My posts will feature information about special education, early intervention, and other disability related law. I will provide articles commenting on and, I hope, clarifying court cases and legislation affecting people with disabilities. I will do my best to provide information that is practical and not written in legalese.
Since I have spent over 33 years as a lawyer working on behalf of people with disabilities and their families, I have an advocate’s perspective on issues. I do, however, try to be objective so that my comments will be useful for teachers and other educators and service providers. As I said in the preface to The Everyday Guide, ”So, while the book is written from a parent perspective, the information is also intended to help those who have answered the call to become that most honorable of professions, teachers.”
I welcome comments to my posts and general questions regarding special education law, early intervention, and disability law. I don’t and won’t have all the answers, but will do my best. I am also going to try to tweet at http://twitter.com/AbilityLaw.
Great blog! Very informative. I find I encounter more issues at daycare than I do at school though. I continually address the director with my concerns. Thank you for the information. I’ll check back weekly for new blogs.
Thank you for this information, it is a great resource for both professionals as well as parents. I find that parents are often very concerned with Disability Harassment but do not know that there is an actual law that prohibits discrimination based on abusive and intimidating behavior towards students with disabilities.
You’re welcome. You’re right that, unfortunatley, many parents and educators are unaware that disability harassment is a violation of 504 and the ADA. Thanks for taking the time to provide this feedback.
Randy I loved your article on dissability harrassment. I think I would add one comment, it is also up to the parents of children who are saying harmful things to other to help them understand and stop their behavior, if they know it is occurring and not just up to the school. My grandson started kindergarten this year and is in an inclusive educaitonal setting, when he sat next to a child that had a cognitive impairment he said to him, I think you should be in pre-school instead of kindergarten. When he told his mother and myself this we were shocked, we raised him to be kind and sensitive. Well he got a clear message that this was not acceptable. We also realized we had been telling him for months, you are so big and smart you get to go to kindergarten, so our words may of had an infuluence. Keep up the good work.
RE: multi-tiered intervention model/Response to Intervention (RTI) process
I am writing from a treatment team of a Denver area community mental health center that is tasked with serving the needs of children with chronic mental health issues as well as working with families that have been court ordered to seek treatment for various reasons.
At a staff meeting we were recently made aware of a new process in place at Cherry Creek Schools that we were told will delay the process of getting children identified and getting them IEP’d. We were told that this is a new initiative that will soon be in place state (and nation) wide as part of the “No Children Left Behind” legislation.
I am writing to you because I have used your ‘Handbook for Special Education Rights’ as a guide for helping parents navigate Special Ed systems for a number of years, and this new initiative sounds like it represents a major departure from the established IEP/appeal/due process continuum.
Are you aware of any information available on this new initiative? Are you aware of any parent advocacy materials that community clinicians might be able to use to help parents navigate this new process? Is there any training available for Human Service professionals who work with the Educational System?
Thank you for your time and for any information you may be able to provide.
Thanks for your comment regarding implementing the response to intervention process (RTI) in Colorado. You can find general information about RTI in my most recent book, The Everyday Guide to Special Education Law, on pages 23 to 25. You can also find information about RTI in Colorado at the Colorado Department of Education’s website at http://www.cde.state.co.us/cdesped/RTI.asp.
Since RTI is a tier based model providing for interventions over time to support students in general education, there has been concern by parents and advocates that implementing RTI may delay determining a student’s eligibility for special education. The IDEA 2004 Regulations (see the the link in my blogroll to the right under Special Education Law), however, make clear at 34 CFR 300.301 and 300.309(c) that special education eligibility must be determined witihin 60 days of the receipt of parental consent unless the parents and district agree otherwise.
I’m trying to get information on the rights of parents with disabled children in regards to employers. I have a 9 year old Autistic child and have him on a great routine with his school, the routine is imperitive and we have accomplished alot. My employer has now decided to tranfer me to another shift that will ( I and his educators) possibly cause a loss of what he has learned and definately cause some emotional issues. I have been his primary care person. I submitted a memo to my staff and the schools IEP director included their concerns in a written document, however, my employer denied the request stating it would set a bad prescedence. One of my supervisors said that although my son met ADA, I did not. I have been with the same agency for 13 years and am just at a loss. A few people have advised me to contactthe ACLU and ADA and see if it meets any criteria. ANY info from anyone appreciated.
Thanks for your comment and question. The Americans with Disabilities Act has an “association provision” that prohibits discrimination against individuals because they have a relationship or associate with an individual with a disability, even though the individual does not have a disability. Unfortunately. the non discrimination provisions of the ADA related to persons who have a relationship to an individual with a disability does not include an obligation by the employer to provide reasonable accommodations. Thus, your employer may not be legally required to provide you an accommodation. You can find out more information regarding associational discrimination by looking at the EEOC website providing Q&A at http://www.eeoc.gov/facts/association_ada.html. This is just a general response to your question and doesn’t mean you do not have any claim under the ADA. You might want to consult with an attorney who knows disability law. Good luck.
I’m with the Disabilities Rights Center in New Hampshire. You have a very nice blog, I’ll be following it. We are considering starting a blog on disability rights in NH and are still weighing the pros and cons.
Thnaks for your comment. For Part B services you should contact your State Education Agency and/or your local school district. For Part C early childhood services you should contact the lead agency in your state for Part C services.
Peter thanks for raising Fitzerald v. Barnstable School Committee. In that case a girl’s parents had filed a lawsuit under Sec 1983 for the school district violating Title IX’s prohibition agaisst gender discrimination. The gender discrimination was based on sexual harassment of their daughter by a male student. The parents had repeatedly complained to school officials but the harassment continued. The lower courts ruled that Title IX was the “sole means of vindicating the constitutional right to be free from gender discrimination perpetrated by educational institutions.”
The Supreme Court reversed and said that since Title IX does not have a specific enforcement mechanism other than withholding federal funds, Sec. 1983 can be used to enforce Title IX. Section 504 is similar to Title IX, in that it does not have a comprehensive enforcment mechanism and the statutory remedy is withholding federal funds from the school district. Thus, Barnstable may mean 1983 can be used to enforce disability harassment claims and other disability discrimination claims under 504.
Hi Randy: I’m a disability services coordinator and am trying to find an electronic copy of your book “The Everyday Guide to Special Education Law, Second Edition” for a graduate student. I am not having any luck and wondered if you might be able to help. Class starts next week so I’m trying to find a solution quickly. Thanks very much.
Perfect, thanks so much. We are in the process of transitioning Vision Home and Community Program into a Charter-Vision Charter Acadamy by July1. YIKES. Distict is on board which is great. Hope to see you very soon. Sara
My child’s school refuses to consider IDEA eligibility under OHI, stating that FSIQ and GAI scores negate deficient scores for processing, memory, written/verbal expression, math computation, social/emotional development, motor ability, skill aqcuisition, school attendance, medical diagnoses, prior educational diagnoses/IEP’s, symptom triggers/difficulties and functioning. Each attempt at genuinely addressing their numerous errors, unsupported concepts, continuous non-compliance and fraudulent records-keeping are met with stalling tactics and harsh retaliation. Mediation and Due Process is refused at every turn. What can be done when a district operates as though it is above the law? Our finances, wits and faith are tapped.
I’m sorry you’re having to deal with this, I know it is frustrating and stressful. You might try requesting an independent evaluation (IEE) please see my postings on that process. An IEE might add support for your son’s eligibility. If the school district is not responding or clearly violating the IDEA, you could file a complaint with the state department of education. You do not need an attorney to do that. You might also consider requesting an evaluation for eligibility under Section 504. There are numerous articles on that process on my blog. Good luck
The regulations implementing sec 504 went into effect in June 1977, before your school was built. Among other things, 504 requires that new construction or significant alterations to existing buildings must meet accessibility standards. Thus, it appears these athletic facilities should have been accessible. Additionally, in 1990 the ADA went into effect and it also has accessibility guidelines. The Office for Civil Rights has been focusing on athletic events. You’ll find numerous articles discussing 504 on my blog. I suggest you bring this to the attention of the 504 Coordinator for the district and perhaps contact the entity that regulates high school athletics in your state. If not successful you should contact OCR. Good luck
Hi Randy, would you consider commenting on Lamkin v Lone Jack C-6 School District, 58 IDELR 197 (W.D. Mo. 2012). The case is used in Vol 16, Iss 4 of the Compliance Advisor to say that parents’ revocation of consent for IDEA also equates to a revocation of services under 504. Our Special Education Director is using this case as reason to deny writing 504 plans for students whose parents’ revoked IDEA services. Sincerely, “Stranded out on a limb in W.Colorado”
Hi Sara, take a look at Kimble v Douglas County, 113 LRP 7817 (D. Co 2013), this recent decision states that the school district must still develop a 504 Plan if the parent revokes consent for servces under the IDEA. Here’s the summary:
“The fact that a Colorado district convened a Section 504 meeting for a middle schooler with a disability after her parents rejected a proposed IEP and revoked their consent for special education services proved critical to its defense of the parents’ disability discrimination suit. Concluding that the district fulfilled its Section 504 obligations despite offering essentially the same program the parents had already rejected, the District Court held it was entitled to judgment on the parents’ Section 504 and Title II claims. U.S. District Judge William J. Martínez acknowledged that the development of an appropriate IEP is just one way for a district to fulfill its FAPE obligation under Section 504. As such, the district was not correct in thinking that the parents’ rejection of the proposed IEP essentially amounted to a waiver of the student’s right to Section 504 services. However, the court pointed out that the district convened a Section 504 meeting to discuss the student’s need for accommodations and modifications. “Because the statutory language of Section 504 permits a school district to meet its obligations under that statute by implementing an IEP, the court cannot find that [the district's] attempt to implement the IEP it developed violated its obligations to provide [the student] with a FAPE under Section 504 and the ADA,” Judge Martínez wrote. The court concluded that the parents could not hold the district liable for failing to provide accommodations after they rejected the proposed Section 504 plan. Nonetheless, the court observed that the district’s obligation to protect the student from disability discrimination included a duty to continue offering any accommodations or services necessary to ensure the student had the opportunity to receive FAPE. ”
It is still a little confusing whether the school distirct can then offer a 504 Plan that is identical to the IEP.