Thursday, October 25, 2018

How is Section 504 eligibilty determined?

KGK attorney Hope Kirsch answers the question:
What should be considered when a school team is determining Section 504 eligibility for a student?
The ADA Amendment 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.  

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." 

Thursday, October 11, 2018

How to request an IEP for your child?

Are you concerned that you child may need special education?  Watch this video of special education attorney Hope Kirsch.

Friday, October 5, 2018

Special Education Evaluations - What You Need To Know

From a presentation by Arizona's Special Education Law Firm:
       Pursuant to 34 C.F.R. § 300.301, schools must conduct a full and individual evaluation of a child before the initial provision of special education and related services.  The School must provide notice to the parents of a child with a disability that describes any evaluation procedures the agency proposes to conduct.  This information is typically communicated in a Prior Written Notice or can also be indicated on the informed consent form, which the parent signs when providing their consent to evaluate. The notice required pertains to the testing areas, not what specific tests the school will be administering.  Schools should be sure to address all areas of suspected disability when determining the areas to be evaluated.  Additionally, be aware of issues that arise during the evaluation process, which may require additional consent from the parent.  For example, if a student performs low on the verbal comprehension portions during the cognitive assessment, perhaps a speech evaluation/screening should be considered and the parent will need to provide additional consent for that assessment. 
An evaluation must include a variety of assessment tools and strategies to gather relevant functional, academic, and developmental information about the student, including parent input.    The team cannot use any single measure or assessment as the sole criterion for determining whether a student has a disability or to determine the appropriate educational program.       
However, it is acceptable to use only portions of multiple assessments to get an accurate picture of the student’s skills and ability.   For example, the evaluator could utilize the fluency measures from Woodcook-Johnson III, the writing subtest from Wechsler Individual Achievement Test III, specific executive function subtests from Delis-Kaplan Executive Function System, etc.  As with all special education evaluations, it is imperative that the assessment tools are selected with the individual needs of the student in mind.
A student cannot be determined to be a student with a disability when the following factors are present and affect the determination: (1) lack of appropriate instruction in reading (2) lack of appropriate instruction in math or (3) limited English proficiency.   Additionally, the team should always consider the student’s native language before choosing evaluation measures.   Do not be hesitant to request a bilingual assessment whenever necessary or when the student’s language skills are in question.  For initial evaluations, when English is not the student’s native language, the evaluation should always include assessments to evaluate the student’s language to determine which language is dominant.  If a language disorder is suspected, non-verbal assessments should be utilized to increase the reliability of the results. 
The category of Specific Learning Disability (SLD) has additional requirements under the IDEA.  The IDEA states that the disability category of SLD must be determined using State criteria for determining a learning disability.  In Arizona, there are two options: (1) using a discrepancy model to determine if there is a significant difference between intellectual ability and achievement; or (2) using a State-approved response to intervention (RTI) process.  RTI programs must be approved by the Arizona Department of Education (“ADE”) Exceptional Student Services (“ESS”).  Additionally, MET members must sign the eligibility determination paperwork that they are in agreement or disagreement of the determination of eligibility for SLD; and if any team member is in disagreement, they must submit a statement that describes the nature of their disagreement. 
Eligibility Determinations:  At an eligibility determination meeting, after reviewing the assessment data or the existing data in a reevaluation, the MET must determine whether the student meets eligibility requirements for the specific category of disability and whether the student requires special education in order to benefit from an educational program. There are sixteen different eligibility categories in Arizona.   The forms outlining eligibility criteria in Arizona for each disability category can be found at:  
The Office of Special Education Programs (“OSEP”) has provided guidance that only in limited circumstances may an initial evaluation include only a review of existing data without further evaluation/assessments to make an eligibility determination.  A review of existing data is typically insufficient in determining eligibility under an initial evaluation because there is likely not enough information to determine whether a child initially qualifies as a child with a disability, and the nature of his/her educational needs.
The IDEA requires that a review of existing data for any evaluation should include a review of the following areas: prior evaluations; parent information; classroom-based observations and assessments; teacher and related service provider observations; hearing and vision screening; present levels of academic achievement and developmental needs of the student; and whether any modifications or additions are necessary to allow the student to either meet his/her IEP goals, or to continue to participate in the general education curriculum.   Once a review of existing data takes place, the evaluation process has begun and the school must either determine continued eligibility based on the existing data, or conduct further evaluation of the student before making any eligibility determinations.  If further evaluation is pursued, all components of the evaluation and the eligibility determination meeting must be completed by timeline for the type of evaluation.