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. 

 

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.

 ***

       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.    

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