What Parents Need to Know About Special Education Law

1. What Parents Need to Know About Special Education Law Presented by: Jenny Lowman, Esq. Education Law Center-PA May 19, 2011

2. A History of Exclusion • North Carolina: Up until 1969, North Carolina had a law that made it a crime for parents to “persist in forcing … the attendance” of a child with disabilities whom school authorities had determined could not “profit from instruction.” • Pennsylvania: Up until 1972, Pennsylvania had a law which relieved schools of the responsibility to enroll “uneducable” or “untrainable” children and another law which allowed school boards to exclude children who had not attained a mental age of five years. www.elc-pa.org

3. The Law • Individuals with Disabilities Education Act (IDEA) • Section 504 of the Rehabilitation Act of 1973 (Section 504) • Americans with Disabilities Act (ADA) • State-specific statutes/regulations (e.g., Chapter 14 & Chapter 15 in PA) www.elc-pa.org

4. A Parent’s Bill of Rights under the IDEAYou have the right …. • To have your child receive a free appropriate public education (FAPE) in the least restrictive environment (LRE). • To be a member of the team that develops your child’s education program. • To understand every document you sign . • To pursue other options if you disagree with your school. • To know and understand your rights in the language you understand best. www.elc-pa.org

5. A Parent’s Bill of Rights under the IDEAYou have the right …. • To request and consent to an initial evaluation, re-eval., and independent evaluation or to refuse to consent. • To request, attend, and participate in IEP Team meetings. • To receive written notice (Notice of Recommended Educational Placement/Prior Written Notice or NOREP/PWN) when a school decides your child is eligible for special education, and at any time before your school district changes your child’s program or refuses to change it. • To disagree with and to dispute decisions. • To fully participate in due process and to appeal. • To obtain copies of all of your child’s education records. • To remove your child from special education. www.elc-pa.org

6. IDEA: A Funding Law • The IDEA provides federal funding to states and local educational agencies (LEA) that agree to provide a free appropriate public education (FAPE) to all children residing in the State or LEA between the ages of 3 and 21 (Part B of the IDEA). Applies to public charter schools as well as traditional public schools. • Part C of the IDEA provides federal funding for states to provide early intervention services to children ages birth to 3. www.elc-pa.org

7. Overview of the IDEA • Requires timely evaluation of a student with parent’s consent. • If child is eligible for special ed., he or she must receive a Free Appropriate Public Education (FAPE). • Provided through development and implementation of Individualized Education Program (IEP) • Program must be provided in the Least Restrictive Environment (LRE). • Program must be developed in conformity with procedural safeguards. • Notice to parents. • Dispute resolution mechanisms made available. www.elc-pa.org

8. Free Appropriate Public Education (FAPE) under IDEA • Special education and related services that: • Provided free of charge under public supervision • Meet State standards • Includes an appropriate education provided in conformance with child’s Individualized Education Program (IEP) that was developed in accordance with procedural requirements of IDEA. • IEP must be reasonably calculated to yield meaningful educational benefit and student progress in light of child’s individual potential. • No bright-line rule – determining what quantum of benefit is necessary requires a “student-by-student analysis” that “carefully considers the student’s individual abilities.” www.elc-pa.org

9. Overview of Section 504 • Section 504 is a federal law that prohibits discrimination on the basis of disability by programs that receive federal funding. • Section 504 also requires provision of a FAPE, defined as: • Provision of regularorspecial education and related services. • Section 504 not limited to reasonable accommodations in regular education classrooms. • Designed to meet the child’s individual needs as adequately as needs of non-disabled students are met (equality of opportunity). • Provided in conformity with “procedural safeguards.” • If child is provided with IEP under IDEA, then 504 requirement is met. www.elc-pa.org

10. What Specific Steps Must Schools Take under Section 504? In order to be in compliance, schools must: • Refer students thought to be eligible under 504: “Child Find” Duty • Evaluate students who are likely eligible under 504 • Develop a written plan to provide a free appropriate public education (FAPE) for students eligible under 504 • Provide due process for parents and children served under 504 www.elc-pa.org

11. Section 504 Plan • A/K/A Section 504 Accommodation Plan, Service Agreement, Chapter 15 Service Agreement, Protected Handicapped Student Agreement • Educational provisions • Regular or special education • Related aids and services (OT, PT, Speech/Language Therapy, Counseling, Assistive Technology) • Accommodations and Modifications www.elc-pa.org

12. Possible Aids, Services, & Accommodations for a Section 504 Plan • Permission to go to school nurse • Medication administration at school • Use of elevator at school • Adaptive physical education • Two sets of books – one at home and one at school • Communication book • Health care plan • Required completion of fewer assignments • Use of technology to provide instruction while child is at home or in hospital • Instruction in the home for greater amount of time than generally provided • See List of Examples from Sevier County School System • http://www.slc.sevier.org/504ana.htm www.elc-pa.org

13. Steps to Getting Special Education Services Step 1: Request an Initial Evaluation • Parent can request at any time & must be in writing. • “Parent” must sign a Permission to Evaluate-Consent Form (PTE) to provide “consent” • Form must be made “readily available” when parent has made written request and within 10 calendar days when request is oral. • School districts & charter schools have 60 calendar days (minus the summer months) to complete the evaluation and issue an Evaluation Report (ER) once parent signs PTE Form. • LEA has CHILD FIND duty as well: Locate, identify, evaluate – So request may sometimes come from school. • MAKE SURE YOU KEEP A COPY OF REQUEST & SIGNED PTE FORM!! www.elc-pa.org

14. Steps to Getting Special Education Services Step 2: Evaluation • Purpose of Evaluation is Two-Fold: • Determine student’s eligibilityfor services (two-part test); and • Providerecommendationsfor appropriate program for eligible child. www.elc-pa.org

15. Mental retardation Hearing impairment Deafness Speech or language impairment Visual impairment Emotional disturbance (ED) Multiple Disabilities Orthopedic impairment Autism Traumatic brain injury Specific learning disability (SLD) Other health impairment (OHI) Special Education EligibilityPart 1:Child must have a “disability” www.elc-pa.org

16. Special Education Eligibility Part 2: As a result of the disability, the child must require special education (specially designed instruction) & related services (meaning that the content, methodology or delivery of instruction needs to be adapted to address the child’s unique needs). • If the child does not qualify but has a physical or mental impairment which substantially limits one or more major life activities, then the child is protected by Section 504 /Chapter 15. • Major life activities include breathing, walking, seeing, hearing, learning, thinking, speaking, eating, and reading. www.elc-pa.org

17. Steps to Getting Special Education Services • Step 2: Evaluation (cont.) • Types of assessment tools often include: • Interviews • Observation of child • IQ Test (such as WISC-IV) • Achievement Test (Such as Woodcock Johnson) • Curriculum Based-Assessment (classroom tests and quizzes) • Where can I get more information? • Tests and Measurements for the Parent, Teacher, Advocate & Attorney by Peter W. D. Wright, Esq. and Pamela Darr Wright, M.A., M.S.W. at http://www.wrightslaw.com/advoc/articles/tests_measurements.html www.elc-pa.org

18. Steps to Getting Special Education Services • Step 2: Evaluation (cont.) • Written Evaluation Report (ER) is the end result & must be provided after evaluation is complete. • Parent must receive ER at least 10 school days before IEP Team meets (unless parent waives in writing). • See sample Annotated Evaluation Report (ER) at: http://www.pattan.net/files/Forms/English/ER-ANN070108.pdf • Parent should read ER carefully and ASK QUESTIONS & ASK SCHOOL TO EXPLAIN! www.elc-pa.org

19. A Word About Reevaluations • A reevaluation must occur: • At least once every 3 years (2 years for child with MR) but can be waived; or • If parent requests a reevaluation; or • If school believes “conditions warrant” BUT school need not agree to more than one reevaluation per year. • Timeline is 60 calendar days minus the summer months. www.elc-pa.org

20. Steps to Getting Special Education Services • Step 2: Evaluation (cont.) • Independent Educational Evaluation(IEE) • Like getting a “second opinion” – done by someone who does not work for the LEA • Parent can request that LEA pay for IEE if parent disagrees with LEA’s evaluation. • Inaccurate • Incomplete • Parent can also pay for an IEE – results must be “considered” by LEA. www.elc-pa.org

21. Steps to Getting Special Education Services • STEP 3: Develop the IEPIf student is found eligible: • IEP Team must meet within 30 calendar days after ER is completed. • Team must include the “parent,” at least one regular education teacher of the child, one special education teacher of the child, and an administrator, and the child (when appropriate) . • Parent can bring private therapist, caseworker, an advocate, probation officer, or anyone else who has knowledge or special expertise about the child. • School must document efforts to include the parent – including records of phone calls, copies of letters, records of visits to parent’s home or place of employment. • If parent can’t attend, school must use other methods (phone calls) to ensure parent participation. • IEP Team must review IEP at least once annually. • IEP must be in effect at beginning of each school year. • Parent or school may request an IEP Team meeting at any time! www.elc-pa.org

22. IEP is the “Contract” • IEP = written statement for a child with a disability outlining the child’s special education program and related services tailored to meet the child’s unique needs • IEP = “contract” parent and school district • If a service is listed on the IEP, the child MUST receive it. No excuses. • Child with an IEP is entitled to a Free Appropriate Public Education (FAPE). www.elc-pa.org

23. Where to Get More Information about IEPs • Sample annotated IEP: http://www.pattan.net/files/Forms/English/IEP-ANN061010.pdf (long but very useful) • PaTTAN trainings: www.pattan.net • Writing Measurable Annual Goals: http://www.pattan.net/files/ProgMon/AnnGoalsShTerm.pdf • From Gobbledygook to Clearly Written Annual IEP Goals and Better IEPs: How to Develop Legally Correct and Educationally Useful Programs by Barbara D. Bateman (available to buy on www.amazon.com) www.elc-pa.org

24. Steps to Getting Special Education Services • Step 4: Placement Decision • When is it made? • Placement should be decided after IEP is written • Placement must be determined at least annually & must be based on child’s IEP • Who decides? The IEP Team, including the parent www.elc-pa.org

25. Steps to Getting Special Education Services • Step 4: Placement Decision(cont.) • Key: Least Restrictive Environment (LRE) • To the maximum extent appropriate, children with disabilities should be educated with their non-disabled peers and removal should occur only when the nature or severity of the child’s disability is such that education in regular classes with the use of supplementary aids and services (SAS) cannot be achieved satisfactorily. • IDEA requires a continuum of placements. www.elc-pa.org

26. Steps to Getting Special Education Services • Step 4: Placement Decision(cont.) • Special education is a service – not a place. • Regulations list types of supports, not types of classrooms. • Emotional support: Services for students with a disability who require services primarily in the areas of social or emotional skills development or functional behavior. • Learning support: Services for students with a disability who require services primarily in the areas of reading, writing, mathematics, or speaking or listening skills related to academic performance. • Regulations provide no limit on number of children in particular type of classroom; only provide caseloads for personnel providing full-time, itinerant, and supplemental support. • Student may receive more than one type of support. www.elc-pa.org

27. Steps to Getting Special Education Services • Step 4: Placement Decision(cont.) • Parents must be given “prior written notice” of proposed IEP and placement before services begin • Called a NOREP/PWN or Notice of Recommended Educational Placement/Prior Written Notice. • Parents can agree or disagree with the proposed IEP and/or placement. • Pendency: If parent disagrees & requests a hearing or mediation, the child remains in the last-agreed-upon placement pending resolution of the dispute (the child “stays put”) – Parent must TAKE SPECIFIC ACTION to invoke pendency! Must file a request for mediation or a hearing. www.elc-pa.org

28. Prior Written Notice(a/k/a The NOREP) • Parents have the right to receive written notice (called the Notice of Recommended Educational Placement/Prior Written Notice) (NOREP/PWN) in their native language before a school proposes to initiate or change (or refuses to initiate or change): [NOT an all-inclusive list] • Child’s Evaluation or Identification • Educational Placement (where child will get services) • Provision of FAPE (what services the child will get) • Change of Placement for disciplinary reasons • Annotated NOREP: http://www.pattan.net/files/Forms/English/NOREP-ANN070108.pdf www.elc-pa.org

29. Steps to Getting Special Education Services • Step 4: Placement Decision(cont.) • If parent agrees with proposed IEP & placement, IEP must be implemented within 10 school days. www.elc-pa.org

30. What if You Disagree with the School’s Proposed Action(s)? • Ways to resolve disagreements informally • Ways to resolve disagreements formally • See ELC’s fact sheet entitled How to Resolve Special EducationDisputes at www.elc-pa.org www.elc-pa.org

31. How to Resolve Disagreements Informally • Talk with child’s teacher(s) or other relevant staff • Don’t assume teacher(s) have copy of child’s IEP. • Request an IEP Team Meeting (may want to ask that LEA’s Director of Special Education attend). • Ask the LEA to agree to an IEP Facilitation (Office for Dispute Resolution provides facilitator for free). • http://odr-pa.org/early-dispute-resolution/iep-facilitation/ www.elc-pa.org

32. How to Resolve Disagreements Formally • Mediation • Due Process Hearing • Filing a complaint with PA Bureau of Special Education or U.S. DOE Office for Civil Rights • See Office for Dispute Resolution’s website for more information about these options at: http://odr-pa.org/ www.elc-pa.org

33. Preparing for an IEP Team Meeting • Review all current evaluations and assessments and/or ask for additional assessments • Plan to bring someone with you to the meeting (spouse, friend, advocate, etc.) – try not to go alone! • Make a short list of the points you want to raise at the IEP Team meeting. www.elc-pa.org

34. At the IEP Team Meeting • Don’t be afraid to ask questions & make sure you understand any “jargon.” • Discuss your child’s present levels of performance. • Develop measurable annual goals. • Describe the placement for your child (remember LRE) and identify specifically the supports and related services needed. • Sign the NOREP/PWN only if you are satisfied. www.elc-pa.org

35. After the IEP Team Meeting • Meet your child’s teachers(s) at the beginning of the school year. Participate in school activities and/or be a classroom volunteer, if possible. • Don’t assume your child’s new teacher has a copy of your child’s IEP or 504 Plan yet! You may need to provide a copy. • Support your child in developing friendships with her classmates. • Monitor your child’s progress. www.elc-pa.org

36. Red Flags • If you are told by a school: • Your child has to wait for service listed on his or her IEP to be provided. • It is the district’s policy to do it this way. We don’t provide another type of reading curriculum/behavior support, etc. • We only provide every child one session of OT/PT/speech therapy per week. • You can only have one IEP team meeting per year. • We just don’t have the money for that service. • Your child needs a type of program or placement that isn’t offered by the district, so he or she will have to take what is available. • Your child has a severe disability, so he or she must be placed in a special “center” for children with disabilities, or in a private school. • Your must accept the IEP that is offered to you in its entirety. www.elc-pa.org

37. Key Points to Remember • Special education law sets out a detailed process for developing a program for a child and that process has timelinesthat must be followed. • You are the member of the team that develops your child’s IEP. You have a right to attend meetings about that program. • The child’s IEP is a contract with the school. There should be no gaps in services. • You don’t just have to accept what is offered if you think your child’s program is inappropriate. • There are steps you can take if you think your child’s rights are being violated. • Even if your child is ineligible for special education services, your child might be entitled to protection under Section 504/ADA. • Ask questions and seek help if you don’t understand something. There are places to go for help. www.elc-pa.org

38. Where to Get Help • Statewide Organizations • Disability Rights Network of PA (DRN) - 800-692-7443 - www.drnpa.org • The Arc of Pennsylvania (Advocacy & Resources for Citizens with Cognitive, Intellectual, and Developmental Disabilities) – 800-692-7258 – www.thearcpa.org • PA’s Bureau of Special Education ConsultLine – 800-879-2301 • Regional Organizations • The Arc of Montgomery, Berks, and Bucks Counties - 610-265-4700www.marcpa.org • Parent Education Network (PEN) (Eastern PA) - 800-522-5827 – www.parentednet.org • The Public Interest Law Center of Philadelphia – 215-627-7100 – www.pilcop.org • Useful Websites • Wrightslaw - www.wrightslaw.com • Education Law Center - www.elc-pa.org • National Center for Learning Disabilities - http://ncld.org/ www.elc-pa.org

39. Advocacy Opportunities • PA School Talk • http://paschooltalk.org • PA Special Education Funding Reform: • http://reformspecialedfunding.org/ www.elc-pa.org