Student Rights under IDEA and Section 504
Wed., Feb.13, 2008
Mr. Charles Weiner, Esq. – an attorney in private practice.
Ms. Fran Fletcher – from Special Education Partnership for the Amicable Resolution of Conflict (SPARC)
About 35 attendees, including parents and BSD staff – including Superintendent Jim Scanlon.
Opening remarks by BSNPTA Membership Chair, Ellen Coulston.
Ellen mentioned the upcoming Inclusion Summit and thanked Ann Hickert and District staff for the good work they’ve been doing with Inclusion in Brandywine.
Ellen also called attention to two graphs on Reading and Math Proficiency as measured by the DSTP.
- DSTP Reading and Math Proficiency for Students with Disabilities in BSD since 2002
- Pie Charts of 10 grade Reading and Math Proficiency
Ellen made the point that our kids are getting further behind every year and by 10th grade, barely 10% get proficient scores on the DSTP. And the requirements are getting more rigorous. By 2013, graduating seniors will need to have proficiency not only in English but in a World (Foreign) Language too.
Charles Weiner gave a presentation in a Question/Answer format. He started out with some questions that he commonly gets as a way to begin the presentation and then mixed in audience questions as they arose.
The first question was about when a student would get a 504 versus an IEP. Mr. Weiner stated that students qulaify for an IEP based on very specific criteria on the Individuals with Disabilities Education Act (IDEA). There are 13 categories of disabilities that qualify a student for an IEP under IDEA. In contrast, Section 504 is less specific but covers disabilities that have a major effect on life function. Section 504 does not provided Special Education and Related Services, rather, 504 provides accommodations to allow the student to appropriately access the curriculum.
A number of questions were related to the Evaluation for Special Education Evaluation. Here are some bullet points from the discussions:
- A student does not have to be a certain amount “behind” to qualify for Special Education Evaluation.
- It is the responsibility of the State and the District to reach out and identify any students with disabilities – “Child Find”.
- A parent can ask for a Special Education Evaluation for a child at any time for any reason. To make sure the request is clear, it should be in writing. Once a formal request for an Evaulation is made in writing, the school has 45 school days, or 90 calendar days (which ever comes first), to either perform the evaluation or to explain in writing why the Evaluation was not performed. (see Prior Written Notice, below.)
- A Special Education Evaluation need to be a separate battery of tests just for the Special Education Evaulation. Often the WYAT (Wechsler Individual Achievement Test) is administered. There may be other tests the student has already taken, questionaries from parents, teachers or staff that can be part of the Evaluation.
- Schools may try to use currently existing programs to see if that helps the child perform acceptably. For example, an Instructional Support Team (IST) may offer remedial help. But these services are not to be offered in lieu of an evaluation – although Response To Intervention (RTI) may require some forms of instructional changes as part of the evaluation for the Specific Learning Disabilities disability catagory.
- In Delaware, Special Education Evaluations are performed and/or assembled by the Educational Diagnostician (ED) and the School Psychologist.
- If a parent does not agree with the school’s evaluation, the parent can request an Independent Educational Evaluation (IEE) at the school’s expense. Often, parents with the means will get an IEE done provately and either pay for it themsleves or through insurance. Technically, a parent could try to force a school to pay for an IEE through “Due Process” but Mr. Weiner strongly discourages that – if that is the cost of the IEE is the main issue.
- A school does not have to agree with an IEE, but is it required by law to “consider” it.
- Beyond the initial Evaulation, there needs to be a “tri-annual” re-evaluation every three years – at the least.
- According to BSD Psychologist Jeff Roth, tri-annual re-evaluations stress collecting data to help with the student’s eduation as opposed to just eligibilty for Special Education.
- Components of an evaulation are: testing, Feedback from observers, review of existing records.
- If there is a specific component of the evaluation that the parents and school think is unnecessary, it can be skipped. For example, an IQ test may not be necessary because IQ typically does not change beyond the early elementary years.
Individual Education Plans (IEPs)
Mr. Weiner highlighted some of the sections of an IEP:
- Objectives. While all IEPs need long term objectives, beginning next year, only students in the DAPA (alternative assessment) track are required to have short term goals. However, IEP teams may feel short term goals are appropriate for other students because it makes sense to break down some long term objectives into smaller pieces.
- Lisa Phifer stressed all goals should be specific, observable and measurable.
- An IEP should have: Services and support listed, related services such as: OT, PT, assistive technology, Transition services if applicable,
- After age 14 in Delaware, students must have a Transitional component in the IEP that discusses what the student will be doing beyonf High School.
- Present Level of Educational Performance (PLEP) is important in determining progress towards to goals. This should come from reports from the teacher, progress report, assessments, etc.
- Least Restrictive Environment (LRE) placement options have been greatly simplified beginning with next year’s IEPs in Delaware.
- Compensatory Education
- This is a mechanism by which the district provides services to make-up for services not provided.
- Sometimes Compensatory Education is a remedy from a Due Process or Administrative Complaint investigation although it is possible for the District to offer it on their own. If parents feel there is a need for compensatory education, they should write a letter first to the District and then to the Department of Education if the District does nto work it out.
- An example of a potential rationale for COmpensatory Education would be if an IEP specificed 2 Speech and Language Patholist (SLP) sessions every week and 6 months go by with little or no SLP sessions, Compensatory Education could be used to “catch up” on the missed sessions – perhaps by having 3 sessions a week for some period of time.
- Prior Written Notice
Prior Written notice is not well understood by many parents. Prior Written Notice requires the District to provide details in writing anytime the change or refuse to change key components of a the education of a student with disabilities. Specificy, the communication must provide these details:
- describe the action proposed or refused
- explain why the school proposed or refused to take action
- describe each evaluation procedure, assessment, record, or report used as a basis for the proposed or refused action
- provide sources the parent can contact to obtain assistance
- describe other options considered and why these options were rejected
- describe the factors that were relevant to the schools proposal or refusal
Mr Weiner has a special interest in reducing Bullying in schools and is a member of the Antidefamation League.
Bullying in needs to be treated like a victimization, not like conflict resolution.. Don’t bring the bully and the victum in the same room as equals.
Mr. Weiner mentioned the Stopbullyingnow.org.
Stats: 67% of Special Education students are the target of bullying. 30% of those students tell no one what they experience.
He discussed the importance of training staff to recognize and deal with bullying. This can be written on an IEP.
It is important to educate the staff and children on bullying issues saying that bullying is not a conflict and should not be treated as conflict resolution. But rather, addressed individually.
What if your child has a particular need for services and the district will not provide?
The school district is obliged to make those services available if there is a proven need. Lack of funding, District structure/organization, inadequate staff, or untrained staff are not legitimate reasons for denying a service a child needs for a Free and Appropriate Public Education (FAPE).
Once the subject of conflicts between parents and the School/District came up, Fran Fletcher began her presentation.
Fran Fletcher from Special Education Partnership for the Amicable Resolution of Conflict (SPARC).
SPARC helps reduce and resolve conflicts in the Special Education process. SPARC helps by offering IEP facilitation and mediation. Services are paid for by DOE but not aligned with DOE.
Ms. Fletcher gave a presentation on Conflict Resolution in Special Education.
SPARC staff are third party facilitators. The facilitator helps meetings run smoothly and helps to communicate effectively without regard to the outcome. He/she helps make sure that the people who need to be there are present. They slow down the process of the IEP meeting so the parents have adequate time to process and understand information.
SPARC’s goal as an IEP facilitator is to make sure all parties hear each other and understand each other’s points. SPARC is not an advocate for any one side. An advocate argues for and represents one particular side in a discussion. SPARC does not take sides but rather helps make sure each side hears and understands the other side. If you feel like you need an Advocate, then SPARC may not be what you need.
Mediation is different from IEP meeting in that it is called for the purpose of dealing with specific issues that typically do not require the whole IEP team be present. Sometimes, an IEP team may table a specific issue so they can resolve most of the issues and use mediation to revisit the sticking points later. The goal of mediation is for the parties to sign a binding agreement resolving the issue. One quirk of the process is that nothing can change an IEP without the agreement of the IEP team. Therefore, it is important to have the appropriate players at the mediation meeting. For example, if one sticking point in an IEP meeting is transportation, the mediation meeting may have the Director of Transportation and the parents. Altough the Speech and Language Pathologist (SLP) is a member of the IEP team, the SLP does not need to participate in the mediation meeting regarding transportation.
The rights of Students with Disabilities are spelled out in the Notice of Procedural Safeguards. This booklet may be widely distributed at IEP meetings but few parents have read it with attention to detail. We encourage you to to really read it.
Many of the same details are provided in a more friendly format in the brochure Parents Can Be the Key. (This brochure is great for the “big picture” but it was written before the re-authorization of IDEA in 2004 so a few details may have changed.)
Here are some related documents on Section 504 plans:
- Delaware Dept of Ed 504 page
- Here’s some additional information on Prior Written Notice.
- Prior Written Notice from fape.org.
- Prior Written article forum page from the BSNPTA site.
- The new Delaware Prior Written Notice form is online as is an Prior Written Notice FAQ doc. Here is the US model one: Prior Written Notice Model Form from US Dept of Ed
- Council of Parent Attorneys and Advocates, Inc. (COPAA) calls itself a national voice for Special Education rights and advocacy.
- Wrightslaw.com has more great information than we can begin to cover, but here are some of related pages: