The Education Rights Blawg

An Introduction to Special Education Law: Back to School Series – Eligibility and Evaluation

RI Lawyer — Sat, 18 Aug 2012 01:17:56 +0000

Eligibility and evaluations for special education services are governed by the Individuals with Disabilities Education Act of 2004, Section 1414 (the full text of 20 U.S.C. Section 1414 related to eligibility and evaluations is below the fold).

Under IDEA a parent can request an initial evaluation for special education services at any time. In addition a school can recommend and request consent for an initial evaluation at any time. Once a request has been made and a parent has consented to evaluation a district has 60 calendar days to complete the evaluation. It is important to note that parental consent to an evaluation is not consent for services.

If your child has previously been evaluated, you are entitled to demand a reevaluation once a year.

(a) Evaluations, parental consent, and reevaluations

(1) Initial evaluations

(A) In general

A State educational agency, other State agency, or local educational agency shall conduct a full and individual initial evaluation in accordance with this paragraph and subsection (b), before the initial provision of special education and related services to a child with a disability under this subchapter.

(B) Request for initial evaluation

Consistent with subparagraph (D), either a parent of a child, or a State educational agency, other State agency, or local educational agency may initiate a request for an initial evaluation to determine if the child is a child with a disability.

(C) Procedures

(i) In general Such initial evaluation shall consist of procedures—

(I) to determine whether a child is a child with a disability (as defined in 1401 of this title) within 60 days of receiving parental consent for the evaluation, or, if the State establishes a timeframe within which the evaluation must be conducted, within such timeframe; and

(II) to determine the educational needs of such child.

(ii) Exception The relevant timeframe in clause (i)(I) shall not apply to a local educational agency if—

(I) a child enrolls in a school served by the local educational agency after the relevant timeframe in clause (i)(I) has begun and prior to a determination by the child’s previous local educational agency as to whether the child is a child with a disability (as defined in section 1401 of this title), but only if the subsequent local educational agency is making sufficient progress to ensure a prompt completion of the evaluation, and the parent and subsequent local educational agency agree to a specific time when the evaluation will be completed; or

(II) the parent of a child repeatedly fails or refuses to produce the child for the evaluation.

(D) Parental consent

(i) In general

(I) Consent for initial evaluation The agency proposing to conduct an initial evaluation to determine if the child qualifies as a child with a disability as defined in section 1401 of this title shall obtain informed consent from the parent of such child before conducting the evaluation. Parental consent for evaluation shall not be construed as consent for placement for receipt of special education and related services.

(II) Consent for services An agency that is responsible for making a free appropriate public education available to a child with a disability under this subchapter shall seek to obtain informed consent from the parent of such child before providing special education and related services to the child.

(ii) Absence of consent

(I) For initial evaluation If the parent of such child does not provide consent for an initial evaluation under clause (i)(I), or the parent fails to respond to a request to provide the consent, the local educational agency may pursue the initial evaluation of the child by utilizing the procedures described in section 1415 of this title, except to the extent inconsistent with State law relating to such parental consent.

(II) For services If the parent of such child refuses to consent to services under clause (i)(II), the local educational agency shall not provide special education and related services to the child by utilizing the procedures described in section 1415of this title.

(III) Effect on agency obligations If the parent of such child refuses to consent to the receipt of special education and related services, or the parent fails to respond to a request to provide such consent—

(aa) the local educational agency shall not be considered to be in violation of the requirement to make available a free appropriate public education to the child for the failure to provide such child with the special education and related services for which the local educational agency requests such consent; and

(bb) the local educational agency shall not be required to convene an IEP meeting or develop an IEP under this section for the child for the special education and related services for which the local educational agency requests such consent.

(iii) Consent for wards of the State

(I) In general If the child is a ward of the State and is not residing with the child’s parent, the agency shall make reasonable efforts to obtain the informed consent from the parent (as defined in section 1401 of this title) of the child for an initial evaluation to determine whether the child is a child with a disability.

(II) Exception The agency shall not be required to obtain informed consent from the parent of a child for an initial evaluation to determine whether the child is a child with a disability if—

(aa) despite reasonable efforts to do so, the agency cannot discover the whereabouts of the parent of the child;

(bb) the rights of the parents of the child have been terminated in accordance with State law; or

(cc) the rights of the parent to make educational decisions have been subrogated by a judge in accordance with State law and consent for an initial evaluation has been given by an individual appointed by the judge to represent the child.

(E) Rule of construction

The screening of a student by a teacher or specialist to determine appropriate instructional strategies for curriculum implementation shall not be considered to be an evaluation for eligibility for special education and related services.

(2) Reevaluations

(A) In general

A local educational agency shall ensure that a reevaluation of each child with a disability is conducted in accordance with subsections (b) and (c)—

(i) if the local educational agency determines that the educational or related services needs, including improved academic achievement and functional performance, of the child warrant a reevaluation; or

(ii) if the child’s parents or teacher requests a reevaluation.

(B) Limitation

A reevaluation conducted under subparagraph (A) shall occur—

(i) not more frequently than once a year, unless the parent and the local educational agency agree otherwise; and

(ii) at least once every 3 years, unless the parent and the local educational agency agree that a reevaluation is unnecessary.

(b) Evaluation procedures

(1) Notice

The local educational agency shall provide notice to the parents of a child with a disability, in accordance with subsections (b)(3), (b)(4), and (c) ofsection 1415 of this title, that describes any evaluation procedures such agency proposes to conduct.

(2) Conduct of evaluation

In conducting the evaluation, the local educational agency shall—

(A) use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent, that may assist in determining—

(i) whether the child is a child with a disability; and

(ii) the content of the child’s individualized education program, including information related to enabling the child to be involved in and progress in the general education curriculum, or, for preschool children, to participate in appropriate activities;

(B) not use any single measure or assessment as the sole criterion for determining whether a child is a child with a disability or determining an appropriate educational program for the child; and

(C) use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.

(3) Additional requirements

Each local educational agency shall ensure that—

(A) assessments and other evaluation materials used to assess a child under this section—

(i) are selected and administered so as not to be discriminatory on a racial or cultural basis;

(ii) are provided and administered in the language and form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally, unless it is not feasible to so provide or administer;

(iii) are used for purposes for which the assessments or measures are valid and reliable;

(iv) are administered by trained and knowledgeable personnel; and

(v) are administered in accordance with any instructions provided by the producer of such assessments;

(B) the child is assessed in all areas of suspected disability;

(C) assessment tools and strategies that provide relevant information that directly assists persons in determining the educational needs of the child are provided; and

(D) assessments of children with disabilities who transfer from 1 school district to another school district in the same academic year are coordinated with such children’s prior and subsequent schools, as necessary and as expeditiously as possible, to ensure prompt completion of full evaluations.

(4) Determination of eligibility and educational need

Upon completion of the administration of assessments and other evaluation measures—

(A) the determination of whether the child is a child with a disability as defined in section 1401 (3) of this title and the educational needs of the child shall be made by a team of qualified professionals and the parent of the child in accordance with paragraph (5); and

(B) a copy of the evaluation report and the documentation of determination of eligibility shall be given to the parent.

(5) Special rule for eligibility determination

In making a determination of eligibility under paragraph (4)(A), a child shall not be determined to be a child with a disability if the determinant factor for such determination is—

(A) lack of appropriate instruction in reading, including in the essential components of reading instruction (as defined in section 6368 (3) of this title);

(B) lack of instruction in math; or

(C) limited English proficiency.

(6) Specific learning disabilities

(A) In general

Notwithstanding section 1406 (b) of this title, when determining whether a child has a specific learning disability as defined in section 1401 of this title, a local educational agency shall not be required to take into consideration whether a child has a severe discrepancy between achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematical calculation, or mathematical reasoning.

(B) Additional authority

In determining whether a child has a specific learning disability, a local educational agency may use a process that determines if the child responds to scientific, research-based intervention as a part of the evaluation procedures described in paragraphs (2) and (3).

(c) Additional requirements for evaluation and reevaluations

(1) Review of existing evaluation data

As part of an initial evaluation (if appropriate) and as part of any reevaluation under this section, the IEP Team and other qualified professionals, as appropriate, shall—

(A) review existing evaluation data on the child, including—

(i) evaluations and information provided by the parents of the child;

(ii) current classroom-based, local, or State assessments, and classroom-based observations; and

(iii) observations by teachers and related services providers; and

(B) on the basis of that review, and input from the child’s parents, identify what additional data, if any, are needed to determine—

(i) whether the child is a child with a disability as defined in section 1401 (3) of this title, and the educational needs of the child, or, in case of a reevaluation of a child, whether the child continues to have such a disability and such educational needs;

(ii) the present levels of academic achievement and related developmental needs of the child;

(iii) whether the child needs special education and related services, or in the case of a reevaluation of a child, whether the child continues to need special education and related services; and

(iv) whether any additions or modifications to the special education and related services are needed to enable the child to meet the measurable annual goals set out in the individualized education program of the child and to participate, as appropriate, in the general education curriculum.

(2) Source of data

The local educational agency shall administer such assessments and other evaluation measures as may be needed to produce the data identified by the IEP Team under paragraph (1)(B).

(3) Parental consent

Each local educational agency shall obtain informed parental consent, in accordance with subsection (a)(1)(D), prior to conducting any reevaluation of a child with a disability, except that such informed parental consent need not be obtained if the local educational agency can demonstrate that it had taken reasonable measures to obtain such consent and the child’s parent has failed to respond.

(4) Requirements if additional data are not needed

If the IEP Team and other qualified professionals, as appropriate, determine that no additional data are needed to determine whether the child continues to be a child with a disability and to determine the child’s educational needs, the local educational agency—

(A) shall notify the child’s parents of—

(i) that determination and the reasons for the determination; and

(ii) the right of such parents to request an assessment to determine whether the child continues to be a child with a disability and to determine the child’s educational needs; and

(B) shall not be required to conduct such an assessment unless requested to by the child’s parents.

(5) Evaluations before change in eligibility

(A) In general

Except as provided in subparagraph (B), a local educational agency shall evaluate a child with a disability in accordance with this section before determining that the child is no longer a child with a disability.

(B) Exception

(i) In general The evaluation described in subparagraph (A) shall not be required before the termination of a child’s eligibility under this subchapter due to graduation from secondary school with a regular diploma, or due to exceeding the age eligibility for a free appropriate public education under State law.

(ii) Summary of performance For a child whose eligibility under this subchapter terminates under circumstances described in clause (i), a local educational agency shall provide the child with a summary of the child’s academic achievement and functional performance, which shall include recommendations on how to assist the child in meeting the child’s postsecondary goals.

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Five Tips for Providing for Children With Disabilities

RI Lawyer — Sat, 11 Aug 2012 20:29:59 +0000

One of the major concerns for parents or grandparents of children with disabilities is how to provide for their financial future. Here are some legal tips:

Buy enough life insurance.

A parent is irreplaceable, but someone will have to fill in. In all likelihood, that person or family will have to pay for at least some services the parent or parents had provided when able. If the estate is not large enough for this purpose, it can be made large enough through life insurance proceeds. Premiums for second-to-die insurance (which pays off only when the second of two parents passes away) can be surprisingly low. On the other side of the coin, if a parent or grandparent wishes to reduce her estate, she can establish a special life insurance trust to hold an insurance policy that will benefit a child with special needs. If properly established, this trust will allow the parent or grandparent to make gifts of the insurance premium every year, reducing the size of her overall estate and providing the child with a significant inheritance.

Set up a trust.

Any funds left for a disabled child, whether from an estate or the proceeds of a life insurance policy, should be held in trust for his or her benefit. Leaving money for anyone with a disability jeopardizes public benefits. Many people with disabilities cannot manage funds, especially large amounts. Some families disinherit disabled children, relying on their siblings to care for them. This approach is fraught with potential problems. Siblings can be sued, get divorced, disagree on their responsibilities, or run off with the funds. It can also cause tax problems for siblings. The best approach is a trust fund set aside for the disabled child. While parents are usually fairly cognizant of this problem when they create their estate plans, other family members who may leave funds to a child with special needs should also revisit their estate plans to make sure that a trust is created.

Will/appointment of guardian.

While a will and the appointment of a guardian is important for anyone with minor children, it is doubly so if the child is disabled. Finding the right guardian can be difficult. In some cases, the care needs of the child may be so demanding that he or she will need a different guardian from his or her siblings. The parents need to make these determinations while they can. The will is the vehicle for the appointment of a guardian. An adult child may also require a guardian when the parent can no longer serve in this role (whether officially appointed or not). It will probably not be legally possible to officially appoint a successor guardian. So, it may make sense to begin making the transition to a new guardian while the parent is able to assist in the process. This can be done in the form of a co-guardianship, or passing the baton to a successor guardian.

Care plan.

All parents caring for disabled children should write down what any successor caregiver would need to know about the child and what the parent’s wishes are for his or her care. For example, should the child be in a group home, live with a parent, be on his or her own? Usually, the parent knows best, but needs to pass on the information. The memo or letter can be kept in the attorney’s files with the parent’s estate plan.

Coordination with other family members.

Even a carefully developed plan can be sabotaged by a well-meaning relative who leaves money directly to the child with a disability. As discussed above, if a trust is created for the benefit of the child, grandparents and other family members should be told about it so that they can direct any bequest they may like to leave to that child through the trust. Grandparents who are worried about the cost of long-term care should also be made aware that, in certain circumstances, they may be able to contribute to a special needs trust for a grandchild without affecting their own future Medicaid eligibility — a win-win situation.

If you need assistance with Special Needs Planning, Disability Planning, Special Education or other disability law matters call the offices of Fabisch Law, L.L.C. to set up a consultation with Rhode Island Special Needs Lawyer Attorney Matthew Fabisch at 401-324-9344.

Fabisch Law, L.L.C. is proud to announce that it is a corporate supporter for the 8th Annual Family Voices/Rhode Island Parent Information Network Family/Professionals Partnerships Conference

RI Lawyer — Thu, 19 Apr 2012 03:11:54 +0000

Fabisch Law, L.L.C. is proud to announce that it is a corporate supporter for the 8th Annual Family Voices/Rhode Island Parent Information Network Family/Professionals Partnerships Conference. The theme of this year’s conference is Accessing Services and Supports for Children, Youth & Individuals with Special Health Care Needs.

The Conference will take place Wednesday, April 25, 2012 12:30 PM – 7:00 PM at The Crowne Plaza, 801 Greenwich Ave., Warwick, RI 02886. We will be on-site with our conference booth and available to answer questions and book appointments.

We look forward to seeing you there!

Wrights Law Special Education Law “Boot Camp” Seminar

RI Lawyer — Fri, 06 Apr 2012 15:24:37 +0000

I’m glad to be attending this year’s Wrights Law Special Education Law “Boot Camp” Seminar this weekend in Holyoke, Massachusetts. Stop by and say hi.

Mediation in Special Education Matters

RI Lawyer — Sun, 26 Feb 2012 03:08:35 +0000

The Massachusetts Bureau of Special Education Appeals (“BSEA”) has a mediation program that it runs concurrently with its formal hearing process. Mediation is a form of ADR or alternative dispute resolution. A pamphlet issued by BSEA does a great job explaining the basics of how mediation differs from the traditional adversarial process.

“What Sets Mediation Apart from Other Special Education Meetings?

· Mediation is conducted by a neutral third party

· Mediation can uncover new approaches that the
parties haven’t previously explored.

· Participants are encouraged to examine the reasons
behind their conclusions and reevaluate their
thinking.

· Mediation provides a structured, problem solving
approach that ensures that all participants are able to
express their perspectives while being treated fairly
and impartially.

· The mediator’s questions may encourage new
thought, elicit new options and provide a format in
which people can communicate with each other
differently. The parties often reach a different
outcome than they reached in previous special
education meetings.”

According to BSEA Special Education Mediation can be requested whenever “the I.E.P. is rejected in full or in part or when there is a disagreement regarding evaluations, eligibility,
placement or implementation of the I.E.P.” or when “there is a disagreement between the parents and the school district regarding the student’s special education needs” or when “there is a disagreement about a 504 Accommodation Plan.”

Glossary of Special Needs Acronyms

RI Lawyer — Sun, 26 Feb 2012 02:49:19 +0000

Sometimes the Special Education community would seem to use more acronyms than the military. While engaged parents pick up on the terms that are relevant to protecting their child’s interests quickly, here is a list of common special education acronyms for the uninitiated:

1:1 – One-to-one

ADA – Americans with Disabilities Act (also seen as ADAAA or Americans with Disabilities Act, As Amended)

ABA – Applied Behavioral Analysis

APE – Adaptive Physical Education

AT – Assistive Technology

BSEA – Bureau of Special Education Appeals

DSM – Diagnostic and Statistical Manual of the American Psychiatric Association

EI – Early Intervention

ESD - Extended School Day

ESY - Extended School Year

FAPE – Free Appropriate Public Education

FBA – Functional Behavioral Assessment

FERPA – Family Educational Rights and Privacy Act

IAES – Interim Alternative Educational Setting

IDEA – Individuals with Disabilities in Education Act

IEP – Individual Educational Plan

IEE – Independent Educational Evaluation

LEP – Limited English Proficiency

LRE – Least Restrictive Environment

NCLB – No Child Left Behind

OT – Occupational Therapy

PLEP – Present Level of Educational Performance

PT – Physical Therapy

SL – Speech Language

How is a learning disability defined under the IDEA

RI Lawyer — Sat, 11 Feb 2012 13:56:09 +0000

The 2004 amendments to the Individuals with Disabilities Education Act (IDEA), [Sec.602(30)] defines Specific Learning Disabilities as:
(A); “IN GENERAL – specific learning disability means a disorder in 1 or more of the basic psychological processes involved in understanding or in using language, spoken or written, which disorder may manifest itself in imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations.
(B); DISORDERS INCLUDED – Such term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia.
(C); DISORDERS NOT INCLUDED – Such term does not include a learning problem that is primarily the result of visual, hearing, or motor disabilities, or mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage.”

Happy Back to School Week in Rhode Island and Massachusetts

RI Lawyer — Thu, 02 Sep 2010 16:54:46 +0000

Please accept my wishes for a happy and successful school year to everyone with a child returning to school this week.

Useful Glossary of Special Education Terms and Phrases

RI Lawyer — Sat, 14 Aug 2010 21:44:23 +0000

The Commonwealth of Massachusetts’ Executive Office of Health and Human Services has published a useful introductory glossary of terms and phrases helpful to know for those faced with advocating for their child’s right to a free appropriate public education.

What is Massachusetts Chapter 766?

RI Lawyer — Sat, 14 Aug 2010 18:24:07 +0000

Passed in 1972, the first non-categorical law guaranteeing all children the right to a free appropriate public education was codified at M.G.L c. 766. Chapter 766, as it became known, later served as the model for the first federal special education legislation.

Somewhat confusingly, when the Massachusetts General Laws were re-codified, the contents of the old Chapter 766 were transferred to a new statutory home. The Massachusetts Special Education Law can now be found at M.G.L. c. 71(b). The regulations implementing those sections are found at 603 C.M.R. 28.00. Though the codification changed, the original name stuck and thus the portions of Massachusetts law governing the provision of special education services to children who need them are still referred to as Chapter 766 to this very day.

As Chapter 766 makes clear, in selecting a lawyer to represent you and your child it is important to remember that a state may have expanded the educational rights to which your child is entitled beyond those merely provided for under federal law and to choose a lawyer familiar not only with IDEA 2004, but also with any state law rights to which your child may be entitled.