• Altering Records

    Indiana's statute on this:

    511 IAC 7-38-2 Procedures for amending educational records

    Sec. 2. (a) A parent or student of legal age who believes that information in an educational record collected, maintained, or used under this rule is inaccurate, misleading, or violates the privacy or other rights of the student may request the public agency that maintains the record to amend the information.

    The request must:

    (1) be in writing;
    (2) be dated; and
    (3) specify the information that the parent or student of legal age believes:
    (A) is inaccurate;
    (B) is misleading; or
    (C) violates the student's privacy or other rights.
    (b) If the public agency agrees to amend the information as requested, the public agency must do the following:
    (1) Amend the information within ten (10) business days after the request is received.
    (2) Notify the parent or student of legal age, in writing, that the change has been made, including the date the change was made.
    (c) If the public agency refuses to amend the information as requested, the public agency must notify the parent or student of legal age of the refusal, in writing, within ten (10) business days after the request is received. The written notice must include a statement of the right of the parent or student of legal age to a hearing to challenge the information in the student's educational record and the procedures for the hearing, including the following:
    (1) The parent or student of legal age must submit to the public agency a written request for a hearing, specifying the:
    (A) information challenged; and
    (B) reasons the parent or student of legal age believes the information to be:
    (i) inaccurate;
    (ii) misleading; or
    (iii) in violation of the student's privacy or other rights.
    (2) The public agency must do the following:
    (A) Convene a hearing within fifteen (15) business days after the request for the hearing is received.
    (B) Notify the parent or student of legal age, in writing, of the hearing:
    (i) date;
    (ii) time; and
    (iii) location;

    not less than five (5) business days in advance of the hearing.
    (3) The hearing may be conducted by any person, including an official of the public agency, who does not have a direct interest in the outcome of the hearing.
    (4) The parent or student of legal age:
    (A) must be given a full and fair opportunity to present evidence relevant to the issues; and
    (B) may, at their own expense, be assisted or represented by one (1) or more persons, including an attorney.
    (5) The hearing officer must notify the parent or student of legal age of the hearing decision in writing within ten (10) business days after the hearing. The decision must:
    (A) be based solely on evidence and testimony presented at the hearing; and
    (B) include a summary of the evidence and the reasons for the decision.
    (6) If the hearing officer determines the information in question is inaccurate, misleading, or otherwise in violation of the privacy or other rights of the student, the public agency must:
    (A) amend the information accordingly; and
    (B) inform the parent or student of legal age in writing of the amendment.
    (7) If the hearing officer determines the information in question is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of the student, the public agency must inform the parent or student of legal age in writing of the right to place a statement in the student's record commenting on the contested information or stating the reasons for disagreeing with the decision, or both.
    (8) A statement placed in the record by the parent or student of legal age under subdivision (7) must be maintained by the public agency in the student's record as long as the record or the contested portion of the record is maintained by the public agency. The public agency must disclose the statement whenever it discloses the record or the contested portion of the record to which the statement relates.

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  • Compulsory Attendance

    Texas Education Code § 25.085(a) requires that a child attend school each day for the entire period that a school’s program of instruction is provided. Attendance is compulsory for a child at least six years of age, or who is younger than six and has been previously enrolled in first grade, and who has not yet reached age 18.14 Throughout this article, this provision is referred to as the compulsory attendance law. The Education and Family Codes contain “truancy” laws to enforce this compulsory attendance requirement.

    The 76th Legislature expanded Education Code § 25.085(d) by adding accelerated reading, accelerated instruction, and basic skills programs to the compulsory school attendance requirement. Extended year programs and tutorial classes had already been incorporated into compulsory school attendance under the previous version of § 25.085(d). Thus, students who are required to attend any of those accelerated or compensatory programs are subject to the compulsory attendance laws for those programs the same as they are for a regular school day.

    The 76th Legislature also revised Education Code § 25.085 to provide that a student who voluntarily enrolls in school or voluntarily attends school after his 18th birthday is required to attend school each day for the entire period the program of instruction is offered. The student’s enrollment may be revoked for the remainder of the school year if the student has more than five unexcused absences in a semester. Once a student’s enrollment is revoked, the student may be considered an unauthorized person on school grounds for trespass purposes as per Education Code § 37.107.

    School districts also may apply Education Code § 25.085(e) to special education students over age 18. While the district must make FAPE available to the student, nothing prevents the school district from applying a neutral administrative rule to that special education student if he or she has more than five unexcused absences in a semester. However, before the school district revokes the special education student’s enrollment, the district should conduct a manifestation determination to rule out any connection between the student’s disability and the absences (i.e. any chance that the absences are a manifestation of the student’s disability).

    Special Considerations for the Absent Special Education Student

    When a special education student compiles excessive absences, some special precautions should be taken into account. Is it possible that the absences are related to the student’s disability? If so, is there anything the school can do to reduce those absences? Before a school district takes action against a special education student for excessive absences, the ARD committee/IEP team should consider these questions.

    There are cases in which Texas hearing officers have ruled against school districts because the district failed to present the issues to the ARD committee. For example, in David A. v. El Paso I.S.D., the hearing officer concluded that the district failed to provide the student with an appropriate education and ordered the school to reimburse the parent for private tuition. The school argued that David’s lack of progress was due to nonattendance. The hearing officer ruled that the district should have held an ARD meeting to determine if the absences were related to the student’s disability.

    Prior to initiating compulsory attendance complaints or revoking course credit due to excessive absences, it is advisable to hold an ARD to address these issues. If there is a connection between the disability and the absences, the district should address the problem through behavior strategies and supports for the student. When there is no connection, the district is in a better position to follow through with its proposed action.

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  • Federal Laws

    1. Individuals with Disabilities Education Improvement Act ( "IDEIA" ) with regulations appearing at 34 CFR (Code of Federal Regulations) § 300 and 301.

    2. Section 504 of the Rehabilitation Act; codified at 29 U.S.C. § 794 with regulations appearing at 34 C.F.R. § 104

    3. Family Educational Rights and Privacy Act ("FERPA"); codified at 20 U.S.C. § 1232g with regulations appearing at 34 C.F.R. § 99 (FERPA gives parents of all students the right to inspect all information maintained by the school district in connection with their child)

    4. Americans with Disabilities Act ("ADA"); codified at 42 U.S.C. § 12101 with regulations appearing at 28 C.F.R. § 35.

    5. Technology Related Assistance For Individuals With Disabilities, codified at 29 U.S.C. Sec. 2109 (this statute, which broadly defines the term "assistive technology," can be relied upon to seek computer "touch screens, specialized recording and playback devices (e.g. "Language Master") and essentially all other devices, items and systems which are used to "...increase, maintain or improve functional capabilities of individuals with disabilities").

    6. No Child Left Behind Act


    NEW IDEIA 2004 VS. OLD IDEA 1997

    On Dec. 3, 2004, the president signed the Individuals with Disabilities Education Improvement Act of 2004 (IDEIA 2004), which was the final bill reauthorizing IDEA 1997. Most provisions were slated to become effective July 1, 2005, and the U.S. Department of Education will issue IDEA 2004 regulations.

    Proposed regulations (which have no legal authority) were published in the Federal Register on June 21, 2005. Comments on the proposed regulations were due Sept 6, 2005. The Department of Education has publicly said that they plan to issue regulations this winter; but they must first clear the Office of Management and Budget.

    Schools still have to follow Indiana’s Article 7 protections (which are written to mirror the 1997 IDEA). So, right now, students have protections under both the old and new laws.

    The 75-day comment period on the U.S. Department of Education’s proposed rules implementing the IDEIA is almost over. Comments are due September 6, 2005.

    Important: After July 1, 2005, the new statute goes into effect. Federal
    law pre-empts state law. BUT if the state law provides additional protections, then districts must continue to comply with state law until it is changed. For example, if you are in a state in which short-term objectives are in the state law then districts should provide STO until the state law is changed.

    TIMELINE FOR DECISIONS

    Although the due process hearing is to be completed within forty-five (45) calendar days, the times line does not begin until the earliest of the following:

    -- The written decision of the parent and public agency to forgo the Resolution Session;
    -- The decision of the parent and public agency to request mediation;
    --The passage of thirty (30) calendar days from the public agency’s receipt of the hearing request with no written agreement achieved through the Resolution Process. (So, see date of hearing request, add 30 days from receipt of that, plus 45 calendar days for completion of hearing.)

    DISCIPLINARY CHANGES:

    MDRs. An MDR is a hearing to determine if a student’s misconduct was caused by his disability. If so, the school cannot discipline the student. Schools must do an MDR before imposing discipline changing a child’s educational placement for more than 10 days.

    OLD IDEA:
    Under the IDEA 1997, the team had to answer four questions:
    1. Were the student’s IEP and placement appropriate?
    2. Did the district fail to provide the services consistent with the IEP?
    3. Did the student’s disability impair his ability to understand the impact or consequences of his behavior?
    4. Did the student’s disability impair his ability to control his behavior?

    If the team answered yes to any of these questions, it had to find that the student’s
    misconduct was a manifestation of his disability and could not suspend or expel him.

    NEW IDEA:
    Under the IDEA 2004, the team has to answer two questions:
    1. Did the disability cause, or have a direct and substantial relationship to, the conduct?
    2. Did the district’s failure to implement the IEP cause the conduct?

    If the team answers yes to either question, it must find that the misconduct was a
    manifestation of the child’s disability. (The problem is that many people believe that the two new questions are less likely to yield a “yes” response than the old questions did.)

    If the local educational agency, the parent and relevant members of
    the IEP Team make the determination that the conduct was a manifestation of the child’s disability, the IEP team shall—

    • Conduct a functional behavioral assessment and implement a behavioral intervention plan for such child (provided that a previous assessment has not been conducted)
    • In the situation where a behavioral intervention plan has been developed, review the plan and modify it, as necessary, to address the behavior, and
    • Except under special circumstances, return the child to the setting from which the child was removed, unless the parent and the local educational agency agree to a change of placement as part of the modification of the behavioral intervention plan.

    INTERIM ALTERNATIVE PLACEMENTS

    Under IDEA 2004, districts will be able to use 45-day interim alternative placements for students who cause serious bodily injury. Under the old IDEA 1997, this option was available ONLY for drug and weapon offenses. Also, the length of the time for alternative placement will be extended under IDEA 2004 from 45 calendar days to 45 school days.
    GOALS AND OBJECTIVES

    OLD IDEA:
    The IDEA 1997 required the use of benchmarks and short-term objectives.

    NEW IDEA:
    Schools do not have to include benchmarks and short-term objectives in IEPs, EXCEPT for children with disabilities who take alternate assessments aligned to alternate achievement standards. Instead they have to describe how a student’s progress toward annual goals will be measured and state when such reports shall be done (i.e. through report cards, quarterly or otherwise).

    However, a statement is required of measurable annual goals, “including academic and functional goals.”

    In addition, No Child Left Behind, Title I, Part F, which deals with Comprehensive School Reform requires measurable goals for student academic achievement and benchmarks for meeting those goals.

    PRIVATE SCHOOL PLACEMENT

    Under IDEIA, the LEA where the child’s private school is located is responsible for providing services to students with disabilities enrolled by the parent in that private school. 20 U.S.C. § 1412(a)(10)(A)(i).

    IEP MODIFICATION
    OLD IDEA:
    IDEA 1997 – Required the full case conference to convene to modify the child’s IEP.

    NEW IDEA:
    IDEA 2004 – Allows parents to agree with the district to modify the IEP in writing, without another formal meeting.

    CASE CONFERENCE ATTENDANCE
    OLD IDEA
    IDEA 1997 – Required attendance of all participants for the duration of the meeting.

    NEW IDEA
    IDEA 2004 – Allows IEP team members to be “excused” from attending all or part of an IEP meeting. For a team member to be excused, the parents and the district have to agree in writing that the team member isn’t needed because his or her services aren’t being discussed or modified AND the team member must submit written input into the IEP development related to his or her services BEFORE the meeting.

    PARENTAL PERMISSION FOR EVALUATION

    OLD IDEA
    IDEA 1997 required permission of a parent before an initial evaluation.

    NEW IDEA
    IDEA 2004 – allows initial evaluations without parental consent in certain instances, provided that the district follows procedural safeguards requirements.

    ** However, a district still cannot provide special education services without parental consent.**

    SPECIFIC LEARNING DISABILITIES

    OLD IDEA
    IDEA 1997 required districts to determine whether there’s a severe discrepancy between the student’s achievement and his or her intellectual ability.

    NEW IDEA
    IDEA 2004 says this severe discrepancy determination is no longer required. Instead, districts will be allowed to use a process that determines whether the student responds to scientific, research-based intervention. The new language gives the case conference more flexibility in categorizing a student as having an SLD, even when he doesn’t meet the former criteria.

    MOVE-IN STUDENTS

    OLD IDEA
    IDEA 1997 didn’t really address this, so states did individually.

    NEW IDEA
    IDEA 2004 says that when developing a new IEP for a student who moved from another district, the school must ensure that the student receives services comparable to those specified in his old IEP.

    LITIGATION DISCOURAGED

    OLD IDEA
    IDEA 1997 provided no statute of limitations, so some states dealt with this issue individually. Others left it wide open for interpretation by the courts. The old IDEA didn’t address the issue of alternative dispute resolution. The old IDEA didn’t address the issue of attorney fees paid by parents to schools for frivolous litigation. However, a general trial rule, Rule 11, allowed for fees to be sought and always has.

    NEW IDEA
    IDEA 2004 provides a two-year statute of limitations. Parents have two years from the date they knew or should have known about the issues they raise in their due process request.

    The timeline shall not apply if the parent was prevented from requesting the hearing due to specific misrepresentations by the agency that it had resolved the problem forming the basis of the complaint or the agency’s withholding of information from the parent that was required to be provided to the parent.

    The new IDEA requires that within 15 days of a request for a due process hearing that a district hold a “resolution session” with parents to attempt to settle the issues in dispute. The parents and school can agree in writing to waive the session or go straight to mediation. But if they DO proceed with the “resolution session” and it’s successful before 30 days have elapsed from the filing of the due process hearing request, they can sign a binding settlement agreement that is enforceable in any state or federal court with jurisdiction. If the parties execute such an agreement, a party may void that agreement within 3 business days of the agreement’s execution.

    The resolution session shall include a representative of the agency who has decision-making authority on behalf of the agency and may NOT include the school’s attorney unless the parent is also accompanied by an attorney.

    A “resolution session” shall not be considered a meeting convened as a result of an administrative hearing or judicial action or an administrative hearing or judicial action [in other words, if the parent’s complaint is resolved at the resolution session meeting, the parent is not entitled to attorneys fees].

    REQUIRED TO FILE ANSWER, GIVE PRIOR WRITTEN NOTICE

    It also requires that the non-complaining party shall, within 10 days of receiving the complaint, send to the complainant a response that specifically addresses the issues raised in the complaint. It also requires that the lea give prior written notice as to the matters in the complaint, if the school has not already done so.

    APPEALS TIMELINE

    Under the new IDEA 2004, a party appealing a final decision of a hearing officer (either local hearing officer or state hearing officer) shall have 90 days from the date of the decision of the hearing officer to bring an action or, if the Stat has an explicit time limitation in place, within that time period. In Indiana, there is currently a 30-day time period.

    ATTORNEY FEES

    The new IDEA allows a prevailing school district to be awarded attorneys fees against the parents’ attorney if 1. the due process request or lawsuit is frivolous, unreasonable or without foundation, 2. the attorney continued to litigate after the litigation clearly became frivolous, unreasonable or without foundation, 3. The due process request or lawsuit was filed for any improper purpose, including harassment, unnecessary delays or needlessly increasing litigation costs. It also allows a prevailing district to be awarded attorney fees against the student’s parents if the due process request or lawsuit was filed for any improper purpose, including harassment, unnecessary delays, or needlessly increasing litigation costs.

    Although this sounds scary, this has always been the status of the law, through the trial rules and case law. The intent was to codify Christiansburg Garment Co. v. EEOC. 434 U.S. 412 (1978). According to Christiansburg, attorney’s fees may only be awarded to defendants in civil rights cases where the plaintiffs’ claims are frivolous, without foundation or brought in bad faith.”

    The intent of this provision is to reduce the number of parents who shoot from the hip, request a due process hearing out of anger and emotion, do not prepare their case and simply want to get back at the school district for perceived wrongs.

    (I have not yet encountered a special education where the school filed a request for sanctions under Rule 11 or Christiansburg, though I imagine they might test the waters with it in the future. Proving that a case is frivolous, unreasonable or without foundation is very difficult, and in most special education cases, there are sufficient violations of the law that can be proven via the school’s own documents that this is not something that I expect to be utilized much.)

    TEACHER TRAINING AND CERTIFICATIONS

    OLD IDEA
    IDEA 1997 – didn’t address this issue to the degree that the new IDEA does, although the No Child Left Behind Act did.

    NEW IDEA
    IDEA 2004 has new standards for “highly qualified” special education teachers that are meant to follow and work with the high qualified standards of the NCLB. For instance, all special education teachers must be certified or licenses in special education in order to be “highly qualified.” All new hires will have to meet this requirement when hired.

    Also, teachers of students who teach only middle or high school-aged students with the most significant cognitive disabilities (i.e. the ones who qualify for assessments using alternative achievement standards) the new IDEA says that if students are at the elementary school level, the teacher may meet the NCLB highly qualified standards for elementary school teachers, rather than those for middle school and high school teachers.

    In addition, experienced special education teachers who teach two or more core academic subjects to students with disabilities may meet NCLB’s highly qualified standards by passing a single, multi-subject “high, objective, uniform state standard of evaluation” (HOUSSE). New special education teachers will be able to use the HOUSSE as well. If a new special education teacher is already highly qualified in math, language arts or science, she can take advantage of a multi-subject HOUSSE for the remaining subjects taught. But new teachers must complete the HOUSSE no later than two years after they are hired.

    The new IDEA also sets deadlines:

    • Teachers hired before 2002-03 school year: Under both IDEA and NCLB, these teachers have until the end of the 2005-06 school year to get highly qualified.
    • Teachers hired on or after July 1, 2005: Special education teachers hired from that day on must be highly qualified as of their hire ate if they’re in a Title I supported program.
    • Teachers hired since the start of the 2002-03 school year but before July 1, 2005: Have to be highly qualified in their core subject

    BEHAVIOR

    OLD IDEA
    IDEA 1997 said “in the case of a child whose behavior impedes his or her learning or that of others, consider, when appropriate, strategies, including positive behavioral interventions, strategies, and supports to address that behavior.”

    NEW IDEA
    IDEA 2004 includes minor changes to the provision dealing with behavior to read as follows: “in the case of a child whose behavior impedes the child’s learning or that of others, consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior.”

    FUNDING ISSUES

    OLD IDEA
    IDEA 1997 did not fully fund special education requirements

    NEW IDEA
    IDEA 2004 laid out a six-year plan for reaching the goal of 40 percent federal funding of special education programs. However, it didn’t make this funding plan mandatory. And then two days after Congress passed IDEA 2004 with this six-year plan for reaching 40 percent funding, Congress passed a fiscal year 2005 appropriations bill that gave $1.7 billion LESS to special education than the $12.36 billion IDEA 2004 had called for.

    TRANSITION

    OLD IDEA
    IDEA 1997 – Schools had to include a transition plan in the student’s IEP in the IEP in which the student turned age 14.

    NEW IDEA
    IDEA 2004 says that beginning “not later than the first IEP in effect when the child is 16 and updated annually thereafter include “appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills; the transition services (including courses of study needed to assist the child in reaching those goals); and beginning not later than 1 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, if any, that will transfer to the child on reaching the age of majority.

    SCIENTIFICALLY BASED METHODS OF INSTRUCTION

    IDEA 2004 says IEPs must contain “a statement of the special education and related services and supplementary aides and services, BASED ON PEER-REVIEWED RESEARCH TO THE EXTENT PRACTICABLE, to be provided to the child, or on behalf of the child.”

    Other miscellaneous differences:

    MODEL FORMS:

    IDEA 2004 requires that model forms be published for IEPs, individualized family service plans, procedural safeguards and notices. These include:

    • A model IEP form,
    • A model IFSP form,
    • A model form of the notice of procedural safeguards, and
    • A model form of the prior written notice that is consistent with the requirements of part B and is sufficient to meet such requirements.

    USING TECHNOLOGY IN CASE CONFERENCES

    Under IDEA 2004, staff may conduct IEP meetings and other meetings through videoconferences and conference calls. Physical presence is no longer required.

    MULTI-YEAR IEPS

    IDEA 2004 allows 15 state proposals to allow districts to develop multiyear IEPs that would last for as long as three years.

    ASSISTIVE TECHNOLOGY
    IDEA 2004 retained the definition of assistive technology device but inserted the following exception “The term does not include a medical device that is surgically implanted, or the replacement of such device.”

    RELATED SERVICES
    The statutory definition of the term “related services” includes the following additions: “interpreting services” and “school nurse services designed to enable a child with a disability to receive a free appropriate public education as described in the IEP of the child.”

    The following exception is included: “The term does not include a medical device that is surgically implanted, or the replacement of such device.”

    The conference report clarified that the conferees intend that related services include “travel training instructions.”

    PROCEDURAL ERRORS

    In due process hearings alleging a procedural violation, a hearing officer may find that a child did not receive FAPE only if the procedural inadequacies:
    Impeded the child’s right to FAPE, significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of FAPE, and caused a deprivation of educational benefits.

    CIVIL ACTIONS

    A limitation on the right to bring a civil action says: the party bringing the action shall have 90 days from the date of the decision of the hearing officer to bring such an action, or, if the state has an explicit time limitation for bringing such an action, in such time as the state law allows.

    REIMBURSEMENTS TO PARENTS FOR PRIVATE PLACEMENTS

    The new IDEA 2004 keeps the IDEA 1997 provisions related to the enrollment of children with disabilities by their parents without the consent of the school system, but the exception regarding limitations of the system’s responsibility to pay for FAPE has been modified as follows:

    • Reimbursements shall not be reduced or denied for failure to provide notice of the parents concerns and demands if the school prevented the parent from providing such notice, the parents had not received notice of the notice requirement, or compliance would likely result in physical harm to the child.
    • Reimbursements may, at the discretion of a court or a hearing officer, not be reduced or denied for failure to provide such notice if the parent is illiterate or cannot write in English or compliance with the notice requirement would likely result in serious emotional harm to the child.

    MEDICATION ISSUES

    The following provision related to prohibition on mandatory medication was added: “The state educational agency shall prohibit state and local educational agency personnel from requiring a child to obtain a prescription for a substance covered by the Controlled Substances Act as a condition of attending school, receiving an evaluation… or receiving services...” This new prohibition should not be construed to “create a federal prohibition against teachers and other school personnel consulting or sharing classroom-based observations with parents or guardians regarding a student’s academic and functional performance or behavior in the classroom or school or regarding the need for evaluation for special education and related services…”

    CHARTER SCHOOLS

    The following clarifications are included related to the treatment of charter schools and their students: the local educational agency must serve children with disabilities attending public charter schools in the same manner it serves children in other schools, including providing supplementary and related services on site at the charter school to the same extent to which the local educational agency has a policy or practice of providing such service on the site to its other public schools and provides funds under IDEA to those charter schools on the same basis as the local educational agency provides funds to its other public schools, including proportional distribution based on relative enrollment of children with disabilities and at the same time as the agency distributes other federal funds to the agency’s other public schools, consistent with the state’s charter school law.

    REEVALUATIONS

    The following changes and additions were made to the provisions related to reevaluations:

    Reevaluations shall be conducted if the local educational agency determines that the educational or related services needs, including improved academic achievement and functional performance, of the child warrant a reevaluation OR if the child’s parents or teacher requests a reevaluation.
    A reevaluation shall occur not more frequently than once a year, unless the parent and the local educational agency agree otherwise and at least once every 3 years, unless the parent and the local educational agency agree that a reevaluation is unnecessary.

    ALTERNATIVE ASSESSMENTS

    If the IEP Team determines that the child “shall take an alternate assessment” a statement is required of why “the child cannot participate in the regular assessment and the particular alternate assessment selected.”

    DUE PROCESS COMPLAINT NOTICE

    For IDEA 2004, the following additions were made to the provision related to due process complaint notice:

    • Either party, or the attorney representing a party, must provide due process complaint notice to the other party and forward a copy of such notice to the state educational agency.
    • The notice must specify particular information if the child is homeless.
    • The notice must include, among other things, a requirement that a party may not have a due process hearing until the party, or the attorney representing the party, files a notice that meets the specified requirements.
    • The state educational agency must develop a model form to assist parents filing a due process complaint notice.
    • The due process complaint notice shall be deemed to be sufficient unless the party receiving the notice notifies the hearing officer and the other party in writing that the receiving party believes the notice has not met the applicable requirements.
    • If the local educational agency has not sent a prior written notice to the parent regarding the subject matter contained in the parent’s due process complaint notice, such agency must, within 10 days of receiving the complaint, send to the parent a response that includes--
      • An explanation of why the agency proposed or refused to take the action raised by the complaint,
      • A description of other options that the IEP Team considered and the reasons why those options were rejected,
      • A description of each evaluation procedure, assessment, record, or report the agency used as the basis for the proposed or refused action, and
      • A description of the factors that are relevant to the agency’s proposal or refusal.

    RESPONSE TO COMPLAINT

    The following additions were included regarding the filing of a response:

    • A response filed by a local educational agency shall not be construed to preclude such agency from asserting that the parent’s due process complaint notice was insufficient, where appropriate.
    • Except as provided above, the noncomplaining party shall, within 10 days of receiving the complaint, send to the complainant a response that specifically addresses the issues raised in the complaint.
    • There must be a determination by the hearing officer regarding the adequacy of the due process complaint notice: within 5 days of receipt of the notification that the complaint notice is inadequate, the hearing officer shall make a determination on the face of the notice of whether the notification meets the applicable requirements and shall immediately notify the parties of such determination.

    The following additions were included regarding the ability to amend a due process complaint notice:

    • A party may amend its due process complaint notice only if the other party consents in writing to such amendment and is given the opportunity to resolve the complaint through an opportunity for a resolution session OR the hearing officer grants permission, except that the hearing officer may only grant such permission at anytime not later than 5 days before a due process hearing occurs.
    • The applicable timeline for a due process hearing shall recommence at the time the party files an amended notice, including the timeline for a resolution session.

    DISTRIBUTION OF RIGHTS (PROCEDURAL SAFEGUARDS) BOOKLETS

    Several changes were made to the requirement regarding the procedural safeguards notice:

    • The procedural safeguards notice shall be given to parents only 1 time a year except a copy shall be given to the parents upon initial referral or parental request for evaluation, upon the first occurrence of the filing of a complaint and upon request by a parent. (Note: the Notice will no longer be distributed automatically with each notification of the IEP meeting or upon reevaluation.)
    • A local educational agency may place a current copy of the procedural safeguards notice on its Internet website if such website exists.
    • The notice must include, among other things, the opportunity to present and resolve complaints, including the time period in which to make a complaint, the opportunity for the agency to resolve the complaint, mediation, due process hearing, state level appeals, and civil actions, including the time period in which to file such actions, and attorneys fees.

    DISPARATE TREATMENT DUE TO RACE

    The new IDEA 2004 takes aim at the disproportionate share of minority students tracked for special education. (According to the Civil Rights Project at Harvard University, schools are up to three times more likely to label African-Americans than whites as mentally retarded, and twice as likely to label blacks emotionally disturbed.)

    Where to get copies of/comments about new IDEA 2004

    To see a redline comparison between IDEA 1997 AND IDEA 2004, go to
    http://www.copaa.net/pdf/IDEA97-04COMP.pdf or http://www.copaa.ortg/news/idean04.html to download individual sections.

    In addition, you can go to the National Association of State Directors of Special Education and see a side-by-side comparison at http://www.doe.k12.ga.us/curriculum/exceptional/index.asp.

    Another good resource: http://www.thearc.org/ideachanges/usersguide.doc



    Section 504


    The Rehabilitation Act of 1973, called Section 504, is a nondiscrimination statute enacted by Congress. The purpose is to prohibit discrimination and ensure that disabled students have the same educational opportunities and benefits as those provided to nondisabled students.

     

    Under § 504, a student who (a) has, (b) has a record of having, or (c) is regarded as having, a physical or mental impairment which substantially limits a major life activity such as learning, self-care, walking, seeing, hearing, speaking, breathing, working and performing manual tasks is eligible for Section 504 ptoections.

     

    Many students are eligible for education services under both § 504 and the Individuals with Disabilities Education Improvement Act (IDEIA 2004). Students eligible under the IDEA have many specific rights not available to students who are eligible solely under § 504.

    A parents rights handbook prepared by the Indiana Department of Education is available through the school district’s Special Education Department and sets out the rights assured by the IDEA. It is called “Live Learn Work Play.”

     

    The enabling regulations for § 504, found in 34 CFR Part 104, provide parents and/or students with the following rights:

    1. You have the right to be informed by the school district of your rights under § 504. See 34 CFR 104.32.
    2. Your child has the right to an appropriate education designed to meet his/her individual educational needs as adequately as the needs of nondisabled students are met. See 34 CFR 104.33.
    3.  Your child has the right to free educational services, except for those fees that are imposed on nondisabled students or their parents. See 34 CFR 104.33.
    4. You child has a right to placement to the least restrictive environment.  34 CFR 104.34.
    5. You child has a right to facilities, services, and activities that are comparable to those provided for nondisabled students. See 34 CFR 104.34.
    6. You child has a right to an evaluation prior to an initial  § 504 placement and any subsequent significant change in placement. See 34 CFR 104.35.
    7. Testing and other evaluation procedures must meet the requirements of  34 CFR 104.35 as to validation, administration, areas of evaluation, etc.  The district shall consider information from several courses, not just one, including aptitude and achievement tests, teacher recommendations, physical condition, social and cultural background, adaptive behavior, physical or medical reports, students grades, progress reports, parent observations, anecdotal reports, and TEAMS/TAAS scores. See 34 CFR 104.35.
    8. Placement decisions must be made by a group of persons (i.e., the § 504 Committee), including persons knowledgeable about your child, the meaning of the evaluation data, the placement options, and the legal requirements for least restrictive environment and comparable facilities. See 34 CFR 104.35
    9. If eligible under § 504, your child has a right to periodic reevaluations, generally every three years. See 34 CFR 104.35.
    10. You have the right to notice prior to any action by the district in regard to the identification, evaluation, or placement of your child. See 34 CFR 104.36.
    11. You have the right to examine relevant records. See 34 CFR 104.36
    12. You have the right to an impartial hearing with respect to the district’s actions regarding your child’s identification, evaluation, or educational placement, with opportunity for parental participation in the hearing and representation by an attorney. See 34 CFR 104.36.
    13. If you wish to challenge the actions of the district’s   § 504 Committee in regard to your child’s identification, evaluation, or educational placement, you should immediately file a written Notice of Appeal with the district’s  § 504 Coordinator. A hearing will be scheduled before a Hearing Officer and you will be notified in writing of the date, time, and place for the hearing.
    14. If you disagree with the decision of the Hearing Officer, you have a right to a review of that decision by a court. 34 CFR 104.36
    15. On § 504 matters other than your child’s identification, evaluation, and placement, you have a right to file a complaint with the district’s  § 504 Coordinator (or a designee), who will investigate the allegations to the extent warranted by the nature of the complaint in an effort to reach a prompt and equitable resolution.

    A Section 504 hearing creates the record for federal court. Section 504 cases can go to a jury and bring damages. Section 504 hearings are administrative hearings and thus the strict rules of evidence don’t apply unless there is some specific statutory requirement that they do. In Section 504 cases, you can demand and use classwide data.

    504 Hearing and Appeals Process

    A. Request mediation, an impartial hearing, and an appeal of any decisions or actions taken by the school corporation regarding your child’s identification, evaluation, educational program or placement. You and your student may take part in these proceedings and have an attorney represent you. Requests for due process must be made to the superintendent of the Section 504 coordinator. The following details the procedures:

    1. If the parent/guardian disagrees with the identification, evaluation, educational placement, or with the provisions of a free appropriate public education for his/her child. The parent/guardian may make a written request for a hearing to the superintendent, indicating the specific reason(s) for the request.

    2. The School Corporation may initiate a hearing regarding the identification, evaluation, or educational placement of the student or the provision of a free appropriate public education to the student. The School Corporation shall notify the parent/guardian of the specific reason(s) for the request.

    3. Such hearings shall be conducted within twenty (20) instructional days after the request is received, unless the hearing officer grants an extension and at a time and place reasonably convenient to the parent/guardian. Upon receipt of a request for a hearing officer. The parent/guardian involved in a hearing shall be given the right to have the child who is the subject of the hearing present, open the hearing to the public, and be represented by counsel or any other representative.

    4. During the pendency of an administrative or judicial proceeding, unless the School Corporation and the parent/guardian of the child agree otherwise, the child involved in the proceeding shall remain in his/her present educational placement. If there is a dispute regarding this present placement, the hearing officer shall order an interim placement. The present educational placement of the child shall include normal grade advancement if the proceedings extend beyond the end of the school year. If the issues involve an application to initial admission to school, the child, with the consent of the parent/guardian, shall be placed in the school until the completion of the proceedings. In the absence of an agreement, the hearing officer shall determine the child’s placement during the proceedings.

    5. The child and the parent/guardian shall have the right to legal counsel and/or other representation of their own choosing. The School Corporation shall inform the parent/guardian of any free or low-cost legal services available in the area if the parent guardian requests the information or if the School Corporation initiates a hearing. The School Corporation shall bear the burden of proof as to the appropriateness of any placement, transfer, or the denial of same.

    6. A tape recording or other verbatim record of the hearing shall be made and transcribed and upon request shall be made available to the parent/guardian or representative, at the school corporation’s expense. At a reasonable time prior to the hearing during school hours, the parent/guardian or representative shall be given access to all records of the school corporation, and any of its agents or employees, pertaining to the child, including all tests and reports upon which the proposed action may be based. The parent/guardian or representative shall have the right to compel the attendance, to confront or to cross-examine any witness who may have evidence upon the proposed action may be based. The parent/guardian or representative and School Corporation shall have the right to present evidence and testimony, including expert medical, psychological, or educational testimony. Introduction of any evidence at the hearing that has not been disclosed to both parties at least five (5) days before the hearing is prohibited, subject to the discretion of the hearing officer.

    Within fifteen (15) instructional days after the hearing, the hearing officer shall render a decision in writing. Such decision shall include findings of fact, conclusions of law, and orders, if necessary, which will be binding on all parties. The dated decision shall be sent by mail to parent/guardian and the superintendent of the School Corporation, and shall contain notice of the right to appeal the decision. The decision shall be implemented no later than twenty- (20) instructional days following the date of the decision, unless review is sought by either party. Should the parent guardian be represented by legal counsel and ultimately prevail on the issues at administrative and/or judicial proceedings, the parent/guardian may be entitled to payment of all or part of the attorney fees and other costs incurred by the parent/guardian.

    A. Request a review (appeal) of the hearing should you not prevail. The following details the procedure:

    1. A petition to review (appeal) the decision of the hearing officer may be made by any party to the hearing. The request must be in writing, filed with the superintendent and the opposing party be specific as to the objections, and be filed within twenty (20) instructional days of the date the hearing officer’s decision is received. The School Corporation is responsible for the appointment of an independent appeals officer to conduct an impartial review of the record as a whole and may, at his/her election, conduct the review with or without oral argument. Such review shall be conducted within twenty (20) instructional days of the receipt of the petition to review, unless either party requests an extension of time.

    2. The appeals officer shall insure that a transcript of the review is prepared and made available to any party upon request.

    3. Any party disagreeing with the decision of the appeals officer may appeal to a civil court with jurisdiction.

    4. A parent/guardian represented by legal counsel during the proceedings of a due process hearing, appeal, or civil action may be entitled to reimbursement of legal fees if the parent ultimately prevails.

    A. Ask for payment of reasonable attorney fees if you are successful on your claims.

    Federal dollars compel private schools to comply with Section 504

    If you want to know whether a private school is obligated to comply with Section 504 regulations, look at its funding stream. If there is a single dollar of federal funding provided to the private school, even indirectly, it must follow 504 regulations, even if it a “religious school.” See, e.g. Cain v. Archdiocese of Kansas City, 508 F. Supp. 1021 (D. Kan. 1981).
    In addition, a private school that does not receive direct federal funding still may be subject to Section 504 if it is an indirect recipient of federal funding.
    All private schools, even religious ones, are covered by the Americans with Disabilities Act regardless of whether they receive federal funds. Title III (public accommodations) applies to private schools, regardless of their size; however, religious schools are exempt from Title III.


    If I am successful with my Section 504 case, am I entitled to seek attorney fees?

    Yes, under 29 USC 791a(b): which states "(b) In any action or proceeding to enforce or charge a violation of a provision of this subchapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs."


    Section 504 of the Rehabilitation Act of 1973

    The Civil Rights Act of 1964, which Dr. Martin Luther King was the leader in bringing into law, provides the remedies in court, under its Title VI, that we rely on today under Section 504 and the Americans with Disabilities Act.

    The purpose of Section 504 is to remove discrimination by providing the student with a disability the modifications and accommodations and related aids and services to give them access to what every other student enjoys.

    Section 504 is broader than the IDEA. If your child was denied coverage under the IDEA, he or she might still be covered under Section 504 because it is much broader.

    How can Section 504 be broader?

    Parents have many more rights under Section 504 than under the IDEA because Section 504 provides for very specific protections for parents as they advocate for their disabled children. Under Section 504 and the ADA a parent has more power when they are engaged in the "protected activity of advocacy" for their child. The protections are against "retaliation," "intimidation," "interference," "threats" or "coercion."

    Section 504 prohibits any recipient of federal financial assistance (which includes your school district, your State Education Agency, your department of Vocational Rehabilitation, many of your colleges, and so forth) from denying an individual the benefits of their program or activities solely on the basis of disability.

    This means that if your school district fails to modify its program, and your child, because of their disability, is effectively denied access to the full benefits of the school's program and activities that are available to the other students, then your school district is violating the requirements of Section 504.

    Deep pockets

    Like Title IX, Section 504 simply states that if your state or local educational agency receives federal funds -- then it has to follow Section 504 and stop discriminating. Every state, including Indiana, DOES take federal educational funds and therefore must comply with Section 504.

    Since gaining access to what other students have access to is the hallmark of Section 504, it is very strong on removal of architectural and other types of barriers, so the student can be in the regular classroom, or regular educational activity, that they would be in if not disabled.

    Section 504 contemplates the following:

    (a) Providing a structured learning environment;
    (b) Repeating and simplifying instructions about in-class assignments;
    (c) Repeating and simplifying instructions about homework assignments;
    (d) Supplementing verbal instructions with visual instructions;
    (e) Using behavioral management techniques;
    (f) Adjusting class schedules;
    (g) Modifying test delivery;
    (h) Using tape recorders;
    (i) Computer aided instruction;
    (j) Other audio-visual equipment;
    (k) Selecting modified textbooks;
    (l) Selecting modified workbooks;
    (m) Tailoring homework assignments;
    (n) Consultation with Special Education;
    (o) Reducing class size;
    (p) Use of one-on-one tutorials;
    (q) Use of classroom aides;
    (r) Use of classroom note takers;
    (s) Involvement of a services coordinator to oversee implementation
    of special programs and services;
    (t) Possible modification of nonacademic time such as lunchroom;
    (u) Possible modification of nonacademic time such as recess;
    (v) Possible modification of nonacademic time such as physical education.

    When a child is deemed eligible for Section 504 protections, the school district and state education agency "shall provide a free appropriate public education to each qualified disabled person who is in the recipient's jurisdiction, regardless of the nature or severity of the person's disability." 34 C.F.R. 104.33(a). Write your school and state education agency for their written guidelines on what a "free and appropriate public education" provides under Section 504.

    Under the IDEA, the evaluation is to describe one of the eleven IDEA listed disabilities. However, the Section 504 evaluation inquiry is aimed not at a list of disabilities but rather looks at a functional analysis of the impairment, how it causes a lack of access to full education, and what could be done to remove the barrier to what the typical students have access to.

    Your state education agency and local school district must have written guidelines for evaluation for mental or physical impairment under Section 504, 34 CFR 104.35.


    College/University Students and Section 504:

    Most colleges and universities have posted on their websites their own procedures that students just follow in order to identify themselves and access services.

    Generally, in order to determine eligibility, most college websites require:

    1. The student’s most recent IEP or 504 plan.

    2. The student’s most recent evaluation. It is important that this evaluation utilize testing instruments that the college or university accepts. Most do NOT accept screening tests, such as the K-BIT and the WRAT.

    3. Some colleges and universities require that the evaluation include:

    a. A DSM-IV diagnosis.

    b. A specific rationale for any necessary accommodations.

    c. Specific evaluator qualification.

    Parents should review ALL requirements of any post-secondary institutions the child is interested in attending LONG before the child leaves the public school setting.


    Distinctions between 504 and IDEA:

    1. A 504 plan often is the "consolation prize" when a child with a disability, which adversely affects educational performance, should have been found eligible for services under IDEA, but for economic, staffing and other unknown reasons was found ineligible and was given a 504 plan instead. A child with a disability is eligible for 504 protections.

    2. A child with a disability that does NOT adversely affect educational performance is eligible for 504 protections but is NOT eligible for an IEP.

    3. A child with a disability that does adversely affect educational performance is eligible for 504 protections and is eligible for an IEP.

    4. A special education child receiving educational benefit under IDEA with an IEP is also a child with a disability under 504.

    5. If a 504 child has a 504 plan with various educational accommodations, and then becomes eligible for a special education program under IDEA and an IEP, that child is STILL entitled to the same 504 protections and educational accommodations but there is no reason to continue with the 504 plan because the accommodations should be written into the IEP.

    6. 504 does not require plans to be written, though local school district policy might.

    7. The parents have very few rights under 504.

    8. The parent does not have to be invited to the meeting where a 504 plan is developed. The school must only notify the parent that a 504 plan was developed.

    9. There are fewer procedural requirements that serve to protect the parent and child under 504.

    10. What looks like discrimination may really not be discrimination.

    11. 504 does follow the child after he/she leaves the public school system. IDEA does not.


    HIPAA/FERPA

    In 2002, the United States Supreme Court ruled that individuals cannot enforce the FERPA through a civil rights lawsuit, called a 1983 action (42 USC 1983). When the Supreme Court issues a ruling like this, it is the law of the land. Anyone who filed a lawsuit under 1983 to enforce the FERPA would lose it and be out thousands of dollars in attorneys fees, perhaps.

    However, if there is a FERPA violation, individuals can file a complaint with the Department of Education. FERPA also gives parents a right to seek the correction of records and other rights. Here is where you can find information about FERPA from the Depatment of Education to help you understand the FERPA: http://www.ed.gov/policy/gen/guid/fpco/ferpa/index.html

    As for HIPAA, the best source of information is the HHS HIPAA page, http://www.hhs.gov/ocr/hipaa/ There are several useful, easy to read fact sheets there, as well as more in-depth information.


    Family Educational Rights And Privacy Act (FERPA)

    In the Family Educational Rights and Privacy Act in 1974, Congress recognized that parents could not get access to their child's records, the evaluations the school was using, the notes teachers were making, what was being "said" about the student in those files, and so forth. An incredible mistake could be made about a student with a disability and the parent would have no way of finding out about it, or correcting it.

    FERPA establishes the rights of parents, and students over a certain age, to have access to "all personally identifiable information collected, maintained or used" by a school district in regard to that student. The school must provide written notice to parents (and students over a certain age) of all of their rights under FERPA.

    Some of the requirements of the FERPA Act are included in the IDEA but the full statute at 20 U.S.C. 1232g, and the regulations at 34 C.F.R. 99, are much more detailed and apply to all students, as well as students with disabilities.

    FERPA does not include funding, but like Section 504, any recipient of federal financial assistance (which includes Indiana school districts) must follow FERPA or risk losing the right to receive any other federal financial assistance.


    Broad Outline of FERPA Provisions

    Coverage

    Any educational agency that receives any type of federal funding or directs and controls an educational institution. See new 34 C.F.R. 99.1(a)(2).

    Purposes

    To allow parents access to educational records relating to their children.

    To prohibit disclosure of education records to third parties unless the school obtains prior written parental consent for such disclosure, or an exception to the consent requirement applies.

    Notice

    School districts must notify parents of students annually regarding their rights under FERPA.

    Amendments

    Schools must set up procedures to allow parents to request amendments to educational records, as well as hearing process, in case the parents disagree with a school’s decision to not amend a certain record.

    Enforcement

    Department of Education has set up the Family Policy Compliance Office (FPCO) and the Office of Administrative Law Judges to enforce compliance in the case of FPCO, provide technical assistance regarding compliance with FERPA.



    Americans with Disabilities Act (ADA)

    Title II of the Americans with Disabilities Act of 1990 prohibits discrimination based on disability in public entities. OCR is the agency designated by the U.S. Department of Justice to enforce the regulation under Title II with respect to public educational entities and public libraries. The Title II regulation is in the federal code of regulations at 28 CFR 35.

    Examples of the types of discrimination prohibited include access to educational programs and facilities, denial of a free appropriate public education for elementary and secondary students, and academic adjustments in higher education. Section 504 and Title II also prohibit employment discrimination; complainants may choose whether to pursue such complaints with OCR or with the Equal Employment Opportunity Commission.


    The ADA is a comprehensive anti-discrimination law protecting people with disabilities. A principal purpose behind the act is to reduce over-institutionalization of people with disabilities. Title II of the ADA makes the act applicable to all state and local governments, including all sub-divisions. Thus, the ADA proscribes discrimination by, for example, all police departments, probation departments, prosecutors, school boards, and courts. Substantive actions taken or decisions made by judges are likely governed by the ADA’s anti-discrimination mandates.

    • "[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132

    • ADA regulations prohibit the use of "criteria or methods of administration" that have the effect of excluding or otherwise discriminating. 28 C.F.R. § 35.130(b)(3).

    • The regulations require the administration of "services, programs, and activities in the most integrated setting appropriate to the needs of the qualified individuals with disabilities." Id at § 35.130(d).

    • Public entities are required to evaluate and modify services, policies, and practices that do not or may not meet the non-discrimination mandates of the ADA. Id at § 35.130(a).

    • As to the communications, the regulations require that a public entity accommodate persons with disabilities in order to ensure communications that are essentially equally effective with communications with non-disabled participants, applicants, and members of the public. Id at § 35.160(a) The accommodations might necessarily include providing auxiliary aids and services. Id at § 35.160(b)(1).

    • In Olmstead v. L.C., 119 S.Ct 2176 (1999), the Supreme Court addressed the question whether unwarranted institutionalization of people with mental disabilities violates Title II of the ADA. A majority of the justices answered with a "qualified 'yes'". Id at 2180-81.

    • The ADA does apply to prisons and to access by people with disabilities to programs, services, and benefits that allow for a person to shorten incarceration time. Pennsylvania Department of Corrections v. Yeskey, 118 S Ct. 1952 (1998).

    • In Tennessee v. Lane, 124 S.Ct. 1978 (2004), the Supreme Court held that, through Title II of the A.D.A., prohibiting discrimination against persons with disabilities in regard to the fundamental right of access to courts was a proper exercise of Congressional legislative authority.



    The ADA was passed by large majorities in both houses of Congress after decades of deliberation and investigation into the need for comprehensive legislation to address discrimination against persons with disabilities. In the years immediately preceding the ADA’s enactment, Congress held 13 hearings and created a special task force that gathered evidence from every State in the Union. The conclusions Congress drew from this evidence are set forth in the task force and Committee Reports, described in lengthy legislative hearings, and summarized in the preamble to the statute, see 42 U.S.C. § 12101; Task Force on the Rights and Empowerment of Americans with Disabilities, From ADA to Empowerment 16 (Oct. 12, 1990); S. Rep. No. 101-116 (1989); H.R. Rep. No. 101-485 (1990); H.R. Conf. Rep. No. 101-558 (1990); H.R. Conf. Rep No. 101-596 (1990); cf Board of Trustees of Univ. of Ala. V. Garrett, 531 U.S.356, 389-390 (2001) (App. A to opinion of Breyer, J., dissenting) (listing congressional hearings) Central among these conclusions was Congress’ finding that


    “individuals with disabilities are a discrete and insular minority who have been faced with the restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness In our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society.”

    Invoking “the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce,” the ADA is designed “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities” §§ 12101(b)(1), (b)(4). It forbids discrimination against persons with disabilities in three major areas of public life; employment, which is covered Title I of the statute; public services, programs, and activities, which are the subject of Title II; and public accommodations, which are covered by Title III.

    Title II, §§ 12131-12134, prohibits any public entity from discriminating against “qualified” persons with disabilities in the provision or operation of public services, programs, or activities. The Act defines the term “public entity” to include state and local governments, as well as their agencies and instrumentalities. §12131(1). Persons with disabilities are “qualified” if they, “with or without reasonable modifications to rules, policies or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, mee[t] the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” §12131(2). Title II ‘s enforcement provision incorporates by reference §505 of the rehabilitation Act of 1973, 92 Stat. 2982, as added, 29 U.S.C. §794a, which authorizes private citizens to bring suits for money damages. 42 U.S.C. §12133.






    It is codified at 42 U.S.C. § 12101 with regulations appearing at 28 C.F.R. § 35.

    Although this act has gained most of its notoriety in employment law, it can also be a useful tool in education as well.

    It is a mechanism to ensure "Nondiscrimination on the Basis of Disability in State and Local Government Services"

    SUMMARY: Section 35 implements subtitle A of title II of the Americans with Disabilities Act, Pub. L. 101-336, which prohibits discrimination on the basis of disability by public entities, such as public schools. Subtitle A protects qualified individuals with disabilities from discrimination on the basis of disability in the services, programs, or activities of all State and local governments. It extends the prohibition of discrimination in federally assisted programs established by section 504 of the Rehabilitation Act of 1973 to all activities of State and local governments, including those that do not receive Federal financial assistance, and incorporates specific prohibitions of discrimination on the basis of disability from titles I, III, and V of the Americans with Disabilities Act. This rule, therefore, adopts the general prohibitions of discrimination established under section 504, as well as the requirements for making programs accessible to individuals with disabilities and for providing equally effective communications. It also sets forth standards for what constitutes discrimination on the basis of mental or physical disability, provides a definition of disability and qualified individual with a disability, and establishes a complaint mechanism for resolving allegations of discrimination.


    Background.

    The landmark Americans with Disabilities Act ("ADA" or "the Act"), enacted on July 26, 1990, provides comprehensive civil rights protections to individuals with disabilities in the areas of employment, public accommodations, State and local government services, and telecommunications.

    This regulation implements subtitle A of title II of the ADA, which applies to State and local governments. Most programs and activities of State and local governments are recipients of Federal financial assistance from one or more Federal funding agencies and, therefore, are already covered by section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794) ("section 504"), which prohibits discrimination on the basis of handicap in federally assisted programs and activities. Because title II of the ADA essentially extends the nondiscrimination mandate of section 504 to those State and local governments that do not receive Federal financial assistance, this rule hews closely to the provisions of existing section 504 regulations. This approach is also based on section 204 of the ADA, which provides that the regulations issued by the Attorney General to implement title II shall be consistent with the ADA and with the Department of Health, Education, and Welfare's coordination regulation, now codified at 28 CFR Part 41, and, with respect to "program accessibility, existing facilities," and "communications," with the Department of Justice's regulation for its federally conducted programs and activities, codified at 28 CFR Part 39.

    The first regulation implementing section 504 was issued in 1977 by the Department of Health, Education, and Welfare (HEW) for the programs and activities to which it provided Federal financial assistance. The following year, pursuant to Executive Order 11914, HEW issued its coordination regulation for federally assisted programs, which served as the model for regulations issued by the other Federal agencies that administer grant programs. HEW's coordination authority, and the coordination regulation issued under that authority, were transferred to the Department of Justice by Executive Order 12250 in 1980.

    In 1978, Congress extended application of section 504 to programs and activities conducted by Federal Executive agencies and the United States Postal Service. Pursuant to Executive Order 12250, the Department of Justice developed a prototype regulation to implement the 1978 amendment for federally conducted programs and activities. More than 80 Federal agencies have now issued final regulations based on that prototype, prohibiting discrimination based on handicap in the programs and activities they conduct.

    Despite the large number of regulations implementing section 504 for federally assisted and federally conducted programs and activities, there is very little variation in their substantive requirements, or even in their language. Major portions of this regulation, therefore, are taken directly from the existing regulations.

    In addition, section 204(b) of the ADA requires that the Department's regulation implementing subtitle A of title II be consistent with the ADA. Thus, the Department's final regulation includes provisions and concepts from titles I and III of the ADA.


    If you want to know even MORE:

    Subpart B -- General Requirements

    {35.130 General prohibitions against discrimination.

    (a) No qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity.

    (b)(1) A public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability --

    (i) Deny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service;

    (ii) Afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;

    (iii) Provide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;

    (iv) Provide different or separate aids, benefits, or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others unless such action is necessary to provide qualified individuals with disabilities with aids, benefits, or services that are as effective as those provided to others;

    (v) Aid or perpetuate discrimination against a qualified individual with a disability by providing significant assistance to an agency, organization, or person that discriminates on the basis of disability in providing any aid, benefit, or service to beneficiaries of the public entity's program;

    (vi) Deny a qualified individual with a disability the opportunity to participate as a member of planning or advisory boards;

    (vii) Otherwise limit a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.

    (2) A public entity may not deny a qualified individual with a disability the opportunity to participate in services, programs, or activities that are not separate or different, despite the existence of permissibly separate or different programs or activities.

    (3) A public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of administration:

    (i) That have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability;

    (ii) That have the purpose or effect of defeating or

    substantially impairing accomplishment of the objectives of the public entity's program with respect to individuals with disabilities; or

    (iii) That perpetuate the discrimination of another public entity if both public entities are subject to common administrative control or are agencies of the same State.

    (4) A public entity may not, in determining the site or location of a facility, make selections --

    (i) That have the effect of excluding individuals with disabilities from, denying them the benefits of, or otherwise subjecting them to discrimination; or

    (ii) That have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the service, program, or activity with respect to individuals with disabilities.

    (5) A public entity, in the selection of procurement contractors, may not use criteria that subject qualified individuals with disabilities to discrimination on the basis of disability.

    (6) A public entity may not administer a licensing or certification program in a manner that subjects qualified individuals with disabilities to discrimination on the basis of disability, nor may a public entity establish requirements for the programs or activities of licensees or certified entities that subject qualified individuals with disabilities to discrimination on the basis of disability. The programs or activities of entities that are licensed or certified by a public entity are not, themselves, covered by this part.

    (7) A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.

    (8) A public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered.

    (c) Nothing in this part prohibits a public entity from providing benefits, services, or advantages to individuals with disabilities, or to a particular class of individuals with disabilities beyond those required by this part.

    (d) A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.

    (e)(1) Nothing in this part shall be construed to require an individual with a disability to accept an accommodation, aid, service, opportunity, or benefit provided under the ADA or this part which such individual chooses not to accept.

    (2) Nothing in the Act or this part authorizes the representative or guardian of an individual with a disability to decline food, water, medical treatment, or medical services for that individual.

    (f) A public entity may not place a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids or program accessibility, that are required to provide that individual or group with the nondiscriminatory treatment required by the Act or this part.

    (g) A public entity shall not exclude or otherwise deny equal services, programs, or activities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association.


    Technology-Related Assistance for Individuals with Disabilities Act of 1998

    Codified at 29 U.S.C. Sec. 2109 (this statute, which broadly defines the term "assistive technology," can be relied upon to seek computer "touch screens, specialized recording and playback devices (e.g. "Language Master") and essentially all other devices, items and systems which are used to "...increase, maintain or improve functional capabilities of individuals with disabilities").


    No Child Left Behind Act

    NCLB took effect on January 8, 2002. The law covers all states, school districts, and schools that accept Title 1 federal grants. Title 1 grants provide funding for remedial education programs for poor and disadvantaged children in public schools, and in some private programs. NCLB applies differently to Title 1 schools than to schools that do not receive Title 1 grants. However, one way or another, this law covers all public schools in all states.

    NCLB emphasizes accountability and teaching methods that work.

    A large focus of this law is on reading achievement. Only 32% of fourth graders are proficient readers who read at a fourth grade level.[1]

    Schools that receive Title 1 funds may apply for Reading First grants to pay for classroom-reading instruction for grades K-3. These Reading First grants are only available for reading programs that are proven successful based on independent research.

    Reading First grants will fund classroom-reading instruction for 90-minute blocks, 5 days a week. Schools may use part of this money to train K-3 teachers in these research-based methods. They may also use a portion of this money to train K-12 special education teachers.


    Qualifications of Teachers and Paraprofessionals

    This law raises the requirements for teachers. Because all states have accepted Title 1 funds, this quality standard applies to all public school teachers in all states.


    Highly-Qualified Teachers

    Any new teacher, or any teacher working in a Title 1 program, must meet the criteria for being "highly qualified." That means they hold at least a bachelors degree and have passed a state test of subject knowledge.

    Elementary school teachers must demonstrate knowledge of teaching math and reading. Teachers in higher grades must demonstrate knowledge of the subject they teach, or have majored in that subject. Other teachers have until 2005-2006 to obtain at least a bachelor's degree, licensure and or certification.[2]

    Teachers with license and certification waivers, even if for an emergency basis, will not meet this standard.


    New Standards for Paraprofessionals

    New paraprofessionals who assist in Title 1 programs must have completed two years of college or pass a test. The test will assess their ability to support teachers in reading, writing and math instruction. Paraprofessionals already employed have until 2006 to meet these requirements.[3]


    Parents' Right to Know Teacher Qualifications

    If your child attends a Title 1 school, you are entitled to information about your child's teacher. You are entitled to know whether the teacher is certified and qualified to teach the particular subject and grade. You are entitled to information about the teacher's college degree and major.

    If your child receives any services from a paraprofessional, the school is required to provide you with information about the paraprofessional's qualifications.[4]


    Proficiency Testing of Children

    By the 2013-2014 school year, NCLB requires that all children will be at the proficient level on state testing. To help states and districts accomplish this, NCLB gives states more flexibility in combining federal grants and expenditures.

    States and districts may use federal money for research-based programs that are proven effective.


    NCLB contains various deadlines for compliance.

    School & School District Report Cards

    Beginning in the fall of 2002, your district must report the scores for statewide testing to parents. This is the district or school's report card. Your district will report scores for each school as a whole.

    The scores will also be broken out into four subgroups: children with disabilities, limited English proficiency, racial minorities and children from low-income families. This information will tell you if your school has been successful in teaching all groups of children. You will be able to compare the report card from your child's school to the report cards from other schools in your district and state.


    Annual Testing

    Beginning in 2005, your school must test all children in grades 3-8 every year in math and reading. By Fall, 2007, science assessments are required.

    These test scores will determine if your school is making Adequate Yearly Progress (AYP) towards the goal of proficiency for all children by the 2013-2014 deadline. Proficiency means the child is performing at average grade level.[5] All subgroups of children, as well as the school as a whole, must meet the AYP goal or the school will fail.


    New Options for Parents

    The law provides parents with different options depending on whether or not your child attends a school that receives Title 1 grants.

    If your child attends a school that does not receive Title 1 funds, you will simply know whether your child's school is improving at the required rate. You will know which subgroups your school teaches successfully.

    If your child attends a school that receives Title 1 grants, you will have more choices.


    Transfers from Failing Schools

    If your Title 1 School fails to meet its AYP goal for two consecutive years, all the children in the school may choose to attend a non-failing school in your school district. If all schools in your district fail, you may send your child to a school in another school district.[6]

    All eligible children were not able to transfer out of failing schools at the beginning of the 2002-2003 school year. Some districts did not make cooperative agreements with other districts which prevented parents from exercising this option under the NCLB.

    The school district may also limit the amount of money it spends on transportation to other schools. If there is not enough money under a designated formula to pay for transportation, the district may give preference to the lowest achieving children from the lowest income families.

    If your child transfers to a better school, your child may stay there until he or she completes the highest grade in that school. Your sending school will provide transportation to the school you have chosen until the sending school raises its AYP rate to an acceptable level.[7]


    Supplemental Services: Free Tutoring, After-school Programs, Summer School

    If your Title 1 School fails to reach its AYP goal for three years, your school will provide supplemental services to the children remaining there. These supplemental services include tutoring, after-school programs, and summer school.

    You may choose a tutor, or other service provider, from a state approved list. The state will ensure that all providers on this list have a history of success. Children will receive these services at no cost. Again, under a formula, the district may give preference to the lowest achieving children in the lowest income families who request supplemental services.

    There is nothing in NCLB that prevents the school from providing transfers and transportation to all children in the failing school who request it. There is nothing in the law that prevents the district from providing tutoring to all children in the failing school who request it.


    Restructuring Failing Schools

    If the school fails to make its AYP goal for four years, the school may replace school staff responsible for the failure. The school may hire an outside expert to advise the school on how to make progress towards its AYP goal.

    The school may implement a new curriculum. The new curriculum must address the weaknesses in the old one. The school will train teachers in implementing this new curriculum. The school may also reorganize its management structure.

    If your Title 1 School fails for five consecutive years, the school district may replace the principal and staff. The district may contract with a private firm to run the school. The school may reopen as a charter school.

    If all these options are unsuccessful, the state will take over management of the school.


    Clarifications

    The Secretary of Education has issued several policy letters to clarify the No Child Left Behind statute. In August 2002, the U.S. Department of Education issued proposed regulations.

    The U.S. Department of Education wants to ensure that parents are part of school reform.

    For more information and fact sheets, visit the No Child Left Behind website

    To learn about the status of your school or learn more about No Child Left Behind Act in your state, visit the No Child Left Behind site or call 1-800-814-6252 for the name of your state NCLB contact person.


    No Child Left Behind Resources

    State Contacts for the No Child Left Behind Act

    No Child Left Behind website

    No Child Left Behind Statute and Legal Resources


    Important Policy Letters from the Secretary of Education

    Letter About Adequate Yearly Progress & School Improvement Options

    Using the No Child Left Behind Act to Improve Schools in Your State - A Toolkit for Business Leaders
    - Information Resources for Business Leadership to Increase Student Achievement under the "No Child Left Behind Act of 2001, published by the Business Roundtable

    No State Left Behind: The Challenges and Opportunities of ESEA 2001 by the Education Commission of the States.
    Click on No State Left Behind to download the PDF publication

    Major Changes to ESEA in the No Child Left Behind Act by Learning First Alliance


    Endnotes

    [1] U. S. Department of Education,
    [2] Section 9101(23)
    [3] Section 1119(c-d)
    [4] Section 1111(h)(6)
    [5] Section 1111(b)(1)(D)(ii)(ll)
    [6] Section 1116(b)(7)(C)(i)
    [7] Section 1116(b)(13)

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  • FERPA

    FERPA is a federal law that applies to educational agencies and institutions that receive funding under a program administered by the U. S. Department of Education. The statute is found at 20 U.S.C. § 1232g and the Department's regulations are found at 34 CFR Part 99.
    Under FERPA, schools must generally afford students who are 18 years or over, or attending a postsecondary institution:

    • access to their education records
    • an opportunity to seek to have the records amended
    • some control over the disclosure of information from the records.

    Access to Education Records
    Schools are required by FERPA to:

    • provide a student with an opportunity to inspect and review his or her education records within 45 days of the receipt of a request
    • provide a student with copies of education records or otherwise make the records available to the student if the student, for instance, lives outside of commuting distance of the school
    • redact the names and other personally identifiable information about other students that may be included in the student's education records.

    Schools are not required by FERPA to:

    • Create or maintain education records;
    • Provide students with calendars, notices, or other information which does not generally contain information directly related to the student;
    • Respond to questions about the student.

    Amendment of Education Records

    Under FERPA, a school must:

    • Consider a request from a student to amend inaccurate or misleading information in the student's education records;
    •  
    • Offer the student a hearing on the matter if it decides not to amend the records in accordance with the request;
    • Offer the student a right to place a statement to be kept and disclosed with the record if as a result of the hearing the school still decides not to amend the record.

    A school is not required to consider requests for amendment under FERPA that:

    • Seek to change a grade or disciplinary decision;
    • Seek to change the opinions or reflections of a school official or other person reflected in an education record.

    Disclosure of Education Records
    A school must:

    • Have a student's consent prior to the disclosure of education records;
    • Ensure that the consent is signed and dated and states the purpose of the disclosure.

    A school MAY disclose education records without consent when:

    • The disclosure is to school officials who have been determined to have legitimate educational interests as set forth in the institution's annual notification of rights to students;
    • The student is seeking or intending to enroll in another school;
    • The disclosure is to state or local educational authorities auditing or enforcing Federal or State supported education programs or enforcing Federal laws which relate to those programs;
    • The disclosure is to the parents of a student who is a dependent for income tax purposes;
    • The disclosure is in connection with determining eligibility, amounts, and terms for financial aid or enforcing the terms and conditions of financial aid;
    • The disclosure is pursuant to a lawfully issued court order or subpoena; or
    • The information disclosed has been appropriately designated as directory information by the school.

    Annual Notification

    A school must annually notify students in attendance that they may:

    • Inspect and review their education records;
    • Seek amendment of inaccurate or misleading information in their education records;
    • Consent to most disclosures of personally identifiable information from education records.

    The annual notice must also include:

    • Information for a student to file a complaint of an alleged violation with the FPCO;
    • A description of who is considered to be a school official and what is considered to be a legitimate educational interest so that information may be shared with that individual; and
    • Information about who to contact to seek access or amendment of education records.

    Means of notification:

    • Can include student newspaper; calendar; student programs guide; rules handbook, or other means reasonable likely to inform students;
    • Notification does not have to be made individually to students.

    Complaints of Alleged Violations:

    Complaints of alleged violations may be addressed to:
    Family Policy Compliance Office
    US Department of Education
    400 Maryland Avenue, SW
    Washington, DC 20202-5920

    Complaints must:

    • Be timely submitted, not later than 180 days from the date you learned of the circumstances of the alleged violation
    • Contain specific allegations of fact giving reasonable cause to believe that a violation has occurred, including:
      • Relevant dates, such as the date of a request or a disclosure and the date the student learned of the alleged violation;
      • Names and titles of those school officials and other third parties involved;
      • A specific description of the education record around which the alleged violation occurred;
      • A description of any contact with school officials regarding the matter, including dates and estimated times of telephone calls and/or copies of any correspondence exchanged between the student and the school regarding the matter;
      • The name and address of the school, school district, and superintendent of the district;

    Any additional evidence that would be helpful in the consideration of the complaint.

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  • History of Federal Statutes

    Congress adds Title VI to the Elementary and Secondary Education Act of 1965, creating a Bureau of Education for the Handicapped (now called OSEP) and creating and funding what is now called the Comprehensive System of Personnel Development, by which school districts can acquire and disseminate promising educational practices to teach students with disabilities. Reed was legislative assistant to Senator Yarborough who chaired the education committee at that time

    1973

    Section 504 of the Rehabilitation Act is enacted into statute, and affects any recipient of federal financial assistance such as your school district and your state education agency.

    1974

    The EHA (Education of the Handicapped Act -- grandparent of IDEA) is enacted to greatly expand Title VI.

    1974

    FERPA (The Family Educational Rights and Privacy Act) is enacted, allowing parents to have access to all personally identifiable information collected, maintained or used by your school district in regard to your child.

    1975

    The EHA is amended by the Education for All Handicapped Children Act (EAHCA) which is the parent of the IDEA).

    Before 1975, children with disabilities were denied an education solely on the basis of their disabilities. Two court cases, PARC v. Pennsylvania (1972) and Mills v. D.C. Board of Education (1972), creatively used the precedent of Brown v. Topeka Board of Education (1954) to apply the equal protection argument to students with disabilities. PARC and Mills legitimatized Congressional action in 1975.

    1977

    Sec. 504 regulations are issued, to begin with 1977-78 school year, and includes a requirement for a self-evaluation of all policies and procedures of your school district and your state education agency so that discriminatory policies would be stopped. (Congress notes in 1990 hearings that school districts illegally ignored this requirement).

    1977

    Appendix A to Section 504, which explains the Sec. 504 regulations, is issued.

    1977

    The EAHCA regulations are issued to begin with the 1977-78 school year.

    1981

    The EAHCA Appendix C is issued with 60 Q&A's about the IEP process (this is considered part of the federal law by federal courts but has been largely ignored by most school districts).

    1986

    The EAHCA is amended with the addition of the Handicapped Children's Protection Act (in which Congress overturns a Supreme Court decision that said the EAHCA was "an exclusive remedy" and that parents could not also use Section 504 to protect their child). The amendment makes clear that students and parents have rights under the IDEA and Section 504 at the same time.

    1990

    The Americans with Disabilities Act is enacted. Congress finds that the failures of school districts over the past 15 years of special education laws requires them to add the protection of the ADA to parents and students with disabilities. The ADA also adopts the Section 504 regulations as part of the ADA statute, so now the 504 regulations have the full weight of a federal statute.

    1990

    The EAHCA is amended and is now called the IDEA (Individuals with Disabilities Education Act), adding transition as a requirement.

    1991

    The "Joint Policy Memorandum" from the U.S. Department of Education is issued, at the specific request of Congress, to explain what must be made available to your child under Section 504 in a regular classroom (the memo is on our website).

    1997

    The IDEA is amended with hundreds of changes that affect programming starting with the 1998-99 school year.

    1999

    The new IDEA Regulations are issued with many changes.

    1999

    The IDEA old Appendix C has been mostly included in the amendments to the IDEA statute so a new Appendix (now called Appendix A) is issued with 40 new Q&A's about the IEP process. The IDEA App. A is not to be confused with the Sec. 504 App A which was issued in 1977.

    2001

    Public Law print of PL 107-110, the No Child Left Behind Act of 2001No Child Left Behind Resources

    2004

    President Bush signed into law on Dec. 3, 2004, changes to Part B of the Individuals with Disabilities Education Act (IDEIA 2004). The changes became effective July 1, 2005.

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  • Limitations

    Many causes of action (laws saying who can sue for what) have statutes of limitations, i.e., you must sue within a specified time after the event occurred (or should have occurred, but did not). Often these are tolled (or put off/postponed) because the person who really owns the cause of action (i.e., the victim) is either under 18 or is suffering from some recognized infirmity such that s/he was unable to commence suit within the statutory timeframe.

    In many areas of law, such as child support and medical malpractice, children are allowed to sue after reaching the age of majority.

    However, despite this right in other areas of law, Texas has imposed a one-year statute of limitations in IDEA matters. This means that although a student is operating under a “double” disability (minority and the disabling condition), Texas believes that kids should only be able to seek redress for violations of their legal rights in special education for a one-year period.

    Although there are “exceptions” to the one-year statute of limitations exist through the federal law IDEA, in the vast majority of cases Texas hearing officers currently are presenting a united front in finding that the child’s/family’s case just about never meets the requirements of any of the exceptions.

    Why are Texas kids entitled to less than what other children in most of the rest of the nation receive? Are our children worth less here?

    This clearly needs to be changed legislatively. You are urged to contact your legislators to ask them to sponsor a bill to at least apply a two-year statute of limitations, which is the limitations period that most other states have.

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  • New Regulations

    US Department of Education Issues Final IDEA 2004 Regulations

    In November 2004, the Congress enacted major changes in the IDEA, effective July 1, 2005. Whenever federal law is changed, the federal department responsible for implementing the law must enact regulations that help to explain and interpret the law. The US Department of Education has been working on the proposed regulations for two years. On August 14, the Department released the final regulations. For the most part, the regulations track the actual language of the law. However, there are several important changes, both in comparison to the law and to the draft proposed regulations that were issued earlier. For a copy of the regulations, go to the USDOE Office of Special Education website: http://www.ed.gov/policy/speced/guid/idea/idea2004.html#regulations.

    Note that the regulations and the supporting documents are more than 1700 pages. The regulations alone, without narrative and interpretation are 307 pages. They can be obtained from the National Information Center for Handicapped Children and Youth (NICHCY) at:

    http://www.nichcy.org/reauth/IDEA2004regulations.pdf

    The Department of Education's Summary of the changes can be found at:

    http://www.nichcy.org/idealist.htm

    A book comparing the old and new IDEA regulations has been published by the National Association of State Directors of Special Education and can be purchased for $15 from their website at:

    http://www.nasdse.org/documents/SbSorderform.pdf

    If you are interested in a summary of the regulations, USDOE has a fact sheet which can be downloaded:

    http://www.ed.gov/admins/lead/speced/ideafactsheet.html

    Some key highlights of the new regulations are:

    • Adds Tourette Syndrome to the list of covered conditions within the Other Health Impaired Category (Sec. 300.8(c)(9)(i))
    • Changes the new Specific Learning Disability (SLD) criteria to provide that the child be determined eligible if the child is not achieving adequately in relation to the child's age or in relation to state standards, if the child has received "appropriate" (replacing the reference to "research based") instruction (Sec. 309(a and b)). This appears to be a compromise blending some variation of the old discrepancy formula with provision of regular ed instruction to rule out inadequate instruction as the cause of the child's delay
    • Clarifies that there are no limits to the related services for which a child with a cochlear implant is eligible (Sec. 300.34(b)(2))
    • Reinforces that the provision of supplementary aides, supports and services to children receiving special education should include services necessary for the child to participate in extracurricular and non-academic activities (Sec. 300.42)
    • Provides that a child is entitled to a free appropriate public education (FAPE) even if the child is receiving passing grades, progressing from year to year, or has not been retained from progressing to the next grade level (Sec. 300.101(c))
    • Appears to mandate lack of response to regular education research-based intervention as a prerequisite for determination that a child has a learning disability (Sec. 300.309)
    • States that parent consent must be obtained before school staff may observe a child for purposes of evaluation (Sec. 300.310(b))
    • Requires all staff, including teachers, related services personnel, and paraprofessionals, to be advised of their responsibilities in relation to each child's IEP (Sec. 300.323(d))
    • Requires that the IEP team be informed of any informal changes agreed to between a member of the staff and the parent (Sec. 300.324(a)(4))
    • Provides for appointment of the parent as representative for a child who has turned 18 and is unable to make decisions for themselves but has not been determined incompetent (Sec. 300.520 (b))
    • Provides that if the IEP team determines that a child's behavior is directly caused by the school's failure to appropriately implement the IEP, the failure must be rectified by the school district (Sec. 300.530(e)(3))
    • Provides that in determining whether a child's placement is being changed due to a series of short-term suspensions, each of which is less than 10 days, but which total more than 10 days, the school staff will decide if the different incidents reflect a "pattern of behavior," which would trigger stay put safeguards, subject to the right of the parent to challenge the determination in a due process proceeding (Sec. 300.536(b)) Previously, there was no direction as to how the decision about whether there was a pattern of behavior should be made.
    • Provides for the State Education Agency to enforce written settlement agreements under some circumstances (Sec. 300.510(d)(2))

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  • Section 504

    The Rehabilitation Act of 1973, called Section 504, is a nondiscrimination statute enacted by Congress. The purpose is to prohibit discrimination and ensure that disabled students have the same educational opportunities and benefits as those provided to nondisabled students.

    Under § 504, a student who (a) has, (b) has a record of having, or (c) is regarded as having, a physical or mental impairment which substantially limits a major life activity such as learning, self-care, walking, seeing, hearing, speaking, breathing, working and performing manual tasks is eligible for Section 504 protections.
    Many students are eligible for education services under both § 504 and the Individuals with Disabilities Education Improvement Act (IDEIA 2004). Students eligible under the IDEA have many specific rights not available to students who are eligible solely under § 504.

    The enabling regulations for § 504, found in 34 CFR Part 104, provide parents and/or students with the following rights:

    1. You have the right to be informed by the school district of your rights under § 504. See 34 CFR 104.32.
    2. Your child has the right to an appropriate education designed to meet his/her individual educational needs as adequately as the needs of nondisabled students are met. See 34 CFR 104.33.
    3.  Your child has the right to free educational services, except for those fees that are imposed on nondisabled students or their parents. See 34 CFR 104.33.
    4. You child has a right to placement to the least restrictive environment.  34 CFR 104.34.
    5. You child has a right to facilities, services, and activities that are comparable to those provided for nondisabled students. See 34 CFR 104.34.
    6. You child has a right to an evaluation prior to an initial  § 504 placement and any subsequent significant change in placement. See 34 CFR 104.35.
    7. Testing and other evaluation procedures must meet the requirements of  34 CFR 104.35 as to validation, administration, areas of evaluation, etc.  The district shall consider information from several courses, not just one, including aptitude and achievement tests, teacher recommendations, physical condition, social and cultural background, adaptive behavior, physical or medical reports, students grades, progress reports, parent observations, anecdotal reports, and TEAMS/TAAS scores. See 34 CFR 104.35.
    8. Placement decisions must be made by a group of persons (i.e., the § 504 Committee), including persons knowledgeable about your child, the meaning of the evaluation data, the placement options, and the legal requirements for least restrictive environment and comparable facilities. See 34 CFR 104.35
    9. If eligible under § 504, your child has a right to periodic reevaluations, generally every three years. See 34 CFR 104.35.
    10. You have the right to notice prior to any action by the district in regard to the identification, evaluation, or placement of your child. See 34 CFR 104.36.
    11. You have the right to examine relevant records. See 34 CFR 104.36
    12. You have the right to an impartial hearing with respect to the district’s actions regarding your child’s identification, evaluation, or educational placement, with opportunity for parental participation in the hearing and representation by an attorney. See 34 CFR 104.36.
    13. If you wish to challenge the actions of the district’s   § 504 Committee in regard to your child’s identification, evaluation, or educational placement, you should immediately file a written Notice of Appeal with the district’s  § 504 Coordinator. A hearing will be scheduled before a Hearing Officer and you will be notified in writing of the date, time, and place for the hearing.
    14. If you disagree with the decision of the Hearing Officer, you have a right to a review of that decision by a court. 34 CFR 104.36
    15. On § 504 matters other than your child’s identification, evaluation, and placement, you have a right to file a complaint with the district’s  § 504 Coordinator (or a designee), who will investigate the allegations to the extent warranted by the nature of the complaint in an effort to reach a prompt and equitable resolution.

    A Section 504 hearing creates the record for federal court. Section 504 cases can go to a jury and bring damages. Section 504 hearings are administrative hearings and thus the strict rules of evidence don’t apply unless there is some specific statutory requirement that they do. In Section 504 cases, you can demand and use class-wide data.

    504 Hearing and Appeals Process

    1. Request mediation, an impartial hearing, and an appeal of any decisions or actions taken by the school corporation regarding your child’s identification, evaluation, educational program or placement. You and your student may take part in these proceedings and have an attorney represent you. Requests for due process must be made to the superintendent of the Section 504 coordinator. The following details the procedures:

      1. If the parent/guardian disagrees with the identification, evaluation, educational placement, or with the provisions of a free appropriate public education for his/her child. The parent/guardian may make a written request for a hearing to the superintendent, indicating the specific reason(s) for the request.
      2. The School Corporation may initiate a hearing regarding the identification, evaluation, or educational placement of the student or the provision of a free appropriate public education to the student. The School Corporation shall notify the parent/guardian of the specific reason(s) for the request.
      3. Such hearings shall be conducted within twenty (20) instructional days after the request is received, unless the hearing officer grants an extension and at a time and place reasonably convenient to the parent/guardian. Upon receipt of a request for a hearing officer. The parent/guardian involved in a hearing shall be given the right to have the child who is the subject of the hearing present, open the hearing to the public, and be represented by counsel or any other representative.
      4. During the pendency of an administrative or judicial proceeding, unless the School Corporation and the parent/guardian of the child agree otherwise, the child involved in the proceeding shall remain in his/her present educational placement. If there is a dispute regarding this present placement, the hearing officer shall order an interim placement. The present educational placement of the child shall include normal grade advancement if the proceedings extend beyond the end of the school year. If the issues involve an application to initial admission to school, the child, with the consent of the parent/guardian, shall be placed in the school until the completion of the proceedings. In the absence of an agreement, the hearing officer shall determine the child’s placement during the proceedings.
      5. The child and the parent/guardian shall have the right to legal counsel and/or other representation of their own choosing. The School Corporation shall inform the parent/guardian of any free or low-cost legal services available in the area if the parent guardian requests the information or if the School Corporation initiates a hearing. The School Corporation shall bear the burden of proof as to the appropriateness of any placement, transfer, or the denial of same.
      6. A tape recording or other verbatim record of the hearing shall be made and transcribed and upon request shall be made available to the parent/guardian or representative, at the school corporation’s expense. At a reasonable time prior to the hearing during school hours, the parent/guardian or representative shall be given access to all records of the school corporation, and any of its agents or employees, pertaining to the child, including all tests and reports upon which the proposed action may be based. The parent/guardian or representative shall have the right to compel the attendance, to confront or to cross-examine any witness who may have evidence upon the proposed action may be based. The parent/guardian or representative and School Corporation shall have the right to present evidence and testimony, including expert medical, psychological, or educational testimony. Introduction of any evidence at the hearing that has not been disclosed to both parties at least five (5) days before the hearing is prohibited, subject to the discretion of the hearing officer.

        Within fifteen (15) instructional days after the hearing, the hearing officer shall render a decision in writing. Such decision shall include findings of fact, conclusions of law, and orders, if necessary, which will be binding on all parties. The dated decision shall be sent by mail to parent/guardian and the superintendent of the School Corporation, and shall contain notice of the right to appeal the decision. The decision shall be implemented no later than twenty- (20) instructional days following the date of the decision, unless review is sought by either party. Should the parent guardian be represented by legal counsel and ultimately prevail on the issues at administrative and/or judicial proceedings, the parent/guardian may be entitled to payment of all or part of the attorney fees and other costs incurred by the parent/guardian.

    2. Request a review (appeal) of the hearing should you not prevail. The following details the procedure:

      1. A petition to review (appeal) the decision of the hearing officer may be made by any party to the hearing. The request must be in writing, filed with the superintendent and the opposing party be specific as to the objections, and be filed within twenty (20) instructional days of the date the hearing officer’s decision is received. The School Corporation is responsible for the appointment of an independent appeals officer to conduct an impartial review of the record as a whole and may, at his/her election, conduct the review with or without oral argument. Such review shall be conducted within twenty (20) instructional days of the receipt of the petition to review, unless either party requests an extension of time.
      2. The appeals officer shall insure that a transcript of the review is prepared and made available to any party upon request.
      3. Any party disagreeing with the decision of the appeals officer may appeal to a civil court with jurisdiction.
      4. A parent/guardian represented by legal counsel during the proceedings of a due process hearing, appeal, or civil action may be entitled to reimbursement of legal fees if the parent ultimately prevails.
    3. Ask for payment of reasonable attorney fees if you are successful on your claims.

      Federal dollars compel private schools to comply with Section 504
      If you want to know whether a private school is obligated to comply with Section 504 regulations, look at its funding stream. If there is a single dollar of federal funding provided to the private school, even indirectly, it must follow 504 regulations, even if it a “religious school.” See, e.g. Cain v. Archdiocese of Kansas City, 508 F. Supp. 1021 (D. Kan. 1981).

      In addition, a private school that does not receive direct federal funding still may be subject to Section 504 if it is an indirect recipient of federal funding.
      All private schools, even religious ones, are covered by the Americans with Disabilities Act regardless of whether they receive federal funds. Title III (public accommodations) applies to private schools, regardless of their size; however, religious schools are exempt from Title III.

      If I am successful with my Section 504 case, am I entitled to seek attorney fees?

      Yes, under 29 USC 791a(b): which states "(b) In any action or proceeding to enforce or charge a violation of a provision of this subchapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs."

    Section 504 of the Rehabilitation Act of 1973
    The Civil Rights Act of 1964, which Dr. Martin Luther King was the leader in bringing into law, provides the remedies in court, under its Title VI, that we rely on today under Section 504 and the Americans with Disabilities Act.
    The purpose of Section 504 is to remove discrimination by providing the student with a disability the modifications and accommodations and related aids and services to give them access to what every other student enjoys.
    Section 504 is broader than the IDEA. If your child was denied coverage under the IDEA, he or she might still be covered under Section 504 because it is much broader.

    How can Section 504 be broader?
    Parents have many more rights under Section 504 than under the IDEA because Section 504 provides for very specific protections for parents as they advocate for their disabled children. Under Section 504 and the ADA a parent has more power when they are engaged in the "protected activity of advocacy" for their child. The protections are against "retaliation," "intimidation," "interference," "threats" or "coercion."

    Section 504 prohibits any recipient of federal financial assistance (which includes your school district, your State Education Agency, your department of Vocational Rehabilitation, many of your colleges, and so forth) from denying an individual the benefits of their program or activities solely on the basis of disability.

    This means that if your school district fails to modify its program, and your child, because of their disability, is effectively denied access to the full benefits of the school's program and activities that are available to the other students, then your school district is violating the requirements of Section 504.

    Deep pockets
    Like Title IX, Section 504 simply states that if your state or local educational agency receives federal funds -- then it has to follow Section 504 and stop discriminating. Every state, including Indiana, DOES take federal educational funds and therefore must comply with Section 504.

    Since gaining access to what other students have access to is the hallmark of Section 504, it is very strong on removal of architectural and other types of barriers, so the student can be in the regular classroom, or regular educational activity, that they would be in if not disabled.

    Section 504 contemplates the following:
    (a) Providing a structured learning environment;
    (b) Repeating and simplifying instructions about in-class assignments;
    (c) Repeating and simplifying instructions about homework assignments;
    (d) Supplementing verbal instructions with visual instructions;
    (e) Using behavioral management techniques;
    (f) Adjusting class schedules;
    (g) Modifying test delivery;
    (h) Using tape recorders;
    (i) Computer aided instruction;
    (j) Other audio-visual equipment;
    (k) Selecting modified textbooks;
    (l) Selecting modified workbooks;
    (m) Tailoring homework assignments;
    (n) Consultation with Special Education;
    (o) Reducing class size;
    (p) Use of one-on-one tutorials;
    (q) Use of classroom aides;
    (r) Use of classroom note takers;
    (s) Involvement of a services coordinator to oversee implementation
    of special programs and services;
    (t) Possible modification of nonacademic time such as lunchroom;
    (u) Possible modification of nonacademic time such as recess;
    (v) Possible modification of nonacademic time such as physical education.

    When a child is deemed eligible for Section 504 protections, the school district and state education agency "shall provide a free appropriate public education to each qualified disabled person who is in the recipient's jurisdiction, regardless of the nature or severity of the person's disability." 34 C.F.R. 104.33(a). Write your school and state education agency for their written guidelines on what a "free and appropriate public education" provides under Section 504.

    Under the IDEA, the evaluation is to describe one of the eleven IDEA listed disabilities. However, the Section 504 evaluation inquiry is aimed not at a list of disabilities but rather looks at a functional analysis of the impairment, how it causes a lack of access to full education, and what could be done to remove the barrier to what the typical students have access to.
    Your state education agency and local school district must have written guidelines for evaluation for mental or physical impairment under Section 504, 34 CFR 104.35.

    College/University Students and Section 504:
    Most colleges and universities have posted on their websites their own procedures that students just follow in order to identify themselves and access services.

    Generally, in order to determine eligibility, most college websites require:

    1. The student’s most recent IEP or 504 plan.
    2. The student’s most recent evaluation. It is important that this evaluation utilize testing instruments that the college or university accepts. Most do NOT accept screening tests, such as the K-BIT and the WRAT.
    3. Some colleges and universities require that the evaluation include:
      1. A DSM-IV diagnosis.
      2. A specific rationale for any necessary accommodations.
      3. Specific evaluator qualification.

        Parents should review ALL requirements of any post-secondary institutions the child is interested in attending LONG before the child leaves the public school setting.

    Distinctions between 504 and IDEA:

    1. A 504 plan often is the "consolation prize" when a child with a disability, which adversely affects educational performance, should have been found eligible for services under IDEA, but for economic, staffing and other unknown reasons was found ineligible and was given a 504 plan instead. A child with a disability is eligible for 504 protections.
    2. A child with a disability that does NOT adversely affect educational performance is eligible for 504 protections but is NOT eligible for an IEP.
    3. A child with a disability that does adversely affect educational performance is eligible for 504 protections and is eligible for an IEP.
    4. A special education child receiving educational benefit under IDEA with an IEP is also a child with a disability under 504.
    5. If a 504 child has a 504 plan with various educational accommodations, and then becomes eligible for a special education program under IDEA and an IEP, that child is STILL entitled to the same 504 protections and educational accommodations but there is no reason to continue with the 504 plan because the accommodations should be written into the IEP.
    6. 504 does not require plans to be written, though local school district policy might.
    7. The parents have very few rights under 504.
    8. The parent does not have to be invited to the meeting where a 504 plan is developed. The school must only notify the parent that a 504 plan was developed.
    9. There are fewer procedural requirements that serve to protect the parent and child under 504.
    10. What looks like discrimination may really not be discrimination.
    11. 504 does follow the child after he/she leaves the public school system. IDEA does not.

    Section 504 Q&A
    How time much is enough information to document that a student has a disability for purposes of providing a 504 plan to a student?

    The amount of information required is determined by the multi-disciplinary committee gathered to evaluate the student. The committee should include persons knowledgeable about the student, the meaning of the evaluation data, and the placement options.

    The committee members must determine whether they have enough information to make a knowledgeable decision as to whether or not the student has a disability. The Section 504 regulation, at 34 C.F.R. 104.35(c), requires that school districts draw from a variety of sources in the evaluation process so that the possibility of error is minimized.

    The information obtained from all such sources must be documented and all significant factors related to the student's learning process must be considered. These sources and factors may include aptitude and achievement tests, teacher recommendations, physical condition, social and cultural background, and adaptive behavior.

    In evaluating a student suspected of having a disability, it is unacceptable to rely on presumptions and stereotypes regarding persons with disabilities or classes of such persons. Compliance with the IDEA regarding the group of persons present when an evaluation or placement decision is made is satisfactory under Section 504.

    What process should a school district use to identify students eligible for services under Section 504? Is it the same process as that employed in identifying students eligible for services under the IDEA?

    School districts may use the same process initially to evaluate the needs of students under Section 504 as they use to evaluate the needs of students under the IDEA. If school districts choose to adopt a separate process for evaluating the needs of students under Section 504, they must follow the requirements for evaluation specified in the Section 504 regulation at 34 C.F.R. 104.35.

    What process should a school district use to identify students eligible for services under Section 504? Is it the same process as that employed in identifying students eligible for services under the IDEA?

    School districts may use the same process initially to evaluate the needs of students under Section 504 as they use to evaluate the needs of students under the IDEA. If school districts choose to adopt a separate process for evaluating the needs of students under Section 504, they must follow the requirements for evaluation specified in the Section 504 regulation at 34 C.F.R. 104.35.

    Can a medical diagnosis suffice as an evaluation for the purpose of providing FAPE?

    No. A physician's medical diagnosis may be considered among other sources in evaluating a student with a disability or believed to have a disability that substantially limits a major life activity. Other sources to be considered, along with the medical diagnosis, include aptitude and achievement tests, teacher recommendations, physical condition, social and cultural background, and adaptive behavior.

    Once a student is identified as eligible for services under Section 504, is there an annual or triennial review requirement? If so, what is the appropriate process to be used? Or is it appropriate to keep the same Section 504 plan in place indefinitely after a student has been identified?

    Periodic re-evaluation is required. This may be conducted in accordance with the IDEA regulation, which requires re-evaluation at three-year intervals or more frequently if conditions warrant, or if the child's parent or teacher requests a re-evaluation.

    Is a Section 504 re-evaluation similar to an IDEA re-evaluation? How often should it be done?

    Yes. Section 504 specifies that re-evaluations in accordance with the IDEA comply with Section 504. The Section 504 regulation requires that re-evaluations be conducted periodically. Section 504 also requires a school district to conduct a re-evaluation prior to a significant change of placement. OCR considers an exclusion from the educational program of more than 10 school days a significant change of placement. OCR would also consider transferring a student from one type of program to another or terminating or significantly reducing a related service a significant change in placement.

    The eligibility decision must be based on information from a variety of sources, such as teacher reports, reports of physical or mental condition, observations, adaptive behavior, and aptitude and
    achievement tests.

    If we do the modifications for the student, do we have to refer the child and go through the procedural hassle of 504?

    Yes. If the student qualifies for 504, doing the modifications without providing the procedural protections is a violation. That was the case where a school district provided a student who had undergone hip surgery with appropriate modifications, but failed to have procedures in place to document the deliberation of, or provision of accommodations [the regulations require no such documentation], or to inform parents of the procedure to follow should their student become disabled. Temple (TX) ISD, 25 IDELR 232 (OCR 1996). There can be few results as unpalatable as one where the district provides sufficient modifications to a qualified disabled student, but nevertheless is found in violation for not jumping through the procedural hoops.

    What is a 504 reevaluation?

    Unlike its special education counterpart, the 504 re-evaluation does not mean "test," but instead, means a gathering of data from a variety of sources. No formal testing is necessary. Letter to Williams, 21 IDELR 73 (OCR 1994). In the § 504 context, evaluation refers to a gathering of data or information from a variety of sources so that the committee can make the required determinations. Since specific or highly technical eligibility criteria are not part of the 504 regulations, common sources of evaluation data for 504 eligibility are the student's grades, disciplinary referrals, health information, language surveys, parent information, standardized test scores, teacher comments, etc. An evaluation is required, according to the regulations at 104.35(a), prior to initial evaluation, and prior to any significant change of placement. A reevaluation is also required "periodically" which the Appendix to the regulations defines as at least every three years.

    The reevaluation is simply a re-gathering of information from a variety of sources to verify eligibility and to determine if additional changes are needed in the child's program. While the regulations require reevaluation every three years, the better practice is to conduct one at least at the end of every school year, looking forward to the next school year and changes to the child's schedule, teachers, and other issues that may require tinkering with the modifications and/or behavior management plan. Note that the manifestation determination meeting conducted by the 504 committee prior to a change of placement for disciplinary reasons of greater that 10 days, or when removals total 10 days during a school year is also a reevaluation.

    Can a student's absences trigger a 504 referral and evaluation?

    Absolutely. If a district suspects that a significant number of absences is due to a disability that substantially limits a major life activity (for example, when the number of absences threatens the student's ability to receive credit for coursework or when it impacts significantly on grades), the district ought to refer and evaluate. For example, a junior high school student with severe allergies, asthma, and migraine headaches had a lengthy history of missing school due to her medical problems. In seventh grade, she was absent 132 times, and in eighth grade attended classes only three to ten times from September to November. The parents argue that the school failed to accommodate the student's absences. The only evaluations conducted by the district with respect to the child's absences were very recent attempts to find psychological causes, even though the district was aware for the past five years of the student's medical problems (the allergies, headaches, and asthma). OCR finds that the district failed to properly evaluate given the information that it had on the medical related absences. Grafton (ND) Public School, 20 IDELR 82 (OCR 1993).

    What's all the hoopla over the American Academy of Pediatrics guidelines on diagnosis of ADHD?

    An ongoing struggle for many educators is the realization that no medical diagnosis is required for 504 eligibility. "Section 504 does not require that a school district conduct a medical assessment of a student who has or is suspected of having ADHD unless the district determines it is necessary in order to determine if the student has a disability." Williamson County (TN) School District, 32 IDELR 261 (OCR 2000). In fact, the regulations do not require medical evaluations for any disability to qualify under 504. Of course, if the parents present the school with an outside medical evaluation, it must be considered as part of the district's evaluation process. This requirement has also been a concern to some educators, especially when the diagnostic practices of a local doctor result in a high number of ADD/ADHD students. Some relief arrived on that front last year.

    If I want to file a complaint about Section 504 violations with a government agency, which agency would that be?

    For Texas residents:
    U.S. Office for Civil Rights, Dallas Office
    1999 Bryan St., Suite 1620
    Dallas, TX 75201
    (214) 661-9600
    http://www.ed.gov/OCR
    OCR_Dallas@ed.gov

    For Indiana residents:
    Illinois, Indiana, Minnesota, Wisconsin, Iowa, North Dakota
    Office for Civil Rights/Chicago
    U.S. Department of Education
    Citigroup Center
    500 W. Madison Street, Suite 1475
    Chicago, IL 60661
    Tel.: (312) 730-1560
    Fax: (312) 730-1576
    TDD: 312-730-1609 or 1-877-521-2172

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  • Special Ed Primer

    Affirmative duty to identify children with special needs

    Under both federal and state law, schools must evaluate and identify children suspected of having disabilities, even if the parents do not first ask for special education testing or services.

    Currently, Indiana’s law is written to mirror the OLD Individuals with Disabilities Education Act (IDEA), so until it is rewritten children have protections under BOTH laws.

    • Schools have an affirmative duty to perform evaluations of children who may possibly have special needs and may require special education and related services of children ages 3 through 22. This is something they are supposed to notice on their own, though much of the time, it’s the parents who realize that there’s something wrong and who ask for evaluations. (511 IAC 7-25-2). This includes students who are in public and private schools, agencies and institutions.


    Possible areas of Eligibility for Special Education and Related Services

    Autism spectrum, communication disorder, deaf-blind, developmental delay (early childhood), emotional disability, hearing impairment, learning disability, mental disability, multiple disabilities, orthopedic impairment, other health impairment (sometimes called a catch-all category), traumatic brain injury, visual impairment.

    Sometimes a student with have more than one area of eligibility. Although for the most part schools will accurately identify a student’s area of eligibility, sometimes parents want one label over another. Generally, that is not an issue that the parents have a legal mechanism to force upon the school. And caselaw indicates that the label matters less than whether the services provided were appropriate, which makes sense in most cases.

    **Students who have not yet been identified as being eligible for special education and related services are STILL covered by the state and federal protections if they SHOULD have been identified but have not been identified.**

    This seems to come up most often in discipline cases.

    The IDEIA (federal law) states: §300.527 Protections for children not yet eligible for special education and related services. (a) General. A child who has not been determined to be eligible for special education and related services under this part and who has engaged in behavior that violated any rule or code of conduct of the local educational agency, including any behavior described in §§300.520 or 300.521, may assert any of the protections provided for in this part if the LEA had knowledge (as determined in accordance with paragraph (b) of this section) that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.

    Independent Educational Evaluations

    If the school evaluates the student and the school believes the student doesn’t qualify for special education and related services but the parent does believe the student should qualify, the parent can write a letter, stating that she disagrees with the school’s evaluation and ask for an independent educational evaluation (IEE) to be paid for by the school. In response, the school is required to give one of two answers: One is to agree to pay for an independent evaluation by a practitioner of the parent’s choice (as long as the person is qualified to actually DO a psychoeducational evaluation) OR the school is required to file for a due process hearing to have a hearing officer rule that the evaluation done by the school was appropriate and that an independent educational evaluation is not necessary.

    However, as a practical matter, because an IEE is much less expensive than a hearing, most schools will agree to pay for the independent educational evaluation.

    Then after the child has been deemed eligible, a reevaluation must be conducted every three years, unless both the school and parents waive that right, in writing.

    After eligibility is determined, committee devises educational plan

    Once everyone agrees that a child needs special education and related services in order to make meaningful educational progress, then a group of individuals, including school employees and the parents, sit down together and write an Individualized Education Program (IEP) for the student.

    This IEP will govern the services that the student receives.

    There is no formula, or at least there is not supposed to be, for what students in specific categories get. In other words, all students with autism are not given the same program, even though they have the same disability. Some need services that others don’t, and some need more intensive services than others.

    The IEP is supposed to be written with the child’s individual needs in mind.

    The IEP should contain the following

    1. A statement of the student’s present levels of performance in academic, physical, social, behavioral areas.
    2. Specific measurable goals and objectives for the student in all areas of need, such as academic, speech, behavioral, social skills, life skills, for example.
    3. A statement of the special education and related services and supplementary aides and services to be provided to the student.
    4. A statement about whether the student will participate in standardized statewide testing or other measures.
    5. The date of initiation of services, length, frequency and duration of services.
    6. A statement about whether the student will participate in extracurriculars.
    7. A statement of how the student’s progress (or lack thereof) will be measured.
    8. Whether the student needs Extended School Year (ESY) services. (These are services during school breaks, like summers, holiday breaks)
    9. A statement of transition services (life after school).
    10. A statement of what the student’s least-restrictive environment is. An example of a very restrictive placement would be a residential setting. An example of a less restrictive placement would be a general education classroom. The LRE is supposed to be determined on a child-by-child basis. It’s not a room, but a placement that works for the student.
    11. A statement of transfer of rights to the student once he turns 18. (If the student is not competent to make decision about his educational services, then the parents should seek a guardianship so that they can continue to advocate for their child’s rights after age 18 because the student could be eligible for services through age 22.)
    12. A statement of accommodations and modifications necessary for the student. Examples could include more time on tests, use of a calculator, fewer questions on tests, typing answers instead of handwriting them, having tests read to them and answering aloud, rather than in writing. There are hundreds of examples; these are just a few.

    Related services

    If a student needs related services in order to make meaningful educational progress, then those services should be included in the student’s IEP. Example of related services are: audiological services, counseling, early identification and assessment, medical services for evaluation, occupational therapy, orientation and mobility services, parent training and counseling, physical therapy, psychological services, recreation, rehabilitation counseling, school health services, social work services in schools, transportation, other supportive services.

    Implementation of the student’s IEP

    The school is required to implement the student’s IEP, as written. The student’s Teacher of Record (TOR) is the one who is responsible for seeing to it that the IEP is implemented.

    It is illegal for a teacher to say: “I do not agree with this IEP, and I’m not going to do what it says.” If a teacher disagrees with an IEP and believes it’s inappropriate, he can also request a case conference committee meeting for the purposes of revising the student’s IEP. In fact, if the school employee believes that it needs to be changed, the school would have a duty to reconvene.

    The same is true for the parent. Although the IEP is required to be revised at LEAST annually, if at any time during the school year the parent believes that the IEP needs to be revised, she can request that the case conference committee reconvene and revise the student’s IEP. The school must convene the case conference committee upon parental request.

    Parental Absence/Incompetence

    Under the old federal law and the current state law, the school couldn’t test a student for eligibility for special education and related services unless written parental permission was given . (Sometimes this is a problem for a parent who doesn’t want her child to be labeled as having special needs, thinking it was more appropriate not to receive services than to possibly be stigmatized by his peers and teachers.)

    Under the new federal law, a school can evaluate a student without the consent or cooperation of the parent. However, the school still cannot provide special education and related services to the student unless the parent has agreed to allow that – or unless the school has taken the parent to a due process hearing to have a hearing officer impose orders.

    If the school cannot identify a parent, cannot find a parent or the student is a ward of the state, the school can get an “educational surrogate parent” assigned for the child to stand in the place of the parent in terms of making educational decisions for the student. This surrogate parent means a person trained and appointed to represent a student with a disability in matters relating to the provision of a free appropriate public education (FAPE), including identification, evaluation and placement.

    The school is required to maintain a system to assign educational surrogate parents who has no conflict of interest and who will be charged with working to ensure that the student receives a free appropriate public education.

    Mechanisms to Resolve Disputes

    Case conferences. This is a committee consisting of several individuals from the school and the parent(s). If it’s the student’s first case conference or it’s a case conference held after the conducting of a psychoeducational evaluation by the school, then the school psychologist must attend.

    Mediation

    Mediation is something the school is required to tell the parent about when the parent requests a hearing, though a school is not required to participate in a mediation just because a parent wants to, and vice versa.

    With a mediation, the parent and school would sign an agreement to seek a mediation on a form devised by the Indiana Department of Education. The DOE would choose a mediator for the process, and it works much like mediation in other areas of law, though attorneys on both sides are strongly discouraged by the Indiana Department of Education from attending these special education mediations. The school picks up the cost of the mediator’s fee.

    Complaints

    With a complaint investigation, an individual employed by the Indiana Department of Education would interview the parents and the school about what happened (or not), gather documents and issue a decision and corrective action, if the law was violated. This process costs parents nothing. Results of complaint investigations are posted at http://ideanet.doe.state.in.us/exceptional/speced/complaint_investigations.


    Due process

    With due process, an independent hearing officer is assigned from a rotating list kept by the Indiana DOE. This individual would conduct an administrative hearing and issue a decision on whether the child’s substantive or procedural due process rights in Article 7 and the IDEA have been violated.

    Indiana’s special education law mirrors the IDEA, though there are a few minor differences. The cost of the hearing is borne by the school, including the transcript, hearing officer’s fees (although Indiana’s DOE states strongly on its website and if you should inquire, that the hearing officers, although they are paid by the schools, are NOT employees of the school), their own attorney, and if the parent prevails, the school picks up the attorney costs for the parent.
    This attorney fee shifting occurs because these due process cases are seen as civil rights matters, and payment of the attorney fees for parents is provided in both the IDEA and Article 7.

    The federal and state laws provide that the family can have a decision in hand within 45 days of their request for hearing being submitted to the Indiana Department of Education. However, as a practical matter, more often than not, the process takes two to three months to get the decision in hand because it requires the coordination of the schedules of two attorneys and a hearing officer, with the average hearing lasting three days.

    The IHOs in Indiana are well-versed in special education laws and various areas of disabilities. They include private practitioners with special interests in this area of law and psychology professors at various Indiana colleges and universities. Most have been serving as hearing officers for a number of years, though a new crop of four hearing officers is currently being trained by the Indiana DOE.
    BSEA, federal or state court

    After the IHO renders a decision, either party may appeal that decision to the Board of Special Education Appeals (BSEA) within 30 days, unless a request for an extension of time is granted. Then the opposing party has 10 days to respond, unless an extension is granted.

    BSEA decisions are posted online at http://ideanet.doe.state.in.us/legal/appeals.html.

    Suspensions/Expulsions

    Removal of a special needs child from school for misbehavior is a different proposition than for a regular education child.

    A student with a disability may be suspended for up to 10 consecutive school days for misconduct. The school doesn’t have to provide any educational services during the first 10 days of suspension in a school year. The school may suspend a student for up to 10 consecutive school days for each separate incident of misconduct. However, when the number of days of suspension in a school year reaches the 11th day, the school must provide educational services to the student and must convene a case conference committee meeting within 10 business days of the 11th day of suspension to develop a plan for an assessment of the students behavior and review and/or revise the student’s existing behavior plan.

    A student with a disability may be expelled. However, before an expulsion can occur, the school must notify the parent of the decision on the day the decision is made, provide the parents with a copy of their notice of rights, convent a case conference committee within 10 school days of the decision to expel the student and conduct a manifestation determination.

    This determination means the committee looks at whether the behavior was caused by the child’s disability or whether it was a willful choice not caused by the disability.

    If the behavior was caused by the child’s disability, then that cannot serve as a basis for expulsion.

    If the behavior was not caused by the child’s disability, then the child may be expelled, but educational services must be provided to the child so that he or she can continue to make educational progress.

    However, parents who disagree with this decision can request an expedited due process hearing.

    Finally, a child who has not yet been identified by the school as having a disability but who is being suspended for more than 10 days or expelled can invoke the protections of the IDEA and Article 7 if the school knew or should have known that the child had a disability but failed to evaluate the child and failed to provide appropriate educational services.

    What communities can be doing

    1. Parent training and education
    2. Setting up and implementing strong advocates system
    3. Courts should rely more on schools to provide the services that they’re already required to provide, rather than using the courts as the student’s “behavior intervention plan.”
    4. Support public defender agency’s endeavors to set up a program to help parents of special needs kiddos to ensure federal and state rights are enforced.

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  • Social Security

    Sometimes families with disabled children are entitled to Social Security benefits, in addition to school-related services. For more information about this, please visit the following websites:

    http://www.ssa.gov/OP_Home/handbook/handbook.04/handbook-0415.html

    http://www.ssa.gov/OP_Home/handbook/handbook.21/handbook-2112.html

    Other sources: Contact your local Social Security office or a local attorney or agency familiar with Social Security claims.

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  • Tax Issues

    The Internal Revenue Service has opened the door for some parents to write off their child’s private-school tuition as a medical expense. In a recent ruling, on March 1, 2005, the IRS issues a Private Letter Ruling (PLR-140373-04) which was released to the public on May 27, 2005. It said that one family’s dyslexic children required special education that could be deemed medical care and thus was deductible as a medical expense under IRS Code Section 213. Though the ruling applied only to one specific family, parents who think they might qualify can take these steps.

    • Make sure the school offers special education aimed at helping the student overcome a diagnosed handicap. The school should have staff available to design a curriculum aimed at your child’s particular handicap, and that should by why the child attends that school.
    • Get the school to write a statement about it’s program
    • Remember that as a legitimate medical expense, it’s still not deductible until exceeds 7.5 percent of your adjusted gross income. Given the cost of most private schools today, that won’t be a problem.

    This information is not intended to be tax advice. You should consult with your own tax professional to see how the above might apply to your case.

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  • Texas State Law

    To learn more about Texas special education law, visit the official Texas State Education Agency website at http://www.tea.state.tx.us/special.ed.

    To see the Texas parent resource guide, visit http://www.tea.state.tx.us/special.ed/resources/

    To see the link to the Texas state education agency website, go to http://www.tea.state.tx.us/educationlaw.html

    The Arc of Texas is an organization whose purpose is "creating opportunities for people with mental retardation and other developmental disabilities to be included in their communities."

    Its link is: http://www.thearcoftexas.org/resources/families/inclusionresources.asp

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