dana a. jonson, msed, jd the law offices of dana a. jonson, llc 13 starr lane, bethel, ct 06801...
TRANSCRIPT
Dana A. Jonson, MSEd, JDThe Law Offices of Dana A. Jonson, LLC
13 Starr Lane, Bethel, CT 06801Phone: 203.797.8881 • Fax: 888.636.1361
Email: [email protected]
Knowledge is Power: How & Why to Advocate for Your Child with Special Needs
Knowledge is power!
Educate yourself and understand the legal rights of children with disabilities.
Why? Because you must become a successful advocate for
your child… to do so, you must not only understand your child's rights but what they mean!
Knowledge is power!
WARNINGDo not over- or under-estimate your own knowledge
Be media savvy when seeking knowledge!
• Brief history of the laws that govern special education
• 6 Principals of the IDEA• How to proceed• When to call in the cavalry• Random Practical Tips• Resources
Agenda…
BECAUSE UNDERSTANDING WHERE YOU CAME FROM IS CRUCIAL IN UNDERSTANDING WHERE YOU
ARE GOING!
Brief History of Special Education Laws
History of Special Education Laws
1975: Education of All Handicapped Children Act (EHA) Free Appropriate Public Education for
children 3 to 21 years old Due Process Rights Individual Education Program Least Restrictive Environment Assisting States and localities to provide
for the education of all children with disabilities through federal funding.
History of Special Education
1986: Amendments to the Education of All Handicapped Children Act (EHA) These amendments saw the need for early
intervention and mandated the development of a comprehensive system of early intervention for infants… Birth to Three!
History of Special Education
1990: EHA renamed to the Individuals with Disabilities Education Act (IDEA) Eligibility categories expanded to include
Autism and Traumatic Brain Injuries Defines assistive technology devices and
services
History of Special Education
IDEA was re-authorized in 1997 & 2004
IDEA should have been reauthorized in 2010…
We’ll see…
• Free appropriate public education (FAPE)
• Appropriate evaluation
• Individualized Education Program (IEP)
• Least restrictive environment (LRE)
• Parent involvement
• Procedural safeguards
Six Principles of IDEA
Free Appropriate Public Education
Free = At no cost to the parent
Appropriate = Services sufficient to enable the student to appropriately progress in education and advance toward achieving the IEP goals
Public = Provided by the public school district or under the direction of the public school district
Education = Preschool, elementary and secondary education, including extra-curricular & non-academic school activities as well as transition services
Appropriate Evaluation
Initial Evaluation
3 year re-evaluation
Individualized assessments
Non-discriminatory assessments
Includes a variety of tools and strategies, including information provided by the parent
School’s right to evaluate
Independent evaluation (IEE)
A Side Note About RTI…
Response To Intervention is
the practice of providing high-qualityinstruction/intervention matched to student needs
and using learning rate over time
and level of performance to
inform educational decisions
Another Side Note About RTI…
Response To Intervention :
Is only applicable if the suspected area of disability is SLD!
Is NOT meant to delay the proper identification of a child with a disability!
Individualized Education Program (IEP)
Primary Disability Category
Prior Written Notice (PWR)
Present Levels
Goals & Objectives
Accommodations/Modifications
Services
Placement!
Least Restrictive Environment (LRE)
LRE means that to the maximum extent appropriate, students with disabilities have the right to be educated in the general education environment & in the classroom they would have attended if they did not have disabilities
Least Restrictive Environment (LRE)
LRE means the student cannot be removed from the general education classroom solely because of needed curriculum modifications
LRE means that removal from the general education program occurs only if the nature or severity of the disability is such that education in general education classes with the use of supplementary aids and services cannot be satisfactorily achieved.
Parent and Student Participation
Parents have the right to participate in all special education planning and decision-making activities.
Parents are equal members of the PPT!
It is the obligation of the school district to make strong efforts, in multiple ways, to ensure parental and student participation.
Transition Planning: Students are the focus of special education and, as they grow older, students are expected to participate in planning for their own future as much as possible.
Specific Participation Rights:
School districts must make multiple efforts to facilitate parental attendance at Team meetings. If parents cannot attend, schools must seek parent input through other means.
Students at age 14 (or younger if appropriate) are entitled to participate in all Team meetings.
Students at age 18 are adults and assume all the rights formerly held by their parents for participation and decision making.
Procedural Safeguards
An educational program can be considered not appropriate if not developed according to the IDEA’s procedures…
Access to RecordsParticipationIEENotification RequirementsTimelines Stay Put
Procedural Safeguards
Stay Where?
Stay Put!Unless otherwise agreed to, student remains in the last agreed upon placement during dispute
Exceptions Dangerousness Final Hearing decision determines that a
change of placement is necessary
Procedural Safeguards
Due Process Hearings
Addresses issues of evaluation, identification, educational placement, and FAPE
2 year Statute of Limitations
45 day timeframe
Impartial Hearing Officer
Right to appeal to State or Federal Court
Procedural Safeguards
Resolution Sessions
If a DP Hearing is requested, a resolution meeting with the Parents and relevant PPT members must be held in 15 days
Resolution sessions can be waived if both parties agree
The BOE may not bring an attorney unless the Parent does
Procedural Safeguards
MediationVoluntary
Available prior to filing for Due Process
Confidentiality
Mediators appointed by the State
Procedural Safeguards
Mediation AgreementsExecuted as a legally binding agreement
Provide for the confidentiality of all discussions
Signed by parents and District Representative
Enforceable in State or Federal Court
Procedural Safeguards
State Complaint Process
Addresses issues of evaluation, identification, educational placement, and FAPE, PLUS implementation of DPH decisions
1 year Statute of Limitations
Consultant assigned by the State
DPH Decision trumps Complaint Process
60 day time frame
No right to appeal
State Complaint vs. Due Process Hearing
State Complaint Due Process Hearing
Who can file a complaint:
Any individual or organization can file a state complaint.
Only a parent or a school district may file a due process complaint or request for hearing.
Subject of the complaint:
The state complaint or problem resolution system considers violations of any state or federal education law.
The due process complaint considers the proposal or refusal to initiate or change the identification, evaluation or educational placement of a child with a disability, or the provision of FAPE to the child.
State Complaint vs. Due Process Hearing continued…
State Complaint
Due Process Hearing
Time period for filing a complaint:
State complaints must be filed within one (1) year of the violation of the education law.
Due process complaints must be filed within two (2) years of the violation of the special education law.
Determination of what happened
In a state complaint, an educational consultant who is part of the State Bureau of Special Education will investigate the allegations in the state complaint and determines whether there has been a violation of law.
The parties present their side to an impartial HO through documents and oral testimony at a hearing. Both parties have an opportunity to present & cross-examine witnesses, to have a record of the proceedings, and to enter & object to evidence. Parties can subpoena witnesses and testimony is under oath.
State Complaint vs. Due Process Hearing continued…
State Complaint
Due Process Hearing
Timetable for a decision:
The consultant will complete the review of the complaint and will issue a written final decision within 60 days of the date the Bureau received the complaint.
The due process hearing decision must be issued 45 days after the conclusion of the resolution process unless the hearing officer grants a request to postpone the hearing.
Review of the decision:
The state complaint cannot be appealed. The consultant who conducted the investigation may consider new or additional information that has a bearing on the outcome of the investigation.
The decision of the due process hearing officer may be appealed to State or Federal court.
Procedural Safeguards
Complaint to the US Dept of Ed
Office for Civil Rights
Addresses issues of discrimination based on race, color, national origin, sex, disability, or age
180 calendar days Statute of Limitations
OCR neutral fact finder (attorneys & investigators)
OCR will not investigate issues being address through another process (i.e. DPH)
OCR affords an opportunity to the complainant to submit a request for reconsideration or an appeal of OCR determinations that are not in the complainant’s favor within 60 days.
… AND OTHER RANDOM
PRACTICAL TIPS…
How to Proceed…
Is my child eligible for Special Education?
A student is eligible for special education if all three of the following are true:
The student has one or more disabilities.
The student ‘s disability(ies) have an adverse impact on their education.
The child requires specialized instruction.
How quickly can I get services?
Eligibility timelines
If eligible, development of IEP and determination of placement at that Team meeting.
Services upon parental consent.
TOTAL = 45 Working School Days
(different for the summer)
Document Everything!
Document,
document,
document!!
How to avoid conflict…
Understand and respect the individual roles that you play in the multi-disciplinary team whose responsibility it is to ensure that a child is receiving an appropriate program that is designed to enable him or her to make meaningful educational progress.
How to know if you have a conflict…
Trust your instincts!If your “gut” tells you that something is not working with your child, you are probably
right.
How to know if you have a conflict…
Not an all inclusive list, but somewhere to start:
Has your school denied (even if very politely and reasonably) a request you have made for evaluating, programming for, or collecting data on your child?
Do you not believe that your child is making the progress s/he should?
Have outside providers expressed concern?
How to handle conflict…
Not an all inclusive list, but somewhere to start:
Talk to your child’s teacher/case manager and make sure you are clear on what is going on.
Call a PPT and make sure all of your requests and concerns are documented.
Obtain outside evaluations and assessments of your child and present them to you PPT.
When to call in the cavalry?
What cavalry?
Attorney or Advocate
When to call in the cavalry?
I strongly recommend you consult with an attorney if…
Your school district has (or has threatened to) bring a Due Process Hearing against you
You are considering bringing Due Process against your district (note: BEFORE you file or sign anything is when you should call the lawyer’s office, not after!)
Your District has offered you a settlement agreement to sign You are considering placing your child privately You intend to seek reimbursement for ANY costs you are or
may be incurring The District’s attorney shows up at your IEP (or any other)
meeting Your advocate says you need an attorney
When to call in the cavalry?
Or if: Your child is graduating and you do not think they are
ready You, or your District, want to hold a Mediation You or your District believe your child requires an out of
district placement Your child with special needs is continually suspended
and/or up for expulsion (EVEN if you think it is unrelated to the disability)
You want an Independent Educational Evaluation Any time the administrator or staff start throwing legal
terms at you If you get papers to withdraw your child from the district There is a truancy issue
When to call in the cavalry?
These lists are not all inclusive, but rather some of the more common issues I see in my
practice.
Unfortunately, when Parents call me AFTER these situations have occurred, it is
significantly more difficult (and thus more expensive for the parents) for me to salvage
the situation as sometimes rights have already been lost.
Random Practical Tips
Collaboration & Communications that are …
Respectful
Open-minded and
Regular
… is the key to a successful working relationship!
Random Practical Tips
Many educators have been working effectively with children with disabilities for many years and do not understand why their “time-honored” approaches do not work with your child.
The people who are actually working with your child are rarely the same people who decide how the resources of your school district should be allocated. Try to keep this in mind when communicating with your child’s teacher.
Random Practical Tips
It is important to “pick your battles.” If you are going to engage in a conflict with your district and/or the staff working with your child, ask yourself if this particular issue is worth the risk.
e.g. Is that extra half an hour per week of physical therapy as important as getting much needed discrete trial time?
Or even as important as maintaining a productive and respectful working relationship?
Random Practical Tips
Research any person or program that may be working with or evaluating your child before you agree to it. Go on-line or to your local library and talk to other parents of children with similar disabilities. Get several sources of information before you make key decisions.
Just as you will have to become an expert on your child’s disability, you should try to become as familiar as possible with your child’s legal rights as well.
A quick not about Attorney’s Fees…
Court may award attorneys fees and costs to parents who prevail in the administrative hearing or judicial proceeding
SEA/LEA that prevails may seek attorney’s fees from the parents or the parents’ attorney if :
the Court finds that the complaint is frivolous, unreasonable, without foundation or prolonged litigation
the Court finds that complaint was filed to harass, cause unnecessary delay or increase the costs of litigation
As a General Rule:
It is best for parents to understand that educators know far more about
education than parents…
And for educators to appreciate that parents know far more about
their own child than educators.
Resources:
Council of Parent Attorneys and Advocates, http://www.copaa.org/index.html
WrightsLaw, http://www.wrightslaw.com/
US Dept of Education, Office for Civil Rights, http://www2.ed.gov/about/offices/list/ocr/index.html
CT State Dept of Education, Special Education, http://www.state.ct.us/sde/deps/