Can the school exit my child from his/her IEP?

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.

Kirsch-Goodwin & Kirsch, Arizona Special Education Lawyers

Eligibility Categories for special education (IEP) in Arizona

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.

Kirsch-Goodwin & Kirsch, Special Education Law Firm

What is PREDETERMINATION?

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.

Kirsch-Goodwin & Kirsch, Special Education Lawyers

MANIFESTATION DETERMINATION REVIEWS (MDRs)

   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. 

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The ABCs of Special Education - Advocating Better for your Child

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.
https://youtu.be/5a00KFq7_yQ

What are a parent’s rights?

From an article that appeared in a local paper a while back:

Hope Kirsch, a special education attorney with the law firm of Kirsch-Goodwin & Kirsch, PLLC, represents students with disabilities and their families throughout Arizona in school-related matters, including individualized education programs (IEP), due process, 504 plans, disciplinary matters and bullying. She was a special education teacher and school administrator for nearly 20 years and has a B.S. in special education from Boston University, an M.A./M.Ed. in special education from New York University and a law degree from Brooklyn Law School. 

What are the first steps a parent should take when they find out that their child is having difficulty in school?

Parents should submit a request via e-mail to the school district or charter school that the child attends. I advise parents to email the child’s teacher, the special education director for the school district or charter school and the school principal  or headmaster, stating they are requesting a complete assessment to determine the full nature and extent of their child’s disabilities and the impact of the disabilities on their child’s education. They should state their concerns and note that the email should be deemed as giving their “consent” to evaluate. (Giving consent triggers deadlines.) Parents who home-school their children, or who place their children in a for-profit private school – or whose children are in preschool or are ages 3-5 – should submit the evaluation request to the school district in which they reside (email the special education director and at least one other person, such as the superintendent). The schools have their own obligation, called “Child Find,” to evaluate, with parental consent, any child they suspect of having a disability that may require special education.   

What are the parents’ rights when it comes to the evaluation?

The school (home-school district or charter school) has 60 calendar days to complete the evaluation from the date parents give consent, which is why I suggest parents state in the email requesting the evaluation that they are giving consent. Parents can submit their request any time during the year, not just during the school year. 

The school is required under the law to assess/evaluate students “in all areas related to the suspected disability” including, if appropriate, social-emotional skills, behaviors, etc. If, after the evaluations, the parents do not agree with the findings, they have the right to an Independent Educational Evaluation (IEE) with an evaluator of their own choosing at the expense of the public education agency (PEA). If the school refuses, the school must file a due process complaint.       

What is the difference between a 504 and an IEP and how do they affect the student?

A 504 Plan provides accommodations, services and/or aids to students with a disability (as that term is defined under the Americans with Disabilities Act Amendments Act) to afford the student equal opportunities to participate in school activities and receive the same instruction as nondisabled peers, but they do not require special education. Accommodations may include extra time for the same assignments as their peers, a separate quiet room to take the same test as their peers, large type for reading the same instructional material, or ramps to physically access the same classroom. An IEP is for a child who requires special education – instruction that is specialized, or modified, for that child. A ninth-grader reading at third grade can be given "Romeo and Juliet" modified from Shakespearean language to their reading level. Also, an IEP has goals written into it; a 504 does not. A student does not have an IEP after graduating high school, whereas a 504 plan continues into post-secondary school, and a student who had an IEP in high school can have a 504 in college.

To what degree can a parent expect schools to provide services and supports for the special needs of their child?

In order to answer these questions, it is important to understand that the federal law governing IEPs, the Individuals with Disabilities Education Act (IDEA), does not require that schools maximize a child’s potential; the maxim is that students are only entitled to a Chevy, not a Cadillac. That said, the IEP must confer an “educational benefit” standard for a free and appropriate public education (FAPE) within the meaning of the IDEA by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.  

If parents believe their child is not receiving a sufficient amount or the right kind of services and supports (such as occupational therapy, physical therapy, speech therapy, behavior intervention, one-on-one), or they believe goals are too high, too low or there is insufficient progress, or if they have any other concerns, they should notify the school and request an emergency IEP meeting. The school has 15 school days after the date of the request to conduct the meeting. Parents should prepare a list of their concerns and explain why it is they believe the IEP is not appropriate, what they think their child needs, and go through each item with the IEP team. After exhausting their efforts, parents’ options include mediation, state administrative complaints and, in limited circumstances, due process.       

Visit azspecialeducationlawyers.com, call 480-585-0600 or email info@kgklaw.com. A

Are Charter Schools Required to Provide Special Education Services?

OVERVIEW OF FEDERAL AND STATE LAWS ON PROVISION OF SPECIAL EDUCATION SERVICES IN CHARTER SCHOOLS

 By Hope Kirsch and Lori Kirsch-Goodwin, 

Although charter schools are exempt from many local and state regulations and state and local rules regarding operation and management, they are not exempt from federal and state laws regarding rights, access and discrimination against protected classes and students with disabilities, unless they do not receive federal funds (which will be discussed below).  Charter schools that receive Federal financial assistance from the United States Department of Education (the “Department”) must comply with the Age Discrimination Act of 1975, Title VI of the Civil Rights Act of 1964 (which prohibits discrimination re race, color, national origin), Title IX of the Education Amendments of 1972 (which prohibits sex discrimination), Section 504 of the Rehabilitation Act of 1973, the Americans With Disabilities Act of 1990 (which prohibits discrimination on the basis of disability), the Family Education Rights and Privacy Act (“FERPA), and part B of the Individuals with Disabilities Education Act (the “IDEA”).  This paper focuses on Section 504 of the Rehabilitation Act of 1973 and its implementing regulation at 34 Code of Federal Regulation Part 104 (collectively herein, “Section 504”), and the IDEA and its implementing regulation at 34 Code of Federal Regulation Part 300. 

Note:  Charter schools are either “for profit” or “nonprofit.”  Only schools that are nonprofit are eligible to receive Federal financial assistance from the U.S. Department of Education.  Recipients of Federal financial assistance are subject to the laws and regulations enforced by the U.S. Department of Education and including the Office of Civil Rights.  However, for profit charters do not receive Federal financial assistance from the Department funds and are therefore not subject to these laws and regulations, and thus OCR is not responsible for enforcing these laws and regulations at for profit charter schools.  Although for profit charter schools can have students on IEPs, since they do not receive Federal funds as a means of serving this population, the Department does not have jurisdiction to enforce laws and regulations at such schools. 

Section 504 is enforced by the Office for Civil rights, and the IDEA is administered by the Office of Special Education and Rehabilitative Services (“OSERS”) which provides Federal funds to States which in turn provide the funds to local educational agencies (“LEA”) to assist in the provision of special education and related services to students with disabilities.

The Department has issued guidance to parents, students and charter schools explaining rights of students with disabilities in charter schools.[1]  Regarding IDEA, students enrolled in charter schools and their parents or legal guardians retain all of the rights and protections under Part B of IDEA that they would have if attending other public schools including procedural safeguards, the right to a FAPE in the least restrictive environment (“LRE”), and special education and related services in conformity with a properly-developed IEP.  The Department has cautioned that a charter school may not limit the services it will provide a student with a disability. States are responsible for overseeing and monitoring charter school compliance. 

With respect to Section 504’s prohibition against disability discrimination and right to a FAPE, students with disabilities as well as those seeking admission have the same rights as students with disabilities in public non-charter schools, including the right to a Free and Appropriate Public Education (“FAPE”), equal treatment and nondiscrimination in nonacademic and extracurricular activities such as sports and outings, and accessibility such as ramps.  Section 504 requires that charter school recruitment of students apply on an equal basis to all students, including both students with disabilities and nondisabled students, and to allow applications on an equal basis.  Accordingly, a charter school must not impose admission criteria that would tend to exclude or discriminate against students with disabilities.  In fact, it is a violation of Section 504 for a charter school to ask an applicant if he or she has a disability.  The question of whether a student has or ever had an IEP or Section 504 Plan may not be included on an application, and OCR deems such a question on an application as disability discrimination.  The question of whether a student has or ever had an IEP or Section 504 Plan may be asked only after the student has been accepted.  The exception is for schools chartered to serve students with a specific disability, but otherwise such a question is prohibited. 

Finally, the Department warns that charter schools may not “counsel out, i.e., try to convince a student (or parents) that the student should not attend (or continue to attend) the school because the student has a disability.”  That is, the school must not discourage a student and his family from applying for admission.

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[1] United States Department of Education, Office for Civil Rights, Office of Special Education and Rehabilitative Services, “Know Your Rights: Students with Disabilities in Charter Schools,” December 2016, reformatted January 2017, https://sites.ed.gov/idea/files/dcl-factsheet-201612-504-charter-school.pdf