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Special Education Case Seeks Supreme Court Review

July 8th, 2016

The U.S. Supreme Court is deciding whether to grant review in a case about the degree of educational benefit that a special education student should receive under an Individualized Education Program (IEP) to satisfy the requirements of the Littman Kroooks Special Needs Planning (IDEA). “Clearly, the Supreme Court should hear this important case, as the requirement that a student receive an educational benefit goes to the heart of the IDEA,” says Marion Walsh.  Millions of children around the country certain are entitled to more than “some” educational benefit in public schools and the law should, at a minimum, require meaningful educational benefit.

On May 31, 2016, the U.S. Supreme Court asked the Solicitor General to file a brief expressing the views of the United States on this question.

The plaintiffs in the case Endrew F. v. Douglas County School District RE-1 note  that currently the “courts of appeal are in disarray” on the matter of what constitutes a “free, appropriate public education,” as required for students with disabilities by IDEA.

The U.S. Court of Appeals for the 10th Circuit ruled that Endrew F., a Colorado student with autism, received a free, appropriate public education from the Douglas County school district because he received “some educational benefit,” and the court thus rejected reimbursement to the parents for the cost of private school. Reasoning that the IDEA is only “designed to provide a floor” of educational quality,  the hearing officer determined that the school district had provided Drew with a FAPE.  The parents had removed their son from public school after a dispute over the education he received under his IEP in the fifth grade.

In its decision, the appeals court acknowledged that other U.S. courts of appeal have adopted the higher standard of requiring an IEP to deliver a “meaningful educational benefit.” “The U.S. Court of Appeals for the Second Circuit requires this standards and it should be applied uniformly across the country. The standard is still too low,” says Walsh. In requesting review by the Supreme Court, attorneys for Endrew F. argue that the Court should make use of the case to resolve the dispute over this salient issue.

As it has done with many IDEA cases that seem to present an important question, the Supreme Court asked the U.S. Solicitor General to weigh in. The Solicitor General is under no deadline to file the requested brief, and observers say it is unlikely that a response will be filed before the court adjourns for the summer.

 

Learn more about our special needs planning and special education advocacy services at www.littmankrooks.com or www.specialneedsnewyork.com.


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New Special Education Rules Issued by Education Department

August 6th, 2014

The U.S. Department of Education announced that it will change the way it assesses whether states are meeting the needs of students with disabilities. The department will begin using test scores, graduation rates and other academic information to measure states’ special education performance. The previous system focused on procedural standards, including timelines for due process hearings and evaluations.

According to the department, a change was needed because students with disabilities had lower math and reading scores and lower graduation rates than their peers. Arne Duncan, the U.S. Secretary of Education, said that when special education students are held to high standards, they can excel.

Under the new standards, states that fail to meet certain benchmarks for more than two years could lose some federal funding.

The new standards would be much more stringent. Last year, when the department measured performance by compliance with procedural standards, a total of 41 states and territories were able to meet requirements. This year, when the department included data on student performance, only 18 states and territories met requirements.

The Individuals with Disabilities Education Act (IDEA) requires the department to classify states annually as either meeting requirements, needing assistance, needing intervention or needing substantial intervention.

Under the new Results-Driven Accountability standards, New York State was classified as needing assistance, based on data from 2012-2013.

 

Littman Krooks assists special needs students and their parents with our special education advocacy services. Visit our website, www.specialneedsnewyork.com to learn more.

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The Differences between 504 Plans in Public Schools vs Colleges & Universities

January 31st, 2014

It is important for students with disabilities who plan to attend college, and their parents, to understand how their legal rights related to their disability will change in a post-secondary education environment.

In public elementary and secondary schools, students with disabilities may receive services under the Individuals with Disabilities Education Act (IDEA) or the Rehabilitation Act of 1973. The IDEA does not apply in the workplace or in post-secondary education, so services available under IDEA, such as an individualized education program (IEP), are not available in college. However, services under Section 504 of the Rehabilitation Act may continue at the post-secondary level.

First, it should be noted that while Section 504 only applies to schools that receive federal funding, most colleges and universities do, and private post-secondary schools that receive no federal funding are still required to provide similar accommodations to students with disabilities, under Title III of the Americans with Disabilities Act.

Section 504 prohibits discrimination based on disability, meaning that the needs of students with disabilities must be met as adequately as the needs of students without disabilities are met. Colleges and universities must provide accommodations for students with disabilities. As a practical matter, this may include accessibility of classrooms, dormitories and other buildings; additional time on tests; substitution of some course requirements; interpreters or readers; adapted computer terminals and other services. Such services must be provided unless a fundamental alteration of the program or an undue financial or administrative burden would result.

Students with disabilities going from high school to college will need to advocate for their own needs more than ever. If the university has a disability support office, the student will need to make contact with that office to explain his or her needs. If a student has a history of accommodations in high school, then documentation of this should be provided to college or university officials. Most of all, students will need to be persistent, keeping a record of who they talked to, and continuing to press the matter until the needed accommodations are received.

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Early Intervention Aids Children with Developmental Disabilities

November 14th, 2012

Developmental disabilities and delays in children used to be largely ignored before the age of five. Today, it is widely understood that important learning milestones occur well before then, and early therapy can do a great deal to help children.

In 1986, Congress established the Early Intervention (EI) program as part of the Individuals with Disabilities Education Act (IDEA). EI provides a variety of services for children from birth to the age of three to help with their mental, physical, emotional and social development. While not federally mandated, EI is implemented in all 50 states due to strong federal financial incentives.

When parents suspect their child may not be developing properly, a pediatrician can prescribe a full evaluation of the child’s faculties. If tests indicate that the child’s development is not optimal, the family meets with professionals to develop an Individualized Family Service Plan (IFSP). At subsequent annual or biannual meetings, the child’s progress is assessed and the plan is modified as necessary.

Here are some examples of services provided through EI:

Occupational therapy assists in the development of self-help skills, adaptive behavior, and sensory and motor development.

Psychological services include conducting and interpreting psychological tests and planning counseling programs.

Family training assists parents in understanding their children’s unique needs and promoting their development.

Audiology and vision services identify and help correct sensory disorders and mitigate their effect on learning abilities.

Fifty years ago, a developmental problem, left untreated, might have destined a child to be institutionalized, whereas today, early intervention can help that same child integrate well with children their age by the time they reach grade school.

If you suspect your child may have a developmental disability or delay, talk to you pediatrician about testing and the EI program. If you disagree with your doctor’s opinion or the results of your child’s EI evaluation, and believe your child needs EI services, you may want to talk to a special needs advocacy lawyer.

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Governor Amends New York Education Law to No Longer Require Additional Parent Member for CSE

August 22nd, 2012

by Marion Walsh, Esq.

On August 1, 2012, Governor Cuomo signed a Bill which amends New York Education Law 4402 to no longer require an additional parent member for Committee on Special Education (“CSE”) meetings. Before this amendment, New York law required for every CSE meeting (although not for subcommittee meetings), the participation of an additional parent member of a child with a disability residing in the school district or a neighboring school district.

The amended law provides, as with the current law on requesting a physician, that an additional parent member only must be in attendance at any CSE meeting if requested in writing by the parent (or personal in parental relation) to the student, at least 72 hours prior to each meeting.  The school district must provide the parents with written notice of their right to have an additional parent member attend any meeting of the CSE. The notice must include a statement, created by the New York State Education Department explaining the role of having the additional parent attend the meeting.

The amendment goes into effect immediately, but there will be some transition time, until the former law phases out and until the New York State Education Department amends the Part 200 Regulations and issues guidance for school districts.

Effect of New Law on Parent Rights

The Individuals with Disabilities Education Improvement Act does not require parent members as part of an IEP team.  The amended law does not impair the rights of parents, as parents still have the right to request a parent member. More frequently than not, parents waive or decline parent member participation.    However, parents need to be aware of their right to request an additional parent member and pay careful attention to the 72 hour time period.   Parents also need to understand that parent members can serve an important function.

Parents should carefully consider whether they will need a parent member.  Parent members can be helpful to lend perspective and objectivity and, if they are from the District, can offer knowledge and help about District programs.  If you’re attending an initial eligibility meeting for your child, you will be unfamiliar with the process and the associated emotions and would likely benefit from an additional parent member.   If the CSE is considering a more restrictive placement, the parent member may also help you weigh the benefits.  Also, for particularly contentious or emotional meetings, parent members can lend perspective.   Remember, the parent member does not serve as a substitute for a good advocate and is simply participating in the meeting as an additional CSE member.

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Don’t Forget the Ten Day Notice Rule if Considering Tuition Reimbursement Claim

August 17th, 2012

If you are the parent of a child with special needs and are sending your child to private school because your public school district denied your child a free and appropriate public education (“FAPE”), you have the right to seek tuition reimbursement or even prospective payment from your public school district, pursuant to the Individuals with Disabilities Education Improvement Act. This constitutes an important right for students who have been denied a FAPE.  But the process is not simple.  To prevail in a tuition reimbursement claim: 1) The District must fail in its burden to prove that it offered or provided the student a FAPE; 2) The parents must prove that the private school is appropriate to meet the student’s special education needs; and 3) Equitable considerations must support the parents’ claim.

As to this latter requirement, parents must, among other things, provide school districts written notice, 10 business days before removing the child from the public school, that they are rejecting the public placement and seeking tuition reimbursement. This means, that at the latest, parents must send this letter 10 business days before the start of the school year.  If parents fail to provide this notice, the right to reimbursement may be reduced or denied.

The 10 day deadline is fast approaching.  Because most public schools in the New York area start on September 5, 2012, parents should be sure to get their letter in by Tuesday, August 21, 2012.  If your school district starts on Tuesday, your letter must be in by Monday, August 20.   If you are considering a tuition reimbursement claim and need help deciphering the process, do not hesitate to call our office for an initial consultation.

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