Tuesday, February 25, 2020
Section 504 of the 1973 Rehabilitation Act contains a much broader definition of a student with disabilities than does the Individuals with Disabilities Education Act (“IDEA”), and thus protects students with disabilities who may not qualify for an IEP by guaranteeing them access to necessary accommodations during both instruction and assessments. Students with a medical condition such as allergies, asthma, and attention difficulties may receive accommodations through the development of a 504 Accommodation Plan (a “504 Plan”). The Americans with Disabilities Amendments Act (ADAAA) of 2008 increased the number of individuals who are eligible for protections and services under both the ADA and Section 504 of the Rehabilitation Act of 1973. An impairment in and of itself does not mean that a student has a disability. There must be a substantial limitation on one or more major life activities, which results from the impairment, to be considered as a disability under Section 504 and entitling a student to FAPE.
In order to be afforded the protections of Section 504, a student must meet the definition of a person with a “disability.” A student has a disability if he/she:
1. Has a physical or mental impairment that substantially limits one or more major life activities; or
2. Has a record of such impairment; or
3. Is regarded as having such an impairment; and
4. The impairment substantially limits a major life activity.
A school must make an individualized determination as to whether a student has a physical or mental impairment that substantially limits a major life activity. In light of the ADAAA, the standard used to determine whether a physical or mental impairment substantially limits one or more major life activities is: whether or not “the individual's important life activities are restricted as to the conditions, manner, or duration under which they can be performed in comparison to most people.” The impairment must create a significant barrier to the student’s ability to access the same educational opportunities afforded to students without disabilities. It is important to remember that “substantial” doesn’t really mean “substantial” since the ADAAA was passed.
Follow these steps:
1. Convene a 504 eligibility team meeting. Assemble a properly comprised 504 team. Such a team includes individuals who are familiar with and knowledgeable about the student, the evaluation data that the team will review and discuss, and the placement options if the student eligible.
2. Conduct an appropriate evaluation. Always draw upon information from a variety of sources. A variety of sources could include teacher observations, aptitude and achievement tests, adaptive behavior assessments, and the student's physical/health/medical condition. Schools must not rely on only one source of information, such as a medical doctor script saying the child needs a 504, or a parent saying their child needs certain accommodations.
3. Apply the Section 504 eligibility criteria. Eligibility under Section 504 is based on the evaluation where the student is determined to have a "physical or mental impairment" that "substantially limits one or more major life activities." 28 C.F.R. § 35.108(a)(1)(i). To determine substantial limitation, compare the student's ability to perform a major life activity to the average peer. 28 C.F.R. § 35.108(d)(1)(v).
Increasingly, parents may be requesting 504 Plans, or more accommodations on existing 504 Plans, so that their children can have accommodations for SAT testing or similar testing. Upon receipt of these requests, schools should conduct an appropriate evaluation and apply the appropriate eligibility criteria to screen out students who are truly not eligible.
 42 USC 12102 (4)(A) states, "The definition of disability in this Act shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act." (Emphasis Added)
Tuesday, December 24, 2019
Can the school exit my child from special education? A student cannot be exited from special education without an evaluation. If the evaluation indicates the student is no longer in need of special education, then the parents may exercise their right to request an Independent Educational Evaluation (“IEE”). Schools need not accept/agree with the independent evaluator’s conclusions, but the school must consider the conclusions. If the Team still determines the student no longer qualifies for special education, then the school MUST issue a Prior Written Notice (“PWN”) and the student is exited from special education. The parents may then invoke STAY-PUT and file a Due Process Complaint seeking a determination by an Administrative Law Judge (“ALJ”) whether the student still qualifies for special education. The student “stays put” in special education under his/her last agreed-upon IEP until such determination by the ALJ, and through any appeals.
Friday, December 13, 2019
There ae 14 eligibility categories in Arizona for students to be considered for an IEP. But remember, just having one of these disabilities does not automatically mean that the student qualifies for an IEP. This is a 2-step process. Having a disabilty that fits in one or more of these categories is the first step. The second step is needing special education (specialized instruction). If the MET (Multidisciplinary Evalution Team), by "consensus," does not find that the the student needs special education, the student may be able to qualify for a 504 Plan. There are ways, however, for parents to challenge a school's determination that their child does not qualify for an IEP. Whether the challenge will be successful depends on the particular facts and circumstances.
(i) Autism ("A")
(ii) Developmental delay ("DD")
(iii) Emotional disability ("ED")
(iv) Hearing impairment ("HI")
(v) Other health impairments ("OHI")
(vi) Specific learning disability ("SLD")
(vii) Mild, moderate or severe intellectual disability ("MID," "MOID," "SID")
(viii) Multiple disabilities ("MD")
(ix) Multiple disabilities w/ severe sensory impairment ("MDSSI")(x) Orthopedic impairment ("OI")
(xi) Preschool severe delay ("PSD")
(xii) Speech/language impairment ("SLI")
(xiii) Traumatic brain injury ("TBI")
(xiv) Visual impairment ("VI")
You can find the statute (the law), A.R.S. 15-761 at https://www.azleg.gov/ars/15/00761.htm.
Predetermination is a procedural violation that deprives a student of a FAPE in those instances in which the school has made decisions placement without parental involvement. Under the IDEA, parents of a child with a disability must be afforded an opportunity to participate in meetings with respect to the identification, assessment, educational placement, and provision of a FAPE to their child. The IDEA requires that parents be members of any group that makes decision about the educational placement of a child. 34 C.F.R. § 300.327 (“each public agency must ensure that the parents of each child with a disability are members of any group that makes decisions on the educational placement of their child.”) and 34 C.F.R. § 300.501(c)(1) (“Each public agency must ensure that a parent of each child with a disability is a member of any group that makes decisions on the educational placement of the parent's child.”). Thus, all decisions are to be decided at MET meetings (for eligibility) and IEP meetings (for goals, services and supports, accommodations, placement, etc.). That means, at an IEP team meeting, all members of the team must have an open-mind about all decisions. A school must fairly and honestly consider the views of parents expressed in an IEP meeting. While school officials may discuss a child's programming in advance of the IEP meeting, they may not arrive at an IEP meeting with a "take it or leave it" attitude, having already decided on the program to be offered. A school that predetermines the child's program and does not consider the parents' requests with an open mind has denied the parents' right to participate in the IEP process.
To fulfill the goal of parental participation in the IEP process, a school is required to conduct a meaningful IEP meeting. A parent has meaningfully participated in the development of an IEP when he or she is informed of their child's problems, attends the IEP meeting, expresses their disagreement regarding the IEP team's conclusion, and requests revisions in the IEP. A school violates IDEA procedures if it independently develops an IEP, without meaningful parental participation, and then simply presents the IEP to the parent for ratification. However, an IEP need not conform to a parent's wishes in order to be sufficient or appropriate. Rather, the school must be able to show that it provided parents with the opportunity to participate and that it considered the parents requests with an open-mind.
Monday, October 7, 2019
MANIFESTATION DETERMINATION REVIEWS (MDRs)
The IDEA protects students with disabilities in disciplinary proceedings that may result in long term suspension or expulsion. Suspension over 10 days in a school year requires a Manifestation Determination Review (MDR) (see below). A student with a disability (with an IEP) may be suspended for up to 10 school days in a school year without FAPE being provided. Suspension for more than 10 school days is considered a long term suspension.
A disciplinary change of placement occurs for a student with a disability if: (1) The removal is for more than 10 consecutive school days; or (2) he student has been subjected to a series of removals that constitute a pattern because the series of removals total more than 10 school days in a school year; because the student's behavior is substantially similar to the student's behavior in previous incidents that resulted in the series of removals; and because of additional factors, such as the length of each removal, the total amount of time the student has been removed, and the proximity of the removals to one another. 34 C.F.R. § 300.536.
If a student with a disability may be suspended for more than 10 school days due to a code of conduct violation, the public agency, parents, and relevant IEP Team members (determined by parents and district) must have a meeting to determine whether the student's behavior was a manifestation of his/her disability. At the meeting, all relevant information in the student's file, the IEP, teachers' observations and any other relevant information parents provide must be reviewed in order to determine whether the conduct was caused by or had a direct and substantial relationship to the student's disability, or whether the conduct was the direct result of the public agency's failure to implement the student's IEP. If either of the two conditions above were met then there should be a determination that the conduct was a manifestation of the student's disability. If it is determined that it was the public agency's failure to implement the student's IEP, then the public agency must take immediate steps to remedy those failures. 34 C.F.R. §300.530(e). When the determination is that the conduct was a manifestation of the student's disability, then the IEP Team must either conduct an FBA (unless the public agency already conducted one before the behavior violation occurred) and implement a BIP for the student or, if there is already a BIP in existence for the student, then the public agency must review the BIP and modify the BIP if necessary to address the behavior, and the student must be returned to the placement from which he/she was removed — unless the parents and public agency agree to a change of placement as part of the BIP or modification to the BIP.
Exception: The student may be placed in an interim alternative educational setting for no more than 45 school days without a manifestation determination review IF the student carried or possessed a weapon at school, knowingly possessed or used illegal drugs, sold or solicited controlled substances or inflicted serious bodily injury on someone else while at school or on school premises or at a school function. 34 C.F.R. §300.530 (f) and (g).
In cases where the behavior is determined to have NOT been a manifestation of the student's disability and the disciplinary changes in placement will exceed 10 consecutive school days, the same discipline may be imposed on the student with disabilities as a student without disabilities. HOWEVER, the student with an IEP must be provided with a FAPE; special educational services to enable the student to continue participating in the general education curriculum, even in another setting and make progress toward meeting the student's IEP goals. Additionally, if appropriate, the student is to receive an FBA, behavioral intervention services and modifications to address the conduct so that it does not recur. 34 C.F.R. §300.530 (c) and (d).
The law firm of Kirsch-Goodwin & Kirsch Education Attorneys handle discipline cases for students all over the state of Arizona.
Wednesday, September 18, 2019
Hope Kirsch and Lori Kirsch Goodwin explain the ABCs of Special Education - Advocating Better for your Child.
Watch this video from one of their trainings.
Watch this video from one of their trainings.