U.S. Department of Education Issues Part C Regulations

     Today, the Department of Education (the Department) issued the final regulations for the early intervention program under Part C of the Individuals with Disabilities Education Act (IDEA). Part C serves infants and toddlers from birth through age two with developmental delays or who have diagnosed physical or mental conditions with high probabilities of resulting in developmental delay.The final Part C regulations incorporate provisions of the 2004 amendments to Part C of the IDEA. There are 350,000 children served nationally under Part C and the Department hopes that these regulations will improve services and outcomes for these children. The regulations are intended to focus on measuring and improving outcomes with the goal of ensuring that infants and toddlers with disabilities are ready for preschool and kindergarten.

     The Department is also releasing a notice of proposed rule making to amend  the Part B regulations. Changes are being proposed regarding when a state (SEA) or local education agency (LEA) wants  to use a child’s or parent’s public benefits (like Medicaid) to pay for Part B services. The proposed regulations are intended to ensure the protection of the rights of parents and children and ensure that children receive a free appropriate public education while addressing some concerns from SEAs and LEAs regarding burdens imposed by the current regulations.

President Obama Signs Rosa’s Law Eliminating the”R” Word in Government

      On October 5th, 2010 President Obama signed S. 2781, known as Rosa’s law, requiring the federal government to replace the term “mental retardation” with “intellectual disability” in federal education, health, and labor laws. The law is named after Rosa Marcellino who is 9 years old and was born with Down syndrome. Rosa’s mother, Nina Marcellino, was moved to advocate to strip the “R” word from legislation when Rosa was referred to as having “mental retardation” in her education plan in elementary school. Maryland Senator Barbara Mikulski introduced the bill last November.

     Rosa’s mother and other parents were successful in getting  Maryland legislation passed in April 2009 that eliminated the “R” word from that state’s legislation. Senator Mikulski modeled the federal bill on the Maryland law.

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.

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.

 

The IDEA and the American Recovery and Reinvestment Act 2009

     The American Recovery and Reinvestment Act 2009 (ARRA) provides significant new funding for services for children with disabilities under the IDEA’s Parts B and C.  These additional IDEA funds are provided under three authorities: (1) $11.3 billion for IDEA Part B grants to states (2) $400 million under Part B Preschool Grants to States (children ages three to five) and (3) $500 million for Part C Grants for Infants and Families (children with disabilities from birth through age two). 

          The Department of Education plans to move quickly, awarding half of this additional IDEA funding by the end of this month, March 2009, and the other half by October 1, 2009. The funds are in addition to the regular Fiscal Year 2009 Part B grants to states. You can find information about each state’s allocation at http://www.ed.gov/about/overview/budget/statetables/recovery.html

          This additional IDEA funding is expected to be temporary and available for only one to three years. The Department of Education, therefore, expects that states and local education agencies will use the funds for “short-term investments that have the potential for long-term benefits…” Examples of possible uses of these funds include: 

  • Obtaining state-of-the art assistive technology devices and providing training in their use to enhance access to the general curriculum for students with disabilities. 

  • Providing intensive district-wide professional development for special education and regular education teachers that focuses on replicating proven innovative strategies in reading, math, writing, and science, and positive behavioral supports to improve outcomes for students with disabilities. 

  • Developing or expanding the capacity to collect and use data to improve teaching and learning. 

  • Expanding the availability and range of inclusive placement options for preschoolers with disabilities by developing the capacity of public and private preschool programs to serve children with disabilities. 

  • Hire transition coordinators to work with employers in the community to develop job placements for students with disabilities. 

          This information is based on fact sheets issued on March 7th by the Department of Education regarding implementing the American Recovery and Reinvestment Act of 2009. Please note that in the second bullet above, I emphasized using using the funds to provide professional development regarding positive behavioral supports. It has been my experience that training in the use of positive behavioral supports is often lacking and can be a critical factor in including children with disabilities in school.

 

         

Ninth Circuit Rules that Limiting Parents’ Expert’s Class Observational Time Does Not (in this instance) Violate IDEA

    In L.M. v Capistrano Unified School District, the Ninth Circuit Court of Appeals determined that limiting the parents’ classroom observational opportunities to twenty minute sessions, while the school district was allowed to observe the student in his private placement for up to three hours, did not significantly restrict the parents’ right to participate in their son’s IEP. Does this mean school districts are allowed to significantly restrict  parents’ experts classroom observational time? Not necessarily. As with most judicial decisions, this decision had unique facts. 

This case out of California, involves, L.M., a three old boy with autism and his initial placement in public school. Before his third birthday L.M. received fairly intensive early intervention services. These services included speech-language therapy, occupational therapy (OT), and a one-to-one in home behavioral program. (For more information on early intervention services please see my post:  Taking Giant Baby Steps: Early Intervention Services Under Part C).

Later, the parents paid privately for additional hours of one-to-one services. Eventually, his one to one time was increased to twenty five hours a week. In planning for his transition to public school at age three, the school district offered a program in an elementary school. The public school program in the elementary school offered individual intensive behavior instruction for four hours per week, speech language therapy for two thirty minute sessions per week, OT for thirty minutes per week, and extended school year services. The parents attended the IEP meeting but did not accept the proposed program.

 

When L.M.  turned three years old, his parents continued to privately pay for services while they met with the school district to develop an IEP for placement in the public schools. After the initial IEP meeting the parents visited the proposed elementary school twice, including once with a licensed psychologist who was the parents’ expert. The expert asked to observe the proposed program for a continuous ninety-minute period. The school, however, limited her observations to twenty minute increments based on a district wide policy intended to limit classroom disruption. The expert was allowed additional twenty minute observation sessions, but she did not do so because of the time and expense involved in commuting to the school.

 

Eventually, the parents rejected the school district’s program and requested a due process hearing. The hearing officer generally ruled for the parents, ordering the school district to reimburse the parents for  the cost of providing the in-home program from January 22, 2005 to April 7, 2005.

 

 The parents, however, were also seeking reimbursement after April 7th and relying on the fact the school district had violated a California law requiring it to provide the parents an equivalent opportunity for classroom observation when conducting an independent educational evaluation (IEE).  This California law is similar to the requirements in the IDEA regulations and for more information regarding independent evaluations and the evaluators access to the classroom please see From the Outside Looking In: Independent Educational Evaluations).  

 

The hearing officer determined that the school district violated the California statute, but the parents still had the opportunity to participate in the hearing with an expert witness prepared to provide a “knowledgeable opinion about the proposed placement.” Thus, limiting the expert’s observations to twenty minute sessions was harmless. Importantly, the hearing officer noted that the expert testified that she was still able to develop opinions about the proposed elementary school program.

 

The parents appealed the hearing officer’s decision to federal district court. The district court overturned the hearing officer’s decision, concluding that limiting the parents’ classroom access deprived them of the right to meaningfully participate in the IEP process. The school district appealed and the Ninth Circuit Court of Appeals reversed the district court, determining that limiting the expert’s classroom observation time did not significantly affect the parents’ participation in the IEP process.

 

It is important to note that in making this decision, the Ninth Circuit noted the specific facts in this scenario. The parents’ expert could have gone back for additional twenty minute observation sessions, but decide not to. Moreover, the expert conceded that she was able to provide the parents with an informed and independent opinion and she didn’t testify about specific additional information she might have obtained with the extended time. If the parents’ expert had been able to: (1) point to specific information that she could have obtained through extended classroom observation; and (2) that without that extended observation time she could not provide the parents with an informed and independent opinion, the outcome might have been different.

 

So, I think this decision does not mean parents’ experts aren’t entitled to an equal time when observing a child in the classroom. It means parents’ attorneys should make sure that time is necessary for the expert to provide an informed and independent opinion. Moreover, it is very helpful if the expert can point to specific helpful information that might be able to obtain with that additional time. Finally, this decision, though instructive, is only binding on courts in states and territories within the Ninth Circuit. These states are Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Marian Islands Oregon, and Washington.

 

Helping Parents Help their Students with Disabilities: Related Services to Support Parents

   Under the IDEA, students with disabilities must be provided the related services they need to benefit from their special education program. In most circumstances those services are provided to the child with a disability, but there are circumstances in which the IDEA requires that services be provided to the parents, and sometimes, others. In particular the IDEA states that counseling and training may be provided to the student’s parents.

 

          Parent counseling and training means assisting the parents in understanding their child’s special needs, providing the parents with information about child development, and helping parents acquire necessary skills that will help them to support the implementation of their child’s IEP or IFSP. Moreover, the IDEA specifically mentions four circumstances when parent counseling and training might be provided in conjunction with providing related services to the child with a disability:

 

(1)   Audiology services can include counseling and guidance of children, parents, and teachers regarding hearing loss;

(2)   Psychological services can include planning and managing a program of psychological counseling for children and parents;

(3)   Speech language pathology services includes counseling and guidance of parents, children, and teachers regarding speech language impairments; and

(4)   Social work services in schools include group and individual counseling with the child and family.

 

Additionally, when a child needs assistive technology services  those services can include training or technical assistance not only for the for a child with a disability, but, if appropriate, that child’s family. Assistive technology devices (AT) are items and pieces of equipment that are used to increase, maintain, or improve functional capabilities of children with disabilities. It makes sense, for example, if a child was provided with an augmentative communication device, that both the child and the child’s family may need training in how to use the device. Likewise, assistive technology services can include “Training or technical assistance for professionals (including individuals providing education or rehabilitation services), employers or other individuals who provide services to employ, or are otherwise involved in the major life functions of that child.” Again, it makes sense that if the child is using the AT device in school or on a job site that, in addition to the child, the educational professionals or employer receive training in how to use the device.

 

There are some case examples in which hearing officers have ordered school districts to provide services to the student’s parents. In In re: Student with a Disability, 50 IDELR 120 (SEA NY 2008), a New York state review officer ordered the school district to provide a parent training in multisensory strategies so that she could help her son with his reading skills at home. And in Redlands Unified School District, 49 IDELR 294 (SEA CA 2008) an administrative law judge ordered the school district to provide the student’s parents three hours a month of training. In the Redlands case the training was ordered as part of compensatory services to be provided to the student because the district had continued to use an ineffective behavior intervention plan implemented by an untrained aide. As a result, the student’s behavior deteriorated and he was unable to attend school.

 

Finally, there are circumstances in which sign language training for parents of children with communication impairments may be a required related service. The U.S. Department of Education has made it clear that if the IEP team determines that sign language training for a student’s parents is needed for the student to benefit from special education, then that training is a required related service. See Letter to Dagly, 17 IDELR 1107 (OSEP 1991) and Letter to Anonymous, 19 IDELR 586 (OSEP 1992). Of course, there may also be circumstances in which sign language interpreting (as opposed to sign language training) may be required to facilitate communication with parents who are deaf. In that circumstance, the sign language interpreting is being provided as an auxiliary aid or service under Section 504 and the Americans with Disabilities Act, and/or, it is a procedural safeguard requirement under the IDEA.

 

         

Second Edition of The Everyday Guide to Special Education Law Now Available

  Readers, at the end of May I posted that the Second Edition of my book The Everyday Guide to Special Education Law was available for preorder. The book is here and can be ordered now.

 

  Like the previous book, the second edition contains information about obtaining a free appropriate public education, IEPs, discipline, dispute resolution, extended school year, early childhood services, and 504 plans. Additionally, the new second edition has been updated to include the most recent changes in federal law including:

 • the IDEA requirements for services plans for children placed in private schools
 • how to file complaints with State Education Agencies for violations of the IDEA including obtaining compensatory services
 • timelines for resolving disputes under the IDEA and how to use “mediation” and the new “resolution process”
 • the evaluation process and response-to-intervention (RTI)

  The second edition of The Everyday Guide is priced at $24.95. Discounted prices are available for bulk orders. If you are interested you may order it now.

 

The Second Edition of The Everyday Guide to Special Education Law available for preorder

Readers as you may be aware, this blog features links for those interested in purchasing my book The Everyday Guide to Special Education Law. I have not, however, directly promoted the book in my posts. I’m going to break with that tradition because I want you to know that the first edition of the book has sold out, but that the second edition of The Everyday Guide to Special Education Law will arrive by the end of June, but can be preordered now. Like the previous book, the second edition contains information about obtaining a free appropriate public education, IEPs, discipline, dispute resolution, extended school year, early childhood services, and 504 plans. Additionally, the new second edition has been updated to include the most recent changes in federal law including:

• the IDEA requirements for services plans for children placed in private schools
• how to file complaints with State Education Agencies for violations of the IDEA including obtaining compensatory services
• timelines for resolving disputes under the IDEA and how to use “mediation” and the new “resolution process”
• the evaluation process and response-to-intervention (RTI)

Again, if you are interested you can preorder the second edition of The Everyday Guide to Special Education Law now.

That’s it for the commercial. My next post will again feature practical comments and information on special education, early intervention, and disability law.

Keeping it on the down low: The IDEA, School Records, and Confidentiality

     A child’s educational records often contain private personal information about the child and the family. In the course of determining a child’s eligibility for special education services and designing a program to meet the child’s needs, schools may acquire information about the child’s social and medical history. Sometimes, that record may include medical and other personal information about other members of the family. That information is private and confidential and the IDEA regulations at 34 CFR 300.623 outline a school district’s obligations to protect the confidentiality of that information. Schools must protect the confidentiality of personally identifiable information when that information is collected, stored, disclosed, and destroyed.

             

. Personally identifiable  means information that contains:

 (1) the name of the child, the parent, or other family member;

 (2) the child’s address;

 (3) a personal identifier such as a social security or a student number; or

 (4) a list of personal characteristics or other information that would make it possible to identify the child with a “reasonable certainty”.

 

            Moreover, school districts must assign a specific person  to be responsible  for ensuring the confidentiality of personally identifiable information. Additionally, school staff  that collect or use this information must be trained in the State’s confidentiality procedures under the IDEA and the Family Education Rights and Privacy Act (FERPA) regulations. And, finally school districts must keep a current listing of the names and positions of all employees who have access to personally identifying information. That list must be available for public inspection.

 

Access to Records and Consent to Release

 

            Of course, parents have the right to inspect and review their child’s educational records. Parent’s access rights include the right to have information in the record interpreted or explained, the right to get copies of the record, and the right to have a representative of the parent review the records.

 

            Generally, personally identifiable information may not be disclosed without parental consent. For example, if a parent wanted the school district to allow the parent’s  representative or attorney to review the records, the parent would need to consent and authorize the district to provide that access.  But, information may be released, without parent consent, to officials of participating agencies in order to comply with the IDEA. 

 

Fees for Records

 

            While parents have the right to obtain copies of their child’s educational records, the school district may charge a reasonable fee for copying the records. But the school district may not charge a fee that effectively prevents the parent from exercising their right to inspect and review the records.

 

Amending School Records

 

            Parents who believe that information contained in their child’s educational records is inaccurate, misleading, or violates the child’s privacy and other rights may ask the school to amend the child’s records. The school district must decide, within a reasonable time, whether to amend the record or not. If the district decides not  to amend the record, the district  must tell the parent and inform the parent about the right to a hearing. If parents request a hearing it must be provided. Hearings regarding amending a student’s records are conducted under the FERPA Rules at 34 CFR 99.22.  If the hearing officer determines the information is inaccurate, misleading, or violates the child’s rights, then the district must amend the record and inform the parents in writing that the record has been amended.

 

            But, even if the information is not found to be inaccurate, misleading, or to violate the child’s rights, the parents still have the right to include in the child’s records a statement commenting on the information and disagreeing with the hearing decision.  So, parents have the right to include a statement in the child’s records explaining why the parents feel that particular portion of the record is inaccurate, misleading, or violates the child’s rights. The parents’ statement must be maintained in the child’s records and if the records are disclosed  to other agencies or individuals, the parents’ statement must also be disclosed. 

 

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