Service dogs in schools–a decision for the parent

My law practice consists of estate planning, probate, business, nonprofit, real estate and other transactional-type of areas.  However, an unadvertised part of my practice involves service dogs in schools.  This area of practice came about by experience (my knowledge of the Americans with Disabilities Act [ADA]) and happenstance (jumping into the service-dog fray due to representing someone pro bono after their egregious situation made its way into the news).

Children with disabilities have service dogs (SD) for a variety of reasons.  Service dogs aren’t just comforting pets that accompany a child to make him or her feel better.  In situations where I’ve been involved, the SD has been trained to detect seizures before they happen and alert adults, detect low blood sugar in children with diabetes, prevent elopement (wandering) of children typically with autism, calm “meltdowns” that are uncontrollable, and trained in search and rescue when children do wander away without being noticed.  This training usually costs five figures or more and is time-intensive.  Some of these situations, especially “wandering,” might seem strange to parents who don’t have children on the autism spectrum, or other special needs.  Elopement-wandering, for example, is when children–again, typically who are autistic–escape notice and wander off (elopement happens often in nursing home residents as well).  This can happen in a split second and, in fact, elopement is a leading cause of death in children with autism.  Death from elopement is caused mostly by drowning, then by being struck by a vehicle.

Parents obtain service dogs for a variety of reasons also, but for most, having a service dog with their child is a matter of life and death.  One mom had an elementary-age daughter, nonverbal, autistic, who kept escaping her classroom, then escaped the school building.  The Special Education Director assured Mom that the school could keep her child safe.  The very next week, this nonverbal 6 year-old escaped the school building, wandered a mile down the road, crossed four lanes of traffic and entered a 7-11 store to the shock of the employees inside, and the school didn’t notice her missing for over an hour.  This was life and death for this child, and Mom got a service dog.  In a class of 20 students, a teacher already has his or her hands full, which is why the parents got a service dog for their child with Type 1 diabetes, so that blood sugar issues didn’t go unnoticed and possibly become fatal.

For years, schools would bring the SD issue under determination of special education procedures, i.e., an IEP, under special education federal law, the Individuals with Disabilities Education Act (IDEA).  Typically, the school would deny the SD as not necessary to the child’s education.  Fortunately the U.S. Supreme Court weighed in, and recognized what some courts held, that a service dog is a civil right to the child and not a matter under purview of anyone, including schools.  Governing federal law–the Americans with Disabilities Act and the Rehabilitation Act of 1973–permit service dogs to accompany their person anywhere, with very rare exceptions.  Service dogs are working animals, not pets, and are actually considered durable medical equipment, no different than a wheelchair.  They are protected in public places by federal law, as opposed to emotional assistance animals (most remember the peacock on the plane).

Children with disabilities can be accompanied by their service dogs to school.  Period.  This is not a decision left to the school.  A service dog is a right of the child independent of their receipt of a Free and Appropriate Public Education (FAPE).  Whether the SD is medically necessary is not up to the school.  Obtaining a prescription from the parent for the SD, requiring insurance coverage, or requiring vaccinations beyond what is required of any dog are not permitted.  Rejecting the SD’s presence due to another’s allergies, or because of the dog’s breed, are also prohibited.  These are all reasons that were given to my clients by schools in service dog cases.  Parents ask permission from the school to permit the dog to accompany their child, but frankly this is not required.  It is certainly good practice to alert the school and work with the school to accommodate your child with the service dog.  My favorite court ruling mentioned the defendant-school stating that “we[staff] can help Johnny when he needs it, he doesn’t need the service dog” (Johnny isn’t his real name), to which the court responded that this was akin to saying about a student in a wheelchair, “we’ll carry him where he needs to go–he doesn’t need his wheelchair.”

The school has to provide reasonable accommodations and reasonable modifications to policies when a request for a reasonable accommodation is made by a student with a disability.  The Department of Justice (enforces the ADA) makes it clear that public schools are to make reasonable accommodations for service dog requests.  Schools perhaps justifiably analyzed service dog requests under the law that governs their daily work lives, the IDEA.  Fortunately, the Supreme Court realized that other federal laws govern students as well.

If you have any questions regarding service dogs, whether it’s school-related, or service dogs in public places or elsewhere, please contact me at julie@juliemilslaw.com, or (614) 519-8661.

 

“Develop IEP Goals.” Where do I start?

Parents and some (typically newer) teachers who are told to develop IEP goals for their child or student find out quickly how difficult it can be.  According to special education attorney Peter Wright, parents and teachers frequently ask him how to write IEP goals and objectives.  What is so difficult about placing goals in an IEP?

The IEP—Individualized Education Plan—is governed by the Individuals with Disabilities in Education Act (IDEA), a federal law that governs special education.  Too often, people start thinking immediately of goals that might sound great but are not specifically tailored to the child.  So “read and comprehend well” from a parent, or “read at xyz level” from a teacher, look like laudable goals, but are they appropriate?  How do you know what is appropriate when developing goals?

First Step.  Before anyone starts developing goals for a child, the IDEA requires that the IEP team know the child’s “present levels of academic achievement and functional performance.”  (See IDEA Sect. 1414(d)(1)(A)(i)(I).)  Often referred to as “present levels,” these indicators will dictate where the IEP team goes from this present situation.  How can anyone formulate goals for someone when the present situation is unknown?  A goal of “losing a maximum of 20 pounds” might seem beneficial, unless you are clinically morbidly obese where a maximum of 20 pounds might have little effect on health.  Or consider a six-foot tall man who presently weighs 100 pounds and would have detrimental effects from being so underweight at 80 pounds.  Now that goal is not so clear, and definitely not appropriate.

Second step.  Once you know where the child is academically and functionally, you can then develop goals that get the child to where he or she needs to be.  Language in the IEP needs to be clear, goals need to be measurable.  For example, “Can add” is a vague phrase that conveys little, whereas  “Writes answers to double-digit addition problems” is specific.  Then, the analysis becomes how this present level performance measures against where the child should be academically.

Goals needs to be clear and measurable.  To be measurable means that you can count or observe it.  Often parents think it is only teachers who can measure goals, but this task is not limited to teachers.  If there is dissent or confusion about whether goals were reached, consider evaluation by an objective party.

In summary, when developing an IEP start at the present levels of the child and develop measurable goals.  The IEP process can be daunting, but starting from a point of present levels of academic achievement and functional performance will guide you to what is needed for that particular child.

Contact me at julie@juliemillslaw.com to review your child’s IEP or discuss setting goals.

School shootings: helping students with disabilities prepare

The title of this post is so disheartening.  The school shooting in Florida has schools assessing their security plans and emergency drills, which has become as necessary today as huddling in the hallway for tornado drills was when I was in school.  Schools are required by federal law to have emergency plans for students and staff with disabilities.  The best way to ensure that your school has an emergency plan for your child is to advocate for it.

My elementary-age child’s classroom practiced “The Sheep, The Shepherd and The Wolf” emergency drill.  The sheep are the young students, the shepherd is the teacher guiding them, and the wolf–the wolf is an active shooter who the teacher instructs the sheep to “stay out of the wolf’s way!”  This method of preparing for an active shooter is used to instruct young children in a non-threatening way.  Elementary children obviously cannot handle information about an active shooter drill that might be given to high school students.

As schools tailor emergency plans for students according to their development stage, the same tailored plans must occur with students with disabilities.  How will pulled fire alarms, shouting, shooting and other paralyzing noises affect a child with autism?  Or a child who cannot hear or see?  Would a child with developmental delays understand emergency instructions?  Plans for the most vulnerable should be tailored to individual needs, and practiced often.

This article in the Washington Post, “How can we prepare our kids with special needs for a school crisis” provides clear advice on ensuring that your child is included appropriately in emergency plans.  Among much advice, the article suggests:

  • Ask your school district about how they include students with disabilities in emergency plans (required by federal mandate).  Here is a sample plan.  In Ohio, school emergency management plans are not public record but discussions can and should happen.
  • Talk with the administrators in your child’s building about your child and their plan for your child, specifically.  If your child uses a wheelchair, are there steps to get outside at the door nearest your child’s room, and how will your child get outside?
  • Include instructions in your child’s IEP or 504 plan detailing what help your child will need in an emergency.  Make sure your child’s teachers are aware of what help your child will need.  This “Teacher’s Emergency Plan Procedural Checklist” should be provided to your child’s teachers.

Schools are required to have emergency plans for students with disabilities, but the best way to help protect your child with special needs is to make sure there is a plan in place that is tailored to your child’s needs, and known by teachers and administrators.

Contact me at julie@juliemillslaw.com with any questions.

“Teachers want copies of my child’s IEP–what about confidentiality?”

A parent was concerned that several of her child’s teachers wanted copies of the child’s IEP.  She felt that confidentiality regarding her child, his disability, and his education plans would be jeopardized.  “Are teachers entitled to copies?”

Yes.  And, common sense dictates this even if the law did not, as long as everyone understands their legal obligations.  The law states that teachers, related service providers, and others responsible for implementing the IEP should have easy access to it.  How else are they to know what needs implemented if they do not know what is needed?  I suggest giving copies of your child’s IEP to the teachers and service providers.

“But what about confidentiality?”

The school is responsible for instructing all staff who have access to IEPs regarding their legal obligation to maintain confidentiality of student records, and student information.  Personally-identifiable student information cannot be disclosed to anyone without obtaining parental consent.

Student records privacy is covered by FERPA: Family Educational Rights and Privacy Act.  It provides an array of protections for maintaining confidentiality of student records and information.  Most relevant to parents, in my opinion, is what I mentioned above, i.e., personally-identifiable information.  This information must be kept confidential and includes, but is not limited to:

  1. The student’s name
  2. The name of the student’s parent or other family member
  3. The address of the student or student’s family
  4. A personal identifier, such as the student’s social security number or student number
  5. A list of personal characteristics that would make the student’s identity easily traceable; or
  6. Other information that would make the student’s identity easily traceable.

Schools, under FERPA, can release certain directory information to others without violating FERPA.  “Directory information” generally includes information that, if released, is not considered harmful or an invasion of privacy.  The U.S. Department of Education has listed directory information to include:

  1. Name
  2. Address
  3. Telephone listing
  4. Date and place of birth
  5. Participation in officially recognized activities and sports; and
  6. Dates of attendance

What differentiates two seemingly-similar lists is the use of the information.  Directory information is what you see in yearbooks, school directories, and other publications where there is generally no harm or invasion of privacy if released.

If you have questions have your child’s IEP, confidentiality, or FERPA, contact me at julie@juliemillslaw.com.

Special Education: Should I file a state complaint?

Eligible students with disabilities are entitled to special education and related services under the federal Individuals with Disabilities Education Act (IDEA).  If you believe your child is not receiving the special education and related services he or she is entitled to under federal law, one option available to you is to file a state complaint.  In my state of Ohio, the complaint would be filed with the Ohio Department of Education.  But…should you choose this option?

Filing a state complaint for a school’s violation of your child’s rights under the IDEA is an opportunity to resolve an issue without resorting to a formal due process hearing, or federal court complaint.  The school can be required to remedy the situation in various ways, such as paying for evaluations, reimbursing various costs, etc.

However, examine the rights you might be forfeiting by filing a state complaint.  Pat Howey, a parent advocate since 1986, cautions parents against filing a complaint with the state.  She states that if the claim was about a service, states will rarely require schools to provide that service.  Instead, the state will order that the school and parents have an IEP meeting to make further determinations.  Parents sometimes applaud “winning another IEP meeting” but Howey reminds parents that they have the right to convene IEP meetings at almost any time anyway, and have not really gained anything.

More importantly, in my opinion, is the effect a state complaint might have on a subsequent due process hearing.  (Click here for an explanation of the difference between a state complaint and a due process hearing.)  If parents file a state complaint on a matter, and do not receive the desired outcome, it is unlikely a hearing officer in a due process hearing will disagree with the findings from the state complaint. It is more likely the hearing officer with defer to the agency’s findings.

If you believe that a due process hearing might become your best option, engage in thorough research before filing a state complaint.  Better yet, consult with a parent advocate or special education attorney.

Contact me at julie@juliemillslaw.com for questions about special education state complaints and due process hearings, and for referrals to Ohio parent advocates and special education attorneys.

Students with Disabilities: Sect. 504 Plans Can Be Critical

A student who has an Individualized Education Plan (IEP) is a student who has a disability that is impeding the student’s ability to learn.  Not every disability impedes the ability to learn, however.  Examples might include having diabetes, cancer, epilepsy, using a wheelchair or crutches.  If your child has a disability that does not impede her ability to learn (meaning no IEP), what law protects her if she needs an accommodation?  Section 504 of the Rehabilitation Act of 1973.  It is more relevant than ever.

I’ve heard Sect. 504 plans called IDEA-lite (IDEA is federal law controlling IEPs) because it gave “something” to students with disabilities who don’t qualify for IEPs.  A student with a disability, but where his or her ability to learn was not affected, would often get a health or nursing plan.  For example, a child with diabetes would receive shots at certain times.  These plans, unlike IEPs, lacked enforceability.  Parents had to rely on the good will of the school to see that accommodations or services were provided in such a health or nursing plan.

That changed with new ADA regulations (affecting Section 504) and clarification from Congress that students with disabilities are entitled to evaluation to determine if a Sect. 504 plan is necessary.  In fact, the Office for Civil Rights held that a school placing a child on a “health plan” violated the law by not evaluating for a Sect. 504 plan, in violation of the district’s child-find mandate.

Why does it matter that the school must evaluate for a Sect. 504 plan, even if it puts the child on the country’s best individualized health plan?  Accountability.  Procedure.  Remedies.  The best individualized health plan is only beneficial if it is fulfilled, if procedures are adhered to.  If this very-best-health-plan isn’t followed, then there is no enforcement mechanism.  There is no federal (or possibly state) law to turn to for holding the school accountable.  To the contrary, if a Sect. 504 plan is not followed, the school can be held accountable under federal law, and remedies can be sought under federal law.  We want to believe that our child’s school will do what it agrees to do, but we also want a law to invoke if the school doesn’t.

Contact me at julie@juliemillslaw.com with any Sect. 504 or special education questions.

A great IEP article applicable to life

I like this article by Lisa Lightner titled “6 ways to get your IEP school year off to a great start!” because it can translate to other life situations, including legal matters.  Replace “IEP” (Individualized Education Program, a document developed for a school child needing special education) with dispute with a neighbor, or complaint with a company over a product or service to see that it has applications to many situations.  It focuses on mindset, boundaries, rational approach, documentation, and outcome.  Have a positive mindset–give people a reason to want to help you, not do everything they can to avoid you; know your boundaries in the matter and where you draw the line–some things are non-negotiable, so decide what they are and stick to them; act in a rational manner and leave emotions and pettiness at the door; keep thorough written records and documentation–negotiating from evidence in front of you is far more compelling; and keep your focus on the outcome, not the behavior of the people, so if you want a replacement product then focus on that, not how customer service did this or a manager said that.  Here is the article from the special education blog “A Day in Our Shoes” :

  1. Use this as a chance for a fresh start. Regardless of what has happened in the past, resolve to let everyone start with a clean slate. I’m not saying forgive and forget, if you or your child has been horribly wronged, but give them a chance to do the right thing. Chances are that many of your IEP team members are new this year, so be positive. Give everyone the benefit of the doubt, once. Remember, previous team members may have told your new team negative things as well, so dispel it! Be polite, courteous, and make them wonder why anyone would ever say that you are difficult to work with.
  2. Don’t be a drama mama. Not every situation requires that we amp up to 10 right away. Take a deep breath. Evaluate the situation. Is it a non-negotiable or significant safety issue? Stay level headed. I see a lot of words get tossed around in the Facebook group like “That’s a violation!” or “That’s illegal!” Ok, it may be, but there’s no need to be so dramatic all the time. Drama mamas yell “That’s an IEP violation!” while it may be more productive to say to yourself, “Ok, they are not following the IEP, and my child is not receiving XYZ. What can I do to help fix this?” If someone tries to engage you in petty behavior, don’t.
  3. Keep good records. Document, but only for yourself in the beginning. New school years can be hectic. Therapy sessions may be missed. Scheduling snafus will happen. Like I said above, give everyone the benefit of the doubt, once. Keep good records so that if things do not get on track within the first two weeks or so, you have the data.
  4. Review the IEP. Re-familiarize yourself with it, particularly if you haven’t looked at it in a while. What are your non-negotiables? Certain things like life threatening food allergies, insulin, elopers….some things cannot be skipped even one time.  Make notes of what you want to keep a high priority and what needs to be changed.
  5. Be solution oriented. Don’t just approach your team with problems. Have a few solutions ready for them to implement.
  6. Use the IEP process. There are 5 portions of the IEP process that are particularly conducive to parent participation. Use them. Be fully engaged in the entire IEP process, and stay away from doing things that are not helpful or part of the process. Examples would be cc’ing people on emails who really do not need to be involved, ignoring chains of command and stuff like that.
  7. Stay child focused. When evaluating situations, stay away from what staff members did or didn’t do. Stay focused on what your child did or did not receive, that they need, per their IEP.

The IEP process certainly has its flaws, but it is the system that we’ve been given to use. Use it. You can use it to your advantage. Know your rights, read your procedural safeguards. Regardless of the history between you and your team, you can change it around. Focus on what you can control, and what is going to help your child.

Contact me at julie@juliemillslaw.com with any IEP or special education questions.