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Advocating For Your Child With Special Needs
Josh Kershenbaum, Esq.
Kristy M. Asral, M.Ed.
Introductions
Josh Kershenbaum, Esq.
Frankel & Kershenbaum, LLC(610) 260-6054 • [email protected]
Kristy M. Asral, M.Ed.
Asral Behavioral Consulting Services, Inc.
(267) 885-4886 • [email protected]
Goals
LEARN ABOUT:
• Your child’s RIGHTS
• Strategies for successful ADVOCACY
• Area and online RESOURCES
LEARN FROM:
• Us
• Each other
The Law
• Federal AND State Laws
• Individuals With Disabilities in Education Act (IDEA)
• Section 504 of the Rehabilitation Act (504)
• Chapter 14 of the Pa. Code (Special Education)
• Chapter 16 of the Pa. Code (Gifted)
IDEA & 504
• What is IDEA?– Federal Law (Compliance = Federal $$)
– Individuals with Disabilities IN EDUCATION Act
• What is Section 504?– Federal Anti-Discrimination Law– Protects people with disabilities generally; not only
kids, and not only in school
Pennsylvania Laws
• Ch. 14 of the Pa. Code (Special Education)
• Ch. 16 of the Pa. Code (Gifted)
• Why do we care?– Affords some additional protections
• Examples:– Dual enrollment– Gifted
Be a Law Nerd!
• IDEA: http://idea.ed.gov/
• 504: http://www2.ed.gov/about/offices/list/ocr/504faq.html
• Ch. 14 (Pa. Code): http://www.pacode.com/secure/data/022/chapter14/chap14toc.html
• Ch. 16 (Pa. Code):http://www.pacode.com/secure/data/022/chapter16/chap16toc.html
Stages of the Process• DIAGNOSIS (Evaluation)
– By Doctors/other professionals– By School
• Is your child ELIGIBLE for special education & related services?– IDEA Part C: Infants and toddlers (0-2)– IDEA Part B: Ages 3-21
• What is the APPROPRIATE placement for your child?– Individualized Education Plan (IEP) and/or 504 Plan– Behavioral Plan– Private School Placement
• Is your child making MEANINGFUL PROGRESS?
• How to RESOLVE DISPUTES?
Diagnosis (Evaluation)• Initial Evaluation
– “Child Find” - Districts must identify children with special educational needs.
• Reevaluations– At least every three years– Can request one per year
• Independent Educational Evaluations (IEEs)– At District’s expense– District can refuse and request a hearing
Diagnosis (Evaluation)
• Initial Evaluation (by school):– Notice and Consent (permission to evaluate)– To determine eligibility and placement– Must consider parental input and other
evaluations/recommendations– All areas of suspected disability– Valid measures– Qualified practitioners– NOT JUST IQ
Diagnosis (Evaluation)
• Reevaluations– Notice and consent (permission to evaluate)– Measures progress (or lack thereof)– Before decreasing or terminating services– Qualified practitioners– Valid measures– At least 1x/3yrs; Can request 1x/year.
Diagnosis (Evaluation)
• Independent Educational Evaluation (IEE)– If you disagree with District’s evaluation– At District’s expense– You choose the evaluator– District can refuse and ask for hearing to
defend its evaluation– TIP: Schedule ahead of time!
Eligibility for Special Education & Related Services
• Eligibility under IDEA
– “Child with a disability” - IDEA § 1401(3)
– “who, by reason thereof, needs special education and related services.”
Eligibility for Special Education & Related Services• Who is a “child with a disability” under IDEA (AND Pennsylvania law)?
(20 U.S.C. §1401(3); 34 C.F.R. § 300.8)
– Learning disabilities – Mental retardation – Emotional disturbance (disability or disorder) – Other health impairment – Orthopedic impairment – Severe disabilities – Autism – Traumatic brain injury – Hearing impairment or Deafness – Visual impairment or Blindness – Multiple disabilities – Developmental delay (PA State Law: Age 3 – age for First Grade): (Delay by 25% of age
or 1.5 SD below the mean in cognitive, communicative, social/emotional or self-help).
Eligibility for Special Education and Related Services
• Eligibility under 504No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .“
– “Individual with a disability disability”Physical or mental impairment that limits at least one major life activity. (seeing, walking, hearing, speaking, breathing, reading, writing, calculating, working, caring for self, manual tasks, and others…)
Eligibility for Special Education and Related Services
• Limitations of § 504:– Not individualized:
• It’s about EQUAL ACCESS, not EDUCATIONAL BENEFIT
– Fewer procedural protections than IDEA– Less clearly defines rules
Eligibility for Special Education and Related Services
• IDEA vs. 504– Eligible under IDEA = Eligible under 504
• Not necessarily the other way around!– IDEA: Individually tailored to your child’s unique needs
– 504: Access that is equal to that of non-disabled students
– IDEA has elaborate procedural protections for parents (notice, timelines, etc.)
– 504’s: EQUAL ACCESS
– IDEA: INDIVIDUALIZED EDUCATION
– http://www2.ed.gov/about/offices/list/ocr/504faq.html#interrelationship
Eligibility for Special Education and Related Services
• What is your child entitled to under IDEA? – FAPE: Free and Appropriate Public Education
• Free – no cost to parents
• Appropriate– Meaningful progress– Follows IEP– Individualized to child’s needs
• Public education– Special education and “related services”
Eligibility for Special Education and Related Services
• What is “Special Education”?
“Specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability, including: (A) instruction … in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education.” -
20 U.S.C. § 1401(29); see 34 CFR § 300.39
Eligibility for Special Education and Related Services
• What is “Specially Designed Instruction” (SDI)?
Adapting, as appropriate to the needs of an eligible child . . . the content, methodology, or delivery of instruction:
(1)To address the unique needs of the child that result from the child's disability; and
(2) To ensure access of the child to the general curriculum, so that the child can meet the educational standards within the jurisdiction of the public agency that apply to all children.
34 CFR § 300.39
Eligibility for Special Education and Related Services
• What are “Related Services”?
“… transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes early identification and assessment of disabling conditions in children.
20 U.S.C. § 1401(22); See 34 CFR § 300.34
Eligibility for Special Education and Related Services
• What is NOT included?– Medical services
• Provided by a physician• Except those needed to determine eligibility and
placement• Implantable medical devices (e.g. cochlear
implants), including maintenance and replacement
Placement• Least Restrictive Environment (LRE)
– Your child is entitled to FAPE in the LRE– Law prefers “Inclusion” (“mainstreaming)
• But only “to the maximum extent appropriate” (in which educational progress can be made)
– Less inclusion = “More restrictive”– Sometimes, most appropriate = more restrictive. – Based on the CHILD’S individual needs, not the school’s
resources.
Placement
• Individualized Education Plan (IEP)
• 504 Plan
• Positive Behavioral Intervention Plan (BIP)– What is it? – How to get one?
Placement
• Individualized Educational Plan (IEP)– Must:
• Annual review• Present levels of academic achievement and
functional performance.• Measurable goals to make meaningful progress• Specifically Designed Instruction• Transition plan (starting at 16 y/o)• AND MORE… • MODEL IEP: http://www.pattan.net/files/Forms/English/IEP-
ANN110409.pdf
Placement
• Functional Behavioral Assessment (FBA) and Positive Behavioral Support Plan (PBSP) – If child is exhibiting disruptive behaviors that
interfere with learning.
Steps:• FBA : Data collection tool - identify target behavior, function, • Create Behavior support plan –spell out how staff, peer,
parent, child should change, teach replacement behavior, etc.
Placement
• Private School Placements– If District cannot provide FAPE, it must pay for
it to be provided elsewhere. – Parents can place child in private school and
sue for tuition reimbursement• Unilateral placement• Forest Grove case• Must give 10 days prior written notice
Progress Monitoring• What is “meaningful progress”?
– Depends in part on ability
• How should it be measured? – Grades are NOT ENOUGH
• Recent and accurate data across time
• How much progress is “good enough”?– Must be meeting goals– Must comply with IEP– Achievement scores should be going UP
Dispute Resolution
• IEP Meeting and Notice of Recommended Educational Placement (NOREP)
• Informal Meeting
• Mediation
• Due Process Hearing
• Appeals to Federal Court
• Damages (What you can/can’t “get”)
Dispute Resolution
• IEP Meeting and Notice of Recommended Educational Placement (NOREP)– Purpose– Requirements– Strategies
Dispute Resolution
• Strategies for effective IEP meeting– Prepared in advanced– All documents ahead of time (get and share)– Question list– Parent input letter– Bring a “friend”?– Tape recording?– Don’t sign the NOREP!
Dispute Resolution
• Informal Meeting
Dispute Resolution
• MediationOffice of Dispute Resolution: http://odr.pattan.net/
Dispute Resolution
• Due Process Hearing– Either side can request– Like a trial, but less formal– CAN have attorney; District WILL have one.– Witnesses (including experts)– Evidence– Hearing officer will rule
Dispute Resolution
• Appeals to Federal Court– Either side can appeal Hearing Officer’s
decision to Federal Court– Cannot go to Federal Court before Due
Process for IDEA claims. – Can go straight to Federal Court on pure 504
claims.
Dispute Resolution
• Damages (What you can/can’t “get”)– CAN recover:
• Compensatory Education (Trust Fund)• Tuition Reimbursement• Attorneys’ Fees and Costs
– CAN’T recover:• Punitive Damages• Pain and Suffering (emotional damages)• Non-attorney advocate fees and costs • Damages outside 2-Year Statute of Limitations
Other Issues
• Discipline in School– Students may not be punished for behaviors that are the result
of their disabilities.– IDEA: Strict protections
• “Manifestation Review”
– http://www.wrightslaw.com/info/discipl.index.htm
• Medication– District cannot REQUIRE that you medicate your child (e.g.,
Ritalin, etc.)• Insurance (Medicaid, other)
– District cannot require that you use your insurance to pay for services.
Other Issues
• Special Needs Trusts– Essential part of estate planning for ALL
parents of children with special needs– Protects child’s access to state and federal
benefits (Medicaid, Medicare, etc.)– Do not “do it yourself.”– Consult with an attorney
The Fab Five
1. Be Organized!– Keep everything in one binder
– Try to keep everything in chronological order
– Keep a phone log
2. Trust Your Instincts– Parents know best!
3. Know Your Rights– Do not rely on the District to educate you
4. Document EVERYTHING; Throw away NOTHING– Dates, names, locations, phone calls, emails, etc.
5. Don’t Go It Alone– Bring a friend, partner, spouse, advocate or lawyer to all meetings.
Lawyers and Advocates
• Do you need one?
• Lawyer, Advocate or Both?
Web Resources
• www.WrightsLaw.com• www.Pattan.net• www.COPAA.org• Education Law Center: www.elc-pa.org• PA Health Law Project: www.PHLP.org• www.DaveFrankel.com• www.AsralBehavioralConsulting.com
Contact Us
Josh Kershenbaum, Esq.Frankel & Kershenbaum, LLC
Four Tower Bridge200 Barr Harbor Drive, Suite 400West Conshohocken, PA 19428
(610) 260-6054 [email protected]
Kristy Asral, M.Ed.Asral Behavioral Consulting Services, Inc.
(267) 885-4886 • [email protected]
