Navigating Through Treacherous Waters

1. Navigating Through Treacherous Waters Paige L. Tobin, Esq. Murphy, Lamere and Murphy, P.C. October 2009 Murphy, Lamere and Murphy, PC

2. Legal Developments 504 IDEA Process Unilateral Placements Murphy, Lamere and Murphy, PC

3. Eligibility Under the IDEA • Disability which results in lack of progress in general education program and requires specialized instruction • CATEGORIES; Autism, Developmental Delay, Intellectual Impairment Sensory Impairment, Neurological Impairment, Communication Impairment, Emotional Impairment, Physical Impairment, Health Impairment, Specific Learning Disability

4. 504 Eligibility Individual With a Disability: physical or mental impairment which substantially limits a major life activity, has a record of such impairment, is regarded as having an impairment, needs accommodations to access programs run by publicly funded entities. Murphy, Lamere and Murphy, PC

5. Major Life Activities Caring for oneself Performing manual tasks Seeing Hearing Eating Sleeping Walking Standing Lifting Bending Speaking Breathing Learning Reading** Concentrating** Thinking** Communicating** Working Operation of major bodily function (**new under ADAAA) Murphy, Lamere and Murphy, PC

6. New Definition of Substantially Limits The definition of disability must be construed in favor of broad coverage under the Act. Substantially limits means materially restricts (no longer substantially restricts) material = relevant and consequential Murphy, Lamere and Murphy, PC

7. What this means….. An impairment that substantially limits one major life activity does not need to limit other major life activities in order to be considered a disability An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active Effect of the disability need not meet the stringent definition of “substantial” limitation as construed by Courts prior to the ADAA. Murphy, Lamere and Murphy, PC

8. What this means………. High academic performer can still have an impairment that substantially limits concentration/reading etc. Examples - dyslexic student with overall good performance but who struggles to read; ADHD student who can’t concentrate when medicine wears off in afternoon Murphy, Lamere and Murphy, PC

9. Mitigating Measures Under the ADAAA - Can no longer consider the ameliorative effects of mitigating measures in determining whether an impairment substantially limits a major life activity Murphy, Lamere and Murphy, PC

10. Cannot consider the following: Medication, medical supplies, equipment or appliances Low-vision devices, hearing devices, mobility devices Prosthetics Assistive Technology Reasonable accommodations or auxiliary aids Learned behavioral or adaptive neurological modifications EXCEPTIONS: ordinary eyeglasses, contacts Murphy, Lamere and Murphy, PC

11. Examples of Mitigating Measures: Medication to ameliorate effects of ADHD FM system to ameliorate effect of CAP Hearing aids or cochlear implants Learned behavior – acquired strategies – students who compensate for LD but perform well Murphy, Lamere and Murphy, PC

12. When mitigating measures means no accommodations necessary? Student is ELIGIBLE for a 504 Plan, but Plan is not necessary because student requires no accommodations at this time due to his use of mitigating measures -write no plan but establish timeline to review need for accommodations, OR -write contingency 504 plan

13. How do schools assess substantial limitation? Can no longer compare to ‘most students?’ Can no longer base decision only on passing grades, MCAS scores, whether student can perform grade level work? Murphy, Lamere and Murphy, PC

14. Use of RTI Impact of broader standard under ADAAA -more students eligible for 504 plans? How to address? -use of RTI and curriculum assessments Murphy, Lamere and Murphy, PC

15. Use of District Accommodation Plan • District-wide accommodation plan to address diverse learning styles -market your plan to parents -teach your staff

16. Tips for school staff Look at student’s academic and behavioral records before use of mitigating measure Consider information about student from outside of school setting Consider why mitigating measures were necessary in the first place Murphy, Lamere and Murphy, PC

17. More Tips Consider whole child in determining eligibility Consider multiple sources of information Consider outside evaluations, but don’t rely solely upon them Conduct own evaluations Remember: No entitlement to IEE at public expense for 504 eligibility determination

18. Questions to Consider: What is the nature and severity of the impairment? What is the expected duration of the impairment? How has the student responded to interventions? Does the student consistently need extended time to complete assignments? Does the student consistently need significant changes made to the curriculum? Does the student demonstrate consistent behavior difficulties? Is there a pattern of absences Murphy, Lamere and Murphy, PC

19. Medical Diagnosis = Eligibility? Do not rely solely upon doctor’s diagnosis to determine eligibility Remember that district has an obligation to consider multiple factors, including educational functioning and needs

20. 504 Team Process OCR guidance – use IDEA process as your template Evaluate! Don’t rely solely on outside information 504 is a TEAM process – those with special knowledge of the child Document the team meetings, decisions, and reasons for decisions Document next steps and timelines Murphy, Lamere and Murphy, PC

21. Content of 504 Plans The nature of the student’s disability and the major life activity it limits The basis for determining the disability The educational impact of the disability Necessary accommodations (including related aids and services) Placement

22. Accommodations Define key terms and obligations in accommodation plans Define who is responsible for implementing identified accommodations Be careful of unnecessary or overly burdensome accommodations Use ‘undue hardship’ test to evaluate reasonableness of accommodation

23. Specific Accommodation Concerns Behavior Plans Communication with Parents Students with severe allergies Extracurricular activities - athletics Field Trips Transportation

24. Implementing the Plan 1. Provide plan to all who need it -teachers (classroom and specialists) -substitute teachers -bus drivers/cafeteria workers Document receipt of plan Review plan at minimum annually Document if student chooses not to accept accommodations – address as necessary

25. Discipline and 504 Develop, implement and revise BIP as necessary Consider FBA if appropriate Perform Manifestation Determination for change in placement over 10 days or pattern No need to provide services during periods of exclusion

26. Enforcement BSEA OCR The best defense to a complaint regarding violation of 504 is to show that the district has consistently and appropriately followed process

27. New 504 Cases Bedford Public Schools, BSEA #09-5853 (Figueroa, September 14, 2009) Hampden-Wilbraham Regional School District, BSEA#07-5701 (Putney-Yaceshyn, May 15, 2008) Boston Public Schools, BSEA#09-1007 (March 23, 2009)

28. ADHD and Eligibility Consider eligibility under IDEA and 504 Does student require specialized instruction? Impact of medication

29. Students with Autism/Asperger’sDisorders • Can an ASD student be ineligible under IDEA but eligible under 504? -impact of the Autism Statute 71B §3? -services versus accommodations

30. IDEA Process Top Ten IEP Mistakes Eliminating needed services/supports on IEP because Parents do not want them Adding unnecessary services/supports because Parents insist on them Goals and benchmarks that are the same year-to-year Goals that are not truly measurable Careless accommodations list Murphy, Lamere and Murphy, PC

31. Top ten, continued • Failing to include student’s functioning in out-of-school settings (for ASD, SED students) • Failing to document coordination/consultation between service providers • Failing to show consideration of outside evals • Failing to consider transition • Failing to attach a well-drafted N1

32. Unilateral Placements: The Warning Signs • Student who is or has been socially isolated • Student who has markedly increased absences • Parents who are clearly and increasingly unhappy and tell you and everyone else • Student who tells the teacher that he is going to a new school or checks out Pay particular attention in the early Spring before a transition

33. Unilateral Placements Steps to take to avoid unilateral placements: • Listen and respond to Parents’ concerns re: student in community and home settings • Consider recommendations from outside evaluators and have district staff communicate with evaluator • Use your best salesperson to sell your program – teacher’s credentials, curriculum, visits to program • Ensure coordination between service providers • Consider use of periodic standardized tests and curriculum assessments to track progress, document progress, communicate with parents • Produce a solid IEP before the student leaves

34. Unilateral Placements What to do after notice of unilateral placement? • Review and revise IEP as necessary and present to Parents – the Cadillac version and don’t wait for the annual review date • Collect work samples, tests, emails • Continue IEP process, i.e. meetings, evaluations on schedule