1. EDUCATION ADVOCACY FOR CHILDREN WITH SPECIAL NEEDS
Kathleen Dumitrescu
Staff Attorney
Atlanta Legal Aid Society Disabilities Integration Project

2. LAW Federal Statutes Federal Regulations State Regulations
IDEIA or IDEA
20 U.S.C. §§
Federal Regulations
34 C.F.R. §§
State Regulations
GA. COMP. R. & REGS
State Statutes
Example: GA. CODE ANN. §

3. Request education records
Getting started:
GET COPIES OF THE IEPs
AND KEEP THEM
The schools require signed releases (especially HIPAA compliant release)
Request education records
School system has up to 45 days to comply with the request

4. APPROACH TO EDUCATION CASES GENERALLY
Clarity of communication
In letters
Avoid phone calls, ask for texts or s, you have records
IEP notes, look at minutes, parent’s statement
Get documents in advance of meetings, if at all possible (good luck)
Ask questions, You are a member of the IEP Team and to participate, you need to understand what is going on.

5. Students Ages 3 through 21 who IDEA: WHO IS COVERED
Fall into one of thirteen or fourteen categories of disability
Disability has an adverse impact on educational performance (ie, academic, developmental, OR functional)
Such that the child needs special education

6. IDEA: BASIC RIGHTS
Free Appropriate Public Education or “FAPE”—individualized, i.e., tailored to the child’s unique needs & allows a child to benefit educationally
Rowley Case 458 US 176 held that FAPE was the basic floor of opportunity. The student should gain access to specialized instruction and related services. The States were not required to maximize a child’s potential, if a child is progressing from grade to grade making and adequate gains then FAPE is met. The Court didn’t establish a test for determining adequate educational benefit.
Endrew F. v. Douglas County School District
autism spectrum disorder (ASD) and with attention deficit/hyperactivity disorder (ADHD)
little or no progress, repeated the same goals from year to year, never effectively addressed his behaviors,
Tenth Circuit Court of Appeals in Denver held that all the school district had to do for Drew was provide education and services that gave him a “merely more than de minimis” benefit
parents are arguing that the lower courts have misinterpreted the IDEA and Rowley
public schools must now provide students equal opportunities for academic achievement – the same high expectations for the achievement of students with disabilities that we have for all students.  A “merely more than de minimis” benefit is not enough.
 “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. Some children with disabilities will advance from grade to grade progressing smoothly through the general education curriculum. For those who cannot, their educational programs must be "appropriately ambitious." Their "goals may differ, but every child should have the chance to meet challenging objectives." 
For children being educated in the general education curriculum in the regular classroom, IDEA typically aims for grade-level advancement. For those educated in a modified general education curriculum, a school cannot satisfy its IDEA obligations by planning for "barely more than de minimis progress."  That is because when all is said and done, a student offered an educational program providing 'merely more than de minimis' progress from year to year can hardly be said to have been offered an education at all."

7. Fry v. Napoleon Comm. Sch. Dist: Exhaustion
United States Supreme Court vacated and remanded the Sixth Circuit's Decision in Fry unanimous 8-0 decision in favor of the parents.
The 6th District originally ruled against a parents who brought suit against the school district under the ADA and Section 504 when the district refused to allow Elhena Fry's service animal to accompany her to school. The 6th District contended that although the parents had not brought suit under IDEA, they would have to exhaust their administrative remedies before they could pursue damages. The family sought relief not available under IDEA.
Because Elhena’s cerebral palsy didn’t affect her educational performance, she invoked the protections of ADA and Section The school allowed her assistance dog a trial period but would not allow the dog in the class room and later claimed that it didn’t work out.
"The court of appeals erred in holding that petitioners’ claims were properly dismissed under Section 1415(l). Its interpretation of that provision contravenes the plain text of Section 1415(l) and leads to unsound results” for a quick concise review, see the summery at Wrightslaw.com

8. IDEA BASIC TERMS Child Find Least Restrictive Environment
Parental Involvement: District provides sufficient notice so that parents can prepare and attend 34 C.F.R.§𝟑𝟎𝟎.𝟑𝟐𝟐 (𝒂)(𝟏)
District must inform the parents of the purpose of the meeting and who will be in attendance. 34 C.F.R.§𝟑𝟎𝟎.𝟑𝟐𝟏
Time and location must be convenient for parent and the district 34 C.F.R.§𝟑𝟎𝟎.𝟑𝟐𝟐 (𝒂)(𝟐)
If the parents don’t speak English ask for an interpreter Lots of Dear Colleague letters from the office of Civil Rights and the US Department of Justice advising Districts to ensure meaning ful communication with parents and to allow them to PARTICIPATE in the IEP meeting

9. IDEA: RESPONSIBILITY FOR IMPLEMENTATION
Local Educational Agencies (LEAs): Local school districts
State Educational Agencies (SEAs): Georgia Department of Education
Charter Schools

10. IDEA VOCABULARY
IEP: an individualized education plan; a written plan for each child in special education and includes annual goals, services, and accommodations Parents are equal participants but do not have a veto. They are essential partners in the in the development of an IEP for their children Board of Education v. Rowley, 458US176 (1982)
If no consensus is reached the district must provide the parent with PWN (prior written notice)
Child find: affirmative requirement that schools locate, identify and evaluate all children with disabilities
RTI: requirement that schools be allowed to use response to research based interventions to determine whether a child has a specific learning disability

11. Georgia Eligibility Categories 160-4-7-.05
ELIGIBILITY DETERMINATION AND CATEGORIES OF
ELIGIBILITY.
(1) DEFINITIONS. A child or youth from 3 through 21 years of age is considered to have a disability under the Individuals with Disabilities Education Improvement Act (IDEA 2004) if the child or youth meets the eligibility criteria in any of the following areas and needs special education and related services.
These are broad categories often encompassing more than one disability; child must fall into one disability category to be eligible for special education.
BUT In making a determination of eligibility under Section 614(b)(4)(A) of IDEA, not if : lack of appropriate instruction in reading, including in the essential components of reading instruction (as defined in Section 1208(3) of ESEA); lack of instruction in math; or limited English proficiency. [614(b)(5) of IDEA] 4. If the child does not otherwise meet the eligibility criteria under this Rule. [34C.F.R. § (b)(1) – (2)]
(d) In interpreting evaluation data for the purpose of determining if a child is a
child with a disability and the educational needs of the child, each LEA must:
1. Draw upon information from a variety of sources, including aptitude and achievement tests, parent input, and teacher recommendations as well as the information about the child’s physical condition, social or cultural background, and adaptive behavior;
2. Ensure that information obtained from all of these sources is documented and carefully considered. [34 C.F.R. § (c)(1)]
3. If a determination is made that a child has a disability, and the disability adversely affects educational performance (academic, functional and/or developmental) and therefore needs special education and related services, an IEP must be developed for the child in accordance with Rule
INDIVIDUALIZED EDUCATION PROGRAM. [34 C.F.R. § (c)(2)]
(Eligibility Team)
determine whether the child is a child with a disability and the educational needs of
the child. [34 C.F.R. § (a)(1)]
copy of the evaluation report at no cost to the parent. [34 C.F.R. § (a)(2)]
Exclusionary Factors: under Section 614(b)(4)(A) of IDEA, a child shall not be determined to be a child with a disability if the determinant factor for such determination is lack of appropriate instruction in reading, including in the essential components of reading instruction (as defined in Section 1208(3) of ESEA); lack of instruction in math; or limited English proficiency. [614(b)(5) of IDEA]
Every Student Succeeds Act (ESSA) 2015 allowed waivers of some of the testing .

12. Georgia Eligibility Categories 160-4-7-.05
For example:
(a)Autism spectrum disorder
(e) Intellectual Disability: Mild intellectual disability (MID) ; Moderate intellectual disability (MOID).55 , 40 Severe intellectual disability (SID) Profound intellectual disability (PID).below approximately 25 and Deficits in adaptive behavior that significantly limit a child’s effectiveness in meeting the standards of maturation, learning, personal independence
(d) ED: emotional disturbance (covers mild depression to schizophrenia

13. 160-4-7-.05-2 ELIGIBILITY DETERMINATION AND CATEGORIES OF ELIGIBILITY
Appendix (a): AUTISM SPECTRUM DISORDER (AUT).
Definition.
Autism spectrum disorder is a developmental disability generally evident before age
three that adversely affects a child's educational performance and significantly affects
developmental rates and sequences, verbal and non-verbal communication and social
interaction and participation. Other characteristics often associated with autism
spectrum disorder are unusual responses to sensory experiences, engagement in
repetitive activities and stereotypical movements and resistance to environmental
change or change in daily routines. Autism does not apply if a child’s educational
performance is adversely affected primarily because the child has an emotional
disturbance as defined in (d). Children with autism spectrum disorder vary widely in
their abilities and behavior. [34 C.F.R. § 300.8(c)(1)(i)] )

14. Autism eligibility cont.
The term of autism spectrum disorder includes all subtypes of Pervasive
Developmental Disorder (such as Autistic Disorder; Rett’s Disorder; Childhood
Disintegrative Disorder; Asperger Syndrome; and Pervasive Developmental Disorder,
Not Otherwise Specified) provided the child’s educational performance is adversely
affected and the child meets the eligibility criteria. Autism spectrum disorder may
exist concurrently with other areas of disability.
Evaluations and Assessments
The following evaluations and assessments shall be utilized to determine the presence
of the characteristics of autism spectrum disorder.
1. Comprehensive psychological evaluation to include a formal assessment of
intellectual functioning and an assessment of adaptive behavior.
2. Educational evaluation to include an assessment of educational
performance and current functioning level

15. Autism eligibility cont.
3. Communication evaluation to include assessment of verbal and non-verbal
communication, prosody (linguistics including intonation, rhythm and
focus in speech)), and pragmatic language utilizing both formal and
informal measures.
4. Behavioral evaluations to include assessment of social interaction and
participation, peer and adult interactions, capacity to relate to others,
stereotypical behaviors, resistance to change, atypical responses to sensory
stimuli, persistent preoccupation with or attachment to objects and other
behaviors often associated with autism spectrum disorder.
5. Developmental history to include developmental differences and delays and age of onset, which is typically before the age of three. A child may be diagnosed as a child with autism spectrum disorder after age three if the characteristics of autism spectrum disorder are met

16. Autism eligibility cont.
Eligibility and Placement.
Eligibility shall be based on assessment of the five characteristic areas associated with
autism spectrum disorder. The assessments shall minimally document that each of
the characteristic areas of (1) developmental rates and sequences, (2) social
interaction and participation and (3) verbal and non-verbal communication are
affected. The adverse effect on a child's educational performance shall be
documented and based on the following criteria:
1. Developmental rates and sequences. A child exhibits delays, arrests,
and/or inconsistencies in the acquisition of motor, sensory, social ,
cognitive, or communication skills. Areas of precocious or advanced skill
development may also be present, while other skills may develop at typical
or extremely depressed rates. The order of skill acquisition frequently
differs from typical developmental patterns.

17. Autism eligibility cont.
2. Social interaction and participation. A child displays difficulties and/or
idiosyncratic differences in interacting with people and participating in
events. Often a child is unable to establish and maintain reciprocal
relationships with people. A child may seek consistency in environmental
events to the point of exhibiting rigidity in routines.
3. Communication (verbal and/or nonverbal). A child displays a basic
deficit in the capacity to use verbal language for social communication,
both receptively and expressively. Characteristics may involve both
deviance and delay. Verbal language may be absent or if present, may lack
usual communicative form, or the child may have a nonverbal
communication impairment. Some children with autism may have good
verbal language but have significant problems in the effective social or
pragmatic use of communication.
4. Sensory processing. A child may exhibit unusual, repetitive or
unconventional responses to sensory stimuli of any kind. A child's
responses may vary from low to high levels of sensitivity.

18. Autism eligibility cont.
5. Repertoire of activities and interests. A child may engage in repetitive
activities and/or may display marked distress over changes, insistence on
following routines and a persistent preoccupation with or attachment to
objects. The capacity to use objects in an appropriate or functional manner
may be absent, arrested, or delayed. A child may have difficulties
displaying a range of interests and/or imaginative play. A child may
exhibit stereotypical body movements.
** A child with autism spectrum disorder may be served by any appropriately certified
teacher in any educational program as described in the child's individualized
education program (IEP). The identification of autism spectrum disorder for
educational programming does not dictate a specific placement; however, it is based
on the assessed strengths, weaknesses and individual goals and objectives of the
child.

19. Appendix (d): EMOTIONAL AND BEHAVIORAL DISORDER (EBD).
Definition.
An emotional and behavioral disorder is an emotional disability characterized by the
following:
(i) An inability to build or maintain satisfactory interpersonal relationships
with peers and/or teachers. For preschool-age children, this would include
other care providers.
(ii) An inability to learn which cannot be adequately explained by intellectual,
sensory or health factors.
(iii) A consistent or chronic inappropriate type of behavior or feelings under
normal conditions.

20. EBD cont.
(iv) A displayed pervasive mood of unhappiness or depression.
(v) A displayed tendency to develop physical symptoms, pains or
unreasonable fears associated with personal or school problems. [34
C.F.R. § 300.8(c)(4)(i)(A – E)]
A child with EBD is a child who exhibits one or more of the above emotionally based
characteristics of sufficient duration, frequency and intensity that interferes
significantly with educational performance to the degree that provision of special
educational service is necessary. EBD is an emotional disorder characterized by
excesses, deficits or disturbances of behavior. The child's difficulty is emotionally
based and cannot be adequately explained by intellectual, cultural, sensory general
health factors, or other additional exclusionary factors

21. EBD cont. Eligibility and Placement.
1. A child may be considered for placement in a program for children with
EBD based upon an eligibility report that shall include the following:
(i) Documentation of comprehensive prior extension of services available in
the regular program to include counseling, modifications of the regular
program or alternative placement available to all children, and data based
progress monitoring of the results of interventions
(ii) Psychological and educational evaluations
(iii) Report of behavioral observations over a significant period of time;

22. EBD cont.
(iv) Appropriate social history to include information regarding the history of the child’s current problem(s), the professional services and interventions that have been considered or provided from outside the school; and
components of reading instruction;
b. Lack of appropriate instruction in math;
c. Lack of appropriate instruction in writing;
d. Limited English proficiency;
e. Visual, hearing or motor disability;
(v) Adequate documentation and written analysis of the duration, frequency and intensity of one or more of the characteristics of emotional and behavioral disorders.
f. Intellectual disabilities;
g. Cultural factors;
h. Environmental or economic disadvantage; or
2. A child must not be determined to be a child with an Emotional and Behavioral Disorder if the primary factor for that determination is:
i. Atypical education history (multiple school attendance, lack of attendance, etc.).
a. Lack of appropriate instruction in reading, including the essential

23. EBD cont.
3. The term does not include children with social maladjustment unless it is
determined that they are also children with EBD. A child whose values and/or
behavior are in conflict with the school, home or community or who has been
adjudicated through the courts or other involvement with correctional agencies is
neither automatically eligible for nor excluded from EBD placement. Classroom
behavior problems and social problems, e.g., delinquency and drug abuse, or a
diagnosis of conduct disorder, do not automatically fulfill the requirements for
eligibility for placement.

24. OHI: limited strength, vitality or alertness including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment
Eligibility.
(a) The medical evaluation from a licensed doctor of medicine, or in the case of ADD and ADHD an evaluation by a licensed doctor of medicine or licensed clinical psychologist, should be considered by the child’s Eligibility Team as part of the process of determining eligibility. The evaluation report shall indicate the diagnosis/prognosis of the child's health impairment, along with information as applicable regarding medications, special health care procedures and special diet or activity restrictions. The evaluation report used for initial eligibility shall be current within one year and must document the impact of the physical condition on the vitality, alertness or strength of the child. In cases of illness where the child's physical health and well-being are subject to deterioration or change, this report shall be updated as frequently as determined by the IEP Committee. A medical diagnosis does not automatically include or exclude a child from determination of eligibility.
1. Evaluation for initial eligibility shall include the following:
(b) A comprehensive developmental or educational assessment to indicate the effects of the health impairment on the child's educational performance. Assessments shall document deficits in pre- academic or academic functioning, adaptive behavior, social/emotional development, motor or communication skills resulting from the health impairment. When

25. WHO IS A ‘PARENT’ UNDER IDEA?
Biological or adoptive parent
Foster parent, unless prohibited by state law or foster care contracts
Person acting in place of the
parent and with whom child lives
4. Guardian
5. Surrogate parent

26. Did parent seem too easy?
If 5 different categories of people can be the parent, who is the parent?
The biological/adoptive parents are the parent unless they do not have legal authority to make decisions for the child
If so, then one of the other
persons, if present, is the parent
Except: if a court designates one
of the possible parents as parent
for educational purposes—
then that person is the ‘parent’

27. ADVOCACY AT ANY STAGE OF THE SPECIAL EDUCATION PROCESS…
Reschedule Meetings
Inform the Schools You’ll Be
at the Meetings
Create a Record—write letters, s, dissent in writing, etc.
If No Consensus and If Necessary, Challenge Decisions

28. OVERVIEW OF SPECIAL EDUCATION PROCESS
#1 Student having trouble, such as failing grades, problem reading or paying attention,
repeated suspensions, poor behavior, or fighting in school = SUSPECTED DISABILITY
Referral for Special Education
Evaluation
SST/GA Pyramid of
Interventions
#2 Evaluations
#3 Eligibility
Determination
Eligible
Not Eligible No
Evaluations
#4 IEP
Developed
#5 Placement

29. Getting Qualified for services
School’s Responsibilities:
Child Find—even if a child is not failing and is passing from grade to grade 34 C.F.R. § In
Refer for evaluations (c) Ga: CHILD FIND PROCEDURES
Parent’s Rights & Responsibilities:
Refer for/request evaluations—
in Writing!!
1. Children birth through age three. An LEA may fulfill its child find
responsibility through referral to the Babies Can’t Wait early intervention program
operated by the Department of Community Health.
2. Preschool children, ages 3-5, not yet eligible for state-funded kindergarten.
3. Children enrolled in the LEA schools including public charter schools.
(i) Children who are suspected of being children with disabilities and in need of
special education, even though they are progressing from grade to grade. [34 C.F.R.
§ (c)(1)]
(ii) Highly mobile children, including migrant children. [34 C.F.R. §
(c)(2)]
4. Children who are detained or incarcerated in city/county operated jails or
correctional facilities.
5. Children who reside in the LEA and are enrolled in home school/study
programs.
6. Parentally-placed private school children. [34 C.F.R. § (a)]
(i) Children enrolled by their parents in private, including religious, elementary and
secondary schools located in the LEA’s jurisdiction. [34 C.F.R. § ]

30. EARLY INTERVENING SERVICES & RESPONSE TO INTERVENTION
EIS: appears in the federal regulations under a more general section than RTI—34 CFR §
EIS: Services for students who are not currently identified as needing special education or related services need additional academic and behavioral support to succeed in the general education curriculum.
RTI appears in the federal regulations under 34 CFR §§ , which are the regulations about identifying students with a specific learning disability (SLD)
The provisions allow school districts to consider a child’s response to scientific, research-based intervention as part of the SLD determination process

31. GEORGIA PYRAMID OF INTERVENTIONS
When RTI/EIS/GA Pyramid of Interventions Will Most Likely Come Up:
Initial referrals for special education services
In the process of determining whether a child has a SLD
Four tiers of interventions
Special education evaluations considered at third tier
Can parents request an evaluation anytime during the process of RtI? Yes, IDEA requires that school systems consider the parent’s request for an evaluation. If evidence of prior interventions has not been obtained, the evidence can be collected during the evaluation period. If the school system decides not to conduct the evaluation, they must provide the parent with prior written notice and advise them of their parental rights to seek mediation or a due process hearing.

33. Stop the stall RTI Cannot be used to delay evaluation
Be familiar with the child find regulation (34 C.F.R. § )
RTI Cannot be used to delay evaluation
OSEP Letter on RTI January 21, 2011 Memorandum to State Directors of Special Education
stop RTI stalling: OSEP opinion on the intersection of child find and RTI rules on who is eligible for special education. Melody Musgrove from the United States Department of Education Office of Special Education and Rehabilitative Services OSEP RTI can’t be used to delay

34. Request to evaluate DATE
TO: SST chair, special education coordinator, Principal and Teacher…
RE: Request for a Comprehensive Evaluation pursuant to IDEA for _______________________________, (birthdate)
Dear [NAME]:
I request that the school district complete a comprehensive multi-disciplinary evaluation of my child in all areas of suspected disability for special education eligibility pursuant to the Individuals with Disabilities Education Act . I am worried about _________, (academic progress: list problems, talk about amount of time spent on work, amount of help you have to give and problems that your child is experiencing. If teacher’s talked about problems mention here. Attach bad report cards or progress reports noting issues)
This request for evaluation includes the completion of a full functional behavioral analysis by a board certified behavior analyst trained and experienced in working with children who have experienced trauma. [if the child is experiencing behaviors that impact learning]
I hereby Consent to have my child, __________________ , evaluated. _____________________ sign it and date here
If you would like me to sign an additional form, please provide me with it immediately. I understand that requires the school district has 60 days from the signing of the consent form to complete the evaluation and provide me with a copy of the evaluation report.  I am eager to have the comprehensive evaluation completed so that eligibility for services can be determined.
You can reach me via at _______________________ to follow up on this request. If you have any questions about this request, you may call or me. I look forward to working with you
Sincerely
Parent of ______________ address and phone contact number

35. WHERE DOES THE DISTRICT FIND THE CHILD?
Who is eligible for FAPE 34 CFR§ (C)?
child find includes:
Highly mobile including migrant children 34 CFR § (c)(2)
Children detained or incarcerated in city/county jails or correctional facilities
Even children not failing/advancing from grade to grade
Children who reside in the LEA and are enrolled in home school/study programs
Parentally placed private school children 34 CFR § (a) this includes religious schools 34 CFR §

36. EVALUATIONS & ELIGIBILITY
School’s Responsibilities:
parental consent before evaluations
Evaluate in ALL areas of suspected disability
Evaluate in native language or language most likely to yield accurate results
Complete initial evaluations and make eligibility decision in 60 calendar days
Include parent in eligibility meeting
Provide special education to students with disabilities who need special education—even if the child is not failing & is passing from grade to grade

37. Evaluation and eligibility considerations
Be aware of the consequences of not consenting to initial evaluations
Cooperate with evaluations
Be familiar with evaluations
Provide any evaluations you have to the district
Attend & participate in eligibility meeting
Independent educational evaluations (“IEEs”)
*OSEP letter of 10/22/16 in materials

38. Fall into one of thirteen or fourteen categories of disability
ELIGIBILITY
Eligibility Standard:
Fall into one of thirteen or fourteen categories of disability
Disability has an adverse impact on educational performance (ie, developmental, functional, or academic)
Such that the child needs special education

39. Getting the picture on a student
When was the child referred for an evaluation?
When did the parent sign consent for evaluations?
Has an eligibility meeting been scheduled?
If already eligible, has there been a reevaluation?
Right to a triennial UNLESS parent and school agree not required. RE-EVAL if a request 34 CFR § (a)(1)-(2)

40. ADVOCACY FOR GOOD EVALUATIONS
Get copies of evaluations,
34 CFR § (B)(1) requires that schools use a variety of assessment tools to gather functional developmental and academic information on child. The evaluation must also be sufficient to assess in ALL AREAS related to the suspected disability, and must identify the child’s needs whether or not commonly related to the disability category in which the child has been classified. 34 CFR § (c)(4 and (6))
Compare evaluations to problems
Understand how the disability might affect student in school
Look at definitions of disabilities
Prepare questions for evaluators
Discuss potential need for IEE with parent
Ask for IEEs, if necessary at public expense 34 CFR § school says no and files due process 34 CFR § to show theirs is appropriate or, IEE is at public expense . (IDEA doesn’t condition parent’s right to an IEE on the school’s ability to cure defects in school evaluation. 34 CFR § OSEP letter of October 22, 2016 to Ms. Jennifer Carroll from Ruth Ryder, Acting Director or OSEP

41. IEP & PLACEMENT MEETING
School’s Responsibilities:
Hold IEP meeting within 30 calendar days of eligibility decision
Include parent; reschedule meeting time for parent, if necessary
Work with the parent towards
consensus
Write the IEP based on the child’s needs, not on the available placements or services
Provide a placement in the least restrictive environment (“LRE”)
Including any needed accommodations, supplementary
aides & services and related services

42. IEP & PLACEMENT MEETING
Parent’s Rights & Responsibilities:
Go to the meeting & participate—provide information about the child
Consent by written signature—there are consequences if the
parent refuses to consent to the
initial provision of special education
Write/note objections to decisions of the IEP team
Can pre-write parental concerns ask they are included

43. THE IEP Contents: Identified disability
It’s the “primary vehicle” by which FAPE is delivered & the goals of the IDEA are achieved
Contents:
Identified disability
Present levels of academic achievement and functional performance, including needs arising from the disability
Use current baseline data such as curriculum based assessments, student work, teacher observations, parent input, and other relevant data to describe academic and functional performance

44. Services and goals tailored to child’s needs, NOT disability category
THE IEP CONT.
Annual goals
should generally correspond to needs/PLOAAFP (Present levels of academic achievement and functional performance)
Services and goals tailored to child’s needs, NOT disability category
One ticket gets you into Disneyland school of thought

45. THE IEP, CONTINUED Contents, continued:
Positive behavioral interventions & supports or other behavioral strategies, if needed
Related services, if needed (36) transportation, OT, PT, speech lang, recreation including therapeutic rec. counseling, leisure counseling, rehabilitation counseling including career development and vocational rehabilitation services, social work, assisting in developing positive behavioral supports and Behavior intervention strategies, speech language and mobility services, health and school nurse.
Supplementary aides & services, if needed (41) aids provided in regular education classes to enable education in regular ed classes
Transition services (mandatory if child is
16 y.o. or starting 9th grade) (42) including functional achievement (including supported employment) independent living or community participation.
Extended school year services, if needed 34 CFR §
No mandatory medications
Insurance consent not required
Stated dates for when services begin & progress reports provided

46. Assistive Technology Services
34 CFR §300.6
Assessing to see what works
The school pays
Customized
Train the child and the family on use
The school has to make the available and on a case by case basis, to go home with the child 34 CFR §

47. Nonacademic Services 34 CFR §300.107
When determined necessary by the IEP team,
(a)Nonacademic and extracurricular services in the manner necessary to afford children with disabilities equal opportunities for participation in those services.
(b) Including counseling, athletics, recreational activities and referrals to agencies that provide assistance to individuals with disabilities, and employment of students including both employment by the public agency and assistance in making outside employment available.

48. LOCATION OF SERVICES & PLACEMENT: LRE
Placement must be in “least restrictive environment
34 CFR §
Including in non-academic settings 34 CFR § including meals and recess and extracurricular activities.. As well as the activities set out in 34 CFR § (non-academic services)

49. Building a good IEP
Become very familiar with all evaluations & their recommendations
Make sure all aspects of needs/PLOAAFP are noted & that goals correspond to the needs noted on PLOAAFP
child’s strengths
recommended services & any additional needed services—including transportation
Don’t let the placement options drive the IEP
placement is in the LRE,
and the IEP can be fully implemented in the placement
Request IEE, if necessary

50. Functional Behavior Assessments and Behavior Intervention Plans
Positive Behavioral Interventions and supports must be considered in the case of a child who’s behavior impedes their learning or the learning of others.
34 CFR § (a)(2)(i)
The IEP team can also address behavior through annual goals 34 CFR § (a)(2)(i) and the IEP may include any related services necessary to achieving behavioral goals. 34 CFR § (a)(4)
An FBA is an individualized evaluation in accordance with 34 CFR § to assist in deterring whether a child is a child with a disability. It can be used to determine what related services a child needs including a BIP. (can ask for IEE) 34 CFR §
A child with a disability should receive and appropriate FBA and BIP modifications if they are being disciplined and the behavior is a manifestation of their disability 34 CFR § (f)

51. IEP IMPLEMENTATION School Responsibilities
Implement ALL elements of IEP
All teachers and providers must be informed of: his or her specific responsibilities related to implementing the child’s IEP.
34 CFR§ ((d)(2)(i)
Periodic progress reports Parents
Communicate with school
Document problems
challenge failures to implement IEP
Request meeting with school to determine a way to remedy the problems

52. IDEA AND SECTION 504
Students with disabilities who are eligible under the IDEA are also protected by Section is a Federal law that prohibits recipients
of federal funding from discriminating on the basis of disability(504 includes public schools )
School must provide FAPE under Section 504 to students who have disabilities without regard for whether they are eligible under IDEA.
FAPE under Section 504 includes related aids and services that are designed to meet individual educational needs of students with
Disabilities as adequately as the needs of students without disabilities are met. procedural requirements can be found at
34 C.F.R. § .

53. 504/ ADA Title II
A.G. v. Paradise Valley Unified Sch. Dist. No. 69,
9th circuit Plaintiffs' principal discrimination-based claims relate to the school district's alleged failure to provide adequate accommodations, including a Functional Behavior Assessment (“FBA”), a Behavior Intervention Plan (“BIP”), and a full- time aide, and to the school district's decision to change A.G.'s placement from Vista Verde to the Roadrunner School. Plaintiffs alleged that having further accommodations would have allowed A.G. to continue attending Vista Verde.
plaintiff bringing suit under section 504 or Title II of the ADA must show:
(1) she is a qualified individual with a
disability;
(2) she was denied “a reasonable accommodation
that [she] needs in order to enjoy meaningful access to the
benefits of public services;” and
(3) the program providing the benefit receives federal financial assistance. To prevail
on a claim for damages, the plaintiff must also prove a mens
rea of intentional discrimination
: the Individuals with Disabilities in Education Act (“IDEA”), 20 U.S.C. §§ 1400–1491; section 504 of the Rehabilitation Act of (“section 504”), 29 U.S.C. § 794; and Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131– 12134

54. An IEP can meets Section 504 FAPE standard
An IEP can meets Section 504 FAPE standard. Written plans, called Section 504 Plans, for students with are frequently developed for student‘s who’s disability does not require special education services or did not qualify for an IEP. The student may still be a student with a disability under Section 504 and entitled to receive related aids and services.
Like IDEA, Section 504 also requires that, to the maximum extent appropriate, students be educated in the regular educational environment, unless they cannot be educated in that environment with the use of supplementary aids and services C.F.R. § (a). For additional information on Section 504 see Protecting Students with Disabilities, available on the website for the Office for Civil Rights, U.S. Department of Education, at:
34 C.F.R. §

55. IEP REVIEW School Responsibilities
Ensure the child’s IEP is reviewed & revised not less than annually
Reevaluate children at least every 3 years or when child’s parent or teacher requests reevaluations (but should not conduct same evaluation more than once per year)
Evaluate a child before changing eligibility

56. IEP REVIEW Parent Rights & Responsibilities
To consent in writing before any reevaluations
To participate in IEP reviews/revisions
Can agree with the school to amend an IEP without a full IEP meeting
the absence of required IEP team member whose area is not has to be agreed to in writing if contributing, the absent member must provide their input in writing

57. ADVOCACY STEPS
Compare previous year’s goals to proposed goals, ( related services and supplementary services that are research based should be employed to ensure that the child advances appropriately towards obtaining goals) 34 CFR§ (a)(4)(i)
Ensure that parent agrees or consents to any member’s absence from IEP meeting
Ask for reevaluations, if necessary

58. DISPUTE RESOLUTION Informal Resolution Complaint to GA DOE Mediation
Due Process

59. DISPUTE RESOLUTION: INFORMAL RESOLUTION
Can take many forms
By far the most preferred method of resolving disagreements
Aiding Informal Resolution
Consideration of school staff (for example, responding to notices, informing them of attendance at meetings)
Organize & be familiar with records
(get releases if necessary)
Putting everything in writing

60. DISPUTE RESOLUTION: COMPLAINT TO GEORGIA DOE
Can Be Made By anyone
Formal Complaint (written, signed, statement of violation)
Schools Submit Response

61. DISPUTE RESOLUTION: COMPLAINT TO GA DOE
Investigation by GA DOE
60 days to GA DOE decision
1 year statute of limitations

62. DISPUTE RESOLUTION: MEDIATION
Formal request—by school after both parents and school agree to mediate
Voluntary
With qualified, impartial mediators appointed by GA DOE
Can’t delay hearing
Confidential

63. DISPUTE RESOLUTION: DUE PROCESS HEARINGS
Burden of Proof: on the party bringing the hearing (Schaffer v. Weast)
Rules of evidence: not binding but can be applied
Rules of civil procedure, sometimes get applied
Opening statements &
closing arguments
Direct & cross examinations
Objections

64. DISPUTE RESOLUTION: DUE PROCESS HEARINGS
Who requests: parent or school
When: 2 year statute of limitations
How: formal request (written, signed using GA DOE form)
Can recover attorneys’ fees

65. DISPUTE RESOLUTION: DUE PROCESS HEARINGS
Content of complaint:
name & address of child
School child attends
Description of the problem
Proposed resolution
Issues not raised in complaint
can’t be raised at hearing

66. DISPUTE RESOLUTION: DUE PROCESS HEARINGS
Timelines:
Response Required within 10 days
First 30 calendar days after notice of the filing of due process hearing request/complaint: resolution period
Within the first 15 calendar days of the resolution period, the school must
convene a resolution session
hearing officer decision must be issued within 45 calendar days

67. DISPUTE RESOLUTION: DUE PROCESS HEARINGS
Timelines for Hearings Regarding Disciplinary Changes in Placement:
Hearing within 20 school days and a decision within 10 school days after the hearing
So—the resolution session must
occur within 7 days of notice of
the hearing request

68. DISPUTE RESOLUTION: DUE PROCESS HEARINGS
Resolution Sessions
Schools’ attorneys present at resolution meeting only if parents’ attorneys present
If Resolved at Resolution Session:
-written, signed settlement
-either side can void it within 3
business days
Confidentiality: not mandatory but
parties can enter into an agreement to make the resolution session confidential

69. DISPUTE RESOLUTION: DUE PROCESS HEARINGS
Disclosure
Each party must disclose to the other party/parties the evidence that it intends to use at hearing
Evidence must be disclosed 5
business days before hearing
If a party doesn't disclose evidence, the other party can prohibit from being used at hearing

70. DISPUTE RESOLUTION: DUE PROCESS HEARINGS
Hearing Officer Decision:
In writing
Findings of fact & conclusions
Transcript/recording
Appeal: 90 days
Where to Appeal: Superior
Court or Federal District Court
Usually Federal Court
Parents can represent themselves

71. DISPUTE RESOLUTION: DUE PROCESS HEARINGS
“Stay Put”: during the litigation (beginning from filing of the due process hearing request), the child stays in the current educational placement
Current educational placement:
Where all services on IEP can be
provided
If all services on IEP can’t be
replicated, it’s a change in placement
No “stay put” for disciplinary/MDR
appeals

72. DISPUTE RESOLUTION: DUE PROCESS HEARINGS
Kinds of Relief Available:
Finding of eligibility
Change in IEP
Change in placement/preventing
a change in placement
Challenging MDR
Compensatory education

73. Discipline of Students with Disabilities

74. OVERVIEW OF DISCIPLINE PROCESS FOR STUDENTS WITH DISABILITIES
Student Misbehaves/Violates Code of Student Conduct
Suspension for either 1) more than 11+ days in a row
or 2) 11+ days cumulatively and the 11+ cumulative
days constitute a pattern of suspensions
Suspension for
10 days or less
Child is disciplined
as a non-disabled
child—without ed.
services
Manifestation
Determination Review
MDR = Behavior
Was Not A Manifestation
of the Disability
MDR = Behavior
Was A Manifestation of
the Disability
Child is disciplined
as a non-disabled child
BUT
must provide FAPE
1. Student’s Placement Can’t Be
Changed/Can’t Be Suspended
&
2. FBA/BIP

75. MANIFESTATION DETERMINATION REVIEWS (“MDRS”)
School’s Responsibilities:
Hold MDR within 10 school days
Work with parent to determine who will be at the MDR
Determine as a team whether conduct was a manifestation of the child’s disability
Parent’s Rights & Responsibilities:
Attend MDR
Participate in the decision
Introduce new information

76. MDRS: THE STANDARD(S) The disability caused the behavior
Regulations require a finding that a behavior was a manifestation of a child’s disability if:
The disability caused the behavior
The behavior was directly & substantially related to the disability OR
The behavior was the direct result of
the school’s failure to implement the IEP
The school must Conduct an FBA if one hasn’t been done and develop or modify and existing BIP to address behavior. 20 U.C.S.§1415(k)(1)(D)

77. MDRS: CHILDREN NOT YET ELIGIBLE FOR SPECIAL EDUCATION
Certain children with disabilities who are not yet eligible for special education are entitled to IDEA disciplinary protections 34 CFR § (a) (If the LEA had knowledge, write those letters to determine eligibility)
MDRs on the 11th day of suspension
Services/FAPE while out of school on discipline
These children are entitled to the IDEA disciplinary protections if the LEA had knowledge that the child has a disability prior to the behavior that resulted in the disciplinary action 20 U.S.C. §1412(a)(1)(a) beyond 10 days 34 C.F.R. §
45 days alternative settings
Dangerous weapon
Knowingly possess, uses sells or attempts to sell illegal drugs at school or school function Or
Inflicts serious bodily injury on another at school or a school function
Even in the 45 day placement FAPE to make progress towards goals

78. MDRS: CHILDREN NOT YET ELIGIBLE FOR SPECIAL EDUCATION
LEAS are deemed to have this knowledge if prior to the behavior resulting in discipline:
The parent expressed concern in writing to school officials that the child needs special education;
The parent requested special education evaluations; OR
The teacher or other LEA staff expressed “specific concerns about a pattern of behavior” to supervisory LEA staff

79. MDRS: CHILDREN NOT YET ELIGIBLE FOR SPECIAL EDUCATION
Even if a school “had knowledge” that the child might have a disability, however, the MDR rights will not apply if
the parent has refused consent for evaluations of the child
the parent has refused to consent to
special education services
the child has been evaluated and determined not to be eligible for special education services

80. SECTION 504: WHAT IT REQUIRES
“no otherwise qualified individual with a disability in the United States…shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.”

81. 504 PLANS
Written
Typically preceded by evaluations or documentation from medical professionals
Should be detailed and practical

82. HOSPITAL/HOMEBOUND: ELIGIBILITY BASICS
Student must be enrolled in public school prior to HHB referral
Student must be expected to be absent for a minimum of ten days total (intermittent HHB) or ten consecutive days (HHB)
Student must have a medical referral signed by a licensed physician or psychiatrist treating the student for the diagnosed condition attesting to the above

83. HOSPITAL/HOMEBOUND: INSTRUCTION PROVIDED
Instruction must be from a certified teacher
Instruction must meet teaching standards of Georgia Performance Standards and any IEP
Teacher therefore can’t be merely a conduit for
school work
Minimum of 3 hours per week to be counted as present for attendance purposes

84. WHERE TO LOOK FOR INFORMATION
The Technical Assistance Center on Positive Behavioral Interventions and Supports is established by the U.S. Department of Education's Office of Special Education Programs (OSEP) to define, develop, implement, and evaluate a multi-tiered approach to Technical Assistance that improves the capacity of states, districts and schools to establish, scale-up and sustain the PBIS framework.
The Every Student Succeeds Act (ESSA), signed into law on December 10, 2015, reauthorized the Elementary and Secondary Education Act of 1965, which provides Federal funds to improve elementary and secondary education in the Nation’s public schools. 20 U.S.C

85. for the 5/3/17 presentation you can complain to
Kathleen Dumitrescu Atlanta Legal Aid Disabilities Integration Unit
Thanks to Emily Suski
of the Georgia State University College of Law who created a presentation for HeLP (the dignified parts of this presentation