The ADA, IDEA, and Section 504 in Education:

The ADA, IDEA, and Section 504 in Education: Understanding the laws, advocacy strategies and current issues for our children with disabilities Presenter: Cheryl Theis, Education Advocate, DREDF

Unique alliance of people with disabilities and parents of children with disabilities. • National law and policy center dedicated to protecting and advancing disability civil and human rights. • Envisions a just world where all people, with and without disabilities, live full and independent lives free of discrimination. • Disability rights are civil rights. Children have rights. • Information is power.

Children & Family Advocacy Program: • Parent Training and Information (PTI) Center for Alameda, Contra Costa & Yolo. • Foster Youth Resources for Education (FYRE) for Alameda County. • Legal advocacy and representation in Class Action cases involving systemic abuses. • Educate legislators and policy makers on issues (such as IDEA, ADA) affecting the rights of people with disabilities.

Some reasons why we do what we do: • Prior to IDEA in 1975, only 1 in 5 children with disabilities were served by US schools. • In 2005, 56% of CA children enrolled in special education graduated with a diploma. • In 2008, 36% of CA 10th graders enrolled in special education passed the CA High School Exit Exam (now a diploma requirement). • 85% of services specified in Individualized Education Plans (IEPs) are actually provided. • Children with disabilities who have consistent, knowledgeable advocates are most likelyto receive appropriate services & supports!

Laws: That protect students with disabilities

NCLB • No Child Left Behind / 2002 • A federal Education Law. • For ALL students, with a focus on traditionally “under-served” students. • School accountability to increase school performance and outcomes. • Requirements for “highly-qualified” teachers and paraprofessionals. • Process to change school or get remediation if school fails to meet Adequate Yearly Progress (AYP)

FERPA • Family Educational Rights & Privacy Act • A federal Education Privacy Law. • For ALL students. • Right to inspect and review “any and all” records the district keeps. Timeline in CA: within 5 days • Right to request correction of records that are inaccurate or misleading. • Right to consent to disclosures of personally identifiable information contained in education records.

504 • Section 504 of the Rehabilitation Act / 1973 • A federal Anti-Discrimination Law. • Protects ALL people with a disability that impairs one or more major life activity (learning is one). • Prohibits discrimination in ANY program that receives federal dollars. • Provides accommodations to remove discriminatory barriers. • In education, a “504 Plan” removes barriers to learning and opportunities.

IDEA • Individuals with Disabilities Education Act / 1975 • A federal Education Law. • For students with at least one of 13 qualifying categories of disability. • Who ALSO need specialized support and instruction to benefit from education. • Provides a “special education” plan: “IEP” - specialized instruction- related supportive services • “IEP” must be individualized to meet a student’s unique needs.

The ADAThe Americans with Disabilities Act / 1990 • A civil rights law to prohibit discrimination solely on the basis of disability in employment, public services, and accomodations. • Protects: Any individual with a disability who: • (1) has a physical or mental impairment that substantially limits one or more life activities; or • (2) has a record of such impairment; or • (3) is regarded as having such an impairment. • Note: the person must be qualified for the program, service, or job.

The ADAThe Americans with Disabilities Act / 1990 (cont.) • ADA provided additional protection in combination with actions brought under Section 504. Reasonable accommodations are required for eligible students with a disability to perform essential functions of the job. • ADA protections apply to nonsectarian private schools, but not to organization or private schools, or entities controlled by religious organization; • Applies to any part of the special education program that may be community-based and involve job training/placement. Also applies to Childcare centers and recreation programs.

How do the ADA, 504 and IDEA relate to each other? • The Americans with Disabilities Act of 1990 (ADA), the Individuals with Disabilities Education Act (IDEA), and Section 504 of the Rehabilitation Act of 1973 represent three attempts to improve the living conditions of those with disabilities, to ensure equal access, and to promote inclusion. • Go to: http://www.dredf.org/advocacy/comparison.html • For a comparison of these laws.

What is Section 504? Section 504 covers disabled persons in programs receiving federal funds: - public schools explicitly, but also - publicly-funded programs such as day care programs, - after-school programs and even some private schools To be eligible for services and to ensure a Free and Appropriate Public Education (FAPE) and protection against discrimination under Section 504, a student must have a physical or mental impairment that substantially limits one or more major life activities. [29 U.S.C. 706 (8)(B)] CA statutes broaden “physical disability” definition.

SECTION 504—Leveling the playing field • A student is entitled to a Free and Appropriate Public Education (FAPE) • This can consist of special services and program modifications • 504 Plan • Designed to reasonably accommodate the student’s condition so that his/her needs are met as adequately as the needs of students without disabilities. • Provided in the Least Restrictive Environment (LRE) • --Removes Barriers, Provides equal access-- • EXP: Ramp into the school to access learning like other students, Computer access so student can “show” what she knows.

“504 Plan” describes services, accommodations & modifications • Students may receive services, accommodations and modifications for “equal access” to educational opportunities afforded all students. • Accommodations are program adjustments made to remove disability-related barriers to full participation in school: “leveling the playing field” • Academic modifications may be necessary even if major activity of “learning” is not affected. • Ex: P.E. curriculum changes, school schedule • Nonacademic AND extracurricular activities are included. Ex: field trips, athletics and assemblies. • ALL determined by student’s individual needs.

Services, Accommodations and Modifications • Accommodations for children with diabetes might include: • Ability to leave class when needed • Free access to food and water • Preferential seating • Administration of health protocols in class • Additional time to complete assignments without penalty • Ability to make up work missed to fulfill health-related needs or doctor’s appointments without penalty. • See sample “504 Plan” for a child with diabetes on DREDF website under Special Education.

Relationship of Protective Laws IDEA-eligible students are protected by ALL these laws just discussed. A Student with an IEP may also need accommodations to prevent discrimination. ALL students 504 eligible IDEA eligible

Cycle of Special Education Reason for Concern / Dx Review IEP annually, or if requested Request Assessment Implementation Assessment Plan:within 15 days Appropriate Placement: determined “Informed consent”:15 days for parent questions (if needed) “PLOP”, Goals, Individualized Instruction and Services: determined Assessment:60 days to complete IEP Meeting:within the 60 days

IDEA: Purpose “(c) Findings. Congress finds the following: Disability is a natural part of the human experience and in no way diminishes the right of individuals to participate in or contribute to society. Improving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent living, and economic self sufficiency…” “(d) Purposes. The purposes of this title are - (1)(A) to ensure that all children with disabilities have available to them a free and appropriate public education…designed to meet their unique needs AND prepare them for further education, employment, and independent living…” —IDEA / 20 U.S.C. § 1400

IDEA: EligibilityAge 3 up to age 22*with 1 of 13 eligibility categories: • Autism • Deafness / HH • Deaf-Blindness • Hearing Impairment • Mental Retardation • Multiple Disabilities • Orthopedic Impairment • Other Health Impairment • Serious Emotional Disturbance • Specific Learning Disabilities • Speech or Language Impairment • Traumatic Brain Injury • Visual Impairment / Blindness AND who by reason of their disability needs special education and related services in order to benefit from their education. Determined by the assessments! *or sooner if the student earns a full high school diploma

IDEA: 6 Core Principles • Appropriate Evaluation/Assessment • Free & Appropriate Public Education (FAPE) • Individualized Education Plan (IEP) • Least Restrictive Environment (LRE) • Parent (and student if appropriate) participation in the decision-making process • Procedural Safeguards

Referral for Special Education • SAFEGUARD:WRITTEN request triggers a strict timeline and an “affirmative obligation” to assess.“CHILD FIND” provision of IDEA law • In 15 calendar days, the district must present you with an “Assessment Plan” for your consent. Parent can take 15 more days to ask their questions. • Upon your consent, the district has 60 calendar days to evaluate your child and hold an IEP meeting. • TIP: A request for special education assessment legally supercedes a Student Study Team (SST) meeting.

Referral for Special Education • Parent generally makes initial referral for Special Education/504 assessment. But it can be a anyone concerned about the student’s educational needs. • WRITE a “Request for Assessment” letter to Special Education director or District 504 coordinator (or both); cc others if needed. • SAFEGUARD: If you ask verbally, the district is obligated to help you put your request in writing. • Students must be comprehensively assessed “in all areas of suspected disability” to determine need for special education. • TIP: If eligibility assessment, include “504 assessment” request in case child does not qualify under IDEA. Saves precious time.

Assessment Rights • Parent consent is required. • Independent (outside) assessments must be considered. • Right to review results in advance of the IEP meeting. TIP: Request in your “request for assessment” letter!Remember: FERPA. Also, translate into Parent’s language. • Assessment in child’s language/mode of communication. • Variety of tools & strategies must be used to determine: • If a child has a disability under IDEA • Contents of the IEP document • Technically sound instruments. • Qualified professionals. • Parent has a right to disagree via “IEE”

IEE Independent Educational Evaluation “at public expense” • If parent disagrees with a district assessment, parent has a right to ask for an IEE and for the district to pay for it. • Parent sends WRITTEN notice, or request, for IEE. • Without unnecessary delay, district must agree to either: - pay for the IEE, or - file for a Due Process hearing to show assessment was appropriate. A judge decides. • Independent Educational Evaluations MUST be considered, no matter who paid. • Qualified evaluator. No requirement to pick from district list.

IDEA: Intent • Expect success. Presume competence. • Provide access to the general education curriculum. • Prepare students for their future. Expand their future. • Strengthen the role and responsibility of parents. • Ensure that special education is a service rather than a place where children are sent. • Provide appropriate instruction, services and supports in regular environments. • Use technology to maximize accessibility. • Promote democracy.

Meeting Preparation • Talk to your child (DREAMS / CONCERNS / I WISH…) • Gather Your Thoughts (VISION STATEMENT) • Prior Meetings with Teachers • Gather/Organize Independent Reports/Evaluations • Find out availability of the people you will need to attend. • Observe Placements. Network with families about placement. • Make an Agenda. • Make a List of Questions/Concerns. • Prepare a “Parent Report” You are an EXPERT! • Understand your rights.

IEP: Preparation • District must provide WRITTEN NOTICE of IEP meeting. (date, time allotted & participants) • Let district know ASAP if you need another date/time. • Let district know what team members you need there. • Provide WRITTEN notice at least 24 hours in advance: • if you plan to tape record the meeting.• if you plan to bring an attorney. • Request/remind the district to provide all written materials & assessment reports 5 working days before meeting.

IEP: Good Record Keeping • YOUR CHILD’S RECORDS ARE THE FOUNDATION OF THEIR FUTURE. • Good records should provide a complete picture of your child. • Approach like you are conducting BUSINESS. • Request records when needed. • Document your key concerns and understandings in writing…REAL writing. ALWAYS: Be truthful, reasonable, direct. Email: advantage and disadvantage • Retain proof of delivery of correspondence you send to the school district. • Keep Phone logs and email collections.

IEP: Team rules • Translators as requested/needed. • Others may attend at invitation of parent or district who has knowledge of student. Person inviting has the right to determine appropriateness. • A team member may be excused when the parent AND the school district consent to the excusal.• Parent must consent in writing.• Member submits in writing input to the development of the IEP prior to the meeting. • A team member may be excused when her area is not being discussed or modified. • Parent must consent in writing. • Teams can meet by alternate ways:Speakerphone, video conference, etc.

IEP: Think of it this way! - Special Education is a SERVICE- brought to the student through theIEP- in order to CLOSE THE GAP between the student’s - Present Level of Performance (PLOP) and the student’s - Expected Level of Performance. Visualize an Elevator!

IEP: Big Questions Big questions the IEP team MUST answer: • Where are we now? Present Levels of eduPerformance (PLOP) • Where are we going? GOALS/OBJECTIVES • How are we going to get there? SERVICES & INSTRUCTION • How do we know when we have succeeded? MEASUREMENT: What objective DATA will tell us if we have? • How and when progress will be reported to the parents? ACCOUNTABILITY. STAYING ON TRACK.

IEP: PLOP Present Levels Of PerformanceAcademic AND Functional performance* • How disability affects student involvement and progress in the general curriculum. • For Pre-K age children, how disability affects participation in appropriate activities. • *Educational performance is a BROADterm specifically selected by Congress.PLOP is NOT limited to academicperformance only.

IEP: S.M.A.R.T. Goals SPECIFIC: clear descriptions of the knowledge and skills that will be taught and how the child’s progress will be measured. MEASURABLE: you can count or observe it. ACTION WORDS: “child will be able to . . .” REALISTIC / RELEVANT: to child’s unique needs that result from the disability. TIME-LIMITED: what does the child need to know and be able to do after 1 year of special education? Monitored at regular intervals.

Goal: More than “being there” • EXAMPLE #3:Kylie will participate in physical education. • REWRITE!Provided with adapted equipment, strategies and training, within the general education physical education class, with support from the Adapted P.E. (APE) instructor, Kylie will acquire skills in 3 or more physical education activities that promote flexibility and strength in upper arms and body, promote balance, and independent movement, as measured by APE data collection and P.E. grade/comments in school report cards.

Goal: Clarity • EXAMPLE #4:Stan will communicate better. • REWRITE!Stan will increase his sign language vocabulary to 300 words as described in the sign language notebook that travels between home and school by June 30.

IEP: Placement LAST part of IEP Meeting Protect Least Restrictive Environment (LRE) • Placement is a “set of services” provided to the student.NOT a place for the student to go! • Watch for “label and sort” offers. LRE must be protected in offers of instructional and other settings. • Consider supports and services to protect LRE. • Appropriate placement is one in which the student has a reasonable expectation of achieving IEP goals.

IEP: LRE Least Restrictive EnvironmentThe extent to which the student will or will notlearn with and participate in school with students without disabilities AND WHY. • Usually expressed as percent. • IDEA has a strong presumption that students with disabilities learn with their non-disabled peers. Home school. General Ed. Typical classes. • Supports and services should protect LRE. • Be vigilant. ASK:Where is the data to support removalfrom typical learning environments?

Meeting Tips: Building Partnerships • Model what YOU expect from others! • Protect relationships. • Ask open-ended “help me understand…” questions. • Be responsive. Follow through on your commitments. • Share ideas about your child that will support the team. • Encourage your child to value school. • Don’t visit only when there are problems. • Be proactive – not reactive. • Let the team know what’s important to you. • Say: “thank you.” Say: “I’m sorry.” • Have “thecourage to forget.” • Always remember that you are an equal member of the TEAM.

Prior Written Notice (PWN) [20 U.S.C. Sec. 1415(b)(3); 34 C.F.R. Sec. 300.503(b); Cal. Education Code Sec. 56500.4.] • When district proposes or refuses to do something that involves the child's identification, assessments, placement, or FAPE.Parent is required to receive PWN. ASK FOR IT! • PWN must include: (1) Description of action proposed or refused. (2) Explanation of why school proposes or refuses to take that action. (3) Each evaluation, procedure, test, report, etc. the school used as a BASIS. (4) Copy of the parent’s rights to challenge the action or inaction. (5) Sources of advocacy assistance for parents. (6) Other options the school considered and why they were rejected. (7) Other reasons for the school’s action or inaction.

Disputes: When things go wrong in implementing the IEP or 504 plan.When parents and schools don’t even agree on the what is needed.

Tips: Conflict Prep “just in case” DOCUMENTATION RULE OF THUMB:“If it was never written, it was never said and will never be done.” • Work out problems at the local level through letter WRITING.See www.wrightslaw.com “Letter to a Stranger” • Make requests IN WRITING. • Expect responses IN WRITING (PWN). • Expect Timelines to be met. Tip: Send letters with proof of delivery • Document conversations and calls.Date, time, who, title, contact info, what was discussed, what is understood, what is the expected result.

Alternative Dispute Resolution “ADR”: informal means to resolve disputes • Write an effective letter. • Involve key stakeholders/decision-makers: Superintendent; Director of SpEd; school board member • “Facilitated” IEP • School District or SELPA “Solution Teams” • “Compliance Complaint” at district level • “Mediation-Only”: FREE trained mediator from state before filing formal complaint

504: Civil Rights Discrimination Complaint • Filed with: Office for Civil Rights (OCR)San Francisco is Regional Office415-486-5555 / 877-521-2172 TDD www.ed.gov/about/offices/list/ocr/index.html • Complaint alleges:Education institution that receives Federal financial assistance has discriminated against student on the basis of his/her disability. • If educational opportunity is not commensurate with non-disabled peers (“level playing field”). • File within 6 months of alleged violation.

IDEA Compliance Complaint • Filed with: California Dept. of Education (CDE) Office of Procedural Safeguards & Referral Services (PSRS)800-926-0648www.cde.ca.gov/sp/se/fp • Parent describes & provides evidence of how school district: - failed to carry out an agreed-to IEP and/or- violated procedural safeguards in IDEA law • File within 1 year of alleged non-compliance. • FYI: Teachers & Staff too may file. There are “whistle-blowing” protections for school district staff in IDEA 2004.

IDEA Due Process Complaint • Office of Administrative Hearings (OAH) Special Education Division916-263-0880 / 916-263-0890 Faxwww.oah.dgs.ca.gov • “Trial-like”When Parent & School District have BIG disagreements: - whether student is eligible for special education [or] - whether the IEP and particular services offered provide “Free and Appropriate Public Education (FAPE) • Administrative Law Judge (ALJ) resolves disagreements about eligibility; or type, intensity, frequency or location of services. • Must file within 2 years of alleged complaint

IDEA Due Process Complaint • Complaining party MUST provide notice to OAH and the opposing party:• Name, address of child (& contact if homeless)• School Name • Description of problem • Desired solution • ParentsANDDistricts can file for Due Process. • Filing is VERY specific. Opposing partycan challenge “sufficiency” of complaint for lack of detail. • OAH has model forms for filing. • Opportunities to resolve before a hearing:“Resolution Meeting” and/or “DP Mediation”

NEWS FROM THE TRENCHES: Current Issues, resources, problems related to these laws that we are hearing about from Families and Stakeholders “on the ground”

Current Issues, ResourcesGatekeeping/Stalling • ISSUE: Districts Stalling on providing a decision in WRITING so parent’s due process rights are triggered. When district proposes or refuses to do something that involves the child's identification, assessments, placement, or FAPE.Parent is required to receive PWN. ASK FOR IT! • PWN must include: (1) Description of action proposed or refused. (2) Explanation of why school proposes or refuses to take that action. (3) Each evaluation, procedure, test, report, etc. the school used as a BASIS. (4) Copy of the parent’s rights to challenge the action or inaction. (5) Sources of advocacy assistance for parents. (6) Other options the school considered and why they were rejected. (7) Other reasons for the school’s action or inaction.

Current Issues, ResourcesGatekeeping/Stalling • ISSUE: Districts are denying requests for assessment for special education (Child Find responsibility is to actively seek out and identify all children with disabilities in the district) because of concerns over “over-identification”, or need to complete Response to Intervention (RTI) or SST (California) process. • EXP: Special education assessment request denied because “resources of general education are not exhausted” ? • TIP: Ask to see policy, and timelines! When general education interventions are being used, these should be short term, focused and data driven interventions that give team data—if they don’t work, go to higher level support. Don’t wait. • NOTE: If parent asks for assessment, district cannot simply state that general education interventions and supports are not “exhausted”—must provide data in detail about why referral is not appropriate using PWN.

The ADA, IDEA, and Section 504 in Education: