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.

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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.

Special education win for students and their parents with U.S. Supreme Court decision

Two days ago on March 22, 2017 the United States Supreme Court ruled unanimously in Endrew v. Douglas County that children with disabilities are entitled under the Individuals with Disabilities in Education Act (IDEA) to receive an educational program reasonably calculated to make meaningful progress.  Why is this important?  Because in more than half the country, the standard of only “some” or “minimal progress” was required.  Therefore, this decision resolves conflicting federal circuit courts between those requiring only “some [or minimal] progress” (1st, 4th, 7th, 10th, and 11th circuits) versus other circuits requiring “meaningful progress” (3rd, 5th, and 6th circuits).  Ohio, fortunately, has followed the “meaningful progress” standard (Ohio is among states in the 6th Circuit).  This decision will have a larger impact on our western neighbor, Indiana, which employs the “minimal” or “some progress” standard, since Indiana is among states in the 7th Circuit.

This decision will have a profound impact on students with disabilities and their parents, schools, attorneys involved, and hearing officers.  One can no longer show some or trivial progress—meaningful progress is now required.  What does this mean?  Students will no longer be advanced without making any progress.  There must be meaningful progress, which is objective and data-driven.  Data will be required to show progress, or lack thereof, rejecting primary reliance upon subjective reports from educators about whether progress is occurring.  Data is objective and better suited to support either side’s argument, including when progress is actually happening to the objection by a parent.

What else does Endrew mean?

  1. In my opinion, Endrew spells out substantive obligations in the IDEA versus being merely a set of procedural requirements;
  2. Emphasis will be placed on parents and the school to develop an IEP that focuses on progress and advancement in the general curriculum, if the child is fully integrated in a regular classroom;
  3. Parents have complained that expectations for their child with special needs were set too low, too often. Now that the IDEA has more substantive “teeth,” the child must have the chance to meet challenging objectives;
  4. In my opinion (again), the burden of proof is now on the school for proving the sufficiency of an IEP;
  5. The Court has set a clear and workable standard now for lower courts to apply, ending various applications employed by various circuits.

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

IEPs: Parents’ Rights

Parents have rights regarding an Individualized Education Program (IEP) for their child under the federal Individuals with Disabilities in Education Act (IDEA), and state law (see Ohio’s law here).  The IEP process can be overwhelming for parents, typically because they want a good relationship with their child’s school, and they are often at a numerical and informational disadvantage at IEP meetings.

Parents have basic rights in the IEP process.  They include, but are not limited to:

  • Consent: you can give or deny consent for your child to be evaluated for special education services
  • Participate in IEP meetings: You have the right to participate in all meetings when your child’s educational needs will be discussed.  If you are unable to be present physically, the school must let you participate by phone
  • Independent Evaluation:  You have the right to have your child evaluated by outside professionals and to have that evaluation included in decisionmaking.  The school does not have to accept the results but the evaluation could be useful in subsequent mediation or hearings
  • Contest a School’s Decision:  You can contest a school’s decision in mediation, in a due process hearing, or in state or federal court.  An independent evaluation (mentioned above) supporting your position will be a strong asset
  • Private Education Paid by Public School: in some circumstances, if you transfer your child to a private school that provided what the public school could not–or failed to–provide, the public school must reimburse the parents for the private school tuition.  An example can be read here.

The best advice for parents in the IEP process is to know your rights and to get help from a parent advocate or attorney (experienced in special education law) if necessary.