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SPECIAL EDUCATION ADVOCACY: What every Special Needs Planner Needs to Know Saundra M. Gumerove, Esq. 42 Marian Lane Jericho, NY 11753 516.822.3397 email@example.com advokidsblog.com Why Should I Care About Special Education Issues? Clients frequently have children and grandchildren with special needs who are students. Individuals with special needs do not exist in a vacuum. There is an interconnection between planning, services and education where the skills of a special needs planner are invaluable. What is Special Education? The Individual with Disabilities Act (IDEA) defines special education as: “Specifically designed instruction, provided at no cost to the parent, to meet the unique needs of a child with a disability.” Purpose is to level the playing field between children with disabilities and those without disabilities. Purpose of the IDEA “to ensure that all children with disabilities have available to them a free and appropriate public education” in the least restrictive environment that “emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living.” “To ensure that the rights of children with disabilities and parents of such children are protected; . . .” Why are special education laws necessary? Compulsory Attendance Laws routinely excluded the mentally retarded and “feebleminded” as well as children with behavior problems. Parent organized in the late 1940s to establish schools The Civil Rights movement of the 1950s & 1960s Brown v. Bd. Of Education of Topeka 1954: “Separate but equal is inherently unequal” The Willowbrook Debacle in the early 1970s (although a recent Texas Case says Willowbrook still exists). PARC v. Pennsylvania 1971: consent decree: mentally retarded children cannot be denied an education. Education for all Handicapped Children Act, the first statute requiring special education, passed in 1975. Renamed the Individuals with Disabilities Education Act (“IDEA”) in 1990 Reauthorized as the Individuals with Disabilities Improvement Act (“IDEIA”) in 2004 Special Education is an ever evolving discipline 6 Principles of Special Education Guarantee of a free and appropriate public education (“FAPE”) Least Restrictive Environment (“LRE”) Nondiscriminatory Evaluations Development of the Individualized Education Plan (“IEP”) Parent Participation Procedural Due Process How Does the IDEA Work? Child Find Referral for an evaluation: Requires parental consent 60 days from consent Assessed on all areas of suspected disability Team meeting to determine if meets disability criteria and that disability affects ability to learn Parent has right to ask for an independent evaluation at District expense. IEP Team meets within 30 days Development of the IEP Legally enforceable document Team must include certain members (Parent, generated teacher, special ed teacher, District decision maker, others with specific knowledge of child, someone to interpret test results) Considers child’s strengths, concerns of parent, evaluation results, academic, developmental and functional needs of the child and special factors. Components of IEP Present level of performance Annual Goal Development Specification of Related Services, frequency and duration Specification of Accommodations and Modifications Transition Services (beginning between ages 14 and 16) Determination of need for extended school year, etc. Placement FAPE: Free and Appropriate Public Education Parents do not pay for education or related services. Special education services must meet the child’s needs but do not have to provide the “best” education, only an appropriate one. (See Rowley case) There must be an educational benefit to the services Costs and district resources are not considered in determining special education services to be provided. LRE: Least Restrictive Environment Start with children can be educated in a general education classroom. Need justification for placement in segregated settings (classrooms or schools) Evaluations must support removal from general education setting Non-Discriminatory Evaluations Evaluators must be properly trained to administer the evaluation Use a variety of assessment tools that are not racially or culturally biased Parents must be given notice Parent evaluations must be considered Parents Are Equal Partners Parents of A child with a disability are members of any group that makes decisions for their child Can refuse special education services Must provide consent for evaluations Required member of the IEP Team Required for placement decisions Placement Special education is not a physical place but the location of the delivery of services Placement is the means of carrying out the IEP. As close as possible to the child’s home Parents are required members of the team determining placement Transition Services - Ages 14-16 Transition Services: a coordinated set of activities for a student with a disability that 1) is designed within an outcome-oriented process, that promotes movement from school to the post school activities, including postsecondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation; 2) is based on the individual student’s needs, taking into account the student’s preferences and interests; and 3) includes instruction, related services; community experiences, the development of employment and other post-school adult living objectives; and if appropriate, acquisition of daily living skills and functional vocational evaluation. IEP must include statement of transition services beginning at age 14/16 Mandated that representatives of any other agency likely to be responsible for providing or paying for transition services be invited to the IEP meeting. Transition planning is the least understood and properly implemented portion of the IEP. Procedural Due Process: Fundamental Fairness 5th Amendment: “No citizen will have his or her rights to life, liberty and property removed by the federal government without legal due process.” 14th Amendment: “nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the law.” The Constitution does not give a right to education; Right to Due Process is guaranteed in education because states gave the right in legislation. Compulsory public education = student’s right to an education which is protected by due process. Goss v Lopez (1975): Suspension without a hearing violates due process clause. “Having chosen to extend the right to an education . . . Ohio may not withdraw the right on the grounds of misconduct absent fundamentally fair procedures to determine if the conduct has occurred.” “Young people . . . Do not “shed their constitutional rights at the schoolhouse door.” Rights meaningless for those with disabilities who were systematically excluded from enrolling in public schools. PARC: Minimum due process requires Notice of school’s action resulting in a deprivation of a right given by state/federal law. Opportunity to present evidence in opposition to proposed school action. Mills: due process procedures must be followed in every case to protect the rights of children with disabilities. Court found: Before classification child must be evaluated by testing Must consider socio-cultural background to determine if testing is biased No child with a disability can be expelled or suspended for more than 10 days without a hearing Parents must be notified with opportunity to contest new placement Written prior notice: initiate or change or refuse to initiate or change identification, placement, FAPE Native language Opportunity for mediation Opportunity to present complaint and Notice of due process hearing Due Process Hearing IDEA sets forth required content of written notice Parents who prevail at an impartial hearing can recover attorney’s fees from school districts If the school district prevails the district may recover attorney’s fees in limited circumstances. Burden of Proof Stay Put During a due process hearing and court review, child must remain in the “current educational placement” unless District and Parent otherwise agree Protects student from constant change in placement If hearing officer agrees with change in placement, it occurs immediately Rehabilitation Act of 1973 §504 Designed to protect the rights of individuals with disabilities in programs receiving federal funds To protect students with disabilities from discrimination for any reason related to their disability (i.e. extracurricular activities, disability harassment.) Students receiving services under the IDEA are automatically protected under Section 504. Students receiving services under a 504 plan do not have the same due process protections available to students with a disability and their parents under the IDEA Eligibility: An individual must have “a physical or mental impairment which substantially limits one or more major life activities. . .” An evaluation must be conducted by the school but is much less regulated than under IDEA. Plan under Section 504 can provide services and accommodations to students with disabilities but does not provide the same protections that an IEP provides. Why should Special Needs Planners care about Special Education? Clients have children who are students Planning for students requires an understanding of special education services Transition planning should be coordinated with special needs planning Life planning is not addressed by special education but can impact special education planning (the IEP). Saundra M. Gumerove, Esq., the mother of a daughter with special needs, focuses her law practice to helping those with special needs. Special education, guardianship, life planning (including special needs trusts) or government entitlements, Sandy is there to assist. Prior to opening her private practice Sandy was counsel for a money center bank and served as General Counsel for a national commercial finance company. Having practiced in the area of special needs for over twenty years, Sandy further serves the disability community as a Vice President of the Board of Nassau AHRC, a member of the NYSARC Board of Governors, Treasurer of the Brookville School for Children, and by authoring articles of interest to the disability community. Sandy also authors a website entitled Advokidsblog.com (http://advokidsblog.com) and often speaks on subjects of interest to the disability community.
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