Kristin Springer, Attorney

Yes. Autism Spectrum Disorder (ASD) is a neurodevelopmental disorder that impairs a student’s ability to communicate and interact with others. It also includes repetitive behaviors, interests, and activities. These issues cause significant impairment in social, occupational, and other areas of functioning. Not all students with an ASD struggle academically. This can result in a school’s denial of eligibility for special education. However, academics are only one out of several areas that can lead to the necessity of special education and related services.

Assessments

If you suspect your student has an ASD it is important to request an assessment from your school district. The school district has 15 calendar days to provide you with an assessment plan. Review the plan and make sure the district plans to test cognitive, development, and language. They should also conduct a parent interview, observational assessment (social/behavioral), and a review of the student’s medical file.

Eligibility

In order to qualify for special education under IDEA a student must:

a.)  Fall into 1 of 13 categories of disability. Autism is one of those disabilities.

b.) The student must also show that they, by reason thereof, needs special education and related services.

To put it simply, ask yourself these questions:

• Does the student have a disability?

Districts are obligated to evaluate students in all areas of suspected disability. The law does not limit the evaluations to performance on standardized tests or grades.

• Does the disability affect the students’s educational performance?

The courts have established that a students’s educational needs include academic, social, health, emotional, communicative, physical, and vocational needs. (Seattle School Dist. No. 1 vs. BS (9^th Cir. 1996) 82 F3d. 1493.

• Does the student need special education and related services?

IDEA defines special education as “specially designed instruction, at no cost to the parent or guardians, to meet the unique needs of a student with a disability.” Related services means transportation and such developmental, corrective, and other supportive services as are required to assist a student with a disability to benefit from special education. Related services include things such as behavioral, speech, and other support as set forth in 34 CFR 300.34.

Developing the IEP

The IEP must contain a description of the student’s present levels of academic achievement and functional performance. This portion of the IEP is used to identify the student’s strengths and weaknesses in academics and functional areas. Functional skills include skills or activities that are not considered academic or related to a student’s academic achievement. Instead “functional” is often used in the context of routine activities of everyday living. Social skills are categorized as functional skills.

Conclusion

IEP teams must evaluate each student as an individual. If the team uses a multi-disciplinary approach in their evaluation they will have a better understanding of the student’s strengths and weaknesses. Eligibility cannot be based on academics alone. If the student is a student with a disability and needs special education and related services, they qualify. Education goes beyond academics and includes the functional skills necessary to navigate everyday life.

If you suspect your student has an ASD and you have been denied services, contact Kristin Springer for a free 20 minute consultation at 925-551-1041.

 

(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)

Special education and mainstream students both benefit from being educated in a classroom together.  Some of those benefits include increased social initiations, peer role models, greater access to general curriculum, and enhanced skill acquisition. Inclusion works best for the whole class when we support the student and teacher as intended by the law.

Legal Requirement: Least Restrictive Environment (LRE)

Once a student with a disability’s program is developed the IEP team must determine where the program will be executed. This is referred to as placement. Students with a disability are entitled to be educated in the LRE. Removal of students with disabilities occurs only when the nature and severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. (20 U.S.C. 1412(5)(A)

There are several levels of LRE:

• Regular classroom: student receives a prescribed program under the direction of the regular classroom teacher.
• Regular classroom with consultation: student receives a prescribed program under the direction of the regular classroom teacher who is supported by ongoing consultation from the special educators (i.e. special education teachers, psychologists, behaviorists, etc.)
• Regular classroom with supplementary instruction and services: student receives a prescribed program under the direction of the regular classroom teacher. The student also receives instruction and related services from the special educator and a paraeducator.
• Resource room: Student is in the regular classroom for a majority of the school day but goes to the special education resource room for specialized instruction for part of each school day.
• Separate classroom/school: Student receives special education and related services under the direction of a specially trained staff in a specially designed classroom or facility.
• Residential school: Student receives special education and related services from specially trained staff in a residential facility in which children receive care or services 24 hours per day.
• Homebound or hospital: Student receives special education and related services at home or in a hospital program.

Individual Considerations

The IEP team must consider the continuum of placement options. Students may not be categorized into a particular group and offered placement based on that particular category. The level of placement must always be individualized with the student in mind.

Board of Education, Sacramento City Unified School District v. R. Holland (1992) 786 F.Supp. 874 provides four factors to consider:

• Educational benefits available to the child in a regular classroom, supplemented with appropriate aids and services, as compared to education benefits of a special education classroom;
• The non-academic benefits to the handicapped child of interaction with non-handicapped children;
• The effect of the presence of the handicapped child on the teacher and other children in the regular classroom; and
• The costs of supplementary aids and services necessary to mainstream the handicapped children in the regular classroom setting.

Using the factors above, the IEP team’s consideration should always start at the regular classroom. If the regular classroom, unsupported, is not the appropriate placement the next consideration would be the regular classroom with consultation services to the teacher or supplementary aides and services. Discussions should progress through the continuum until an appropriate placement is determined.

The Value of General Education Teachers Input

I have heard concerns from both parents and teachers about the impression that “general education teachers don’t want students with disabilities in their classrooms.” In most cases this isn’t true. Teachers want to be able to support all students in their classrooms. Concerns voiced by general education teachers often reflect a broader issue that students are being placed into general education classrooms without the appropriate supports This creates a difficult environment for the teacher, disabled student, and non-disabled peers.

If a student will spend any part of their day in the mainstream classroom, the IEP team is required to have a general education teacher as a part of the team. General education teachers should have the ability, without the fear of retaliation, to voice their input into an IEP meeting. If a student will be included into the mainstream classroom, a general education teacher can provide valuable insight into training needs, curriculum modifications, behavioral concerns, and other support needs.

 

Food allergies occur when the body has a specific and reproducible immune response to certain foods. According to the CDC, food allergies affect an estimated 1 in every 13 children in the United States. In certain cases food allergies can be life threatening, referred to as anaphylaxis. In certain cases food allergies can be considered a disability allowing a student in public school to be eligible for protection under Section 504 of the Rehabilitation Act of 1973. Students in private schools may be protected under the Americans with Disabilities Act. In rare situations a food allergy may be consider an “other health impairment” under IDEA and provide the basis for an IEP. This blog will focus on 504 accommodations.

An individual inquiry is necessary to determine whether a child with a food allergy is a “person with a disability” under Section 504 and the ADA.  Under Section 504, a child with a disability includes someone who:

(1) has a physical or mental impairment that substantially limits one or more major life activities; or

(2) has a record of such an impairment; or

(3) be regarded as having such an impairment.  [34 C.F.R. §104.3(j)(1)].

Accommodations for food allergies may include administering medications, removing certain foods from classrooms, providing alternative snacks, etc. It may be necessary to examine your child’s school day to determine whether your child will be exposed to a food allergen. Make a list of any potential dangers and suggested accommodations. Include ideas on who could be responsible for implementing the accommodation. For example, if your child might be exposed to a food allergen during an experiment in science class an accommodation may be made to substitute with an alternate experiment. The science teacher would be responsible for implementing the accommodation.

Many schools have implemented food allergy protocols.  These protocols may include identification of students, allergen awareness and training for staff, and treatment protocols. Here are some links for Tri-Valley schools:

Pleasanton Unified School District: http://www.pleasantonusd.net/apps/pages/index.jsp?uREC_ID=306553&type=d&pREC_ID=708792

San Ramon Valley School District: http://www.srvusd.k12.ca.us/file/1276956734524/1275747792962/7929159400007988898.pdf and http://www.srvusd.k12.ca.us/file/1276956734524/1275747792962/2111197993439940912.pdf

Livermore School District: There is a food and allergy action plan listed on their website but I couldn’t pick up a specific link: http://livermoreschools.com/

 Dublin: I could not find a board policy on their website. However, here is a link to the Food Allergy Form: http://www.dublin.k12.ca.us/Page/109

 

There are times when the parents of a student with a disability and the district cannot resolve conflicts regarding the student’s education. IDEA has set up a process for resolving these conflicts called “due process”. It is important to understand due process in case you ever find yourself in a special education conflict. This is a general guideline. If you are having a conflict with your district it is important to seek legal advice.

OFFICE OF ADMINISTRATIVE HEARINGS (“OAH”)

Special education due process in California is handled by OAH. Cases filed with OAH are heard by administrative law judges. OAH also provides mediation and settlement services.

FILING FOR DUE PROCESS

Due process starts when a parent files a written complaint against the district. The complaint must contain a description of the problem and the resolution sought through due process.

MEDIATION

Mediation is a process where a neutral party helps resolve the conflict between the parties. The mediator tries to facilitate a mutually satisfactory agreement. Mediation is voluntary.

IMPORTANT TIMING GUIDELINES

A due process complaint must be brought within 2 years of the alleged violation.

Parent-filed cases: Under state and federal law, OAH has 75 days to issue its decision. This includes the 30-day resolution period.

District-filed cases: Under state and federal law, OAH has 45 days within which to issue its decision. This is shorter because mediation is not required.

Expedited hearings (i.e. for disciplinary issues): OAH will hold a hearing within 20 school days from the date the request is filed. A decision by OAH will be issued within 10 school days after the hearing. Mediation will be on the 10th day after filing the complaint.

Mediation only: OAH will schedule mediation within 15 days of filing the request for mediation only.

A party has 90 days after receipt of OAH’s decision to file an appeal.

TYPES OF DISPUTES

Due process complaints are typically based on substantive issues. The following is a list of some of the most common disagreements which can lead to mediation and/or due process hearings:

1.)  Eligibility;

2.) Placement issues; and

3.) Need for different or more special education services.

Although not as common, procedural issues may result in due process. For example, the a district cannot deny a request for an Independent Educational Evaluation. They are required to file a due process complaint. Another procedural issue might be a parent’s exclusion from participation in an IEP meeting.

DUE PROCESS HEARING

A due process hearing is just like a court trial. Each party is allowed to present evidence and witnesses. The hearing must be held at a place reasonably convenient to the parent and student. This is usually the school site.

RIGHT TO AN ATTORNEY

A party to a due process case may be represented by an attorney at the hearing.  In certain cases, if you win, you are able to recover reasonable attorney’s fees. The district may request reimbursement of attorney’s fees in cases they win where the filing party if the case is frivolous or was intended to harass or delay.

(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)

The simple answer is NO!

Specific learning disabilities can include, without limitation, the following:

• Auditory Processing Disorder (APD)
• Dyslexia
• Dyscalculia
• Dysgraphia
• Language Processing Disorder
• Non-Verbal Learning Disabilities
• Visual Perceptual/Visual Motor Deficit
• ADD/ADHD

Determination of a specific learning disability (SLD) cannot be made using a single criterion. That means that one assessment method, assessment score, or observation can be used. The US Department of Education has opined that the “IQ-discrepancy criterion is potentially harmful to students as it results in delaying intervention until the student’s achievement is sufficiently low that the discrepancy is achieved.”

School districts may adopt a severe discrepancy model to determine whether a student has a SLD. However, if the student does not qualify under the severe discrepancy model, the district must determine if the student does not achieve adequately for the student’s age or meet state-approved standards when provided with age-appropriate learning experiences and instruction in one or more of the following areas:

• Oral expression
• Listening Comprehension
• Written expression
• Basic reading skills
• Reading fluency skills
• Reading comprehension
• Mathematics calculation
• Mathematics problem solving

The IEP team may also consider a pattern of strengths and weaknesses in performance and/or achievement. This is not a stand-alone methodology.

If the IEP team determines that a SLD exists, then they need to determine whether special education and related services are needed for the child to receive a free and appropriate public education.

If you suspect your child has a specific learning disability and you are being told your child must fail before the school district will help, or they refuse to look past the discrepancy model, call Kristin at (925) 551-1041.

(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)

 

 

From time to time everyone experiences anxiety.  The National Institute of Mental Health distinguishes an anxiety disorder as feelings of anxiety which do not go away and gets worse over time. This anxiety can interfere with daily activities such as job performance, school work, and relationships. Anxiety disorders are typically characterized as generalized anxiety disorder, panic disorder, and social anxiety disorder. For more on this topic please visit the National Institute of Mental Health’s website: https://www.nimh.nih.gov/health/topics/anxiety-disorders/index.shtml.

 

Children with an anxiety disorder are entitled to a free and appropriate public education (FAPE) in the least restrictive environment. A child with an anxiety disorder that interferes with their ability to access their education may qualify for special education services through an IEP under IDEA.  Depending on the results of the assessments the school may consider providing services under one of the following categories: social emotional disturbance or other health impairment. Goals can focus on self-regulation and self-monitoring strategies, aggression and anxiety strategies, and other behavioral goals.
A child with an anxiety disorder who does not qualify for an IEP under IDEA may still qualify for accommodations or modifications through a 504 Plan. Here are some sample accommodations:

• Preferred classroom seating
• Cool-down pass
• Lunch bunch
• Safe person at school
• Homework accommodations

It is important that parents and schools work together to support children with anxiety disorders. Left untreated or supported may result in poor grades, less developed social skills, and higher risk for substance abuse (Anxiety and Depression Association of America).

 

If you have any questions about getting educational help for your child from your local school district, please contact Kristin Springer at 925-551-1041.

(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)

On October 25^th, Pleasanton Unified School District held a board meeting which included a discussion regarding how to better support students with dyslexia. This meeting was a follow up, or second reading, to a discussion regarding the same which took place on October 10th. On October 25th, the Board of Trustees voted to approve new curriculum for students with dyslexia and other reading difficulties.

The District and Board Members engaged in very specific discussions regarding assessments, curriculum, implementation, and staff training. Parents from the community spoke at meeting and raised some concerns.

I am providing my notes from viewing the meetings on-line. If this issue is of interest to you it is worth the time to watch the portions of the October 10th and 25th meetings as they relate to dyslexia: http://www.tri-valleytv.org/streaming/PSB/PSB-10-10-16.html and  http://www.tri-valleytv.org/streaming/PSB/PSB-10-25-16.html. Even if you do not live in the Pleasanton USD you can observe some of the discussions that are involved in making changes within your own district.

The District gave an update on their tiers of support. Tier 1 describes a universal support system used in a general education classroom. Tier 2 describes a targeted instruction used for students who have been identified as needing some additional supports. Tier 3 describes intensive instruction and is used by students with IEPs and 504 Plans. Students with 504s are generally education students who may qualify for intensive instruction in Tier 3.

The District plans to roll out their supplemental instructional resources and materials for phonological process (dyslexia) and other reading challenges in two phases.

Phase 1 would provide Wilson Tiers 1 (“Fundations”) and 2 instructional resources (“Just Words”) to students in Tiers 1 and 2. The District would provide Wilson Tier 3 intensive instructional resources (“Wilson Reading System”) and materials to students receiving special education and 504 Plans based upon assessment results and progress in intervention. Students in Tier 3, who don’t meet the criteria for the Wilson Reading System, may be eligible for support through Fundations or Just Words.

Phase 1 will also consist of teacher and instructional staff training, instructional coaching, student screenings, and progress monitoring.

Phase 2 will include further review of research-based intervention programs and additional supplemental curriculum proposals brought to the board.

 

From here the District will purchase the Wilson materials and begin training. Training for teachers in Fundations and Just Words will begin within a month of receiving the curriculum. Two teachers will be trained in the Wilson Reading System which is a year long program. Additional teachers may be added at a later date.

Parents who appeared at the meeting were given a brief chance to speak. Some concerns were raised regarding the assessment process and implementation of the Wilson materials. I would like to encourage parents who have a child with a diagnosis of dyslexia or believe their child may have dyslexia to follow this issue and get involved in the discussion.

(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)

Yesterday the Supreme Court heard arguments in Fry v. Napoleon Community School District.  The issue the court is trying to resolve is whether petitioners must first exhaust the special education administrative process before filing a federal complaint.

E.F. was born with cerebral palsy. At the age of 5 she obtained a service dog, Wonder, as prescribed by her pediatrician. E.F. requested the Napoleon Community School District (“The District”) allow her to take Wonder to school. The school denied her request.  Stacy and Brent Fry, E.F.’s parents, filed an administrative claim with the Office of Civil Rights, arguing that the school district violated two federal civil rights laws – the Americans with Disabilities Act and the Rehabilitation Act – when they barred Wonder from E.F.’s school. OCR ruled in E.F.’s favor. The District ultimately agreed to permit E.F. to attend school with Wonder but E.F. had already moved her to a different school. E.F.’s parents were seeking compensatory damages for emotional damages suffered during the period the school denied E.F. the ability to bring Wonder to school.

The arguments which were made to the justices can be found here: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2016/15-497_4g15.pdf.

Chief Justices Roberts and Breyer seemed to be concerned that agreeing to allow parents to go straight to court may “gut” the procedural system in place. However, they agree that it would be futile to make the plaintiff go through an administrative process if the administrative remedies would be futile.

The justices will decide the case during their conference on Friday. A decision is expected next June.

(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)

 

The date is almost here. If you have a child with a disability or suspect your child has a disability, join me THIS Tuesday.

Please join me for a free IEP presentation at the Pleasanton Public Library, 400 Old Bernal Avenue, Pleasanton, California on November 29, 2016 from 10:30 – 11:30 a.m. My presentation is designed for parents who want to know more about IEPs, and know how to make sure that their child’s IEP is effective and meaningful.

Pass this announcement along to your friends or support group. The event flyer is attached below.

RSVP to specialedlegaljourney@comcast.net.

 

iep-basicslibrary

 

All too often IEP goals do not address a child’s educational problems. IEP goals that sound good but don’t address the child’s real needs in reading, writing, or arithmetic are a common problem.

Parents and school districts must avoid setting low expectations of the children with disabilities. Setting high standards for students, even ones with disabilities, will increase student behavior and achievement.

IDEA requires, among other things, IEPs meet the child’s needs that result from the child’s disability to enable the child to be involved in and make progress in the general education curriculum. On November 16, 2015, OSERS circulated a “Dear Colleague” letter reminding school districts that the IEP team must consider the special education instruction that has been provided to the child, the child’s rate of academic growth, and whether the child is on track to achieve grade-level proficiency within the year.  Only a small number of children with severe disabilities must be measured against alternate academic achievement standards.

Students whose present levels of academic and functional performance are significantly below grade level, should:

• Have measurable goals written to help close the gap but are achievable.
• Be allowed to have specially designed instruction by adapting the content and teaching methods to best serve the needs of the child.

What do you do if you don’t think your child is being taught at or progressing toward grade level standards? First, write out each of the standards that you believe your child is failing to progress towards. Analyze any progress reports, test scores, or other materials which evidence your child’s progress towards these standards. If necessary, ask questions and request documents to resolve your concerns. Finally, you can call an IEP team meeting to discuss your concerns.

Don’t wait to address concerns if you believe your child is failing to progress towards content standards. The father your child falls behind, the harder it will be to meet those standards.

To review a copy of the letter from OSERS click on the following link: https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/guidance-on-fape-11-17-2015.pdf

If you have questions do not hesitate to contact Kristin Springer at 925-551-1041 or specialedlegaljourney@comcast.net

(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)