RandyChapman's Ability Law Blog

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

randychapman — Mon, 23 Jan 2012 19:03:51 +0000

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.

OSEP Letter says school districts may set timelines for parents to submit IEE reports before scheduling an IEP meeting

randychapman — Wed, 04 Jan 2012 18:55:15 +0000

In Letter to Addressee 111 LRP 68370 (OSEP 2011), the Office of Special Education Programs has stated that school districts, as part of their Independent Educational Evaluation (IEE) criteria, may require that parents provide the complete independent evaluation report by a certain time, even before setting the date for the IEP team meeting.

The OSEP was asked by letter if a Maryland school district could require the parent to deliver the report before the IEP meeting date was scheduled. It should be noted that the IDEA does not set a particular deadline for a parent to submit a private evaluation report before an IEP team meeting. The IDEA regulations, however, do provide that if a parent obtains an IEE at private expense the district must consider the evaluation in any decision regarding the provision of a free appropriate public education if the evaluation meets agency criteria.

The Office of Special Education Programs responded saying: “We believe it would be reasonable for a public agency to establish criteria, including a requirement that it receive the entire evaluation and not just the scaled scores by a certain time, to give the public agency the opportunity to review the report prior to scheduling an IEP team meeting to discuss the evaluation. Such criteria would need to be provided to parents in advance or otherwise made available publicly so that individuals seeking an independent educational evaluation are fully informed.” (emphasis added).

Please note, that while OSEP says school districts may add a requirement that parents submit IEE reports before setting the IEP team meeting time to the district’s IEE criteria, it seems to me that (1) the new requirement must be written and added to the district’s IEE criteria, and not assumed to be in effect based on this OSEP letter and (2) the school district must provide the criteria to parents in advance or otherwise make it publicly available so that parents seeking an IEE are fully informed.

Illinois School District Should Have Addressed Student’s Auditory Processing and Assistive Technology Needs

randychapman — Wed, 04 Jan 2012 17:45:49 +0000

In City of Chicago School District 299, 57 IDELR 29, (SEA Il 2011) an 8th Grade boy with specific learning disabilities exhibited problems with reading, writing, listening, and integrating sensory information. In fact, he had exhibited some of these problems as early as 1st Grade. Unfortunately, despite repeated red flags that the student needed additional support, the school district did not evaluate his auditory processing and assistive technology (AT) needs. Moreover, the district failed to write adequate, measurable goals on his IEP. Thus he was placed in general education classes without adequate support. Dissatisfied, the parent obtained independent educational evaluations (IEEs) that indicated the student needed AT in order to read and write, occupational therapy, and intensive services related to reading, writing, listening, and auditory processing. Since she believed the school district’s evaluations were inaccurate and inadequate, the parent had asked the school district to support paying for the IEEs, but her requests were ignored. Since the school district was not forthcoming in resolving these issues, the parent then requested a due process hearing to obtain appropriate services for her son.

The hearing officer found in the parent’s favor. Based on the IEEs and testimony, the hearing officer determined the district had not done adequate or frequent assessments of his auditory processing and AT needs and it had not reviewed all of the information the parent provided, including the information from the IEEs. Thus, the district’s IEP was based on inadequate evaluation information. This resulted in the continued use of an unsuccessful reading methodology and a deficient IEP, with goals that were (1) too few and (2) unmeasurable.

Finally, the Hearing Officer granted the parent’s request to place her son in a private therapeutic placement for students with significant learning disabilities. Additionally, the hearing officer ordered the school district to reimburse the parent for the cost of the IEEs and to provide her son with compensatory educational services.

Senator Harkin Introduces Keeping All Students Safe Act

randychapman — Mon, 19 Dec 2011 17:09:35 +0000

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.

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

randychapman — Thu, 03 Nov 2011 21:19:05 +0000

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.

OSEP Spanish Glossary Now Available

randychapman — Mon, 26 Sep 2011 17:44:45 +0000

The Office of Special Education Programs (OSEP) has published a Spanish Glossary with over 250 IDEA related terms in Spanish. The OSEP Spanish Glossary was developed to ensure that educational terms related to the implementation of the IDEA used in documents to promote parents’ participation are translated in a uniform and comprehensive way, across states, geographical regions and communities of Spanish speakers. The glossary was developed through a collaborative process that included focus groups of parents from a diversity of Spanish cultures, with children of various ages and a broad range of disabilities. Parent Training and Information Centers and Community Parent Resource Centers as well as schools, districts, and educators are encouraged to use the glossary to eliminate any variances in translations of these terms. The glossary should be a great resource to help Spanish-speaking parents participate in the special education process.

Similarly, my office The Legal Center for People with Disabilities and Older People has publishedGuia de la Ley de Educacion Especial a Spanish/English version of my book The Everyday Guide to Special Education Law. Guia de la Ley is printed with the Spanish and English version of the information side-by-side on every page. Thus, the Spanish and English readers are looking at the same information.These books can be purchased from our website. It was not easy to publish this resource so that the Spanish and English information is side-by-side, but we are very pleased and proud that our not for profit agency was able to do it.

U.S. Department of Education Issues Part C Regulations

randychapman — Wed, 07 Sep 2011 16:50:07 +0000

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.

U.S. District Court Affirms Validity of IDEA Regulations Requiring IEEs at Public Expense

randychapman — Wed, 24 Aug 2011 16:14:26 +0000

In Phillip and Angie C. v. Jefferson County Board of Education , 111 LRP 55718 (N.D. Ala. Aug 17, 2011), the U.S. District Court in Alabama overturned a magistrate judge’s opinion (56 IDELR 225) invalidating the IDEA regulations allowing parents to obtain independent educational evaluations(IEE) at public expense. Although at a very low-level in the federal judiciary hierarchy, the magistrate’s decision was concerning because it questioned the validity of IDEA regulations and policy that had been in effect since 1977. Moreover, sometimes school administrators and their attorneys use lower court decisions to support their actions, even if the decisions, like this one, are far out side the mainstream. Fortunately, the district court ruled that, even though the IDEA statute did not specifically state that parents can obtain an IEE at public expense, the U.S. Department of Education could require IEEs at public expense through regulations. In fact, regulations are intended to fill the gaps in the statute. Additionally, since the federal regulation requiring IEEs at public expense had been in place since 1977, school districts cannot claim they were unaware that accepting IDEA funds might require them to pay for IEEs.

In the case the district had argued that the parents were not entitled to an IEE at public expense, because they had not informed the district that the parents disagreed with the school district’s evaluation. The court, however, ruled that the mother’s refusal to sign the evaluation report, was sufficient to inform the district that the parents’ disagreed with the district’s evaluation. Moreover, the parents were not required to inform the district about the specifics of their disagreement with the district’s evaluation.The district then argued that the parents had obtained an independent evaluation without notifying the district. The court, however, ruled that parents are not required to notify the district before the parents obtain the IEE.

This is a good decision supporting the validity of the IEE process in federal regulations. I would, however, advise parents that if they disagree with the school district’s evaluation, they should be more clear in indicating their disagreement than just failing to sign the signature line on the evaluation form. It would be prudent to notify the district in writing that the parents disagree with the school district’s evaluation. If possible, it would also be helpful to advise the district about specifics of the disagreement.

President Obama issues a Proclamation Celebrating the Anniversary of the ADA

randychapman — Tue, 26 Jul 2011 15:22:08 +0000

Today is the twenty first annivesary of the passage of the Americans with Disabilities Act. President Obama issued the following proclamation celebrating that momentous event.

ANNIVERSARY OF THE AMERICANS WITH DISABILITIES ACT, 2011

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BY THE PRESIDENT OF THE UNITED STATES OF AMERICA

A PROCLAMATION

Generations of Americans with disabilities have improved our country in countless ways. Refusing to accept the world as it was, they have torn down the barriers that prohibited them from fully realizing the American dream. Their tireless efforts led to the enactment of the Americans with Disabilities Act (ADA), one of the most comprehensive pieces of civil rights legislation in our Nation’s history. On this day, we celebrate the 21st anniversary of the ADA and the progress we have made, and we reaffirm our commitment to ensure equal opportunity for all Americans.

Each day, people living with disabilities make immeasurable contributions to the diversity and vitality of our communities. Nearly one in five Americans lives with a disability. They are our family members and friends, neighbors and colleagues, and business and civic leaders. Since the passing of the ADA, persons with disabilities are leading fuller lives in neighborhoods that are more accessible and have greater access to new technologies. In our classrooms, young people with disabilities now enjoy the same educational opportunities as their peers and are gaining the tools necessary to reach their greatest potential.

Despite these advancements, there is more work to be done, and my Administration remains committed to ending all forms of discrimination and upholding the rights of Americans with disabilities. The Department of Justice continues to strengthen enforcement of the ADA by ensuring that persons with disabilities have access to community-based services that allow them to lead independent lives in the communities of their choosing. Under provisions of the Affordable Care Act, insurers will no longer be able to engage in the discriminatory practice of denying coverage based on pre-existing conditions, and Americans with disabilities will have greater control over their health care choices. And last year, I signed an Executive Order establishing the Federal Government as a model employer for individuals with disabilities, placing a special focus on recruitment and retention of public servants with disabilities across Federal agencies.

Through the ADA, America was the first country in the world to comprehensively declare equality for citizens with disabilities. To continue promoting these principles, we have joined in signing the Convention on the Rights of Persons with Disabilities. At its core, this Convention promotes equality.

It seeks to ensure that persons with disabilities enjoy the same rights and opportunities as all people, and are able to lead their lives as do other individuals.

Eventual ratification of this Convention would represent another important step in our forty-plus years of protecting disability rights. It would offer us a platform to encourage other countries to join and implement the Convention. Broad implementation would mean greater protections and benefits abroad for millions of Americans with disabilities, including our veterans, who travel, conduct business, study, reside, or retire overseas. In encouraging other countries to join and implement the Convention, we also could help level the playing field to the benefit of American companies, who already meet high standards under United States domestic law. Improved disabilities standards abroad would also afford American businesses increased opportunities to export innovative products and technologies, stimulating job creation at home.

Equal access, equal opportunity, and the freedom to make of our lives what we will are principles upon which our Nation was founded, and they continue to guide our efforts to perfect our Union. Together, we can ensure our country is not deprived of the full talents and contributions of the approximately 54 million Americans living with disabilities, and we will move forward with the work of providing pathways to opportunity to all of our people.

NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim Tuesday, July 26, 2011, the Anniversary of the Americans with Disabilities Act. I encourage Americans across our Nation to celebrate the 21st anniversary of this civil rights law and the many contributions of individuals with disabilities.

IN WITNESS WHEREOF, I have hereunto set my hand this twenty-fifth day of July, in the year of our Lord two thousand eleven, and of the Independence of the United States of America the two hundred and thirty-sixth.

BARACK OBAMA

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

randychapman — Fri, 22 Jul 2011 16:59:59 +0000

 
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.”