9/4/2015 Murphy, Lamere and Murphy, PC 1 Navigating Through Treacherous Waters Navigating Through Treacherous Waters Paige L. Tobin, Esq. Murphy, Lamere and Murphy, P.C. October 2009

9/4/2015 Murphy, Lamere and Murphy, PC 2 Legal Developments IDEA Process IDEA Process Unilateral Placements Unilateral Placements

Eligibility Under the IDEA Disability which results in lack of progress in general education program and requires specialized instruction Disability which results in lack of progress in general education program and requires specialized instruction CATEGORIES; Autism, Developmental Delay, Intellectual Impairment Sensory Impairment, Neurological Impairment, Communication Impairment, Emotional Impairment, Physical Impairment, Health Impairment, Specific Learning Disability CATEGORIES; Autism, Developmental Delay, Intellectual Impairment Sensory Impairment, Neurological Impairment, Communication Impairment, Emotional Impairment, Physical Impairment, Health Impairment, Specific Learning Disability

9/4/2015 Murphy, Lamere and Murphy, PC Eligibility Individual With a Disability: Individual With a Disability: physical or mental impairment which substantially limits physical or mental impairment which substantially limits a major life activity, a major life activity, has a record of such impairment, has a record of such impairment, is regarded as having an impairment, is regarded as having an impairment, needs accommodations to access programs run by publicly funded entities. needs accommodations to access programs run by publicly funded entities.

9/4/2015 Murphy, Lamere and Murphy, PC 5 Major Life Activities 1. Caring for oneself 2. Performing manual tasks 3. Seeing 4. Hearing 5. Eating 6. Sleeping 7. Walking 8. Standing 9. Lifting 10. Bending 11. Speaking 12. Breathing 12. Learning 13. Reading** 14. Concentrating** 15. Thinking** 16. Communicating** 17. Working 18. Operation of major bodily function (**new under ADAAA) (**new under ADAAA)

9/4/2015 Murphy, Lamere and Murphy, PC 6 New Definition of Substantially Limits The definition of disability must be construed in favor of broad coverage under the Act. The definition of disability must be construed in favor of broad coverage under the Act. Substantially limits means materially restricts (no longer substantially restricts) Substantially limits means materially restricts (no longer substantially restricts) material = relevant and consequential

9/4/2015 Murphy, Lamere and Murphy, PC 7 What this means….. An impairment that substantially limits one major life activity does not need to limit other major life activities in order to be considered a disability An impairment that substantially limits one major life activity does not need to limit other major life activities in order to be considered a disability An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active Effect of the disability need not meet the stringent definition of “substantial” limitation as construed by Courts prior to the ADAA. Effect of the disability need not meet the stringent definition of “substantial” limitation as construed by Courts prior to the ADAA.

9/4/2015 Murphy, Lamere and Murphy, PC 8 What this means………. High academic performer can still have an impairment that substantially limits concentration/reading etc. High academic performer can still have an impairment that substantially limits concentration/reading etc. Examples - dyslexic student with overall good performance but who struggles to read; ADHD student who can’t concentrate when medicine wears off in afternoon

9/4/2015 Murphy, Lamere and Murphy, PC 9 Mitigating Measures Under the ADAAA - Can no longer consider the ameliorative effects of mitigating measures in determining whether an impairment substantially limits a major life activity Can no longer consider the ameliorative effects of mitigating measures in determining whether an impairment substantially limits a major life activity

9/4/2015 Murphy, Lamere and Murphy, PC 10 Cannot consider the following: Medication, medical supplies, equipment or appliances Medication, medical supplies, equipment or appliances Low-vision devices, hearing devices, mobility devices Low-vision devices, hearing devices, mobility devices Prosthetics Prosthetics Assistive Technology Assistive Technology Reasonable accommodations or auxiliary aids Reasonable accommodations or auxiliary aids Learned behavioral or adaptive neurological modifications Learned behavioral or adaptive neurological modifications EXCEPTIONS: ordinary eyeglasses, contacts

9/4/2015 Murphy, Lamere and Murphy, PC 11 Examples of Mitigating Measures: Medication to ameliorate effects of ADHD Medication to ameliorate effects of ADHD FM system to ameliorate effect of CAP FM system to ameliorate effect of CAP Hearing aids or cochlear implants Hearing aids or cochlear implants Learned behavior – acquired strategies – students who compensate for LD but perform well Learned behavior – acquired strategies – students who compensate for LD but perform well

When mitigating measures means no accommodations necessary? Student is ELIGIBLE for a 504 Plan, but Plan is not necessary because student requires no accommodations at this time due to his use of mitigating measures -write no plan but establish timeline to review need for accommodations, OR -write contingency 504 plan

9/4/2015 Murphy, Lamere and Murphy, PC 13 How do schools assess substantial limitation? Can no longer compare to ‘most students?’ Can no longer base decision only on passing grades, MCAS scores, whether student can perform grade level work?

9/4/2015 Murphy, Lamere and Murphy, PC 14 Use of RTI Impact of broader standard under ADAAA -more students eligible for 504 plans? How to address? -use of RTI and curriculum assessments

Use of District Accommodation Plan District-wide accommodation plan to address diverse learning styles District-wide accommodation plan to address diverse learning styles -market your plan to parents -teach your staff

9/4/2015 Murphy, Lamere and Murphy, PC 16 Tips for school staff Look at student’s academic and behavioral records before use of mitigating measure Look at student’s academic and behavioral records before use of mitigating measure Consider information about student from outside of school setting Consider information about student from outside of school setting Consider why mitigating measures were necessary in the first place Consider why mitigating measures were necessary in the first place

More Tips Consider whole child in determining eligibility Consider whole child in determining eligibility Consider multiple sources of information Consider multiple sources of information Consider outside evaluations, but don’t rely solely upon them Consider outside evaluations, but don’t rely solely upon them Conduct own evaluations Conduct own evaluations Remember: No entitlement to IEE at public expense for 504 eligibility determination

9/4/2015 Murphy, Lamere and Murphy, PC 18 Questions to Consider: What is the nature and severity of the impairment? What is the nature and severity of the impairment? What is the expected duration of the impairment? What is the expected duration of the impairment? How has the student responded to interventions? How has the student responded to interventions? Does the student consistently need extended time to complete assignments? Does the student consistently need extended time to complete assignments? Does the student consistently need significant changes made to the curriculum? Does the student consistently need significant changes made to the curriculum? Does the student demonstrate consistent behavior difficulties? Does the student demonstrate consistent behavior difficulties? Is there a pattern of absences Is there a pattern of absences

Medical Diagnosis = Eligibility? Do not rely solely upon doctor’s diagnosis to determine eligibility Do not rely solely upon doctor’s diagnosis to determine eligibility Remember that district has an obligation to consider multiple factors, including educational functioning and needs Remember that district has an obligation to consider multiple factors, including educational functioning and needs

9/4/2015 Murphy, Lamere and Murphy, PC Team Process OCR guidance – use IDEA process as your template OCR guidance – use IDEA process as your template Evaluate! Don’t rely solely on outside information Evaluate! Don’t rely solely on outside information 504 is a TEAM process – those with special knowledge of the child 504 is a TEAM process – those with special knowledge of the child Document the team meetings, decisions, and reasons for decisions Document the team meetings, decisions, and reasons for decisions Document next steps and timelines Document next steps and timelines

Content of 504 Plans The nature of the student’s disability and the major life activity it limits The nature of the student’s disability and the major life activity it limits The basis for determining the disability The basis for determining the disability The educational impact of the disability The educational impact of the disability Necessary accommodations (including related aids and services) Necessary accommodations (including related aids and services) Placement Placement

Accommodations Define key terms and obligations in accommodation plans Define key terms and obligations in accommodation plans Define who is responsible for implementing identified accommodations Define who is responsible for implementing identified accommodations Be careful of unnecessary or overly burdensome accommodations Be careful of unnecessary or overly burdensome accommodations Use ‘undue hardship’ test to evaluate reasonableness of accommodation Use ‘undue hardship’ test to evaluate reasonableness of accommodation

Specific Accommodation Concerns Behavior Plans Behavior Plans Communication with Parents Communication with Parents Students with severe allergies Students with severe allergies Extracurricular activities - athletics Extracurricular activities - athletics Field Trips Field Trips Transportation Transportation

Implementing the Plan 1.Provide plan to all who need it -teachers (classroom and specialists) -substitute teachers -bus drivers/cafeteria workers 2. Document receipt of plan 3. Review plan at minimum annually 4. Document if student chooses not to accept accommodations – address as necessary

Discipline and 504 Develop, implement and revise BIP as necessary Develop, implement and revise BIP as necessary Consider FBA if appropriate Consider FBA if appropriate Perform Manifestation Determination for change in placement over 10 days or pattern Perform Manifestation Determination for change in placement over 10 days or pattern No need to provide services during periods of exclusion No need to provide services during periods of exclusion

Enforcement BSEA BSEA OCR OCR The best defense to a complaint regarding violation of 504 is to show that the district has consistently and appropriately followed process

New 504 Cases Bedford Public Schools, BSEA # (Figueroa, September 14, 2009) Hampden-Wilbraham Regional School District, BSEA# (Putney-Yaceshyn, May 15, 2008) Boston Public Schools, BSEA# (March 23, 2009)

ADHD and Eligibility Consider eligibility under IDEA and 504 Consider eligibility under IDEA and 504 Does student require specialized instruction? Does student require specialized instruction? Impact of medication Impact of medication

Students with Autism/Asperger’s Disorders Can an ASD student be ineligible under IDEA but eligible under 504? Can an ASD student be ineligible under IDEA but eligible under 504? -impact of the Autism Statute 71B §3? -services versus accommodations

9/4/2015 Murphy, Lamere and Murphy, PC 30 IDEA Process Top Ten IEP Mistakes 1. Eliminating needed services/supports on IEP because Parents do not want them 2. Adding unnecessary services/supports because Parents insist on them 3. Goals and benchmarks that are the same year-to-year 4. Goals that are not truly measurable 5. Careless accommodations list

Top ten, continued 6. Failing to include student’s functioning in out- of-school settings (for ASD, SED students) 7. Failing to document coordination/consultation between service providers 8. Failing to show consideration of outside evals 9. Failing to consider transition 10. Failing to attach a well-drafted N1

Unilateral Placements: The Warning Signs Student who is or has been socially isolated Student who is or has been socially isolated Student who has markedly increased absences Student who has markedly increased absences Parents who are clearly and increasingly unhappy and tell you and everyone else Parents who are clearly and increasingly unhappy and tell you and everyone else Student who tells the teacher that he is going to a new school or checks out Student who tells the teacher that he is going to a new school or checks out Pay particular attention in the early Spring before a transition

Unilateral Placements Steps to take to avoid unilateral placements: 1. Listen and respond to Parents’ concerns re: student in community and home settings 2. Consider recommendations from outside evaluators and have district staff communicate with evaluator 3. Use your best salesperson to sell your program – teacher’s credentials, curriculum, visits to program 4. Ensure coordination between service providers 5. Consider use of periodic standardized tests and curriculum assessments to track progress, document progress, communicate with parents 6. Produce a solid IEP before the student leaves

Unilateral Placements What to do after notice of unilateral placement?  Review and revise IEP as necessary and present to Parents – the Cadillac version and don’t wait for the annual review date  Collect work samples, tests, s  Continue IEP process, i.e. meetings, evaluations on schedule