From an article that appeared in a local paper a while back:
Hope Kirsch, a special education attorney with the law firm of Kirsch-Goodwin & Kirsch, PLLC, represents students with disabilities and their families throughout Arizona in school-related matters, including individualized education programs (IEP), due process, 504 plans, disciplinary matters and bullying. She was a special education teacher and school administrator for nearly 20 years and has a B.S. in special education from Boston University, an M.A./M.Ed. in special education from New York University and a law degree from Brooklyn Law School.
What are the first steps a parent should take when they find out that their child is having difficulty in school?
Parents should submit a request via e-mail to the school district or charter school that the child attends. I advise parents to email the child’s teacher, the special education director for the school district or charter school and the school principal or headmaster, stating they are requesting a complete assessment to determine the full nature and extent of their child’s disabilities and the impact of the disabilities on their child’s education. They should state their concerns and note that the email should be deemed as giving their “consent” to evaluate. (Giving consent triggers deadlines.) Parents who home-school their children, or who place their children in a for-profit private school – or whose children are in preschool or are ages 3-5 – should submit the evaluation request to the school district in which they reside (email the special education director and at least one other person, such as the superintendent). The schools have their own obligation, called “Child Find,” to evaluate, with parental consent, any child they suspect of having a disability that may require special education.
What are the parents’ rights when it comes to the evaluation?
The school (home-school district or charter school) has 60 calendar days to complete the evaluation from the date parents give consent, which is why I suggest parents state in the email requesting the evaluation that they are giving consent. Parents can submit their request any time during the year, not just during the school year.
The school is required under the law to assess/evaluate students “in all areas related to the suspected disability” including, if appropriate, social-emotional skills, behaviors, etc. If, after the evaluations, the parents do not agree with the findings, they have the right to an Independent Educational Evaluation (IEE) with an evaluator of their own choosing at the expense of the public education agency (PEA). If the school refuses, the school must file a due process complaint.
What is the difference between a 504 and an IEP and how do they affect the student?
A 504 Plan provides accommodations, services and/or aids to students with a disability (as that term is defined under the Americans with Disabilities Act Amendments Act) to afford the student equal opportunities to participate in school activities and receive the same instruction as nondisabled peers, but they do not require special education. Accommodations may include extra time for the same assignments as their peers, a separate quiet room to take the same test as their peers, large type for reading the same instructional material, or ramps to physically access the same classroom. An IEP is for a child who requires special education – instruction that is specialized, or modified, for that child. A ninth-grader reading at third grade can be given "Romeo and Juliet" modified from Shakespearean language to their reading level. Also, an IEP has goals written into it; a 504 does not. A student does not have an IEP after graduating high school, whereas a 504 plan continues into post-secondary school, and a student who had an IEP in high school can have a 504 in college.
To what degree can a parent expect schools to provide services and supports for the special needs of their child?
In order to answer these questions, it is important to understand that the federal law governing IEPs, the Individuals with Disabilities Education Act (IDEA), does not require that schools maximize a child’s potential; the maxim is that students are only entitled to a Chevy, not a Cadillac. That said, the IEP must confer an “educational benefit” standard for a free and appropriate public education (FAPE) within the meaning of the IDEA by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.
If parents believe their child is not receiving a sufficient amount or the right kind of services and supports (such as occupational therapy, physical therapy, speech therapy, behavior intervention, one-on-one), or they believe goals are too high, too low or there is insufficient progress, or if they have any other concerns, they should notify the school and request an emergency IEP meeting. The school has 15 school days after the date of the request to conduct the meeting. Parents should prepare a list of their concerns and explain why it is they believe the IEP is not appropriate, what they think their child needs, and go through each item with the IEP team. After exhausting their efforts, parents’ options include mediation, state administrative complaints and, in limited circumstances, due process.
Although charter schools are exempt from many local and state regulations and state and local rules regarding operation and management, they are not exempt from federal and state laws regarding rights, access and discrimination against protected classes and students with disabilities, unless they do not receive federal funds (which will be discussed below). Charter schools that receive Federal financial assistance from the United States Department of Education (the “Department”) must comply with the Age Discrimination Act of 1975, Title VI of the Civil Rights Act of 1964 (which prohibits discrimination re race, color, national origin), Title IX of the Education Amendments of 1972 (which prohibits sex discrimination), Section 504 of the Rehabilitation Act of 1973, the Americans With Disabilities Act of 1990 (which prohibits discrimination on the basis of disability), the Family Education Rights and Privacy Act (“FERPA), and part B of the Individuals with Disabilities Education Act (the “IDEA”). This paper focuses on Section 504 of the Rehabilitation Act of 1973 and its implementing regulation at 34 Code of Federal Regulation Part 104 (collectively herein, “Section 504”), and the IDEA and its implementing regulation at 34 Code of Federal Regulation Part 300.
Note: Charter schools are either “for profit” or “nonprofit.” Only schools that are nonprofit are eligible to receive Federal financial assistance from the U.S. Department of Education. Recipients of Federal financial assistance are subject to the laws and regulations enforced by the U.S. Department of Education and including the Office of Civil Rights. However, for profit charters do not receive Federal financial assistance from the Department funds and are therefore not subject to these laws and regulations, and thus OCR is not responsible for enforcing these laws and regulations at for profit charter schools. Although for profit charter schools can have students on IEPs, since they do not receive Federal funds as a means of serving this population, the Department does not have jurisdiction to enforce laws and regulations at such schools.
Section 504 is enforced by the Office for Civil rights, and the IDEA is administered by the Office of Special Education and Rehabilitative Services (“OSERS”) which provides Federal funds to States which in turn provide the funds to local educational agencies (“LEA”) to assist in the provision of special education and related services to students with disabilities.
The Department has issued guidance to parents, students and charter schools explaining rights of students with disabilities in charter schools. Regarding IDEA, students enrolled in charter schools and their parents or legal guardians retain all of the rights and protections under Part B of IDEA that they would have if attending other public schools including procedural safeguards, the right to a FAPE in the least restrictive environment (“LRE”), and special education and related services in conformity with a properly-developed IEP. The Department has cautioned that a charter school may not limit the services it will provide a student with a disability. States are responsible for overseeing and monitoring charter school compliance.
With respect to Section 504’s prohibition against disability discrimination and right to a FAPE, students with disabilities as well as those seeking admission have the same rights as students with disabilities in public non-charter schools, including the right to a Free and Appropriate Public Education (“FAPE”), equal treatment and nondiscrimination in nonacademic and extracurricular activities such as sports and outings, and accessibility such as ramps. Section 504 requires that charter school recruitment of students apply on an equal basis to all students, including both students with disabilities and nondisabled students, and to allow applications on an equal basis. Accordingly, a charter school must not impose admission criteria that would tend to exclude or discriminate against students with disabilities. In fact, it is a violation of Section 504 for a charter school to ask an applicant if he or she has a disability. The question of whether a student has or ever had an IEP or Section 504 Plan may not be included on an application, and OCR deems such a question on an application as disability discrimination. The question of whether a student has or ever had an IEP or Section 504 Plan may be asked only after the student has been accepted. The exception is for schools chartered to serve students with a specific disability, but otherwise such a question is prohibited.
Finally, the Department warns that charter schools may not “counsel out, i.e., try to convince a student (or parents) that the student should not attend (or continue to attend) the school because the student has a disability.” That is, the school must not discourage a student and his family from applying for admission.
A charter school is “a public school that provides free public elementary and/or secondary education to eligible students under a specific charter executed, pursuant to a state charter school law, by an authorized chartering agency/authority and that is designated by such authority to be a public charter school.”
Charter schools are semi-autonomous, independent, nonsectarian, tuition-free publicschools. 20 U.S.C. § 7221i(2). That means they are exempt from many state and local statutory and regulatory requirements, but charter schools are not exempt from federal laws that govern equal rights, access and discrimination. They receive public dollars and are prohibited from charging tuition. They are open to all children and may not have special entrance requirements, although they can be rigorous and impose requirements such as mandating uniforms, and they may have a focus, such as STEM, arts, acting, etc. If applications to attend a charter school exceed spaces available, enrollment is decided by lottery.
Charter schools are designed and operated by parents, educators, community leaders, educators, business entrepreneurs and others. They operate under a contract - the “charter” – with an authorized public agency, such as a local or state educational agency, an institution of higher education or a municipality, which is referred to as the “authorizer” or “sponsor.” An authorizer’s primary responsibilities are to review applications for charters, establish “charters” or contracts, ensure compliance and renew contracts. An “authorized public chartering agency” means a state educational agency (“SEA”), local educational agency (“LEA”), or other public entity that has the authority pursuant to State law and approved by the United States Secretary of Education to authorize or approve a charter school. 20 U.S.C. § 7221i (Definitions section).
The contract - or charter - details how the school will be organized and managed, what students will be expected to achieve, and how success will be measured. They must meet standards set forth in their charters for students and for the school as a whole, or else the chartering agency can close the school. Many charter schools enjoy freedom from laws and regulations affecting other public schools, so long as they continue to meet the terms of their charters. The charter must include a description of how student performance will be measured.
In return for the flexibility and autonomy gained from exempting charter schools from certain state or local rules and regulations, these schools must meet accountability standards outlined in the charter. A school's charter is reviewed periodically by the entity that granted it and can be revoked if guidelines on curriculum and management are not followed or if the accountability standards are not met.
We were so disturbed by this story. Grateful to investigative reporter Derek Staahl and AZ Family for reaching out to us for our opinion on what should have been done and what could be done. News story here
According to the education attorneys at Kirsch-Goodwin & Kirsch, accommodations are provisions that your child needs in order to access and demonstrate his or her learning. It is important to understand that accommodations do not substantially change the instructional level of the material, the content of the material or the performance criteria. Rather, accommodations are given in order that a student has equal access to learning and equal opportunity to demonstrate what he or she learns. Accommodations shall not change the content of the curriculum or a test. Below are sample accommdations.
In the Classroom
· Seat the student at or near the front of the classroom. · Establish clear, concise classroom rules. · Increase distance between desks. · Provide more working desktop space. · Get student's attention before starting class instruction. · Give instructions one at a time and check for understanding. · Minimize visual distractions. · Reduce auditory distractions, using earphones and ear plugs as options. · Allow for some standing during seat work. · Reward activity control by assigning active work or errand. · Give break between assignments.
· Make sure there are no additional disabilities. · Increase supervision at transition times. · Provide immediate feedback. · Ignore minor disruptions. · Don't get involved in disruptive actions or arguments. · Allow for legitimate movement. · Use 'time out" or loss of privileges, not detention. · Set social behavior goals and rewards. · Determine student's preferred activities. · Establish a reward/consequence system. · Recognize strengths in front of other students. · Check and clean desk regularly.
· Ensure the student is at grade level. · Modify assignments (reduce them or give alternatives). · Allow the use of marker/highlighter during reading. · Use multi-sensory techniques such as overhead projectors, colored chalk or markers, video or audio tapes. · Provide large spaced paper. · Place piece of tape on desk at an angle for handwriting consistency. · Allow for a mix of printing and cursive writing. · Don't expect improvement by copying many times over; provide copies instead of requiring copying. · Allow for student proctor as a note taker. · Allow for use of tape recorder during lectures. · Provide taped textbooks. · Encourage the use of word processors or typewriters. · Reduce or eliminate oral instructions. · Provide additional time for test tasking when needed. · Allow oral response to test questions. · Reduce test items per page. · Encourage use of notebook with dividers.
According to special education attorney Hope Kirsch, accommodations are techniques and materials that help students learn or perform schoolwork more effectively. Accommodations include extra time on tests, a lighter homework load, and permission to tape-record assignments.
Modifications are changes to the content or curriculum; special education means specially designed instruction. When we talk about Section 504, we are not talking about changing those educational expectations.
Accommodations for a 504 might include extra time for assignments, quiet place to take tests, “chunking” assignment, help with organizing work such as organizers. Thus, merely having a disability such as a learning disability, autism (especially high functioning, or ADHD) does not automatically entitle a student to special education. Rather, the disability must also impact the student’s ability to access the general curriculum such that modifications would be needed.
Special education is defined as “specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability…” 20 U.S.C. §1401. A child with a disability [under the IDEA] is one who not only has a disability, but “who, by reason thereof, needs special education and related services.” 20 U.S.C. §§ 1401, 1401 .)