TRANSITION SERVICES- NOT JUST FOR STUDENTS WHO TURN 16

The IDEA specifies that a student is entitled to transition services as he or she prepares to exit the public school system. (20 USC Section 1414(d)(1)(A)(i)(VII)). Many courts have interpreted the IDEA narrowly by concluding the purpose of the statute is to prepare students to enter the workforce. Those courts have excluded transition services at any other time. In 2017, the 9th Circuit Court of Appeals revisited this issue and reversed those decisions.

In reversing prior decisions, the 9th Circuit Court looked at 20 USC 1414(d)(1)(A)(i)(IV) which states that the IEP must include supplementary aids and services which will allow children to… be educated and participate with other children with disabilities and nondisabled children. Services that ease the transition between institutions or programs- whether public or private- serve this purpose. R.E.B. v. State of Hawaii Dept. of Education (9th Cir. 2017) 870 F.3d 1025.

If a student will be transitioning between new academic environments (preschool to school, elementary to middle school, etc.) and you believe they require a transition plan, contact Kristin Springer (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/)

 

PROCEDURAL SAFEGUARDS: DOCUMENTING FREQUENCY, LOCATION, AND DURATION

All special education and related services, supplementary aids and services, program modifications, and supports for school personnel that are included on a student’s IEPs are required to be documented so that all involved with developing and implementing the IEP have a clear understanding of what will be provided to the student. The IEP is required to specify the anticipated frequency, location, and duration of services. (20 USC Section 1414(d)(1)(A)(i)(VII)).

Everyone on the IEP team, including parents, should know the amounts of services being offered. J.L. v. Mercer Island School District (9th Cir. 2010) 592 F.3d 938. Recently, in contrast to prior rulings, the 9th circuit held that IEPs create a contractual relationship between the school and a student’s representative (parent, guardian, etc.). M.C. v. Antelope Valley Union High School District (9th Cir. 2107) 852 F.3d 840. The IEP is a formal, written offer to provide certain services to a student. When the IEP is written clearly, many factual disputes regarding what services, placement, or additional educational assistance was offered can be avoided. Union School District v. Smith (9th Cir. 1994) 15 F.3d 1519.

An IEP which doesn’t detail the anticipated frequency, location, and duration of the proposed specialized academic instruction may seriously infringe on a parent’s right to participate in the IEP process, especially where the offer improperly delegates the determination of frequency and duration of specialized instruction to teachers outside the IEP. R.E.B. v. State of Hawaii Dept. of Education (9th Cir. 2017) 870 F.3d 1025. The IEP is the blueprint for enforcement and requires a formal, specific offer. R.E.B. citing Union School Dist.

If you are unable to understand what services your child should receive as a part of their IEP, contact Kristin Springer at (925) 551-1041 to discuss having your child’s IEP reviewed.

(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/)

 

 

WHAT DOES IT MEAN THAT A CHILD WITH A DISABILITY MUST ALSO BE IN NEED OF SPECIAL EDUCATION SERVICES?

In order to receive special education services under federal and state law, a student must qualify as a child with a disability. A “child with a disability” is statutorily defined as a child with intellectual disabilities, hearing impairments, speech or language impairments, visual impairments, serious emotional disturbance, orthopedic impairments, autism traumatic brain injury,  other health impairment, or specific learning disability and who, by reason thereof, needs special education and related services. 20 USC Section 1401(c)(A). A student with a qualifying disability is not automatically entitled to an IEP. There must be a demonstration of a need for special education and related services.

In 2017, the 9th Circuit Court of Appeals addressed the issue of whether the student had demonstrated the need for special education services. (L.J. v. Pittsburg Unified School District (9th Cir 2017) 850 F.3d 996. The student met three eligibility criteria and was receiving services from the school. The school provided the services as “general education services.” These services included mental health counseling, a one-to-one aide, and other classroom based accommodations. The court found these services to be special education services. It was determined L.J. met both prongs of the eligibility criteria.

The 9th circuit court discussed the distinction between general and special education services. General education is what is provided to non-disabled children in the classroom. Students in the general education setting do not receive specialized services. In contrast, special education is “specially designed instruction” to meet the unique needs of a child with a disability. (34 C.F.R. Section 300.39(a)(1)).

“Specially designed instruction” means adapting, as appropriate to the needs of an eligible child the content, methodology, or delivery of instruction to:

  • address the unique needs of the child that result from the child’s disability; and
  • ensure access of the child to the general curriculum

( 34 C.F.R. § 300.39(b)(3)).

If your child has a disability (or suspected disability) that interferes with their school performance, they may be eligible for an IEP. You can request the school assess your child by submitting a written request explaining your child’s disability (or suspected disability) and how you believe it impacts their school performance. If the school determines your child has a disability, they will also look at whether your child requires specially designed instruction.

If you have further questions regarding this topic, feel free 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/)

 

U.S. Department of Education Supports Special Education Students by Publishing a Q&A Supporting the Endrew Case

On March 22, 2017, The Supreme Court of the United States (“SCOTUS”)issued a decision in the case Endrew F. v. Douglas County School District (2017) 580 U.S. __ . Endrew was a case in which SCOTUS held that, under the IDEA, schools must provide students an education that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”*

On December 7, 2017, The U.S. Department of Education released a question-and-answer document to provide insight regarding Endrew. “The Supreme Court sent a strong and unanimous message: all children must be given an opportunity to make real progress in their learning environment—they cannot simply be passed along from year to year without meaningful improvement,” said U.S. Secretary of Education Betsy DeVos. “For too long, too many students offered IEPs were denied that chance. I firmly believe all children, especially those with disabilities, must be provided the support needed to empower them to grow and achieve ambitious goals.”

Here are a couple key excerpts from the Q&A:

18. Is there anything IEP Teams should do differently as a result of the Endrew F. decision?

The Court in Endrew F. held that to meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances and expressly rejected the merely more than de minimis, or trivial progress standard. Although the Court did not determine any one test for determining what appropriate progress would look like for every child, IEP Teams must implement policies, procedures, and practices relating to

(1) identifying present levels of academic achievement and functional performance;

(2) the setting of measurable annual goals, including academic and functional goals; and

(3) how a child’s progress toward meeting annual goals will be measured and reported, so that the Endrew F.standard is met for each individual child with a disability.

Separately, IEP Teams and other school personnel should be able to demonstrate that, consistent with the provisions in the child’s IEP, they are providing special education and related services and supplementary aids and services; making program modifications; providing supports for school personnel; and allowing for appropriate accommodations that are reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances and enable the child to have the chance to meet challenging objectives.
19. Is there anything SEAs should do differently as a result of the Endrew F. decision?

SEAs should review policies, procedures, and practices to provide support and appropriate guidance to school districts and IEP Teams to ensure that IEP goals are appropriately ambitious and that all children have the opportunity to meet challenging objectives. States can help ensure that every child with a disability has an IEP that enables the child to be involved in and make progress in the general education curriculum and is appropriately ambitious in light of the child’s circumstances. While many States and school districts are already meeting the standard established in Endrew F., this is an opportunity to work together to ensure that we are holding all children with disabilities to high standards and providing access to challenging academic content and achievement standards.

You can read the entire Q&A here:

https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/qa-endrewcase-12-07-2017.pdf

 

Education Week Q & A Session with Betsy DeVos (Special Education Excerpts)

This morning I was reading an excerpt from a Q & A session with U.S. Secretary of Education Betsy DeVos. Regardless of political affiliation, if you have a child with special needs then you will want to follow what Mrs. DeVos is doing with special education laws and funding.

Special Education

At some point during your tenure, Congress may want to reauthorize the Individuals with Disabilities Education Act. What are your priorities there?

I think Congress needs to seriously look at the commitment they made when passing the act to fund it. I think there has to be a review of the act and all of the mandates put on states. It doesn’t match up with the funding. I think that there’s opportunity to support parents whose kids are using an [individualized education program], or have an IEP to allow them more flexibility in making decisions around their child’s education, and I think that certainly is an area that should be reviewed regularly by Congress.

Do you mean the regulation, or the funding levels?

I think both, I think they all need to be reviewed regularly and considered for where they are and what the realities are.

Would you push for full funding of IDEA? That’s 40 percent of the excess cost of educating a child with disabilities.

I think it’s a fair question to ask Congress about what the funding levels should be. Right now it’s about 15 to 18 percent. And yet, the regulations continue to sort of get piled on here and there. They just continue to sort of make it more and more cumbersome and more and more burdensome for states and for local districts. There has to be, I think, a regular review of that and look at the balance of that, and see what’s really right. But most of all what’s really right for the students we’re trying to serve and for the families and what kind of empowerment do they have in that decision-making.

So you want might want to call for slimming down regulation, but also upping the funding for IDEA. Do I have that about right?

I’m not advocating one way or another right now. I’m just saying it’s clear that Congress has not funded it at the level they committed to when the law was passed. And I think that is something that should be reviewed on a regular basis.

 

You can read the article posted on Education Week’s blog here: http://blogs.edweek.org/edweek/campaign-k-12/2017/09/betsy_devos_transcript_special_education_ESSA_choice.html or http://blogs.edweek.org/edweek/speced/2017/09/devos_special_education_funding.html?cmp=eml-enl-eu-news3&M=58201578&U=2141175

 

 

 

9TH CIRCUIT CASE RULES GIVES STRONG ADVOCACY TOOLS TO FAMILIES

On September 13, 2017, the 9th Circuit Court of Appeals issued an opinion in the case R.E.B. v. State of Hawaii Dept. of Education that will provide strong advocacy tools to families. J.B. was a Kindergarten student transitioning to public kindergarten from an ABA-based private school. The court held that the Hawaii Department of Education violated the IDEA when it failed to:

  • include transition services from a private, ABA-based preschool to public school;
  • specify ABA as a teaching method;
  • specify the LRE for services during the school breaks as well as school year; and
  • provide more specificity of mainstreaming services.

Transition Services to Ease Transition between Institutions or Programs: The court extended transition services, as a “supplementary aid and services,” beyond students exiting the public school system. The court held that transitions services must be included in the IEP when they become necessary for a disabled child to be educated and participate in new academic environments.

IEP Must Specify LRE During the Regular and Extended School Year: The court looked at two things. First, does the IEP include an explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class. The IEP cannot leave the details of mainstreaming up to the general and special education teacher outside the IEP process. Second, does the IEP specify the anticipated frequency, location, and duration of the services and modifications. The language must allow the parent to use the IEP as a blueprint for enforcement. In order to avoid challenges, the school district must make a formal, specific offer.

Methodology May be Necessary in an IEP: The court rejected argument that the IEP did not need to address instructional methodology, stating “when a particular methodology plays a critical role in the student’s educational plan, it must be specified in the IEP rather than left up to the individual teachers’ discretion.” The court clarified that inclusion of a specific methodology does not preclude the school from using other methodologies. It acknowledged that writing it in would ensure the methodology would be used consistently.

Parents, advocates, and attorneys alike will be able to use this ruling to advocate during IEP meetings. I applaud the 9th circuit for clarifying these principles.

 

If you have any legal questions regarding if or how this case applies to your particular situation, feel free to contact Kristin 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/)

 

 

 

 

PRIVATE SCHOOL STUDENTS, INCLUDING HOMESCHOOL (FILED UNDER A PSA) STUDENTS- WHAT ARE THEIR RIGHTS?

In California, state law requires that all children age six through eighteen attend a public day school. Students enrolled in a private school that files the affidavit are exempt from compulsory education. Students who are homeschooled are either public school students using a public charter school or private school students who are homeschooled under a private school affidavit (“PSA”). Therefore, in California, you are either a public school student or private school student. A private school student’s rights to services under the IDEA are different than the rights of a public school student. However, they do have some rights designed to ensure equitable participation of parentally placed private school children with disabilities.

Child Find

The requirements of Child Find (20 USC Section 1412( a)(3)) are the same for private and public school. Jurisdiction for the student in the private school falls on the local educational agency (“LEA”) where the private school is located. So, if your child attends a private school in San Ramon, a parent who wishes to request an assessment would request an assessment from the San Ramon School District. If the student is homeschooled under a PSA, the address of the school would determine the agency responsible for Child Find.

The LEA, under Child Find, is required to identify, locate, and evaluate all children with disabilities who are in need of special education and related services. The LEA has 60 days of receipt of parental consent to conduct an initial evaluation.

Parental Consent

The LEA must obtain parental consent before they are able to conduct an evaluation or provide services to the student. If a parent withholds consent, the LEA may not seek consent through due process.

Consultation

The LEA is required to consult with a representative of the private school and parents of parentally placed private school students with disabilities during the design and development of special education and related services for the student. The LEA must give meaningful consideration to the of the views of the private school representative and parents.

Equitable Services

If your student qualifies for special education, you are entitled to equitable services. Equitable services is determined by the amount of funding provided to the LEA. Because funding is limited, your student might receive fewer free services than if he or she attended public school.

Services Plan

Each student who has been designated to receive special education and/or related services must have a services plan. The services plan describes the specific special education and/or related services that the LEA will provide to the student. The provision of equitable services may be made through employees of a public agency or through a third party contract.

The LEA must ensure that the process used to develop the services plan is consistent with the process used to develop and review an IEP for a public school student. Measurable goals shall be written for services offered under the services plan.

Complaint Procedures

A private school representative has the right to file a complaint to with the State Educational Agency (“SEA”) if the LEA did not engage in a timely or meaningful consultation.

Parents only have the right to file for due process for Child Find violations. Additional complaints may be made with the SEA.

Parents May Choose to Enroll in Public School

Parents of a privately-placed student with a disability may choose to enroll their student in their local public school. If an eligible student becomes a public school student they will have all the rights under the IDEA.

If you have further questions about this issue, 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/)