Basics of Education Advocacy 1 Special Education Law

Basics of Education Advocacy 1: Special Education Law Pro Bono Project February 9, 2017 1

Agenda • • • About LAF’s work Overview of Special Education Law IEP: Eligibility Process IEP: Breaking it Down Questions 2

Presenters Ashley Fretthold LAF Supervisory Attorney Steven Pick LAF Senior Attorney Facilitator: Calli Burnett, LAF VISTA Attorney 3

About LAF is the largest provider of free civil legal services in Cook County Immigrant & Workers’ Rights Children & Families Public Benefits Consumer Education Law • DCFS Education Project • Pro Bono Education Project • Unmet Mental Health Needs Project • Options/Alternative Schools Project Cases include: Housing • • • Special Education Discipline Residency Homeless Students’ Rights School Records Requests Bullying/Safety Issues 3

LAF’s Education Law Team Calli Burnett, VISTA Attorney Education Law Pro Bono Project Kate Shank Director, Volunteer Support Unit (Heads All Pro Bono Projects) Rich Cozzola Director, Children & Families Practice Group Caroline Shurig, EJW Fellow Unmet Mental Health Needs Ashley Fretthold Supervisory Attorney, Education Law Jamie Schulte, Skadden Fellow Options/Alt. Schools Project Zoe Lang, Paralegal Education Law Kate Gladson, Staff Attorney DCFS Ward Project Steve Pick, Senior Attorney DCFS Ward Project 5

Working with LAF The Education Law Pro Bono Project now operates as a monthly clinic where Pro Bono Panel attorneys conduct intake, give legal advice, and provide brief services when applicable to clients with education law issues. • Pro Bono Panel members will volunteer at two or more clinics/year • At each clinic attorneys will: conduct intake appointments give legal advice review documents identify brief services needed • Following each clinic attorneys (one their own time) will complete any brief services the case requires • In the rare circumstance extended representation is required in a case, the pro bono attorney can elect to provide long-term representation as either the lead counsel or co-counsel with LAF When accepting extended representation in a case, pro bono attorneys must: 1. Maintain a client file; 2. Consult and update LAF re. case developments, dates, and decisions; 3. Log their pro bono hours on LAF’s website; and 4. See the case to resolution to the best of their ability. 6

Overview of Special Education Law 7

Vocabulary and Acronyms • Individuals with Disabilities Education Act (IDEA) • Case Study Evaluation (CSE) • Eligibility Categories: • • Developmental Delay (DD) Emotional Disturbance (ED) Learning Disability (LD) Specific Learning Disability (SLD) Individualized education program (IEP) 504 Plan Free appropriate public education (FAPE) Least restrictive environment (LRE) *See the Pro Bono Manual for a more complete list of terminology and acronyms used in Special Ed Law 8

Family Education Rights & Privacy Act (FERPA) • Applies to ALL students (not just Special Ed) • Right to inspect and review “any and all” records the school district maintains within 45 calendar days • Right to request correction of records • Right to consent to disclosure of personally identifiable information contained in the education records (See 20 U. S. C. § 1232 g; 34 C. F. R. § 99) 9

Section 504 of the Rehabilitation Act • Federal Anti-Discrimination Law • Applies to all persons with a disability that impairs one or more major life activities • Prohibits discrimination by any program receiving federal money • A 504 Plan is an annually-reviewed education plan that implements accommodations and modifications in order to remove barriers (See 29 U. S. C. § 794; 34 C. F. R. § 104) 10

Individuals with Disabilities Education Act (IDEA) • Applies to children with disabilities, birth to age 21, who need specialized services in order to benefit from education • An Individualized Education Program (IEP) is an annually-reviewed education plan that: • Is individualized to meet the child’s unique needs • Outlines annual goals, specialized services and supports (See 20 U. S. C. § 1400; 34 C. F. R. § 300) 11

Six Principles of IDEA 1. 2. 3. 4. 5. 6. Free Appropriate Public Education Appropriate Assessments Individualized Education Program Least Restrictive Environment Parental Participation Procedural Safeguards 12

504 v. IEP Eligibility ALL KIDS 504 -ELIGIBLE IEPELIGIBLE 504 -eligible children do not need specialized services to benefit from education, but they do need accommodations and modifications for equal access to the classroom IEP-eligible children need specialized services in order to benefit from education, and may also need accommodations and modifications for equal access to the classroom 13

Illinois Education Law • Illinois School Code: 105 ILCS § 5/14 -1 • Controls certain elements like timelines and the determination of specific learning disability eligibility • Illinois Administrative Code: 23 ILAC § 226. 1 • Implements IDEA in Illinois • Illinois School Student Records Act (ISSRA): 105 ILCS § 10/1 • Includes a more expansive definition of school records than FERPA • Mandates that copies of school records be provided to the parent or representative within 15 school days of request 14

Individualized Education Program: Eligibility Process 15

IEP Eligibility Process 1. Request or Referral for Case Study Evaluation (CSE) 2. Domain Meeting to Determine Evaluations 3. Conduct Assessments 4. Eligibility Conference to Discuss Evaluations 5. Draft IEP 6. Implement IEP 16

Multidisciplinary Team Required to Attend: • Parent/Guardian, Foster Parent, May Attend with Parent’s Consent: • • Surrogate Parent Student (if 14. 5 years or older) School District Representative/Case Manager Special Education Teacher General Education Teacher Evaluation Representative (school and/or outside) Related District Service Providers* • School nurse • Occupational Therapist • Physical Therapist • Social worker • Psychologist • • • Interpreter/Translator (school must provide if needed) Student (if under 14. 5 years old) Outside support providers • Attorney • Therapist • Doctor • Caseworker • Guardian ad Litem Transition Specialist (only if student is 14. 5 years or older) Related District Service Providers *At eligibility conferences, evaluation reviews, and annual reviews if the child is receiving direct services. 17

Child Find: Location, Identification, & Referral • School districts must actively: • • locate identify refer for evaluation evaluate all children with disabilities, ages 3 to 21, located within district boundaries who may need special education and related services • Failure to do so is a procedural violation (See 20 U. S. C. 1412(a)(3); 34 C. F. R. ; 300. 111; 23 ILAC 226. 100) 18

Child Find: What to Look For 1. Missed developmental milestones or behind same-aged peers 2. Difficulty concentrating or understanding what is being taught 3. Multiple or frequent behavioral issues 4. Diagnoses of Attention Deficit Disorder (ADD), Attention Deficit Hyperactivity Disorder (ADHD), Bi-Polar Disorder, Depression, Learning Disability, and or Post-Traumatic Stress Disorder (PTSD) 5. Significant medical needs requiring nursing services at school 6. Poor grades and/or low standardized test scores 19

Requesting a Case Study Evaluation • A Case Study Evaluation (CSE) request must be made in writing • Highlight areas of need including: • • Cognitive Academic Social/Emotional Communication Physical Self-Help Skills Attention/Focus Behavior • Gather supporting documentation such as: • Medical reports including diagnoses and recommendations • Previous School/Daycare Reports • Therapy reports 20

Requesting a Case Study Evaluation • After receiving a CSE request, the school district has 14 school days to either: 1. Determine that a CSE is warranted, meet with the team (including the parent) to identify necessary assessments, and obtain parental consent to evaluate OR 2. Determine that a CSE is not warranted and notify the parent in writing of its decision not to evaluate and the reasons behind that decision 21

Domain Meeting Purpose: 1. Determine areas of suspected disability or needs requiring evaluation; and 2. Identify the assessments that the IEP team will complete Domains: • Hearing • Vision • Cognitive • Academic Performance • • Social/Emotional Communication Functional Motor Abilities ADVOCACY TIP: If your client has a specific concern ask in advance that the service provider attend the meeting 22

Domain Meeting Review of Existing Data Additional Data Needed Additional Data to Be Collected • Review can occur outside of the meeting • Types of data include observations, evaluations, assessments, and parental input • Decision is based on review and parental input • Includes any data needed to determine disability, present levels of functioning (academic and developmental); and special education and related services • Team should list what will be completed as part of their evaluation and tasks should be specific and include a review of records, in-school observations, a review of student’s standardized assessments, etc. 23

Assessment Timeline 1. Evaluations must be completed within 60 school days of obtaining the parent’s consent • If parent consents when there are less than 60 school days left in the school year, then the school must complete the evaluations prior to the start of the new school year 2. Written consent from the parent/guardian triggers the timeline and creates affirmative obligation to complete assessments • • If child transfers, the new school district is now obligated to complete the evaluations However, the 60 -day timeline is no longer in effect, the new district is only bound to complete the assessments “within a reasonable amount of time” 24

Parents’ Rights During Assessment Parents have the right to request: 1. An evaluation 2. Appropriate Evaluations: • Comprehensively assess in all areas of suspected disability. • Use a variety of assessment tools and strategies to determine: • Eligibility under IDEA; and • IEP contents (i. e. , needs, goals, accommodations, services, placement, etc. ) (See 34 C. F. R. 300. 304 -305) 3. An Individual Education Evaluation (IEE) at the district’s expense 4. The team consider outside evaluations 5. To review evaluations before eligibility and IEP meetings 6. Evaluations every three years or when student is exited 25

Independent Education Evaluation (IEE) • If a parent disagrees with the evaluations conducted by the district, or if the district fails to evaluate an area of need, the parent has right to request an IEE at district expense • Parent must make a written request for the IEE to the district’s superintendent • District has five days to: 1. Agree to IEE; OR 2. Request a due process hearing to argue the district’s assessments are appropriate • The parent does not have a right to an IEE at public expense if: 1. The district has not yet conducted its own CSE OR 2. The CSE is more than a year old 26

IDEA Eligibility To be found eligible under IDEA: 1. The student must meet criteria for at least one of the 13 disability categories; AND 2. The student’s disability must adversely affect educational performance; AND 3. The student must need “special education and related services” because of his/her disability 27

IDEA Eligibility Categories Developmental Delay Cognitive Impairment (Intellectual Disability) Deaf-Blindness Hearing Impairment Multiple Disabilities Other Health Impairment (OHI) Specific Learning Disabilities (ADHD) (SLD or LD) Speech or Language Impairment Traumatic Brain Injury Visual Impairment Autism (IL, 3 to 9 years old) Deafness Orthopedic Impairment Emotional Disturbance (ED) (Anxiety, Depression, PTSD, Bi-Polar Disorder) (TBI) (See 34 C. F. R. Sec. 300. 8) 28

IDEA Eligibility • Disability category ≠ Diagnosis • Category does not determine IEP services, services are determined by individual needs • Primary, secondary, tertiary • Eligibility hinges on the finding that the disability “adversely affects a child’s educational performance” • Educational performance is more than just academic performance, i. e. grades and standardized tests (See Letter to Clarke (OSEP Letter)) • Courts have found that a child’s educational needs include their academic, social, health, emotional, communicative, physical, and vocational needs. 1996)) (See Seattle SD. v. B. S. , 82 F. 3 d 1493 (9 th Cir. 29

Individualized Education Program: Breaking it Down 30

Individualized Education Program (IEP) • An IEP is a written legal document that plans out the child’s education for one year • An IEP must include: • Eligibility area(s) • Child’s present level of performance (strengths, weaknesses, academic and functional needs) • Accommodations and modifications • Measurable annual goals & benchmarks • Services (academic, speech, transportation, etc…) • An IEP must be reasonably calculated to provide the opportunity for the child to receive meaningful educational benefit 31

Case Study #1 Alex (5) attends Kindergarten at a public school. Alex did not start talking until he was four years old and has a vocabulary of only fifteen words. He was recently diagnosed with Autism Spectrum Disorder. Alex’s mom, Andrea, told the school principal about Alex’s diagnosis and asked for an IEP. The principal responded that he did not think that Alex had Autism and that in his opinion Alex is just a “late bloomer” and does not need special education services. Because the school refused to provide Alex with any services, Andrea has enrolled Alex in a private speech therapy for two hours a week. Andrea has come to LAF because she would like for Alex to receive speech therapy in school. Additionally, she would like help making a second request for an IEP for Alex. What steps should be taken to advocate for Andrea? 32

IEP: Breaking it Down Student Needs Present Levels of Performance (PLOP) Measurable Annual Goals Services Placement 33

IEP: Present Levels of Performance (PLOP) • Present Levels of Performance should explain how the child’s disability affects the child’s involvement and progress in general education curriculum • PLOP includes academic and functional performance • PLOP Should: • Address all of child’s needs • Be based on data: progress monitoring, CSE results, classroom-based assessments, standardized tests, etc. • Be specific: PLOP sets the baseline for every goal, so the language needs to be details and specific to that child’s ability. -Not specific: “Marla struggles with reading” -Specific: “Marla can read a 4 th grade text at 60 words per minute and with expression in 45% of settings. ” 34

IEP: Accommodations and Modifications • An accommodation is a change in timing, scheduling, formatting, response, setting, and/or presentation, which allows a student to complete the same assignment or test as other students. • A modification is an adjustment to an assignment or test which changes the standard on which it is graded or changes what the assignment or test is measuring. • Accommodations and modifications should be included in the student’s IEP and be designed to fit the student’s individual needs. • If possible the student should be included in the discussion of what would be helpful in completing assignments and tests. 35

IEP: Measurable Annual Goals • Measureable Annual Goals are designed to: Meet child’s individualized needs so that the child can be involved and progress in a general education curriculum; AND • Meet the child’s individualized education needs related to child’s disability and specific needs • • Individualization is key: • Goals drive services, so the language used should address the child’s specific needs and deficits • Utilize the PLOP, past assessments, and other data to help craft specific, measurable goals • Avoid goals that are copy-pasted or just re-word Common Core standards • Be sure to write a goal to address each of the student’s educational needs 36

IEP: Measurable Annual Goals S M A R T Specific Measurable Action Words Realistic/ Relevant Time-Limited Tailored to the child’s unique skills, abilities, and needs and overall progress What will child be able to do after one year? What will child be able to do each quarter on way to year mark? Clear description of the actual skill student is working on Progress is objective and calculable (i. e. how we will know the goal has been met) “Student will be able to… <Insert action>” 37

IEP: Services • Special education and related services help the child: • • Make progress toward annual goals; Be involved and make progress in the general education curriculum; Participate in extracurricular and nonacademic activities; Access opportunities to interact with all children • Carefully review the Services Page to be sure the IEP includes the following for each service being provided: • • Frequency (weekly, monthly) Location (push-in, pull-out) Duration (minutes per week) Setting (individual, small group, or large group) 38

IEP: Types of Services • Related Services are those services usually provided outside of regular learning time and focus on developing a specific skill or addressing a specific deficit, such as: • • Speech and language therapy Occupational therapy Physical therapy Social work • Transportation for the student to and from school may be provided and paid for by the school district in situations in which the student’s needs require it. *Note that even if a child qualifies for transportation services, a parent can refuse the service. 39

IEP: Types of Services • A paraprofessional or aid may be available throughout the school day to support, monitor, re-iterate instruction, and/or provide accommodations to a student: • • • Dedicated aid– serves only that student during scheduled times Shared aid - usually serving multiple students within the same space during scheduled times Aids may be leveraged effectively to support students during transitions, bathroom breaks, and specials classes, such as gym/art • Extended School Year (ESY) is essentially summer school. Must be provided if student needs extended services in order to receive FAPE. In CPS a student with a disability will only qualify for ESY if documentation shows the student may regress without ESY or the student’s skills are in a critical stage of development. *Note even if a child qualifies for ESY, a parent can refuse the service. • ADVOCACY TIP: CPS will not consider ESY until after January 15, so if your client has an IEP meeting in the Fall reserve the issue of ESY and request a spring meeting. 40

IEP: Placement • Educational Placement refers to the set of services the child will receive, not a specific location • Least Restrictive Environment (LRE) refers to the kind of classroom or school where the child receives their special education services • Appropriate placement is one in which student has reasonable expectation of progress • Placement must be in the LRE that will still allow the child to make progress 41

IEP: Placement • General Education Presumption: Students should not be removed from a general education placement unless the child cannot receive a Free and Public Education (FAPE) even with services and supplementary aids • IEP Team should consider continuum of placements • Stay-Put: If a child’s placement is changed, the parent has 10 days to file a due process complaint, which will freeze the child’s placement until the complaint has been resolved 42

IEP: Facts and Stats • Every year a student’s IEP should be reviewed • Every three years a student needs to be reevaluated and there needs to be a new finding of eligibility for IEP services • An IEP never expires, even if it is not reviewed/updated as required • Whether the child moves schools, moves districts, or even moves states the IEP goes with the child • Parents have the right to request an IEP meeting at any time 43

Case Study #2 Jonathan is a 17 year-old who just started enrolled at a charter high school for his junior year. Jonathan has a learning disability in Reading and his IEP from his old school provides for special education services in the general education classroom for English. At his old school, Jonathan had a special education teacher who came into his English class to work with him, however at his new school Jonathan is no longer receiving push-in services from a special education teacher. Jonathan now has an F in English. Jonathan’s mom, Johanna, has called the school three times to ask for an IEP meeting but the school keeps refusing her requests “because the IEP is not due for an annual review until the next semester. ” Johanna has come to LAF to ask for help in getting the school to implement Jonathan’s IEP as it is written so that he’ll start getting the help he needs in order to pass his classes. What steps should be taken to advocate for Johanna? 44

Questions 45

Resources Illinois State Board of Education www. ISBE. net Wright’s Law www. wrightslaw. org OSEP www. osepideasthatwork. org PACER www. pacer. org Parent Center Hub (hosts all NICHCY data) www. parentcenterhub. org Department of Ed www. idea. ed. gov 46

LAF Ed Law Pro Bono Project: cburnett@lafchicago. org 312 -229 -6335 LAF’s Main Intake Info: www. lafchicago. org 312. 341. 1070 Join us for Part II! Basics of Ed Advocacy 2: Special Education Conflict Resolution Thursday, February 16, 2017 at Noon 47