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Now I’d like to introduce tonight’s speaker. Andrew Meltzer is a Special Education attorney working with Sussan, Greenwald and Wessler, mister Meltzer graduated from the University of Delaware with a degree in History and Political science. Here and just JD firm Drexel University. Thomas R. KlineSchool of Law.
Upon the completion of the education he was admitted to the bars of New Jersey, Pennsylvania, and the District of New Jersey. As a special education attorney. Andrew Meltzer is a classified student who conquered his.
Learning Difference helps special needs students attain the success in school and life,they are capable of through his advocacy.
Mister Meltzer knows the on a Deeply Personal Level: The challenges of families of children with special needs encounter. His unique, personal. and professional experiences in special education law make him a natural and effective advocate for his clients.
Welcome, Andrew. We look forward to your presentation.
Thank you very much, Kelley. And it’s a great pleasure to be here. So as as you said, I’m a special education attorney, it’s us in Greenwald and Wessler, where we work statewide throughout the State of New Jersey.
And my interest in this area of law is both personal and professional. I was a student with an IEP. I had my own learning differences that I struggled with my parents advocated very forcefully for me to get the appropriate educational program. I was able to get that. And, you know, through that help, and through learning how to be my own advocate. I was able to go on through high school, college, and law school. And I’m thrilled to be practicing in this area of law.
There’s nothing more rewarding than paying it forward and giving back and being able to help children who have been through, not always the same situation but to be able to share some of that commonality is it it can’t be described.
So I’m going to be talking about a number of different topics tonight.
Let me just make sure does the PowerPoint come through?
Yes, it did.
Perfect. So today’s presentation is going to be on IEPs, Individualized Education Plans and Section 504 Plans of accommodation. Just as a disclaimer, any information that I present tonight is to be informational only and is not to be construed as legal advice.
If you have any personal questions about your child or anything at all, it’s best to consult an attorney to find out what your rights are.
So, for today’s presentation, as I said, we’re talking about IEPs and 504 plans. What those laws are, what they require. And then what to do if you have a dispute with your school district, about your child’s programming. This information is applicable to both parents, students, and educators. And while I am describing how, primarily from a New Jersey perspective, how these laws are carried out, Both the Individuals with Disabilities Education Act, or the idea in Section 504 are federal laws. So these are laws that are present in every state around the country. Each state has their own vocabulary, or a little bit different in terms of how they carry out that law. But a lot of this information is largely but not completely applicable to other states.
So at first, and the other thing is I am going to be switching around too different slides. We may not be focusing on every single slide. This presentation will be shared with you, and will be recorded, so you’ll have the ability to come back to this. So I’m going to be getting a snapshot of all these different areas.
So, first, we’re going to talk about the Individuals with Disabilities Education Act.
This is a federal law, and what it does is it ensures that services are provided to children with disabilities, This law was created in 19 75.
The reason it was created is that beforehand, school districts did not really have a responsibility to educate students with disabilities and certainly segregated them. Or often, parents were saddled with the costs. That changed with the inaction of the IDA.
It provides services from ages birth through age 21 for applicable students.
In 2004, this law was amended and what it basically did was it added transition services, meaning that there had to be services provided for these students that will enable them to be as independent as possible as an adult.
one of the terms we’re going to be talking about today, and this is really the crux of the idea, is the term free, appropriate public education, also known as fake. And what it is, it’s the right to special education related services and the right to be educated in the least restrictive environment. I’ll be going through all of these. Even though there may be more than one appropriate educational placement for a child, there’s only one environment that’s considered the least restrictive.
The placement is known as the learning environment for your child. Under the idea, an individualized education Plan team or IEP team has to consider placing the student in regular education first with modifications and accommodations only, if the student can be appropriately educated.
In general education classroom, do we go toward what are considered more restrictive place, and those are from getting a special education teacher in the classroom, so in class resource, to pull out resource replacement programs, which is a separate class for certain subjects. A self contained class meeting, a separate class for all subjects, are New Jersey approved private school for students with disabilities that the school district would pay for. A non approved, but accredited private school for students with disabilities. And then you go on to the most restrictive placements, which are residential schools, or the most restricted them, all home instruction where a student is educated at home by a special education teacher.
Now, how does this process begin?
A lot of parents, it’s so difficult. This is a complicated area of law, There’s lots of issues going on. So it’s often confusing about how you actually start the process. So, it starts with this simple legal term.
Child’s find is the affirmative obligation of a school district to seek out and evaluate students suspected of having disabilities in all areas of suspected disability.
This is an affirmative obligation on the school district, which means that the school districts should be actively seeking out these students.
So, who qualifies as these types of student under child’s find? It has to be a student between the age of 3 and 21. if it’s before age three, early intervention services provided by the state or utilize. The student needs to be diagnosed with a disability.
The disability must adversely affects educational performance. one of the important things to note is that educational performance does not just mean academics, and a student is not required to fail. The student also needs to be in need of special education and related services. Special education counts as specialized instruction, related services, or things like speech, occupational therapy, or OT, physical therapy, PT, counseling, et cetera.
Now, who can start this process? It can be any member of the school staff, including teachers or the child study team.
It could be parents. It could be any outside agency concerned with the welfare of the child.
As a parent, if you think your child needs to be evaluated for special education and related services, the easiest way to go about it is to send a letter or e-mail to your school district’s director of special services to explain the issues that are going on, and then ask that they be evaluated. The school district has 20 days to respond under the law.
So what would happen next is there would be an evaluation planning meeting.
It would be certain school staff members that have worked with the child, it would be members of the child study team, which are individuals that will test the child, could include a speech language pathologist, and the district decides at that point if there’s enough information to move forward. If they do, then they will seek the parent consent and the parent has to consent to evaluate the child. The school district under their child find obligation must test in all areas of suspected disability, and they have to use at least two different assessments. They have 90 days to complete.
And this initial evaluation, it can be 90 calendar days.
It’s not 90 business days, they need to provide copies of the reports of those evaluations within 10 days of what’s called the eligibility conference, the next stage in the process. Evaluations can take on many different forms.
Most common are the psychological evaluation, which is usually an IQ test in certain behavior assessments, An educational evaluation, which measures the students, academic abilities in certain subjects, such as math, reading, writing, study skills, that sort of thing.
Speech language evaluations are another type of evaluation. Functional behavior assessments are conducted by a board certified behavior analysts to determine a student’s behaviors in the classroom. As part of the evaluation process, the school staff has to observe the student in the classroom as part of their evaluation.
So, once these reports are provided, the parent and the school district then meet for what’s called an eligibility conference. Ineligibility conference is where the parents and the school district review the outcome of the evaluations, and the school district then makes a determination if the student is eligible for special education and related services.
If that’s the case, most of the time at that point, the school district will then immediately transition into an IEP meeting to develop an IEP.
In order to be eligible for special education, as we discussed, it’s a three prong test and if all three prongs are met then the child has to be eligible. In New Jersey, there are 14 and actually with the federal law too, there are 14 categories that you can classify a student under. It’s not what drives the type of services needed. So if you’re, if you meet the criteria for special education for one of these things, the district is obligated to educate the whole child, meaning, all of their areas of need, the 14 categories that are in the New Jersey Administrative Code. And every, single state has these 14 categories. They may be worded a little bit differently, but this is what they are.
They are auditory impaired, autism.
Intellectual disability, communication impaired. Emotional regulation impairment, which is primarily psychiatric diagnoses. Multiple disabilities, which is when you have two or more disabling conditions that cannot be separated.
Deaf slash blindness, orthopedic lii impaired, other health impaired, which ADHD, or something like Tourette syndrome or related disorder, could meet the criteria under …. Then there’s preschool disabled which is only for preschool students social maladjustment, which is also, another behavioral one is not used that much in New Jersey specific learning, disability, traumatic brain, injury, and visually impaired.
I wanted to go into specific learning disability a little bit, because this one is often misunderstood as how to characterize.
So, a specific learning disability is a perceptual impairment, that involves a disorder in psychological processes, which centers on using language. It could be either spoken or written, and it affects the student’s ability to listen, think, speak, speak, read, or write.
And, it often happens within a specific academic area, in determining if a child meets the criteria for a specific learning disability.
There are a couple of ways of doing it. one is called a severe discrepancy formula. And school districts are allowed to choose if they use this formula or not, which is basically a discrepancy between the student’s IQ and what they were achieving in a certain subject.
The severe discrepancy formula typically is if there’s a 22.5 point discrepancy between a student’s IQ and what they’re achieving in an academic subject, on the Child Study team evaluations. So as a hypothetical, if a student had a 100 full-scale IQ, which is an average IQ, but score to 75 in reading, then they meet the criteria for a specific learning disability in reading. There is criticism about this method, because students may struggle much, more than what their educational achievement scores signify. And certain tests tend to test students strengths more than their disabilities. So, there, there’s a lot of debate over if school districts should continue to use it. You can also look at a student’s functional ability in the classroom, in those subjects, to help determine if there is a learning disability.
So, if a student is found eligible for special education, a school district will then develop an individualized education program, or IEP.
The IEP is the blueprint or roadmap for special education. It is the most important document within the idea.
It sets forth what a local educational agency or school district will do for the child. An IEP has to cover a lot of different things, and I’m gonna go through each one of them, so it needs to address and work on the child’s academic and functional needs. And also, and this is very critical, non academic needs, and they could be behavioral, social, emotional, life skills, activities of daily living.
It needs to address both the academic and functional needs.
one of the other things to note is that the idea requires that every student’s IEP shall be accessible to each teacher. Meaning regular education teacher, special education, teacher, and related services, providers, and other individuals that work with the student.
Now, it’s important to note that even though they have to be accessible, the law does not mandate the IEP’s be distributed. So, if you have a concern that the IEP is not being read by teachers, make sure you contact that teacher or your child’s case manager that implements the IEP and let them know to share it.
I, personally, just personally think that it should be part of the law, that it’s distributed to all staff working with the student, but that’s the way the law does end with attorneys, We have to follow what the law says.
So, the IEP, in addition to addressing the student’s academic and functional needs, it’s supposed to detail any accommodations that the student should be receiving in the classroom. As well as, how do we measure this child’s achievement and functional performance on standardized assessments, to see if they’re making progress.
Now, in addition to these criteria, IEPs now need to contain transition services and transition needs listed in the IEP. That can start as early as age 14, but it has to start no later than age 16.
The IEP is supposed to signify what the school district will be providing for the child, not what the child is going to do.
So, we oftentimes see an IEP, is it says, students will do their students well, ask for this.
But if a student doesn’t have the skills yet to be able to ask for that help, you need to specify on the IEP, how the help is going to be brought to that student to teach them the skills needed to become more independent. It also needs to include behaviors as well.
So, if there are behavioral needs of the, of the child.
Then a Behavior Intervention Plan needs to be created.
That is the product of that is the product of a Functional Behavior Assessment.
And that will be formalized into the IEP. The IEP also needs to include the strengths of the student, and I’m going to explain why, in a few minutes, but, as I said, the school district needs to educate the whole child and all of their academic, developmental and functional needs, and that also means you, helping them utilize their strengths to overcome their weaknesses.
In addition to students that have behavioral needs, their communication needs needs to be addressed, as well as if they need assistive technology services. Assistive technology can take on a wide variety of different forms, it can be utilizing a laptop instead of handwriting.
For certain students, it could be utilizing some sort of picture software to help them speak. Or some sort of iPad app that will enable them to make their needs and wants to know, and if they’re non-verbal, if these things are essential to helping the student access their education than the school district needs to provide it, and that’s done on an individualized analysis.
one of the other aspects of an IEP that needs to be provided is what’s called the Present Levels of Academic Achievement, and functional Performance, or is we attorneys call it the plaque, with a silent peak? So, what it, what a plaque does is, it has to describe what the child’s disability is.
How it impacts their ability to access the general education curriculum and how it impacts their ability to participate, inactivity is looking at the plath. You should be able to get a snapshot as to what the child’s strengths and weaknesses are and what their needs are.
The plan is very important, because it influences the next part of the IEP Annual goals.
IEPs must contain goals that are academic and functional for the students areas of need. That could be, for example, math, reading goals. Could be behavioral goals, It could be emotional regulation, goals, It could be spoken language goals.
In New Jersey, under the Administrative Code, and also for other IEPs as well.
The goals are annual, that means that it’s the student’s expected level of achievement.
Not making progress on the goals, but achievement for every one school year.
So the IEP goals should be drafted in a way that the student should be expected to achieve that goal within one school year. And it all the goals are all set to talk about how the goal is going to be met.
as well as what the criteria is for mastery of the goal. So it may be something like 90% success after five attempts, or something like that. And that’s just as an example. But there’s a wide variety of different ways to measure progress.
IEP goals also need to cover short-term objectives, and short-term objectives, or basically, benchmarks for the IEP goals, could be 3 or 4 of them, could be more as to how the student is going to achieve the goal in totality. So, I mean, overall, you know, a student, if you’re seeing that IEP goals are not met at all each year, even if it says they are progressing on them, that may be a sign that the IEP goal either might not be appropriately written.
Or it might be too high a scale at that point for the student, if it doesn’t seem to be achievable.
So, if IEP goals are repeated year after year, that generally is a problem.
So, the next thing I wanted to talk about, our IEP meetings, in general, IEP meetings can happen for many different reasons. An IEP is what’s called a living, breathing document. That means that changes can be requested or made at any time, so long as both parties agree. So, at an IEP meeting, for whatever the reason it’s called, for, including your first IEP meeting after the eligibility meeting, the parent needs to be provided with a copy of the IEP. For written notes, setting forth what was agreed to and determined by the IEP team. The parents are equal and full members of the IEP team as well.
If an agreement cannot be reached between the parties, the child study team still has to develop an IEP as the local educational agency.
one of the questions I’m often asked is: Does a parent have to provide consent for the IEP to be implemented? The answer, unfortunately, is, it depends.
So, if it’s your first ever IEP, the parent has to sign it in order for it to go into effect.
Now, for any subsequent IEPs, it depends on if it’s a draft or a final IEP. If it’s a draft IEP, it’s not going to necessarily go into effect.
If it’s a final proposed IEP, that means that IEP can go into effect after 15 calendar days, whether the parent signs it or not. So, one of the, one of the most upsetting parts of a consultation is if a parent comes to us saying, we disagree. with the IEP, it’s taking away a service. And they hand this the IEP to review, and we say, When did you get this IEP 30 days ago?
We have to unfortunately tell them, unfortunately, there’s nothing we can do, because unless you file for mediation, or due process, within 15 calendar days of receiving that IEP, that IEP is going to affect going into go into effect, whether you sign it or not. And I’ll talk a little bit more about those processes in a little bit. So, the 15 day notice is so crucial for parents when they get an IEP.
As I said before, placement, that’s also part of an IEP.
And that is the educational learning environment for the child. And I talked about, what are the different things that can be part of an education placement.
So it can be, you know, in class resource, it could be a resource classroom where the student is pulled out. It could be a private school for special education. There’s a wide variety of different placements.
In general, as a tip after IEP meetings, save your child’s IEP and all your IEP progress reports each year.
Because if you’re seeing on the progress reports that the child is not making progress on certain goals.
And then you see in next IEPs that the goals are repeating. That’s an issue. The other thing is, even though IEPs can be amended at any time, IEPs have to be reviewed at least once a year On the anniversary, generally around, and when the student got their first IEP, This is called the Annual Review meeting. It doesn’t matter if you’re in a legal dispute with the school district. The annual review meeting always has to occur.
The next topic I wanted to discuss are Re-evaluations.
So, when a student is found eligible for special education, it’s not something that lasts forever.
Although not many parents may want it to last forever. So, every three years it’s called the Triennial re-evaluation.
Every three years at Maximum, a school district needs to re-evaluate the student to see if they still qualify for special education while a parent has the right to waive a re-evaluation.
In certain circumstances it’s not always a good idea to do so because then you’re operating with an IEP based off of outdated data of the student.
So, if you’re a high school student and you haven’t had this student evaluated since they were five, then you don’t really have an accurate picture of where their functioning is. or what. even if their IQ is accurate. So it is good to get updated data.
Now, if a student is having a change in circumstances, meaning they may have a new diagnosis, new issues come up, you can move up re-evaluations. It’s just that at a maximum, it has to be every three years. The types of evaluations, you know, you’ll have an evaluation planning meeting again and ineligibility meeting. When it’s a re-evaluation, school districts have 60 calendar days, not 90 days to complete them.
The next concept I want to discuss is faith free. Appropriate public education.
Faith is, what is basically a successful IEP? A successful IEP provides a free, appropriate public education Appropriate is the key word. So what is faith? and what we know it when we see it?
So I’m gonna go through a little bit about what faith means for a student. It starts with a Supreme Court decision a couple of decades ago called Rally. And it says that the child needs to be able to meet the basic floor of opportunity, they need to have personalized instruction with support services to enable a child to benefit educationally from that instruction. That’s the basis for the legal interpretation and precedents, but it doesn’t really get at what those things are.
We understand that, you know, what type of benefit are we expecting from the child? What is the level of benefit? The Rally Court didn’t answer those questions.
So, in New Jersey, fete is something that’s provided at public expense.
Under the supervision of a school district, that it should be meeting the state’s educational standards, which are in the New Jersey Administrative Code, and Educational standards are individual, for each child with an IEP, the school district needs to comply with the IEP. Implementation. Integrity is often an issue where an IEP may say something, you may have to create IEP in the world on paper, but if half the services aren’t being provided on a regular basis, that’s not appropriate IEP. The IEP needs to be individually tailored for the student’s unique needs.
Now, in New Jersey and around the country, education is a broad concept. It’s a lot more than academics. It’s communication, social, emotional, daily living skills. It could even include toileting.
It’s whatever a child needs to learn to be as independent as possible as an adults to the extent that they’re able to.
Now, New Jersey’s part of the Third Circuit, which is a federal court region, it includes New Jersey and Pennsylvania, Delaware, and Maryland. There’s a case called Ridgewood V N E. And it goes a bit further than the Rally Court. And it describes faith as significant learning and meaningful educational benefit.
Going on, the third circuit also ruled that it needs to be more than a trivial educational benefit. And it needs to be significant. So it needs to be something you not only can see, but you can read, you can, that is noticeable, the child’s progress, it’s not just simply making a tiny amount of progress.
Another aspect of the ridgewood decision is that, that level of progress for a child, needs to consider, the intellectual potential, and cognitive ability of the student.
The educational benefit has to be related to that child’s potential. So what we describe it as, is, a child needs to make progress commensurate with their ability, meaning cognitive ability. So in the case of ridgewood, when a student displays considerable intellectual potential, otherwise known as a twice exceptional student, the idea requires a great deal more than a negligible benefit. So, let’s say the student, for example.
Um, no progress is in reading from a fifth grade level, to 5.5 grade level, in one school year, but this student’s IQ signifies that they should be achieving above grade level, and the student is in, let’s say, seventh grade. That’s not meaningful progress for that student.
But if that student has a severe intellectual disability, severe dyslexia, and other types of issues, that half year’s growth in one school year may be appropriate for that particular student. It’s a very individualized analysis. None of these court opinions are considered blanket rulings, but they give us a roadmap as to interpret if a student is making appropriate progress or not.
Now unfortunately this is actual language from the New Jersey Supreme Court and that school districts must provide the educational clemen of a Serviceable Chevy to every handicap student or student with a disability. They’re not entitled to the Cadillac of Education. It’s a ridiculous analogy. But again, as lawyers, we have to go buy it, because that’s what the courts say.
The latest special education ruling that sets forth a national standard is the Endrew decision from the US Supreme Court. The most important aspect of it is that it holds that IEP is need to be appropriately ambitious in light of the child’s circumstances. So it’s not only that the child is making progress, it’s that they need to have the opportunity to meet challenging goals and objectives for that student. So that takes the ridgewood case, even though it’s not a Supreme Court case. It’s a bit similar to that.
New Jersey has always had a standard that’s similar to the Endrew decision, but this provides more more direction for that. And again, it has to be more than a trivial benefit.
The IEP is not a performance contract, so even if a student does not achieve every goal, that doesn’t mean the IEP is inappropriate. If a student is achieving a lot of their goals, you know, that may be enough for that student.
If a student passes from grade to grade, that’s important to consider, but that does not always mean that faith is provided.
Let’s talk now about what a 504 Plan is. This is the other major law for special education. A 504 Plan is a Plan of modifications and accommodations. It’s not specialized instruction.
It’s designed to prevent discrimination for students with a disability, and it’s designed to provide them an equal opportunity.
The goal is really to level the playing field. The criteria for having a 504 plan is that a student needs to have a physical or mental impairment, which substantially limits one or more major life activities, that the disability has been around. It’s not just simply that just appeared, and the student is regarded as having such an impairment. The important thing to note is that it’s not about that. It’s about the degree as to how impaired the student is, not necessarily the diagnosis itself.
What are major life activities? It includes everything from walking, seeing, hearing, concentrating, reading, working, caring, for oneself learning.
So, there’s a lot, a lot of times school districts have mistakenly said that we can’t give a 504 plan to a student because their disability is not affecting their learning.
But ultimately, you know, being able to attend school, thinking, concentrating, communicating, speaking, all of these things impact a student’s ability to succeed in school.
So, if a disability is not affecting, quote, learning, but it affects these other things, since school is a place of accommodation, public accommodation, that student needs a 504 plan or would potentially qualify for one.
What counts as a substantial limitation?
Oftentimes you look at the duration of the impairment. Does it impact a major life activity? Again, it doesn’t have to be learning. It’s just a major life activity.
Does it result in failure underachievement when compared with their non disabled peers? And Willie Impairment disappear without any intervention from the school. So, for example, if a student has no Lyme disease, and they have it for two weeks, and the antibiotics get rid of it, without any intervention, from school. You can’t necessarily get a 504 plan for that.
But, let’s say, for example, the Lyme Disease last couple of months, then you may be able to get a 504 Plan. one of the things to note is that children are getting long hoven from the pandemic.
Long cov ed does count as a disabling condition for 504 plans or an IEP, other health impaired. Is the category the US. Department of Education made that very clear a couple months ago. So, if God forbid your child is suffering from long …, that is a qualification criteria for a 504 Plan or an IEP.
Now, what are some examples of accommodations that can be changing the way homework assignments are done. A test is given different types of instructions about assignments. Getting copies of notes. Verbal instructions with visual cues.
Different behavioral management techniques. It can also, in some cases, include things like speech therapy, occupational therapy, counseling for a school counselor.
There’s so many different things, that can be done, one of the misnomers is that a 504 plan is not as strong as an IEP and that it’s viewed as a consolation Prize. That’s not the case. The Department of Education has said that 504 has a wider scope of coverage than the idea because the IGA only provides IEPs when a student needs specialized instruction.
But this is a way to get the student help for a wider variety of different conditions, And anything that’s in a 504 can be in part of an IEP, in terms of the accommodations and modifications that can be gotten. Not everything in a five in an IEP, can be provided within a 504 plan. But the 504 Plan has a wider variety of what can qualify for it, which may be able to get some students help that they otherwise would not be entitled to.
The next thing I want to talk about is what happens if there’s a dispute between the parent and the school district. So these are called procedural safeguards for parents.
At the end of every IEP, or 504 meeting, a school district needs to provide the parent a procedural safeguards notice, which in New Jersey is that little booklet you always get. Or, in my case, I’m a human version of that, but it basically said it’s for the parent, right?
So, if you haven’t read it, definitely read it.
The parent has a right to obtain independent educational evaluations if they disagree with the school district evaluations. In some cases, that is helpful, because the school district would need to pay for those evaluations. But you don’t always have control over who those evaluators are, and school districts, if they refuse, those evaluations have to file for due process against the parent.
It’s, it makes it more adversarial. But that’s what the law says. The parent has the right to consent prior to evaluations into IEPs and to have access to their child’s educational records.
There are a number of different ways to dispute tab resolution for a dispute.
They can happen at any point in the process. It could be you’re disputing a type of service being given. It could be a service not given. it, could be the type of educational placement your child’s in. It could even be whether it be the child is qualified for an IEP or 504 at all. All of these things apply.
one of the newer CRI resolution processes is called a resolution session.
We generally don’t do them.
It’s basically a meeting between the parent and the school district prior to initiating litigation, ultimately, it’s, you know, sometimes it’s helpful, but it’s often the two parties meeting with each other, and they’ve already said no to each other already.
Mediation is a great way to potentially resolve a dispute.
You meet with a state appointed mediator, and you, the mediator will work with the parties to try to resolve the dispute And the parties can get very creative. The mediators in general are great. You know, we, we know all of them, and they try really hard to resolve disputes because these are the kids that has significant needs and they know that. A long drawn out litigation process is very difficult, in many cases than we, as attorneys agree, settle cases a better case. Because even though you may not get everything you want, If you have some control over the outcome, uncertainty over what’s going to happen, it’s often a big relief and it usually results in tremendous benefit.
If a mediator helps resolve a dispute, the mediator will create a mediation agreement and it has the same force of law as if a judge ordered it.
Now, when you file for mediation or due process, parents can do that online, or use an advocate or attorney to file for it.
It triggers a 30 day resolution period, 3 oh 30.
And that, basically, is a mandatory time to try to resolve dispute where you can meet for mediation or resolution session. If after 30 days or mediation or a resolution session fails, then within 1 to 3 weeks, typically, you meet with a settlement judge for a settlement conference. And at that point, if a judge can help you resolve the dispute, then it goes to a different judge for an actual trial, not with a jury, but with expert witnesses, parents, school, district employees, and that. And then a judge decides ultimately what the outcome is going to be. And typically it’s all or nothing or it’s in the judge’s discretion.
So as part of preparing for due process, meaning filing it, it’s important to review all the students records, determine if there’s a need for expert experts to come in, or educational consultants to do evaluations, observe the student in school, et cetera.
So, just a couple points, just always remember, for parents, you are a full and equal member of your child’s IEP team. You have the right to be provided information about your child in terms of what they’re doing in school, what progress they’re making.
That you have the right to ensure your written permission is given before evaluations begin, that you get prior notice of any changes in the program.
Cool, and that you have the right to the records.
Under child’s find, parents have the right to a complete evaluation at their child, which means all areas of suspected disability, and also the right to confidentiality for student records.
Now, for college, your special education records do not travel with you.
But if you want to get accommodations in college, and that’s a whole nother topic to discuss at it at a different time, if needed, then you would need to disclose these records.
Parents are often worried about, will this negatively affect my student, my child’s chances of getting admitted to a college?
What I often say is that it’s not going to negatively affect it. It’s either not going to affect it at all, or may actually help. Because colleges often want to see a student triumphing over adversity, or how they use their skills to confront difficulty.
Getting through high school, succeeding in school, despite your areas of need, is often looked upon very favorably, and as we know, you know, students with either learning disabilities, learning differences, or disabilities, if they get the right support, can go on and do great things in life.
You have the right to faith for your child. Requesting independent evaluations if you disagree with the school district evaluations. You also have the right to obtain your own private evaluators to evaluate your child. That you would need you would need to pay for them, but they also have the right to observe your child in school. Parents also have the right to observe a district’s proposed classroom for your child before you consent to the IEP.
Transportation is a related service. So if your child getting to school is an issue, then that’s part of the IEP as well, or a 504 plan, if applicable.
Now, for Cov Ed, it’s a little bit different now, because most schools are not doing hybrid or virtual learning, although with some case increases. Some school districts are doing some virtual learning, Each district has their own plan to do so.
The obligation to provide …
remains the Department of Education never waive the school district’s responsibility for this, so if a school district says, you know, well, everyone with suffering under covitz, that’s just what happens.
Safe still needs to be provided. Now, obviously, you know, school districts. It’s not like they couldn’t do anything for awhile. They actually couldn’t because of certain laws in place. So if a child has regressed during coed during the pandemic shutdown, compensatory education services can be discussed to help bring the child back to where they were, and then making progress. Again, it’s an individualized analysis. Some children may not need it. Some children may need some, some meaning a lot.
Now, before we go to question and answer, I just wanted to give a few general tips in terms of what I’ve seen in practice. And just for parents to know, in general. For IEP meetings or 504 meetings, go into there knowing what you want and what your child needs.
It’s often helpful to send a letter or e-mail to the team in advance of an IEP or 504 meeting, to help understand what your concerns are, and what specifically you think would be helpful to discuss. one of the most important things is don’t be adversarial with the school district staff. And the same thing goes for the school district staff to the parents. Many times we have to get involved because there’s a breakdown in trust between both sides.
And being adversarially at these meetings doesn’t help. That’s not to say you shouldn’t be afraid to disagree or even vehemently disagree. But you could do it in a way that’s not yelling and screaming and pounding the table.
It just doesn’t work.
And it doesn’t help in any way to help with your child’s position. So, obviously, you know, share your concerns, but generally, it’s better, even when you disagree to keep it cordial and professional. It also mediators and judges like that, and the law calls for co-operation to the maximum extent possible between parents and school districts.
Don’t be afraid to share information about your child, whether it be, you know, they’re they’re having issues at home that are related to school or, you know, they’re seeing a new therapist and you want them to collaborate. These are the sort of things that are helpful because if there is a dispute later on, it’s helpful to know that, you know, for the parent side, but they’re being co-operative, work with the school district side that you asked for that information.
Again, the timeline, when you get a new IEP, not your initial IEP, and it says final on it, you have 15 days to file for mediation, due process to invoke stay put. Otherwise, that IEP will go into effect, whether you sign it or not. Stay put is an automatic injunction.
That means the IEP or 504 plan change is automatically stopped. The school district is forbidden from implementing it unless the dispute’s resolved.
A judge decides it, or the parties jointly agree or settle the case. But stay put goes on for as long as the dispute goes on.
That’s designed as a special mechanism for protection of the child.
If, as a parent, you see certain concerns, but the school district isn’t necessarily agreeing or not necessarily seeing it, it may make sense to get a private person involved in the case. It could be someone that’s currently training your child, it could be an educational consultant. It could be a neuropsychologist speech pathologists, there are so many different types of evaluators. But as a parent, you have a right to have that private evaluator, observe your child in school and test them. And that, that may be very important because it may uncover information that the school district didn’t know about or help provide more information.
And then, that can often show, you know, what is going on to a much greater detail.
And just in general, it’s so important to know your rights, if you can be much more confident in these meetings.
If, You know, generally, and, you know, it’s, there’s so many different parts of this all, but if you have a general idea of what needs to be provided for your child, and that you’ve researched, you’ve done your homework. And it allows you to be able to talk with confidence, with the school district staff, and the school district to needs to know their own rights, as well, to help facilitate a meeting.
So, at this point, I think I hit the time, exactly, I would be more than happy to answer any questions you may have.
So, we have a lot of questions, so I’m going to jump right in, higher. The time, reference, for response? Testing results, et cetera, that you reference here, very beginning of your.
Are those different for each state?
You know, they might be, I can’t speak with full authority outside New Jersey, but, in general, that is something that I have heard.
So, in New Jersey, a school district has 20 days to respond to a demand, to evaluate, or it could even be a demand for a change in a program if, after 20 days, or there’s no response at all. So, or, if they respond no, within those 20 days, then the parent has an automatic dispute with the school district. Sometimes school districts, and may not respond at all after 20 days. So if after 20 days happen, and you don’t hear anything that’s interpreted as a no under the law.
Our schools are at risk of violating HIPAA.
If they share IEP, or 5 or 4 docs, two employees of the school may interact with the student.
Know, that would not be a violation of HIPAA, because IEPs contain certain information about the child to develop at the school district. So they are to make it accessible to any staff member that may need it.
If a child has a disability, like Tourette syndrome, but the study child study team determines the child does not need an IEP, what can I do?
There’s a couple different options and it’s different for every child. one is, the child may qualify for a 504 Plan, which is a plan of accommodations. Those accommodations can be anything from counseling to, if they’re having an increase in symptoms, to be able to leave the classroom at any time, to go somewhere to cool off, or to, you know, address that.
There may be medication breaks that are needed. But if a parent believes that an IEP is what’s needed, and the evidence supports that, then at that point, they can file for mediation or due process. Because not providing eligibility is a dispute with the school district under either the IDA or 504.
Is a functional behavior assessment or wired to be done if they, if they have an IEP, or is it optional or request SBA’s? And it depends. FTAs are functional behavior assessments. Don’t have to be done, It’s if there’s a behavioral need if a student is struggling behaviorally than it should be done. So not every student is going to have it. It’s not always necessary for each student, but if a student is having behaviors that are happening on a regular basis, then that could potentially trigger the need for an FBA.
And this one, I’m gonna put in the.
The blog, is, Is there us?
Way, You can look up special education attorneys in other states as they are, I don’t know, as an organization or something along those lines.
There is, there is a group called Council a Pair and Attorneys and Advocates, or COPPA, and they have a listing of attorneys that specialize in this in every state.
For students, is granted, an IEP? Do they automatically qualify for a 504?
Yes. The answer is for that yes, any IEP is basically a 504 plan within it, plus Specialized Instruction and Related services. But if you have a 504, it doesn’t necessarily mean you qualify for an IEP. Anything in an IEP can be added to a 504 plan. Why, let me, let me put it this way.
Let me step back for a second. Any accommodations in an IEP, meaning accommodations and modifications, can be part of a 504 plan.
Alright. Can something be added to protect a child, has an IEP bully?
Absolutely. Absolutely, There’s special alerts, which are on the front page of the IEP. There’s accommodations, modifications, strategies, you know, especially if a student is having certain peer difficulties.
But under the harassment, intimidation, and bullying, law, or head, if a student is being bullied for a, me being a member of a particular class, meaning that, you know, it could be religious. It could be ethnic. It could be a disability. Students with disabilities are being bullied for their disability. That counts as harassment, intimidation, and bullying, and they are entitled to protections.
The other thing to keep in mind is that if you are a student with an IEP or 504 plan, a student cannot be disciplined. Traditionally.
If the, A behavior or action is a manifestation of their disability, that doesn’t mean there can’t be consequences, but the consequences have to be tailored to help with that student’s disability.
So, you know, if a student, you know, called someone a name and they may not have mandate, or it was impulsive or they couldn’t control it at all, That, may be a manifestation of their disability, so it wouldn’t be a traditional punishment. It would be, you know, what are the services that are needed to help the students, so, this doesn’t happen in the future. And, so, when it’s a manifestation of the disability, it’s not necessarily on their behavior record, although this records don’t always travel to college, anyway.
So, it is an important measure of protection, so, if your child is disciplined and, it’s, for example, is suspended or expelled or something like that, you can request a manifestation determination, and the school district should be doing it anyway, to determine if it’s a manifestation of their disability.
Your, your firm helped us with another webinar earlier on HIV loss.
We can, we can always refer you back to that, as well. How Long How Long coven defined to determine disability?
So it’s not necessarily, you know what the what it is. It’s basically if the student has a diagnosis, of it. And if it’s adversely affecting their educational performance.
So if they’re lethargic in school, if they’re not actually able to get to school due to the illness, it’s just like with any other disability.
If it’s adversely affecting their educational performance, and do they require specialized instruction and related services to be able to have an appropriate education? So, you know, they may have decreased physical strengths. So they may need occupational therapy or physical therapy, that could be something.
So, it’s just like any other disability, and that’s that’s the most important thing, and that it’s now, like school districts, if that’s the reason they have to provide an IEP, that is an exactly permissible reason.
You spoke about have they have to have the IEP is supposed to be made available to all all school personnel.
Does that extend to? teachers?
Even though substitute teachers aren’t technically school personnel, they are employees of the school district. So, and they are working with that student. So, you know, for example, a special education class teacher may be absent so they may need a substitute teacher. That’s a class of all IEPs.
So, that teacher would need to know. If it’s a general education class, and students have IEPs with certain accommodations, or certain specialized instruction, it still needs to be provided whether it’s there as a substitute or not.
So, IEPs are designed to be implemented, no bye by all staff in terms of, in terms of what it says. So no substitute teacher would definitely need to have that accessible.
Um, so if there are more questions, please, please go ahead and put them in the question box. We’d love to have them.
Me, We had, we had some set sent prior to the webinar, so let me check check.
See if we’ve gone over them. People are very thankful for you. Enlightening.
Public on these things.
My pleasure says it’s really important to know especially in this time with the pandemic because these, these are the types of students that are being affected the most by it and need the most help in order to get back on track.
So if a parent feels like the 504 or the IEP isn’t being adhere to, or, or match, their options are one.
So their options are they can challenge it on their own by filing for mediation or due process. But if they don’t have an idea of how the process works, it’s going to put them at a disadvantage, because when you file for mediation or due process, that school district is always going to bring their attorney, whether or not you have one or not.
So that’s something to keep in mind, You know. You can get an attorney or to help you with this. Sometimes, certain treating professionals can help. You can bring anyone you want, to an IEP meeting that has knowledge of your child, or could you can bring family members for moral support or friends.
So you can bring other people to IEP meetings to help you with your position. But if there is a dispute, then it’s best to do your research, Talk to someone who’s knowledgeable about the process.
And also, I forgot if I put it up there or not, but I’m available to anyone in the presentation if you have a question, something personal that you wanted to contact me directly about.
So, I am inputting my office phone number, and it’s also on the last slide of the presentation, and my actually, I don’t know if I said it correctly, but my my phone number to be reached at work is (609) 409-3500. And my e-mail address is Andrew, at S G W. Law firm dot com, And you’re more than welcome to reach out. Or you can also reach out on the blog forum. That’s going to be available for the rest of the weekend. Cardiff next week. and I’ll be posting on there some information, potentially, and answering additional questions on there as well.
If a child does not awarded an IEP where they can a parent ask for retesting the next school year.
It depends, again, if a parent disagrees with the results of the evaluation or the parent doesn’t think that they were comprehensive enough, at that point in time, you should request either an independent evaluation. If a school district agrees, they will pay for it.
If they disagree, they are going to have to file due process against the parent.
At any time, the parent can get a private evaluation sheet, and that provides information. Whenever there’s new information sent to the school district, the school district is a legally obligated to consider it. They’re not bound to agree to it, but they have to consider it. So, you know, if you want the child study team to re-evaluate again, there isn’t a specific set timeframe. But just to let you know, if it’s within the same school year, the school district cannot repeat the same exact tests. So they have to use different assessments. Otherwise, there’s something called the Practice effects, which means a student may do better because they’ve seen this type of test before.
Can they bring someone to an eligibility?
Absolutely. You can bring for any type of IEP meeting you can bring, anyone you want, that has knowledge of your child, and it can range from a family friend to some sort of medical or treatment provider all the way to an attorney.
Somebody ask one more thing. If you don’t feel comfortable going to an IEP meeting by yourself, and you feel more confident if someone’s with you bring someone, you know, you’re, you’re always allowed to do that. Absolutely. Another set of ears that’s not quite as invested is usually a good thing. Definitely.
Can you share the name of the Association to search for attorneys and other states again, please? Sure.
It’s called COPAA counsel of parent attorneys and advocates.
Oh, it looks like that is all our questions for now.
I’m sure that there are more, and they can. you can always go out to our blog on our website. That’s found under our main screen under Programs Webinar, Blog and Archive. And your blog should be open now and available for the next seven days.
I appreciate everyone coming tonight.
I hope that you have a great holiday season.
Thank you so much. Have a great holiday.