Education Law Advocates, P.C.

May, 2009

Education Law Advocates, P.C.
Education Attorneys

FEATURE ARTICLE:FREQUENTLY ASKED QUESTIONS ABOUT SPECIAL EDUCATION.

While it can bring special joys and satisfaction, being the parent of a special needs child "ain't easy."But, of course, youknow that.In addition to trying to understand your child's condition and meet your child's special needs at home, you must contend with the bewildering array of school procedures, rules, "team" meetings, services, and laws that can affect your ability to get what your child needs at school.

In ourinitial meetings with parents, and afterwards, certain questions come up time andagain. Below aresome of those questions and some short answers. We caution you in advance that there isn't room (or time!) to treat these questions in detail here.So they provide onlya quick overview. They express only some of our ideas. They highlight certain laws and regulations, but may omit regulations and rules that could affect your situation directly. So keep that in mind.We include lots of links below so you can easily check the sources of our information.

Do you want more detailed information? Contact us anytime! Have otherquestions for a future newsletter? Send them along.

1.What's a "FAPE?" FAPE stands for a"free appropriate public education." 34 CFR Sec. 300.17. It's the legal standarda school district must meet in providing needed services for your special needs child, as set forthin the "Individualized Education Program" ("IEP").But what's an "appropriate" public education? Reasonable people maydisagree. In general, an "appropriate" special education is one that is reasonably calculated to help your child make meaningful progress in each area of need.

2. How can I find out if my child needs"special education?"Oftena schoolwill seek your permission to evaluate your child, but what if it doesn'trecognize that your child needs special education?Send a letter or emailto theschool principalrequesting a full evaluation. 34 CFR 300.301(b). Be sure to keep a copy.Describe your concerns for your child.(You will find a sample letter requesting an evaluation here on our website). Call the principalwithina day or twoto follow up. Of course, you shoulddiscuss your concerns with the teacher first, but if you think there's a problem, and the teacher doesn't, you should still request a full evaluation. If the school refuses toevaluate your child, or itrefuses to provide special education after evaluating your child, and you are dissatisfied, consider gettingan independentevaluation and seeking legal advice.

3.When must the school complete the initial evaluation?The school must complete the evaluation and provide the parent with a copy within 60 calendar daysafter the agency receives written parental consent for the evaluation, not counting summers.22 Pa. Code 14.123(b). Most schools require the parent to sign a "permission to evaluate" ("PTE") form. Theymay claim that the "60-day clock" doesn't begin to run until the parenthas signedand returned the PTE. Our advice:Find out from theprincipal ifthe school will requirea "PTE" form and follow up to get the form,complete it, and return it. Keep it moving!

4. I'm dissatisfied with the school's evaluation of my child. Can I require the school to pay for an independent evaluation? Answer: It depends. If you disagree with the results of the school's evaluation of your child, you can request the school district to pay for an independent evaluation by a qualified examiner of your choice.34 CFR 300.502(b). An evaluation can cost up to $4,500 or so, although a more typical charge would be in the $2,000 to $3,000 range. But keep in mind that the federal law actually requires the school district to file for due process to prove that it's evaluation was appropriate, if it wishes to deny your request. 34 CFR 300.502(b)(2)(ii)). Depending on many factors, including the nature of the child's disability, we think obtaining an independent evaluation can be important.You need to have confidence that your child's evaluation is both accurate and complete. Keep in mind also that the IEP team is legally required to "consider" the findings of the independent evaluator, but is notrequired to adopt them. 34 CFR 300.502(c)(1).

5. What's the best way toget good results at the IEP meeting?The results you get for your child atschool depend on many factors, includingyour child's condition, your child's need for services,the personalities involved, the school district,budget considerations (which the school will notdiscuss with you), the school administrators'beliefs about special education, and many other factors.Some of these factors are beyond your control. But there is much you can do that is within your control, whichcan have a big effect on the results you get for your child.See our article on "Avoiding the Biggest IEP Mistakes Parents Make" inthe April issue for some usefultips that can make a big difference in the results you get at school.

6. What's the difference between a 504 Plan and an IEP? In three words: "specially designed instruction." Lots of children have a disability, butdon't require specially designedinstruction, and therefore don'tqualify for special education and an IEP. "Specially designedinstruction"involves changing the content, the method or how instruction is deliveredto address the unique needsthat result from a child's disability. 34 CFR 300.39(b). "Special education" is "specially designed instruction." 34 CFR 300.39(a)(1). You can't have an egg omelette without the eggs! A child with ADHD, for example, may need to sit closer to the teacher,extra time to complete tests or assignments, or other "accommodations" that can be specified in a "504 Plan," but if he doesn't require specially designed instruction, such as modifying his text book to help him learn, he likely will not qualify for an IEP and special education. Remember that two different federal laws come into play here. A"504 Plan"is authorized by"The "Rehabilitation Act of 1973," which prohibits discrimination against disabled people, including children,by federally funded organizations, includingschools; an IEP is authorized by "The Individuals with Disabilities Education Act of 2004," which requires states and school districts to meet certain federally-mandated standards in servingqualified special needschildren in return for receiving federalfunds for special education programs.

7. Can a district be required to send a student to a private school at public expense? Answer:Yes.A district can be ordered to reimburse a child's parents for the cost of a privateschool placement chosen by the parents if thedistrict failed to provide the child with afree appropriate public education and if the private schoolprovides the child with a "proper" education. FlorenceCounty Sch. Dist. Four v.Carter, 510 U.S. 7 (S.Ct. 1993). (Click here for case). Sometimes,a district voluntarily will agree to placea child in a private facility because it recognizes that it cannotmeet the child's needs in the public school. Other times, the district mayoppose theparent's request for a private placement. If aninformal agreement cannot be reached, the parent may need toplace therequest before a hearing officer by filing for "due process." Parents should be very careful before they removetheir child from public school andenroll him in a private school, if they are planning to seek reimbursement of tuition from the school district. There arestatutory "notice" and other requirements that must be met. Parents considering doing so should consult with an education attorney first.

8. What's a "NOREP" andam I required to sign it? The "NOREP" ("Notice of Recommended Educational Placement") is the written notice that theschoolis required to give you when it proposes to change your child'sIEP or refuses to make changes you request.In the "parental consent" section, you can either approve or disapprove the change or refusal to act by the district. (Go here for the NOREP form). You can request a due process hearing or mediation, or you can request another school meeting. Can you simply ignore the NOREP? Yes, but we don't recommend it. First,the district may make the changes it proposes unless you file for due process or mediation within ten days of receivingtheproposed NOREP. So you may lose important rights if you ignore it. Second,weencourage parents to be proactive. If you approve the changes specified in the NOREP, we recommend that you complete the form, sign and return it. If you don't approve the changes, we recommend that you take whatever action is necessary - don't simply ignore it.

9. What rights does my special education child have if he is suspended or expelled? That's a tough one! The rules under"IDEA 2004"governing school discipline are complicated and confusing. But here is somegeneral guidance. First, the law wantsto avoid punishing a child for his disability. Therefore, there are special disciplinary rules that apply to adisabled child with an IEP. Second, school officials can remove your child from the school immediately and for up to 45 days, regardlessof whether heis disabledand has an IEP, if he iscaught with a weapon or illegal drugs at school or a school function, or has"inflicted serious bodily injury"upon another person. 34 CFR 300.530(g). The purpose here is to protect thesafety of students and others at school. Third, if yourdisabled child has been suspended for more than ten days in a row, or if there isa pattern of similar suspensions adding up to more than ten days, this triggers the requirement for the school to hold a "manifestation determination review" ("MDR") meeting within ten school days of the suspension to determine whether the conduct in question was caused by the child's disability. 34 CFR 300.530(e). If the school determines that the conduct was caused by the student's disability, it cannot punish the student, and must do a "functional behavioral assessment" and develop a "behavioral intervention plan" to address the student's behavior issues. 34 CFR 300.530(f). If theschool determines thatthe student'sdisability did not cause theconduct, it can treat the student in the same way under thestudent code of conduct as a non-disabled student. Our advice: Check with an attorney regarding your rights before the "MDR" meeting.Similarly, ifthe school expresses anintention to expel your disabled child, don't wait until after the school boardratifies the decision to consult an attorney. All optionsshould be examined before that happens, including filing for due process to challenge the results of the "MDR" ruling. Once the school board has issued its ruling,it may be very difficult - and costly - to file an appeal in stateor federal court. Judges generally are not eager to substitute their judgmenton expulsion for the judgements of school administrators and school board members.

10. What's "ESY?""ESY" or "extended school year" services refer to special education and related services provided to a child with a disability in accordance with the child's IEP and at public expense. 34 CFR 300.106(b).There's a lot of confusion aroundESYservices. Let's start with what they aren't. They aren't intended to be simply a "summer camp"to provide recreational opportunities for studentswith IEPs. They aren't meant to serve as "summer daycare." They also aren'tintended to provide a traditional "summer school"for disabled children who areperforming below grade level in reading or math. So whatis the purpose ofESY? One main purpose is to provide programming to prevent a disabled child from falling so far behind during the summer break that she will takefar too long to get"back on track" in the fall. The regulation refers to that as "regression and recoupment." Every child loses some ground over extended breaks from school, but most"recover" within a reasonable time in the fall.For some disabled children, this is a particular problem, so they need continuous programming to prevent them from falling too far behind during the break. But"regression and recoupment" aren't the only criteria for ESY. Among the criteria that can be considered, for example, is "the extent to which successive interruptions in educational programming result in a student'swithdrawal from the learning process." (Basic Education Circular (Pa. Code), Extended School YearEligibility).Pennsylvania regulations set forth the seven criteria for ESY eligibility. 22 Pa. Code 14.132(a). If your child is in a "target" group, such as children with autism, serious emotional disturbance, or multiple handicaps, chances are greater that he will need and qualify for ESY services, but children with other types of disabilitiesmay qualify as well. The ESY "rules" are not especially straightforward. You may wish to read up on them in detail or, of course, consult an education attorney.

Questions? Comments?Contact us anytime.

FROM THE LEGAL DESK:INFORMATION YOU CAN USE IN THEPAEDUCATION REGULATIONS.

Isn't it wonderful how the Internet has made information so much more accessible?

Parents of special needs kids now canfindinformation on the law, for example, that they can use as they advocate for their child at school.Much of what used to bea "secret" or inaccessible toall but lawyersis now widely available on the Web.

But, of course, you have to know where to look. And, once you find what you're looking for, you need to be able to understand it and how it may apply to your situation.

Part of our missionis to help parents like you find information you can use.In most cases, you don't need to carry all of this information around in your head. You'd tip over! The key is to know where you can find it when you need it.

Finding What You Need in the Pa Education Regulations

Which brings us to thePennsylvaniaeducation regulations. Thespecial education regulations arefound here. 22 Pa. Codechapter 14. Thestate regulations governing "ProtectedHandicapped Students" (students with "Section 504 Plans" under the(federal) Rehabilitation Act of 1973)arefound here. 22 Pa. Code chapter 15. The state regulations governing "Special Education for Gifted Students" are found here. 22 Pa. Code chapter 16.

How can this information help you? First, you might be surprised by how easy it is to understand much of what is written there.You could skim thespecial education regulations at "Chapter 14" in about 30 minutes or so just to see what's there. It's sort of like reading a magazine. Look for the things of special interest to you. Then bookmark the regulations in your browser so you can easily return when you need to.

Second, we are sometimessurprised by the misinformationabout the law that's put out there by school folks and others. We don't mean this as general indictment of school administrators or teachers. Like every profession, some are just great and some are not so great. But parents make a big mistake, in our view,if they just assume that what a school administrator or team member tells them about the law is necessarily accurate. It may be accurate - and it may be completely wrong!

The "Bottom Line"

The state regulations provide another, important piece of the "legal puzzle." How long does the school have to complete the initial evaluation? Chapter 14 supplies the answer. Howmany days before theinitial IEP meeting is the parent entitled to receive a copy of the evaluation? The answer is here. What are the criteria for eligibility for "extended school year" services. Try here. What are the "least restrictive environment" requirements? Go here.

If you can read a cookbook, you can find answers to atleast some of the questions about education procedures and the law that will come up from time to time. Of course,there are other resources you can use to obtain information. The Consultline operated by theOffice of Dispute Resolutionis another possible source of information onspecial education services and the law. Wrightslaw (www.wrightslaw.com) is another.And there are lots of others.

Is it always simple to find the information you need? No, of course not. We'reeducation lawyers, and we can have trouble finding (and interpreting) what we need to find sometimes. Are all of the state or federal regulations easy to understand, especially to folks not trained in the law. No, absolutely not. Can regulations like the stateeducation regulations tell only part of the story, and thereby be misleading?Yes, and there are otherrelevant state regulations that we have notfeatured here. The law is big!

Our advice:Spend some time becomingfamiliar with the resources oneducational services and the law. Get an idea of where and how you can get the information you need without having to accept on faith everything you are told by the school folks. Be cautious in evaluating the information you find, knowing that there can always be "another important piece of information" out there that could affect your situation. And, if in doubt, don't hesitate to contact us with questions.

QUICK TIP:"BECs" -ANOTHER SOURCE OF USEFUL INFORMATION

Did you know that the Pennsylvania Department of Education has a website withinformation about regular education and special education?

There you will find "Basic Education Circulars" ("BECs"). These descriptions of many educational topics are prepared by thePennsylvania Department of Education. Topics ofparticular interest toparents of special needs kids include:

  • Cyber Charter Schools
  • Compulsory Attendance and Truancy Elimination Plan
  • Early Intervention Transition: Preschool Programs to School-Aged Programs
  • Special Education for Gifted Students
  • Placement Options for Special Education
  • Least Restrictive Environment (LRE) and Educational Placement for Students with IEPs
  • Extended School Years Eligibility
  • Special Education Services to Nonpublic School Students
  • Instruction Conducted in the Home

We think the BECsare best used to provide context and information, including information on the law, on each topic. So they can be very helpful. But a word of caution. Although the website states that "All BECs published on this website are in effect until revised or removed," some of them were posted years ago. The law is a little like the ocean:"high tide" can bring changes. The "tide" can bring changes in laws and regulations. It also can bring importantnew opinions issued by special education hearing officers and judges in state and federal courts. The tide rolls in and it rolls out.Be careful about using the BECs as your sole source of information, especially if they datefrom years ago.

Questions? Comments? Contact us anytime.

ELA Education Law Advocates PC - Special Education Lawyers

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West Chester, Pennsylvania 19382
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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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