In addition to the information that must be considered when developing any IEP document, and in addition to the required IEP content, the IDEA requires the IEP team to take into consideration "special factors" in specifically designated circumstances. Those situations give rise to additional information that often must be addressed and included in the IEP document.
Under 20 U.S.C. section 1414(d)(3), Special Factors to be considered by the IEP Team include the following:
Behavior needs and behavioral interventions
"In the case of a child whose behavior impedes the child's learning or that of others, [the IEP Team shall] consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior." 20 U.S.C. section 1414(d)(3)(B)(i).
In consideration of this special factor, the IEP team first has to determine whether the child's behavior impedes his/her learning or that of others. This determination can be based on data from a variety of sources, including teacher input, observational data, or an assessment in this area, such as a Functional Behavior Assessment (FBA). A child's behavior can be determined to "impede" learning based on a number of reasons. If the child's behavior results in removal from class because of disciplinary reasons, this may "impede" his/her learning because he/she is not available in the classroom to recieve instruction. If the child's behavior is disruptive, it may impede the learning of others because they lose instructional time. The team's determination with regards to this issue should be clearly documented within the IEP, so that information regarding what behaviors specifically exist and how they impede the learning of the child or others is clear to all of those developing and implementing the IEP.
Once the determination is made that behaviors exists that impede the learning of the child or others, then the IEP team is mandated to consider the use of strategies and supports to address that behavior. The IDEA refers to "positive behavior interventions and supports" as well as "other strategies."
Language Needs
"In the case of a child with limited English proficience, consider the language needs of the child as such needs relate to the child's IEP." 20 U.S.C. section 1414(d)(3)(B)(ii)
Instruction in Braille
"In the case of a child who is blind or visually impaired, [the IEP Team shall] provide for instruction in Braille and the use of Braille unless the IEP team determines, after an evaluation of the child's reading and writing skills, needs and appropriate reading and writing media (including an evaluation of the child's future needs for instruction in Braille or the use of Braille), that instruction in Braille is not appropriate for the child." 20 U.S.C. section 1414(d)(3)(B)(iii)
Communication needs
The IEP Team shall "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 langauge and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the child's language and communication mode." 20 U.S.C. section 1414(d)(3)(B)(iv)
Assistive Technology
The IEP Team shall "consider whether the child needs assistive technology devices and services." 20 U.S.C. section 1414(3)(B)(v).
Assistive Technology services under the IDEA means any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device. See 20 U.S.C. 1401(2); 34 CFR 300.6. Assistive Tecnology devices are pieces of equipment or other items utilized to maintain or to improve the child's functional capabilities and enable them to access their learning environment and the curriculum. An AT device can be something high-tech, like advanced computer softward or devices, or something as low-tech as a pencil grip.
The IEP team is required to consider the child's unique needs and make a determination regarding whether the child requires AT. If the child does require AT, this must be documented within the IEP. It may not be necessary for the District to write in the exact device name, but enough information should be included to specify what type of device is to be used and what purpose it will serve, as well as what services will be provided to the child (including frequency and duration) related to the device.
Showing posts with label related services. Show all posts
Showing posts with label related services. Show all posts
Thursday, November 4, 2010
Tuesday, October 26, 2010
Breaking Down the IEP: Postsecondary Goals & Transition Services
For a student who is 16 or older, or who will turn 16 while this IEP is in effect, the IDEA requires that the written IEP document include:
"(aa) appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills; (bb) the transition services (including courses of study) needed to assist the child in reaching those goals; and (cc) beginning not later than one year before the child reaches the age of majority under State law, a statement that the child has been informed of the child's rights... that will transfer to the child on reaching the age of majority..."
20 U.S.C. section 1414(d)(1)(A)(VII).
"The big picture"
Transition planning is arguably one of the most important parts of the special education process. When enacting the IDEA, Congress recognized that:
20 U.S.C. section 1400(a)
The very first "purpose" of the IDEA as contained in the statute states:
20 U.S.C. section 1400(d)(1)(A).
Thus, the IDEA places importance on educating students with disabilities so that they are prepared for "further education, employment, and independent living," and in order to allow them to enjoy "full participation, independent living and economic self-sufficiency" in society. Without appropriate transition planning, these purposes could not be met.
When does this apply?
The requirement that the IEP document contain postsecondary goals and transition services begins at age 16. This means that the IEP that will be in effect at the time that the child turns 16 will need to meet these requirements. It is not OK for the District to wait until the next IEP review taking place after the child's 16th birthday to add postsecondary goals and transition services to the IEP.
What are postsecondary goals?
Postsecondary goals are measurable goals related to the student's prospective outcomes for after high school - how and where the student will live, work, engage in the community, and receive further education. Postsecndary goals should be based upon transition assessments and take into consideration the student's strengths and weaknesses. In developing postsecondary goals for the IEP, the student's preferences and long-term plans become more relevant and important to consider. The IDEA specifies that transition planning be "results-oriented," so it is appropriate for post-secondary goals to look forward to the results or outcomes that the student desires and which are appropriate for that individual students. Goals can be related to further education, empolyment, independent living, community participation, etc. Setting clear and measureable postsecondary goals will allow the IEP team to determine what transition services, related services, and specialized education will be necessary to achieve those goals.
What are transition services?
The IDEA defines transition services as
"A coordinated set of activities and services for a child with a disability that
(1) is designed to be within a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability or to facilitate the child's movement from school to post school activities, including postsecondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;
(2) is based on the individual child's needs, taking into account the child's strengths, preferences and interests; and includes (i) instruction, (ii) related services, (iii) community experiences, (iv) the development of employment and other post-school adult living objectives, and (v) if appropriate, acquisition of daily living skills and provision of a functional vocational education."
"(aa) appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills; (bb) the transition services (including courses of study) needed to assist the child in reaching those goals; and (cc) beginning not later than one year before the child reaches the age of majority under State law, a statement that the child has been informed of the child's rights... that will transfer to the child on reaching the age of majority..."
20 U.S.C. section 1414(d)(1)(A)(VII).
"The big picture"
Transition planning is arguably one of the most important parts of the special education process. When enacting the IDEA, Congress recognized that:
Disability is a natural part of the human experience and in no way diminishes the right of individuals to participate in or contribute to society. Improving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent living and economic self-sufficiency for individuals with disabilities.
20 U.S.C. section 1400(a)
The very first "purpose" of the IDEA as contained in the statute states:
to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.
20 U.S.C. section 1400(d)(1)(A).
Thus, the IDEA places importance on educating students with disabilities so that they are prepared for "further education, employment, and independent living," and in order to allow them to enjoy "full participation, independent living and economic self-sufficiency" in society. Without appropriate transition planning, these purposes could not be met.
When does this apply?
The requirement that the IEP document contain postsecondary goals and transition services begins at age 16. This means that the IEP that will be in effect at the time that the child turns 16 will need to meet these requirements. It is not OK for the District to wait until the next IEP review taking place after the child's 16th birthday to add postsecondary goals and transition services to the IEP.
What are postsecondary goals?
Postsecondary goals are measurable goals related to the student's prospective outcomes for after high school - how and where the student will live, work, engage in the community, and receive further education. Postsecndary goals should be based upon transition assessments and take into consideration the student's strengths and weaknesses. In developing postsecondary goals for the IEP, the student's preferences and long-term plans become more relevant and important to consider. The IDEA specifies that transition planning be "results-oriented," so it is appropriate for post-secondary goals to look forward to the results or outcomes that the student desires and which are appropriate for that individual students. Goals can be related to further education, empolyment, independent living, community participation, etc. Setting clear and measureable postsecondary goals will allow the IEP team to determine what transition services, related services, and specialized education will be necessary to achieve those goals.
What are transition services?
The IDEA defines transition services as
"A coordinated set of activities and services for a child with a disability that
(1) is designed to be within a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability or to facilitate the child's movement from school to post school activities, including postsecondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;
(2) is based on the individual child's needs, taking into account the child's strengths, preferences and interests; and includes (i) instruction, (ii) related services, (iii) community experiences, (iv) the development of employment and other post-school adult living objectives, and (v) if appropriate, acquisition of daily living skills and provision of a functional vocational education."
Friday, February 26, 2010
News Alert: Stay Put Awarded to Preschooler with Autism and Apraxia
Today, Mandy Favaloro of A2Z Educational Advocates won a stay put order from the U.S. District Court for the Central District of California in a factually complicated case involving a preschooler with Autism and Apraxia. The victory is a small victory, in that it means only that the child continues to recieve the disputed services during the time that our case is going forward, and does not determine what the ultimate outcome will be. But it is a significant victory in this case nonetheless, not only for this family, but on the bigger issue of stay put in general.
Stay put means that a school district must maintain a student in their "current educational placement" during the pendency of a dispute (at the administrative and subsequent judicial levels) between parents and the school district. "Then current educational placement" refers to that which was in place, agreed upon and implemented (usually) prior to the dispute arising.
In the 9th Circuit (and in some, but not all, other circuits), case law establishes that stay put acts as an "automatic injunction." In other words, when a case is pending, it is a given that the child will continue in his / her current program. Parents filing for an order determining stay put need only establish what the student's current program is, and are not required to establish all of the factors that would be considered ordinarily when a party to an action is seeking injunctive relief.
Sounds simple, right? And in many cases it can be. A child is in a general education class, which has been written into her IEP, consented to by the parents, and implemented. The District proposes to change Child's placement to a special education class, and parents disagree. When parents file for a due process hearing, it is "automatic" that the child should continue in the general education classroom during the pendency of the dispute.
Not all cases are so simple, and determining what makes up a child's "current educational placement" can in fact involve many different factors. Such was this case, and the daunting challenge facing Mandy and the A2Z team has been to effectively piece together rules and holdings from various cases in order to establish the totality of what should be stay put for this particular child.
This case is complicated, in part because the IEP "in dispute" is the child's initial IEP when he transitioned to the school district at age 3. It is complicated because there has never been a fully agreed upon and implemented IEP. Parents agreed upon some parts of the initial IEP and a subsequent IEP, but not all, and District implemented some, but not all, of what parents consented to. It is complicated by the fact that now, there is a decision from an ALJ in an underlying due process case, a decision that finds in favor of parents on some issues and the district on others; a decision that is being appealled by parents now, but only partially. The fact that the decision ordered reimbursements for specific services funded by the parents in the past throws another kink into the analysis, as does the fact that the order for prospective services is less clear than the order of compensatory remedies.
So what is stay put and how do we determine it in such a complicated case? Here are the issues and what we can learn from this case:
(1) Unilateral Placement (i.e. private school specifically) at Parents Expense Does Not Automatically Prevent Parents from Accessing Stay Put
In this case, stay put includes a program that is funded in part by parents and in part by the District. Because parents did not win on their unilateral placement argument (specifically as to the private school itself) at the due process level, and are appealing that finding, there is no requirement that the District would have to now pay for the private school during the pendency of the dispute. It is important to note that, contrary to the District's assertion, Parents did not ask for District funding for the private placement as part of stay put. His "status quo" at the time of the appeal included placement in the private school at parent expense. It is also important to note that the fact that parents decided to maintain that status quo while they appealed the finding regarding the private school of the ALJ did not prohibit them from receiving other services funded by the district as part of stay put.
(2) Continuation of Agreed Upon and Implemented Services is Necessary
The basic principles of stay put require that those components of the program to which the District and parent have agreed, and have been "in place" prior to this dispute, must continue to be provided. Here, there were services from the child's initial IEP which had been agreed upon and implemented, and those services must continue. The District argued that because the ALJ did not agree with Parents regarding the private school (unilateral placement) that they sought, and yet Parents chose to continue in that program, the Student was no longer entitled to services. The Court disagreed, and said that inherent in the stay put provision is the requirement that the District continue those services that were already agreed upon and in place.
(3) "Otherwise agree" includes that which is ordered by an ALJ (and not appealled by parents)
Stay put typically includes the program identified in a child's previously agreed upon IEP, unless parents and the district "otherwise agree." This court found that "where the due process hearing officer 'agrees with the child's parents that a change of placement is appropriate, that placement must be treated as an agreement between the State and the parents' for purposes of stay put." (citing 34 C.F.R. 300.518(d)). Further, "an order for reimbursement predicated on a finding that a previous IEP was substantively inappropriate 'constitutes a change in the child's current educational placement for purposes of interpreting [stay put].'"
Here, the ALJ's order included specifically identified reimbursements for services funded by parents as a result of their dispute with the district's offered program. The school district attempted to argue that no "agreement" had occurred because the ALJ disagreed with parents on some aspects of what they sought (like the private school).
The Court found that the District's argument completely ignored the fact that the District is "required to provide those special education and related services that are not in dispute," and further stated:
Ultimately, the court ruled in parents favor and ordered that the District fund the services, while parents continue to fund the private school placement. The services that make up this child's stay put include a combination of those agreed to from the initial and subseuqent IEPs (and thereafter implemented by the District) and of those that the parents previously funded and were awarded reimbursement for in the ALJ's decision. As to the latter, the stay put order specifically identifies the service providers, as they were identified specifically in the reimbursement order by the ALJ, meaning that in this case, the student's stay put will continue to include his current providers specifically.
Mandy did an outstanding job piecing together cases and rulings to make a strong and effective argument in this very complicated stay put case. As this is her very first District Court case as an attorney of record for parents, I think she deserves much props for this outcome. It stands to show that with zealous and dedicated advocacy, coupled of course with a situation where the law is in Parents favor (and someone with the legal savy to be able to show that it is in their favor, even when it's complicated), a positive result CAN happen for students and parents!
A redacted copy of this decision will shortly be posted on A2Z's website.
Stay put means that a school district must maintain a student in their "current educational placement" during the pendency of a dispute (at the administrative and subsequent judicial levels) between parents and the school district. "Then current educational placement" refers to that which was in place, agreed upon and implemented (usually) prior to the dispute arising.
In the 9th Circuit (and in some, but not all, other circuits), case law establishes that stay put acts as an "automatic injunction." In other words, when a case is pending, it is a given that the child will continue in his / her current program. Parents filing for an order determining stay put need only establish what the student's current program is, and are not required to establish all of the factors that would be considered ordinarily when a party to an action is seeking injunctive relief.
Sounds simple, right? And in many cases it can be. A child is in a general education class, which has been written into her IEP, consented to by the parents, and implemented. The District proposes to change Child's placement to a special education class, and parents disagree. When parents file for a due process hearing, it is "automatic" that the child should continue in the general education classroom during the pendency of the dispute.
Not all cases are so simple, and determining what makes up a child's "current educational placement" can in fact involve many different factors. Such was this case, and the daunting challenge facing Mandy and the A2Z team has been to effectively piece together rules and holdings from various cases in order to establish the totality of what should be stay put for this particular child.
This case is complicated, in part because the IEP "in dispute" is the child's initial IEP when he transitioned to the school district at age 3. It is complicated because there has never been a fully agreed upon and implemented IEP. Parents agreed upon some parts of the initial IEP and a subsequent IEP, but not all, and District implemented some, but not all, of what parents consented to. It is complicated by the fact that now, there is a decision from an ALJ in an underlying due process case, a decision that finds in favor of parents on some issues and the district on others; a decision that is being appealled by parents now, but only partially. The fact that the decision ordered reimbursements for specific services funded by the parents in the past throws another kink into the analysis, as does the fact that the order for prospective services is less clear than the order of compensatory remedies.
So what is stay put and how do we determine it in such a complicated case? Here are the issues and what we can learn from this case:
(1) Unilateral Placement (i.e. private school specifically) at Parents Expense Does Not Automatically Prevent Parents from Accessing Stay Put
In this case, stay put includes a program that is funded in part by parents and in part by the District. Because parents did not win on their unilateral placement argument (specifically as to the private school itself) at the due process level, and are appealing that finding, there is no requirement that the District would have to now pay for the private school during the pendency of the dispute. It is important to note that, contrary to the District's assertion, Parents did not ask for District funding for the private placement as part of stay put. His "status quo" at the time of the appeal included placement in the private school at parent expense. It is also important to note that the fact that parents decided to maintain that status quo while they appealed the finding regarding the private school of the ALJ did not prohibit them from receiving other services funded by the district as part of stay put.
(2) Continuation of Agreed Upon and Implemented Services is Necessary
The basic principles of stay put require that those components of the program to which the District and parent have agreed, and have been "in place" prior to this dispute, must continue to be provided. Here, there were services from the child's initial IEP which had been agreed upon and implemented, and those services must continue. The District argued that because the ALJ did not agree with Parents regarding the private school (unilateral placement) that they sought, and yet Parents chose to continue in that program, the Student was no longer entitled to services. The Court disagreed, and said that inherent in the stay put provision is the requirement that the District continue those services that were already agreed upon and in place.
(3) "Otherwise agree" includes that which is ordered by an ALJ (and not appealled by parents)
Stay put typically includes the program identified in a child's previously agreed upon IEP, unless parents and the district "otherwise agree." This court found that "where the due process hearing officer 'agrees with the child's parents that a change of placement is appropriate, that placement must be treated as an agreement between the State and the parents' for purposes of stay put." (citing 34 C.F.R. 300.518(d)). Further, "an order for reimbursement predicated on a finding that a previous IEP was substantively inappropriate 'constitutes a change in the child's current educational placement for purposes of interpreting [stay put].'"
Here, the ALJ's order included specifically identified reimbursements for services funded by parents as a result of their dispute with the district's offered program. The school district attempted to argue that no "agreement" had occurred because the ALJ disagreed with parents on some aspects of what they sought (like the private school).
The Court found that the District's argument completely ignored the fact that the District is "required to provide those special education and related services that are not in dispute," and further stated:
The IDEA's implementing regulations require only that the ALJ agree with the
parents that "a change of placement is appropriate," not that
all changes are appropriate, in order to establish an agreement between the
State and the parents for the purposes of stay put."
Ultimately, the court ruled in parents favor and ordered that the District fund the services, while parents continue to fund the private school placement. The services that make up this child's stay put include a combination of those agreed to from the initial and subseuqent IEPs (and thereafter implemented by the District) and of those that the parents previously funded and were awarded reimbursement for in the ALJ's decision. As to the latter, the stay put order specifically identifies the service providers, as they were identified specifically in the reimbursement order by the ALJ, meaning that in this case, the student's stay put will continue to include his current providers specifically.
Mandy did an outstanding job piecing together cases and rulings to make a strong and effective argument in this very complicated stay put case. As this is her very first District Court case as an attorney of record for parents, I think she deserves much props for this outcome. It stands to show that with zealous and dedicated advocacy, coupled of course with a situation where the law is in Parents favor (and someone with the legal savy to be able to show that it is in their favor, even when it's complicated), a positive result CAN happen for students and parents!
A redacted copy of this decision will shortly be posted on A2Z's website.
Monday, August 31, 2009
Back to School: Help I need a placement! (and other concerns)
It's back to school time around here, with some school districts starting back this week and many starting immediately after Labor Day. As expected, it is a busy time for all of us advocates and attorneys. Here are some of the concerns we hear all too often from parents as school starts back:
1) Where is my kid going to school?!
One of the common back-to-school disasters happens when a kid doesn't have a placement. Knowing where your kid will be in school when the year starts out seems like a pretty basic question, regardless of if your kid is on an IEP. How, you may ask, could not having a placement possibly happen?! Here are some examples based on real-life scenarios:
Scenario A: Child has been in an SDC for the past couple of years and now has "aged out" of that particular class. Parents disagreed with the offer of placement for the next school year, as the new SDC is substantially different and won't meet their kids needs. The school year starts, and parents and district are still in dispute. A problem arises because there is no "stay put" placement, since the child aged out of the previous classroom. Where does the kid go for the first day of school?
Scenario B: Child's specialized program, which the IEP team offered for this school year in the most recent IEP last spring, closed down over the summer based on an "administrative decision" and probably due to budgetary concerns, and no staff was available at that time to hold an IEP meeting.
Scenario C: Family moved into a new school district over the summer, and did not take the IEP document in to the school district because the office was closed, or they didn't know where to take it, or whatever the reason. On the first day of school, parents show up with the kid and the IEP, but the District does not have a placement readily available that is comparable to what the child previously received.
Scenario D: Child had significant emotional problems during the previous school year, to the point that he/she was unable to attend school due to anxiety. Parents requested assessments and an IEP at the end of the year, which have not yet been completed. Because there is no IEP, there is no offer of an appropriate placement, but because of the significant anxiety, child's doctor says he/she cannot return to school without a different program in place.
There are many scenarios which could lead to an issue about placement at the start of the school year. Advocates and parents (and districts) are often scrambling around at the last minute to locate an option that can be implemented. Here are a few tips on dealing with this:
Make lots of phone calls! In these circumstances, talking to a live person about the urgency of your concerns may get you further than starting off by sending a letter documenting all of the ways the district is out of compliance. That's not to say that you won't need to ultimately document all of your concerns, but starting out with a personal call may be the best first step.
Consider alternatives, but don't compromise your ultimate position. It's likely that what you are facing is a situation where there is a placement dispute that you may need to deal with further down the line through additional IEP meetings and due process complaints. In the meantime, you may have to be willing to accept some other alternative so that your child can go to school. Even if it isn't the best case scenario, this may be a situation where something is better than nothing, so you may need to consent to the placement being offered while documenting that you don't believe it is appropriate and you want to have an IEP meeting to discuss placement.
Try to anticipate these disputes. Although school is not in session and timelines for things like holding IEP meetings or conducting assessments may be different, parents can still pursue due process and all of their related rights during the summer. If you can anticipate that there will be a placement problem in the fall, try to resolve it early on. And if you have to file for due process, do so early in the summer so that the issue may be addressed in mediation, and so that you will have time to file for stay put before the school year starts if you have to.
Don't keep the kid out of school unless there is not any other option, or unless the child will be harmed in some way by going to school. Ultimately, it is the parent's choice, not the advocate's / attorney's. Parents have many factors that they have to weigh in these situations. If there is no placement in place, and the District offers something inappropriate for the start of the school year, you have to balance the advantages / disadvantages of keeping your child at home versus advantages / disadvantages of sending your child to an inappropriate placement. These are tough decisions! But ultimately, refusing to allow your child to attend the school at all, barring some clear indication that the child would be harmed, may work against you in later disputes.
2) I just got a call from the school - and they don't have an aide for my child!
This happens more often than you would think. It's the week before school, or even the day before, and parents get a phone call to say "we don't know if your child can start on the first day because we can't find an aide."
Is the aide support called for in your IEP to be provided by District staff or through a Non-Public Agency? If the aide is to be provided through an NPA, you may be able to do some of the "leg-work" yourself. Start calling around to see if any of the NPAs in your area have an aide available, then let the school know what you found out. Sometimes it is just a matter of getting the information to the right people.
Remind the District that compliance with the IEP is mandatory. If the District is saying that your child can't attend school because they don't have an aide (or other support) in place yet, document that statement in writing and also document your concerns regarding the fact that your child will lose educational benefit if he/she doesn't start the school year with all of the other kids.
Show up the first day anyway! Refusing to let your child attend school because they can't comply with the IEP is basically excluding your child from class because he/she has a disability. If school starts and there is still no aide in place, show up the first day with your child and a copy of your child's IEP and remind the District that they are obligated to implement the program called for in the IEP document. If they refuse to let your child attend class, you can follow this up with a letter documenting what happened.
3) My kid's IEP calls for transportation, but no bus showed up this morning to take him to school!
These situations arise when the school district's transportation schedule isn't all worked out before the school year starts. Sometimes, parents find out beforehand that their kid isn't on the bus schedule. Sometimes parents wait and wait the first morning, and no bus shows up. Other transportation mishaps can also happen the first week of school, like the wrong bus picking up the child, or the bus taking the child to the wrong school location.
Be patient and remember that mistakes happen. While you should document your concerns about the failure to implement transportation (which is a related service) pursuant to your IEP, you should also give the district an opportunity to correct this problem. Bus schedules are complicated, and some transportation guru who isn't part of the IEP process is working hard somewhere to map everything out and make sure the schedule covers every kid that is being transported. Make a phone call and let the school and district staff know that this happened, and that you expect the issue to be resolved immediately so that transportation is provided. Get an estimate as to when you can expect your child's bus schedule to be fixed. If multiple days go by, you may want to request that the district reimburse you for transportation you have had to provide yourself when the IEP wasn't being implemented.
4) My child is in general education, and his teacher didn't even know he had an IEP!
The start of the school year involves a lot of planning for school staff and teachers. They are busy getting their classrooms set up, creating lesson plans, studying new curriculum that will be used, organizing supplies, meeting parents, etc. If you find out that your child's teacher doesn't even know your child has an IEP, doesn't know what accommodations must be implemented, etc, it can be a very upsetting discovery! Reserve your frustration for the school district and the administrator involved in your child's IEP, not the teacher. Talk to the teacher frankly about your child's disability and why you think the IEP is important. Then make sure you let the school district know of the problem, and of your concerns regarding the fact that no one made sure the teacher had the IEP so that it could be implemented.
Ultimately, back-to-school can be a busy, stressful time for everyone involved. There are things you can do to prepare, and to help to ensure that everything will be implemented as needed for your child. But that doesn't guarantee that there won't be any back-to-school problems! Remember to stay calm, and to communicate with your child's school about the issues. Patience and persistence will help you get through whatever happens!
And one more thing- if you already have an attorney/advocate, give them a call as soon as you know these kinds of things are happening! All to often we get a phone call after-the-fact, when most likely there may have been something we could have done in the moment to help things get resolved faster! That being said, don't expect miracles! Ultimately, the District has the power to either comply with the IEP or not, to make resources available or not, or to come up with alternatives to ensure the child is educated even if disputes are happening.
1) Where is my kid going to school?!
One of the common back-to-school disasters happens when a kid doesn't have a placement. Knowing where your kid will be in school when the year starts out seems like a pretty basic question, regardless of if your kid is on an IEP. How, you may ask, could not having a placement possibly happen?! Here are some examples based on real-life scenarios:
Scenario A: Child has been in an SDC for the past couple of years and now has "aged out" of that particular class. Parents disagreed with the offer of placement for the next school year, as the new SDC is substantially different and won't meet their kids needs. The school year starts, and parents and district are still in dispute. A problem arises because there is no "stay put" placement, since the child aged out of the previous classroom. Where does the kid go for the first day of school?
Scenario B: Child's specialized program, which the IEP team offered for this school year in the most recent IEP last spring, closed down over the summer based on an "administrative decision" and probably due to budgetary concerns, and no staff was available at that time to hold an IEP meeting.
Scenario C: Family moved into a new school district over the summer, and did not take the IEP document in to the school district because the office was closed, or they didn't know where to take it, or whatever the reason. On the first day of school, parents show up with the kid and the IEP, but the District does not have a placement readily available that is comparable to what the child previously received.
Scenario D: Child had significant emotional problems during the previous school year, to the point that he/she was unable to attend school due to anxiety. Parents requested assessments and an IEP at the end of the year, which have not yet been completed. Because there is no IEP, there is no offer of an appropriate placement, but because of the significant anxiety, child's doctor says he/she cannot return to school without a different program in place.
There are many scenarios which could lead to an issue about placement at the start of the school year. Advocates and parents (and districts) are often scrambling around at the last minute to locate an option that can be implemented. Here are a few tips on dealing with this:
Make lots of phone calls! In these circumstances, talking to a live person about the urgency of your concerns may get you further than starting off by sending a letter documenting all of the ways the district is out of compliance. That's not to say that you won't need to ultimately document all of your concerns, but starting out with a personal call may be the best first step.
Consider alternatives, but don't compromise your ultimate position. It's likely that what you are facing is a situation where there is a placement dispute that you may need to deal with further down the line through additional IEP meetings and due process complaints. In the meantime, you may have to be willing to accept some other alternative so that your child can go to school. Even if it isn't the best case scenario, this may be a situation where something is better than nothing, so you may need to consent to the placement being offered while documenting that you don't believe it is appropriate and you want to have an IEP meeting to discuss placement.
Try to anticipate these disputes. Although school is not in session and timelines for things like holding IEP meetings or conducting assessments may be different, parents can still pursue due process and all of their related rights during the summer. If you can anticipate that there will be a placement problem in the fall, try to resolve it early on. And if you have to file for due process, do so early in the summer so that the issue may be addressed in mediation, and so that you will have time to file for stay put before the school year starts if you have to.
Don't keep the kid out of school unless there is not any other option, or unless the child will be harmed in some way by going to school. Ultimately, it is the parent's choice, not the advocate's / attorney's. Parents have many factors that they have to weigh in these situations. If there is no placement in place, and the District offers something inappropriate for the start of the school year, you have to balance the advantages / disadvantages of keeping your child at home versus advantages / disadvantages of sending your child to an inappropriate placement. These are tough decisions! But ultimately, refusing to allow your child to attend the school at all, barring some clear indication that the child would be harmed, may work against you in later disputes.
2) I just got a call from the school - and they don't have an aide for my child!
This happens more often than you would think. It's the week before school, or even the day before, and parents get a phone call to say "we don't know if your child can start on the first day because we can't find an aide."
Is the aide support called for in your IEP to be provided by District staff or through a Non-Public Agency? If the aide is to be provided through an NPA, you may be able to do some of the "leg-work" yourself. Start calling around to see if any of the NPAs in your area have an aide available, then let the school know what you found out. Sometimes it is just a matter of getting the information to the right people.
Remind the District that compliance with the IEP is mandatory. If the District is saying that your child can't attend school because they don't have an aide (or other support) in place yet, document that statement in writing and also document your concerns regarding the fact that your child will lose educational benefit if he/she doesn't start the school year with all of the other kids.
Show up the first day anyway! Refusing to let your child attend school because they can't comply with the IEP is basically excluding your child from class because he/she has a disability. If school starts and there is still no aide in place, show up the first day with your child and a copy of your child's IEP and remind the District that they are obligated to implement the program called for in the IEP document. If they refuse to let your child attend class, you can follow this up with a letter documenting what happened.
3) My kid's IEP calls for transportation, but no bus showed up this morning to take him to school!
These situations arise when the school district's transportation schedule isn't all worked out before the school year starts. Sometimes, parents find out beforehand that their kid isn't on the bus schedule. Sometimes parents wait and wait the first morning, and no bus shows up. Other transportation mishaps can also happen the first week of school, like the wrong bus picking up the child, or the bus taking the child to the wrong school location.
Be patient and remember that mistakes happen. While you should document your concerns about the failure to implement transportation (which is a related service) pursuant to your IEP, you should also give the district an opportunity to correct this problem. Bus schedules are complicated, and some transportation guru who isn't part of the IEP process is working hard somewhere to map everything out and make sure the schedule covers every kid that is being transported. Make a phone call and let the school and district staff know that this happened, and that you expect the issue to be resolved immediately so that transportation is provided. Get an estimate as to when you can expect your child's bus schedule to be fixed. If multiple days go by, you may want to request that the district reimburse you for transportation you have had to provide yourself when the IEP wasn't being implemented.
4) My child is in general education, and his teacher didn't even know he had an IEP!
The start of the school year involves a lot of planning for school staff and teachers. They are busy getting their classrooms set up, creating lesson plans, studying new curriculum that will be used, organizing supplies, meeting parents, etc. If you find out that your child's teacher doesn't even know your child has an IEP, doesn't know what accommodations must be implemented, etc, it can be a very upsetting discovery! Reserve your frustration for the school district and the administrator involved in your child's IEP, not the teacher. Talk to the teacher frankly about your child's disability and why you think the IEP is important. Then make sure you let the school district know of the problem, and of your concerns regarding the fact that no one made sure the teacher had the IEP so that it could be implemented.
Ultimately, back-to-school can be a busy, stressful time for everyone involved. There are things you can do to prepare, and to help to ensure that everything will be implemented as needed for your child. But that doesn't guarantee that there won't be any back-to-school problems! Remember to stay calm, and to communicate with your child's school about the issues. Patience and persistence will help you get through whatever happens!
And one more thing- if you already have an attorney/advocate, give them a call as soon as you know these kinds of things are happening! All to often we get a phone call after-the-fact, when most likely there may have been something we could have done in the moment to help things get resolved faster! That being said, don't expect miracles! Ultimately, the District has the power to either comply with the IEP or not, to make resources available or not, or to come up with alternatives to ensure the child is educated even if disputes are happening.
Thursday, August 6, 2009
Related Services: Medical Services
Under the IDEA "medical services" that are eligible "related services" are those specific "services provided by a licensed physician to determine a child's medically related disability that results in the child's needs for special education and other related services." 34 CFR 300.34(c)(5). Therefore, if the medical services is necessary for diagnostic purposes it is required under the IDEA.
The Supreme Court has adopted a bright line rule on this issue as well, finding that medical services that can only be delivered by a physician are not related services and that health care support services, which can be administered by a person other than a physician are related services under the IDEA and therefore the responsibility of the school district. See Irving Independent School District v. Tatro, 555 IDELR 511 (1984), affirmed in Cedar Rapids Community School District v. Garret F. by Charlene F., 29 IDELR 966 (1999).
The Department of Education clarified in the 2006 IDEA Part B regulations that school districts are responsible for "providing services necessary to maintain the health and safety of a child while the child is in school, with breathing, nutrition, and other bodily functions (e.g., nursing services, suctioning a tracheotomy, urinary catheterization) if these services can be provided by someone who has been trained to provide the service and are not the type of services that can only be provided by a licensed physician." See Analysis of Comments and Changes to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46571 (August 14, 2006). Thereofre, a medically fragile student, for example, would be eligible for health care related services that are supportive services the child needs to receive during the day in order to be able to attend school and thereby benefit from his or her education and should be noted in the child's IEP.
The Department of Education also clarified what type of medical services would not be related services. Specifically the DOE clarified that the optimization of a surgically implanted device's functioning, maintenance of the device or replacement of the device that requires the expertise of a licensed physician or an individual with specialized technical expertise beyond that typically available from school personnel (e.g., mapping of a cochlear implant) was not a related service. See id.; see also 34 CFR 300.34(b)(1). This does not limit, however, the right of the student with a surgically implanted device to receive other related services that are necessary for the child to receive a FAPE. It also does not limit the responsibility of the district to monitor and maintain devices that are need to maintain the health and safety of the child while he or she is being transported to and from school or is at school. Nor does it prevent the routine checking of a external component of a surgically implanted device to make sure it is functioning properly. See 34 CFR 300.113(b).
One related health service that a school district would likely responsible for would be vision therapy, if it was necessary to assist the child's educational needs and did not require administration by a physician. The decision about whether a student requires a related service such as vision therapy is, of course, a case-by-case determination for what is required for a FAPE.
For example, in Dekalb County Sch. Dist., the 11th Circuit ruled that a district's IEP for a student with a visual condition, which had not manifested itself in poor educational performance, prevented him from receiving FAPE. The court upheld an order to the district to pay for the student'svision therapy services. The evidence showed the student's significant visual problems would become much worse and interfere significantly with his ability to benefit from special education without the therapy. Therefore, the district was required to provide vision therapy in order to offer the student FAPE. See Dekalb County Sch. Dist. v. M.T.V. by C.E.V. and C.T.V., 45 IDELR 30(11th Cir. 2006). In Eugene Sch. Dist., however, it was determined that a student eligible for special education with Emotional Disturbance did not require vision therapy to benefit from his education as his above-average performance in reading comprehension undermined the parent's position that he required vision therapy to make academic progress. See Eugene Sch. Dist. 4J, 35 IDELR 52 (SEA OR 2001).
The Supreme Court has adopted a bright line rule on this issue as well, finding that medical services that can only be delivered by a physician are not related services and that health care support services, which can be administered by a person other than a physician are related services under the IDEA and therefore the responsibility of the school district. See Irving Independent School District v. Tatro, 555 IDELR 511 (1984), affirmed in Cedar Rapids Community School District v. Garret F. by Charlene F., 29 IDELR 966 (1999).
The Department of Education clarified in the 2006 IDEA Part B regulations that school districts are responsible for "providing services necessary to maintain the health and safety of a child while the child is in school, with breathing, nutrition, and other bodily functions (e.g., nursing services, suctioning a tracheotomy, urinary catheterization) if these services can be provided by someone who has been trained to provide the service and are not the type of services that can only be provided by a licensed physician." See Analysis of Comments and Changes to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46571 (August 14, 2006). Thereofre, a medically fragile student, for example, would be eligible for health care related services that are supportive services the child needs to receive during the day in order to be able to attend school and thereby benefit from his or her education and should be noted in the child's IEP.
The Department of Education also clarified what type of medical services would not be related services. Specifically the DOE clarified that the optimization of a surgically implanted device's functioning, maintenance of the device or replacement of the device that requires the expertise of a licensed physician or an individual with specialized technical expertise beyond that typically available from school personnel (e.g., mapping of a cochlear implant) was not a related service. See id.; see also 34 CFR 300.34(b)(1). This does not limit, however, the right of the student with a surgically implanted device to receive other related services that are necessary for the child to receive a FAPE. It also does not limit the responsibility of the district to monitor and maintain devices that are need to maintain the health and safety of the child while he or she is being transported to and from school or is at school. Nor does it prevent the routine checking of a external component of a surgically implanted device to make sure it is functioning properly. See 34 CFR 300.113(b).
One related health service that a school district would likely responsible for would be vision therapy, if it was necessary to assist the child's educational needs and did not require administration by a physician. The decision about whether a student requires a related service such as vision therapy is, of course, a case-by-case determination for what is required for a FAPE.
For example, in Dekalb County Sch. Dist., the 11th Circuit ruled that a district's IEP for a student with a visual condition, which had not manifested itself in poor educational performance, prevented him from receiving FAPE. The court upheld an order to the district to pay for the student'svision therapy services. The evidence showed the student's significant visual problems would become much worse and interfere significantly with his ability to benefit from special education without the therapy. Therefore, the district was required to provide vision therapy in order to offer the student FAPE. See Dekalb County Sch. Dist. v. M.T.V. by C.E.V. and C.T.V., 45 IDELR 30(11th Cir. 2006). In Eugene Sch. Dist., however, it was determined that a student eligible for special education with Emotional Disturbance did not require vision therapy to benefit from his education as his above-average performance in reading comprehension undermined the parent's position that he required vision therapy to make academic progress. See Eugene Sch. Dist. 4J, 35 IDELR 52 (SEA OR 2001).
Friday, July 31, 2009
Breaking Down the IEP: Frequency, Location and Duration
The IEP document must include a statement of the special education, related services and program modifications to be provided to the student. In regards to those components, the statute includes an additional requirement that designates specific details about the services that must be included.
The IDEA requires the written IEP document to include:
When will the services and modifications described in the IEP begin?
The projected start date describes when the IEP will be "in effect" for this student. In many instances, an IEP can begin to be implemented right away. However, in some instances, the IEP team may be meeting for the purposes of determining services that are to begin at a later date, for example the following school year.
In any event, the IEP document needs to specifically state when the services are to begin. The District is required to implement that IEP consistent with the start date and in a manner that does not delay the provision of FAPE to the student.
What will be the frequency and duration of the services?
This is the "how often and how much" portion of the IEP. Once services are identified as necessary for the child, the IEP team needs to determine how often the child will recieve those services and how much time will be provided for each service. This determination should be individualized, and based on the child's identified unique needs, not based on a policy or district administrative decisions. For example, how often a child should recieve speech therapy should be based on his/her unique needs in the areas of speech, language and communication, how those needs impact his/her ability to access the curriculum, how these needs impact his/her functional skills, interactions with peers, etc, and other individual factors like attention span, or how the child generalizes skills. It should not be based on a district determination that all children with this disability recieve 2 times per week of speech therapy.
Whatever the IEP team determines, the IEP document must include a statement that is specific as to the frequency and duration of the services, so that all of those involved in developing and in implementing the IEP fully understand exactly what is to be provided.
What will be the location of the services?
Location can relate to several different considerations. Location may mean whether the service is to be provided within the child's classroom setting or whether the service is to be provided in a separate setting, like a therapy room, clinic setting, or counseling office. Location may mean whether the service will be provided at the school the child attends or at a private or non-public agency's office, like the office of a private speech pathologist or occupational therapy. Finally, location may mean the actual school that the child will attend and where the child will recieve services, although this definition of location causes much debate.
The IEP document is required to specifically identify the location of the services. Although there are many different things the IEP team should consider in determining location and how it should be described, the team should avoid generalized statements like "a district school location" and try to include specific information that gives the parents and other team members enough detail to understand what is being provided.
Importance of this information
"The amount of services to be provided must be stated in the IEP so that the level of the agency's commitment of resources will be clear to the parents and other IEP team members." Appendix A to 34 C.F.R. part 300, at Q35. This required content serves the purpose of clarifying the District's implementation duties, so that all persons working with the child understand what is to be provided and at what rate. It also serves the purpose of providing parents with enough information to meaningfully participate in the development of the IEP and fully consider the appropriateness of what is being offered. A parent may agree, for example, that her child requires speech therapy, but without knowing how much speech therapy is offered, it would be impossible for the parent to know if the IEP was appropriate.
The requirement that the IEP document location of services is a cause of much debate. Location in terms of in-class versus out-of-class (or the "push-in" model versus "pull-out" model) may be debated between parents and educators. In recent years, more emphasis has been placed on providing "push-in" services within the classroom setting or other natural environments. While this model is supported by the idea of providing services in the least restrictive environment, parents often feel that their child cannot fully benefit without more individualized services outside of the classroom setting.
Location in terms of the physcial school site is also a debate. In many cases, judges have agreed with school districts that the specific school site is an administrative decision, and that therefore failure to designate the specific school is not a FAPE violation, depsite the requirement that the IEP designate the "location" of services and program modifications to be provided. In some specific cases, however, the failure to identify a specific school has been found to deny student a FAPE. See, for example, A.K. v. Alexandria City School Board, 484 F.3d 672 (4th Cir 2007).
As with any component of the IEP, if the team determines that a specific location is requried to provide the student a FAPE, then that location needs to be specifically identified. In any case, some information describing the location of the services, along with the frequency and duration of the services, must be provided to conform to the statute and allow parents to meaningfully participate in the process.
The IDEA requires the written IEP document to include:
"the projected date for the beginning of the services and modifications... and the anticipated frequency, location and duration of those services and modifications."20 U.S.C. section 1414(d)(1)(A)(VIII).
When will the services and modifications described in the IEP begin?
The projected start date describes when the IEP will be "in effect" for this student. In many instances, an IEP can begin to be implemented right away. However, in some instances, the IEP team may be meeting for the purposes of determining services that are to begin at a later date, for example the following school year.
In any event, the IEP document needs to specifically state when the services are to begin. The District is required to implement that IEP consistent with the start date and in a manner that does not delay the provision of FAPE to the student.
What will be the frequency and duration of the services?
This is the "how often and how much" portion of the IEP. Once services are identified as necessary for the child, the IEP team needs to determine how often the child will recieve those services and how much time will be provided for each service. This determination should be individualized, and based on the child's identified unique needs, not based on a policy or district administrative decisions. For example, how often a child should recieve speech therapy should be based on his/her unique needs in the areas of speech, language and communication, how those needs impact his/her ability to access the curriculum, how these needs impact his/her functional skills, interactions with peers, etc, and other individual factors like attention span, or how the child generalizes skills. It should not be based on a district determination that all children with this disability recieve 2 times per week of speech therapy.
Whatever the IEP team determines, the IEP document must include a statement that is specific as to the frequency and duration of the services, so that all of those involved in developing and in implementing the IEP fully understand exactly what is to be provided.
What will be the location of the services?
Location can relate to several different considerations. Location may mean whether the service is to be provided within the child's classroom setting or whether the service is to be provided in a separate setting, like a therapy room, clinic setting, or counseling office. Location may mean whether the service will be provided at the school the child attends or at a private or non-public agency's office, like the office of a private speech pathologist or occupational therapy. Finally, location may mean the actual school that the child will attend and where the child will recieve services, although this definition of location causes much debate.
The IEP document is required to specifically identify the location of the services. Although there are many different things the IEP team should consider in determining location and how it should be described, the team should avoid generalized statements like "a district school location" and try to include specific information that gives the parents and other team members enough detail to understand what is being provided.
Importance of this information
"The amount of services to be provided must be stated in the IEP so that the level of the agency's commitment of resources will be clear to the parents and other IEP team members." Appendix A to 34 C.F.R. part 300, at Q35. This required content serves the purpose of clarifying the District's implementation duties, so that all persons working with the child understand what is to be provided and at what rate. It also serves the purpose of providing parents with enough information to meaningfully participate in the development of the IEP and fully consider the appropriateness of what is being offered. A parent may agree, for example, that her child requires speech therapy, but without knowing how much speech therapy is offered, it would be impossible for the parent to know if the IEP was appropriate.
The requirement that the IEP document location of services is a cause of much debate. Location in terms of in-class versus out-of-class (or the "push-in" model versus "pull-out" model) may be debated between parents and educators. In recent years, more emphasis has been placed on providing "push-in" services within the classroom setting or other natural environments. While this model is supported by the idea of providing services in the least restrictive environment, parents often feel that their child cannot fully benefit without more individualized services outside of the classroom setting.
Location in terms of the physcial school site is also a debate. In many cases, judges have agreed with school districts that the specific school site is an administrative decision, and that therefore failure to designate the specific school is not a FAPE violation, depsite the requirement that the IEP designate the "location" of services and program modifications to be provided. In some specific cases, however, the failure to identify a specific school has been found to deny student a FAPE. See, for example, A.K. v. Alexandria City School Board, 484 F.3d 672 (4th Cir 2007).
As with any component of the IEP, if the team determines that a specific location is requried to provide the student a FAPE, then that location needs to be specifically identified. In any case, some information describing the location of the services, along with the frequency and duration of the services, must be provided to conform to the statute and allow parents to meaningfully participate in the process.
Wednesday, July 29, 2009
Related Services: Services for Parents
Although not often included within an IEP document there are related services provided for under the law that are specific to Parents. The 2006 IDEA Part B regulations made it clear that while the 2004 statute did not include these services, the Department of Education believed that retaining the parent services were necessary in order to provide parents with counseling and training necessary to support the implementation of their child's IEP. See Analysis of Comments and Changes to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46573 (2006).
There are five types of related services that an IEP team may find are appropriate for parents:
1) Counseling and guidance of parents regarding hearing loss and the related service of audiology. 34 CFR 300.34(c)(1).
2) Parent counseling and training. 34 CFR 300.34 (c)(8) This includes assisting parents in understanding the special needs of their child, providing parents with information about child development, and helping parents to acquire the necessary skills that will allow them to support the implementation of their child's IEP.
3) Planning and managing a program of psychological counseling for children and parents. 34 CFR 300.34 (c)(10).
4) Group and individual counseling with the child and family. 34 CFR 300.34 (c)(14).
5) Counseling of parents regarding speech and language impairments and the related service of speech pathology. 34 CFR 300.34(c)(15).
A parent may be eligible to receive sign language training in order to have the necessary skills to implement the child's IEP. See 34 CFR 300.34(c)(8). Although not automatically provided to parents of a student who is deaf or who has speech deficits, it is required when an IEP team decides that such training is needed for the student to benefit from special education. See Letter to Dagley, 17 IDELR 1107 (OSEP 1991); see also Letter to Anonymous, 19 IDELR 586 (OSEP 1992).
Hearing officers have also found that a LEA has to reimburse parents for private evaluations of students finding that the assessment was required to help parents acquire the necessary skills that will allow them to support the implementation of the child's IEP. See Hawaii Dep't of Educ., 102 LRP 3706 (SEA HI 2000) (finding that the state education department had to reimburse parents for testing and evaluations of their child performed by a private evaluator).
Parent training can also be provided in the home setting. In re: Student with a Disability, a hearing officer determined that an IEP for an 8-year old with Autism was not sufficient because it did not include parent training. In that case the IHO cited New York state regulation that mandated parent counseling and education for the purpose of enabling parents to perform appropriate follow-up intervention activities at home for children who were classified as autistic. The IHO concluded that the evidence overwhelmingly pointed to the need for training to enable the parent to perform follow-up ABA therapy in their home. Furthermore, the IHO disagreed with the district's position that simply informing the parent that she could come to school and observe ABA instruction was sufficient to satisfy its IDEA requirements. See In re: Student with a Disability, 102 LRP 8600 (SEA NY 2000).
Under some circumstances, transportation services are also available to parents when a student is placed at a residential placement. The IDEA does not set a minimum on the number of parents visits that a LEA is expected to fund to the residential facility. If a state or district policy on the number of trips does exist, however, it must allow for a case-by-case determination of how much visitation is necessary given the student's unique needs. A district may be required to fund a number of visits to a placement in order for parents to participate in other related services. In New Prairie United School Corporation, the court found that the district was obligated to fund either 12 parental visits to the school annual or 12 visits home, where parental visitation allowed for parents to participate in a family therapy program and training. See New Prairie United Sch. Corp., 30 IDELR 346 (SEA IN 1999). In Aaron M. by Glen M. and Lindy M. v. Yomtoob, the court found that parents were entitled to six trips per year to son's out-of=state residential placement in order to learn skills and strategies to work with their son. See Aaron M. by Glen M. and Lindy M. v. Yomtoob 38 IDELR 122 (N.D. Ill. 2003).
There are five types of related services that an IEP team may find are appropriate for parents:
1) Counseling and guidance of parents regarding hearing loss and the related service of audiology. 34 CFR 300.34(c)(1).
2) Parent counseling and training. 34 CFR 300.34 (c)(8) This includes assisting parents in understanding the special needs of their child, providing parents with information about child development, and helping parents to acquire the necessary skills that will allow them to support the implementation of their child's IEP.
3) Planning and managing a program of psychological counseling for children and parents. 34 CFR 300.34 (c)(10).
4) Group and individual counseling with the child and family. 34 CFR 300.34 (c)(14).
5) Counseling of parents regarding speech and language impairments and the related service of speech pathology. 34 CFR 300.34(c)(15).
A parent may be eligible to receive sign language training in order to have the necessary skills to implement the child's IEP. See 34 CFR 300.34(c)(8). Although not automatically provided to parents of a student who is deaf or who has speech deficits, it is required when an IEP team decides that such training is needed for the student to benefit from special education. See Letter to Dagley, 17 IDELR 1107 (OSEP 1991); see also Letter to Anonymous, 19 IDELR 586 (OSEP 1992).
Hearing officers have also found that a LEA has to reimburse parents for private evaluations of students finding that the assessment was required to help parents acquire the necessary skills that will allow them to support the implementation of the child's IEP. See Hawaii Dep't of Educ., 102 LRP 3706 (SEA HI 2000) (finding that the state education department had to reimburse parents for testing and evaluations of their child performed by a private evaluator).
Parent training can also be provided in the home setting. In re: Student with a Disability, a hearing officer determined that an IEP for an 8-year old with Autism was not sufficient because it did not include parent training. In that case the IHO cited New York state regulation that mandated parent counseling and education for the purpose of enabling parents to perform appropriate follow-up intervention activities at home for children who were classified as autistic. The IHO concluded that the evidence overwhelmingly pointed to the need for training to enable the parent to perform follow-up ABA therapy in their home. Furthermore, the IHO disagreed with the district's position that simply informing the parent that she could come to school and observe ABA instruction was sufficient to satisfy its IDEA requirements. See In re: Student with a Disability, 102 LRP 8600 (SEA NY 2000).
Under some circumstances, transportation services are also available to parents when a student is placed at a residential placement. The IDEA does not set a minimum on the number of parents visits that a LEA is expected to fund to the residential facility. If a state or district policy on the number of trips does exist, however, it must allow for a case-by-case determination of how much visitation is necessary given the student's unique needs. A district may be required to fund a number of visits to a placement in order for parents to participate in other related services. In New Prairie United School Corporation, the court found that the district was obligated to fund either 12 parental visits to the school annual or 12 visits home, where parental visitation allowed for parents to participate in a family therapy program and training. See New Prairie United Sch. Corp., 30 IDELR 346 (SEA IN 1999). In Aaron M. by Glen M. and Lindy M. v. Yomtoob, the court found that parents were entitled to six trips per year to son's out-of=state residential placement in order to learn skills and strategies to work with their son. See Aaron M. by Glen M. and Lindy M. v. Yomtoob 38 IDELR 122 (N.D. Ill. 2003).
Tuesday, July 28, 2009
Breaking Down the IEP: Statement of Special Education and Related Services
Inherently, an Individualized Education Plan should include documentation of the program to be offered to the student. The IDEA requires the written IEP document to include:
20 U.S.C. section 1414(d)(1)(A)(IV).
Description of special education and related services
"Special education" includes the specially designed instruction or other specialized program to be provided to the child in order to allow that child to make progress in general education, advance towards goals, and participate in activities with peers. Specially designed instruction is a hot topic, because often when discussing instruction, issues of specific curriculum or methodologies arise.
For purposes of the IEP document, the IDEA requires a specific statement of the special education to be provided to the child. While "methodology" and specific "curriculum" may be generally within the discretion of the District, if a student requires a specific program in order to receive FAPE, it may be necessary for that program to be described in the IEP document. In any event, the IEP should contain some description of what is to be provided.
Related services include those specific services that are included in a child's program in order to meet the child's needs and provide him/her educational benefit. If a related service is required in order for the child to receive a FAPE, it should be described in the IEP document, along with details about when and how this will be provided, as will be discussed in a future post. Related services include those services listed in the IDEA, such as speech therapy, occupational therapy, etc.
The US Department of Education has clarified that
Appendix A to 34 C.F.R. part 300, at Q.35.
The IEP document needs to state with specificity what services will be provided to the child. Some school districts believe that if a services is just a "part of their program" it doesn't have to be listed, but this isn't necessarily true and does not comport with what the statute requires. If the child is to be provided APE, for example, to meet his or her needs, the IEP document should state so, even if every other child in that class also happens to be provided with APE as part of the program.
Description of supplementary aids and services
Supplementary aids and services include related services, accommodations and supports, consultative services for teachers, etc. The statute specifies that supplementary aids and services to be provided to the child or on behalf of the child should be described in the IEP document. Examples of supplementary aids and services provided on behalf of the child may include training for a teacher or aid in a particular program or about a particular disability.
The phrase "supplementary aids and services" is also referred to within the language regarding Least Restrictive Environment, and it is important therefore to remember that within the requirement for a description of supplementary aids and services, the statute specifies that such supports be provided to "be involved in and make progress in general education curriculum." The presumption for Least Restrictive Environment requires that an IEP team consider the "full range of supplementary aids and services, that if provided would enable the child to participate in the general education environment," before moving that child to a more restrictive setting. See Questions and Answers on the LRE Requirements, OSERS, OSEP-95-9. Therefore, when discussing this portion of the IEP's required content, the team needs to document specifically what supports are required to ensure that the child be placed in the LRE and continue to receive an educational benefit there.
Supplementary aids and services is defined broadly as including any "aids, services and other supports that are provided in regular education classes or other education-related settings to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate." 20 U.S.C. section 1401(29). Any supplementary aids and services used to support the child in the LRE must be described in the written IEP document.
"Based on peer-reviewed research to the extent practicable"
The written IEP document includes a statement of special education and related services "based on peer-reviewed research to the extent practicable." The only guidance as to what "to the extent practicable" means is found in the Analysis of Comments and Changes to 2006 IDEA Part B regulations:
The Education Department explained that peer-reviewed research refers to "research that is reviewed by qualified and independent reviewers to ensure that the quality of the information meets the standards of the field before the research is published." Analysis of Comments and Changes to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46664 (2006).
Although the substantive issues related to instruction and services based upon peer-reviewed research, and what that means in terms of what should be provided to an individual child, is a different topic altogether, peer-reviewed research is relevant to the discussion of required content for the written IEP. Because the statute specifies that an IEP is a written document that includes a statement of special education and related services based upon peer-reviewed research to the extent practicable, the written document should in fact address whether research supports the program offered by the school district. The decision of whether to write in a specific methodology into the IEP document is an IEP team decision. However, regardless of what methodology is utilized, the IEP document itself should document that it is based upon peer reviewed research, where applicable.
Relationship to Goals, General Education, and Progress
The requirement is that the IEP document special education and related services that will enable the child to make progress towards goals, participate and make progress towards general education curriculum, and be educated with and participate in activities with disabled and non-disabled peers. The IEP team must consider the goals that have been developed for the child, the child's unique needs related to his or her disability, and the child's needs related to how he/she will progress in general education curriculum, when determining what special education, related services, and supplementary aids and supports must be provided. To be clear, the IEP document should specify how the services, instruction and support will enable the child to meet his/ her goals and make progress towards general education curriculum.
This portion of an IEP's required written content may be the most complicated, and the most difficult to get right. Ultimately, if the IEP team remains focused on the child's needs, and how those needs relate to the services, instruction and supports being offered, then the document will be able to reflect clearly what will be provided and how that program provides FAPE. It is important, as with all portions of the IEP, that the District remember that ultimately, the IEP document needs to be clear enough to be understood by all of those involved in developing it and anyone potentially involved in implementing it. If sufficient details are included so that everyone can fully understand the special education and related services being offered, and parents can fully consider all aspects of the program, then a good clear IEP has been written.
"a statement of the special education and related services and supplementary aids and services based on peer-reviewed research to the extent practicable, to be provided to the child, or on behalf of the child...(aa) to advance appropriately toward attaining the annual goals; (bb) to be involved in and make progress in the general education curriculum... and to participate in extracurricular and other nonacademic activities; and (cc) to be educated and participate with other children with disabilities and nondisabled children in the activities described [in the IDEA]."
20 U.S.C. section 1414(d)(1)(A)(IV).
Description of special education and related services
"Special education" includes the specially designed instruction or other specialized program to be provided to the child in order to allow that child to make progress in general education, advance towards goals, and participate in activities with peers. Specially designed instruction is a hot topic, because often when discussing instruction, issues of specific curriculum or methodologies arise.
For purposes of the IEP document, the IDEA requires a specific statement of the special education to be provided to the child. While "methodology" and specific "curriculum" may be generally within the discretion of the District, if a student requires a specific program in order to receive FAPE, it may be necessary for that program to be described in the IEP document. In any event, the IEP should contain some description of what is to be provided.
Related services include those specific services that are included in a child's program in order to meet the child's needs and provide him/her educational benefit. If a related service is required in order for the child to receive a FAPE, it should be described in the IEP document, along with details about when and how this will be provided, as will be discussed in a future post. Related services include those services listed in the IDEA, such as speech therapy, occupational therapy, etc.
The US Department of Education has clarified that
"the amount of services to be provided must be stated in the IEP, so that the level of the agency's commitment of resources will be clear to parents and other IEP team members. The amount of time to be committed to each of the various services to be provided must be (1) appropriate to that specific services, and (2) stated in the IEP in a manner that is clear to all who are involved in both the development and the implementation of the IEP."
Appendix A to 34 C.F.R. part 300, at Q.35.
The IEP document needs to state with specificity what services will be provided to the child. Some school districts believe that if a services is just a "part of their program" it doesn't have to be listed, but this isn't necessarily true and does not comport with what the statute requires. If the child is to be provided APE, for example, to meet his or her needs, the IEP document should state so, even if every other child in that class also happens to be provided with APE as part of the program.
Description of supplementary aids and services
Supplementary aids and services include related services, accommodations and supports, consultative services for teachers, etc. The statute specifies that supplementary aids and services to be provided to the child or on behalf of the child should be described in the IEP document. Examples of supplementary aids and services provided on behalf of the child may include training for a teacher or aid in a particular program or about a particular disability.
The phrase "supplementary aids and services" is also referred to within the language regarding Least Restrictive Environment, and it is important therefore to remember that within the requirement for a description of supplementary aids and services, the statute specifies that such supports be provided to "be involved in and make progress in general education curriculum." The presumption for Least Restrictive Environment requires that an IEP team consider the "full range of supplementary aids and services, that if provided would enable the child to participate in the general education environment," before moving that child to a more restrictive setting. See Questions and Answers on the LRE Requirements, OSERS, OSEP-95-9. Therefore, when discussing this portion of the IEP's required content, the team needs to document specifically what supports are required to ensure that the child be placed in the LRE and continue to receive an educational benefit there.
Supplementary aids and services is defined broadly as including any "aids, services and other supports that are provided in regular education classes or other education-related settings to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate." 20 U.S.C. section 1401(29). Any supplementary aids and services used to support the child in the LRE must be described in the written IEP document.
"Based on peer-reviewed research to the extent practicable"
The written IEP document includes a statement of special education and related services "based on peer-reviewed research to the extent practicable." The only guidance as to what "to the extent practicable" means is found in the Analysis of Comments and Changes to 2006 IDEA Part B regulations:
"The phrase to the extent practicable generally means that services and supports should be based on peer reviewed research to the extent that it is possible, given the availability of peer reviewed research."71 Fed. Reg. 46565 (Aug. 14, 2006)
The Education Department explained that peer-reviewed research refers to "research that is reviewed by qualified and independent reviewers to ensure that the quality of the information meets the standards of the field before the research is published." Analysis of Comments and Changes to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46664 (2006).
Although the substantive issues related to instruction and services based upon peer-reviewed research, and what that means in terms of what should be provided to an individual child, is a different topic altogether, peer-reviewed research is relevant to the discussion of required content for the written IEP. Because the statute specifies that an IEP is a written document that includes a statement of special education and related services based upon peer-reviewed research to the extent practicable, the written document should in fact address whether research supports the program offered by the school district. The decision of whether to write in a specific methodology into the IEP document is an IEP team decision. However, regardless of what methodology is utilized, the IEP document itself should document that it is based upon peer reviewed research, where applicable.
Relationship to Goals, General Education, and Progress
The requirement is that the IEP document special education and related services that will enable the child to make progress towards goals, participate and make progress towards general education curriculum, and be educated with and participate in activities with disabled and non-disabled peers. The IEP team must consider the goals that have been developed for the child, the child's unique needs related to his or her disability, and the child's needs related to how he/she will progress in general education curriculum, when determining what special education, related services, and supplementary aids and supports must be provided. To be clear, the IEP document should specify how the services, instruction and support will enable the child to meet his/ her goals and make progress towards general education curriculum.
This portion of an IEP's required written content may be the most complicated, and the most difficult to get right. Ultimately, if the IEP team remains focused on the child's needs, and how those needs relate to the services, instruction and supports being offered, then the document will be able to reflect clearly what will be provided and how that program provides FAPE. It is important, as with all portions of the IEP, that the District remember that ultimately, the IEP document needs to be clear enough to be understood by all of those involved in developing it and anyone potentially involved in implementing it. If sufficient details are included so that everyone can fully understand the special education and related services being offered, and parents can fully consider all aspects of the program, then a good clear IEP has been written.
Friday, July 24, 2009
Related Services: Counseling
Under the IDEA Counseling is a related service, defined as services provided by qualified social workers, psychologists, guidance counselors, or other qualified personnel. See CFR 300.34(c)(2).
Related services include psychological counseling when it is required for a student to receive FAPE. See 34 CFR 300.34(c)(10). A school district, however, may be required to provide psychological counseling services even in situations where counseling is not needed primarily for educational purposes. In Doe v. Anring, the court found that psychotherapy and group therapy were required to assist the student to benefit from special education and were therefore "related services" under federal law. See Doe v. Anrig, 558 IDELR 278 (D. Mass. 1987).
If a student has emotional and behavioral disorders they may be entitled to receiving counseling services for therapeutic as well as educational benefit. If a student is emotionally or behaviorally disturbed, the connection between improving emotional difficulties, coping skills or social skills and increasing a student's ability to benefit from special education is fairly clear. In Sacramento City Unified School District, the student in question had intellectual abilities in the high average range but his classroom performance was below his ability. He displayed little to no behavior issues within the confines of the structured classroom setting but out of the classroom his behaviors included physical abuse of other children. The court found that he qualified for special education and related services, including counseling. See Sacramento City Unified School District, 509 IDELR 171 (SEA CA 1987).
Psychotherapy can either be a related service or a medical service, for which the LEA would not be responsible. The distinction is drawn based on the identity of the provide and the relation of the therapy to the child's educational needs. Typically, services that can only be provided by a psychiatrist are classified as medical services. If the psychotherapy services can be provided by other professionals, such as social workers, psychologists or guidance counselors, then those services will be considered related services if they are required to assist a child benefit from his or her special education.
Wednesday, July 22, 2009
Related Services Hiatus
Due to some circumstances beyond my control - namely that I stayed up late baking a fabulous rainbow birthday cake - I'm going to have to delay the post by one day. Check back tomorrow for a post on Counseling.
Wednesday, July 15, 2009
Related Service: Assistive Technology
When people first think of assistive technology they think of the actual devices that a student uses in the classroom - ranging from a laptop computer to a pencil grip. But some devices requires that the student's IEP actually include a direct service in order for them to access those devices.
Under the IDEA assistive technology service means any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device. See 20 U.S.C. 1401(2); 34 CFR 300.6. As with other services if the student is identified as needing special education and related services they are entitled to an individual evaluation for possible assistive technology devices. See Maynard Sch. Dist., 20 IDELR 394 (SEA AR 1993).
Under the IDEA assistive technology service means any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device. See 20 U.S.C. 1401(2); 34 CFR 300.6. As with other services if the student is identified as needing special education and related services they are entitled to an individual evaluation for possible assistive technology devices. See Maynard Sch. Dist., 20 IDELR 394 (SEA AR 1993).
As with other services, it is the IEP team that makes the determination about whether a child requires either AT devices or services in order to receive a FAPE. See 34 CFR 300.324(a)(2)(v); see also Letter to Anonymous, 24 IDELR 854 (OSEP 1996). If the team determines that a student with a disability requires a device or service to receive a FAPE the District is obligated to provide that device or service. OSEP has stated that when a child requires AT the IEP document must include a specific statement of such AT devices or services. See Letter to Anonymous, 18 IDELR 627 (OSEP 1991).
As with other areas of special education a parent can not unilaterally determine the device or service but rather the team makes a determination about what is appropriate. If there is a dispute, however, parents have the ability to present evidence that the preferred device or services is appropriate and the district's proposed device or service is not. Furthermore, while the cost of a device is a relevant in determining what AT devices or services to provide it cannot be the determining factor. See Greenwood County Sch. Dist., 52 IDELR 355 (SEA CA 1992). A school district, however, has no obligation to pay for AT services if there is an alternate funding source, such as private insurance or Medicaid.
Typically an AT service is linked to a particular AT device that an IEP team has determined is appropriate for a student. For example, if an IEP team determines that a student requires an augmentative communication device in order to benefit from his or her education then the district may need to provide direct instruction in that device to the student and/or training to other instructors and service providers on that particular device. On the other hand, if an IEP team determines that a student requires access to a computer in the classroom the student may not require an AT service to access that device.
Wednesday, July 8, 2009
Related Service: Transportation
Under the law transportation is a related service akin to services such as speech and language, OT, PT, and counseling. See 20 U.S.C. 1401(a)(22). A school district is required to offer transportation services if it is required to assist the child with a disability to benefit from special education. See 34 CFR 300.24(15)(a).
Transportation includes: (1) travel to and from and between schools; (2) travel in and around school buildings; and (3) specialized equipment, such as special or adapted buses, lifts, and ramps, if required to provide special transportation for a child with a disability. See 34 CFR 300.24(b)(15).
Is my student entitled to transportation?
If a school district provides transportation to general education students then it must provide transportation to special education students to any program to which it assigns a special education student. That is a district can not discriminate against students with disabilities by not providing them with transportation services. However, if a school district, does not provide transportation to the general education students then it must decide on an individualized basis whether or not a student requires transportation as a related service in order to receive a FAPE. A school district must ensure that they consider the IDEA's LRE mandate in making transportation decisions.
Should my student's IEP include transportation?
If the student qualifies for transportation as a related service then the IEP should clearly explain the transportation. If a student is capable of using the same transportation services as a student without a disability the IDEA does not require transportation to be listed as a related service in the IEP. See Letter to Hamilton, 25 IDELR 520 (OSEP 1996).
The IEP team should also take into consideration other factors when offering transportation in order to assure that the IEP offers a FAPE. For instance the team should consider if the student requires specialized equipment such as a special or adapted vehicle, a lift, a ramp, seat restraints, security devices, such as a harness or vest, a car seat, air-conditioning and/or tinted windows.
The IEP team should also consider whether it is appropriate for personnel to assist the student. If the student requires personalized services within the classroom, then it would be appropriate for the IEP team to consider whether the student required personal assistance while being transported.
A school district should also consider whether a change in policy is necessary to accommodate a student with a disability, such as allowing a student with diabetes to have a snack on a bus.
Where will my child be transported to and from?
It depends on what is appropriate for the student. A student may be picked up from a bus stop if it is appropriate but if their disability prevents them from being at the bus stop then home to school transportation may be appropriate. For example, if the student does not understand potential safety hazards then it may not be appropriate for the student to be picked up at a bus stop.
A school district will also be obligated to transport a student for an extracurricular or nonacademic activity if it is related to the student's IEP goals and objectives.
How much time should a student be on a bus?
Neither the IDEA or Section 504 specifically address the appropriate length of bus rides for students with disabilities. In general, a school district must consider the length of a bus ride, proximity of student's home to placement and overall impact on the student. Some states regulate the length of a bus ride by establishing a maximum amount of time a student may be on a bus. Excessive travel time can result in a denial of FAPE as excessive daily commuting to a placement may suggest the need for a residential placement. What constitutes an excessive amount of time, once again, depends on the student, his or her disability, overall health condition and norms for the region. A general rule, however, is that the student's daily commute should not greatly exceed one hour each way. See e.g., Bonadonna v. Cooperman, 557 IDELR 178 (D.N.J. 1985); Covington Community Sch. Corp, 18 IDELR 180 (SEA IN 1991); Kanawho County (WV) Pub. Sch., 16 IDELR 450 (OCR 1987).
Furthermore, a school district should not shorten the school day to accommodate bus schedules for a special education student. See Palm Beach County (FL) Sch. Dist., 31 IDELR 37 (OCR 1998); Jim Thorpe (PA) area Sch. Dist., 20 IDELR 78; Lincoln County (NC) Sch. Dist., 17 IDELR 1052 (OCR 1991). Students with disabilities must be given a comparable length of school day and week as non-disabled students, unless there is a compelling specific reason.
There may be other factors to take into consideration when determining the specifics of transportation as a related service for your student - if you need more help contact a special education attorney in your area.
Transportation includes: (1) travel to and from and between schools; (2) travel in and around school buildings; and (3) specialized equipment, such as special or adapted buses, lifts, and ramps, if required to provide special transportation for a child with a disability. See 34 CFR 300.24(b)(15).
Is my student entitled to transportation?
If a school district provides transportation to general education students then it must provide transportation to special education students to any program to which it assigns a special education student. That is a district can not discriminate against students with disabilities by not providing them with transportation services. However, if a school district, does not provide transportation to the general education students then it must decide on an individualized basis whether or not a student requires transportation as a related service in order to receive a FAPE. A school district must ensure that they consider the IDEA's LRE mandate in making transportation decisions.
Should my student's IEP include transportation?
If the student qualifies for transportation as a related service then the IEP should clearly explain the transportation. If a student is capable of using the same transportation services as a student without a disability the IDEA does not require transportation to be listed as a related service in the IEP. See Letter to Hamilton, 25 IDELR 520 (OSEP 1996).
The IEP team should also take into consideration other factors when offering transportation in order to assure that the IEP offers a FAPE. For instance the team should consider if the student requires specialized equipment such as a special or adapted vehicle, a lift, a ramp, seat restraints, security devices, such as a harness or vest, a car seat, air-conditioning and/or tinted windows.
The IEP team should also consider whether it is appropriate for personnel to assist the student. If the student requires personalized services within the classroom, then it would be appropriate for the IEP team to consider whether the student required personal assistance while being transported.
A school district should also consider whether a change in policy is necessary to accommodate a student with a disability, such as allowing a student with diabetes to have a snack on a bus.
Where will my child be transported to and from?
It depends on what is appropriate for the student. A student may be picked up from a bus stop if it is appropriate but if their disability prevents them from being at the bus stop then home to school transportation may be appropriate. For example, if the student does not understand potential safety hazards then it may not be appropriate for the student to be picked up at a bus stop.
A school district will also be obligated to transport a student for an extracurricular or nonacademic activity if it is related to the student's IEP goals and objectives.
How much time should a student be on a bus?
Neither the IDEA or Section 504 specifically address the appropriate length of bus rides for students with disabilities. In general, a school district must consider the length of a bus ride, proximity of student's home to placement and overall impact on the student. Some states regulate the length of a bus ride by establishing a maximum amount of time a student may be on a bus. Excessive travel time can result in a denial of FAPE as excessive daily commuting to a placement may suggest the need for a residential placement. What constitutes an excessive amount of time, once again, depends on the student, his or her disability, overall health condition and norms for the region. A general rule, however, is that the student's daily commute should not greatly exceed one hour each way. See e.g., Bonadonna v. Cooperman, 557 IDELR 178 (D.N.J. 1985); Covington Community Sch. Corp, 18 IDELR 180 (SEA IN 1991); Kanawho County (WV) Pub. Sch., 16 IDELR 450 (OCR 1987).
Furthermore, a school district should not shorten the school day to accommodate bus schedules for a special education student. See Palm Beach County (FL) Sch. Dist., 31 IDELR 37 (OCR 1998); Jim Thorpe (PA) area Sch. Dist., 20 IDELR 78; Lincoln County (NC) Sch. Dist., 17 IDELR 1052 (OCR 1991). Students with disabilities must be given a comparable length of school day and week as non-disabled students, unless there is a compelling specific reason.
There may be other factors to take into consideration when determining the specifics of transportation as a related service for your student - if you need more help contact a special education attorney in your area.
Wednesday, July 1, 2009
A New Series: Related Services
Coming next week . . . we will be starting a series on related services. Each post will explore a different related service and issues specifically related to that service.
First up will be transportation so check back next week to learn more. If anyone has a related service they would like to know more about please leave a comment and we will do our best to find out more about it or share what we already know.
First up will be transportation so check back next week to learn more. If anyone has a related service they would like to know more about please leave a comment and we will do our best to find out more about it or share what we already know.
Wednesday, May 13, 2009
District obligations when you transfer schools
For any parent, the decision to transfer a child from one school to another is an overwhelming one. For parents of children with special needs, this decision is even more daunting. What does the school district have to do about your child's IEP? Does the new school have to assess? Does the new school have to hold an IEP meeting? Where should your child be placed in the mean time?
This blog is a brief overview of what the new school district must do, at least initially, to meet your child's educational needs. The following only applies to students, in California, who already have an IEP when they transfer.
1. Transfer from one district to another, within the same state
If you transfer within your same state to a new school district, then for up to 30 days the local educational agency must provide your child with FAPE. This offer of FAPE must include services comparable to those described in the previous IEP document and the new district should consult with the parents in determining what is "comparable."
At the 30 day point, the new school district must adopt the previously approved IEP that is consistent with the law.
2. Transfer from one district to another, within the same special education local plan area ("SELPA")
If you transfer districts, but you are within the same SELPA as the previous school (what is a SELPA?) the new district must continue, without delay, to provide services comparable to those described in the existing approved IEP unless the parent and the local educational agency agree to develop, adopt, and implement a new IEP that is consistent with the law.
3. Transfer from one state to another
If you transfer from another state into California, the local educational agency must provide the student with FAPE. These services must be comparable to those described in the previously approved IEP and the new district should consult with parents in determining what is "comparable."
In this scenario, the Education Code vaguely addresses assessments by stating that the local educational agency must provide FAPE until it conducts an assessment, if determined to be necessary by the local educational agency, and develops a new IEP, if appropriate, that is consistent with the law. However, there is no mandatory obligation that the new district conduct assessments.
4. Other Requirements
In addition to the above, the following requirements also apply:
So what does this all mean? If any confusion arises, remember, the bottom line is that the District still has the obligation to provide your child with FAPE. Even where there is an interim period, after the first 30 days, every child should be provided with an appropriate education to meet his or her unique educational needs.
What to watch out for? If you enter a new district and its offer of FAPE does not appear to be "comparable" to the placement and services in the previous IEP, then do not blindly accept the new district's offer. You still maintain all your parental rights. In this scenario, request a full battery of assessments and then an IEP meeting where those assessment results can be shared. It is important to keep in mind that the new school district does not yet know your child, so you may have to advocate harder than before to ensure it learns what your child's unique needs are, and what services are appropriate to meet those needs.
Any strategy? To avoid any additional confusion, in most cases, it is the best idea to ensure that before you transfer districts that you have an agreed upon and implemented IEP. However, this does not mean that you should consent to an IEP just for the sake of transferring - but where there is an appropriate IEP, make sure it is consented to and implemented before the transfer.
My situation is a little different.... Please, let us know if your scenario is not covered in the above, and we would love to participate in a discussion with you and other blog readers about what your options may be! (Contact special education attorneys)
This blog is a brief overview of what the new school district must do, at least initially, to meet your child's educational needs. The following only applies to students, in California, who already have an IEP when they transfer.
1. Transfer from one district to another, within the same state
If you transfer within your same state to a new school district, then for up to 30 days the local educational agency must provide your child with FAPE. This offer of FAPE must include services comparable to those described in the previous IEP document and the new district should consult with the parents in determining what is "comparable."
At the 30 day point, the new school district must adopt the previously approved IEP that is consistent with the law.
2. Transfer from one district to another, within the same special education local plan area ("SELPA")
If you transfer districts, but you are within the same SELPA as the previous school (what is a SELPA?) the new district must continue, without delay, to provide services comparable to those described in the existing approved IEP unless the parent and the local educational agency agree to develop, adopt, and implement a new IEP that is consistent with the law.
3. Transfer from one state to another
If you transfer from another state into California, the local educational agency must provide the student with FAPE. These services must be comparable to those described in the previously approved IEP and the new district should consult with parents in determining what is "comparable."
In this scenario, the Education Code vaguely addresses assessments by stating that the local educational agency must provide FAPE until it conducts an assessment, if determined to be necessary by the local educational agency, and develops a new IEP, if appropriate, that is consistent with the law. However, there is no mandatory obligation that the new district conduct assessments.
4. Other Requirements
In addition to the above, the following requirements also apply:
- The new school must "take reasonable steps to promptly obtain the pupil's records."
- Each local educational agency must ensure that assessments of individuals with exceptional needs are coordinated with the individual's prior and subsequent schools, as necessary and as expeditiously as possible.
So what does this all mean? If any confusion arises, remember, the bottom line is that the District still has the obligation to provide your child with FAPE. Even where there is an interim period, after the first 30 days, every child should be provided with an appropriate education to meet his or her unique educational needs.
What to watch out for? If you enter a new district and its offer of FAPE does not appear to be "comparable" to the placement and services in the previous IEP, then do not blindly accept the new district's offer. You still maintain all your parental rights. In this scenario, request a full battery of assessments and then an IEP meeting where those assessment results can be shared. It is important to keep in mind that the new school district does not yet know your child, so you may have to advocate harder than before to ensure it learns what your child's unique needs are, and what services are appropriate to meet those needs.
Any strategy? To avoid any additional confusion, in most cases, it is the best idea to ensure that before you transfer districts that you have an agreed upon and implemented IEP. However, this does not mean that you should consent to an IEP just for the sake of transferring - but where there is an appropriate IEP, make sure it is consented to and implemented before the transfer.
My situation is a little different.... Please, let us know if your scenario is not covered in the above, and we would love to participate in a discussion with you and other blog readers about what your options may be! (Contact special education attorneys)
Subscribe to:
Posts (Atom)