What Parents Need to Know
About Special Education Law
Presented by: Jenny Lowman, Esq.
Education Law Center-PA
May 19, 2011
A History of Exclusion
• North Carolina: Up until 1969, North Carolina had a
law that made it a crime for parents to “persist in
forcing … the attendance” of a child with disabilities
whom school authorities had determined could not
“profit from instruction.”
• Pennsylvania: Up until 1972, Pennsylvania had a law
which relieved schools of the responsibility to enroll
“uneducable” or “untrainable” children and another
law which allowed school boards to exclude children
who had not attained a mental age of five years.
May 19, 2011
www.elc-pa.org
2
The Law
• Individuals with Disabilities Education Act
(IDEA)
• Section 504 of the Rehabilitation Act of 1973
(Section 504)
• Americans with Disabilities Act (ADA)
• State-specific statutes/regulations (e.g.,
Chapter 14 & Chapter 15 in PA)
May 19, 2011
www.elc-pa.org
3
A Parent’s Bill of Rights under the IDEA
You have the right ….
• To have your child receive a free appropriate public
education (FAPE) in the least restrictive environment
(LRE).
• To be a member of the team that develops your
child’s education program.
• To understand every document you sign .
• To pursue other options if you disagree with your
school.
• To know and understand your rights in the language
you understand best.
May 19, 2011
www.elc-pa.org
4
A Parent’s Bill of Rights under the IDEA
You have the right ….
• To request and consent to an initial evaluation, re-eval., and
independent evaluation or to refuse to consent.
• To request, attend, and participate in IEP Team meetings.
• To receive written notice (Notice of Recommended
Educational Placement/Prior Written Notice or NOREP/PWN)
when a school decides your child is eligible for special
education, and at any time before your school district changes
your child’s program or refuses to change it.
• To disagree with and to dispute decisions.
• To fully participate in due process and to appeal.
• To obtain copies of all of your child’s education records.
• To remove your child from special education.
May 19, 2011
www.elc-pa.org
5
IDEA: A Funding Law
• The IDEA provides federal funding to states
and local educational agencies (LEA) that
agree to provide a free appropriate public
education (FAPE) to all children residing in the
State or LEA between the ages of 3 and 21
(Part B of the IDEA). Applies to public charter
schools as well as traditional public schools.
• Part C of the IDEA provides federal funding for
states to provide early intervention services
to children ages birth to 3.
May 19, 2011
www.elc-pa.org
6
Overview of the IDEA
• Requires timely evaluation of a student with parent’s
consent.
• If child is eligible for special ed., he or she must
receive a Free Appropriate Public Education (FAPE).
– Provided through development and implementation of
Individualized Education Program (IEP)
• Program must be provided in the Least Restrictive
Environment (LRE).
• Program must be developed in conformity with
procedural safeguards.
– Notice to parents.
– Dispute resolution mechanisms made available.
May 19, 2011
www.elc-pa.org
7
Free Appropriate Public Education (FAPE)
under IDEA
• Special education and related services that:
– Provided free of charge under public supervision
– Meet State standards
– Includes an appropriate education provided in conformance
with child’s Individualized Education Program (IEP) that was
developed in accordance with procedural requirements of IDEA.
• IEP must be reasonably calculated to yield meaningful
educational benefit and student progress in light of
child’s individual potential.
– No bright-line rule – determining what quantum of benefit is
necessary requires a “student-by-student analysis” that
“carefully considers the student’s individual abilities.”
May 19, 2011
www.elc-pa.org
8
Overview of Section 504
• Section 504 is a federal law that prohibits discrimination
on the basis of disability by programs that receive federal
funding.
• Section 504 also requires provision of a FAPE, defined as:
– Provision of regular or special education and related services.
• Section 504 not limited to reasonable accommodations in regular
education classrooms.
– Designed to meet the child’s individual needs as adequately as
needs of non-disabled students are met (equality of
opportunity).
– Provided in conformity with “procedural safeguards.”
• If child is provided with IEP under IDEA, then 504 requirement is met.
May 19, 2011
www.elc-pa.org
9
What Specific Steps Must Schools Take
under Section 504?
In order to be in compliance, schools must:
1. Refer students thought to be eligible under 504:
“Child Find” Duty
2. Evaluate students who are likely eligible under 504
3. Develop a written plan to provide a free appropriate
public education (FAPE) for students eligible under
504
4. Provide due process for parents and children served
under 504
May 19, 2011
www.elc-pa.org
10
Section 504 Plan
• A/K/A Section 504 Accommodation Plan, Service
Agreement, Chapter 15 Service Agreement,
Protected Handicapped Student Agreement
• Educational provisions
– Regular or special education
– Related aids and services (OT, PT, Speech/Language
Therapy, Counseling, Assistive Technology)
– Accommodations and Modifications
May 19, 2011
www.elc-pa.org
11
Possible Aids, Services, & Accommodations
for a Section 504 Plan
•
•
•
•
•
•
•
•
•
Permission to go to school nurse
Medication administration at school
Use of elevator at school
Adaptive physical education
Two sets of books – one at home and one at school
Communication book
Health care plan
Required completion of fewer assignments
Use of technology to provide instruction while child is at home or in
hospital
• Instruction in the home for greater amount of time than generally
provided
– See List of Examples from Sevier County School System
• http://www.slc.sevier.org/504ana.htm
May 19, 2011
www.elc-pa.org
12
Steps to Getting Special Education
Services
Step 1: Request an Initial Evaluation
• Parent can request at any time & must be in writing.
• “Parent” must sign a Permission to Evaluate-Consent Form
(PTE) to provide “consent”
– Form must be made “readily available” when parent has made written
request and within 10 calendar days when request is oral.
• School districts & charter schools have 60 calendar days
(minus the summer months) to complete the evaluation and
issue an Evaluation Report (ER) once parent signs PTE Form.
• LEA has CHILD FIND duty as well: Locate, identify, evaluate –
So request may sometimes come from school.
• MAKE SURE YOU KEEP A COPY OF REQUEST & SIGNED PTE
FORM!!
May 19, 2011
www.elc-pa.org
13
Steps to Getting Special Education
Services
Step 2: Evaluation
• Purpose of Evaluation is Two-Fold:
– Determine student’s eligibility for services
(two-part test); and
– Provide recommendations for appropriate
program for eligible child.
May 19, 2011
www.elc-pa.org
14
Special Education Eligibility
Part 1: Child must have a “disability”
•
•
•
•
Mental retardation
Hearing impairment
Deafness
Speech or language
impairment
• Visual impairment
• Emotional disturbance
(ED)
• Multiple Disabilities
May 19, 2011
•
•
•
•
Orthopedic impairment
Autism
Traumatic brain injury
Specific learning
disability (SLD)
• Other health
impairment (OHI)
www.elc-pa.org
15
Special Education Eligibility
Part 2: As a result of the disability, the child must require special
education (specially designed instruction) & related services
(meaning that the content, methodology or delivery of
instruction needs to be adapted to address the child’s unique
needs).
• If the child does not qualify but has a physical or mental
impairment which substantially limits one or more major life
activities, then the child is protected by Section 504 /Chapter
15.
– Major life activities include breathing, walking, seeing, hearing,
learning, thinking, speaking, eating, and reading.
May 19, 2011
www.elc-pa.org
16
Steps to Getting Special Education
Services
• Step 2: Evaluation (cont.)
– Types of assessment tools often include:
•
•
•
•
•
Interviews
Observation of child
IQ Test (such as WISC-IV)
Achievement Test (Such as Woodcock Johnson)
Curriculum Based-Assessment (classroom tests and quizzes)
– Where can I get more information?
• Tests and Measurements for the Parent, Teacher,
Advocate & Attorney by Peter W. D. Wright, Esq.
and Pamela Darr Wright, M.A., M.S.W. at
http://www.wrightslaw.com/advoc/articles/tests_measurements.html
May 19, 2011
www.elc-pa.org
17
Steps to Getting Special Education
Services
• Step 2: Evaluation (cont.)
– Written Evaluation Report (ER) is the end result & must be
provided after evaluation is complete.
– Parent must receive ER at least 10 school days before IEP
Team meets (unless parent waives in writing).
• See sample Annotated Evaluation Report (ER) at:
http://www.pattan.net/files/Forms/English/ER-ANN070108.pdf
– Parent should read ER carefully and ASK QUESTIONS & ASK
SCHOOL TO EXPLAIN!
May 19, 2011
www.elc-pa.org
18
A Word About Reevaluations
• A reevaluation must occur:
– At least once every 3 years (2 years for child with
MR) but can be waived; or
– If parent requests a reevaluation; or
– If school believes “conditions warrant” BUT school
need not agree to more than one reevaluation per
year.
• Timeline is 60 calendar days minus the
summer months.
May 19, 2011
www.elc-pa.org
19
Steps to Getting Special Education
Services
• Step 2: Evaluation (cont.)
– Independent Educational Evaluation (IEE)
• Like getting a “second opinion” – done by someone
who does not work for the LEA
• Parent can request that LEA pay for IEE if parent
disagrees with LEA’s evaluation.
– Inaccurate
– Incomplete
• Parent can also pay for an IEE – results must be
“considered” by LEA.
May 19, 2011
www.elc-pa.org
20
Steps to Getting Special Education
Services
• STEP 3: Develop the IEP If student is found eligible:
– IEP Team must meet within 30 calendar days after ER is
completed.
• Team must include the “parent,” at least one regular education
teacher of the child, one special education teacher of the child,
and an administrator, and the child (when appropriate) .
• Parent can bring private therapist, caseworker, an advocate,
probation officer, or anyone else who has knowledge or special
expertise about the child.
• School must document efforts to include the parent – including
records of phone calls, copies of letters, records of visits to
parent’s home or place of employment.
• If parent can’t attend, school must use other methods (phone
calls) to ensure parent participation.
– IEP Team must review IEP at least once annually.
– IEP must be in effect at beginning of each school year.
– Parent or school may request an IEP Team meeting at any time!
May 19, 2011
www.elc-pa.org
21
IEP is the “Contract”
• IEP = written statement for a child with a
disability outlining the child’s special education
program and related services tailored to meet
the child’s unique needs
• IEP = “contract” parent and school district
– If a service is listed on the IEP, the child MUST receive
it. No excuses.
• Child with an IEP is entitled to a Free
Appropriate Public Education (FAPE).
May 19, 2011
www.elc-pa.org
22
Where to Get More Information about
IEPs
• Sample annotated IEP:
http://www.pattan.net/files/Forms/English/IEPANN061010.pdf (long but very useful)
• PaTTAN trainings: www.pattan.net
• Writing Measurable Annual Goals:
http://www.pattan.net/files/ProgMon/AnnGoalsShTe
rm.pdf
• From Gobbledygook to Clearly Written Annual IEP
Goals and Better IEPs: How to Develop Legally
Correct and Educationally Useful Programs by
Barbara D. Bateman (available to buy on
www.amazon.com)
May 19, 2011
www.elc-pa.org
23
Steps to Getting Special Education
Services
• Step 4: Placement Decision
– When is it made?
• Placement should be decided after IEP is written
• Placement must be determined at least annually &
must be based on child’s IEP
– Who decides? The IEP Team, including the
parent
May 19, 2011
www.elc-pa.org
24
Steps to Getting Special Education
Services
• Step 4: Placement Decision (cont.)
– Key: Least Restrictive Environment (LRE)
– To the maximum extent appropriate, children with
disabilities should be educated with their non-disabled
peers and removal should occur only when the nature or
severity of the child’s disability is such that education in
regular classes with the use of supplementary aids and
services (SAS) cannot be achieved satisfactorily.
– IDEA requires a continuum of placements.
May 19, 2011
www.elc-pa.org
25
Steps to Getting Special Education
Services
• Step 4: Placement Decision (cont.)
– Special education is a service – not a place.
– Regulations list types of supports, not types of classrooms.
• Emotional support: Services for students with a disability who
require services primarily in the areas of social or emotional skills
development or functional behavior.
• Learning support: Services for students with a disability who
require services primarily in the areas of reading, writing,
mathematics, or speaking or listening skills related to academic
performance.
– Regulations provide no limit on number of children in
particular type of classroom; only provide caseloads for
personnel providing full-time, itinerant, and supplemental
support.
– Student may receive more than one type of support.
May 19, 2011
www.elc-pa.org
26
Steps to Getting Special Education
Services
• Step 4: Placement Decision (cont.)
– Parents must be given “prior written notice” of
proposed IEP and placement before services begin
• Called a NOREP/PWN or Notice of Recommended
Educational Placement/Prior Written Notice.
• Parents can agree or disagree with the proposed IEP
and/or placement.
• Pendency: If parent disagrees & requests a hearing or
mediation, the child remains in the last-agreed-upon
placement pending resolution of the dispute (the child
“stays put”) – Parent must TAKE SPECIFIC ACTION to
invoke pendency! Must file a request for mediation or a
hearing.
May 19, 2011
www.elc-pa.org
27
Prior Written Notice
(a/k/a The NOREP)
• Parents have the right to receive written notice (called the
Notice of Recommended Educational Placement/Prior
Written Notice) (NOREP/PWN) in their native language before
a school proposes to initiate or change (or refuses to initiate
or change):
[NOT an all-inclusive list]
–
–
–
–
Child’s Evaluation or Identification
Educational Placement (where child will get services)
Provision of FAPE (what services the child will get)
Change of Placement for disciplinary reasons
• Annotated NOREP:
http://www.pattan.net/files/Forms/English/NOREP-ANN070108.pdf
May 19, 2011
www.elc-pa.org
28
Steps to Getting Special Education
Services
• Step 4: Placement Decision (cont.)
– If parent agrees with proposed IEP & placement,
IEP must be implemented within 10 school days.
May 19, 2011
www.elc-pa.org
29
What if You Disagree with the School’s
Proposed Action(s)?
• Ways to resolve disagreements informally
• Ways to resolve disagreements formally
– See ELC’s fact sheet entitled How to Resolve
Special Education Disputes at www.elc-pa.org
May 19, 2011
www.elc-pa.org
30
How to Resolve Disagreements
Informally
• Talk with child’s teacher(s) or other relevant
staff
– Don’t assume teacher(s) have copy of child’s IEP.
• Request an IEP Team Meeting (may want to
ask that LEA’s Director of Special Education
attend).
• Ask the LEA to agree to an IEP Facilitation
(Office for Dispute Resolution provides
facilitator for free).
– http://odr-pa.org/early-dispute-resolution/iep-facilitation/
May 19, 2011
www.elc-pa.org
31
How to Resolve Disagreements
Formally
• Mediation
• Due Process Hearing
• Filing a complaint with PA Bureau of Special
Education or U.S. DOE Office for Civil Rights
– See Office for Dispute Resolution’s website for
more information about these options at:
http://odr-pa.org/
May 19, 2011
www.elc-pa.org
32
Preparing for an IEP Team Meeting
• Review all current evaluations and
assessments and/or ask for additional
assessments
• Plan to bring someone with you to the
meeting (spouse, friend, advocate, etc.) – try
not to go alone!
• Make a short list of the points you want to
raise at the IEP Team meeting.
May 19, 2011
www.elc-pa.org
33
At the IEP Team Meeting
• Don’t be afraid to ask questions & make sure
you understand any “jargon.”
• Discuss your child’s present levels of
performance.
• Develop measurable annual goals.
• Describe the placement for your child
(remember LRE) and identify specifically the
supports and related services needed.
• Sign the NOREP/PWN only if you are satisfied.
May 19, 2011
www.elc-pa.org
34
After the IEP Team Meeting
• Meet your child’s teachers(s) at the beginning of
the school year. Participate in school activities
and/or be a classroom volunteer, if possible.
– Don’t assume your child’s new teacher has a copy of
your child’s IEP or 504 Plan yet! You may need to
provide a copy.
• Support your child in developing friendships with
her classmates.
• Monitor your child’s progress.
May 19, 2011
www.elc-pa.org
35
Red Flags
• If you are told by a school:
– Your child has to wait for service listed on his or her IEP to be
provided.
– It is the district’s policy to do it this way. We don’t provide another
type of reading curriculum/behavior support, etc.
– We only provide every child one session of OT/PT/speech therapy per
week.
– You can only have one IEP team meeting per year.
– We just don’t have the money for that service.
– Your child needs a type of program or placement that isn’t offered by
the district, so he or she will have to take what is available.
– Your child has a severe disability, so he or she must be placed in a
special “center” for children with disabilities, or in a private school.
– Your must accept the IEP that is offered to you in its entirety.
May 19, 2011
www.elc-pa.org
36
Key Points to Remember
• Special education law sets out a detailed process for
developing a program for a child and that process has
timelines that must be followed.
• You are the member of the team that develops your child’s
IEP. You have a right to attend meetings about that
program.
• The child’s IEP is a contract with the school. There should
be no gaps in services.
• You don’t just have to accept what is offered if you think
your child’s program is inappropriate.
• There are steps you can take if you think your child’s rights
are being violated.
• Even if your child is ineligible for special education services,
your child might be entitled to protection under Section
504/ADA.
• Ask questions and seek help if you don’t understand
something. There are places to go for help.
May 19, 2011
www.elc-pa.org
37
Where to Get Help
• Statewide Organizations
– Disability Rights Network of PA (DRN) - 800-692-7443 - www.drnpa.org
– The Arc of Pennsylvania (Advocacy & Resources for Citizens with Cognitive,
Intellectual, and Developmental Disabilities) – 800-692-7258 –
www.thearcpa.org
– PA’s Bureau of Special Education ConsultLine – 800-879-2301
• Regional Organizations
– The Arc of Montgomery, Berks, and Bucks Counties - 610-265-4700
www.marcpa.org
– Parent Education Network (PEN) (Eastern PA) - 800-522-5827 –
www.parentednet.org
– The Public Interest Law Center of Philadelphia – 215-627-7100 –
www.pilcop.org
• Useful Websites
– Wrightslaw - www.wrightslaw.com
– Education Law Center - www.elc-pa.org
– National Center for Learning Disabilities - http://ncld.org/
May 19, 2011
www.elc-pa.org
38
Advocacy Opportunities
• PA School Talk
– http://paschooltalk.org
• PA Special Education Funding Reform:
– http://reformspecialedfunding.org/
May 19, 2011
www.elc-pa.org
39