President Obama Signs the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act

     Today President Obama signed the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act (HCPA). The HCPA expands federal hate crime protection beyond race, religion and national origen to now include the victim’s actual or perceived sexual orientation, gender, gender identity, or disability. This will allow the U.S. Justice Department to investigate and prosecute certain bias-motivated crimes based on the victim’s actual or perceived sexual orientation, gender, gender identity, or disability.

     While 45 states have some hate crime legislation: only 30 states and the District of Columbia (the District) include sexual orientation in their law, only 26 and the District include gender, only 12 and the District include gender identity, and only 30 and the District include disability.

     The HCPA also provides federal support through training and direct assistance to local law enforcement officials to help ensure bias-motivated crimes are investigated and prosecuted. In some cases the HCPA allows federal intervention if local law enforcement officials fail to act. National Public Radio has done a very nice story on this legislation which can be viewed by clicking here. 

National Center for Learning Disabilities Provides State by State Special Education Scorecards

     The National Center for Learning Disabilities has provided scorecards for every state that includes information on state special education enrollment (including the number of students with specific learning disabilities), student performance on key indicators, federal funding provided to support special education in each state, and the state’s rating by the U.S. Department of Education on its State Performance Plan. Key indicators include the percentage of students with an IEP who: graduate  with a regular diploma, drop out of school, and score proficient on state assessments in reading and math. The scorecard also provides information on how much a state received in IDEA federal funding as well as how much more it would receive if the IDEA was fully funded. The scorecards are easy to access by going to http://www.ncld.org/on-capitol-hill/policy-related-publications/special-education-scorecards and then clicking on your state.

EEOC Seeking Public Comment on Rules Implementing the ADA Amendments Act of 2008

     Last September 25, 2008 President Bush signed the Americans with Disabilties Amendments Act of 2008. The ADA Amendments Act legislatively over turned decisions by the Supreme Court that narrowed the definition of disability under the ADA. Congress found that persons with many types of impairments including epilepsy, diabetes, multiple sclerosis, intellectual disabilities, major depression, and bipolar disorder had been unable to bring ADA claims due to  narrow court  interpretations of the definition of disability. The ADA Amendments Act emphasizes that the definition of disability should be interpreted broadly to cover individuals to the maximum extent permitted by the terms of the ADA.

     Thus, the ADA Amendments Act makes it easier for an individual trying to enforce the ADA to establish that he or she has a disability and is protected under the ADA. The ADA Amendments Act retained the basic definition of disability as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. But the Act changes how these terms should be interpreted. These terms are intepreted in the proposed regulations. For example:

1. The Act directs the Equal Employment Opportunity Commission (EEOC) to revise its regulations defining the term “substantially limits”;

2. The Act and the proposed rules expand the definiton of major life activities to include reading, bending, and communicating. It also includes as major life activities major bodily functions such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions;

3. The Act and the rules state that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in determining whether a person has a disability. This means that things such as medication, medical equipment and devices, prosthetic limbs, low vision devices, and reasonable accommodations that reduce (mitigate) the impact of an impairment on an individual cannot be considered in determining if the individual has a disability;

4. The Act and rules clarify that an impairment that is episodic or in remission is still considered a disability if it substantially limits a major life activity when it is active.

     For more information on the proposed EEOC Rules interpreting the changes in the ADA Amendments Act, the EEOC has provided Questions and Answers on the Notice of Proposed Rulemaking for the ADA Amendments Act of 2008. These Questions and Answers provide information on the changes in the ADA itself, as well as information on the proposed rules. Comments are due  60 days from September 24th and can be submitted by mail, fax or electronically. Written comments should be sent to Stephen Llewellyn, Executive Officer, Executive Secretariat, Equal Employment Opportunity Commission, 131 M Street, NE., Suite 4NW08R, Room 6NE03F, Washington, DC 20507. Comments can be faxed to (202) 663-4114 and comments can be sent electronically to http://www.regulations.gov.

 

The ADA/504 and Assistance in Toileting in Public Before School and After School Programs

     I received a great question and comment to my post from last May Toileting Assistance in Child Care and the ADA . That post discussed the requirements under Title III of the ADA to provide toileting assistance to children with disabilities in privately operated day care programs. Yesterday a reader asked whether similar rules apply to public preschool and after school day care programs. The answer is yes.

     Title II of the ADA requires that state and local governmental entities provide equal access to programs and  services to qualified persons with disabilities. Public schools are covered by Title II and their before and after school child care programs are also covered. Section 504 of the Rehabilitation Act also requires equal access to public school services for children with disabilities. Equal access includes equal access to the before and after school child care programs operated by the public schools. The school must consider providing reasonable accommodations to ensure  a child with a disability has equal access to the before or after school child care program.

     For example, in an Office for Civil Rights (OCR) decision Chattahoochee County (GA) School District [see 6 ECLPR (Early Childhood Law and Policy Reporter) 26 (OCR March 5, 2008)], OCR found a school district in violation of 504 because the school district  asked a preschooler’s grandmother to pay for an aide to accompany the child to an after-school daycare program. The child had cerebral palsy and had difficulties walking, eating, and toileting. The school district claimed it could not afford the additional expense involved in providing the aide.

     The Office for Civil Rights  determined that the district had a duty to provide related aids and services unless to do so would fundamentally alter the nature of the program or create an undue burden. OCR first determined that the presence of an additional staff member to assist the child would not fundamentally alter the day care program. Then OCR determined that the district could not show that hiring an aide would create an undue hardship. The Office for Civil Rights found that the cost of an additional staff person to assist the child was only  $40 to $48 a day and was not an undue financial burden. So, the school district violated 504 and Title II of the ADA when it required the grandmother to pay for an aide to assist the child with toileting. Note that in determining whether it was an undue hardship for the school district to provide the toileting assistance for the child, OCR compares the cost of the assistance to the budget for the entire school district. In that light, an accommodation would have to be very costly to be considered an undue hardship on the school district.

Parent Centers: A resource for training and assistance for families of children with disabilities

 

          It’s back-to-school time and this posting provides information on federally funded Parent Centers that provide training and assistance to families of children with disabilities. My thanks to my long time friend Barbara Buswell, the Director of Colorado’s PEAK Parent Center, for providing this information regarding services provided by Parent Centers in general and the PEAK Parent Center specifically. Among the many valuable services that the PEAK Parent Center provides is its Annual Conference for Inclusive Education.

     The U. S. Department of Education provides federally funded Parent Centers in each state to provide training and assistance to families of children with disabilities in their states.  Every state has at least one Parent Center, and states with large populations may have more. 

     Parent Centers serve families of children ages birth to age 26 with all disability labels – physical, learning, cognitive, behavioral, language, emotional etc.  Parent Centers provide a variety of services including workshops, one-on-one support and assistance, websites, and publications.  The majority of Parent Center staff and Boards are themselves parents of children with disabilities so in addition to their knowledge, they are able to bring personal experience when assisting families.  Parent Centers help families obtain appropriate education and services for their children with special needs and work to improve education results for all children.  They connect families with community resources,  train on a variety of topics (including special education, access to general education curriculum, communication with professionals, accommodations and modifactions, etc.), and help families work to resolve problems with schools and other agencies.  Parent Centers link families with resources and best practice information in special and general education. To find the Parent Center in your state go to the Technical Assistance Alliance for Parent Centers’ website.

    PEAK Parent Center is Colorado’s Parent Training and Information Center (PTI). PEAK is a statewide organization for and by parents of children with disabilities reaching out to assist families and professionals. 

PEAK PTI Services

* Information about the special education process and parents’ rights

* Up-to-date disability information

* SPEAKout newsletter

* Parent Advisors who are available to provide information and resources in English and Spanish, assist families with problem-solving strategies, and direct callers to other community resources by telephone, email to parentadvisor@peakparent.org, or in person by appointment

* Inclusion resources that show how students can be successfully included in general education classrooms

* Referral to medical, educational, community services, and support groups

* Annual statewide conference on Inclusive Education to be held February 11-13, 2010

* Bookstore with current publications to assist families and schools like our “IEP Toolkit”

     In conclusion, Parent Training Centers are a valuable resource for families of children with disabilities. Again, to find the Parent Center in your state go to Technical Assistance Alliance for Parent Centers’ website.

 

Education Secretary Duncan Sends Letter to Chief State School Officers Regarding Seclusion & Restraint in Schools

     Last Friday, July 31st, Secretary of Education Arne Duncan sent a letter to the Chief State School Officers in each state encouraging them to review their state’s “current policies and guidelines regarding the use of retraints and seclusion in schools to ensure every student is safe and protected, and if appropriate, develop or revise its policies and guidelines.” Secretary Duncan referred to testimony before the Education and Labor Committee in the U.S. House of Representatives examining “the abusive and potentially deadly misapplication of seclusion and restraint techniques in schools.” Additionally, Secretary Duncan noted testimony by the Government Accountability Office (GAO) on Seclusions and Restraints: Selected Cases of Death and Abuse at Public and Private Schools and Treatment Centers. My readers are also aware of  the National Disability Rights Network’s Report on seclusion and restraint in schools (see NDRN Releases Shocking Report on Seclusion and Restraint in U.S. Schools).

     Moreover, Secretary Duncan urges states to publicize their policies and guidelines regarding restraint and seclusion “so that administrators, teachers, and parents understand and consent to the limited circumstances under which these techniques may be used; ensure that parents are notified when these interventions occur; and provide the resources needed to successfully implement the policies and hold school districts accountable for adhering to the guidelines.”

      Additionally, the letter encourages the Chief State School Officers to have the revised policies in place before the start of the 2009-10 school year “to help ensure that no child is subjected to the abusive or potentially deadly use of seclusion and restraint in school.” Secretary Duncan says that Department of Education (DOE) staff will contact the offices of the Chief State School Officers by August 15 to discuss the status of their State’s efforts to limit the use of seclusion and restraint. During that contact DOE staff will discuss  “relevant State laws, regulations, policies, and guidance that affect the use of seclusion and restraint, and any plans for further development and revisions.” Finally and notably, DOE expects to post the results of these discussions on its website ”to assist in the sharing of information that will help protect our students.”

     Thus, concerned citizens should be able to track the activity in their states. If there are particular issues in your state regarding the use of seclusion and restraint in your schools, I suggest you notify your State’s Department of Education as well as the U.S. Department of Education of your concerns. Click here to find your State’s Department  of Education.  Secretary Duncan designated Fran Waller of DOE’s Office of Elementary and Secondary Education as the Chief State School Officer contact for this endeavor. Her number is (202) 205-9198 and her e mail is Fran.Walter@ed.gov. It might be worth reviewing the recommendations made in the NDRN Report School is Not Supposed to Hurt: Investigative Report on Abusive Restraint and Seclusion in Schools , to see if your state has those recommendations in place. This is an opportunity to ensure that children are safe in our schools.

President Obama Issues Proclamation on the ADA’s 19th Birthday

     Sunday July 26, 2009 marked the 19th anniversary of the enactment of the Americans with Disabilities Act. President Obama issued a proclamation last Friday July 24th celebrating the passage of this landmark legislation. The President noted that the ADA “established a clear mandate agianst discrimination on the basis of disability so that people with disabilities would have an equal opportunity to achieve the American dream.”

    The President declared that “As we reflect upon the past and look toward a brighter future, we recognize that our country has made great progress. More than ever before, Americans with disabilities enjoy greater access to technology and economic self- sufficiency. More communities are accessible, more children with disabilites learn along side their peers, and more employers recognize the capabilities of people with disabilities.”

    President Obama, however, goes on to note that:

      “Despite these achievements, much work remains to be done. People with disabilities far too often  lack the choice to live in communities of their choosing; their unemployment rate is much higher than those without disabilities; they are much likelier to live in poverty; health care is out of reach for too many; and too many children with disabilities are denied a world-class education.” President Obama then points out some of the actions his Administration has taken to meet these challenges: the “Year of Community Living” to assist people living where they choose, doubling the funding for the IDEA, signing the Christopher and Dana Reeve Paralysis Act and the Children’s Health Insurance Reauthorization Act, and lifting the ban on stem cell research.

     President Bush Sr., who originally signed the ADA into law in 1990, applauded President Obama’s commemoration of the anniversary of the ADA. President Bush Sr. said: “there is no place in our society for prejudice of any kind, yet it is not that long ago when Americans with disabilities were often not given equal rights and opportunites.”

     From my personal perspective, after more than thirty three years representing persons with disabilities, we have come a long way but we had a long way to come. The Education of All Handicapped Children Act (now the IDEA) was passed by Congress in 1975. Section 504 was enacted in 1973 but the Department of Health, Education, and Welfare did not promulgate regulations to clarify and enforce the law until June 1977. The federal Fair Housing Act was not amended to protect persons with disabilities until 1988. Finally in 1990 the Americans with Disabilities Act was enacted. But due to narrow interpretations by the Supreme Court the law had to be amended just last year to reinstate the broader definition of disability that Congress originally intended.

     For someone who was in 6th Grade when the Beatles first appeared on the Ed Sullivan Show, all of this landmark legislation is in recent memory. So, President Bush Sr. is correct when he reminds us that “it is not that long ago when Americans with disabilities were not given equal rights and opportunities.” We should celebrate coming a long way in a short time, while being  mindful that “Despite these achievements, much work needs to be done.”

Happy 19th Birthday ADA! 

Justice Department Issues New Fact Sheet on the Rights of Persons with HIV or AIDS to Obtain Occupational Training and State Licensing

     Yesterday, July 16th, the US Justice Department released a technical assistance fact sheet clarifying the ADA’s requirements relating to admitting individuals with HIV or AIDS to occupational training schools and granting state licensure in occupations such as barbering, massage therapy, and home health care assistance. The fact sheet was necessary because overly broad state licensure requirements that applicants for these occupations  be free from communicable diseases  have unfairly discriminated against persons with HIV or AIDS. In the press release announcing the fact sheet, the Justice Department affirmatively states that HIV is not communicated through casual contact and excluding individuals with HIV under these licensure requirements is unnecessary and discriminates against these individuals in violation of the Americans with Disabilities Act. The fact sheet is intended to provide guidance for state licensing agencies and occupational training schools so that individuals with HIV or AIDS have an equal opportunity to pursue these professions.

    Loretta King, Acting Assistant Attorney General for the Department’s Civil Rights Division, said:

     “People with HIV or AIDS should not be denied access to their chosen profession because of outdated laws or unfounded stereotypes and fears. The Civil Rights Division of the U.S. Department of Justice is committed to the full and fair enforcement of the Americans with Disabilities Act.”

     The new fact sheet is brief, clear, to the point, and can be found on the Department of Justice website.     

Looking at the Trees in the Forest Grove Decision

     Last week the Supreme Court ruled in Forest Grove v T.A., that the IDEA authorizes reimbursement of private school tuition to parents when: (1) the public school fails to provide appropriate special education services to the child; and (2) the private school program placement is appropriate. Importantly, this is true regardless  of whether the child previously received special education or related services from the public school. Thus, parents should not be faced with the choice of placing their child in an inappropriate program, before seeking appropriate services from a private school. 

     This decision, however, does not mean that parents may ignore the public school program, place their child in a private program without notice to the school district, and just send the district the bill for the private school tuition. Under this decision, which clarifies the IDEA regulations at 34 CFR 300.148(b), to be eligible for tuition reimbursement for a private school placement parents must establish that, before the student was placed in the private program, the school district did not make a free appropriate public education available to the student in a timely manner and that the private placement is appropriate. 

     For example, in the facts underlying the Forest Grovedecision, the student had difficulties in school from the time he was in kindergarten through his junior year of high school. His teachers often commented he had difficulty paying attention in class and completing his assignments. His difficulties in school worsened when he entered high school and he was evaluated by a school psychologist at the end of his freshman year. The psychologist reviewed his school records and administered some cognitive ability tests, but decided the student did not need further testing for learning disabilities or attention deficit hyperactive disorder (ADHD). Thus, the student was not found eligible for special education. While the family did not appeal the decision at that time, it was later found by the hearing officer that the school district evaluation was legally inadequate because it did not address all areas of suspected disability, including ADHD. 

     The student completed the following school year but his problems worsened during his junior year. The family sought private professional advice resulting in the student being diagnosed with ADHD and other disabilities related to learning and memory. Since the private therapist recommended a structured residential learning environment, the parents enrolled their son in a private academy for children with special needs. Then, four days after enrolling their son in the private academy, the parents gave written notice to the school district of the private placement. The parents later requested a due process hearing regarding their son’s eligibility for special education services. 

     While awaiting the hearing, the school district re-evaluated the student and again found him ineligible for special education services and did not develop an IEP. Since the district did not offer special education services the parents continued his placement in the private academy. At the conclusion of the hearing and after considering the testimony of numerous experts, the hearing officer decided that the student was eligible for special education services because his ADHD adversely affected his educational performance. 

     Thus, the hearing officer concluded the school district had violated the IDEA by not finding the student eligible for special education services and by not providing those services. Since the school district did not provide the student with a free appropriate public education and the private placement was appropriate, the hearing officer ordered the school district to reimburse the parents the cost of the private school tuition. 

     To reach that result (to establish that the school had failed to offer an appropriate program and the private placement was appropriate), the parents bore the cost of a private evaluation, the cost of placement in a private school, the cost of an attorney and the experts who testified at the hearing, and the emotional wear and tear of the judicial process. The financial pressure may lessen because, as the prevailing party, the parents should be entitled to attorney’s fees.

     The Supreme Court, however, did not determine the amount of tuition that should be reimbursed to the family. Instead, the Court  remanded the case to the district court to decide the amount of tuition reimbursement. The IDEA provides a number of factors that may result in the cost of tuition reimbursement being reduced or denied. While Congress  authorized  tuition reimbursement in the IDEA, Congress also wanted to ensure that school districts knew that parents were not satisfied with the public school program so that school districts had an opportunity to resolve the problem before parents placed their child in a private school.  Thus, the IDEA provides at 34 CFR 300.148(d) that, before removing their child from the public school, parents notify the school district that the parents are rejecting the school district’s placement and they intend to place their child in a private program at public expense. Parents may provide that notice at an IEP meeting or, as in the Forest Grove scenario, in writing. 

     The amount of tuition reimbursement may also be reduced  if the school district asks the parents to consent to reevaluate the student  before the child is removed from the public school program and  and the parents refuse. The Supreme Court remanded the case to the district court to consider these factors in determining the amount of tuition to be reimbursed to this family. 

     In conclusion, I believe this is a wonderful decision for the educational rights of children with disabilities. If a public program is inadequate, parents should not be faced with the choice of placing their child in that program before seeking placement in a private program. But, as the family in Forest Grove found, it is likely to be an uphill battle to establish both the inadequacy of the public school program and the appropriateness of the private placement 

Supreme Court Rules the IDEA Authorizes Private-School Tuition Reimbursement

     Today, by a 6 to 3 vote, the Supreme Court ruled in Forest Grove School District v T.A. that the IDEA authorizes tuition reimbursement for private school special education services if the school district does not offer an appropriate public program, even though the student hadn’t previously received special education services through the public school.

     School districts had argued that parents must first give public school programs a chance before placing a child in a private program and seeking tuition reimbursement. But parents and advocacy groups had strongly argued that parents should not be required to place a child in an inappropriate program and see the child fail, before seeking an appropriate private program.

      Writing for the majority of the Court Justice Stevens said: “We conclude that IDEA authorizes reimbursement for the cost of special education services when a school district fails to provide a FAPE and the private-school placement is appropriate, regardless of whether the child previously received special education or related services through the public school.”