28 October 2013

What are Some of the Timelines Involved with Identifying the Need for and Establishing an IEP?

IDEA provides that initial evaluations must be conducted within 60 calendar days of receiving parental consent, or within a State-established timeframe. (34 CFR §300.301(c)(l)(i)).  The only exception to the 60-day timeframe is when the parent of a child repeatedly fails, or refuses to, produce the child for an evaluation, or the child enrolls in a school of another public agency (under certain limited circumstances). (34 CFR §300.30I (c)(1)(ii)). The IDEA does not provide the U.S. Department of Education with the flexibility to waive this requirement.  However, IDEA permits States to establish their own timeframes for the completion of evaluations.  (34 CFR §300.30 l(c)(1)(ii)). Your State’s timeframe can be located on the State website or by calling your State’s department of education. 

22 July 2013

What is Compensatory Education?

The IDEA requires States that receive federal funding to provide a free appropriate public education ("FAPE") to all disabled students.  Under the IDEA, a school district's obligations to provide and a student's right to receive a FAPE both terminate when the child reaches the age of twenty-one.  The core of the entitlement to a FAPE is provided by the IEP, the package of special educational and related services designed to meet the unique needs of the disabled child. The IDEA does not set forth definitive guidelines for the formulation of an IEP, but at a minimum, the IEP must be 'reasonably calculated' to enable the child to receive “meaningful educational benefits” in light of the student's intellectual abilities. The right to a FAPE ensures that students with special education needs receive the type of education that will prepare them for further education, employment, and independent living.

18 July 2013

Frequently Used IDEA Rules and their Citations

            In 1975, Congress enacted Public Law 94-142, the Education of All Handicapped Students Act of 1975.  This law has been amended several times, most recently in 2004. In 1990, the name of the Act was changed to the Individuals with Disabilities Education Act (“IDEA”).  The legal citation to IDEA is 20 USC §1400 et seq.
            IDEA directs each state to provide the necessary programs and services to ensure that students with disabilities receive an appropriate education.  It also provides a variety of procedures that students and their parents can use to safeguard their rights. In return, the states receive federal funds for special education.  Congress directed the United States Department of Education to issue rules that further delineate IDEA and the day to day implementation of the Law.  The most recent rules were issued in August 2006.  The legal citation to the rules is 34 CFR Part 300.   In the box, are the citations for the most frequently used implementing rules.

25 June 2013

What is the Difference Between Homebound Instruction and Instruction Conducted in the Home in the State of Michigan?

Homebound and Hospitalized Service or Homebound Instruction is provided to pupils in Michigan unable to attend school because of a medical condition. The provider brings the curriculum from the teacher of record to pupils in the home or in the hospital to help the pupils keep up with their studies.

Public school pupils certified by their attending physician or a hospital as having a medical condition that requires the pupil to be homebound or hospitalized for a period longer than five school days are eligible. Written certification from the pupil’s attending physician verifying that the pupil has a medical condition that requires the pupil to be hospitalized or to be confined to the home during regular school hours for a period of longer than five school days. The certification must be by a physician who is either an M.D. or a D.O. Psychologists, chiropractors, or other professionals may not certify a person as eligible.

Braille Instruction Must be Made Available for Blind and Visually Impaired Students When Appropriate

As of late, one of the most serious concerns voiced by parents and advocates of blind and visually impaired children is that the number of students receiving instruction in Braille has decreased significantly over the past several decades.  As a result, these individuals believe that Braille instruction is not being provided to some students for whom it may be appropriate.  Last week, the Office of Special Education and Rehabilitative Services ("OSERS"), issued a "Dear Colleague" Letter to provide guidance to States and public agencies to reaffirm the importance of Braille instruction as a literacy tool for blind and visually impaired students, to clarify the circumstances in which Braille instruction should be provided, and to reiterate the scope of an evaluation required to guide decisions of IEP Teams in this area.  This Letter also identifies resources that are designed to help strengthen the capacity of State and local personnel to meet the needs of students who are blind or visually impaired. 

17 June 2013

What is a Special Needs Trust?

We frequently get asked what a special needs trust entails and when should it be put into place.  This article will explain to you what a special needs trust is and what it best for your family.  Thank you very much to our friends at the Academy of Special Needs Planners for allowing us to use their information to lay out the concepts for you. 

A special needs trust is set up for a person with special needs to supplement any benefits the person with special needs may receive from government programs. A properly drafted special needs trust will allow the beneficiary to receive government benefits while still receiving funds from the trust. There are three main types of special needs trusts, but first it is important to understand how a typical trust works. 

12 June 2013

Will My Child's IEP Stay in Place if She Changes Schools or We Move to Another District or a Different State?

When a child with a disability transfers to a different school in the same school district or to a school in a different district, but within the same state, IDEA requires:

If a child with a disability (who had an IEP that was in effect in a previous public agency in the same state) transfers to a new school district also in the same state, and enrolls in a new school within the same school year, the school district (in consultation with the parents) must provide FAPE to the child (including services comparable to those described in the child’s IEP from the previous school district), until the new school district either-- (1) Adopts the child’s IEP from the previous public agency; or (2) Develops, adopts, and implements a new IEP that meets the applicable requirements of state and federal law.

When a child with a disability transfers to a school district in a different state, IDEA requires:

If a child with a disability (who had an IEP that was in effect in a previous school district in another state) transfers to a school district in a new state, and enrolls in a new school within the same school year, the new school district (in consultation with the parents) must provide the child with FAPE (including services comparable to those described in the child’s IEP from the previous school district), until the new school district--(1) Conducts an evaluation (if determined to be necessary by the new school district); and (2) Develops, adopts, and implements a new IEP, if appropriate, that meets the applicable requirements of state and federal law.

What is a Functional Assessment?

When performing a special education evaluation, the IEP team must have all of the evaluation information it needs to make required decisions regarding the educational program of the child.  This includes considerations of special factors.  

A functional assessment is a step beyond standardized testing to determine the educational strengths and needs of the student to progress in the general curriculum.  Functional assessments help to identify specific skills the student can and cannot perform in relationship to his or her disability.  

11 June 2013

How Far Can Parents Represent Their Children in Legal Proceedings Under IDEA

The United States Supreme Court addressed this issue in 2007 in the case of Winkelman v Parma City School District.  Plaintiff Jacob Winkelman has autism spectrum disorder and is covered by the Individuals with Disabilities Education Act ("IDEA"),  his parents worked with the school district to develop an individualized education program ("IEP"), as required by the Act. All concede that Jacob’s parents had the statutory right to contribute to this process and, when agreement could not be reached, to participate in administrative proceedings including what the Act refers to as an “impartial due process hearing.” §1415(f)(1)(A) (2000 ed., Supp. IV).

14 March 2013

What is the Difference Between Mediation and a Resolution Meeting?

Mediation differs from the resolution meeting in four important ways.  First, in mediation, there is a neutral person (the mediator) to help parents and the district reach an agreement.  The resolution meeting is more like holding another IEP meeting with school staff.  Second, in a mediation conference, all discussions remain confidential and cannot be disclosed in a subsequent hearing or court case.  Resolution session regulations do not prohibit participants from disclosing this information in a later hearing (unless confidentiality is voluntarily agreed to). Third, unlike an agreement reached at a resolution session, there is no automatic three-day “grace period” in which either side can void the agreement.  Fourth, the 45-day timeline for a final decision in the case continues to run while mediation is pending; the time period stops running during the resolution session process. [20 U.S.C. Sec. 1415(i)(3)(D)(iii); 34 C.F.R. Sec. 300.510] 

What Information am I Entitled to When the School Wants to Change, or Refuses to Change, My Child's Special Education Program

Written notice (commonly referred to as the “prior written notice”) must be provided to the parent(s) within a reasonable amount of time when a child’s school proposes to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child; or refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child.

05 March 2013

Family of Special Needs Drowning Victim Settles With School District

The family of a 22-year-old Perry man who drowned while at a camp for people with special needs will receive $200,000 in a settlement with Okemos Public Schools.
The settlement was approved last week during a court hearing before Ingham County Circuit Court Judge Clinton Canady III.
In 2008, Sean-Michael Glarner had a seizure while in a pool at the Okemos Special Needs Day Camp, operated by the school district. His parents sued the district, but the Michigan Court of Appeals ruled in December that Okemos schools could not be sued because of governmental immunity.
Court documents show all parties involved agreed to a $200,000 wrongful death settlement in December.
To read the full article, please click here.  

01 March 2013

Recent Study Finds Social Behaviors Increase in Children with Autism in the Presence of Animals Compared to Toys

A new research study has determined that pet ownership or repeated interaction with animals by children with Autism leads to an increase in social behaviors.

Previous research has demonstrated the capacity of animal presence to stimulate social interaction among humans. The purpose of this study was to examine the interactions of children with autism spectrum disorder (ASD) with an adult and their typically-developing peers in the presence of animals (two guinea pigs) compared to toys.

Participants with ASD demonstrated more social approach behaviors (including talking, looking at faces, and making tactile contact) and received more social approaches from their peers in the presence of animals compared to toys. They also displayed more pro-social behaviors and positive affect (i.e., smiling and laughing) as well as less self-focused behaviors and negative affect (i.e., frowning, crying, and whining) in the presence of animals compared to toys.

To read about the full study, please click here

26 February 2013

Is Your Child With a Physical or Learning Disability Being Denied an Equal Opportunity to Participate in Interscholastic Athletics?

Everyone agrees that physical education and athletics are an important educational component for every child.  Participation in sports and extracurricular activities provide important health and social benefits to all students, even more importantly to students with disabilities.   The benefits include heightened self-esteem, understanding the importance of teamwork, sensory relief, fitness, and mental and physical health. 

Knowing the overall importance of children with disabilities participating, it was disheartening to learn that the U.S. Government Accountability Office (“GAO”) determined that students with disabilities are not being afforded an equal opportunity to participate in extracurricular athletics in public elementary and secondary schools. 

With federal laws being violated by public school districts, the GAO recommended that the United States Department of Education, the Department responsible for enforcement of Section 504, issue guidance to provide an overview of the obligations of public elementary and secondary schools under Section 504, regarding the regulations that require students with disabilities to have an equal opportunity for participation in nonacademic and extracurricular services and activities. The guidance letter issued by the Department of Education also discusses the provision of separate or different athletic opportunities for students with disabilities under Section 504.   This article uses portions of the language of that Letter to answer questions that families have.   

12 December 2012

How Long Do I Have to File a Due Process Claim

Pursuant to the Individuals with Disabilities Education Act ("IDEA"), if your state does not have a statute of limitations, you must request a due process hearing within two years.  To determine if your state has a different statute of limitations, most state departments of education will have the special education regulations on their website.  

Be careful of the "tricky" language contained in the statute, 20 U.S.C. § 1415(b)(6)(B), which states that the two-year period of limitations begins when the parent or guardian "knew or should have known about the alleged action that forms the basis of the complaint."   

This is why it is imperative to read all the documentation from IEPs, etc so parents and guardians are abreast of the team's decisions.  If you feel your child is being denied FAPE as a result of the school's decision, it is best to contact an attorney immediately, rather than waiting.   

23 October 2012

Bullies More Than Twice as Likely to Have Mental Health Disorder

We often hear of the ramifications of bullying and the deleterious effect it has on children.  As parents of children with disabilities and special needs, we are even more alarmed when this trend is discussed.  However, new research shows that school-age bullies are more than twice as likely than their peers to experience depression, anxiety, and attention deficit disorder.  These kids, identified as bullies, are also six times more likely to be diagnosed with oppositional defiant disorder.

To read more about the study, please click here

Help for Military Families With Children With Special Needs

STOMP (Specialized Training of Military Parents) is a federally funded Parent Training and Information (PTI) Center established to assist military families who have children with special education or health needs. STOMP began in 1985, it is a project of Washington PAVE, and is funded through a grant from the U.S. Department of Education.

The staff of the STOMP Project are parents of children who have disabilities and have experience in raising their children in military communities and traveling with their spouses to different locations.

STOMP serves families in four main ways:
  1. By providing information and training about Laws, regulations and resources for military families of children with disabilities
  2. By connecting families to other families
  3. By assisting parents and professionals in developing their own community parent education/support group
  4. By providing a voice to raise awareness of issues faced by military families of children with disabilities.
For more information on STOMP, please click here

Justice Department Intervenes In Lawsuit Regarding LSAT Takers With Disabilities

Last week, a federal judge in California allowed the United Stated Justice Department ("DOJ") to intervene in a disability discrimination lawsuit filed against the Law School Admission Council ("LSAC").   LSAC is the testing entity that prepares and scores the Law School Admission Test ("LSAT").  The DOJ's intervention expands the case from a statewide class action limited to California residents to a "nationwide pattern or practice" lawsuit.  

The lawsuit charges LSAC with widespread and systemic deficiencies in the way it process requests by people with disabilities for testing accommodations for the LSAT.  The lawsuit alleges that LSAC failed to provide necessary accommodations.  The DOJ Complaint states that there is a routine denial of requests for testing accommodations even when supporting documentation from qualified professionals demonstrates a history of testing accommodations since elementary school for the applicants.  

15 October 2012

Under Proposed Amendment, Parents Would be Entitled to More Information Before Medicaid or Insurer is Billed for Services by School District

Currently Under IDEA, a public agency may use the Medicaid or other public benefits or insurance programs in which a child participates to provide or pay for services required under IDEA.  These services sometimes include physical therapy, occupational therapy, etc.  Under §300.154(d)(2)(iv) as currently stands, the school district must obtain parental consent, each time that access to public benefits or insurance is sought.

The Government seeks to amend this portion of the implementing regulations to protect students information and to save school districts time and money in having to seek permission from parents every time it wants to submit a bill to Medicaid or other public insurer.

The current regulations do not require that public agencies inform parents specifically of all of the protections regarding access to public benefits or insurance, including their rights under the Family Educational Rights and Privacy Act (FERPA) and IDEA confidentiality provisions.  Second, State educational agencies (SEAs) and local educational agencies (LEAs) have expressed concerns about the overall costs and administrative burdens imposed by requiring parental consent to access public benefits or insurance, in addition to the parental consent required by FERP

Michigan's Law Requiring Insurers to Pay for Service for Children with Autism Goes Into Effect Today--But Not Without Controversy

Michigan's law requiring insurance companies and health plans to pay for treatments for children with Autism goes into effect today.  While the enactment of the law was welcomed news for families struggling to pay for necessary therapies for their children, there are a lot of fears regarding insurers rules and guidelines to receive such services.  

Blue Cross is requiring that children be screened to confirm a diagnosis of Autism.  Additionally, Blue Cross is requiring a treatment plan at one of four medical centers in the state, all of which are located in Southeast Michigan.  This means that Blue Cross will not pay for services if your child is currently receiving them at a location that is not one of the four approved treatment centers.   Blue Cross did state that it will take time to build up networks and hopes to add more screening centers.  

14 September 2012

What Are My Rights As a Student With a Disability Attending College?

The following federal laws, Section 504 of the Rehabilitation Act of 1973 (Section 504) and Title II of the Americans with Disabilities Act of 1990 (Title II), prohibit discrimination on the basis of disability. Practically every school district and postsecondary school in the United States is subject to one or both of these laws, which have similar requirements.

Although Section 504 and Title II apply to both school districts and postsecondary schools, the responsibilities of postsecondary schools (i.e., colleges) differ significantly from those of school districts. Section 504 and Title II protect elementary, secondary, and postsecondary students from discrimination. Nevertheless, several of the requirements that apply through high school are different from the requirements that apply beyond high school.

For instance, Section 504 requires a school district to provide a free appropriate public education (FAPE) to each child with a disability in the district’s jurisdiction. Whatever the disability, a school district must identify an individual’s educational needs and provide any regular or special education and related aids and services necessary to meet those needs as well as it is meeting the needs of students without disabilities.

Unlike in high school, however, a college or other postsecondary institution is not required to provide FAPE. Rather, the postsecondary school is required to provide appropriate academic adjustments as necessary to ensure that it does not discriminate on the basis of disability. In addition, if the postsecondary school provides housing to nondisabled students, it must provide comparable, convenient, and accessible housing to students with disabilities at the same cost.

An individual is not required to inform the university of a disability, but if you wants the school to provide an academic adjustment, you must identify yourself as having a disability. Likewise, you should let the school know about your disability if you want to ensure that you are assigned to accessible facilities. In any event, your disclosure of a disability is always voluntary.

The appropriate academic adjustment must be determined based on your disability and individual needs. Academic adjustments may include auxiliary aids and services, as well as modifications to academic requirements as necessary to ensure equal educational opportunity. Examples of adjustments are: arranging for priority registration; reducing a course load; substituting one course for another; providing note takers, recording devices, sign language interpreters, extended time for testing, and, if telephones are provided in dorm rooms, a TTY in your dorm room; and equipping school computers with screen-reading, voice recognition, or other adaptive software or hardware.

In providing an academic adjustment, your postsecondary school is not required to lower or substantially modify essential requirements. For example, although your school may be required to provide extended testing time, it is not required to change the substantive content of the test. In addition, your postsecondary school does not have to make adjustments that would fundamentally alter the nature of a service, program, or activity, or that would result in an undue financial or administrative burden. Finally, your postsecondary school does not have to provide personal attendants, individually prescribed devices, readers for personal use or study, or other devices or services of a personal nature, such as tutoring and typing.

If you want an academic adjustment, you must inform the school that you have a disability and need an academic adjustment. Unlike your school district, your postsecondary school is not required to identify you as having a disability or to assess your needs.

Your postsecondary school may require you to follow reasonable procedures to request an academic adjustment. You are responsible for knowing and following those procedures. In their publications providing general information, postsecondary schools usually include information on the procedures and contacts for requesting an academic adjustment. Such publications include recruitment materials, catalogs, and student handbooks, and are often available on school websites. Many schools also have staff whose purpose is to assist students with disabilities. If you are unable to locate the procedures, ask a school official, such as an admissions officer or counselor.

*Thank you to the U.S. Departm

Can I Tape an IEP Meeting?

The issue is whether parents can tape an IEP meeting with some form of audio recorder.  The short answer is that there is no federal law that prevents the non-surreptitious recording of IEP meetings.  We typically see parents requesting to tape an IEP meeting once the relationship between the family and the IEP team has become contentious.  However, an audio recording ensures that what an IEP says, and then what it does, are the same.  Parents get frustrated when they get lip service in an IEP meeting, but said promises are not reduced to writing or effectuated.

If you are like me, you can't be effective in a meeting, and take notes at the same time.  This may lead to incomplete notes, or lack of understanding.  Recording a meeting allows me to go back and listen to the discussion and fill in blank areas in my notes.

No one typically likes having their conversations recorded and your IEP team will probably not be excited when you request to audiotape the meeting.  You also might find the IEP team more guarded, more formal, and less conversational.  

To some people, a request to record them insinuates that they are not trustworthy and will not live up to verbal agreements or later deny statements.  The best way to address the issue is on a situational basis.

If your IEP team has given you no reason to record conversations, and you are happy with the way they are effectuating your child's IEP, then there is no need to record.

If you have had issues in the past, and believe that you will need recorded evidence for a hearing, or will need the recordings for some other reason, then by all means record it.  The IEP team may deny your request to record.  At that time, you have to decide is it worth going to the mat over.

When relationships with your school district are getting to a place of mistrust and contention, it might be time to contact an attorney or advocate to assist you, rather than fighting solo.

Must My Child’s Report Cards and Transcripts State That He or She Has a Disability?

The issue is how do federal laws apply to statements on report cards and transcripts when these statements identify students as students with disabilities? 

A couple of years back, the Office for Civil Rights is the U.S. Department of Education issued guidance on the topic in a “Dear Colleague Letter.”  The Letter represents the U.S. Department of Education’s current thinking on a topic, but does not create or confer any rights on any person.  The Letter also does not impose any requirements beyond those in the applicable laws and regulations. 

Report cards and transcripts convey information about students.  School districts issue report cards to parents to indicate their child’s progress or level of achievement in specific classes, course content, or curriculum.  These report cards are made available to parents, not to postsecondary institutions, potential employers, and others outside of the school district.  In contrast, a student’s transcript generally is intended to inform postsecondary institutions or prospective employers of a student’s academic credentials and achievements.  Accordingly, there is an expectation that a student’s transcript could be shared with persons other than the student and the student’s parents.

28 August 2012

Congratulations to California for Deleting the Term "Mentally Retarded."

Everyone by now is aware of the stigma of the term "retarded" or "mentally retarded."  The term is used commonly in a pejorative tone to describe people or actions that others deem "stupid" or "dumb."  Even worse, is when the term is applied to those with intelectual or learning disabilities.  The term is passe, and vulgar, and no one uses it in a clinical or educational capacity.  The connotations are unpleasant as it is used to rob our children of esteem and their place in the human race.

That is why it was shocking to learn that the State of California used the terms "retarded" and "mentally retarded" in its statutes, regulations, laws, and publications.  However, this will no longer be the case.  Both the California House of Representatives and Senate voted unanimously to strike the words from every state document and replace it with "intelectual disability" and "person with an intelectual disability."  The bills are waiting to be signed by California Governor Brown.

Take a quick look at your state's body of laws and regulations and see if those dreaded terms are still being used.  If they are, this is your call to action.

To read more about the California bills, please click here.

Special Education Rally at the Capitol

To our friends in Michigan, please join us at a rally at the State Capitol for IEPs and Special Education. We need to show everyone how important Special Education is and why we won't back down when drastic cuts are being made.  Attorney Michael Dorfman of Nykanen Dorfman, PLLC will be one of the speakers.  Bring your kids and come out and support this necessary rally.  More information can be found in the attached article.