education curriculum; and

          (bb) meet each of the child’s other educational needs that result from the child’s disability;

(III) a description of how the child’s progress toward meeting the annual goals described in subclause (II) will be measured and when periodic reports on the progress the child is making toward meeting the annual goals (such as through the use of quarterly or other periodic reports, concurrent with the issuance of report cards) will be provided;

 

The present levels of academic achievement and functional performance provide the basis for written annual goals. All goals must be meaningful, measurable, able to be monitored, and useful in making decisions. In preparing goals ask yourself:

  • What do you want the student to know or do in 12 months as a result of this IEP?
  • Is the goal clear to all members of the IEP team? Will others be able to understand the expectation of the goal?
  • Is this information measurable?
  • How will it be measured?
  • What are the short term benchmarks that the student should meet?

Under IDEA students are entitled to a Free and Appropriate Public Education (“FAPE”). FAPE is “an opportunity to achieve her full potential commensurate with the opportunity provided to other children.” Bd. of Educ. v. Rowley  (U.S. 1982) 458 U.S. 176, 188-189 An IEP which contains goals that are not specific and measurable and do not include academic and functional goals are open to a challenge that it denies the child a FAPE. A student receives FAPE if the education (1) addresses the student’s unique needs, (2) provides adequate support services to allow the student to take advantage of the educational opportunities, and (3) is in accord with the individualized education program. See Rowley.

(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/)

 

FOCUS ON THE IEP: Present Levels of Academic Performance

Once eligibility is determined, the IEP team has the task of preparing an IEP for the student with a disability. The components of the IEP are: present levels of academic achievement and functional performance, measurable annual goals, progress towards meeting annual goals, appropriate accommodations, and, when appropriate, explanation of the extent the child will not participate with non-disabled children in the regular class and transition requirements. This post will focus on levels of academic achievement and functional performance.

According to 20 U.S.C. Section 1414(d)(1)(A) and Cal. Ed. Code Section 56345(a)(1), present levels of academic achievement and functional performance includes:

  • how the child’s disability affects the child’s involvement and progress in the general education curriculum;
  • for preschool children, as appropriate, how the disability affects the child’s participation in appropriate activities; and
  • for children with disabilities who take alternate assessments aligned to alternate achievement standards, a description of benchmarks or short-term objectives.

The present levels of academic achievement and functional performance link all the components of the IEP by creating a baseline for designing educational programming and measuring a student’s future progress toward annual goals. According to commentary in the Federal Register, as Page 46662, “academic achievement” generally refers to a child’s performance in academic areas (e.g. reading or language arts, math, science, and history). (71 Fed. Reg. at 46662)

Functional performance generally refers to skills or activities that may not be considered academic or related to a child’s academic achievement. These are the skills which are “routine activities of everyday living”. (71 Fed. Reg at 46662) Functional performance skills are not defined. Some examples, without limiting the scope, are social, mobility, work, and behavioral skills. The Federal Register left this term broad for teams to determine if the fit the scope. The IEP team should look at a student’s strengths and needs which impair the student’s ability to access their education.

 

(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/)