Protection from Retaliation

       Sometimes individuals are intimidated or harassed because they are trying to enforce or help others to enforce the right to be free from disability based discrimination under Section 504 and  the Americans with Disabilities Act (ADA). Both of these laws protect individuals with disabilities from discrimination. Additionally, these laws prohibit retaliation against a person with a disability (or persons who are acting on behalf of a person with a disability) for trying to enforce their rights under these civil rights laws. Individuals with disabilities and their families are often dependant on service providers such as schools and others for their services. Individuals are often reluctant to question how services are delivered because they fear they will face a reduction or termination of services as payback.

     The anti-retaliation provisions of section 504 and the ADA help allay that fear of payback so that individuals are not as afraid to enforce their rights or the rights of their family members and associates with disabilities.  The anti-retaliation provisions of Section 504 (note Section 504 applies the retaliation protections in Section 102 of Title I of the Civil Rights Act of 2004) and the ADA is very broad. It is a violation of Section 504 and the ADA to intimidate, threaten, coerce, or discriminate against an individual who has engaged in a protected activity. Protected activities include filing a complaint, testifying, assisting in, or participating in an investigation or hearing under Section 504 or the ADA. The key elements in a complaint for retaliation are:

1.     The person making the retaliation claim engaged in a protected activity (they asserted a right, filed a complaint, testified, assisted or participated in an investigation or hearing under Section 504 or the ADA);

2.     The entity that it is alleged to have retaliated knew the person engaged in a protected activity;

3.     That entity took some action against the individual making the complaint and that action was at the same time that individual engaged in the protected activity; and

4.     A causal connection can be reasonably inferred between the retaliatory action taken by the entity and the person engaging in the protected activity. 

    

A good example of retaliation is the Ninth Circuit Court of Appeals case of Settlegood v. Portland Public Schools . In that case, Pamela Settlegood was hired by the Portland Public Schools as an adapted P.E. teacher, on a probationary basis, to teach students with disabilities in various schools in the school district. She soon became concerned about how her students were treated. As an itinerant teacher, she had trouble finding a place to teach her students, she often lacked material and equipment, and the equipment she did find was often inadequate and unsafe. After she complained in writing to her supervisors that her students were not getting services they were entitled to under the IDEA and Section 504, her evaluations became more negative and her probationary contract was not renewed. 

      Ms Settlegood then successfully sued the school district for retaliating against her for trying to protect the rights of her students with disabilities. She was able to show that (1) she engaged in a protected activity (aggressively complaining about the lack of appropriate services and equipment for her students with disabilities); (2) the school district knew she had engaged in that activity; (3) the school district took action against her by school personnel giving her poor evaluations and not renewing her contract; and (4) it can be reasonably be inferred that her poor evaluations and the non renewal of her contract was caused by her efforts to enforce the rights of her students with disabilities. 

     As noted, individuals with disabilities and their family members who depend on others for services, are often reluctant to enforce their rights because they fear their services might be terminated or reduced.  Anti- retaliation legislation deters agencies from retaliating against individuals who try to enforce their civil right and helps assure individuals that they may safely pursue their rights without risking losing their services. For more information about the ADA, Section 504, protection from retaliation and how to file complaints see the Office for Civil Rights (OCR) within the Department of Education, OCR within the Department of Health and Human Services, and the Equal Employment Opportunity Commission. Some states also have laws protecting individuals with disabilities from retaliation, so it might be important to check your state statutes.

We Can Work it Out Part II: Using Mediation to Resolve Disputes Under The IDEA 2004

 The last post began a short series of articles on dispute resolution under the IDEA 2004. That article ended with the requirements for filing a due process complaint notice. This post covers mediation and next week’s post will cover the new resolution process.

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       Mediation is a process in which an objective and impartial third party (the mediator) works with both sides of a dispute to help them reach an agreement to resolve the dispute. Unlike a hearing officer, the mediator does not weigh evidence and resolve legal issues. Under the IDEA, the mediator’s job is to help the parents and school district reach an agreement. In that process the mediator will meet with each side to the dispute, separately or together (depending on the style of the mediator) and try to resolve disagreement.

       For the mediation process to work, the participants need to be able to speak freely. Thus, the discussions that occur in mediation under the IDEA are confidential.  Prior to the IDEA 2004, mediation agreements resolving special education disputes were not legally binding. The agreements were voluntary and each side relied on the other’s good will to comply with the agreement. Congress, however, received comments that since mediation agreements could not be legally enforced, parents and school districts were sometimes reluctant to use the process. Thus, in the IDEA 2004, Congress required that if an agreement is reached in mediation, it can be enforced in State court or a United States district court.  

Mediation can be used to resolve any special education issue, including issues that occur before a due process complaint notice is filed. So, mediation can be used to resolve disagreements without requesting a due process hearing or it can be used to settle disputes after a hearing has been requested. Moreover, to encourage mediation, the IDEA requires that the state education agency  maintain a list of qualified mediators and bear the cost of the mediation process.

So, mediation does not cost the parents or the school districts other than their time in the mediation. Mediation is voluntary and both parents and the school district must agree for the mediation to occur. Additionally, the state education agency must assure that mediation is not used to deny or delay a parent’s right to a due process hearing. Thus, by agreeing to mediation neither the parents nor the school district give up the right to pursue a due process hearing if the mediation is unsuccessful.

      Finally, while this article focuses on resolving disputes regarding children with disabilities under Part B of the IDEA (services for children aged three to twenty-on), mediation can also be used to resolve disagreements under Part C (services for infants and toddlers from birth through age two).  

Protecting Infants and Toddlers with Disabilities from Abuse: Connecting CAPTA with the IDEA

      Congress originally passed the Child Abuse Prevention and Treatment Act (CAPTA) in 1974 to provide federal funding to states to support Child Protective Service Agencies to help prevent child abuse. Over the years, CAPTA has been amended several times, most recently in 2003 by the Keeping Families and Children Safe Act. Additionally, research has found that children who are abused or neglected often have physical, mental, or emotional problems requiring specialized intervention. Thus, the 2003 CAPTA amendments require that states that receive CAPTA funds develop procedures to refer children who are under the age of three and are involved in a substantiated case of abuse or neglect to Early Intervention Services under Part C of the IDEA. The IDEA’s Part C requires that states have a coordinated interagency program of early intervention services for children with disabilities from birth through age two. Moreover, when the IDEA was amended in 2004, Congress also required ,through Part C, that states have procedures for referring a child who is under the age of three and who is involved in a substantiated case of abuse or neglect for early intervention services under Part C.    

Historically, child welfare workers and early intervention providers have done their good work from within their respective systems, often unaware of how the other system worked. There are differences in the two systems. Child welfare services’ mission is generally keeping children safe. To that end, child welfare workers may work to strengthen families, but their primary focus is protecting the child. Unlike early intervention services, child welfare services may require court involvement, termination of parental rights, and many abused or neglected children are placed out of the home in foster care. Again, while child welfare workers may try to support the family, their mission is to keep the child safe, not to ensure family input and choice in the child protection process.

   On the other hand, under the IDEA Part C early intervention services focus on working cooperatively with families to ensure that infants and toddlers with disabilities receive the early intervention services they need. Under Part C, early intervention services are designed with family involvement and provided through an Individualized Family Service Plan (IFSP). Part C emphasizes family choice and input. Moreover, Part C contains specific procedural safeguards for families including the right to informed consent to evaluation and services, appeal rights, and provides for surrogate parents for children without parents. Connecting infants and toddlers who have been abused or neglected to Part C early intervention services requires that the two systems, child welfare and early intervention providers, work together. It is important, therefore, that child welfare workers and early intervention service providers understand how both systems work. 

   To that end, many states have developed interagency agreements between the state child welfare agency and lead agency for Part C early intervention services to ensure cooperation between the two systems. Moreover, many state and local representatives of the two systems have provided conferences, regularly scheduled meetings, and cross trainings to help their colleagues understand how the systems can work together on behalf of children. For information on what is happening in your state you can contact your state child welfare agency through the Child Information Gateway website and/or your state’s Part C lead agency which you can find at the National Early Childhood Technical Assistance Center (NECTAC) website.           

Special Education and Surrogate Parents

             Joanna was frustrated. She had just been assigned to be the social worker for a three year old girl with fetal alcohol syndrome who was in the hospital. The little girl was scheduled to be assessed by the school district to determine if she should receive special education services. Joanna knew that the girl’s parents had to sign and consent to the assessment, but the father was unknown and she hadn’t been able to find the mother. The school district said they needed someone to consent to the assessment but that, legally, Joanna could not. Joanna was sure that there was something more the school district had to do to resolve this dilemma, but she wasn’t sure what. 

            While educational and early childhood services under the Individuals with Disabilities Education Act (IDEA) are provided to children, a child’s right to those services is generally enforced by parents. But some children with disabilities do not have parents or their parents cannot be found. Who looks out for children without parents? The IDEA has a process that appoints a surrogate parent to protect the rights of children with disabilities who don’t have parents. 

           Whenever the parents of a child are unknown, can’t be located, or the child is a ward of the State, an individual must be assigned to act as a surrogate parent for the child in the educational process. The surrogate parent has the rights that any parent would have to make sure that the child with a disability receives appropriate educational services. Thus, the surrogate parent can consent to a child being assessed and placed in special education. The surrogate parent can review the child’s school records and attend individualized educational program (IEP) meetings. Finally, if there is a disagreement between the surrogate parent and the school district regarding the child’s school program, the surrogate parent has the authority and the responsibility to use dispute resolution procedures. Surrogate parents, however, are only appointed to protect the child’s rights in the education process. So, the surrogate parent does not have the authority to act on behalf of the child outside that process.  For example, the surrogate parent cannot consent to medical care or make other treatment decisions for the child that are not educational decisions.   

          Since the surrogate parent is responsible for making educational decisions for the child, the surrogate parent must have the skills and knowledge needed to be able to support the child in the educational process. The surrogate parent should. therefore, know about the child’s rights under the IDEA and the child’s educational needs. School districts and state departments of education often provide training to prospective surrogate parents so they can learn about the IDEA. And, once appointed, a surrogate parent has the right to meet the child, look at the child’s school records, and talk to teachers and other professionals to learn about the child’s educational needs.  

           It is important that the surrogate parent not have personal or professional interests that might conflict with the child’s best interests. For example, if the surrogate parent also worked for the school district serving the child, the surrogate parent’s judgment might be affected by that working relationship. So, to ensure objectivity, the surrogate parent cannot be an employee of the state department of education, the school district, or any other agency that is involved in the child’s education or care. 

            Children with disabilities who do not have parents are often in the care of departments of social services and similar agencies. Since those agencies are involved in the care of the child, social workers cannot be surrogate parents for children served by their agency. That does not mean that a social worker could not attend an IEP meeting or other educational meetings. In fact, the social worker would likely be very helpful in the educational planning process. But the social worker cannot be the surrogate parent.              In some circumstances a child may have been assigned a guardian ad litem. A guardian ad litem is a person, usually an attorney, appointed by a court to act in the best interests of a child. If a court has given the guardian ad litem specific authority  to make educational or early childhood service decisions for the child, then the guardian ad litem fulfils the role of parent in that process. Consequently, a  surrogate parent is not necessary.  

           Anyone who believes that a child with a disability may need a surrogate parent can contact the appropriate school district to have a child’s need for a surrogate parent determined.  If you believe a child may need a surrogate parent, or you would like to be a surrogate parent for a child, you should contact the director of special education for the school district or contact your state department of education. The surrogate parent requirement also applies to Part C of the IDEA providing early intervention services to children with disabilities under age three. If you are concerned about appointing a surrogate parent for a child under the age of three, then you should contact your state’s lead agency that is responsible for providing Part C services.

             Being a Surrogate Parent  

           Being a surrogate parent involves getting to know the child, reviewing school records and other information, and talking with teachers and other service providers. It involves participating in IEP meetings. The surrogate parent, like any parent, makes points and asks questions in these meetings to make sure the child is receiving appropriate services. And, if the surrogate parent believes the child is not receiving appropriate services, the surrogate parent should use the IDEA’s dispute resolution procedures to enforce the child’s right to a free appropriate public education. Being a surrogate parent means providing a valuable service protecting the educational rights of children with disabilities who do not have parents.    

Taking Giant Baby Steps: Early Intervention Services Under Part C

Carmella had just returned from her pediatrician’s office with the news that Edward, her beautiful eleven-month-old boy, may have autism. Carmella had worried that Edward had a disability because she had noticed that he didn’t seem to be developing the same as other children his age. Edward didn’t babble or point or wave bye-bye like other children she knew. He didn’t respond to his name and seemed to be in his own world. The pediatrician had said that while she thought Edward may have autism, it would be best to get additional assessments. She told Carmella that Edward could be eligible for early intervention services under a law called Part C. These early intervention services could make a significant difference in Edward’s development. Part C would also help with getting additional evaluations. Carmella knew there was a law requiring special education for school children with disabilities. She had known kids in special education when she was in high school. But Edward was not even a year old and too young for school. Are there really services for children as young as Edward?  

           Yes, the Individuals with Disabilities Education Act (IDEA), under a section called Part C, requires that infants and toddlers with disabilities receive early intervention services to enhance their development and to minimize developmental delay. The following are some questions and answers regarding early intervention services for infants, toddlers, and their families: 

 1.      What is Part C of the IDEA? Part C requires that each state have a statewide system to deliver early intervention services to children with disabilities from birth through age two. It is different than the IDEA’s Part B which requires that children with disabilities aged three to twenty-one receive a free appropriate public education. Part C can provide services to meet the infant’s or toddler’s needs and to help the family meet their child’s special needs.     

   2.   What are early intervention services? Early intervention services are special services for infants and toddlers with disabilities and their families. These services should identify and meet the children’s needs in the developmental areas of physical development, cognitive development, communication, social or emotional development, and adaptive development. Some examples of early intervention services include special instruction, occupational and physical therapy, speech-language pathology and audiology services, sign language and cued language services, service coordination, family training, counseling, and home visits. 

3.  Who are infants and toddlers with disabilities? An infant or toddler with a disability is a child, under the age of three, who needs early intervention services because the child is experiencing a developmental delay or the child has been diagnosed with a physical or mental condition that has a high probability of resulting in a developmental delay. A developmental delay means that the child is developing slower than normal in one or more areas. For example, at eleven months, Carmella’s son, Edward, was still not responding to his name, babbling, waving bye-bye, or pointing. Children normally have those skills at that age. You can find information on developmental milestones for young children at the PBS website www.pbs.org/wholechild/abc . 

4.    How do I find out if a child has a disability and is eligible for early intervention services?Children are determined eligible through a multidisciplinary evaluation. Multidisciplinary means that the evaluation is done by a team that includes qualified people who have different areas of training and experience. The team will observe the child, ask the child to do things, talk with the child and parents, and gather other information. If the team determines that the child needs early intervention services because the child is experiencing a developmental delay or has a diagnosed physical or mental condition, then the child will be eligible for services. 

 5.     Who pays for the evaluation?The IDEA requires that evaluations and assessments be at no cost to the parents. The evaluations are paid by state and federal money. 

 6.     How does the child get the early intervention services the child needs?The child will be assessed to identify their unique strengths and needs and the services that are required to meet those needs. There will also be a discussion about how to help the family meet the child’s developmental needs. A team, that includes the family, will meet to develop an Individualized Family Service Plan (IFSP). That plan will outline the services for the child and the family, how and where the services will be delivered, and who will deliver them. Early intervention services may be delivered through a variety of local providers and agencies. The IFSP will identify a service coordinator who is responsible for coordinating services through these local providers and implementing the plan. The service coordinator is also responsible for making sure the plan is reviewed as the child develops or needs change. 

7.     Where do I go in my state to find out about early intervention services under Part C? Each state has a lead agency that is responsible for ensuring that there is statewide system to deliver early intervention services. States vary as to which agencies are responsible as the lead agency. For a list of the lead agencies in each state and for more information on Part C of the IDEA you can go to the website of the National Early Intervention and Technical Assistance Center  (NECTAC). 

  No parent wants to hear that their child has special needs because the child is not developing like other children. But early intervention services can improve the child’s rate of development, minimize further developmental delay, and help the family to meet the child’s needs. Service coordination under Part C can help connect the family to the services and supports that they need in their community. Early intervention services can make a difference. 

“Natural Environment” Under Part C Includes Preschool and Daycare Settings

Part C of the IDEA provides early intervention services for infants and toddlers with disabilities. Under Part C infants and toddlers are children from birth through age two. Similar to the IDEA Part B requirement that students with disabilities be placed in the least restrictive environment, Part C requires that infants and toddlers receive services in the natural environment. Natural environment means providing services in the home and community settings in which children without disabilities participate. But, does that mean early intervention services cannot be provided in a preschool or day care setting? 

In a case decided last June, Andrew M. v. Delaware County Office of Mental Health, 490 F. 3d 337 (3rd Cir. 2007), the court said that natural environment is not limited to homes, child care centers and community settings, but can include a preschool setting. In this case, the Delaware County Office of Mental Health, the agency responsible for providing early intervention services, tried to limit the term natural environment to only the child’s home and did not allow the child to be served in a preschool setting. Serving the child in the home required that a parent or other caregiver be present and meant the child would be served isolated from other children. The court rejected that narrow view.

This makes perfect sense. Today, there are many families in which both parents work and are not available for their child to receive services in the home. Including preschool and day care settings as natural environments allows greater flexibility for families and will likely facilitate serving children in settings with other children.

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