Educating Exceptional Children Changes and Challenges in Special Education

1. Educating Exceptional ChildrenChanges and Challenges in Special Education Harnett County Schools June 19, 2013 Benita N. Jones Tharrington Smith, L.L.P. 209 Fayetteville St. Raleigh, North Carolina 27601 (919) 821-4711

2. Today’s Topics Differences between 504 and IDEA Discipline of the Exceptional Student Liability Issues in Special Education

3. Students with Disabilities • Two federal laws control: • IDEA – provides a free appropriate public education (FAPE) to students with disabilities. FAPE includes special education and related services. • Section 504 – provides FAPE to students with disabilities. FAPE includes related services and accommodations/modifications.

4. Uncovering the Mystery of Section 504

5. What is the purpose of Section 504? • It is an anti-discrimination statute • It prohibits recipients of federal funds from denying otherwise qualified persons with disabilities from participation in or the benefits of its programs and activities.

6. How Section 504 is Different from the IDEA • Anti-discrimination v. funding statute • Eligibility criteria under 504 are much broader than under the IDEA • Modifications and related services may be available under 504 even if student does not need special education

7. Who is “disabled” under Section 504? • School-aged children who meet the definition of “handicapped individual” • With a physical or mental impairment that substantially limits one or more major life activities; • With a record of such impairment; or • Who is regarded as having such an impairment

8. Contrast with IDEA Eligibility • In order to be eligible for an IEP, the student must have a disability that: • Adversely affects educational performance; and • Requires specialized instruction.

9. What is special education? Special education is specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability. Specially designed instruction means adapting the content, methodology, or delivery of instruction to address a child’s unique needs and to ensure access of the child to the general curriculum.

10. Question • What if a student needs a related service but does not need special education? • This student is not a student with a disability under the IDEA and cannot receive services through that program • But services may be available under Section 504

11. Determining who has a qualifying disability. . .

12. Evaluations under 504 • If a disability is suspected, evaluate! • If parent suggests a possible disability, call a meeting! Either agree to evaluate, or document the reasons why evaluation is not warranted, and inform parents of appeal rights. • District has obligation to gather all relevant information.

13. Notes on Medical Diagnoses Ultimately, it is the district’s responsibility to gather the necessary information if a disability is suspected. Take steps to make it easier for the parent to obtain a diagnosis from the doctor.

14. 504 Eligibility Criteria

15. “Substantially limits a major life activity” • What effect does it have on his/her life? • Recent legislative changes have broadened potential categories of 504 eligibility • Major life activities include: * Caring for oneself. * Performing manual tasks. * Seeing. * Hearing. * Eating. * Sleeping. * Walking. * Standing. * Lifting. * Bending. * Speaking. * Breathing. * Learning. * Reading. * Concentrating. * Thinking. * Communicating. * Working.

16. Major expansion of eligiblity: • Can no longer consider the effect of mitigating measures such as medication, aids or equipment. (Exception: eyeglasses or contacts.) • OCR: A health plan is a mitigating measure. • Can no longer deny eligibility because the condition is not currently active: “An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” 42 U.S.C. 12102(4)(D).

17. Does Everyone Who Meets the Criteria get a 504 Plan? Not necessarily: a student may have a disability as defined under 504 but not need any special education, related services, or accommodations/modifications at school. In such a case, you should still evaluate, and if the 504 team finds no need for a 504 plan, give the parents the decision in writing along with their appeal rights.

18. Once a student is identified under 504, what next? • Eligible students are entitled to FAPE • FAPE under 504 consists of regular or special education services and related aids and services that are designed to meet the student’s individual needs as adequately as the individual needs of non-disabled students are met. • You can consider mitigating measures and remission in determining the need for services.

19. 504 Plans May Include . . . Accommodations/Modifications Related Services Emergency/crisis plans Behavior Intervention Plans

20. What is the difference between the IDEA and Section 504? • Definition of disability: • Under IDEA: child must • Have a disability (14 categories in NC); • The disability must have an adverse effect on the child’s educational performance; and • The child must require specially designed instruction (i.e., special education and related services).

21. What is the difference between the IDEA and Section 504? • Definition of disability: • Under Section 504: child must • Have a physical or mental impairment that substantially limits one or more major life activity. • Mitigating measures may not be considered (with exception of contact lenses and glasses). • Major life activities include learning, reading, concentrating and thinking.

22. What is the difference between the IDEA and Section 504? • Services provided to students: • Under IDEA, child receives special education and related services. FAPE provided by special education teachers. • Under Section 504, child does not receive special education, but can receive related services and/or accommodations and/or modifications. FAPE provided by regular education teachers. • Services under IDEA will meet requirements for Section 504.

23. Whose rights are protected under the IDEA? While the goal of the IDEA is to provide appropriate educational services to disabled students, it is largely the individual identified as the parent who has rights under the IDEA and the ability to bring a hearing on behalf of the child

24. Parental Rights Under the IDEA, parents’ ability to ensure the appropriate education of their child are established through various procedural safeguards designed to give the parent meaningful involvement in the education of their disabled child.

25. Procedural Safeguards restricted just to parents under the IDEA Access to records Meaningful participation in meetings Right for an Independent Educational Evaluation Prior Written Notice and Procedural Safeguards Notice Notices in the parent’s native language The ability to seek due process

26. Access to educational records • The right to inspect and review educational records includes: • The right to a response from the LEA for explanations and interpretations of the records; • The right to request that the LEA provide copies of the records containing the information if failure to provide those copies would effectively prevent the parent from exercising the right to inspect and review the records; and • The right to have a representative of the parent inspect and review the records. • 34 CFR 300.613(b)

27. Access to educational records • The LEA must permit parents to inspect and review all education records related to the child’s identification, evaluation, and educational placement of the child, and the provision of FAPE to the child, that are maintained or used by the district • The LEA must comply with any request without unnecessary delay and before any meeting regarding an IEP, but in no case more than 45 days • 34 CFR 300.613

28. Access to educational records • The LEA may presume that the parent has authority to inspect and review records relating to his or her child unless the LEA has been provided a copy of a court order indicating otherwise. • See 34 CFR 600.613(c)

29. Meaningful participation • In order for parents to exercise their right to meaningfully participate in all meetings with respect to the special education program of their child, • The LEA must schedule the meeting with sufficient notice to ensure they have an opportunity to attend; and • At a mutually agreeable time and place

30. When is notice sufficient? FACTS: Parents receive an Invitation to Conference, but are unable to attend the meeting at the scheduled time. They inform the school, who let the parents participate via speakerphone. The parents later complained that they were not afforded an opportunity to meaningfully participate because the meeting was not scheduled at a mutually agreeable time

31. When is notice sufficient? • Holding: For the parent. The court found that while teleconferencing is available when neither parent can attend, it is only an option when a mutually agreeable time cannot be found. In this case, the district made no attempt after the first notice to reschedule the meeting and accommodate the parents so that one of the parents could be present in-person. • Drobnicki v. Poway Unified School District, 53 IDELR 210 (9th Cir. 2009).

32. What is a meeting? • Does not include informal or unscheduled conversations between district personnel on issues such as methodology, lesson plans, or coordination of service provisions • Does not include preparatory activities or pre-meetings designed with the purpose of developing a proposed program or IEP, or in response to a request by a parent for a proposed program or service • NC 1504-1.2(b)(3)

33. The special case of “placement” decisions • Parents have a particular right to meaningfully participate in all placement decisions. • Placement decisions cannot be “predetermined” by the district. • Parents must be a member of any group that makes decisions on the educational placement of the child • If the parent cannot attend a meeting on placement, the district should attempt to arrange teleconferencing or video conferencing • NC 1504-1.2(c).

34. Notice • Prior Written Notice (the DEC 5) • A district must provide parents with prior written notice whenever it proposes or refuses “to initiate or change the identification, evaluation or educational placement of the child or the provision of FAPE to the child.” • 34 CFR 300.503(a)(1), (a)(2).

35. Procedural Safeguards Notice (Handbook on Parents’ Rights) • A copy of the procedural safeguards available to the parents must be given to the parents one time each year, as well as at these other specific times: • Upon initial referral or parent request for an evaluation • Upon receipt of the first state complaint in the school year • Upon receipt of the first due process complaint in the school year • In accordance with disciplinary procedures • At the request of the parent • 34 CFR 300.504(a)

36. Procedural Safeguards Notice (Handbook on Parents’ Rights) • A district may place the current edition of The Handbook on Parents’ Rights on its website • A parent may choose to have the Handbook emailed to them, if the district offers that as an option. • 34 CFR 300.505

37. Notice in the parents’ native language • Prior Written Notice and Procedural Safeguards Notice must meet the following criteria: • Written in English • Provided in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so. • If the native language or other mode of communication is not a written language, the public agency must take steps to ensure – • That the notice is translated orally or by other means to the parent in his or her native language • That the parent understands the content of the notice; and • That there is written evidence that the requirements of this section have been met. • NC 1504-1.4

38. Referral, Evaluation, and Identification

39. Who can refer a student for an initial evaluation? • The district or any employee of the district (typically made at referral meeting) • A parent • Request must be made in writing – email counts! • If in writing, 90 day timeline to refer, evaluate, determine eligibility and develop IEP starts immediately. • If oral request – contact principal or EC dept chair same day to inform. School system has obligation to • assist parents in completing referral and • to inform parents that referral must be in writing.

40. If the team decides not to evaluate… • That decision cannot be based on the rationale that the team is pursuing interventions instead. • If that is in your DEC5, we need to work on those DEC5s. • The decision MUST be documented in a DEC5. The intervention team cannot just decide not to test and not do a DEC5.

41. Why is the DEC5 important? • Department of Exceptional Children, form 5 • Otherwise known as “Prior Written Notice” • Written notice must be given to the parents anytime the district: • Proposes to initiate or change the identification, evaluation, or educational placement of the child, or the provision of FAPE, or • Refuses to initiate or change the identification, evaluation, or educational placement of the child, or the provision of FAPE

42. So why is this important? • It puts the parents on notice that they have one-year to file a petition for due process if they disagree with any decisions made by the team that are reflected in the DEC5 • AND, if a decision is made by the district (or the team) that is NOT reflected in a DEC5, then the statute of limitations doe not begin to run. • How long is the Statute of Limitations? • In North Carolina, one year from the date notice is given.

43. Absence of Consent for Initial Evaluation or Placement • If a child is a ward of the State, the LEA must make reasonable efforts to obtain consent of the parent for an initial evaluation unless: • the parent cannot be located after reasonable efforts • parental rights have been legally terminated • parental rights have been limited and the right to give consent has been assigned to a court-appointed representative for the child

44. Things to consider regarding eligibility determinations

45. Special Rule for Eligibility • A child shall not be determined eligible if a determinant factor is a lack of appropriate instruction in reading (including the essential components as defined by NCLB), lack of instruction in math, or limited English proficiency. • Essential components of reading instruction: • Phonemic awareness • Phonics • vocabulary development • reading fluency, including oral reading and reading comprehension

46. What is Scientifically-based Research? • “[I]nvolves the application of rigorous, systematic, and objective procedures to obtain reliable and valid knowledge relevant to education activities and programs. • Interventions for identification must be based on such research. • Special education must be based on such research “to the extent practicable.”

47. Eligibility Rules • Must complete separate DEC form for each suspected disability. • Have two options for LD identification: • Discrepancy formula • Response to Instruction (RTI) Both rely on active involvement by regular education teachers.

48. Eligibility Rules • Must document use of at least two “research based interventions” and progress made as part of the eligibility process for LD, OHI, SED, ID. This will require more regular education involvement.

49. What is special education? Special education is specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability. Specially designed instruction means adapting the content, methodology, or delivery of instruction to address a child’s unique needs and to ensure access of the child to the general curriculum.

50. Question If a student qualifies for services under the IDEA and the parent only wants related services to be provided, may a parent insist that the student be identified under Section 504 instead of the IDEA?