Special Education Advocacy: Protecting the Rights of Students with Disabilities

1. Special Education Advocacy:Protecting the Rights of Students with Disabilities LAF Children & Family Law Practice Group Education Project February 7, 2012

2. Welcome to LAF’s Pro Bono Education Law Project • The project • Scope of today’s training: Special Education + Special Education Discipline • What we are not covering: Representing students at expulsion hearings • Format: We will follow a case through the LAF referral process and through the law. • Refer to the manual for an acronym cheat sheet

3. Meeting the LAF Special Pro Bono Project Team Lizzy Ullman • eullman@lafchicago.org • 312.229.6359 • Contact Lizzy with questions about the panel or any cases you have accepted. Erin Han • Senior Attorney and Trainer for the Education Project Mara Block • mblock@lafchicago.org • Contact Mara if you would like to schedule a pro bono event at your firm or if you have general questions about LAF’s pro bono projects or opportunities.

4. LAF LAF helps poor families and individuals to resolve their non-criminal legal issues and get back on track. LAF's more than 80 full-time attorneys and staff provide comprehensive free legal services for civil problems, including domestic violence, consumer fraud, and unfair evictions. We make equal justice a reality in metropolitan Chicago and break the cycle of poverty. For over 40 years, LAF has been providing professional legal services to tens of thousands of people in metropolitan Chicago. LAF relies on private donations to fulfill its mission.

5. LAF Organizational Structure

6. Task Forces and Projects

7. Sources of Special Education Law • Federal Law • IDEA (Individuals with Disabilities Education Act) (20 U.S.C § 1400, et seq.) • Regulations at 34 C.F.R. §§ 300.1 et seq. • Section 504 of the Rehabilitation Act of 1973 (“Section 504”) (29 U.S.C. § 794) • Standard: Disability that “substantially limits” major life activity,” in this case learning. • Limitations: No additional discipline protections, student need not benefit from the modifications/accommodations • Regulations at 34 C.F.R. §§ 104, et seq. • Americans With Disabilities Act (“ADA”) (Provisions largely overlap with student right s under Section 504) • Key Question: Does the disability adversely affect educational performance? • Records Requests: FERPA • Illinois State Law • Illinois Administrative Code: 23 Ill. Admin. Code 226.1 et seq. • Records Requests: ISSRA (15 days to reply)

8. LAF PRO BONO PROJECT LOGISTICS: Accepting and intaking a case

9. Getting on the Panel • Email Lizzy to make sure that you are on the panel if you are interested in receiving referrals on education cases. Watch for emails to go out when cases are available. If you have a particular interest in specific types of cases or cases against particular school districts, let Lizzy know that.

10. Receiving a Referral Email Hello, Pro bono Team! LAF has a new education case ready to refer to an attorney for representation. Student is a 11-year-old girl in 5th grade at Neighborhood School. Parent is concerned because Student’s grades this year are very low, her standardized test scores are below grade level, she has been acting out in class and suspended twice for one day. Parent told the teacher she was concerned and 4 weeks ago she emailed the principal asking for Student to be evaluated for special education. The school never responded formally to her request, but the teacher mentioned that there is no funding right now for special education. Student was recently diagnosed with ADHD. Based on the information we have, we believe that Student should be evaluated for special education services and likely found eligible in the category of OHI, however, the evaluations may show that another category is more appropriate. The attorney who accepts this referral will want to begin by reading my notes, interviewing Parent and reviewing Student’s school file. The attorney will want to send a representation letter requesting an evaluation and if the school doesn’t comply file a Compliance Complaint. When the school agrees to evaluate the student, the attorney will want to participate in the domain meeting. Following the evaluation, the attorney will want to participate in the eligibility conference and IEP meetings. Please contact Lizzy at eullman@lafchicago.org if you have any questions or are interested in accepting this referral.

11. Accepting the referral • Email/call Lizzy • Ask for the conflict check information and get this conflict check run as soon as possible. • If you have no conflicts, confirm with LAF that you will accept the referral. Lizzy will arrange to have the file sent to you, electronically if possible. • Make an appointment to meet the client and to get your retainer signed.

12. What should you discuss in the initial interview • Who is your client? • Because the parent holds the child’s education rights (pursuant to federal law) in special education matter, the parent is your client in a special education case. • Get a release from the client to receive records (“cumulative/full education file”) from the school pertaining to the student. • Confirm how well the current status of the case matches the referral information you received. Confirm important information, i.e. any pending dates or communications with the school as well as the parent’s goals. • Building a rapport with your client (parent) and the student • Discuss confidentiality and need to maintain open communication • Involve the student in your advocacy when appropriate • Discuss transportation, communication issues and determine how you and the client can best work together. • Check in with your client on a weekly basis.

13. WHO IS ELIGIBLE FOR SPECIAL EDUCATION SERVICES?

14. Who is eligible for special education services? Federal law recognizes the following categories of disabilities: (34 CFR 300.8) • Mental Retardation (In Illinois will often read as a “cognitive impairment” in the IEP) • Hearing impairment • Speech or language impairment • Visual impairment • Orthopedic impairment • Autism • Deaf-Blindness • Traumatic brain injury (TBI) • Multiple disabilities (rarely used) • Emotional disturbance (ED) • Other Health Impairment (OHI) • Specific Learning Disabilities (SLD or LD) Per state law, Developmental Delay is an available category in Illinois until 9 years old.

15. Emotional Disturbance (ED) • No specific diagnosis required—simply must exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child’s educational performance: • Inability to learn that cannot be explained by intellectual, sensory, or health factors. • An inability to build or maintain satisfactory interpersonal relationships with peers and teachers • Inappropriate types of behavior or feelings under normal circumstances. • A general pervasive mood of unhappiness or depression. • A tendency to develop physical symptoms or fears associated with personal or school problems.

16. Other Health Impairment (OHI) AD/HD can be included here. You must be able to argue that the AD/HD adversely affects education.

17. Specific Learning Disabilities (SLD or LD) • See 34 CFR 330.8(c)(10), 300.307, 300.309; 23 Ill Admin. Code 226.130 • Severe discrepancy between intellectual ability and achievement (22 points or 1.5 SDs) + processing disorder • Response to research based intervention

18. Who is often overlooked? • Students exhibiting behavioral problems are often overlooked for special education eligibility. • Often the behavior is chalked up as a “choice” of the student rather than a manifestation of a disability. • Often the impact that the behaviors have on the education are not recognized because they are not academic but social and/or result in time out of class. However, these factors still constitute an impact on education. • Possible categories of eligibility: LD, ED, OHI

19. FINDING A STUDENT ELIGIBLE FOR SPECIAL EDUCATION SERVICES

20. Steps in the Eligibility Process:Overview • Request for evaluation • Domain meeting to determine areas in which to test • Evaluation by the school • Eligibility conference to determine eligibility • Drafting IEP

21. Legal Remedies Available At any point where this process derails, the parent (through her attorney) has the following legal remedies: • State compliance complaint, filed with the Illinois State Board of Education (ISBE) • This is a state investigation, so no further action is required once you file. You will not participate in a hearing or put on your case. • When to use: Only available when there is a clear legal violation, not a disagreement about what is appropriate for the child. • Due process administrative hearing, filed with the school district • An impartial administrative hearing office will be assigned by the State and an administrative hearing convened where you would put on your case before the hearing officer. • When to use: May use instead of a compliance complaint for legal violations, but may also use for disagreements about what is appropriate for the child. • Federal TRO/Injunction

22. THE SPECIAL EDUCATION TIMELINE: Qualifying Students for Services • A request for a case study evaluation (CSE) or full individual evaluation (FIE) initiates the eligibility process. • Legally, this request should be in writing, signed by the parent. • However, schools are also obligated under “Child Find” to seek out students with special education needs. • So while a request that does not meet the requirements above (is not in writing or not signed by education rights holder), may not trigger the precise legal timelines, nonetheless, one can argue that the school is put on heightened notice and should likely evaluate the student anyway.

23. Timelines when CSE has been requested (in writing) • District must decide whether to conduct the evaluation within 14 school days of receiving the request and take one of two actions (23 Ill. Admin. Code 226.110 (c)(3)): • Option #1: The district will agree to conduct the CSE. • Must convene a “domain meeting” to determine which assessments should be done to complete the CSE. • Meeting should include parent and other individuals having knowledge and skills necessary to administer and interpret evaluation data. • The school should request the parents’ signature to proceed with the testing.

24. Timelines when CSE has been requested • Option #2: If the district decides not to conduct the evaluation, then it must provide the parent with notice that conforms with the following requirements of 34 CFR 300.503(b): • Describes the refused action; • Explains why the district will not conduct the CSE; • Describe any evaluations, records, assessments or reports used in making decision not to evaluate; • States the parents’ right to legal protections (i.e. right to file for due process) and means to obtain a copy of these rights; • Gives sources for the parent to contact to obtain assistance in understanding notice; • Gives a description of other options that Team considered and the reasons why they were rejected; and • Description of other factors relevant to refusal.

25. Return to Hypo Is the school in violation of the law at this juncture in your hypothetical case?

26. Common “Stall Tactics” when a CSE is requested • “Response to scientific, research-based interventions” (RTI) • Per 23 Ill. Admin. Code 226.130 (b), while a school may use this as part of an evaluation process, it may not use a student’s participation in this process to deny an evaluation. • “School Based Problem Solving” • “Student Study Teams” (SSTs) • 504 plan

27. Hypo continued • You start to draft a compliance complaint, given the school’s failure to respond to the CSE request. In the meantime, you also draft a letter to the school (cc’ing the attorney for the district), informing the school of your representation of Student B. Within one day, the school sends you a formal denial of the request to evaluate the student. In the denial, the school states that it hasn’t yet had time to conduct RtI on the student. • What are your options now? Can you still file a compliance complaint? Is the denial valid?

28. Hypo • Suppose instead that the school responded to your representation letter, not with a denial, but with a notice of a domain meeting, to start the special education testing… • What happens next?

29. Advocating at a Domain Meeting • Probably the least contentious meeting you will attend. • Important to include all areas of suspected disability. • Don’t overlook speech and OT. • It’s up to you and the client whether you will attend.

30. Timelines when school agrees to evaluate • Once the education rights holder signs the consent for testing, the district has 60 school days (23 Ill. Admin Code 226.110(d)) to complete the following: • The testing identified at the domain meeting; • A meeting to determine the student’s eligibility for special education services; AND • An IEP meeting, if the student is deemed eligible, to develop an IEP for the student.

31. The “Eligibility Conference” Following the CSE and before the end of the 60 day timeline, the school must convene a meeting to review the testing and to determine the student’s eligibility for special education services under federal and state law. Advocacy Tip: Some schools call an eligibility conference a “multidisciplinary conference” or “MDC” (not to be confused with an MDR.)

32. Advocacy tips at the Eligibility • One of the most important meetings you will attend. • Be sure to get the assessment reports in advance of the meeting or consider rescheduling. • Review the reports and research areas of confusion • Start with the summary to get an overview • Make sure that all subtests are included. • Be sure a BASC/Brief or other behavioral scale are included if there are emotional issues. • Make sure a cognitive test was administered, even if the school wishes to rely on RtI for considering LD. • Make sure the tester is taking into consideration time spent out of school and social relationships as “impact on education”. • Make sure that any outside evaluations submitted by the parent are considered by the evaluator. • Make sure exclusionary factors like “time out of school” are not exaggerated.

33. Who should attend an Eligibility conference or IEP meeting? (See 34 CFR 300.321 and 23 Ill. Admin. Code 226.210) • Parents of the child (education rights holder…foster parent, surrogate if no parent) • General education teacher (if child is in general ed) • Special education teacher or provider (if applicable) • Advocacy Tip: Be pro-active about which teachers you want to attend. • Individual who can interpret evaluation results • Representative of public agency who can make commitments for provision of resources and be able to ensure that the services in the IEP will be implemented • Usually the SSA for TDS placements. • Bilingual specialist or teacher if needed • A person knowledgeable about positive behavior strategies, if behavior impedes learning (usually school social worker) • At discretion of parent or agency, other individuals having knowledge or special expertise regarding the child • The child where appropriate

34. What if a student is found “ineligible” for an IEP? • If you really think a student may be eligible, don’t give up if the school claims no disability: • Was the student tested in all areas of suspected disability? • Did the parent have the opportunity to present additional information about the student’s needs? • Draft a dissent right at the meeting, have everyone who agrees with you (especially the parent) sign it, and have it attached to the meeting notes. • You/parent can draft a dissent at any school meeting. • The education rights holder has a right to request an independent educational evaluation (IEE) at public expense if s/he disagrees with the district’s testing. (34 CFR 300.502) • The district must either pay for the evaluation or take the initiative to file for due process. Simply saying “no” and doing nothing is not a legally appropriate alternative, but it happens all the time if left unchecked. • The parent may not be required to provide a reason for his/her disagreement with the district’s testing. • Due Process

35. What if your client is found eligible for an IEP? • Usually, the meeting will immediately become an IEP meeting and an IEP will be drafted on the spot. • If there is insufficient time, an IEP meeting can be scheduled separately, but must still occur within the 60 day timeline. • What if you disagree with the eligibility category. Advocacy Tip: If you feel that the meeting is being rushed, don’t be afraid to slow things down and to ask for a subsequent meeting to be scheduled.

36. What are the components of an IEP • Present levels of performance and measurable annual goals • How disability affects child’s ability to access general curriculum • LRE (least restrictive environment) • Accommodations or modifications • Related Services • counseling, transportation, classroom aid, etc. • Transitional Services • For IEP to be in effect when child is 14.5 • Employment, education, independent living skills • Transfer of rights at age 18 • Start informing child 1 year earlier

37. A special word about Related Services… • The definition for “Related Services” is extremely comprehensive under 34 CFR 300.34(a): • “Related services means transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education, and includes speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, early identification and assessment of disabilities in children, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services for diagnostic or evaluation purposes. Related services also include school health services and school nurse services, social work services in schools, and parent counseling and training.” • Thus, schools cannot claim, “We do not provide that service,” if a student requires it to benefit from special education. • These are generally available irrespective of eligibility category

38. What Placement Will Meet the Student’s Needs? • This should be determined after the development of the IEP. • Sometimes this isn’t practical, so make a judgment call. • Must respect the LRE requirement…but must be LRE for the child in question • Hierarchy of possibilities • Mainstreaming • Mainstreaming with supports in the general education classroom (“inclusion”) • Mainstreaming with “pull out” • Placement in a self contained special education classroom in a mainstream school (possible pull out for lunch or extra curricular activities). • Therapeutic Day School (TDS) (also called “separate day placement”) • Residential

39. Other occasions for IEP meetings after the first IEP drafting meeting: • Annual Review: Every IEP must be reviewed and renewed on an annual basis. • “Three-year review”. At least every 3 years, the student should receive a new CSE to determine the student’s continued eligibility for services as well as to make sure that the services are still matching the disabilities. • In addition to these mandatory timeframes for holding annual IEP reviews and 3 year re-evaluations, a parent may request an IEP meeting at any time. (23 Ill. Admin. Code 226.220(b). • When such a request for an IEP meeting is received from a parent, the school has 10 days to reply to the parent’s request, with the same requirements under 34 CFR 300.503 as in response to a request for an initial evaluation. • In these situations, it is often helpful to give the case manager an outline of your concerns in advance of the meeting.

40. Returning to Hypo You successfully advocated for Student and she was found eligible for an IEP. She remained placed at her Neighborhood School with additional supports and was successful for a short time period. Now, 9 months later, she is no longer making progress under her current IEP. Student is not reaching her goals, and the school is frequently sending her home, sometimes with official suspensions and sometimes informally without officially suspending her. Please help this student benefit from her IEP and remain in school on a daily basis.

41. Other occasions for IEP meetings: Where a student is transferring from another school district in IL and already has an IEP, the new district has 2 options under 23 Ill. Admin. Code 226.50(a): • Option 1: Immediately adopt the out-of-district IEP and implement it as written. • This can happen without an IEP meeting. • The education rights holder must agree. • Option 2: Develop a new IEP for student. • The parent must give the parent notice and a date for an IEP meeting within 10 days of the student’s enrollment. • For as long as it takes to develop the new IEP, the receiving district must implement services comparable to those described in the IEP from the former district. • This option must be followed where the student is transferring from out-of-state.

42. Amending an IEP without a meeting • This is possible between annual reviews (see 34 CFR 300.324(a)(4)): • If the parent and school agree • If the Team is subsequently informed of changes Advocacy Tip: While this may seem like and often is a simple option, don’t go this route where there is a tendency toward confusion or miscommunication between the parties.

43. When will a new or amended IEP be implemented? • Pursuant to 23 Ill. Admin Code 226.220 (a), the IEP shall be implemented within 10 days.

44. BREAK

45. DISCIPLINING STUDENTS WHO ARE ELIGIBLE FOR SPECIAL EDUCATION

46. School Discipline • Student Code of Conduct. • Suspensions • Expulsions • General principle of discipline and disabilities is that students with documented disabilities should not be disciplined for behavior that is a manifestation of those disabilities.

47. Disciplining Students with IEPs • Suspensions • Special education students cannot be suspended more than 10 total days per school year. • “Informal removals” are not an appropriate way to avoid this rule. Parents should only be called for removal when a suspension notice will be served.

48. Disciplining Special Education Students: Change of Placement defined “Change of Placement” is any removal of a student as a form of discipline (as opposed to a decision by an IEP Team that a new placement is needed in order to provide the student with FAPE.) • Attempts to expel or unilaterally and permanently change the placement by a school district obviously constitute “change of placements.” • Exceeding the allowed 10 days of suspensions in a given school year also constitutes a “change of placement.” • “Change of Placement,” tends to have negative connotations under special education law and does not generally refer to a joint decision by the Team to move a student to a new school.

49. Disciplining Special Education Students : MDR • In order to legally change a special education student’s placement in the manner described above, the school must 1st hold a Manifestation Determination Review (MDR): • This is a meeting of the IEP Team • Must determine: • Whether the behavior in question is a manifestation of the student’s disability; or • Whether the conduct was a direct result of the district’s failure to implement the IEP. • If the answer to either of the prior questions is “yes,” then the school cannot proceed with the change of placement, expulsion, etc. • If the answer to both of the prior questions is “no,” then the student may be disciplined like any other non-special education student. • HOWEVER, if the student is expelled, the district must provide continued special education services during the period of the expulsion.

50. Disciplining Special Education Students (continued) • EXCEPTION to MDR Rule: 45 day emergency changes of placement • Only for the following incidents: • Carries weapon to school, on school premises, or to or at school function; • Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance while at school or at school function; or • Has inflicted serious bodily injury to another person while at school or a school function.