Knowledge is Power: How & Why to Advocate for Your Child with Special Needs

Knowledge is Power: How & Why to Advocate for Your Child with Special Needs Dana A. Jonson, MSEd, JD The Law Offices of Dana A. Jonson, LLC 13 Starr Lane, Bethel, CT 06801 Phone: 203.797.8881 • Fax: 888.636.1361 Email: Dana_Jonson@comcast.net www.ConnecticutSpecialEdAttorney.com

Knowledge is power! • Educate yourself and understand the legal rights of children with disabilities. • Why? • Because you mustbecome a successful advocate for your child… to do so, you must not only understand your child's rights but what they mean!

Knowledge is power! WARNING • Do not over- or under-estimate your own knowledge • Be media savvy when seeking knowledge!

Agenda… Brief history of the laws that govern special education 6 Principals of the IDEA How to proceed When to call in the cavalry Random Practical Tips Resources

Brief History of Special Education Laws Because understanding where you came from is crucial in understanding where you are going!

History of Special Education Laws • 1975: Education of All Handicapped Children Act (EHA) • Free Appropriate Public Education for children 3 to 21 years old • Due Process Rights • Individual Education Program • Least Restrictive Environment • Assisting States and localities to provide for the education of all children with disabilities through federal funding.

History of Special Education • 1986: Amendments to the Education of All Handicapped Children Act (EHA) • These amendments saw the need for early intervention and mandated the development of a comprehensive system of early intervention for infants… Birth to Three!

History of Special Education • 1990: EHA renamed to the Individuals with Disabilities Education Act (IDEA) • Eligibility categories expanded to include Autism and Traumatic Brain Injuries • Defines assistive technology devices and services

History of Special Education • IDEA was re-authorized in 1997 & 2004 • IDEA should have been reauthorized in 2010…We’ll see…

Six Principles of IDEA Free appropriate public education (FAPE) Appropriate evaluation Individualized Education Program (IEP) Least restrictive environment (LRE) Parent involvement Procedural safeguards

Free Appropriate Public Education • Free = At no cost to the parent • Appropriate = Services sufficient to enable the student to appropriately progress in education and advance toward achieving the IEP goals • Public = Provided by the public school district or under the direction of the public school district • Education = Preschool, elementary and secondary education, including extra-curricular & non-academic school activities as well as transition services

Appropriate Evaluation • Initial Evaluation • 3 year re-evaluation • Individualized assessments • Non-discriminatory assessments • Includes a variety of tools and strategies, including information provided by the parent • School’s right to evaluate • Independent evaluation (IEE)

A Side Note About RTI… Response To Intervention is the practice of providing high-quality instruction/intervention matched to student needs and using learning rate over time and level of performance to inform educational decisions

Another Side Note About RTI… Response To Intervention : • Is only applicable if the suspected area of disability is SLD! • Is NOT meant to delay the proper identification of a child with a disability!

Individualized Education Program (IEP) • Primary Disability Category • Prior Written Notice (PWR) • Present Levels • Goals & Objectives • Accommodations/Modifications • Services • Placement!

Least Restrictive Environment (LRE) • LRE means that to the maximum extent appropriate, students with disabilities have the right to be educated in the general education environment & in the classroom they would have attended if they did not have disabilities

Least Restrictive Environment (LRE) • LRE means the student cannot be removed from the general education classroom solely because of needed curriculum modifications • LRE means that removal from the general education program occurs only if the nature or severity of the disability is such that education in general education classes with the use of supplementary aids and services cannot be satisfactorily achieved.

Parent and Student Participation • Parents have the right to participate in all special education planning and decision-making activities. • Parents are equal members of the PPT! • It is the obligation of the school district to make strong efforts, in multiple ways, to ensure parental and student participation. • Transition Planning: Students are the focus of special education and, as they grow older, students are expected to participate in planning for their own future as much as possible.

Specific Participation Rights: • School districts must make multiple efforts to facilitate parental attendance at Team meetings. If parents cannot attend, schools must seek parent input through other means. • Students at age 14 (or younger if appropriate) are entitled to participate in all Team meetings. • Students at age 18 are adults and assume all the rights formerly held by their parents for participation and decision making.

Procedural Safeguards An educational program can be considered not appropriate if not developed according to the IDEA’s procedures… • Access to Records • Participation • IEE • Notification Requirements • Timelines • Stay Put

Procedural Safeguards Stay Where? Stay Put! • Unless otherwise agreed to, student remains in the last agreed upon placement during dispute • Exceptions • Dangerousness • Final Hearing decision determines that a change of placement is necessary

Procedural Safeguards Due Process Hearings • Addresses issues of evaluation, identification, educational placement, and FAPE • 2 year Statute of Limitations • 45 day timeframe • Impartial Hearing Officer • Right to appeal to State or Federal Court

Procedural Safeguards Resolution Sessions • If a DP Hearing is requested, a resolution meeting with the Parents and relevant PPT members must be held in 15 days • Resolution sessions can be waived if both parties agree • The BOE may not bring an attorney unless the Parent does

Procedural Safeguards Mediation • Voluntary • Available prior to filing for Due Process • Confidentiality • Mediators appointed by the State

Procedural Safeguards Mediation Agreements • Executed as a legally binding agreement • Provide for the confidentiality of all discussions • Signed by parents and District Representative • Enforceable in State or Federal Court

Procedural Safeguards State Complaint Process • Addresses issues of evaluation, identification, educational placement, and FAPE, PLUS implementation of DPH decisions • 1 year Statute of Limitations • Consultant assigned by the State • DPH Decision trumps Complaint Process • 60 day time frame • No right to appeal

State Complaint vs. Due Process Hearing

State Complaint vs. Due Process Hearing continued…

Procedural Safeguards Complaint to the US Dept of Ed Office for Civil Rights • Addresses issues of discrimination based on race, color, national origin, sex, disability, or age • 180 calendar days Statute of Limitations • OCR neutral fact finder (attorneys & investigators) • OCR will not investigate issues being address through another process (i.e. DPH) • OCR affords an opportunity to the complainant to submit a request for reconsideration or an appeal of OCR determinations that are not in the complainant’s favor within 60 days.

How to Proceed… … and other random practical tips…

Is my child eligible for Special Education? • A student is eligible for special education if all three of the following are true: • The student has one or more disabilities. • The student ‘s disability(ies) have an adverse impact on their education. • The child requires specialized instruction.

How quickly can I get services? • Eligibility timelines • If eligible, development of IEP and determination of placement at that Team meeting. • Services upon parental consent. TOTAL = 45 Working School Days (different for the summer)

Document Everything! Document, document, document!!

How to avoid conflict… Understand and respect the individual roles that you play in the multi-disciplinary team whose responsibility it is to ensure that a child is receiving an appropriate program that is designed to enable him or her to make meaningful educational progress.

How to know if you have a conflict… Trust your instincts! If your “gut” tells you that something is not working with your child, you are probably right.

How to know if you have a conflict… Not an all inclusive list, but somewhere to start: • Has your school denied (even if very politely and reasonably) a request you have made for evaluating, programming for, or collecting data on your child? • Do you not believe that your child is making the progress s/he should? • Have outside providers expressed concern?

How to handle conflict… Not an all inclusive list, but somewhere to start: • Talk to your child’s teacher/case manager and make sure you are clear on what is going on. • Call a PPT and make sure all of your requests and concerns are documented. • Obtain outside evaluations and assessments of your child and present them to you PPT.

When to call in the cavalry? What cavalry? Attorney or Advocate

When to call in the cavalry? I strongly recommend you consult with an attorney if… • Your school district has (or has threatened to) bring a Due Process Hearing against you • You are considering bringing Due Process against your district (note: BEFORE you file or sign anything is when you should call the lawyer’s office, not after!) • Your District has offered you a settlement agreement to sign • You are considering placing your child privately • You intend to seek reimbursement for ANY costs you are or may be incurring • The District’s attorney shows up at your IEP (or any other) meeting • Your advocate says you need an attorney

When to call in the cavalry? Or if: • Your child is graduating and you do not think they are ready • You, or your District, want to hold a Mediation • You or your District believe your child requires an out of district placement • Your child with special needs is continually suspended and/or up for expulsion (EVEN if you think it is unrelated to the disability) • You want an Independent Educational Evaluation • Any time the administrator or staff start throwing legal terms at you • If you get papers to withdraw your child from the district • There is a truancy issue

When to call in the cavalry? These lists are not all inclusive, but rather some of the more common issues I see in my practice. Unfortunately, when Parents call me AFTER these situations have occurred, it is significantly more difficult (and thus more expensive for the parents) for me to salvage the situation as sometimes rights have already been lost.

Random Practical Tips Collaboration & Communications that are … • Respectful • Open-minded and • Regular … is the key to a successful working relationship!

Random Practical Tips • Many educators have been working effectively with children with disabilities for many years and do not understand why their “time-honored” approaches do not work with your child. • The people who are actually working with your child are rarely the same people who decide how the resources of your school district should be allocated. Try to keep this in mind when communicating with your child’s teacher.

Random Practical Tips • It is important to “pick your battles.” If you are going to engage in a conflict with your district and/or the staff working with your child, ask yourself if this particular issue is worth the risk. • e.g. Is that extra half an hour per week of physical therapy as important as getting much needed discrete trial time? Or even as important as maintaining a productive and respectful working relationship?

Random Practical Tips • Research any person or program that may be working with or evaluating your child before you agree to it. Go on-line or to your local library and talk to other parents of children with similar disabilities. Get several sources of information before you make key decisions. • Just as you will have to become an expert on your child’s disability, you should try to become as familiar as possible with your child’s legal rights as well.

A quick not about Attorney’s Fees… • Court may award attorneys fees and costs to parents who prevail in the administrative hearing or judicial proceeding • SEA/LEA that prevails may seek attorney’s fees from the parents or the parents’ attorney if : • the Court finds that the complaint is frivolous, unreasonable, without foundation or prolonged litigation • the Court finds that complaint was filed to harass, cause unnecessary delay or increase the costs of litigation

As a General Rule: It is best for parents to understand that educators know far more about education than parents… And for educators to appreciate that parents know far more about their own child than educators.

Resources: • Council of Parent Attorneys and Advocates, http://www.copaa.org/index.html • WrightsLaw, http://www.wrightslaw.com/ • US Dept of Education, Office for Civil Rights, http://www2.ed.gov/about/offices/list/ocr/index.html • CT State Dept of Education, Special Education, http://www.state.ct.us/sde/deps/

Knowledge is Power: How & Why to Advocate for Your Child with Special Needs