| Special Education News from EdLaw |
|
| Information, Events, Tips and Advice for Parents of Special Needs Children in Pennsylvania |
May 2009
|
|
|
UPCOMING EVENTS |
6/16/09
Parent Support & Networking
CHADD
610 429-4060
6/21-26
Special Education Law Symposium
Lehigh University
610 758-3226
| |
Greetings!,
Summer's coming! How does that song go? Time for "those lazy, hazy, crazy days of summer, those days of soda and pretzels and beer..."
Okay, we're dating ourselves. But you get the idea. For some of you, it may have been a very challenging year for your special needs child at school. For others, maybe not so much. But, either way, you - and they - probably can't wait for a well-deserved break when school ends soon.
So we don't want to rain on any of those clear summer days. But ... we can't help pointing out that before long, September will roll around again!
Will you be ready? How does your child's IEP look for next year? Has she made progress over the past year? Are you satisfied? When was she last evaluated? Has he improved his reading level? If so, by how much? If "social skills" are an issue, has she made progress? Is she relating better to the other children? Developing friends? Does she feel better about herself than she did last September? More confident? Happier?
Everybody needs a break sometime. But consider using a little time over the summer to plan for a successful year beginning in September. Have you organized your child's file? Reviewed her last evaluation? When did you last go over her IEP? What changes may help your child achieve better results next year? Should you add a non-attorney education advocate to your "team." Do you need an independent evaluation of your child? What additional services, if any, will help him move ahead? Ask yourself: Is my child making progress at school or is she being damaged? If he or she is not making progress, take action.
So enjoy the summer, but take a little time to plan for the fall. You'll be glad you did.
Sincerely,
Education Attorneys Charles and Michalisa Pugh
|
|
FEATURE ARTICLE: FREQUENTLY ASKED QUESTIONS ABOUT SPECIAL EDUCATION.
While it can bring special joys and satisfaction, being the parent of a special needs child "ain't easy." But, of course, you know that. In addition to trying to understand your child's condition and meet your child's special needs at home, you must contend with the bewildering array of school procedures, rules, "team" meetings, services, and laws that can affect your ability to get what your child needs at school.
In our initial meetings with parents, and afterwards, certain questions come up time and again. Below are some of those questions and some short answers. We caution you in advance that there isn't room (or time!) to treat these questions in detail here. So they provide only a quick overview. They express only some of our ideas. They highlight certain laws and regulations, but may omit regulations and rules that could affect your situation directly. So keep that in mind. We include lots of links below so you can easily check the sources of our information.
Do you want more detailed information? Contact us anytime! Have other questions for a future newsletter? Send them along.
1. What's a "FAPE?" FAPE stands for a "free appropriate public education." 34 CFR Sec. 300.17. It's the legal standard a school district must meet in providing needed services for your special needs child, as set forth in the "Individualized Education Program" ("IEP"). But what's an "appropriate" public education? Reasonable people may disagree. In general, an "appropriate" special education is one that is reasonably calculated to help your child make meaningful progress in each area of need.
2. How can I find out if my child needs "special education?" Often a school will seek your permission to evaluate your child, but what if it doesn't recognize that your child needs special education? Send a letter or email to the school principal requesting a full evaluation. 34 CFR 300.301(b). Be sure to keep a copy. Describe your concerns for your child. (You will find a sample letter requesting an evaluation here on our website). Call the principal within a day or two to follow up. Of course, you should discuss your concerns with the teacher first, but if you think there's a problem, and the teacher doesn't, you should still request a full evaluation. If the school refuses to evaluate your child, or it refuses to provide special education after evaluating your child, and you are dissatisfied, consider getting an independent evaluation and seeking legal advice.
3. When must the school complete the initial evaluation? The school must complete the evaluation and provide the parent with a copy within 60 calendar days after the agency receives written parental consent for the evaluation, not counting summers. 22 Pa. Code 14.123(b). Most schools require the parent to sign a "permission to evaluate" ("PTE") form. They may claim that the "60-day clock" doesn't begin to run until the parent has signed and returned the PTE. Our advice: Find out from the principal if the school will require a "PTE" form and follow up to get the form, complete it, and return it. Keep it moving!
4. I'm dissatisfied with the school's evaluation of my child. Can I require the school to pay for an independent evaluation? Answer: It depends. If you disagree with the results of the school's evaluation of your child, you can request the school district to pay for an independent evaluation by a qualified examiner of your choice. 34 CFR 300.502(b). An evaluation can cost up to $4,500 or so, although a more typical charge would be in the $2,000 to $3,000 range. But keep in mind that the federal law actually requires the school district to file for due process to prove that it's evaluation was appropriate, if it wishes to deny your request. 34 CFR 300.502(b)(2)(ii)). Depending on many factors, including the nature of the child's disability, we think obtaining an independent evaluation can be important. You need to have confidence that your child's evaluation is both accurate and complete. Keep in mind also that the IEP team is legally required to "consider" the findings of the independent evaluator, but is not required to adopt them. 34 CFR 300.502(c)(1).
5. What's the best way to get good results at the IEP meeting? The results you get for your child at school depend on many factors, including your child's condition, your child's need for services, the personalities involved, the school district, budget considerations (which the school will not discuss with you), the school administrators' beliefs about special education, and many other factors. Some of these factors are beyond your control. But there is much you can do that is within your control, which can have a big effect on the results you get for your child. See our article on "Avoiding the Biggest IEP Mistakes Parents Make" in the April issue for some useful tips that can make a big difference in the results you get at school.
6. What's the difference between a 504 Plan and an IEP? In three words: "specially designed instruction." Lots of children have a disability, but don't require specially designed instruction, and therefore don't qualify for special education and an IEP. "Specially designed instruction" involves changing the content, the method or how instruction is delivered to address the unique needs that result from a child's disability. 34 CFR 300.39(b). "Special education" is "specially designed instruction." 34 CFR 300.39(a)(1). You can't have an egg omelette without the eggs! A child with ADHD, for example, may need to sit closer to the teacher, extra time to complete tests or assignments, or other "accommodations" that can be specified in a "504 Plan," but if he doesn't require specially designed instruction, such as modifying his text book to help him learn, he likely will not qualify for an IEP and special education. Remember that two different federal laws come into play here. A "504 Plan" is authorized by "The "Rehabilitation Act of 1973," which prohibits discrimination against disabled people, including children, by federally funded organizations, including schools; an IEP is authorized by "The Individuals with Disabilities Education Act of 2004," which requires states and school districts to meet certain federally-mandated standards in serving qualified special needs children in return for receiving federal funds for special education programs.
7. Can a district be required to send a student to a private school at public expense? Answer: Yes. A district can be ordered to reimburse a child's parents for the cost of a private school placement chosen by the parents if the district failed to provide the child with a free appropriate public education and if the private school provides the child with a "proper" education. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (S.Ct. 1993). (Click here for case). Sometimes, a district voluntarily will agree to place a child in a private facility because it recognizes that it cannot meet the child's needs in the public school. Other times, the district may oppose the parent's request for a private placement. If an informal agreement cannot be reached, the parent may need to place the request before a hearing officer by filing for "due process." Parents should be very careful before they remove their child from public school and enroll him in a private school, if they are planning to seek reimbursement of tuition from the school district. There are statutory "notice" and other requirements that must be met. Parents considering doing so should consult with an education attorney first.
8. What's a "NOREP" and am I required to sign it? The "NOREP" ("Notice of Recommended Educational Placement") is the written notice that the school is required to give you when it proposes to change your child's IEP or refuses to make changes you request. In the "parental consent" section, you can either approve or disapprove the change or refusal to act by the district. (Go here for the NOREP form). You can request a due process hearing or mediation, or you can request another school meeting. Can you simply ignore the NOREP? Yes, but we don't recommend it. First, the district may make the changes it proposes unless you file for due process or mediation within ten days of receiving the proposed NOREP. So you may lose important rights if you ignore it. Second, we encourage parents to be proactive. If you approve the changes specified in the NOREP, we recommend that you complete the form, sign and return it. If you don't approve the changes, we recommend that you take whatever action is necessary - don't simply ignore it.
9. What rights does my special education child have if he is suspended or expelled? That's a tough one! The rules under "IDEA 2004" governing school discipline are complicated and confusing. But here is some general guidance. First, the law wants to avoid punishing a child for his disability. Therefore, there are special disciplinary rules that apply to a disabled child with an IEP. Second, school officials can remove your child from the school immediately and for up to 45 days, regardless of whether he is disabled and has an IEP, if he is caught with a weapon or illegal drugs at school or a school function, or has "inflicted serious bodily injury" upon another person. 34 CFR 300.530(g). The purpose here is to protect the safety of students and others at school. Third, if your disabled child has been suspended for more than ten days in a row, or if there is a pattern of similar suspensions adding up to more than ten days, this triggers the requirement for the school to hold a "manifestation determination review" ("MDR") meeting within ten school days of the suspension to determine whether the conduct in question was caused by the child's disability. 34 CFR 300.530(e). If the school determines that the conduct was caused by the student's disability, it cannot punish the student, and must do a "functional behavioral assessment" and develop a "behavioral intervention plan" to address the student's behavior issues. 34 CFR 300.530(f). If the school determines that the student's disability did not cause the conduct, it can treat the student in the same way under the student code of conduct as a non-disabled student. Our advice: Check with an attorney regarding your rights before the "MDR" meeting. Similarly, if the school expresses an intention to expel your disabled child, don't wait until after the school board ratifies the decision to consult an attorney. All options should be examined before that happens, including filing for due process to challenge the results of the "MDR" ruling. Once the school board has issued its ruling, it may be very difficult - and costly - to file an appeal in state or federal court. Judges generally are not eager to substitute their judgment on expulsion for the judgements of school administrators and school board members.
10. What's "ESY?" "ESY" or "extended school year" services refer to special education and related services provided to a child with a disability in accordance with the child's IEP and at public expense. 34 CFR 300.106(b). There's a lot of confusion around ESY services. Let's start with what they aren't. They aren't intended to be simply a "summer camp" to provide recreational opportunities for students with IEPs. They aren't meant to serve as "summer daycare." They also aren't intended to provide a traditional "summer school" for disabled children who are performing below grade level in reading or math. So what is the purpose of ESY? One main purpose is to provide programming to prevent a disabled child from falling so far behind during the summer break that she will take far too long to get "back on track" in the fall. The regulation refers to that as "regression and recoupment." Every child loses some ground over extended breaks from school, but most "recover" within a reasonable time in the fall. For some disabled children, this is a particular problem, so they need continuous programming to prevent them from falling too far behind during the break. But "regression and recoupment" aren't the only criteria for ESY. Among the criteria that can be considered, for example, is "the extent to which successive interruptions in educational programming result in a student's withdrawal from the learning process." ( Basic Education Circular (Pa. Code), Extended School Year Eligibility). Pennsylvania regulations set forth the seven criteria for ESY eligibility. 22 Pa. Code 14.132(a). If your child is in a "target" group, such as children with autism, serious emotional disturbance, or multiple handicaps, chances are greater that he will need and qualify for ESY services, but children with other types of disabilities may qualify as well. The ESY "rules" are not especially straightforward. You may wish to read up on them in detail or, of course, consult an education attorney. Questions? Comments? Contact us anytime.
|
|
FROM THE LEGAL DESK: INFORMATION YOU CAN USE IN THE PA EDUCATION REGULATIONS.
Isn't it wonderful how the Internet has made information so much more accessible?
Parents of special needs kids now can find information on the law, for example, that they can use as they advocate for their child at school. Much of what used to be a "secret" or inaccessible to all but lawyers is now widely available on the Web.
But, of course, you have to know where to look. And, once you find what you're looking for, you need to be able to understand it and how it may apply to your situation.
Part of our mission is to help parents like you find information you can use. In most cases, you don't need to carry all of this information around in your head. You'd tip over! The key is to know where you can find it when you need it.
Finding What You Need in the Pa Education Regulations
Which brings us to the Pennsylvania education regulations. The special education regulations are found here. 22 Pa. Code chapter 14. The state regulations governing "Protected Handicapped Students" (students with "Section 504 Plans" under the (federal) Rehabilitation Act of 1973) are found here. 22 Pa. Code chapter 15. The state regulations governing "Special Education for Gifted Students" are found here. 22 Pa. Code chapter 16.
How can this information help you? First, you might be surprised by how easy it is to understand much of what is written there. You could skim the special education regulations at "Chapter 14" in about 30 minutes or so just to see what's there. It's sort of like reading a magazine. Look for the things of special interest to you. Then bookmark the regulations in your browser so you can easily return when you need to.
Second, we are sometimes surprised by the misinformation about the law that's put out there by school folks and others. We don't mean this as general indictment of school administrators or teachers. Like every profession, some are just great and some are not so great. But parents make a big mistake, in our view, if they just assume that what a school administrator or team member tells them about the law is necessarily accurate. It may be accurate - and it may be completely wrong!
The "Bottom Line"
The state regulations provide another, important piece of the "legal puzzle." How long does the school have to complete the initial evaluation? Chapter 14 supplies the answer. How many days before the initial IEP meeting is the parent entitled to receive a copy of the evaluation? The answer is here. What are the criteria for eligibility for "extended school year" services. Try here. What are the "least restrictive environment" requirements? Go here.
If you can read a cookbook, you can find answers to at least some of the questions about education procedures and the law that will come up from time to time. Of course, there are other resources you can use to obtain information. The Consultline operated by the Office of Dispute Resolution is another possible source of information on special education services and the law. Wrightslaw ( www.wrightslaw.com) is another. And there are lots of others.
Is it always simple to find the information you need? No, of course not. We're education lawyers, and we can have trouble finding (and interpreting) what we need to find sometimes. Are all of the state or federal regulations easy to understand, especially to folks not trained in the law. No, absolutely not. Can regulations like the state education regulations tell only part of the story, and thereby be misleading? Yes, and there are other relevant state regulations that we have not featured here. The law is big!
Our advice: Spend some time becoming familiar with the resources on educational services and the law. Get an idea of where and how you can get the information you need without having to accept on faith everything you are told by the school folks. Be cautious in evaluating the information you find, knowing that there can always be "another important piece of information" out there that could affect your situation. And, if in doubt, don't hesitate to contact us with questions.
|
QUICK TIP: "BECs" - ANOTHER SOURCE OF USEFUL INFORMATION
Did you know that the Pennsylvania Department of Education has a website with information about regular education and special education?
There you will find "Basic Education Circulars" ("BECs"). These descriptions of many educational topics are prepared by the Pennsylvania Department of Education. Topics of particular interest to parents of special needs kids include:
- Cyber Charter Schools
- Compulsory Attendance and Truancy Elimination Plan
- Early Intervention Transition: Preschool Programs to School-Aged Programs
- Special Education for Gifted Students
- Placement Options for Special Education
- Least Restrictive Environment (LRE) and Educational Placement for Students with IEPs
- Extended School Years Eligibility
- Special Education Services to Nonpublic School Students
- Instruction Conducted in the Home
We think the BECs are best used to provide context and information, including information on the law, on each topic. So they can be very helpful. But a word of caution. Although the website states that "All BECs published on this website are in effect until revised or removed," some of them were posted years ago. The law is a little like the ocean: "high tide" can bring changes. The "tide" can bring changes in laws and regulations. It also can bring important new opinions issued by special education hearing officers and judges in state and federal courts. The tide rolls in and it rolls out. Be careful about using the BECs as your sole source of information, especially if they date from years ago.
Questions? Comments? Contact us anytime.
| |
|
|
|
