Children's Advocacy Resources for EducationC.A.R.E. - C.A.R.E. Blog

Bullying

Wed, 09 Nov 2011 03:33:29 -0800

The right to be free from bullying and harassment

a.       Special education law as it relates to bullying is in its infancy. OCR has noted that disability harassment may result in a denial of FAPE under 504, ADA, and the IDEA. There have been some legal decisions that indicate that bullying can result in the denial of FAPE in violation of the IDEA.

b.      The Education Department defines disability harassment as intimidation or abusive behavior toward a student based on disability. It may not be denial of FAPE if child is making academic progress.

c.       Extremely fact specific: need to show that the child can derive no benefit from the services that he or she is offered by the school district, then it is a denial of FAPE.

Some Michigan cases:

When evaluating harassment or bullying complaint, OCR will examine the conduct of the student who was the alleged victim of the harassment to determine whether his peers’ actions were, in fact, based on the student’s disability. Ann Arbor 56 IDELR 84

The failure of a student or parent to submit a formal written complaint does not excuse a district’s duty to respond. The fact a student with a cognitive impairment never filed a written complaint against schoolmates who regularly called him “retard” and “moron” did not excuse a MI district’s failure to investigate those incidents. Williamston Community School 56 IDELR 22 (OCR 2010)

A district is responsible for student-on-student harassment if it has adequate notice that such harassment based on disability is occurring and fails to take prompt and effective action to stop it, to remedy the effects of the harassment it reasonably could have prevented, and to prevent its recurrence.



CASE FILE: Failure to link child's declining grades to bullying nixes FAPE claim

Case name: Southmoreland Sch. Dist., 111 LRP 50995 (SEA PA 06/18/11).

Ruling: An IHO determined that a Pennsylvania district did not deny FAPE to a second-grader with an SLD and a speech-language impairment whose parent reported that the student was being bullied. The parent failed to connect the four incidents in question to any educational harm.

What it means: There is no clearly accepted standard regarding when bullying results in a denial of FAPE. However, the U.S. District Court, Eastern District of New York has stated that a student is deprived of FAPE when bullying substantially restricts learning opportunities. T.K. v. New York City Dep't of Educ., 56 IDELR 228 (E.D.N.Y. 2011). In this case, the student complained of four incidents of bullying. However, relying on T.K., a Pennsylvania IHO found insufficient evidence that the incidents, which met with an appropriate response from the district, were the cause of a decline in the student's grades.

Summary: An IHO found insufficient evidence that the alleged bullying of a child with a speech-language impairment, or the district's response to the incidents, adversely impacted the child's educational program. Not only did the district respond appropriately to the parent's complaints, but there was insufficient evidence that the four incidents in question adversely affected the student's academic program.

The student complained of four occurrences of bullying during the 2010-11 school year, including an incident on the bus where a student hit other students with a seatbelt buckle, and an incident in which a classmate reportedly took something from him at recess. The parent alleged that the district denied the student FAPE, pointing out that the student's grades declined. Citing a standard articulated in T.K. v. New York City Department of Education, 56 IDELR 228 (E.D.N.Y. 2011), the IHO explained that a student is deprived of FAPE when bullying reaches a level where it substantially restricts the student's learning opportunities.

First, the IHO noted that the district responded properly to the incidents by investigating, disciplining the perpetrator, and separating the students, where appropriate. Second, the parent failed to link the incidents to any educational harm.

"[W]hile there was some evidence that Student's grades during the third and fourth marking period . . . were not as high . . . there was little evidence to demonstrate that the decline in grades was the result of any or all of the four incidents, rather than an increased difficulty of the curriculum," the IHO wrote.

The IHO pointed out that there was some dispute among the parties as to whether the incidents even rose to the level of bullying. Citing T.K., the IHO observed that although bullying usually involves unequal and coercive power, even a student's perception that he is at a disadvantage is sufficient.

Moreover, the fact that the student experienced difficulties with peers, had perceived conflicts with certain peers, and did not have many friends, raised "significant red flags." The IHO advised the IEP team to consider whether, based on the IHO's findings, the student had social-emotional needs warranting additional assessment and intervention.

Independent Educational Evaluation

Wed, 09 Nov 2011 03:27:39 -0800

An Independent Educational Evaluation: IEE

A Child with a Disability is to receive a Free Appropriate Public Education (FAPE).

To determine what is “appropriate” for your child is identified in an evaluation that addresses all areas of the child’s suspected need (areas of weakness) in school which are then met by the Individualized Education Plan’s (IEP’s) terms and services. The IEP is to be designed to meet the unique needs of the child and prepare him/her for further education, employment, and independent living.

The evaluation is the foundation upon which the IEP is constructed. If the evaluation foundation is faulty, the IEP is not going to enable your child to make meaningful progress in his/her education when all areas of need are not identified and addressed.

For example, when a child’s disability related behavior is impacting his education because he is being made to go home, to the principal’s office, multiple suspensions, exclusion from school activities, ect. A functional behavioral assessment (FBA) is to be done.

When a child has difficulties related to their disability in seeing, writing, reading, speaking, processing, organizing, ect. and assistive technology may be a service that could accommodate that disability, an Assistive Technology (AT) evaluation is to be completed.

A child is to be evaluated in all areas of potential need related to his/her disability. It is helpful to have a diagnosis from a physician. School psychologists, social workers, occupational therapists, speech and language therapists, special education supervisors are to be educated in their field of expertise and able to identify the areas of weaknesses and suggest possible interventions and accommodations to enable the child to make progress.

However, when a parent disagrees with the evaluation, a parent of a child with a disability has the right to obtain an independent educational evaluation of the child at no cost to the parent.

Process:

After you have received the results of the school’s evaluation, and you find that you disagree, put a request for an Independent Educational Evaluation at public expense in writing and submit it to the Principal of the school.
The school is to provide the parents within 10 school days, after receiving the IEE request, information about where an IEE may be obtained, and the criteria applicable for the IEE. The parent is not restricted to the list of evaluators, but must adhere to the minimal qualifications identified and provided by the school district. When contacting potential evaluators, ask about the relationship between the school and the evaluator. Have the professional confirm that the parent and child are the client and that no conflict of interest exists.
If the school district refuses to agree to pay for an IEE, they must initiate a due process hearing and carry the burden of proof before an Administrative Law Judge to show that their evaluation was appropriate.
If the school district wins at a due process hearing, the parent still has the right to obtain an IEE, just not at public expense.
You may want to postpone any IEP meeting until the results of the IEE have been received and the team has an opportunity to review them. Remember, you want a solid foundation for the IEP, and need to have a good evaluation to construct the IEP upon.
In preparing your child for the evaluation, consider medication, sleep, diet—have it mirror what he/she is experiencing in a “normal” school day. Often a student’s behavior can interfere with testing and your goal for the evaluation is for the evaluator to get the most realistic assessment of your child and his/her needs.

Given the budget crisis that school districts in Michigan are facing, some districts are not providing evaluations in all suspected areas of need. For once a need is identified, resources need to be provided to accommodate the child’s disability. As a parent, you have to advocate for your child’s needs to be met. If you would like assistance on this journey, you can contact Attorney Kristin Totten at Kristin@kristintotten.com or 269-270-1278 for a free 15 minute consultation.

Notes from presentation at the Envision Center

Wed, 09 Nov 2011 03:24:28 -0800

Friday, September 16, 2011 Introduction

Goal for Today—enable those present to be aware of basic rights of Children when their disability impacts their education.

Rights of Children: When disability impacts education

It is as simple as A,B,C

Appropriate
Benefit
Communicate

Reference: website www.kristintotten.com Children’s Advocacy Resources for Education click the blog tag and you will see the articles that I am referring to.

IDEA, 504, ADA

IDEA first known as Education for All Handicapped Children

Why was it needed? To combat pervasive discrimination against people with disabilities, and create an affirmative set of obligations for states, schools, and school districts by first allowing Access, then to provide an IEP that benefits a child and to communicate the progress to parents. As simple as A, B, C.

At the time of the acts passage—8 million children had disabilities that impacted their education, but only 3.9 million of them were getting some form of specialized educational services defining “appropriate” when personalized educational services are provided= “served”

The right to a Free Appropriate Public Education (FAPE) with Maximum Appropriate Integration

Historical framework:

Education for All Rowley Decision IDEA revised Deal v. Hamilton

Handicapped Children US Supreme Court 1997 6th Circuit

Act of 1975 1982 2004

Amy Rowley—she was a deaf child and when she entered first grade, her parents requested that she have a qualified sign language interpreter in her academic classes.

School refused.

School refused by arguing that they: met with her parent to place her in a regular kindergarten class to determine what supplement services would be necessary to her education. Several members of the school administration prepared for Amy’s arrival by attending a course in sign language interpretation, and a teletype machine was installed in the principal’s office to facilitate communication with her parents who are also deaf. At the end of the trial period, it was determined that Amy should remain in the kindergarten class, with an FM hearing aid to amplify words for her. She successfully completed her kindergarten year.

Reason: “she was achieving educationally, academically, and socially without it”.

Parents—lost at due process, lost at the review, and then went to U.S. District Court (she is advancing easily from grade to grade but…. That court also found “Amy understands considerably less of what is going on in class than she would if she were not deaf and is not learning as much, or performing in as well academically, as she would without her handicap.” The court concluded that this disparity between her achievement and her potential indicated that she was not receiving a Free Appropriate Public Education what was defined by the District Court as “an opportunity to achieve her full potential commensurate with the opportunity provided to other children.” She won. School District Appealed U.S. Court of Appeals for the Second Circuit affirmed the District Court, and the School District appealed to the Supreme Court:

Rowley held: Children with disabilities are entitled to access public education and receive the “basic floor of opportunity” provided by IDEA consisting of access to specialized instruction and related services which are individually designed to provide educational benefit to the child.

The court pointed out though, FAPE involves access to educational opportunity only, not educational results.

In Rowley: the Court ruled that, assuming a child is receiving an appropriate preschool, elementary or secondary education in the state involved AND that the education meets the standards of the state education agency, the special education and related services offered a child with disabilities must meet two additional criteria in order to constitute FAPE to be appropriate:

The IEP must be developed in accordance with the procedures set forth in the IDEA, including those governing resolution of disputes between parents and school systems
AND the IEP must be reasonably calculated to enable the child to receive educational benefits

Specially designed instruction and services:
Meet the State’s educational standards

Approximate the grade levels used in the State’s regular education
comport with the child’s IEP

“Thus if personalized instruction is being provided with sufficient support services to permit the child to benefit from the instruction, and the other items on the definitional checklist are satisfied, the child is receiving FAPE.

So now children with disabilities are in, but suffer from the discriminatory treatment of low expectations

IDEA was amended in 1997, and Congress explicitly found: “the implementation of this Act has been impeded by low expectations, and an insufficient focus on applying…proven methods of teaching and learning for children with disabilities”

Congress found that “education for children with disabilities can be made more effective by having high expectations ….and ensuring their access in the general curriculum to the maximum extent possible.

Goal of CARE: Having and Enforcing High Expectations of Children with Disabilities

We all need to raise our gaze and enable children with disabilities to flourish into who they are bent to be, so that we all succeed.

“Raise up a child in the way he should go”—actually means in the way he is bent.

Every precious child is bent in a certain way and it our responsibilities to nourish him/her towards that certain “bent” so that he/she can flourish.

Our educational system can be utilized to do just that, but it takes involved adults to ensure that square pegs aren’t being forced into round holes.

Ct. Legal Rights Project---folks in institutions that never received an education where the difference could have been between self-sufficiency or a life of dependence.

As our 6th Circuit Court of Appeals pointed out in Deal v. Hamilton Board of Education “The Rowley Court did not have occasion to consider the question of what level of educational benefit the school district would have been required to provided Amy Rowley had she not been progressing successfully through school in a regular education classroom.

The Court then delved further into the Congressional intent behind the Act and found there was a fiscal incentive to ensure that children receive proper education services so that they become productive citizens, not dependent upon the government for a minimally acceptable lifestyle.

Congress has declared that the school personnel who work with disabled children should receive high quality professional development in order to provide such personnel with the skills necessary to “ensure that all disabled children have the skills and knowledge necessary to enable them….to be prepared to lead productive, independent, adult lives, to the maximum extent possible.

Who qualifies/Who gets in? Eligibility

Student with a Disability R 340.1702: “a person who is determined by an individualized education program team or a hearing officer to have 1 or more of the impairments specified in this part that necessitates special education or related services, or both, who is not more than 25 years of age, and has not graduated from high school

13 categories of disability:

Autism, deaf-blindness, deafness, emotional disturbance, hearing impairments, mental retardation, multiple disabilities, orthopedic impairments, other health impairment, specific learning disability, speech or language impairments, traumatic brain injury, and visual impairment including blindness.

I. The right to be identified---

Rule: § 300.111 Child find.

(a) General. (1) The State must have

in effect policies and procedures to

ensure that—

(i) All children with disabilities

residing in the State, including children

with disabilities who are homeless

children or are wards of the State, and

children with disabilities attending

private schools, regardless of the

severity of their disability, and who are

in need of special education and related

services, are identified, located, and

evaluated.

How to get in: Evaluation to determine eligibility

II. The right to be evaluated in all suspected areas of disability which will provide information to determine the educational needs of the child.20 USC §1414(b)(3)(B).

IDEA’s child find provision requires a district to evaluate a student if a parent, school staff, or other professionals suspects that the student has a disability and needs special education and related services as a result.

Put in writing, sign consent, asap, 30 school days from the time that you sign for the evaluation to be completed.

Note on RTI (response to interventions) Districts can and should pursue this route to see if a child will benefit from other services before looking to special education. Flows in stages 1. High quality scientifically based instruction for all children with periodic screenings for 8 weeks. Stage 2. Student not making progress and receives more intensive services not to exceed one grading period. Stage 3. Refer a child for an evaluation. USDE Office of Special Education Programs Director wrote a memo in Jan. 2011 to all state directors of special education stating : A response to Intervention (RTI) process cannot be used to delay-deny an evaluation for eligibility under IDEA.

Suspicion is enough for duty to evaluate to trigger--A U.S. District Judge wrote, “The standard for triggering the child find duty is suspicion of disability rather than factual knowledge of a qualifying disability.”

i. In this case, out of Connecticut, what should have raised suspicion: diagnosis of depression, subsequent hospitalizations, indicates potential EI.

ii. Parents were reimbursed for the cost of the therapeutic placements

i. Evaluations are to be related to every area of suspected disability 34 CFR 300.304(c)(4) including: if appropriate health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status and motor abilities.

ii. (c) (3)Assessments are to be selected and administered so as best to ensure that if an assessment is administered to a child with impaired sensory, manual, or speaking skills, the assessment results accurately reflect the child’s aptitude or achievement level or whatever other factors that the test claims to measure, rather than reflecting the child’s impaired sensory, manual, or speaking skills (unless those skills are what the test is supposed to measure).

1. Example: A child who cannot speak should not be given a test that requires verbal answers to reflect his/her IQ.

2. A child who cannot see should not be given a test that requires him to visually choose and answer.

Sad, but true and these children end up in the CI classroom when they are not cognitively impaired, but their disability effects their score on an intelligence test because of how the test was presented, not what it was testing for.

III. All assessments must be provided and administered in the child’s mode of communication and in the form to yield the most accurate results.

IV. The district must follow the proper procedures for determining eligibility and educational need. :

34 C.F.R. 300.306 (c) Procedures for determining eligibility and educational need.

(1) In interpreting evaluation data for the purpose of determining if a child is a child with a disability under Sec. 300.8, and the educational needs of the child, each public agency must--

(i) Draw upon information from a variety of sources, including aptitude and achievement tests, parent input, and teacher recommendations, as well as information about the child's physical condition, social or cultural background, and adaptive behavior; and

V. The right to have one’s Parents be key players in the process

—20 USC 1414 (c): REED—review of existing evaluation and data, the IEP team shall review existing evaluation data on the child including

i. Evaluations and information provided by the parents of the child

ii. Current classroom-based local, or state assessments, and classroom-based observations; and

iii. Observations by teachers and related services providers

On the basis of that review, and input from the child’s parents, identify what additional data, if any are needed to determine—eligibility and the educational needs of the child (this is a new provision in 2004)

Important note—when getting those expert’s opinions, some psychologist, neuropsychologists, ect., they know how to write in their letter whether or not a child needs specialized accommodations—request that they spell it out. Dr Apple, Dr. Bowker, Dr. Sloane—they do this, but it is important that others incorporate this into their practice as well. They should (since we have some practitioners here as well) suggest the areas within the 13 categories that the school evaluations should pursue. Unfortunately, I have seen where the Dr. encourages the district to find the child eligible under one label, where others may fit better in the educational context. The medical context of disability is different from the school context. If it is not effecting the child’s progress in school, then the district will not find them eligible.

(ii) Ensure that information obtained from all of these sources is documented and carefully considered.

(2) If a determination is made that a child has a disability and needs special education and related services, an IEP must be developed for the child in accordance with Sec. Sec. 300.320 through 300.324.

VI. Right to an IEP if found that the child’s disability requires the need for special education and related services.

a. What is “special education”? Specially designed instruction that makes up special education includes adapting the content, methodology or delivery of instruction to ensure a child’s access to the general curriculum, so that he or she can meet the education standards that apply to all children.

b. What are “related services”? the services that are needed to enable the child access to the general curriculum.

VII. Right to an effective IEP that follows the legal requirements of 34 CFR §300.320-.324 Effective for FAPE—makes a “good faith effort” to assist the child to achieve his IEP goals.

a. Development of the IEP 300.324 (a). In developing the IEP the team must consider:

i. The strengths of the child

ii. The concerns of the parents for enhancing the education of their child

iii. The results of the initial or most recent evaluation of the child; and

iv. The academic, developmental, and functional needs of the child.

b. Special Factors the team must consider:

i. Behavioral issues (impedes learning or that of others)The use of positive behavioral interventions and support to address the behavior

ii. Limited English

iii. Blind or visually impaired=Braille

iv. Communication Needs: Consider the communication needs of the child, and in the case of a child who is deaf or hard of hearing, consider the child’s language and communication needs, opportunities for direct communications with peers and professional personnel in the child’s language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the child’s language and communication mode; and

v. Consider whether the child needs assistive technology devices and services

1. Assistive Technology and the IEP: As your child’s strongest advocate, you must insist that AT devices and services be included in the written IEP once the team determines that they are needed.

2. Unfortunately, you may need to bring to the table various AT solutions that you think may work for you child. How do you know what those would be?

http://www.snapps4kids.com/

3. If your district is within Kalamazoo County—go to the KRESA website, special education, assistive technology, lending lab where educators can go and utilize different devices to see what would work best for a child. You can suggest that the district do this.

4. If the team cannot determine what AT devices and services are best for your child, then a formal AT evaluation may be needed. The evaluation should be performed by a qualified professional in a timely fashion. There is a shortage of qualified AT evaluators, so if the district uses their own personnel to conduct the evaluation and you disagree with the recommendations, the parents have a right to an independent evaluation at district expense.

5. Independent Educational Evaluations—put the request in writing, the district has to either grant the request (but will often cap an amount) or object to the request and take the matter to Due Process. The district will have ____ days to complete.

6. Beware: You want evaluators that are truly independent and know how to make recommendations to the IEP team.

iii. Please note that although your child may not need AT services right now, your child’s AT needs are to be continually considered as long as they have an IEP as is behavior, communication needs, ect.

VIII. The Right to be involved in and progress in the general education curriculum.

34 CFR 300.320(a)(2)(i) of the 2006 regulations require that the annual goals in a child’s IEP include academic and functional goals designed to “meet the child’s needs that result from the child’s disability to enable the child to be involved in and progress in the general education curriculum.”

The goals are to relate to the areas where the evaluation indicated there is an educational need for services.

At meetings reviewing the evaluation: Ask for specific points where a child’s learning processes break down, and how that impacts classroom learning.

This is where you want to focus in on your goals.

Sometimes the district’s evaluation will be enough to locate these specific points, but often it takes a private professional to do a comprehensive psychoeducational evaluation to find a fuller range of academic strengths and weaknesses

IX. The Right to obtain regular progress reports= Communication

(although benchmarks were not included as a requirement in the 2004 statute, regular progress reports are still mandated by law.)

Key questions to ask at the IEP to ensure that the goals are appropriate and measurable

-How will progress toward these goals be measured?

-How will you monitor my child’s progress?

-How will you document my child’s progress?

-How will you communicate with me regarding my child’s progress?

Communication breakdown—ask the team, who are are to contact to ensure that the progress is being made. When you contact them, you want to know what you are asking for so

Example: sometimes goals are written in terms of grade-level attainment, which can be very confusing to us when we don’t know what the curriculum standards are.

To illustrate: Danny will increase his written expression skills to the beginning fourth-grade level.”

Say what?

How would a parent be able to make sure that he was making progress on that—I would already feel out of the loop.

Effective IEP teams would write something like this: Danny will write two to three paragraphs on a given topic, using correct mechanics (capitalization, ending punctuation), spelling, grammar, sentence structure, and organizations with the following objectives:

One objective: Danny will generate his ideas in correct sequence to formulate two to three paragraphs, using and completing graphic organizers before writing.

Data would be collected and then reported to the parents every quarter of how that is going.

Demand Data—good data. Common method: Curriculum-Based Measurements or CBM—Dibels is an example for early reading skills to predict later reading sufficiency.

Teacher observations, teacher made tests=argue insufficient. We want data that can tell us if the instructional method is effective. Without data, it is someone’s opinion—yikes!

We want data that measures the progress of this individual child over time to ensure that the special education and related services are working for that child.

Note on Methodology: Rowley left it up to the school to determine what is the appropriate specially designed instruction for the child, to be determined with parental involvement.

Ask to have the specially designed instruction named in the IEP so that you can then track what works and what doesn’t work for your child. 34 CFR 300.39(b)(3)

X. The right to be educated in the Least Restrictive Environment

34 C.F.R. 300.114 LRE Requirements

(2)Each public agency must ensure that—

(a) to the maximum extent appropriate, children with disabilities….are educated with children who are nondisabled; and

(b) Special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. (Data Driven)

Start with the inclusion, let data drive the determination of whether the child is/isn’t making progress there with aids and services, before moving to a more restrictive placement.

Checklist: Least Restrictive Environment

Section 1. Whether education can be achieved satisfactorily the regular classroom for a major portion of the school day, with the use of appropriate supplementary aids and services:

1A. Steps taken by the school to try to include the child in a regular classroom in conjunction with supplementary aids and services.

· Has the school considered the whole range of supplementary aids and services, including resource rooms and itinerant instruction?

· Has the school made efforts to modify the regular program to accommodate the child?

· Do the school's efforts constitute at least serious consideration rather than token gestures?

Yes

____

____

____

No

____

____

____

1B. Comparison between the educational benefits in the segregated setting versus those in a regular classroom with supplementary aids and services:

· Does the comparison significantly include social and communication skills as well as academic progress?

· With such a broad scope, would education experts favor the segregated placement in terms of relative benefits to the individual child?

____

____

____

____

1C. Possible negative effects on the education of other children in the regular classroom if the child were integrated with appropriate supplementary aides and services:

· Is there a negative effect so disruptive that the education of the other students is significantly impaired?

· Do the child's disabilities demand so much of the teacher's time that the teacher will be required to ignore the other students?

____

____

____

____

1D. Cost factor depending on the circumstances of the specific case:

· Is the cost of the integrated placement, with appropriate supplementary aids and services, so great that it would significantly impact upon the education of the other children in the district?

____

____

(If most of the answers to questions in Sections IA through ID are "yes,' a segregated placement may be appropriate. In that case, the proposed segregated placement should be evaluated with the questions in Section 2. If most of the Section I answers are "no, " a segregated placement probably would not be appropriate and the Section 2 questions would be irrelevant.)

Section 2. Determining if the proposed placement includes the child in school programs with nondisabled children to the maximum extent appropriate:

· Is it possible to place the child in regular education for some, even if not a significant portion, academic programs?

· Is it possible to place the child in regular non-academic classes?

· Is it possible to provide interaction with nondisabled children during lunch and recess?

Yes

____

____

____

No

____

____

____

(the more answers in Section 2 that are yes, then more likely it is that the proposed segregated placement meets the LRE criteria as defined by current policy and case law.)

.

However, we have far to go to utilize this law to end discrimination in public education.

Example: students with disabilities continue to drop out of high school at higher rates then peers,

Be disciplined at higher rates than their peers

And graduate with a diploma at lower rates than their peers.

Questions?

Posted by Kristin at 11:36 AM 0 comments Email This BlogThis!Share to Twitter Share to Facebook Thursday, September 15, 2011 Tools to determine appropriate assessments Focus on Results article from the MI Office of Special Education and Early Intervention Services
Tools Help Individualized Educational Program
(IEP) Teams Decide Which Assessments to Use for
Students with Disabilities
December 2003

http://focus.cenmi.org/wp-content/uploads/2010/08/GATA_03_05.pdf Posted by Kristin at 6:07 AM 0 comments Email This BlogThis!Share to Twitter Share to Facebook Comparing Section 504, IDEA and ADA Comparing Section 504, IDEA and ADA

Section 504, IDEA, and ADA address the needs of persons with disabilities. The following table provides an overview of the components of these programs and a comparison of their policies for providing services.

Component

Section 504

IDEA

ADA

Type

A Civil Rights Law

An Education Act

A Civil Rights Law

Title

The Rehabilitation Act of
1973

The Individuals with
Disabilities Education Act

Americans with Disabilities
Act of 1990

Purpose

A civil rights law that protects the rights of individuals with disabilities in programs and activities that receive federal financial assistance.

A federal funding statute whose purpose is to provide financial aid to states in their efforts to ensure a free appropriate public education for students with disabilities.

Provides a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.

Responsibility

General Education

Special Education

Public and private schools, business establishments and public buildings.
(services)

Funding

State and local responsibility
(no federal funding)

State, local, and federal. IDEA funds cannot be used to serve students eligible only under Section 504.

Public entities, including schools, business establishments and public accommodations.

Administrator

Section 504 Officer (school systems with 15 plus employees) to coordinate efforts to comply with this law.

Special education director or designee.

ADA Officer is required to coordinate efforts to comply with this law.

Service Mechanism

Individualized Service Plan (ISP). Accommodations and/or related aids and services, including the services of special educators and related service professionals, when the student does not otherwise qualify for special education.

Individualized Education Program (IEP). Some IEPs will include Section 504 accommodations necessary for success in the general classroom.

Reasonable accommodations and other non-discriminatory employment practices.

Population

Identifies person as disabled so long as she/he meets the definition of qualified persons with disabilities; i.e., has a physical or mental impairments, which substantially limits a major life activity, has a record of such an impairment, or is regarded as disabled by others.

Identifies 13 qualifying conditions: autism, deafness, deaf-blindness, hearing impairment, mental retardation, multiple disabilities, orthopedic impairment or other health impairment, serious emotional disturbance, specific learning disability, speech or language impairment, traumatic brain injury, and visual impairment.

Identifies person a disabled so long as she/he meets the definition of a qualified person with disabilities; i.e., has a physical or mental impairment which substantially limits one or more major life activities, has record of such impairment, or is regarded as disabled by others.

Component

Section 504

IDEA

ADA

Eligibility

A person is eligible so long as she/he meets the definition of a qualified person with disabilities, i.e., currently has a physical or mental impairment that substantially limits a major life activity, has a record of such an impairment, or is regarded as disabled by others. The student is not required to need special education services to be protected.

A student is only eligible to receive special education and related services if the multidisciplinary team determines that the student has a disability under one of the 13 qualifying conditions and requires special education services.

A person is eligible so long as she/he meets the definition of a qualified person with disabilities; i.e., currently has a physical or mental impairment which substantially limits one or more major life activities, has a record of such impairment or is regarded as disabled by others.

Free Appropriate Public
Education

A student could receive special education services and/or related aids and services and/or accommodations.

A student must be eligible and need special education before they are entitled to a related service.

Addresses education in terms of accessibility requirements but cannot be read to require a lesser standard than Section 504. Requires private and public entities not to use employment practices that discriminate on the basis of a disability.

Accessibility

Federal regulations regarding building and program accessibility requires that newly constructed or altered facilities comply with applicable physical accessibility standards. The school must provide access to programs and activities located in other facilities.

Requires that modifications must be made if necessary to provide access to a free appropriate public education.

Federal regulations regarding building and program accessibility requires that newly constructed or altered facilities comply with applicable physical accessibility standards. The school must provide access to programs and activities located in other facilities.

Drug and Alcohol Use

Current drug use is not considered a disability. An individual who has stopped using drugs and/or alcohol and is undergoing rehabilitation could be eligible for accommodations.

Drug and alcohol use is not covered under special education.

Current drug use is not considered a disability. Current alcohol abuse that prevents individuals from performing duties of the job or that constitutes a direct threat to property or safety of others is not considered a disability.

Contagious Diseases

Persons are eligible for services and protected from discrimination if the impairment interferes with a major life activity.

Could be eligible under the category of "other health impaired."

Permits qualification standard requiring that an individual with a currently contagious disease or infection not pose a direct threat to the health or safety of others even with accommodations.

Procedural Safeguard

Requires notice to the parent or guardian with respect to identification, evaluation, and placement.

Requires notice to the parent or guardian with respect to identification, evaluation, and placement. Notice provisions
are more comprehensive. Minimum requirements of the notice are specified.

Make provisions for public notice, hearings, and awarding attorney fees.

Self-evaluation and transition plans are required and updated annually.

Component

Section 504

IDEA

ADA

Notice and
Consent

Parents must be notified
and invited to participate in any decision concerning the identification, assessment, evaluation, and placement
of their child. Parents must also be notified of the procedure to appeal decisions concerning any
of these areas.

Written notice is required prior to any change in placement.

Not applicable.

Evaluations

Evaluation draws on information from a variety of sources that address all areas of suspected disability. The SST Team will obtain and review current, complete and reliable information on the student's educational, psychological, medical, and/or social/emotional history and status that is sufficient to (a) fully and accurately identify the nature and extent of any disabilities the student may have and (b) determine the services, if any, that are necessary and appropriate for the student's individual needs. Decisions are made by a group knowledgeable about the student, evaluation data, and placement options. Requires written parental notice. Parental support is a priority.

Requires periodic reevaluation.

Reevaluation is required before a significant change in placement.

No provision is made for independent evaluations at district expense. However, if the District is unable to perform an evaluation necessary to obtain relevant information about a student, the District must arrange for the evaluation to conducted at no cost to the parents.

A full comprehensive evaluation is required assessing all areas related to the suspected disability.
A multidisciplinary team evaluates the student. Consent is required before the initial evaluation is conducted.

Requires reevaluation to be conducted at least every 3 years.

A reevaluation is not
required before a significant change in placement.

Provides for independent educational evaluation. A
due process hearing is available if the school and parent disagree on the need for an independent evaluation.

All schools should conduct or update their Section 504 self-evaluation regarding services, accessibility, practices, and policies to assure discrimination is not occurring with any individual with disabilities.

Component

Section 504

IDEA

ADA

Services

When interpreting evaluation data and making service decisions, both laws require districts to:

■

draw upon information from a variety of sources

■

assure that all information is documented and considered

■

the service decision is made by a group of persons including those who are knowledgeable about the student, the disability, the meaning of the evaluation data, and placement options

■

ensure that the student is educated with his/her nondisabled peers to the maximum extent appropriate (Least Restrictive Environment--LRE)

■

require notice and evaluation before any change of services.

Not applicable

Review of Program

Accommodations should be reviewed periodically

An IEP review meeting is required at least annually, or before any significant change.

Not applicable

Grievance Procedures

Requires districts to provide a grievance procedure for parents, students, and employees.

Does not require a grievance procedure. Complaint Procedures (SEA)

Any school district shall adopt and publish grievance procedures for resolution of ADA complaints.

Complaint Procedures

An individual or organization may file a complaint with the Office for Civil Rights (OCR). An OCR compliant must be filed, in writing, within 180 days after the violation has occurred. In certain cases, OCR will consider complaints where more than 180 days have elapsed.

A formal complaint process is required. Parents can file a complaint with the state, a decision must be provided within 60 days.

An individual or organization may file a complaint with the Office for Civil Rights. An OCR complaint must be filed, in writing, within 180 days after the violation has occurred. In certain cases OCR will consider complaints where more than 180 days have elapsed.

Due Process

Requires districts to provide impartial hearings for parents or guardians who disagree with the identification, evaluation, or placement of student with disabilities. School districts or
parents can initiate due process hearings.

Requires that the parent have an opportunity to participate and be represented by counsel. Other details are left to the discretion of the local school district. See the procedures
regarding 504 due process hearings in the District Administrative Procedure 6025, Appendix E, Section C.B. and/or C.9.

Delineates specific requirements.

Either party can initiate due process hearings. The court may allow a reasonable attorney's fee for the prevailing party.

Component

Section 504

IDEA

ADA

Mediation

Not required, however mediation should always be suggested.

Exhaustion

Administrative hearing is not required prior to OCR involvement or court action.

The parent or guardian should exhaust all administrative hearings before seeking court action.

An administrative hearing is not required prior to OCR involvement or court action.

Enforcement

Enforced by the U.S. Office for Civil Rights. The regional office is part of the U.S. Department of Education located at:

50 Beale Street, Suite 7200
San Francisco, CA 94105

Enforced by the U.S. Office of Special Education Programs. The State Board of Education and the Office of Special Education Programs monitor compliance.

Enforced by the U.S. Office for Civil Rights, the EEOC, or the U.S. Department of Justice, depending on the issue involved.

Discipline of Students

with Disabilities

Requires that a school district evaluate any student with disabilities before making an initial placement or any subsequent, significant change in his or her placement, and when a proposed exclusion of a student with disabilities is permanent (expulsion), for an indefinite period, or for more than 10 consecutive school days.

Before implementing a suspension or expulsion that constitutes a significant change in the student's placement, the school must conduct a reevaluation to determine if the behavior was caused by the disability and whether the student was properly placed and receiving appropriate services at the time of the behavior.

If there is no relationship between the disability and the behavior, and if the student was properly placed and receiving appropriate services, the school can expel the student. The school is not required to provide services and/or accommodations during the expulsion period.

Requires that a school district evaluate any student with disabilities before making an initial placement or any subsequent, significant change in his or her placement. The proposed exclusion of a student with disabilities that is permanent (expulsion), for an indefinite period, or for more than 10 consecutive school days, constitutes a "significant change in placement."

Before implementing a suspension or expulsion that constitutes a significant change in the student's placement, the school must conduct a reevaluation to determine if the behavior was caused by the disability.

If there is no relationship between the disability and the behavior, the school can expel the student but still needs to provide a free and appropriate public education. This means special education services outlined in the IEP.

Not applicable.

Reproduced with permission from the North Dakota Department of Public Instruction.

Source: Section 504/ISP Guidelines for Educators, San Diego Unified School District, 2010.

LRP July 21, 2010

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