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Children’s Memorial Hospital Cochlear Implant Program

A Practical Survey of Current Special EducationLaw and Rights of Illinois

Hearing Impaired Children February 28, 20089:00 – 11:00 a.m.

Brooke R. WhittedLara A. Cleary

WHITTED, CLEARY & TAKIFF, LLC3000 Dundee Road

Suite 303Northbrook, Illinois 60062

(847) 564-8662www.WCT-LAW.com

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Table of Contents

1. Agenda 5-6

2. IEP/CSE Process in a Nutshell 7-12

3. Transition of Children from Birth – 3 Programs to 13-16Early Childhood Programs

3. The Rowley case: What does it really mean? 17-28

4. Legal Implications of Educational Programming for Children 25-28with Cochlear Implants: The Story of Billy F.

5. Section 504 in the Public Schools: How does it differ from the 33-41IDEA?

6. Beth B. Case 43-44

7. Services at Private Schools: Obligations of School Districts 45-57for Voluntarily Enrolled Students

8. The Final Word on Health Services: Garret F. case 59-63

9. WCT’s Top Five Advocacy Tips for Parents 65-66

10. Do I Need an Attorney? A Guide for Parents 67-71

11. Qualities of a Good Clinical Report 73-74

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Children’s Memorial HospitalCochlear Implant Program

A Practical Survey of Current Special Education Law and

Rights of Illinois Hearing Impaired Children

February 28, 20089:00 - 11:30 a.m.

AGENDA

I. Introduction and Overview

A. What we’ll CoverB. Explanation of Materials

II. What is the Legal Standard for Education under the IDEA?

A. Special Education Procedure in a Nutshella. Child Findb. Domain Meetingc. CSEd. IEPe. Transition of Children From Birth – 3 Programs to Early

Childhood ProgramsB. Rowley – Establishing Educational Benefit

a. What does this case stand for?b. What are the “Rowley Questions?”

C. Case law Example – Billy F. Casea. Oral Education is NOT a Methodology in Illinois

III. Special Education Services – Obligations of School Districts

A. IEP vs. Section 504 PlanB. Placements For Students with Hearing Impairments

a. Least Restrictive Environmenti. Continuum of Placement Options Must be Available

ii. Beth B. Case – “Maximum Extent Appropriate”

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b. Services at Private Schoolsi. Unilateral Private Placements

C. Related Services - To provide “related services” according to the needs of the student, i.e., any service necessary to enable a student to benefit from special education.

a. Tatro caseb. Garrett F. Case – Medical vs. Non-Medical

Servicesc. But not implanted devices!

IV. Working with Parents and School Districts

A. Top 5 Tips for ParentsB. When to Hire an AttorneyC. Qualities of a Good Clinical Report

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Checklists (Illinois law version) Special Education Process IEP Participant Checklist

IEP/CSE Process in a Nutshell (Illinois law version)

I.          Referral for Initial Case Study Evaluation (“CSE”) Made

A.  A referral for a Case Study Evaluation may be made for any child suspected of having a disability. Every school district must develop and make known to all concerned persons procedures by which an evaluation may be made.

           B.  A request may be made by a parent of a child, or by an employee of the school district, the Illinois State Board of Education, another State agency, or a community service agency.

C. Parent is defined as a natural, adoptive, or foster parent; A guardian (butnot the State if the child is a ward of the State.); An individual acting in the place ofa natural or adoptive parent (including a grandparent, stepparent, or other relative)with whom the child lives), or an individual who is legally responsible for the child’swelfare; or an individual assigned by the State Board of Education as a “surrogate”parent.

D. Parental safeguards notification should always be provided to parents

upon initial referral.

E. Under the IDEA, Districts have an affirmative duty to locate, indentify, and serve children with disabilities. This requirement is known as “child find.”

II.         District Decides Whether to Conduct CSE

            A. The school district must decide whether or not to conduct the CSE. They may use screening data and conduct preliminary procedures to assist in making this determination. If they decide not to conduct a CSE, the district must notify the parents, in writing, and explain their reasoning. A parent may request a due process hearing to contest the district’s refusal to conduct the CSE.

B. Within 14 school days after receiving a request for an evaluation, the district shall determine whether an evaluation is warranted. The district shall ensure that notification of that determination is transmitted to the parents within the 14- school-day timeframe.

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C. Parental consent for initial CSE required prior to CSE. The date consent is signed starts the 60 school day timeline.  If a parent refuses to provide consent to an initial CSE, the district may, but is not obligated to use the due process procedures to override lack of consent.

D. "Consent" is defined to acknowledge that parents can revoke consent, butsuch revocation is not retroactive. Revocation of consent can be done either verbally or in writing. If done verbally, the district must confirm the request in writing by letter to the parents within five days.

E. If a child is a ward of the State and is not residing with the child’s parent, the school district shall make “reasonable efforts” to obtain the informed consent from the parent of the child for an initial evaluation. However, the district is not required to obtain consent from the parent if the district cannot discover the parent’s whereabouts, following “reasonable efforts,” the parent’s rights have been terminated or “the parental right to make educational decisions has been subrogated by a judge and given to an individual appointed by the judge to represent the child.”

F. If the District decides to conduct the evaluation, a “domain meeting” will be held to determine what areas of a child’s functioning will be considered.

III.  Initial Evaluations

A. The initial evaluation will be conducted within 60 school days of receiving parental consent.

B. The relevant time frame does not apply if the child transfers to another district prior to the completion of the evaluation. In such cases, the school district has to make sufficient progress to ensure a prompt completion of the evaluation and the parent and the new school district shall agree on a specific time the evaluation shall be completed. In addition, if the parent repeatedly fails to produce the child for the evaluation, the relevant time frame does not apply.

           C. When a student is referred for an evaluation with less than 60 school days left in the school year, eligibility must be determined and, if necessary, an IEP developed prior to the first day of the next school year.

IV. CSE Conducted and Conference Held To Determine Eligibility

A.  Group of qualified professionals and the parent of the child must determine whether the child is a child with a disability. A separate written statement may be provided by a team participant who wishes to be on record as disagreeing with the conclusions of the team.

B.  The school district must provide a copy of the IEP report from the conference to determine eligibility at the conclusion of the team’s meeting.

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C. In addition, the district shall provide to the parent within 10 school days1 after the meeting, written notice as to the eligibility determination reached.

D.  If the parent disagrees with the district’s evaluation, the parent may request an independent evaluation at public expense. If the district feels their evaluation was appropriate and they do not want to pay for an independent evaluation the district must file for due process to show its evaluation is appropriate. A parent is only entitled to one independent evaluation at public expense each time the school district conducts an evaluation with which the parent disagrees.

E. If an independent evaluation is conducted at public expense, the district shall send a notice convening the IEP team meeting within 10 days of receiving the report of the evaluation.

V.       Initial Special Education Eligibility Determined

A. Eligibility is determined by a majority of team members. If a determination is made that a child has a disability and needs special education services, an Individualized Education Plan (“IEP”) must be developed for the child.

B. The existence of a Diagnostic and Statistical Manual of Mental Disorders (“DSM”) disability will not necessarily mean the child has a special education disability, unless the disability impacts the child’s education.

VI.        Initial IEP Developed by IEP Team

A. If the child is eligible for special education service under a disability category, then an IEP is drafted. The IDEA requires that specific individuals be present at the IEP team including the parent, a regular education teacher, a special education teacher an individual from the school district capable of making decisions and committing district resources.

B. The State Regulations mandate that an IEP meeting must be held within "30 days" of the determination of eligibility.

C. As soon as possible following the development of the IEP, special education and related services should be made available to the child according to the child’s IEP.

VII.       Initial Special Education Placement Decision Made

A.  Placement is considered by the team, which includes the parents, and the placement decision must be based on IEP goals and objectives.

B.  Placement must be made as soon as possible after the determination of eligibility and need for such placement, but in no case should placement occur later than the beginning of the next school semester.

1 The Illinois regulations define the federal term, “reasonable time” as ten days. 23 IL ADM CODE 226.520.

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C. The school district must wait 10 days before placement may occur, although parents may waive this waiting period.

D. The school district must obtain informed consent from the parent of a child before providing the initial provisions of special education and related services to the child. If the parent refuses to consent for services the district may not use mediation or due process procedures in order to obtain agreement or a ruling that services may be provided to the child.

VIII.      Annual Review of IEP

            A.  A review of the IEP must be held at least annually to determine whether annual goals for the child are being achieved..

            B.  10-day parental notification required for all IEP meetings, or a record of reasonable attempts to notify parent required by the district prior to any IEP meeting.  Parents may waive 10-day notice.

            C.  A parent may request an IEP meeting at anytime (within reason) if desired. The district has 10 days after receipt of such a request to either agree to convene the meeting or notify the parents in writing of its refusal.

IX.     Three-Year Reevaluation

A.  A reevaluation of the student may be conducted at anytime, but must be conducted at least every three years.

B. A reevaluation may not occur more than once a year, however, unless both the parent and school district agree otherwise.

C. A reevaluation must occur at least every three years, unless the parent and school district agree that a reevaluation is unnecessary.

D. Parental consent must be obtained for any reevaluation. If the parent refuses to consent the school district, may, but is not required, to pursue the reevaluation through the mediation or due process procedures previously mentioned to override consent. If the district can demonstrate that it made reasonable efforts to obtain consent, but the child’s parent failed to respond, then informed parental consent is not required in order to conduct the reevaluation.

E. The domain determinations completed for initial evaluations must also be conducted for reevaluations.

X.       Transfer Students

            A.  If a child with a disability transfers from a school district from within the same State, the new district must provide a free and appropriate public school district (“FAPE”), including services comparable to those described in the child’s IEP, until the district either adopts the

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previous district’s IEP or develops, Adopts AND implements a new IEP. If the child is from another district within the state, the receiving district may adopt the IEP developed by the prior school district without an IEP meeting if the parent indicates satisfaction with the IEP and the district feels the IEP is appropriate. If the district does not adopt the former IEP and seeks to develop a new IEP, then within 10 days after the date of enrollment the district must provide written notice to the parent including the proposed date of the IEP meeting. While the new IEP is under development, the district shall implement the services comparable to those described in the IEP from the former district.

            B.  If a child with a disability transfers from a school district from another State, the new district must provide a free and appropriate public school district (“FAPE”), including services comparable to those described in the child’s IEP, until the district conducts an evaluation pursuant to the applicable procedures and develops, adopts and implements a new IEP, if appropriate. In other words, if the child transfers from out of state, the district must conduct an evaluation of the child.

XI.        Miscellaneous

A.  The IDEA requires prior written notice to parents whenever a district proposes to change, or refuses to change, a child’s evaluation, identification, placement or the provision of the free and appropriate public education (“FAPE”) program.

B.  Parents are entitled to request a due process hearing whenever they have a complaint regarding the evaluation, identification, placement, or the provision of FAPE of the child.

C.  Parents must be notified of the student’s progress toward IEP goals as regularly as non-disabled students are notified of progress.

D. At any time after the annual IEP review, the parent and school district can agree not to convene an IEP meeting to make an amendment to the child’s IEP and instead may develop a written document to amend of modify the child’s current IEP.

E. The new IDEA establishes a two-year statute of limitations for filing a due process hearing following the date the parent or district knew or should have known of a violation.

Checklist of Required IEP Team Members

The following participants are required for a valid IEP team meeting:

The parents of a child with a disability (or guardian/surrogate); At least one regular education teacher of such child (-if the child is, or may be,

participating in the regular education environment); At least one special education teacher, or where appropriate, at least one special

education provider of such child;

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A representative of the local educational agency who is qualified to provide, or supervise the provision of, specially designed instruction, is knowledgeable about the general education curriculum, and is knowledgeable about the availability of resources of the LEA;

An individual who can interpret the instructional implications of evaluation results who may be a member of the team described in the roles of other individuals;

At the discretion of the parent or agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate **; and

Where appropriate, the child with the disability (attendance of minor child totally within discretion of parent or guardian). If a purpose of the IEP meeting will be the consideration of post-secondary goals for the child and the transition services needed to assist the child to reach those goals, then the school district must invite the child.

** Please note: Related services (i.e.: Occupational Therapy, Physical Therapy, Counseling, Adapted Physical Education) personnel are not required to attend IEP meetings. However, if a child with a disability has an identified need for related services, it would be appropriate for the related services personnel to attend the meeting or otherwise be involved in developing the IEP.

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Transition of Children from Birth – 3 Programs to Early Childhood Programs

Under the new IDEA, IEP teams must consider individualized family services plans for children with disabilities who are ages 3 through 5. The IFSP may serve as a child's IEP if it meets the content requirements of Part C and is developed in accordance with IEP procedural requirements. Also, use of the IFSP as an IEP must be consistent with state policy and agreed upon by the school district and the child's parents.

School Districts should begin discussions with parents early, before age 3. A child's transition may be a difficult time for family members. They may need numerous opportunities to discuss the impending changes, understand the differences in the nature of the programs under Part B and Part C of IDEA, and adjust to new professionals and services. They will also need assistance in carrying out the steps of the transition process.

Districts should discuss transition-related subjects with parents of children who are eligible for special education at age three. The discussions should include:

Parents' rights and due process. The assessment process. Eligibility for preschool services under Part B of IDEA. Eligibility for general education preschool services. Differences between services provided under an IFSP and those provided under an IEP. Differences between services under Part B and those under Part C of IDEA. Future service options available to the child at age three such as special day classes,

participation in a program with a resource specialist or an inclusion specialist, designated instruction, or any combination of these.

Future settings for services. Eligibility requirements including general education programs such as Head Start, state

preschools, children's centers, community preschools and child care programs.

District staff should get prepared to adjust a child to a new setting and change service deliver. This preparation may require staff to:

Concentrate on the child's acquisition and development of specific skills, such as following simple directions.

Make program or classroom visits. Set up follow-up visits for early intervention staff. Have telephone consultations with preschool program staff.

RELEVANT FEDERAL REGULATIONS 34 CFR 303.340-346 of the current Part C regulations contain provisions regarding

IFSPs.

WHEN IFSP CAN SERVE AS IEP

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The IFSP may serve as the IEP of the child, if using the IFSP as the IEP is:  

(i) Consistent with State policy; and 

(ii) Agreed to by the agency and the child's parents. 34 CFR 300.323 (b)(1). In implementing the requirements of paragraph (b)(1) of this section, the public agency must:  

(i) Provide to the child's parents a detailed explanation of the differences between an IFSP and an IEP; and

 (ii) If the parents choose an IFSP, obtain written informed consent from the parents. 34 CFR 300.323 (b)(2).

The New Illinois Regulations (23 Ill.Admin.Code) state:

226.250 Child Aged Three Through Five

In the case of an eligible child three through five years of age, an IFSP that contains the material described in 34 CFR 300.323(b) may serve as a child's IEP if using that plan is agreed to by the local school district and the child's parents. If a district proposes to use an IFSP, the local school district shall:

a) Provide a detailed explanation of the differences between an IFSP and an IEP to the child's parents;

b) Obtain informed, written consent from the parents for the use of the IFSP; andc) Ensure that the IFSP is developed in accordance with the IEP requirements found in

Subpart C of this Part.

226.260 Child Reaching Age Three

a) Child with an Individualized Family Service Plan (IFSP)

For each child who will be making the transition from an early intervention program into the special education program of a school district at age three, the district shall ensure that either an IEP or the child's IFSP is in effect on his or her third birthday. A representative of the school district shall participate in the transition meeting scheduled by the early intervention team.

b) Child Without an IFSP

1) For each child who is referred to a school district at least 60 school days prior to his or her third birthday and determined eligible, the district shall ensure that either an IEP or an IFSP is in effect on his or her third birthday.

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2) For each child who is referred with fewer than 60 school days remaining before his or her third birthday, or after that date, the district shall comply with the requirements of Section 226.110(c)-(j) of this Part. (which means the District has 60 school days)

c) If a child's third birthday occurs during the summer, the IEP Team for that child shall determine when the district's services to the child will begin.

CONTENT OF IFSP The IFSP must comply with the content requirements of 20 USC 1436 (d) in Part C of the

act. The IFSP must be in writing and contain:

(1) A statement of the infant's or toddler's present levels of physical development, cognitive development, communication development, social or emotional development, and adaptive development, based on objective criteria;

(2) a statement of the family's resources, priorities, and concerns relating to enhancing the development of the family's infant or toddler with a disability;

(3) a statement of the measurable results or outcomes expected to be achieved for the infant or toddler and the family, including pre-literacy and language skills, as developmentally appropriate for the child, and the criteria, procedures, and timelines used to determine the degree to which progress toward achieving the results or outcomes is being made and whether modifications or revisions of the results or outcomes or services are necessary;

(4) a statement of specific early intervention services based on peer-reviewed research, to the extent practicable, necessary to meet the unique needs of the infant or toddler and the family, including the frequency, intensity, and method of delivering services;

(5) a statement of the natural environments in which early intervention services will appropriately be provided, including a justification of the extent, if any, to which the services will not be provided in a natural environment;

(6) the projected dates for initiation of services and the anticipated length, duration, and frequency of the services;

(7) the identification of the service coordinator from the profession most immediately relevant to the infant's or toddler's or family's needs (or who is otherwise qualified to carry out all applicable responsibilities under this part) who will be responsible for the implementation of the plan and coordination with other agencies and persons, including transition services; and

(8) the steps to be taken to support the transition of the toddler with a disability to preschool or other appropriate services.

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 RELATION OF IFSP TO IEP

In the case of a child with a disability ages 3 through 5, the IEP team must "consider" the child's IFSP.

The IFSP may serve as IEP for a child with a disability aged 3 through if it meets the content requirements of Part C (IDEA 2004 at 20 USC 1436 ) and is developed in accordance with IEP procedural requirements. Additionally, use of the IFSP as an IEP must be consistent with state policy and agreed upon by the school district and the child's parents. 20 USC 1414 (d)(2)(B).

According to IDEA 2004 report language from the joint House/Senate conference committee: "The Conferees recognize that ensuring that a smooth transition from the Part C system to the Preschool Program or to school is vital for a child's educational success. It is the Conferees' intent that during the initial IEP meeting for a child transferring from the Part C program the types of services the child received as part of the IFSP are discussed. The Conferees understand that services provided through the Part B program may differ in frequency, duration, and environment, however, the IEP Team should explain the changes in services in the initial IEP meeting. The Conferees do not intend that a State or district reduce any service a child would be otherwise eligible for under Part B.''

if an IFSP was incorrectly developed by the early intervention agency and the public agency and the parent agree to use the IFSP in lieu of an IEP, the LEA is responsible for modifying the IFSP so that it meets the requirements in 34 CFR 300.323 (b). Analysis of Comments and Changes to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46679 (August 14, 2006).

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Prepared by:Whitted, Cleary & Takiff LLC

3000 W. Dundee Road, Suite 303Northbrook, IL 60062

(847) 564-8662 (847) 564-8419 FAXEmail: WhittedLaw@aol.com

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THE ROWLEY CASE:

WHAT DOES IT

REALLY MEAN?

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THE ROWLEY CASE: WHAT DOES IT REALLY MEAN?By Brooke R. Whitted

Whitted & Cleary, LLC

INTRODUCTION

The case of Rowley v. Hendrick Hudson School District 2 was the U.S. Supreme Court's first interpretation of what was then called the Education for All Handicapped Children Act (now the Individuals with Disabilities Education Act, “IDEA”). This important decision is required reading for anyone working in special education. The case concerned a hearing impaired girl named Amy Rowley, who was a student at the Furnace Woods School in Hendrick Hudson Central School District, Peekskill, N.Y. Amy had minimal residual hearing and was an excellent lip reader. During the year before she began attending school, a meeting between her parents and the school administrator resulted in a decision to place her in a regular kindergarten class. Several administrators prepared for Amy's arrival by attending a course in sign language interpretation, and a teletype machine was installed in the principal's office to facilitate communication with her parents, who were also deaf. At the end of the trial placement it was determined that Amy should remain in the kindergarten class, but that she should be provided with an FM transmitter. Amy successfully completed her kindergarten year.

As required by the Act, an IEP was prepared for Amy during the fall of her first grade year. The IEP provided that Amy should be educated in a regular classroom, should continue to use the FM device, and should receive instruction from a tutor for the deaf for one hour each day and from a speech therapist for three hours each week. The Rowleys agreed with parts of the IEP, but insisted that Amy also be provided a qualified sign language interpreter in all her academic classes in lieu of the assistance proposed in other parts of the IEP. Such an interpreter had been placed in Amy's kindergarten class for a two-week experimental period, but it was reported that Amy had no need for this service. This conclusion was reached after consultation with the school district's “Committee on the Handicapped,” which had received expert evidence from Amy's parents on the importance of an interpreter. The Committee also received information from Amy's teacher and other persons familiar with her academic and social progress, and visited a class for the deaf. When their request for an interpreter was denied, the Rowleys demanded and received an administrative hearing. After receiving evidence from both sides, the hearing officer agreed with the administrators' determination that an interpreter was not necessary because "Amy was achieving educationally, academically, and socially" without such assistance. The examiner's decision was affirmed on appeal by the New York Commissioner of Education. The Rowleys then brought an action in the United State District Court for the Southern District of New York, claiming that the administrators' denial of the sign language interpreter constituted a denial of the "free appropriate public education" guaranteed by the Act. (Excerpt from the court's own description at 458 US 176 at 183)

The holdings in the Rowley case have become the standard of analysis for every subsequent special education case arising in the Federal and State courts. Consequently, a 2 Board of Education of the Hendrick Hudson Central School District, et. al. v. Amy Rowley, et. al., 458 U.S. 176, 102S.Ct.3034 (1982).

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working knowledge of the fundamental analysis developed by the Supreme Court justices is important when evaluating any special education matter. In this paper, this analysis will be examined in detail. Any practitioner or educator looking at a special education file should keep this analysis in mind at all times. Since all other courts do this as well, the questions asked by the Rowley court are instructive even today, well over twenty years later.

The Rowley Questions:

These are best presented in the form originally developed by the Supreme Court:

Therefore, a court's inquiry in suits brought under §1415(e)(2) is twofold. First, has the State complied with the procedures set forth in the Act? [FN27] And second, is the individualized education program developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits? [FN28] If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more. (458 US 176, 204) (Emphasis added.)

As the analysis goes, if the school district has not complied with the Federally mandated procedures, and if the violation resulted in some form of significant harm to the student, all educational decision making from the point of the violation forward is suspect. What this means is that judges will be more likely to step in and substitute their judgment for that of the educators, given a significant procedural violation. If, on the other hand, the school district has complied with all of the procedures in the Act, then the analysis requires asking the second "Rowley question."

The Supreme Court, however, first examines the priorities assigned by Congress to procedural requirements:

But although we find that this grant of authority is broader than claimed by petitioners, we think the fact that it is found in §1415, which is entitled "Procedural Safeguards," is not without significance. When the elaborate and highly specific procedural safeguards embodied in §1415 are contrasted with the general and somewhat imprecise substantive admonitions contained in the Act, we think that the importance Congress attached to these procedural safeguards cannot be gainsaid. It seems to us no exaggeration to say that Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at every stage of the administrative process, see, e.g. §§1415(a)-(d), as it did upon the measurement of the resulting IEP against a substantive standard. We think that the congressional emphasis upon full participation of concerned parties throughout the development of the IEP, as well as the requirements that state and local plans be submitted to the

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Secretary for approval, demonstrates the legislative conviction that adequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP. (458 US 176, 204; emphasis added.)

"Significant" Violations:

A recurrent problem is whether a procedural violation under Rowley is "significant." In 2002, a district was held (at 38 IDELR 85) to have violated "several" procedural requirements of the IDEA but even so, the student received all of his IEP services. The court therefore concluded that there was no resulting denial of a free appropriate public education under IDEA. The procedural violation, therefore, must actually result in some harm to the student before it becomes "significant."

Adverse Educational Impact:

Another recurrent problem is the issue of a student passing from grade to grade and still remaining eligible for services. Amy Rowley herself got good grades, and the court held that she was not entitled to a sign language interpreter as requested by her parents. This did not mean that she was ineligible for other special education services, as she was still hearing impaired and met the definitional requirements. In fact, the court itself in Rowley said:

We do not attempt today to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act. Because in this case we are presented with a handicapped child who is receiving substantial specialized instruction and related services, and who is performing above average in the regular classrooms of a public school system, we confine our analysis to this situation. (458 US 176 at 202; emphasis added.)

In the Cornwall case (17 EHLR 10239/1991) the court held that there was a significant impact on educational performance even though the child had not failed any courses. In Yankton (93 F. 3rd 1369, 8th Cir. 1996), a cerebral palsy child was getting high grades but was still entitled to specially designed instruction and related services. In Schoenfield (8th Cir. 1998) the court held that academic performance at or above age level does not necessarily mean a child is not "disabled," or that the education satisfied the standard of appropriateness under Rowley.

It can be seen, then, that while Rowley holds that passage from grade to grade is one important indicator of whether an educational benefit has been conferred, it is not the sole criterion but should be "in the mix" of other considerations. It is a fatal mistake for a school district to declare that a child is ineligible solely because he or she is receiving passing grades.

Educational Benefits:

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The court's own language serves to explain this prong of the Rowley test with the greatest skill:

Implicit in the congressional purpose of providing access to a "free appropriate public education" is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicapped child. It would do little good for Congress to spend millions of dollars in providing access to a public education only to have the handicapped child receive no benefit from education. The statutory definition of "free appropriate public education," in addition to requiring the States to provide each child with "specially designed instruction," expressly requires the provision of "such…supportive services…as may be required to assist a handicapped child to benefit from special education." §1401(17). We therefore conclude that the "basic floor of opportunity" provided by the Act consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child. [FN23] (458 US 176 at 200, emphasis added).

And this analysis is extended to the provision of a FAPE for eligible children:

When the language of the Act and its legislative history are considered together, the requirements imposed by Congress become tolerably clear. Insofar as a State is required to provide a handicapped child with a "free appropriate public education," we hold that it satisfies this requirement by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. Such instruction and services must be provided at public expense, must meet the State's educational standards, must approximate the grade levels used in the State's regular education, and must comport with the child's IEP. In addition, the IEP, and therefore the personalized instruction, should be formulated in accordance with the requirements of the Act and, if the child is being educated in the regular classrooms of the public education system, should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade. [FN26] (458 US 176 at 202, emphasis added.)

The question of how to deal with students who are not capable of obtaining passing grades under any circumstances is not clearly answered by the Supreme Court in Rowley. However, the footnotes make reference to the required full continuum of alternative settings, and the need for some students to be placed in settings other than the mainstream. It is clear, especially in light of decisional case law subsequent to Rowley, that when a child is placed in a more restrictive setting, the decision must be driven by the unique need of the student and not by administrative

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convenience or other factors (see, e.g., Beth B. v. Mark VanClay and School District #65 (Federal Appellate Case Decided March 5, 2002) [2002 WL 341017, 36 IDELR 121 (7th Cir.).

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Selected Case Footnotes

(Emphasis is Added)

(73 L.Ed.2d 710) 25. We do not hold today that every handicapped child who is advancing from grade to grade in a regular public school system is automatically receiving a "free appropriate public education." In this case, however, we find Amy's academic progress, when considered with the special services and professional consideration accorded by the Furnace Woods School administrators, to be dispositive.

But see footnote 23!

(73 L.Ed.2d 712)

28. When the handicapped child is being educated in the regular classrooms of a public school system, the achievement of passing marks and advancement from grade to grade will be one important factor in determining educational benefit. See Part III, supra.

This note is from the Dissent: Justices White, Brennan, and Marshall

1. The Court's opinion relies heavily on the statement, which occurs throughout the legislative history, that, at the time of enactment, one million of the roughly eight million handicapped children in the United States were excluded entirely from the public school system and more than half were receiving an inappropriate education. See, e.g., ante, at 189, 195, 196-197, 73 L Ed 2d, at 701, 705, 706. But this statement was often likened to statements urging equal educational opportunity. See, e.g., 121 Cong Rec 19502 (1975) (remarks of Sen. Cranston); id., at 23702 (remarks of Rep. Brademas). That is, Congress wanted not only to bring handicapped children into the schoolhouse, but also to benefit them once they had entered.

(Footnote 23)

THIS NOTE devotes substantial space and time to the concept of self-sufficiency and this should be pointed out to any hearing officer, administrator, or attorney who insists that the opinion stands for the rigid

"With proper education services, many would be able to become productive citizens, contributing to society instead of being forced to remain burdens. Others, through such services, would increase their independence, thus reducing their dependence on society." S. Rep, at 9. See also HR Rep, at 11. Similarly, one of the principal Senate sponsors of the Act stated that "providing appropriate educational

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proposition that "any" satisfactory grade record will do. Moreover, the presence of 'relaxed' grading standards (i.e., giving passing grades just for trying) does not assist the pupil in the permanent and long-range development of self-sufficiency skills.

services now means that many of these individuals will be able to become a contributing part of our society, and they will not have to depend on subsistence payments from public funds." 121 Cong Rec 19492 (1975) (remarks of Sen. Williams). See also id., at 25541 (remarks of Rep. Harkin); id., at 37024-37025 (remarks of Rep. Brademas); id., at 37027 (remarks of Rep. Gude); id., at 37410 (remarks of Sen. Randolph); id., at 37416 (remarks of Sen. Williams).

The desire to provide handicapped children with an attainable degree of personal independence obviously anticipated that state educational programs would confer educational benefits upon such children. But at the same time, the goal of achieving some degrees of self-sufficiency in most cases is a good deal more modest than the potential maximizing goal adopted by the lower courts.

Despite its frequent mention, we cannot conclude, as did the dissent in the Court of Appeals, that self-sufficiency was itself the substantive standard, which Congress imposed upon the States. Because many mildly handicapped children will achieve self-sufficiency without state assistance while personal independence for severely handicapped may be an unreachable goal, "self-sufficiency" as a substantive standard is at once an inadequate protection and an overly demanding requirement. We thus view these references in the legislative history as evidence of Congress' intention that the services provided handicapped children be educationally beneficial, whatever the nature or severity of their handicap.

(Footnote 21)

The second recognition herein that some "mainstream" settings, while less restrictive, are simply not appropriate for the education of some handicapped children. Again in opposition to reflexive LRE and "full inclusion" arguments used by management attorneys.

The use of "appropriate" in the language of the Act, although by no means definitive, suggests that Congress used the word as much to describe the settings in which handicapped children should be educated as to prescribe the substantive content or supportive services of their education. For example, § 1412(5) requires that handicapped children be educated in classrooms with non-handicapped children "to the maximum extent appropriate." Similarly, § 1401(19) provides that, "whenever appropriate," handicapped children should attend and participate in the meeting at

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which their IEP is drafted. In addition, the definition of "free appropriate public education" itself states that instruction given handicapped children should be at an "appropriate preschool, elementary, or secondary school" level. § 1401(18)(C). The Act's use of the word "appropriate" thus seems to reflect Congress' recognition that some settings simply are not suitable environments for the participation of some handicapped children.

73 L.Ed.2d 708 – from the body of the opinion:

This Note is one of the most significant parts of the opinion, as it explains what the Court IS and IS NOT deciding. While "self-sufficiency" is not the exclusive factor, it is an important factor in determining if an educational benefit has been "conferred."

(73 L.Ed.2d 709)

We therefore conclude that the "basic floor of opportunity" provided by the Act consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child. 23

23. This view is supported by the congressional intention, frequently expressed in the legislative history that handicapped children be enabled to achieve a reasonable degree of self-sufficiency. After referring to statistics showing that many handicapped children were excluded from public education, the Senate Report states:

"The long range implications of these statistics are that public agencies and taxpayers will spend billions of dollars over the lifetimes of these individuals to maintain such persons as dependents and in a minimally acceptable lifestyle."

The language of "educational benefit." The root of this language is not just that the child must receive "any" benefit: the benefit must be "received" within the context of the child's unique needs, not the needs of the agency. The origin of the language is explained in this note – as a way of providing handicapped children with an inviolable access to educational services, which provision this court, reads very strictly (see Honig v. Doe, 484 U.S. 305, 308 (1988)).

(73 L.Ed.2d 704)

15. The only substantive standard, which can be implied from these cases, comports with the standard implicit in the Act. PARC states that each child must receive "access to a free public program of education and training appropriate to his learning capabilities," 334 F. Supp, at 1258 (emphasis added), and that further state action is required when it appears that "the needs of the mentally retarded child are not being adequately served," id., at 1266 (emphasis added). Mills also speaks in terms of "adequate" educational services, 348 F Supp, at 878, and sets a realistic standard of providing some educational services to each child when every need cannot be met.

The inadequacies of the District of

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Columbia Public School System whether occasioned by insufficient funding or administrative inefficiency, certainly cannot be permitted to bear more heavily on the 'exceptional' or handicapped child than on the normal child." Id., at 876.

While the EHA does not mandate 'maximization' of benefits under this decision, note that settled decisional case law provides that states which choose to grant greater rights than the Federal mandate requires must do so uniformly – and the state standard will in such cases prevail.

(73 L.Ed.2d 706)

21. In seeking to read more into the Act than its language or legislative history will permit, the United States focuses upon the word "appropriate," arguing that "the statutory definitions do not adequately explain what [it means]." Brief for United States as Amicus Curiae 13. Whatever Congress meant by an "appropriate" education, it is clear that it did not mean a potential maximizing education.

The term as used in reference to educating the handicapped appears to have originated in the PARC decision, where the District Court required that handicapped children be provided with "education and training appropriate to [their] learning capabilities." 334 F Supp, at 1258. The word appears again in the Mills decision, the District Court at one point referring to the need for "an appropriate education program," 348 F Supp, at 879, and at another point speaking of a "suitable publicly supported education," id., at 878. Both cases also refer to the need for an "adequate" education. See 334 F Supp, at 1266; 348 F Supp, at 878.

Independence and Self Sufficiency:At 20 U.S.C. 1400 (c)5(E)ii, it is indicated that 20 years of research under the old IDEA

has demonstrated that training people through high quality intensive professional development ensures that these personnel have the skills to enable children to be prepared to lead productive, independent, adult lives to the maximum extent possible. This language in the "purposes" clause of Rowley appears to provide a potential argument that the Rowley standard of requiring districts to provide "adequate" services might have been elevated. In addition, at Section 1400(d), under purposes (1)A, one of the purposes of the IDEA is to enable individuals to meet their unique needs and prepare them for employment and independent living. This is reminiscent of the footnote discussion in the Rowley case. It is clear that one of the purposes of the Act is to prepare students for independence to the extent that their abilities permit.

Conclusion:

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Special educators should take special notice of the Rowley case, as it is still good law and it acts as the blueprint for all cases to follow. The two Rowley questions emphasizing procedural compliance and the benefits of the IEP should be committed to memory. Finally, the focus of the decision on what is “appropriate” for special education students should be given special emphasis, especially in light of the social emphasis on so-called “inclusion” in recent years.

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SECTION 504 IN THE PUBLIC SCHOOLS:HOW DOES IT DIFFER FROM THE IDEA?

Lara ClearyBrooke Whitted

Whitted, Cleary & Takiff3000 Dundee Rd.

Suite 303Northbrook, Illinois

60062(847) 564-8662

Overview

Three laws: Section 504 of the Rehabilitation Act of 1973 (“Section 504”), Title II of the Americans with Disabilities Act (“ADA”), and the Individuals with Disabilities Education Act (“IDEA”) provide procedural and substantive protection for students with disabilities. Section 504 and the ADA are federal antidiscrimination laws that prohibit discrimination based on disability and are applicable in public schools. However, the ADA also applies to non-public schools. Section 504 was passed in 1973, as an amendment to the Federal Rehabilitation Act, as Congress’ first response to try to correct unconstitutional discrimination against disabled students in public schools. The IDEA, passed in 1975, includes provisions granting funds for special education implementation and ensuring that all states provide procedural rights and entitlements to eligible individuals and their parents or guardians.

There are important differences between the legal requirements of Section 504 and the requirements of IDEA. For instance, the assurance of a free and appropriate public education (“ FAPE”) under IDEA applies only to students who, because of their disability, need special education and related services. Section 504's protections, on the other hand, include all students covered by IDEA as well as students whose disabilities substantially impair one or more major life activities. A student with diabetes or with ADHD in need of just accommodations within the classroom may not be covered under IDEA but would likely be covered under Section 504. Most protected individuals under 504 are entitled to a "free appropriate public education" in much the same way that students with qualifying disabilities are entitled to FAPE under IDEA.

Eligibility

Unlike the IDEA which prescribes specific eligibility definitions and criteria, students are eligible for Section 504 protection if they have a physical or mental impairment that substantially limits one or more major life activities or if they have a record of or are regarded as having such an impairment.

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The term “substantially limits” means when the individual’s important life activities are restricted as to the conditions, manner or duration under which they can be performed in comparison to most people.

Section 504 is based on a three-pronged evaluation.

1. Does the student have a mental or physical impairment?

2. Is the student substantially limited?

3. Is the student substantially limited in one or more major life activity?(caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working) (See Appendix A, below)

Procedural Requirements:

There are many procedural protections in Section 504, a few of the more significant requirements require the school district:

1. Give notice to the parent of a student with disabilities and give notice to the public in general to begin “Child Find.”

2. Conduct a self-evaluation of all of their policies, practices, procedures, customs or usages to determine if they have a discriminatory impact on students with disabilities.

3. Designate a person by name and address who will coordinate the District’s compliance with Section 504.

4. Be able to give the parents a written statement of their rights, and their duties to the parents and the student, under Section 504. These rights are not the same as those under IDEA.

5. Designate a Section 504 grievance coordinator.

6. Adopt “grievance procedures” that provide for prompt and equitable resolution of any complaint” that the parent might make under Section 504.

7. Write guidelines for evaluation for mental or physical impairment.

8. Have an evaluation process that looks at a functional analysis of the impairment, how it causes a lack of access to full education, and what could be done to remove the barrier to what the typical students have access to.

9. Be able to provide a free appropriate public education policy statement.

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10. Have a discipline policy for Section 504 eligible students. Under Section 504, cumulative short suspensions can add up to a significant change in placement. A suspension for one night might trigger a need for an independent evaluation.

The Plan

The regulations for Section 504 do require school districts to provide an individualized program under which an eligible student receives FAPE, however, it does not specify the format of that plan, as do the regulations for the IDEA.

Although not recommended, courts and OCR have held that Section 504 permits informal or even verbal accommodation plans. M.H. v. Montana High Sch. Ass'n, 25 IDELR 42 (Mont. 1996). However, OCR does require an evaluation and a placement decision by a group of knowledgeable persons. Culver City (CA) Unified Sch. Dist.,16 IDELR 673 (OCR 1990).

School districts should look to OCR guidance and case law to provide some guidance for what plans must contain to be compliant with the law. The following are some basic requirements:

1. Nature of the student's disability and the major life activity it . Usually this is learning; however, it is not limited to that. It's the job of the team that evaluates the student to determine if the disability substantially limits a major life activity.

2. The basis for determining the disability . Section 504, like the IDEA, requires schools to meet certain evaluation procedures, which must be documented in the accommodation plan. Appendix A, below, provides some examples.

3. The educational impact of the disability . The multidisciplinary team must describe how the disability affects the child's educational performance so proper accommodations can be prescribed.

4. The necessary accommodations . Section 504’s FAPE standard requires schools to provide services that are designed to meet the individual needs of individuals with disabilities as they meet the needs of individuals without disabilities (non-discrimination). This standard differs from the IDEA's standard, thus, it is possible in some cases for the required services to also differ from those mandated under the IDEA. Some sample accommodations are available in Appendix B.

5. Placement in the least restrictive environment . The LRE requirement in Section 504 is similar to the LRE mandate of the IDEA.

Generally Section 504 plans will contain less components than an IEP. Most education

experts do not recommend following IEP procedures for students who are ineligible for IDEA services. A sample Section 504 plan is provided in Appendix C, below.

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OCR has stated that lack of specificity in a written Section 504 plan is excusable where the district has provided the required accommodations and the district required flexibility to enable it to modify the student's services according to her needs during the course of year. Wayne Cent. Sch. Dist., 43 IDELR 257 (OCR 2005).

Similarly, in Cascade Sch. Dist., 37 IDELR 300 (SEA OR 2002), parents of a child with a peanut-allergy argued that a 504 plan was not sufficiently detailed. An administrative law judge decided the district offered a 504 plan that provided accommodations and services that allowed the student to safely access school as adequately as the district allowed for safe access to students without disabilities, and that the 504 plan was designed to meet her individual needs as adequately as the needs of students without disabilities are met.

Services

Because they are generally accommodations and modifications, not specially designed instruction, services for children with Section 504 plans are most often delivered in the regular education classroom. See Appendix B below, for a list of common Section 504 services.

Legal Remedies for Violations of Section 504

There is a lot less litigation under Section 504 than under the Individuals with Disabilities Education Act. A hearing procedure is available, but it is much less formal than under the IDEA. An impartial hearing officer is appointed by the school district. This person must have some knowledge of 504, although a law degree is not required. The hearing officer must not be an employee of the school district. The hearing must be at least tape-recorded, but transcripts are not required. The formal question and answer format of an IDEA hearing is not required, both parties make informal presentations instead. Legal objections to evidence or testimony will not be recognized; the hearing officer merely gathers all the evidence he or she feels is required to make a decision. The hearing officer must issue a written decision with findings of fact and conclusions of law.

The remedies available under the IDEA are not necessarily available under Section 504. The following are available remedies under the IDEA:

1. Private school tuition reimbursement - The IDEA allows for this remedy pursuant to the Supreme Court decision in Burlington School Committee v. Massachusetts Department of Education,, 556 IDELR 389 (1985) however, there is limited precedent recognizing such reimbursement for denials of FAPE under Section 504.

2. Compensatory damages - Many courts have ruled money damages are available under Section 504 when there is proof of intentional discrimination, bad faith or gross misjudgment. See the U.S. Supreme Court's decision in Franklin v. Gwinnett Public Schools 27 IDELR 890 (1992), (compensatory damages are available for student suits against districts under Title IX).

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3. Punitive damages – The recognition that compensatory damages are available for Section 504 violations has not been extended to punitive damages. This is true for the IDEA as well

4. Compensatory education - The OCR has acknowledged the availability of this remedy and has ordered provision of compensatory education to students with disabilities denied appropriate education services. See Chicago (IL) Bd. of Educ., 257 IDELR 526 (OCR 1984)

5. Attorney's fees - Attorneys' fees are available to prevailing parties under the Section 504 regulations state, "In any action or proceeding to enforce or charge a violation of a provision of this subchapter, the court, in its discretion, may allow the prevailing party (other than the United States) a reasonable attorneys' fee as part of its costs." 29 USC 794(b).

Appendix A

The following list shows what a typical student can do. If a given student cannot do one or more of these tasks, the student may be eligible for Section 504 protections.

____ Get to school the same way that typical children their age get to school____ Arrive at school on time____ Stay outside on the school grounds, without unusual supervision, until the bell rings____ Go to the right room when the bell rings____ Interact with other students during the day in socially appropriate ways____ Understand and follow school rules____ Respond appropriately to instructions from school personnel____ Ask for help when needed____ Receive information both orally and in writing____ Communicate effectively through speech or writing to teachers and classmates____ Participate in class as required by the teacher____ Work independently____ Work in groups____ Not disrupt the class____ Handle the volume of material introduced each day in the regular curriculum____ Handle the rate at which material in introduced in the regular curriculum____ Read at grade level____ Write at grade level____ Not require the use of assistive technology during the day____ Take tests without modifications such as extra time, oral administration taking the test in a quiet place____ Change classes when the bell rings____ Go to the restroom, if needed, during the class changes and without assistance____ Get the next period’s classroom on time

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____ Sit in the correct assigned seat in each class____ Use a school locker and get the right materials____ Each lunch with the regular students____ Participate in regular PE____ Participate in recess or free time with little or no supervision____ Not create a safety concern____ Attend general school meetings ____ Copy down the homework assignments correctly____ Do the required homework each night____ Take the homework and necessary materials back to school____ Turn the homework in on time____ Attend school each day____ Stay for the whole day____ Have only a few absences____ Make up any work that is missed____ Stay after school and participate in extracurricular activities____ Pass each year and advance to the next grade____ Return to school each Fall____ Take all required exit exams or other tests____ Be on schedule to graduate with a regular diploma after 12 years of instruction____ Be prepared to live independently after graduation____ Be prepared to be employed after graduation____ Be able to get access to recreation and leisure activities in your community after graduation____ Be able to get access to further education and training to upgrade their skills after graduation

Appendix B

Services that should be considered available when writing a Section 504 Plan include:

____ Providing a structured learning environment____ Repeating and simplifying instructions about in-class assignments____ Repeating and simplifying instructions about homework assignments____ Supplementing verbal instructions with visual instructions____ Using behavioral management techniques____ Adjusting class schedules____ Modifying test delivery____ Using tape recorders____ Computer aided instruction____ Other audio-visual equipment____ Selecting modified textbooks____ Selecting modified workbooks____ Tailoring homework assignments consultation with special education

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____ Reducing class size____ Use of one-on-one tutorials____ Use of classroom aides____ Use of classroom note takers____ Involvement of services coordinator to oversee implementation of special programs and services____ Possible modification of nonacademic time such as lunch room____ Possible modification of nonacademic time such as recess____ Possible modification of nonacademic time such as physical education

Appendix C – Sample Section 504 Conference Summary

SECTION 504 CONFERENCE SUMMARY

STUDENT: __________________________________ DATE: __________________

SCHOOL: ___________________________________ GRADE: _________________

CONFERENCE PARTICIPANTS (Title and Name)

_____________________________________ __________________________________

_____________________________________ __________________________________

_____________________________________ __________________________________

_____________________________________ __________________________________

PURPOSE OF CONFERENCE:To consider possible eligibility and provision for services under section 504 of the Rehabilitation Act of 1973

To review eligibility and services being provided for under Section 504 of the Rehabilitation Act of 19783

Other: (Specify) ________________________________________________________

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I. IDENTIFY EDUCATIONAL CONCERN(S):

II. SUMMARY OF EVALUATION (if applicable) Identify assessment procedure(s) and results:

III. DETERMINATION OF ELIGIBILITY (if applicable) Consider and specify if a mental or physical condition impacts significantly on one or more of the following: care of oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, an/or learning, in the school setting.

Condition/Life Function Description of the Significant ImpactWithin the School Setting

IV. APPROPRIATE SERVICES/ACCOMODATIONS TO BE PROVIDED (if applicable) Describe each accommodation/service to be provided by the district for areas of significant impact listed in Section II.

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V. SUMMARY OF OTHER POINTS OF DISCUSSION/RECOMMENDATIONS (if applicable)

You have the right to review your child’s records and to request a hearing if you disagree with the district’s identification, evaluation, provision of services, or change or termination of services under Section 504. If you desire a review of the records or wish to initiate a hearing, please contact the school principal.

You have the right to legal representation, to review your child’s records and to request a hearing if you disagree with the district’s identification, evaluation, provision of services, or change or termination of services under Section 504. If you desire a review of the records or wish to initiate a hearing, please contact the school principal

I have received a copy of the 504 Conference Summary and an explanation of the rights explained above.

_________________________________________ ____________________________Signature of Parent/Guardian Date

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MEMO

To: Friends and Clients of Whitted, Cleary + Takiff, LLCFrom: Brooke R. Whitted, Lara A. ClearyDate: March 7, 2002Re: Beth B. v. Mark VanClay and School District #65

(Federal Appellate Case Decided March 5, 2002)[2002 WL 341017, 36 IDELR 121 (7th Cir.)

I would like to alert you to a recent Seventh Circuit opinion, Beth B. v. Mark VanClay and School District #65. We have attempted to highlight the salient portions of the opinion which, in our opinion outlines a much more common sense reading of the Rowley case, i.e., it reads the least restrictive environment provision in a way that was intended by Congress.

The history of this case is that the parents were desirous of mainstreaming their daughter at all costs, much as in the case of Light v. Parkway3. Their argument was that their daughter, who suffered from Rett Syndrome, was receiving "benefit in the mainstream” and therefore the school district was prohibited from changing her to a self contained placement. The Appellate Court disagreed with parents, stating that they had misread relevant legal provisions. In fact, the court said that Beth's parents…

confused the FAPE side of the coin with the LRE side. They contend that Beth's current placement satisfies the Rowley standard because she received an educational benefit at Lake Bluff Middle School. So long as the regular classroom confers "some educational benefit" to Beth, they argue, ……the school district cannot remove her from that setting. This language is misplaced. The Rowley holding applies only to the school district's responsibility to provide a FAPE – a requirement that analyzes the appropriateness of the district's placement – not the appropriateness of the ELS alternatives including the regular education classroom. (Emphasis added)

3 Light v. Parkway, 515 U.S. 1132 (1995)

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The court goes on to say that the preference for mainstreaming demands "a hard look and a careful analysis" of the education the student was receiving at the middle school. The parents rely on "misplaced language from Rowley" to argue that so long as she was receiving .

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MemorandumBeth B. v. Mark VanClay and School District #65Page 2

any benefit at all, her removal would "violate the LRE requirement." The court disagreed. It said that by applying this kind of reasoning to the LRE directive and arguing that the school district can't remove a student from the regular classroom if she receives any benefit there, the parents turn the "some educational benefit" language upside down. Instead of granting flexibility to educators, such a view places an extreme restriction on their authority and the deference they are owed pursuant to decisional case law. Essentially, such an approach would limit districts' authority to place any disabled children in separate special education settings. The court recognizes in this opinion that "neither Congress nor the Supreme Court intended such result." The court then incorporates the Rowley footnotes, wherein the U.S. Supreme Court says in footnotes four and twenty-one that Congress clearly recognized that some students would simply not be suitable for education in the mainstream.

Rowley started with common sense, but some of the decisions that have interpreted its LRE requirement in as in this case, have totally missed the point. The operational word in the LRE language is "appropriate," and that is an easy word to understand. The reasoning is as common sense as in the 8th Circuit Wayzata case, decided on August 3, 2001.4 In that case, the hearing officer held that the child needed to be in a "secure" residential setting and the school district appealed the decision. Yet, the Wayzata court held that the child's truancy and defiance of authority result from a genuine emotional disturbance rather than from a "purely moral failing," and therefore the child was eligible. Further, the Wayzata court held that if any problem prevents a child from receiving educational benefits, what difference does it make where the problem came from or whether it is "educational" or "cognitive" or not? The real question, according to that court was, Does the problem need to be addressed in order for the child to learn? And with regard to LRE, the court held that the Federal statute requires mainstreaming only to the maximum extent appropriate, not to the maximum extent possible (citing Burlington).

Finally, with regard to the Beth B. case, a close look should be given to the repetitive language in the opinion that school authorities are better suited than Federal Judges to determine educational policy. The court systems are required, in their independent evaluation of evidence in individual cases, to give due deference to the results of the administrative proceedings, due to the greater expertise of the educators. Remember: the U.S. Supreme Court's inquires in Rowley prevail in all special education 4 Independent S.D. #284, Wayzata Area Schools, v. A.C. 2001 WL 872913 (8th Cir. 2001)

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cases. If there has been no significant procedural violation, the decision-making of the educators receives due deference. If there has been a significant procedural violation which does harm to the student, the decisions by the educators then become suspect and subject to much closer scrutiny than if the procedural requirements had been followed.

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WHITTED, CLEARY & TAKIFF LLCSuite 3033000 Dundee RoadNorthbrook, Illinois 60062(847) 564-8662; Facsimile (847) 564-8419www.wct-law.com

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SERVICES ATPRIVATE SCHOOLS:

OBLIGATIONS OFSCHOOL DISTRICTS

FORVOLUNTARILY ENROLLEDSTUDENTS

AND “UNILATERAL” PARENT

PLACEMENTS

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PRIVATE SCHOOLS

Retroactive Reimbursement Under IDEA

I. The Burlington Case

A. Introduction

Prior to the Burlington case,5 it was very difficult for advocates to argue on behalf of parents that retroactive reimbursement was a remedy which might be available under IDEA. Nevertheless, in 1985, the Burlington case was decided. A few of the very unusual things about the Burlington case were that (1) it was a unanimous U.S. Supreme Court decision and (2) it was an opinion delivered by Justice Rehnquist. As some of the readers of this article might be aware, unanimous Supreme Court opinions do not occur all that often, and Mr. Justice Rehnquist was not known for his sympathies toward protected groups. These two factors make the Burlington opinion all that much more powerful.

B. The Opinion

The Burlington opinion involved the parents' unilateral placement in a facility, in part during the pendency of proceedings under the IDEA. At the end of the case, since the district noted that the parent had only prevailed partially, the school district sought to be paid back for that period of time during which it felt it had "won" part of this six year case. The U.S. Supreme Court said that the "stay put" or "frozen placement" provision did not work two ways. In other words, the IDEA provision is parent oriented. Thus, it applies only where a parent, in an attempt to provide an appropriate educational setting for his or her child, effects a unilateral placement in an appropriate facility.

There was a caveat in the case. Where an appropriate education is shown to have been made available by the district at the time the unilateral placement was made by the parent, the parent placement of the child in a non-public location is at parents own expense. This tracks precisely with the provision in the regulations at 34 C.F.R. 300.403(a) which stated at the time the case was decided:

5 Burlington School Committee v. Department of Education of Massachusetts, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985).

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If a child with a disability has FAPE6 available and the parents choose to place the child in a private school or facility, the public agency is not required by this part to pay for the child's education at the private school or facility.

II. The Carter Case

A. Introduction

Once the Burlington case was decided, legal luminaries in the field of parent advocacy were most pleased to advise their clients that this remedy was available, as long as the facility chosen by the parent “met the standards” of the state in which retroactive reimbursement is sought. In Illinois, for example, the state statute provides for the state board to maintain an "approved" list of placements which have met certain state standards.7 In Indiana, there is no such list and if the proper approvals are obtained in a particular case, any reasonably appropriate facility may be used. States do vary, but advocates did make attempts to steer their clients to "state approved" facilities.

B. The Case Facts

In 1993, Justice Sandra Day O'Connor delivered the Carter opinion.8

In this case, the pupil in question, Shannon Carter, was classified as learning disabled in ninth grade in 1985 and the school's recommendation was regular education with three resource periods per week. The goal was to get Shannon to progress four months during the entire school year. The parents requested a hearing, and on both administrative levels, the independent hearing officers held (against the parents) that the IEP was adequate. Meanwhile, the parents had placed Shannon privately in a school for disabled LD students, but this school was not "approved" by the state and in fact did not even write Individual Education Plans. Shannon graduated from the school in 1988.

In 1986, two years before Shannon's graduation, the parents filed suit to challenge the adverse administrative decisions. After a bench trial, the parents won. The court, in the process, appointed an independent expert to evaluate Shannon's progress and gave great weight to the findings. It was found that she had made "substantial progress" even though the school

6 Free Appropriate Public Education.7 Cite 105 I.L.C.S. 5/14-7.02 (1994).8 Florence County School District Four v. Carter, ___ U.S. ___, 114 S.Ct. 361, 126

L.Ed.2d 284 (1993).

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did not follow all of the state standards. For example, her reading levels rose three grades per year as opposed to the goals designated in the IEP.

The appellate court affirmed that the private school was "appropriate," and that the parents were entitled to retroactive reimbursement. It should be noted in this case that the violations generally were not procedural but substantive in nature. A challenge to the substantive basis for the IEP becomes a battle of experts and it is best to use the most highly qualified and reputable experts that a parent can afford. An affiliation with a major center of learning also helps.

C. Court’s Holdings

The Supreme Court, after reviewing the appellate court and trial records, delivered the following holdings: (1) that the IEP was inappropriate; (2) that the private school's program was reasonably calculated to enable the child to receive educational benefits under the Rowley9 test; and (3) that retroactive reimbursement to parents when an IEP is found to be inappropriate does not require placement in a state approved program.

In somewhat acid tone, Justice Sandra Day O'Connor asked why courts should leave the job of "approval" in the hands of the very agency that violated the plaintiff's rights in the first place.

This decision was unanimous, as was Burlington, which was heavily quoted in the Carter decision. The case further held that Burlington grants parents a right of "unilateral withdrawal" and placement of their child in a non-approved private facility when a district's IEP is inappropriate. The Court explained that "approval" requirements do not make sense in the context of a parental placement. Note also here that the private school was in fairly severe non-compliance with any state standards. Two faculty members were not state certified, they didn't write IEPs, and the State of South Carolina kept no list of approved private schools but "approved" them on a case by case basis. However, it was pointed out by Justice O'Connor that public school officials had previously placed three children at the school.

The final holding of the Court is instructive. As support for the proposition that parents need not seek state cooperation in the form of state approval of the parents' placement, she noted that "such cooperation is

9 Board of Education v. Rowley, 458 U.S. 176, 206-07, 102 S.Ct. 3034, 3051, 73 L.Ed.2d 690 (1982).

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unlikely in cases where the school officials disagree with the need for private placement." Id., 114 S.Ct. at 366.

III. Public Law 105-17: The 1997 Revisions to IDEALimit Carter/Burlington Recovery to Some Degree

A. New IDEA Section

The new Section 1412(a)(10(C)(iii) mandates that to preserve the parental right to seek retroactive reimbursement under the Burlington and Carter cases, it is necessary that the district be notified at the “most recent IEP meeting” or letter must be submitted to the district, at least ten business days in advance of actually placing the child, of parental intent to place. This means there must be some evidence that the district has actually received the correspondence, and further, the parent theoretically cannot place prior to ten business days having elapsed from date of receipt. The term “business day” includes any regular business day even though that might fall on a school holiday.

B. Effects of Amendment

The Burlington and Carter cases have thus been limited by IDEA reauthorization. There are certain specific limitations to retroactive reimbursement if parents do not properly comply with their notification duties. For convenience, a sample notification form is attached, “Appendix I.”

IV. Preauthorization - “Proportionate Share”

A. Decisional Precursor to Reauthorization

Fowler v. Unified School District 259, 107 F.3rd 797 (10th Cir. 1997)

B. Facts and Holdings of the Courts

Parents withdrew their hearing impaired son from a district school and enrolled him in a private school, requesting an ASL interpreter onsite full time for purposes of “increased academic challenge.” The school district declined and the parents requested a hearing. The hearing officer held for the parents, with the state level hearing officer reversing against them. The parents then appealed to the federal district court which held for the parents and this case involved the district’s federal appeal of that adverse trial court ruling.

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The court held there was an obligation for “equitable” participation in FAPE for “voluntarily enrolled” pupils, as there is a difference between children placed in private schools through an IEP and those placed “unilaterally” at parental discretion (as in this case).

The court examined K.R. v. Anderson Community School Corp., 81 F.3d 673 (7th Cir. 1996) and Goodall v. Stafford County School Board, 930 F.2d 363 (4th Cir. 1991). Both of these cases held that if FAPE is made available by the district and the parents choose, at their discretion, to enroll the child at a private facility, there is no obligation on the part of the district to give services onsite. The court also looked at Cefalu (103 F.3d 393, 5th Cir. 1997) and Russman (85 F.3d 1050, 2nd Cir. 1996) and Cefalu’s test as follows: “Is onsite provision of services necessary in order for them to be meaningful?” If the answer is yes, according to Cefalu, the student is entitled to some, but not more, benefit than he or she would receive if attendance was at the public school.

C. Discussion

Most significant about this case is the pre-IDEA reauthorization “proportionate share” language. Here, the court stated that district must calculate the average amount spent per pupil (it is unknown whether this is per handicapped pupil or all pupils) in the public school for the service in question, and make an “equivalent” amount of funding available for any student enrolled in a private school. Later, of course, the U.S. Supreme Court vacated the rulings in Anderson, Russman, and Fowler and ordered the appellate courts to reexamine their holdings in light of the reauthorization of IDEA.

V. IDEA Reauthorization - Private Schools (20 U.S.C. §1412(a)(10) et. seq.)

A. Enrollment by Parents - §1412(a)(10)(A)(i) (“voluntarily” enrolled children)

Districts must provide a “proportionate share” of services, in accord with the following:

1. Amounts expended for provision of services by a local education agency shall be equal to a “proportionate amount of federal funds made available under this part.”

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2. Such services may be provided to children with disabilities on the premises of private, including parochial, schools to the extent “consistent with law.”

B. Children Placed in, or Referred to, Private Schools by Public Agencies -- §1412(a)(10)(B)(i)

(i) In general - schools must provide FAPE in private facilities if that was the purpose of making the referral in the first place.

(ii) Standards:► facility and services must meet the LEA standards

► children have the same rights as if directly served by the local education agency.

C. Payment for Education of Children Enrolled in Private Schools Without Consent of or Referral by the Public Agency -- §1412(a)(10)(C)

1. (i) In general - there is no requirement for the LEA to pay if it was making FAPE available and the parents elect to enroll the child in a private facility anyway. This is no change from Rowley, Burlington, and Carter.

2. (ii) A district may be liable for retroactive reimbursement if it is found by a court or hearing officer not to have offered FAPE in a timely manner prior to parental enrollment in a private facility.

► This section seems to be limited to children who have previously received special education and related services through a public agency.

3. (iii) Limitation on reimbursement - reimbursement may be reduced or denied (i) if

► (aa) at the most recent IEP meeting the parents did not inform the LEA that they were rejecting its placement, and including a statement of their concerns, as well as their intent to enroll their child in a private school at public expense; or

► (bb) parents fail to notify the LEA in writing ten business days in advance of placement of their concerns, prior to their child’s removal from the public schools. (It should be noted

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here that “business day” includes any school holidays falling on a business day.) See “Appendix I.”

D. Exceptions to Limitations - §1412(a)(10)(C)(iv)

The above section, imposing certain duties on parents, does not apply if:

► Parent is illiterate and cannot write in English;

► Compliance with the clause would likely result in physical or serious emotional harm to the child;

► The school prevented the parent from providing the required notice;

► The parents have not received a written notice of their own obligation to provide notice under this section.

Further limitations or denials pursuant to §1412(a)(10)(C)(iii)(II) can occur,

► If, prior to parent removal from the public school, the LEA informs the parents of its intent to evaluate the child and the parents refuse to make the child available for such evaluation, or

► (iii) upon a judicial finding of “unreasonableness” with respect to the parents.

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APPENDIX I

UNILATERAL PLACEMENT FORM LETTER(To be Sent to School Superintendent at Least 10

Business Days in Advance of Placement)

Date: __________________

Re: (Name and Age of Student):Written Notice of Intent to Place Disabled Child in Nonpublic Facility and Seek Reimbursement from School District Pursuant to Public Law 105-17 at 20 U.S.C. 1412(a)(10)(C)(iii)(I)(bb)

Dear Superintendent:

Please treat this correspondence as your formal written notification pursuant to the above captioned section of Public Law 105-17. We intend to place our above named child at the __________________ School [address, phone] on ___________, 19____. We will seek reimbursement of costs for that nonpublic facility from your district.

As you are aware, Section 1412(a)(10)(C) states as follows:

(C) PAYMENT FOR EDUCATION OF CHILDREN ENROLLED IN PRIVATE SCHOOL WITHOUT CONSENT OF OR REFERRAL BY THE PUBLIC AGENCY. (...)

(iii) LIMITATION ON REIMBURSEMENT. The cost of reimbursement described in clause (ii) may be reduced or denied -- (I) if --

(aa) At the most recent IEP meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP team that they were rejecting the placement proposed by the public agency to provide a free appropriate public education to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or

(bb) Ten business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in division (aa); ...

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Please treat this correspondence as your formal 1412(a)(10) notice as required by that section.

Sincerely,

__________________________________Parent(s)

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PRIVATE PLACEMENTS – EDUCATION FUNDING

↓ ↓

↓ ↓

↓↓ ↓

↓

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School District determines that a child is disabled and in need of special education service.

District performs Case Study Evaluation, has staffing, agrees to

place and pay for the private placement.

District fills out ISBE Form 34-37 & sends to Springfield for approval or placement.

(Residential only – No need for ISBE approval for private day school placement.)

District refuses to evaluate, serve or classify child for special education. District suspends/expels disabled child.

Parent or chosen representative has an unequivocal right to request a hearing against School District for purpose of challenging its decision.

Hearing is requested against School District. The issue is usually whether private day or residential school is an appropriate placement for the child, or whether it is appropriate to evaluate child and determine eligibility for special education.

ISBE approves application for placement (residential only) and returns to District.

Child is placed at approved private facility and 100% of the cost is assumed by the District, including all transportation to and from the day or residential school.

Parent WINS – is entitled to retroactive reimbursement, prospective payment for placement and attorney fees.

Parent LOSES – District getsto implement its recommendation UNLESS parent appeals (this process omitted here for simplicity).

School District pays monthly bills as they are received from the facility and submits vouchers to ISBE - Springfield office.

THE ISBE REIMBURSES THE SCHOOL DISTRICT FOR MONEY IT HAS ACTUALLY EXPENDED ON THE PRIVATE DAY OR RESIDENTIAL PLACEMENTS.

TUITION COSTSDISTRICT MUST PAY UP TO TWO TIMES WHAT IT PAYS PER CAPITA FOR “REGULAR EDUCATION”

STUDENTS.

RESIDENTIAL ROOM & BOARD COSTSDISTRICT PAYS BUT IS REIMBURSED BY ISBE AT A

100% RATE FOR THESE COSTS. Also note ISBE pays for transportation costs for private day

school students.

For anything over 2x per capita tuition costs, the ISBE reimburses Districts historically at an 80% rate, usually within 3-6 months.

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Brooke R. WhittedLara A. Cleary

WHITTED, CLEARY & TAKIFF LLC3000 Dundee Road, Suite 303

Northbrook, Illinois 60062(847) 564-8662; Facsimile (847) 564-8661

www.whittedclearylaw.comWhittedLaw@aol.com

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THE FINAL WORDON SCHOOL

HEALTH SERVICES:

THE U.S. SUPREMECOURT DECISION IN

CEDAR RAPIDSCSD v. GARRET F.

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THE FINAL WORD ON SCHOOL HEALTH SERVICES:CEDAR RAPIDS CSD v. GARRET F.

by Brooke R. Whitted

I. Facts and Case History

When he was four years old, Garret’s spinal column was severed in a motorcycle accident. There was no adverse effect on his mental capacities. He is ventilator dependent and needs someone nearby at all times. In 1993, mother requested the school district to be financially liable for one-to-one school nursing services while Garret was at school. The school district denied this and thought at that time they were not responsible for services they felt were “medical.” Garret was the only ventilator dependent pupil in this district of 17,500 students. Mother requested a hearing and during the proceedings, the school district admitted the services were capable of being provided by a non-physician. The administrative hearing officer held that the school district had to provide the services, for this reason, according to the Tatro case. The school district then appealed the hearing officer’s administrative decision in federal court, and the court upheld the hearing officer’s ruling, granting the parent’s motion for summary judgment. The Court of Appeals affirmed, using the Tatro “bright line” test, since it was undisputed that Garret could not attend school if the services were not provided.

II. The Supreme Court Opinion

A. District’s Position

In its petition, the school district asked the Supreme Court to overrule the appellate court in favor of a ”multi factored” test, not a “bright line” test. The Supreme Court held in favor of the Appellate Court because, they said, the text of the related services definition is very clear, and here, the district did not challenge the idea that Garret needed the services requested. The court further commented in a footnote that they see no reason to either revise Tatro or rewrite the U.S. Department of Education’s regulations, which favor the test used by the Appellate Court. The court therefore held that the in school services, while more extensive and expensive, must be provided, and further that Garret’s needs were no more “medical” then those needed by Amber Tatro in her case. [1999 WL 104410*4.]

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1. “Continuous” and “Complex” (Translation: Expensive)

The school district used an argument that the services were required in a complex form and they were necessarily “continuous.” Yet the court said unequivocally that “the district’s multi factor test is not supported by any recognized source of legal authority.” Just because “continuous” services may be more costly and require more personnel does not make them any more “medical” under Tatro. [Footnote 8 at 1999 WL104410*5.]

2. Limitations of “Existing” Staff

The court further stated that the “district cannot limit educational access simply by pointing to the limitations of existing staff. The district must hire specially trained personnel as required by law.” As to this problem of existing school staff being unable to meet all of their responsibilities and provide for Garret too, the concept was dismissed out of hand. As in Honig, the U.S. Supreme Court declined to read into the law a definition that was not present. The court was remarkably consistent here. Note also footnote 9 (at 1999 WL104410*5) which mentions that Garret had a teaching assistant who also was a qualified LPN. In Iowa, the State Board of Nursing has held that RN’s can delegate responsibilities to LPNs.

The court further held that school districts cannot use cost itself in the definition of related of related services. This would be “judicial law making without any guidance from Congress.” Citing Rowley, as courts always do, the court further required that districts must “open the door” of opportunity to all qualified children. There is no “onerousness” exception.

III. Summary

The analysis in this case is just as simple as that found in the Tatro case: is meaningful access to the public schools assured? This is not about the “level of education that a school must finance once access is attained.” To be specific, the services at issue were as follows:

1. Ventilator checks;2. Ambubag (manual breathing assistance) when ventilator is

being maintained and as needed;3. Urinary bladder catheterization;4. Suctioning of tracheotomy tube as needed;5. Getting Garret into a reclining position five minutes during

every hour; and6. Assistance from someone who is familiar with emergency

procedures, in other words, at least an LPN.

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The court held that regardless of how expensive or complex (the dissent points out that the services will cost the school district $18,000 per year), the services must be provided if Garret is to remain in school. It was held that the district is required to provide these services and further, that the Neely and Detsel cases (appellate cases favoring the approach of the district) have now been abrogated.

IV. Conclusion

The U.S. Supreme Court has now adopted the Tatro “bright line” test: if a related service is required to enable a qualified disabled pupil to remain in school, it must be provided as long as it is not a purely “medical” service. And “medical” is provider controlled, that is, if the service can only be provided by a licensed physician, it is an exempt “medical” service unless it is needed for diagnostic or evaluative purposes. If, however, the service is capable of being delivered by a non-physician, it must be provided by school districts regardless of any financial or staffing burdens the act of providing the services might impose. The Supreme Court has again - and quite predictably in light of the Honig case on expulsion - read the Act for its plain, simple meaning and has again declined to “read in” exceptions that are not present.

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WHITTED, CLEARY & TAKIFF’S TOP FIVE ADVOCACYTIPS FOR PARENTS

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1. Just As Your Child Is Asked To Do, Do Your Homework! – Learn your rights prior to going to an IEP meeting or any meetings with district personnel. Know the law and know the special education terminology. The ISBE parent’s rights handbook and the ISBE website are both good places to start. Our website at www.wct-law.com provides many free publications and links to other websites. There are also multiple seminars, such as Wrightslaw, that parents can attend. Also, the Family Resource Center in Chicago provides free training sessions. School district personnel usually respond more positively to parents they perceive as informed, interested and involved;

2. Organization Is Your Friend – There is nothing wrong with drafting up a list (typed preferably) of issues you would like discussed at your child’s IEP meeting. Make copies for each member of the team. Ask the district to address all of the issues on the list in addition to the agenda items the district needs to get through. Keep in mind number three below though;

3. Stay Focused, (in the words of a great law professor) Be Brief, And Be Realistic!!!! – The most common mistake we see from parents who have reached impasse with a school district is that they try to accomplish too many things at one time. Similarly, some parents will write the school district rambling, lengthy letters replete with 42 issues to which they want responses. Not only does this strategy water down your main issues, but, many school district personnel are not going to provide the level of detail you want. (I’d be surprised if they even get through half the letter). Parents need to determine what they really want. Other issues can be brought up at a later time; you don’t have to worry about waiving them. In addition, parents can request IEP meetings at anytime they determine that there are issues to be discussed (within reason - most hearing officers will think four meetings a month is unrealistic). Finally, regarding realism – most parents want the “Cadillac” for their child; what parent wouldn’t? However, the Supreme Court Case, Rowley, tells us that they are only entitled to a well running “Chevy.” In line with keeping your issues focused, be realistic about what you are asking for, and, for that matter, what your child can handle within the school setting. One of the best ways to do this is to utilize experts, as we discuss in number four, below;

4. Paging Dr. Somebody: Use Reputable Experts – The law clearly allows parents to obtain their own private evaluations at their own expense and districts have to consider the information at an IEP meeting. The law also mandates that school districts pay for the evaluations in certain circumstances, but we always advise parents to spend the money if possible, as it keeps them in control. Use reputable experts who have experience dealing with school districts. Ask any intended evaluator if they will accompany you to an IEP meeting to discuss their recommendations with the school district. Any expert who will not go to IEP meetings is not one that you want to waste your money on. Any evaluation you obtain should be

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comprehensive and should provide clear recommendations that can be implemented in the school setting. We also recommend using experts who know education placements for parents who are encountering placement disputes with their districts to conduct observations of proposed programs; AND FINALLY

5. Don’t Ever Let Them See You Sweat! In Other Words, Do Not Be Intimidated! - The IEP teams may at times become voluminous and seem to hold fancy degrees, but who knows the child best? Hopefully the parents! Parents should listen to the educational team, consider their recommendations, but should not be afraid to disagree with any team member. With that said, always be as kind and cooperative as possible. I have seen more parents get what they want with kindness and respect than by being rude and aggressive. District personnel are people too and, like most people, they likely won’t respond well to insult or threats. Parents may become angry that district personnel are disagreeing with them but they should always stay civil. In addition, many people, including the best lawyers, become unfocused when blinded with anger. The more calm and civil a parent, the more likely they will think clearly.

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Do I Need An Attorney?

(and other commonly asked questions)

A Guide For Parents

Whitted, Cleary& Takiff, LLC3000 Dundee Road, Suite 303Northbrook, Illinois 60030(847) 564-8662(847) 564-8419 (Facsimile)www.wct-law.com

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I. What is the role of an attorney in a special education case?

An attorney takes on many roles in a special education case. First, he or she is your advocate throughout the process of obtaining the appropriate services for your child. As a result, it is important that the attorney has the expertise in the area of special education, so they can assess your case and provide guidance and counsel to your family as to how to proceed. Your attorney should be aware of the resources in your area available to your family to assist you with your case and meeting the needs of your child. Most importantly, your attorney should be initially focused on resolving your dispute with the public school. Finally, if resolution is not possible, your attorney is your legal representative at the formal due process hearing.

The special education system is driven by experts. If you have a dispute with the school district, you will likely need an expert to evaluate your child and/or the placement or program proposed.

Resolution of your concerns should be the focus of your attorney. The goal is to secure your objectives, not litigate.

Assessment of your child’s education should be ongoing. This is equally true concerning the assessment of your legal case.

II. How do I know if I need an attorney?

When to hire an attorney is a highly individualized decision. However, there are some universal experiences that cause parents to seek legal assistance:

A psychiatric hospitalization of your child A suspension or expulsion of your child The “14 to 1 experience”: The 14 to 1 experience occurs when the parent

finds herself or himself sitting at his/her child’s IEP meeting, outnumbered 14 to 1 and made to feel like his/her opinions and feelings are not important

Future educational planning, such as transitions to junior high or high school, or transition from a 0-3 program to IDEA school-based services.

Failure within the current educational program Conflict with the school personnel (or lack of trust) Assistance with placement decisions Moving out of the District

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Refusal to begin a Case Study Evaluation Refusal to provide an IEP or Section 504 Plan

It is important to seek the assistance of an attorney before you get to the point of suing the school district. Often lawyers can use their knowledge of the law to obtain your goals without the need for litigation, which has its own risks and costs, both financially and emotionally.

III. What is the process of hiring and using an attorney or law firm?

The first step of the process is the initial consultation. During your first meeting you should bring as much documentation regarding your child as possible. It is helpful to have the documents organized, either chronologically or by topic (i.e IEP’s, report cards, etc..)

During this meeting you should receive an initial impression as to the strengths and weaknesses of your case. It is not unusual for an attorney to suggest that you take your child for a private evaluation to assist in the process of identifying appropriate services for your child.

If you decide to retain an attorney, you should expect a more detailed file work up, which typically includes a request for school records from the District and an interview focusing on the history of your child.

Often, but not always, your attorney will request an IEP meeting to discuss resolution of the issues in your case with the school district. Usually the District’s attorney will also attend.

If your goals are not achieved after the IEP meeting or after negotiation with the District’s attorney, then your attorney will proceed more formally by requesting a due process hearing, or trial, to resolve the dispute with the school district.

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IV. Is an attorney my only option?

No, in fact there are many cases in which the services of an educational advocate can accomplish your goals. However, educational advocates are not attorneys and there are no licensing requirements or standards mandated by the State. Therefore, the level of service provided by advocates varies greatly. One solution is to use an educational advocate who is associated with a law firm. Many educational law firms now have educational advocates. There are many advantages to using such advocates, such as (1) potential recovery of some of the advocate’s fees if the case goes to formal due process hearing, (2) instant association with a law firm should the case become more complex or require the services of an attorney, and (3) support and guidance from a law firm to ensure a high level of competence from your advocate.

Things to ask potential educational advocates:

What background, training and experience do they have in special education

What types of cases have they handled What districts have they worked in How many IEP meetings have they attended When do they get an attorney involved

V. How much does it cost to hire an attorney?

Rates for attorneys who practice special education vary depending on experience. You can expect to pay a retainer fee, the unused portion of which should be refundable.

There is no uniform cost to resolving special education cases. There are many factors involved in determining the length of a case and the number of attorney hours needed.

However, those parents who are forced to go through a formal due process hearing to obtain appropriate educational services and who prevail at hearing have the right to sue the school district for their attorney fees under the Individuals with Disabilities Education Improvement Act.

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QUALITIES OF A GOOD CLINICAL REPORT

Brooke R. WhittedWhitted Cleary & Takiff, LLC3000 Dundee Road, Suite 303

Northbrook, Illinois 60062(847) 564-8662; fax (847) 564-8419

whittedlaw@aol.com

* This memo was drafted in response to an inquiry from a clinical psychologist who requested information about the “essential characteristics of an effective psychological evaluation.”

I have several requirements for reports, and in fact have been teaching these principles in report writing for the past 20 years to UIC medical school doctors who want to specialize in child and adolescent psychiatry. The principles apply to ANY clinical report, not just psychological reports. I admit to a bias that I have to be able to utilize the report as a basis for motivating sometimes reluctant agencies (like school districts, state agencies, etc.) to pay for services that a patient/client might need.

Qualities are as follows:

The report must flow logically, be written in excellent prose, and clinical findings must be the basis for all recommendations presented;

Ideally, the report should contain as a first section a comprehensive review of all clinical material that preceded the report;

After a review of prior evaluations, there should be an introduction to tests or evals chosen, in light of prior testing efforts, and a highlighting of any gaps, if any, that the current examiner found in prior materials;

If the examiner uses a testing vehicle not commonly used, it’s a good idea to educate the reader, in simple terms, as to the qualities the test is designed to evaluate, and the reason the examiner is selecting this particular evaluative tool;

The recommendations section must contain recommendations! My pet peeve is a wishy washy “Recommendations will await the team meeting” or some such nonsense. The examiner must come right out and say what the patient needs, with as much specificity as possible, and relate the recommendations to the clinician’s findings. To me, a report is worthless if there is not a concrete, detailed series of recommendations.

It is not required, but usually a good idea, to examine what will likely happen to the patient if the recommendations are NOT followed – this is required where serious harm or death could occur;

The examiner must be willing to leave the office and accompany his or her report to the meeting that will usually be held to consider it. It is much easier to discount the conclusions of a professional who isn’t there;

If the report is written for a specific purpose, such as to convince a school district to declare a pupil eligible for ED special education services, the examiner must be conversant with the definitions used by the particular system appealed to. For

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example, the special education law has a different definition of “Emotionally Disturbed” than does the DSM. The examiner must know definitions from other systems (if applicable) prior to drafting a report.

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