Sunday, February 27, 2022

Here’s what to do when your child needs help in school

By Hope Kirsch, Kirsch-Goodwin & Kirsch, PLLC



If your child is struggling at all — in school work (academics), making friends, teachers complaining about behavior, almost anything that concerns you or the teachers — the school should be notifying you and suggesting to meet to evaluate the child for a 504 plan (accommodations) or an IEP (special education).

But if the school has not contacted you, then you should contact the school. Do not hesitate because early intervention is key to addressing issues and leads to some of the best outcomes. Otherwise, your child’s difficulties increase, the gap in learning widens, and your child has not learned strategies to help him or her learn.

Emails are the best record of your communications. Even if you write a letter, attach the letter to the email and also cut and paste from the letter into an email.

Remember, if it is not in writing, (the school can say) it was never said! Who do you write to and what do you say? Email at least two, preferably three people so that your email doesn’t get “lost” (deleted or ignored or hanging out in one person’s spam).

Send to the main teacher and the school principal (headmaster if a charter school), and the special education coordinator for the school — you can find the person on the school’s website along with the email. For schools the don’t list emails, call the school for the emails.

On the subject line, write your child’s name and “concerns, request for evaluation.” In the email, say who you are in relation to your child, your child’s name and the reason you are writing is that you have “some concerns that include…” List them, and say there are other concerns, too.

Then ask for a meeting to evaluate your child for special education. The school then has 15 school days to either hold the meeting or send you a Prior Written Notice (“PWN”) that it refuses to meet.

If the school refuses to evaluate your child, keep a log of any increasing concerns and reach out to the school again when you have collected your own “data” — that is, the facts you have of increasing struggles, including emails from teachers about problems at school (not finishing work, not doing work, distractions, behaviors, etc.), report cards, standardized test scores, and also ask to see the “45 day screening report.”

Sometimes a school will say it is using or will use RTI, that is, Response to Intervention. That is when a child is not learning at the same rate, but a school cannot use RTI to delay the evaluation.

Regardless of the response to your request for an evaluation, the school must send you a PWN. Read it, and if inaccurate, email all the same people who you wrote to in the first place to ask that the inaccuracies be corrected.

Editor’s note: Hope Kirsch is a special education attorney with the firm Kirsch-Goodwin & Kirsch, PLLC.

Wednesday, August 25, 2021

Return to School Roadmap, August 2021

Thee United States Department of Education will be issuing guidance to schools notifying them that regardless of the COVID pandemic or how instructino is provided, students with disabilities must still receive a free appropriate public education (FAPE) in accordance with the Individuals with Disabilities Education Act (IDEA), and that infants and toddlers with disabilities and their families receive early intervention services. Here is the first guidance document, a Questions and Answers (Q/A) document, that outlines the key requirements and reminds schools of their requirement to appropriately implement IDEA's Child Find obligations.

Friday, July 2, 2021

Can the school remove my child from an IEP?

Parents often ask:

Can the school exit my child from an IEP?

How can a school exit my child from an IEP?

The answer to these questions are that schools are not allowed to just dimiss - or exit - a student from an IEP without a formal evaluation.  And so an IEP may not just say that a student no longer needs special educaiton and related services.  Instead, the IEP team must arrange to re-evaluate the student in all areas of suspected disabilty, and only after the evaluation may the team decied whether or not the student continues to need special education and related services, that is, whether the student still continues to be eligible.  

The federal regulation that addresses this is 34 CFR 300.305.

Kirsch-Goodwin & Kirsch, AZ Special Education Laywers

Wednesday, May 5, 2021

Bullying - When Special Needs Students Are the Victims or Instigators

 Bullying - When Special Needs Students Are the Victims or Instigators

By Arizona Education Attorneys        


What is Bullying?  Bullying is unwanted, aggressive behavior among school aged children that involves a real or perceived power imbalance. The behavior is repeated, or has the potential to be repeated, over time. Both students who are bullied and who bully others may have serious, lasting problemsIn order to be considered bullying, the behavior must be aggressive and include an imbalance of power repeatedly.  Students who bully use their power—such as physical strength, access to embarrassing information, or popularity—to control or harm others.  Power imbalances can change over time and in different situations, even if they involve the same people.  Bullying behaviors happen more than once or have the potential to happen more than once.  Bullying includes actions such as making threats, spreading rumors, attacking someone physically or verbally, and excluding someone from a group on purpose.

Types of Bullying:  There are three types of bullying.  One type is verbal bullying.  Verbal bullying is saying or writing mean things.  Verbal bullying includes teasing, name-calling, inappropriate sexual comments, taunting, and threatening to cause harm.  A second type of bullying is social bullying.  Social bullying is sometimes referred to as relational bullying.  It involves hurting someone’s reputation or relationships.  Social bullying includes intentionally excluding someone, telling other children not to be friends with someone, spreading rumors about someone and embarrassing someone in public. The third type of bullying is physical bullying.  Physical bullying involves hurting a person’s body or possessions.  Physical bullying includes hitting, kicking, pinching, spitting, tripping, pushing, taking or breaking someone’s things, and making mean or rude hand gestures.

Where and when does bullying take place?  Bullying can occur during or after school hours. While most reported bullying happens in the school building, a significant percentage also happens in places like on the playground or the bus.  It can also happen travelling to or from school, in the youth’s neighborhood, or on the internet (cyberbullying).

What is Cyberbullying?  Cyberbullying is bullying that takes place using electronic technology.  Electronic technology includes devices and equipment such as cell phones, computers, and tablets as well as communication tools including social media sites, text messages, chat, and websites.  Examples of cyberbullying include mean text messages or emails, rumors sent by email or posted on social networking sites, and embarrassing pictures, videos, websites, or fake profiles.  Students who are being cyberbullied are often bullied in person as well. Additionally, students who are cyberbullied have a harder time getting away from the behavior.  Cyberbullying can happen 24 hours a day, 7 days a week, and reach a student even when he or she is alone.  It can happen any time of the day or night.  Cyberbullying messages and images can be posted anonymously and distributed quickly to a very wide audience. It can be difficult and sometimes impossible to trace the source.  Deleting inappropriate or harassing messages, texts, and pictures is extremely difficult after they have been posted or sent.  Whether done in person or through technology, the effects of bullying are similar.

Bullying of students with disabilities can amount to a denial of a FAPE as it creates a hostile learning environment such that may interfere with the student’s ability to access the curriculum.  For instance, they may not want to go to school, or they may be distracted by thoughts of the bully.

The U.S. Department of Education policy guidance states that “disability harassment that adversely affects an elementary or secondary student's education may also amount to a denial of FAPE under the IDEA.  Harassment of a student based on disability may decrease the student's ability to benefit from his or her education and amount to a denial of FAPE.”  Dear Colleague Letter regarding Disability Harassment, 7/25/2000.

There are a growing number of cases and court decisions concerning bullying and finding that peer-on-peer bullying – and bullying by the student’s teacher – can result in a denial of FAPE in violation of the IDEA and/or 504:

·         Bullying that is severe enough to alter the condition of student's education and create an abusive educational environment, coupled with the knowledge and deliberate indifference by school officials, is one way a student may establish a violation of the Rehabilitation Act.   D.A. v. Meridian Joint School Dist. No. 2, --- F.R.D. ----, 2013 WL 588761 (D.Idaho, 2013).  

·         A teacher’s deliberate indifference to the abuse and teasing of a student with a disability could result in the denial of a FAPE under the IDEA.  M.L. v. Fed. Way Sch. Dist., 394 F.3d 634, 650 (9th Cir.2005).

·         A student with emotional disabilities was denied FAPE based on the likelihood that a proposed placement would subject the student to continued bullying because of his perceived effeminacy.  Shore Regional High School Board of Education v. P.S., 381 F.3d 194 (3d Cir., 2004).  The placement of the student at the local high school was inappropriate because the school would not be able to prevent or stop the continued bullying.  The student had previously been subjected to relentless physical and verbal harassment as well as social isolation because he was "girlish."  Because the placement would expose him to further bullying and harassment, the placement would in effect deny the student FAPE.


            When the special needs student is the perpetrator, or bully, the student should be referred for a Functional Behavior Assessment (“FBA”) from which a Behavior Intervention Plan (“BIP”) can be developed and implemented.

            Best practices for schools:

·         Develop and publicize comprehensive policies regarding bullying, harassing, and hazing;

·         Explain to students exactly what they should do if they are bullied or witness bullying;

·         Have a formal reporting procedure in place;

·         Inform students that they will not be punished for reporting bullying in good faith.

·         Consider having an online system where students can report bullying.   Many students become nervous, scared, or shy, and having a more informal system for students to report bullying may encourage them to do so;

·            Respond promptly to all incidents and reports;

·            Consider the totality of circumstances presented when determining whether the conduct objectively constitutes harassment or bullying;

·            Enforce the policy consistently;

·            Be sure that all students receive and review a copy of the student handbook containing a copy of the anti-bullying/harassment/hazing policies;

·            Make it clear, particularly to athletes and upperclassmen, that hazing will not be tolerated and that students will face serious discipline, including criminal charges, for any violations;

·            Be aware of the potential infringement of students’ First Amendment rights.

·            Even when disciplinary action is not allowed, take steps to inform and engage parents in the anti-bullying efforts.


Manifestation Determination Review ("MDR")

 Arizona Education Lawyers

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”). 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.  

The implementing regulations of the IDEA, at 34 C.F.R. § 300.530(e), require that a school conduct an MDR when the decision is made to change a student’s placement because of a disciplinary infraction.  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 a 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).

If parents disagree with the outcome of the MDR, they may appeal by filing file a due process complaint.

Students with Section 504 Plan: Students with 504 plans have similar protections to those students with IEPs. But there are some differences. The public agency may discipline a student with a disability under Section 504 just as it would a student without a disability if the student is currently engaging in the illegal use of drugs or use of alcohol, or in possession of illegal drugs or alcohol.

Additionally, the public agency is not required to provide educational services during a long term suspension or expulsion to a student with a 504 that committed a violation that was determined not to be a manifestation of his/her disability.