Florida Department of Education Required to Pay for Maintaining Specific Unique Assistive Technology Needed for Student to Take State Exams

In Seminole County (FL) School District, 58 IDELR 113 (OCR 2011), the parents of a 5th grade student with cerebral palsy and a visual impairment complained to the Office for Civil Rights (OCR) that the Florida Department of Education failed to provide their daughter with a screen- reading device as an accommodation during a state exam.

The parents had requested the screen-reader as an accommodation for the Florida Comprehensive Assessment Test (FCAT) state exam, but had been denied by the Florida Department of Education. The Department had offered her alternative accommodations such as an auditory exam format, human reader, or large print. In its investigation OCR noted that the student  was enrolled in regular education classes, but due to physical disabilities could not communicate verbally or through writing in a conventional manner. The screen-reader the student used was a Kurzweil 3000 with specialized soft ware. The Kurzweil 3000 has an auditory output, a text to speech function, and highlighting capability. It highlights each reading section word by word so that the student can focus on reading one word at a time rather than the whole page.  She needed the screen-reader and  was accustomed to using the screen-reader in her classes. Moreover, the screen reader was specifically listed on her IEP for her use in class and to be used for the FCAT exam.

 OCR rejected the alternative accommodations offered by the Department of Education because they did not meet her unique needs. Each of the offered accommodations would have deprived her of the word-by-word highlighting she was accustomed to with the reader and the student would have to look at lengthy questions that would challenge her visual disability. Finally, OCR noted that under its own policies the Department should have approved the reader. According to the Florida Department’s policy, requests for unique accommodations were approved based on two criteria: (1) whether the accommodation was regularly provided to the student in the classroom; and (2) whether it was documented on the student’s IEP.

OCR concluded that the failure to provide the screen-reader and more accessible testing denied the student a free appropriate public education in violation of 504 and Title II of the ADA. To remedy the violation, the Florida Department of Education agreed to provide a computer based test version of the FCAT with a built-in screen-reader for students who meet the requirements for having the screen reader approved as an accommodation.

Colorado District’s Failure to Evaluate Student While Implementing RTI Violated 504

In Harrison (CO) School District Two, 57 IDELR 295 (OCR 2011),  the Office for Civil Rights determined that implementing RTI strategies did not offset the school district’s failure to timely evaluate and reevaluate a student with ADHD. The student’s mother enrolled the student in the district for the 2008-09 school year and made it clear the student had ADHD. Instead of evaluating the student for special education eligibility, the school district implemented RTI strategies. The following school year, the mother repeatedly mentioned the child’s ADHD and when the student’s behavior escalated, she requested an evaluation for special education eligibility. Instead of evaluating the student, the district intensified the RTI strategies that were already in place. Unfortunately, the student received ten suspensions for his behavior. The district did finally complete an IEP for the student in June 2010. The mother filed a OCR complaint alleging the district’s denial of a free appropriate public education (FAPE) in failing to timely evaluate her son and significantly changing his placement before conducting a manifestation determination review.

 Responding to the school district’s position that it had used RTI throughout the student’s enrollment, OCR pointed out that RTI does not justify delaying or denying the evaluation of a student with a disability who is believed to need special education or related services. Moreover, students who may need special education should be evaluated in accordance with 34 CFR 104.35(a) before initial placement or a significant change in placement is determined. The OCR pointed out that this student’s behavior was consistent with ADHD, the district’s RTI strategies were not effective, and the student’s behavior escalated. The frequency and number of suspensions constituted a significant change in placement and the district changed his placement without considering whether his ADHD related to his misconduct. Thus, the student was denied FAPE.

In order to resolve the complaint, the school district agreed to a Resolution Agreement with OCR. The agreement required, among other things, that the district determine the extent to which the student was denied an appropriate education and to determine whether and what compensatory services the student is due to make up for the loss of an appropriate education. Additionally, the school district agreed to conduct 504 training for school staff, including the individuals responsible for implementing this student’s 504 Plan or IEP during the 2009-2010 school year and school employees present at the student’s 504 and IEP meetings during the 2009-2010 school year.

Senator Harkin Introduces Keeping All Students Safe Act

     Last Friday December 16 2011, Senator Tom Harkin (D. Iowa) introduced the Keeping All Students Safe Act . Similar legislation was introduced last year and passed the House of Representatives, but did not pass the Senate. The purpose of the bill is to: (1) promote the development of effective intervention and prevention practices that do not use restraint and seclusion; (2) protect all students from physical or mental abuse, aversive behavioral interventions that compromise health and safety, and any restraint imposed for purposes of coercion, discipline or convenience, or as a substitute for appropriate educational or positive behavioral interventions and supports; (3) ensure that staff are safe from the harm that can occur from inexpertly using restraints; and (4) ensure the  safety of all students and school personnel and promote positive school culture and climate.

    This bill would establish minimum standards for the use of restraint and prohibits locked seclusion in educational settings. Restraint may only be imposed if there is imminent danger of serious bodily injury. While some states do have legislation restricting the use of restraint, many states do not.



OCR Rules School District Violated 504 by Isolating Special Needs Students in a Portable Classroom

The Office for Civil Rights found  that a Tennessee school district violated Section 504 when it placed 14 middle schoolers with severe disabilities in a self-contained classroom that was housed in two portable buildings outside the main school building. Marion County (TN) School District 11 LRP 59226 (OCR May 2011). The school district had created the Child Development Class (CDC) to serve students whose disabilities required intensive educational interventions and who the school thought required direct supervision in order to benefit from participation in the general education program. An individual complained to OCR. The complainant was not concerned that the classroom was self-contained, but was very concerned about placing the students in portable buildings outside the main building on the middle school campus. She felt that, as a result of the separate and segregated setting, the students were viewed differently and were ridiculed because they were taught in separate portable buildings. The complainant said that some non-disabled students referred to the CDC program as the “dumb house”. One CDC student, who wanted to fit in with other students, was allegedly asked to “dance” by students without disabilities and was laughed at when she did.

Accepting the complaint for investigation, the Office for Civil Rights  noted at the outset that Section 504 prohibits school districts from providing students with disabilities less opportunities to participate than their typical peers and from denying them comparable facilities. As a result of its investigation, OCR determined that the CDC Program’s location isolated the students. According to OCR, “They use a separate entrance, use separate restrooms, and do not have the equal interactive opportunities as their non-disabled peers in places such as the hallways and bathrooms.” The OCR also noted that the CDC classroom was not a comparable facility, because unlike the rest of the student population, CDC students had to walk outside, potentially in bad weather, to participate in main building activities. Thus, isolating these students with disabilities in separate portable buildings violated Section 504. To remedy the violation, the school district agreed to move the CDC program into two classrooms in the main middle school building and to locate the classrooms adjacent to restrooms.

Review of The Everyday Guide to Special Education Law in the US Review of Books

The Everyday Guide to Special Education Law
Second Edition

by Randy Chapman, Esq. The Legal Center for People with
Disabilities and Older People

reviewed by Judee L. Spargur

“I wrote this book primarily to help students, parents, advocates, and other professionals better understand the Individuals with Disabilities Act (IDEA). The book is meant to be an everyday guide to special education law to help parents, advocates, students with disabilities and educators to understand the basic requirements of the IDEA.”

Parents, teachers, and other professionals who work with children with disabilities will greatly appreciate this helpful resource. It isn’t easy to find a book that helps you navigate special education law. A wide range of topics are covered, including how to understand a free and appropriate public education, identify the least restrictive environment, evaluate the needs of students with disabilities and their individualized education programs, and resolve disputes under IDEA (the Individuals with Disability Education Act). Also covered is the difficult subject of discipline and disability, children in private schools, section 504 of the Rehabilitation Act of 1973, and The Americans with Disabilities Act. Another informative section is “Back to The Beginning: Part C Early Intervention Services.” Overall, this book is rich in information about “Special Education Law” delivered in a well-written narrative.

Since 1980, attorney Randy Chapman has had a passion for his work as Director of Legal Services in Colorado, working toward the development of disability law and implementing special education law and, thus, significantly improving the quality of life for the physically challenged. In this essential guide, Chapman makes the pages come alive with his knowledge and research, and his work is not finished: “While the Education for All Handicapped Children Act may not have fulfilled all our dreams, for most it ended the nightmare of days without school. While the IDEA may not have answered all our prayers, it delivered on many of its promises.”

High School Student’s Lack of Effort/Negative Attitude Toward School May Signal Need to Reevaluate and Update 504 Plan

In Ms. H v. Montgomery County Board of Education, 56 IDELR 268 (May 12,2011) a  U.S. District Court in Alabama ruled that the mother of a high school girl with ADHD had stated a claim that her daughter’s frequent tardies, failure to complete work, and refusal to participate in class should have signaled the school district to reevaluate her 504 Plan. The school district had argued that the mother’s 504 case should be dismissed because the daughter’s academic struggles were due to her poor attitude and participation in school, not her disability. The court noted that the student had a negative attitude and put little effort into her classes.

But the court also noted that the school district had not conducted any new tests or assessments of the student between 2001 and 2009. Moreover, her 504 Plans developed during her freshman, sophomore, and junior years were nearly identical. The judge stated:

“For example, [the student's] plans were barely altered from the beginning of ninth grade through the end of eleventh grade, despite the fact that [the student] had failed classes and graduation examinations during that period.”

While, the Judge acknowledged that the girl’s lack of success may have been caused by her own actions, the fact that the school district had not reassessed her or modified her 504 Plan for years, supported denying the district’s motion to dismiss the mother’s claim.

The bottom line is the school district should not just continue the same 504 Plan and level of accommodations, without review, in the face of a student’s struggles in school. The student’s poor participation is a warning sign that, perhaps, a change is needed in the 504 Plan. 


Father’s Girlfriend Did Not Have Authority to Cancel Boy’s 504 Plan

     Some cases have more interesting facts than others. In Chicago (IL) Public Schools, 56 IDELR 54 (OCR July 2, 2010), the school district violated Section 504 when it discontinued a sixth-grader’s 504 plan at the request of the father’s girlfriend and without informing the father or conducting an evaluation. The student has ADD and ADHD and had a 504 Plan developed in April 2007 that provided a variety of accommodations to ensure his equal access to the district’s educational program. The 504 Plan was signed by the father and his girlfriend, who was living with the father at that time. Although the girlfriend was not the student’s mother, she signed the 504 Plan on a signature line designated for the mother. Two years later, in April 2009, because he was concerned  about his son’s school work, the father called the school district and asked whether his son had been receiving the accommodations required on his 504 Plan. The father was surprised to learn that the school district had discontinued  the 504 Plan in April 2008 at his girlfriend’s request.

     The school explained that in April 2008 the girlfriend called the school nurse and asked her to terminate the 504 services being provided to the student. At that time, the girlfriend stated that she felt the student was doing fine in his classes and no longer needed the accommodations. The district did not convene a meeting, conduct an evaluation, or notify the father of his rights and procedural safeguards before ceasing the 504 services. The father filed a complaint with the Office for Civil Rights alleging the 504 Plan had been illegally terminated.

     The Office for Civil Rights determined the school district should not have terminated the 504 Plan at the request of the girlfriend and without notifying the father. Even though the girlfriend “held herself out” as the student’s parent, there was nothing in the student’s file indicating she fit that definition under Illinois state law. Illinois state law referred to the IDEA definition of parent. The IDEA provides that the biological or adoptive parent is presumed the parent unless they lack the authority to make educational decisions for the child. Although the girlfriend attended the 504 planning meeting and filled in her name on “emergency contact” forms as the mother, she was not, in fact, the child’s parent. Thus, the school district was required to presume the father was the parent and was the only person authorised to make educational decisions.

     To resolve the father’s complaint, the school district agreed to provide training to school staff regarding the 504 procedural safeguards, including the requirements to notify parents of their rights under Section 504. Moreover, the district agreed to determine if the student was denied a free appropriate education during the time the 504 Plan was not in effect and, if so, what compensatory services might be necessary to make up for the educational loss. There is no mention of the outcome of the father’s relationship with the girlfriend.


The Everyday Guide and Preventing Litigation in Special Education Workbook Judged Finalists at Autism Conference

     I am proud to announce that my book The Everyday Guide to Special Education Law and the Preventing Litigation in Special Education Workbook, by Dr. Jacque Phillips and myself, were both judged as finalists in the book competition at the 2011  Reliability Gives Voice to Autism Conference in Rosemont, Illinois. Additionally, The Everyday Guide was declared a winner in the legal book category at the 2011 Greenbook Festival in San Francisco.

     The Legal Center publishes these books to provide legal information about special education law that is in clear everyday language for parents and educators.  Additionally, since the Legal Center is a private non-profit agency, the sales of our books help support our work, including my writing this blog. Our books are not written in legalese or academic educator speak and provide accurate information in a friendly easy-to-read format.

     We believe if parents, teachers, and students understand the special education process, legal disputes may be avoided or more quickly resolved. Less time in conflict means more time working together for kids. The Everyday Guide provides clear information about obtaining a free appropriate public education, the evaluation process, IEPs, extended school year, discipline, dispute resolution, least restrictive environment, private schools, early childhood services, and section 504. The Preventing Litigation in Special Education Workbook supplements The Everyday Guide by providing legal information about actual cases in a story telling format. Parents and teachers are asked to use the Workbook to predict the likely outcome of the dispute so that parents and school districts can avoid unnecessary legal entanglments in special education.

     The Everyday Guide sells for $24.95 and the Workbook is only $19.95. The two books can be purchased together for $35.00. The books are also available in e book format for only $9.95. For more information or to order these award-winning books and help support our work, please visit our website or call 800-288-1376.

Placing Student on Homebound for Most of His Senior Year Violated 504

     In Logan County(WV) School, 55 IDELR 297 (OCR 2010), the Office for Civil Rights found that the school district violated Section 504 when it placed a student with disabilities on homebound instruction most of his senior year of high school. The student with Fabry disease, a genetic condition that affects bodily functions, was placed on homebound instruction from October through the end of his senior year. As a result, he was also not able to attend his class senior party because school district policy categorically denied students on homebound instruction the opportunity to participate in extracurricular activities. After graduating, the student filed a complaint with OCR alleging the school district had discriminated against him on the basis of disability.

     During the investigation  OCR found that the student had the same 504 plan throughout his four years of high school. Moreover, the 504 plan did NOT address homebound instruction.  OCR found that the school district violated Section 504. 

     Section 504 requires that the district evaluate a student with a disability before making a significant change in placement. Here, the district significantly changed this student’s placement when it placed him on homebound instruction during most of his senior year. But the district did not reevaluate the student before the change in placement. The district had also not reevaluated him for his entire four years of high school. Once he was on homebound instruction district policy denied him access to extracurricular activities. Section 504 requires that students with disabilities have equal access to nonacademic and extracurricular activities. Thus, the district also violated Section 504 by categorically denying access to extracurricular activities to students with disabilities on homebound instruction.

     To resolve the complaint the school district agreed to revise its policies: (1)  to ensure that students with disabilities who receive homebound instruction or are unable to be in school during regular school hours are able to participate in extracurricular activities and (2) to ensure students with disabilities are reevaluated before being placed on homebound instruction. Moreover, the district agreed to evaluate the student(who had now graduated) to determine if  any educational loss  had occurred over his four years of instruction without a reevaluation and his loss of access to extracurricular activities. If there was an educational loss, the district must develop a plan to provide compensatory education services to make up for that loss. Obviously, since the student has graduated, the compensatory services will need to be provided post graduation.

Student with OCD and Tourette Syndrome Making Good Grades May Still Be Eligible for a 504 Plan

     I am often asked whether a student who has disabilities but is making good grades can be eligible for services under Section 504. In Miller (GA) School District 56 IDELR 53 (OCR 2010) the Office for Civil Rights decided that the fact a student  with  Tourette syndrome and obsessive compulsive disorder (OCD) achieved good grades in honors classes did not mean he was ineligible for a Section 504 plan.

     The student’s parent contacted the Miller County School District’s Special Education Coordinator in the fall of the student’s 9th grade year because he was being sent to the office for his behavior and was missing instructional time. The Coordinator told the parent that the student did not qualify for a 504 Plan because he makes good grades. The Coordinator made the decision without an evaluation team and did not advise the parent of her procedural rights. The next September, in  the student’s 10th Grade year at Miller County High School, the parent again contacted the Coordinator, saying she had done some research and understood that making good grades was not a reason to be ineligible for a Section 504 Plan. The parent also tried to provide doctor’s diagnoses that her son had Tourette syndrome and OCD, but the coordinator did not accept the documentation and said he would get back to her.

     In October, in order to obtain informal interventions for her son, the parent gave copies of her son’s diagnoses to his teachers along with information on how to handle his disabilities. In November the parent again contacted the Coordinator and asked for a behavior plan for the student after he had gotten into some trouble. The Coordinator said he would speak with the student’s teachers to find out what happened. Not hearing anything, the parent again contacted the Coordinator who told her that if her son was making good grades but having problems he did not necessarily qualify for a Section 504 Plan. Finally, the parent filed a complaint with OCR.

     The Office for Civil Rights found that  the school district had violated Section 504. Based on the parent’s verbal requests the district had sufficient reason to suspect the student might be a student with a disability. In rejecting the parent’s referral for 504 eligibility, the district improperly considered only the student’s grades. The OCR findings stated:

“While learning is a frequently impacted major life activity for students, the District should be cognizant that, in the elementary and secondary context, consideration of a student’s success as reflected by good grades, may not, by itself be sufficient to determine whether that student is substantially limited as to learning. Potentially relevant when a district is considering whether learning is substantially limited are factors such as a student’s ability to interact with others, a student’s ability to control his or her behavior, a student’s ability to attend school, and a student’s ability to participate in the educational program.”

     In order to resolve OCR’s finding that it violated Section 504, the district agreed to convene a meeting with individuals knowledgable about the student to determine if he is eligible for services under a 504 Plan. The district also agreed to revise its 504 procedures. In particular the district agreed to ensure that 504 eligibility committees will consider a broad range of major life activities and not only learning. The two key mistakes the school district made were (1) allowing the Coordinator to make a unilateral decision regarding the student’s 504 eligibility rather than convening a team of knowledgable individuals and (2) only considering the student’s grades rather than a variety of factors.


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