Education Law Advocates, P.C.

December 2007

Education Law Advocates, P.C.
Education Attorneys

Quick Tip! Do you know about . . . Important Special Education Deadlines?Here are just three of many important deadlines for parents of special education students:

  • 60 "school days" from the date the parent signs the "permission to evaluate" form for the school to evaluate a student for special education and issue a written report to the parent. A "school day" is any day school is open. Proposed Pennsylvania regulations may change this deadline to 60 "calendar days," not including summer. Stay tuned!
  • 30 "calendar days" for the school to hold an IEP meeting after it issues an initial report that finds the student eligible for special education.
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  • 10 "business days" for parents to inform the school in writing that they are rejecting the school's placement, explain why, and state their intention to enroll their child in private school at public expense. A "business day" here is Monday through Friday, including any holiday. Giving similar notice at the last IEP meeting before the removal may be sufficient. Be careful! Failing to give proper notice could result in the court denying reimbursement! Our advice: Consult with a special ed attorney before removing your child.

More could be said about these three deadlines. For instance, special rules apply to pre-school children and charter school students. Again, be careful! It's the things "we don't know we don't know" that can really hurt us. Legal "landmines" like the 10 business day rule mentioned above or a "statute of limitation" can go off unexpectedly, causing you to lose important legal rights. For more information on deadlines, go to: http://www.elc-pa.org/pubs/downloads/english/Timelines%209%2005.pdf. And don't hesitate to contact a special education lawyer with questions. Better safe than sorry!

Helen Keller From the Legal Desk . . . "FAPE" -- and the Amy Rowley StoryYou may know that "FAPE" refers to a "free appropriate public education." You also may know that federal law (including the "Individuals with Disabilities Education Improvement Act" or "IDEA 2004") requires schools to provide an "appropriate" education to each special education student. But what is an "appropriate" education? How does it apply to your child? To begin to understand the answers to these questions, you need to meet Amy Rowley. In September 1978, Amy Rowley entered the regular first grade class in public school in Peekskill, New York, north of New York City. Amy was the deaf child of deaf parents. In class she used an "FM hearing aid" that amplified words spoken into a wireless receiver by her teacher or classmates. As specified in her IEP, she also received one hour's instruction each day by a tutor for the deaf and three hours of speech therapy each week. Amy performed well academically and socially. She was "extraordinarily well-adjusted." Sadly, however, Amy understood less of what occurred in class and did not achieve academically as well as she would have if she could hear. Her parents therefore requested the school to provide a sign language interpreter to help give Amy the same opportunity to achieve her "full potential" as her non-handicapped classmates. In response, a school district committee heard expert evidence from Amy's parents, teachers and others, and visited a class for the deaf. The school previously had placed an interpreter in Amy's kindergarten class for two weeks, who reported that Amy did not need his services at that time. After the school denied the request for an interpreter, Amy's parents sued under the "Education for All Handicapped Children Act" (the "EHCA": the predecessor to today's "IDEA 2004") to force the school to comply. In 1982, Amy's case reached the United States Supreme Court. Interpreting what Congress intended when it enacted the "EHCA," the court held that a school district satisfies the law's requirement for an "appropriate" education when it provides personalized instruction with sufficient support services to permit the handicapped child to " benefit educationally " from that instruction, consistent with the state's educational standards and the child's IEP. The court concluded that Amy was receiving an "appropriate" education under the Act without the interpreter because she was already performing well and advancing from grade to grade with the services provided. The Supreme Court decided in the Rowley case that Congress did not intend (in the EHCA) to require schools to "maximize" a handicapped child's potential to equal the opportunity available to non-handicapped children. The court said, in effect, that the law requires the school to provide a handicapped child with an "appropriate" education, not the "best" education possible; a "Chevy,"not a "Cadillac." Congress has made changes to the original Education for all Handicapped Children Act that the Rowley court interpreted in 1982. Changes to the federal law, now known as IDEA 2004 (or the "IDEIA"), and court decisions affecting Pennsylvania residents, make clear that a school must develop and implement an IEP, in cooperation with the parents, that is "reasonably calculated" to bring about "meaningful" progress in each area of need -- " academic, developmental and functional ." But the Rowley decision still provides useful guidance for beginning to understand what the law requires. So how can you know if your child is receiving the "appropriate" education that the law requires? Amy Rowley's story can help, but every case must be evaluated on its own facts. Amy's school did provide her with needed services. The school arguably showed a concern for her and treated her fairly, even though it denied the interpreter requested by the parents. Is your child receiving needed services? Is the school acting fairly? Does the IEP reflect a carefully considered plan that is responsive to your child's unique needs? Amy was adjusting well to school academically and socially, and "progressing easily" from grade to grade. Is that true for your child? Is your child making "meaningful" progress in all major areas of need? These are just some of the issues you should focus on as you begin to assess whether your child is receiving needed services and an "appropriate" education. As a parent, you should seek all services you believe your child needs. You also should continuously seek advice from others, such as your child's pediatrician, other treating professionals, friends, parents of children with a similar disability, a non-attorney advocate, or a special education attorney to help ensure that your child is receiving all of the services that the law requires. Be vigilant! Stay "connected." You can read more about FAPE under IDEA 2004 by clicking on this link: http://idea.ed.gov/explore/search (type "FAPE" in the search box). To read the Supreme Court's decision in the Amy Rowley case, go to http://www.wrightslaw.com/law/caselaw/ussupct.rowley.htm. The more you learn, the more effective you will be in obtaining the services your child needs! The story of Amy Rowley reminds of us of one more thing. Special education law isn't about a "case." It's about a child. It's about a child's future. It's about parents who want their child to have a better life. A child like Amy Rowley. Or a child like your own.

Math testSPOTLIGHT ON . . . Understanding Your Child's Test ResultsNumbers! We don't like numbers! We like words. But sometimes numbers are essential to tell us what we need to know. As the parent of a special education student, you need to know key numbers that will tell you about your child's abilities, disabilities, and performance over time. What is your child's "grade level" in reading? In math? How did your child score on the PSSA? What is your child's IQ? If you don't know your child's grade equivalency level in reading, for example, how can you tell if your child is making progress from year to year? If you can't tell if your child is making progress over time, how can you and the IEP team determine what instruction or other assistance your child needs to move forward? Take a few minutes to read about the four important numbers below:
  • Standard Scores. "Standard" scores show how your child performed in relation to other students taking the same standardized test. On IQ tests, for example, these numbers usually range from about 60 to 140, with 100 being the "average." On "subtests," these "scaled" scores usually range from 1 to 19, with 10 being "average." But what does a standard score of 115 on an IQ test tell you, for example, about your child's ability? It tells you that your child scored above the average of 100, but what does that mean? Read on!
  • Percentile Scores. "Percentile" scores show what percentage of the test-takers scored higher and lower than your child. A score of 50 (or the 50th%ile) means that half scored higher and half scored lower on that test. A percentile score of 2 shows that two percent scored lower and 98 percent scored higher. If your child's "Full-Scale IQ" is reported as in the "70th percentile," 70 percent scored of the test-takers scored lower and 30% higher than your child. Got it?
  • Grade levels. A grade level, or "grade level equivalency" score, shows how your child's score compares to the average child by grade. A 5th grade student who scores at the 2.0 grade equivalency level in a standardized basic reading test, for example, is performing at roughly the level of the average child beginning second grade. These grade level equivalency scores are considered by many to be very rough estimates only.
  • Age levels. An age level, or "age level equivalency" score, shows how your child's score compares to the average child by age. A child of age 12 who scores at the 6.5 "age equivalency level" in a standardized basic reading test is performing at roughly the level of the average six and a half year old child.

Now, look at how your child's test results are reported in the last evaluation report. Are all test results shown as percentiles? Percentile scores are helpful in quickly showing a child's strengths and weaknesses compared to others. Are grade and age equivalency levels shown? Look for "red flags." Is your 8th grade child reading at the 3rd grade level? Maybe there's a good explanation. Or maybe it's time to "call 911!"

What if your child's test results are shown as "standard scores" only? If your child receives a scaled score of 11 on a "similarities" subtest as part of an IQ test, how can you evaluate your child's performance compared to other students? If your child receives a standard score of 115 on a "Full-Scale" IQ test, how does that compare to other children? The answer? It's simple! Go to a conversion table . Here's one we like: www.medfriendly.com/standardscoretopercentileconversion.html. It shows the standard scores in the second column, the scaled (usually, the "subtest") scores in the third column, and the percentile scores in the fifth column. Using the conversion table, we see that a scaled score of 11 on the similarities test converts to a percentile score in the 58th to 70th percentile range. We see that the IQ standard score of 115 falls in the 84th percentile. For more information on tests and measurements, you can start with http://www.wrightslaw.com/ (type "tests and measurements" in the search box). But get started! Learn what each test is designed to tell you about your child. Determine how your child performed. Compare your child's results in one standardized test against your child's results in other tests given at other times. The more you know, the better your chances of getting all the services your child needs.

Scales of JusticeFeatured Article: School Discipline, Suspensions and ExpulsionsSchool discipline is a complicated area of the law. If it were a country, we think it would be like Afghanistan -- huge, with lots of high mountains, hidden valleys, and secret tunnels and caves. It is complicated in part because it reaches beyond special education law into such areas as criminal defense and juvenile court law. It raises thorny constitutional law questions, such as the circumstances under which a school administrator can search a student or when a student may be entitled to an attorney before he is questioned at school. It applies to both "regular ed" and "special ed" kids, though special ed students have special protection under federal and state law. So let's be clear. We can't cover all the highways and mountain paths that twist through the "strange country" known as school discipline. We will just focus here on a few key concepts in a "Q and A" format. (Note that the rights of special ed students in charter school may vary).

Q. Can the school suspend my special needs child?

A. Generally speaking -- Yes. The school can suspend a special education student for up to ten days for violations of school rules that apply to all students. These rules usually are published in a student handbook or on the school's website. By state law, students must be given an opportunity to take make-up exams and submit missed assignments caused by the suspension.

Q. Are there exceptions to the school's ability to suspend a special education student? A. Yes. Here are two. Under state law, a school may not suspend a child with mental retardation for even a day unless the parent or a hearing officer approves the suspension. A school may not suspend a special ed student for more than ten days in a row or for more than 15 days altogether during the school year, subject to certain additional exceptions. Q. Can the school transfer my special needs child to an alternative program for 45 days for disciplinary reasons? A. Yes, if certain conditions are met. If your child brought a weapon or illegal drugs to school or a "school function," or if he inflicted "serious bodily injury" on another person at school, federal regulations allow the school to transfer your child to an alternative setting for up to 45 days without your consent, subject to selection of the alternative placement by the IEP team. Q. What is a "manifestation determination?" A. A manifestation determination must occur when the school has caused a "change in placement," such as when it suspends a special education student for more than ten days in a row. Federal law requires the school officials, parent and "relevant members" of the IEP team to meet to determine if the student's conduct in allegedly violating the school's code of conduct was caused by or "substantially related to" the student's disability. If they find that it was caused by the disability, the student must be returned to his previous placement (except in cases involving a weapon, drugs or serious bodily injury), and certain other actions may be required, such as performing a a "functional behavioral assessment" and putting a behavior management plan in place. If they find that the student's conduct wasn't caused by the disability, the school generally may discipline the special education student in the same manner as a regular education student. Q. Can the school expel my special education child? A. Yes, if the student's conduct is determined not to be a "manifestation" of his disability, the student can be subjected to the same disciplinary procedures as non-disabled students, including expulsion. Even if expelled, however, federal law requires the school to provide the student with an "appropriate" education ("FAPE") until the student reaches age 21 or graduates from high school. Know, too, that if the "manifestation determination" goes against the student, the parents may file for due process to challenge the school's decision. Okay. Speaking of "discipline," we think we've punished you enough! For more information on student discipline in Pennsylvania under federal and state law, go to http://www.elc-pa.org/ type "student discipline" in the search box). But remember: We warned you. It's complicated! Got a question? Feel free to contact us.

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Education Law Advocates, P.C. skillfully represents parents and their special needs children in southeastern and central Pennsylvania, including West Chester, Lower Merion, Coatesville, Paoli, Downingtown and Upper Darby, and throughout the Philadelphia metro area, including Chester County, Montgomery County, Delaware County, Bucks County, Philadelphia, Lancaster County and Berks County.

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