Special and Not So Special: Education in Public Schools IDEA and 504. March 29, 2006 Presenter: Jacquie Brennan. TAJAUNA: Good afternoon, everyone and welcome to the webcast Special and Not So Special: Education in Public Schools --IDEA and 504. My name is Tajauna Dunning and I'm with the Disability Law Resource Project at ILRU, your sponsor for today's event. I will be moderating today's webcast and voicing your questions to the presenter. Before we get started, I want to encourage you to send any questions you may have during this webcast by clicking the submit question button at the bottom of your RealOne Player screen or simply address it to webcast@ilru.org. Questions will be posed to the presenter upon the presenter's request. If for some reason time does not allow the presenter to answer all questions asked, a response will be provided to you via E-mail within 24 hours of the live webcast. Additionally, if anyone has technical difficulties today, please call us at (713)520-0232 and dial 0 for the operator. This number is both voice and TTY capable. As previously mentioned, today's webcast is Special and Not So Special: Education in Public Schools -- IDEA and 504, and it is being presented by Jacquie Brennan, legal specialist at the Disability Law Resource Project here at ILRU. In her eight years as an attorney, Ms. Brennan has focused her practice on disability and civil rights issues. Ms. Brennan's interests in disability law began with her nine children -- five of whom are adopted and have different kinds of disabilities. She has successfully handled dozens of cases involving different kinds of disabilities. She serves on many disability-related boards and advisory committees and is a frequent presenter on disability and civil rights issues for professional and consumer audiences, and with that, I turn the webcast over to you. JACQUIE: OK, thanks a lot Tajauna. I have put together a PowerPoint that is going to be available on the website probably at some point during the talk today. You'll have that later to refer back to so you'll have that information. We're going to cover the Individuals with Disabilities and Education Act also called IDEA or I-D-E-A as well as 504 of The Rehabilitation Act and Title II of the ADA as those relate to public school students. If you know anything about this topic at all, then you already know that we cannot possibly discuss everything in an hour or even an hour and a half. So in the future, we hope to have webcasts on specific topics like discipline or behavior intervention and progress of students, crafting IEP's for students with learning disabilities and other more specific topics like that. Today's webcast is really more of an overview because we haven't had a webcast on IDEA in awhile. We are going to talk about the basics of the two main laws that affect public school students as well as who have disabilities as well as some of the changes in the latest reauthorization of IDEA which is actually now called the Individuals with Disabilities in Education Improvement Act or IDEIA, but they've provided in the law that it's still going to be called IDEA and we're still going to pronounce it "idea." One thing I always want to mention when I'm talking to a national audience like this is that we're discussing federal laws here. You might have laws in your own state that give greater benefits than these federal laws, although they are not allowed to diminish the benefits of the federal law. You might also have state laws or commissioner of education rules or state board of education rules that provide more clarification to some of the issues in your state and of course I can't speak to all of those. We're just going to be talking about the federal laws today. I will finish in time to take questions and if we don't --even if we don't get to all the questions, of course, we will answer those by E-mail really quickly for you. So if you have any questions along the way, please don't hesitate to get into those. Okay, the first law I want to mention -- because we're not going to be able to go into a lot of detail with that, although we're going to discuss eligibility under all of these -- is Title II of the ADA, Subchapter 2, Part A, of the Americans with Disabilities Act says that no qualified individual with a disability shall by reason of such disability be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity or be subjected to discrimination by such entity. Then Section 504 of The Rehabilitation Act prohibits school districts from denying or excluding an individual with a disability from participation in any program or activity that receives or benefits from federal financial assistance and of course that includes virtually all schools -- public schools. And then -- well, the ADA and 504, looking at both of those, except for accessibility of buildings and modifications and accommodations, 504 and ADA don't provide very many protections, particularly in terms of enforcement as many as IDEA does, but they do have limited benefits for children with disabilities in schools. The purpose of 504 and ADA, of course, both of those are civil rights laws. Section 504 was passed first and it protected individuals with disabilities from discrimination for reasons related to their disabilities and the ADA expanded the agencies and businesses that have to comply with the nondiscrimination and accessibility provisions of the law. But neither Section 504 nor the ADA guarantee that a child with disabilities will receive an Individualized Education Program that is designed to meet the child's individual needs and educational benefits so that the student will become prepared for further education, employment and independent living. This, however, is the promise of the other law we're going to be discussing today, which is IDEA. In IDEA Congress said that one purpose of the law is to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related service designed to meet the unique needs and prepare them for further education, employment and independent living. That further education phrase was just added in to the new 2004 reauthorization of the law. IDEA requires districts to provide FAPE to students with disabilities who are eligible to receive special services. That word FAPE is really important of course. It is one of those -- it's one of the many acronyms and we're going to be – there is a slide in the PowerPoint and we'll be going over a lot of the other acronyms as we go along. FAPE stands for Free Appropriate Public Education. And when you're at an IEP meeting, it is so commonplace to use that acronym and many others that parents often don't know what districts are talking about in their IEP meeting, but that one is a real common one that you should know. I was in a meeting once with a school district and the parents and we kept talking about FAPE and how the school district had to provide FAPE, and the mother finally interrupted and said I give my children their faith at home and the school district doesn't have to provide faith. So clearly it was a phrase we hadn't made clear exactly what FAPE meant, but it's Free Appropriate Public Education. Of course, if you look at those words -- "free" is easy. That one is -- you know, it's provided at no cost to the student beyond the taxes that you pay, of course. And "public" is pretty clear -- public, public schools. "Education" -- there is general agreement about what that word means, but "appropriate" is much tougher. That's the word that most of the litigation focuses on because it is a difficult word – reasonable people I should say can disagree on what appropriate means. And courts have looked at it and the Supreme Court has looked at it and said it's a basic floor of opportunity that allows a child to make progress in the general curriculum. So it is not -- the school does not have to provide the most appropriate education or an education that is in the best interest of the child. That is a different standard that comes into play in family courts, but not in the law in schools. It can even in some ways provide the least appropriate education as long as it can be deemed to be appropriate. The procedural protections under 504 are that children are protected from discrimination, of course, under 504, but unless a child receives special education services under IDEA, the child does not have procedural protections and safeguards that are available under IDEA. Under 504, a child with a disability may get accommodations and modifications that a child without a disability won't get, but these accommodations and modifications are also available under IDEA. There is a difference between accommodations and modifications, and sometimes we use those two together. We almost run them together as one word, accommodations and modifications, but really they are two different things and it's important to know the difference when you're asking for these services for your public school student. Accommodations change the way that students are taught in Texas, but do not change the course content of the expectations. So like moving a desk closer to the teacher is an accommodation. Making more time for tests is an accommodation. Shorter assignments or --those are accommodations. Modifications change what the students are expected to learn, but still allow them to interact with other students in their learning experiences. For example, the use of a calculator or a word bank is a modification. Using a different set of books or materials that are on the same topic….. that would be a modification. Using simpler language on tests that would be a modification. And you can get accommodations and modifications under either 504 or IDEA. The eligibility for students under 504 is that the student must have a mental or physical impairment that substantially limits one or more major life activities. This is the same definition that is used for eligibility under IDEA -- I mean, I'm sorry -- under the ADA. Under IDEA, the eligibility is different. The child must - -the child's impairment has to fit into a category. Those are looked at as auditory impairments, autism, deaf/blind, emotional disturbance, mental retardation, multiple impairments, orthopedic impairments, other health impaired, specific learning disability, speech or language impairment, traumatic brain injury, visual impairments, blindness. Those are the categories that are listed. And besides having a disability that falls into one of those categories, they must also because of the disability need special education and related services in order to get an educational benefit from school. Sometimes when parents are trying to get their child covered by IDEA, that's the piece that is missing. It's fairly easy to show that a child has a disability, but you have to also be able to show that they need special education and related services in order to get an educational benefit from school. Some parents feel the opposite way about that in terms of trying to get their child eligible under IDEA. They don't want it. They don't want the special education label. They are worried that their child will be stigmatized somehow by the label and in most cases they think of special education as the way it was maybe when they were in school, which was that the special-ed classes were out in another building somewhere or maybe even an entirely separate school and you didn't see them. And it really isn't that way now. In the best school districts, special education really has become what it is intended to be, which is a set of services and not a place where children go. We're going to go through some of the common words and acronyms just so you're familiar with what they are and talk about several of them that we haven't already discussed. The ADA, of course, is the Americans with Disabilities Act. I-D-E-A or IDEA as I said before stands for Individuals with Disabilities and Education Act. AEP is something you may have heard about if your child has gotten into trouble at school and really, as I said we could do a whole webcast just on the discipline issues, but AEP stands for Alternative Educational Placement and sometimes when they want to --because school districts still have a requirement to provide FAPE, that free appropriate public education, even if a child is being disciplined, they often do it in an Alternative Educational Placement or Alternative Educational Program. The SDAA is an alternative Assessment. It stands for the State Developed Alternative Assessment. Like any of the standardized tests, except the state -- each state can develop an alternative test for children who cannot take the typical standardized test. AT stands for assistive technology and more and more schools are using assistive technology to help students in special education. Assistive technology can be as simple as a pencil grip or as complicated as computers and related items. Usually the more complicated assistive technology devices involve computers in some way and everything in between that. And there are assistive technology evaluations that can be done separately from other kinds of evaluations for eligibility so that children can get the benefit of assistive technology in their education. BIP is Behavior Individual Plan. Again, you probably know about this if your child has had difficulties with behavior in school. It's similar to an IEP which most people are familiar with if they've been through this at all, but this one is for behavior. ECI is Early Childhood Intervention for children with disabilities who are diagnosed early before their typical public school would start. ESY is for Extended School Year. You'll also hear EYS, Extended Year Services. That’s what it used to be called. It's not bad enough that we have all these acronyms, but they change them on us from time to time. IDEA made it into the list twice and goes into the other column. FERPA is the law that protects the privacy of educational records. It stands for the Federal Education Records Privacy Act and there are often questions about FERPA and whether schools can do certain things under FERPA and that also maybe a topic for another webcast, but that is the basic benefit of that law is that it protects education records, the privacy of education records. FAPE, I'll say again because I can't say it enough because it's such an important acronym, is the Free Appropriate Public Education; and IEP is Individualized Education Plan or Program and that is the -- what you write when you have an IEP meeting, you come up with the IEP, the Individualized Education Plan for the child for the next school year usually. And the ITP is the Individualized Transition Plan that is started when the child is in their teens to plan for the transition out of public schools and it is a many years process to do that. It's not something that you wait until the child is about to graduate to do. You are planning for a long time in the best of circumstances that's what happens. LRE is another very common acronym that's used all the time in special education settings, and it stands for Least Restrictive Environment. It is sometimes a misunderstood concept, even among educators. I had a teacher once in an IEP meeting who when I said that the questions they were proposing really didn't provide the least restrictive environment, the teacher said well maybe we should just let the child be educated in a park somewhere where there would be no restrictions at all, thinking of physical boundaries I guess instead of what LRE or the least restrictive environment really means, which is that the child is educated with their non-disabled peers so that the child spends not all day long in a room or where the child is never exposed to children without disabilities, but that to the maximum extent possible, they are educated with their typical age appropriate peers. And FBA is Functional Behavioral Assessment and an FBA is typically done when there is a discipline problem as the basis for coming up with a Behavior Intervention Plan. It's an assessment not unlike the other assessments that are done to make a child eligible for services, but this one has to do strictly with the functional behavior, how the child actually behaves in several settings, but mostly in the school settings. And the FIE is the Full Individualized Evaluation. So it's what used to be called a CIA, again, one of those that changes – a Comprehensive Individual Assessment -- but it covers all of the many -- the array of testing that might be done for a child with disability to see if they are eligible for services under IDEA. I want to talk a little bit about what you can do if you're a parent or if you work with parents who have children in special education and one thing I really highly recommend is keeping records. Of course when clients come to me, they have -- they are having big problems in the school, with the school, and they are typically unable to resolve them and we'll talk about how that process works a little later, but my favorite clients, of course, are the ones who have kept the records and have them all neatly categorized into notebooks rather than the ones who have some of the records thrown in a big box that they give me, but it is important to keep the records and keep them in such a way that everyone will have their own system, but in such a way you can get your hands on things. Be sure to keep notes from the teacher's notes back and forth between you and the teachers, including E-mails which are more and more common means of communication with teachers at this point, copies of progress reports, report cards, any of the achievement testing that's done, whether it's the regular testing that's done or a State Developed Alternative Assessment or even a locally developed alternative assessment. Keep discipline reports, all evaluations that have been done, medical, psychological, assistive technology evaluations, any evaluations that have been done, any reports from doctors or from other therapists – outside therapists -- that you may have. And of course all IEPs, BIPs, ITPs, any of those things, be sure to keep. It occurs to me that I haven't said what an IA P. is. Sometimes under 504 the school will call the plan an IAP an individual accommodation plan. When a child is referred for special education when either the parent or the teacher thinks that the child needs to have special education services, the first thing that is generally done is that there is a full and individual evaluation, an FIE. A parent must consent in writing to the evaluation. If the parent withholds consent so if the parent doesn't want the testing, then the parents can refuse to sign, in which case the district must file for a due process hearing to show why the evaluation is needed. The district -- if the parent does go ahead and sign and the district provides -- must provide a written report of the results of the testing and the FIE has to cover all suspected areas of disability. If the IEP is incomplete when you get it, if you get the report and it seems not to cover everything, you can ask the school for additional testing. If the IEP comes in and it just seems wrong in terms of it doesn't -- you believe the child has a disability and it shows that they don't or the opposite of that, if you think it is wrong or for some reason doesn't accurately measure your child's needs for special education, then of course you may request an IEE, an Independent Educational Evaluation. And if you ask the school to pay for the IEE, the school must do that. They must pay for the independent educational evaluation unless the school requests a due process hearing to show that it's evaluation was appropriate. If the school shows that its evaluation was appropriate, then they won't have to pay for the IEE. The fact is in practical terms though it is generally less costly for the schools to just pay for an IEE than to file for due process and go through a due process hearing to convince a hearing officer that what they've got is enough. So seldom happens that the school will actually do this. They will generally just pay for the IEE. But you may need to request that. The school may not offer it. Parents rights during evaluations. Parents have a right to written notice as I said, of the evaluation as well as information about what will be tested. So you're not just signing a consent that says -- that is sort of open-ended in that way. You can get information about what is going to be tested. Of course you can grant your consent or you can withhold your consent. You have a right to get a description of the testing procedures so that you know not only what is being tested, but what is being done, how it is being tested. And you have a right to a copy of the report prior to the IEP meeting and I will mention this again later, but it’s worth saying now that you want to be sure that you get copies of the evaluations before you get to the IEP meeting. It's very difficult as a parent when you walk into an IEP meeting and the school hands you, you know, a 20 page evaluation that you haven't seen before but they have and to take the time even though it is -- the school would undoubtedly allow you the time to sit and read it at that point. It can be a little nerve wracking to take the time to do that when people are sitting around waiting for you to hurry up and finish. So always try to get copies of those in advance of IEP meetings. And of course a parent has a right to request due process or mediation at any point during the evaluation process. For adult students, this is something that is a very frequent question. Once a student turns -- of course under IDEA, a student can get services from age three to age 22. So parents, once the child turns 18, schools will often say, well, you know, you can't come to the IEP meetings anymore because now the student is an adult and you no longer have a right to be there. Parents are still usually invited to the meetings, but they don't have a right to attend under the law unless the child invites the parent because the child – the student can invite whoever -- the adult student can invite whoever they want to come to the meeting as long as the person has specific knowledge of the student, which of course parents do. So parents can always come to the meetings at the invitation of their children, but after the age of 18, parents are not the educational decision-maker. Some schools will recommend that parents get guardianship so that they can continue to make these decisions. There is -- there are a couple of ways that are much easier and much less restrictive and much less stripping of a person's rights than guardianship. One of those is just for the school to have a policy that allows parents to continue to be -- to help make the decisions and the other is to get the child to sign a power of attorney. You can even make it specific for educational decisions that says that the parent can make the educational decisions for the adult child -- the adult student. And either of those would allow the parent to continue to make decisions, but not without having to get guardianship which is probably another topic for another time. It's expensive and difficult and more restrictive than you need just to be able to decide what your child's IEP is going to be. Members of the IEP team, when you go to an IEP meeting, the people who are supposed to be there are the parents or a representative of the parents, although the meeting can take place without parents, but you do have a right to be there and they have to try to schedule the meeting at a time when you can be there or allow you to attend by phone or things like that. This is not the case by the way under 504 but only under IDEA. The student can attend. Under age 18 this is optional. Sometimes parents want the student to be there. Most often it's fairly boring for a student. I once invited one of my children who has Down Syndrome to an IEP meeting and she was very excited about coming to her own IEP meeting and have everyone talk about her. About ten minutes into the meeting (although she had been excited about the meeting), she said, “Is this a meeting?” We assured her it was a meeting and she said, “I'm out of here”. She thought it was going to be more exciting than it actually turned out to be. Special education teachers or service providers are at the meeting. A regular education teacher should be there if the child is even a consideration that this child will spend any time in regular Ed, which certainly should be the case. Someone who can interpret evaluations should be there. Others who have knowledge or expertise about the student can be there, and a person from the school district who is qualified to supervise special education, knows about available resources and can commit to spending them. When this was put into the law, it was because very, very often a parent would go to an IEP meeting and would say, I would like this service and then everyone at the table would say, I don't know if we can afford that, that kind of thing. And so they took away the "I don't know" out for IEP meetings. Someone has to be there who does know what the available resources are and who can commit to spending them. And those people all must be at the IEP team meeting. This is really a checklist for parents of things that they may want to do before an IEP meeting. They should, of course, look at the notice that you get. Read the notice of who is going to attend the meeting and what is going to be discussed. Ask for copies of anything you don't -- anything that you don't have already, the latest testing, teacher progress notes, student code of conduct, draft IEPs. It's important to get those draft IEPs ahead of time. It's much easier for you to sit in your own home and look over the IEPs that are being proposed and see what seems right and what you have questions about rather than just going over those rather quickly at the IEP meeting. The way the law is written, it looks as if you would come in and there would be a blank sheet of paper and the teachers and the parents and the therapist and everyone that is at the table would discuss and then come up with an IEP, but the way it works most often is that the school drafts an IEP for your -- the parents' approval and so you don't want to be seeing that for the first time when you walk in the door. Get reports from outside experts, particularly if you have the child getting private therapy and that kind of thing. Make a list of your child's gifts and talents. Sometimes those kinds of positive things get lost in the IEP meeting. Make a list of what you would like your child to learn in the coming year and read over that and keep marking through things until you get to the five most vital to you. Make a list of the areas of functioning that would improve with assistive technology. Think about how your child might be able to use different kinds of assistive technology. Talk to the person in the district who does the assistive technology evaluations to see what kinds of things are even available and talk to other parents. Make copies of each of those lists for the meetings so that you'll have them and so that you can give them to the rest of the IEP team. Decide who you will bring with you. I recommend bringing someone with you just so that it doesn't seem like you're alone when you get to the table. And meet with the teacher before the IEP meeting and see what the teacher is thinking as well as letting the teacher know what you're thinking. The individualized education program is a written plan designed for just one student. It's an agreement between the school and the parents on how the student will be educated. It's probably the most important document that exists in this special education array. In the IEP development, what will happen early in the meeting is that they will review the present levels of performance. This information is used to write a statement on the IEP about how the child's disability affects participation and progress in the general curriculum. You need to ask questions if anything is not clear about that, but once you're through -- once you've gone through the present levels of performance, you should have a clear picture about how your child is doing in school at that time. Then annual goals are developed. These goals are statements about what your child is going to learn during the school year. Each goal must be measurable and it should state clearly and objectively how you and the school will know if the goals have been reached. Goals are broken down then into smaller steps that are called objectives or benchmarks. The IEP has to include how progress is going to be measured. This is very -- a very important piece because it's the only way that any particular objective or benchmark or goal is going to be measured is by the teacher observing. That's a very subjective way of deciding whether or not a goal has been met. There should be ways to measure how progress is being made so that everyone who is working with the child will have a very clear picture of how and whether progress is actually being made towards the goal. The IEP has to include what kind of support the child is going to need in order to reach the goal. Another obviously very important thing because the types of supports and services that the child will need must be provided for in the IEP. It should also state who -- well, in fact it must also state who'll provide each support element. So it can't be just that oh, the child needs this service or this piece of assistive technology or whatever it is. It has to be -- we have to know who is going to provide that and how the parent will be notified of progress. There are lots of related services that are available under IDEA to students in special education and some of them include assistive technology which we discussed, speech therapy, physical therapy, occupational therapy, psychological services, counseling, special transportation, audiological services, orientation and mobility training, rehabilitation counseling, school health services. These are -- can be provided in a number of ways, usually at the school, and very often the disputes over related services have to do with how much of the related service is going to be provided and what kind of service will be provided. A lot of times parents will go to an ARD and they'll find out that their child is going to get an hour of speech therapy a week. And they think that should be -- that should be plenty. So they are not upset about the time always, although very often that's an issue, too, but in their mind, they're seeing speech therapy as the teacher comes and gets the students and takes the student down to her -- his or her office and then gives -- sits across the table and spends an hour of time in speech therapy. And the IEP can be worded in such a way that that is exactly what would be provided, however, it also happens that speech therapy may be consultant services where the speech therapist doesn't spend time with the student so much as with the teacher consulting about the kinds of activities that might assist the student or group therapy or therapy that's in the class, part of the regular school day. So it's very important to get very specific about what related services are going to be provided, how they're going to be provided, how often, what the duration of the service will be and how often it will be provided. There are other IEP elements that might apply to any given child, extracurricular activities are addressed in the IEP, whether or not the child will have a right sort of to fully participate in extracurricular activities, which they do bar in specific circumstances, whether the child will take the usual statewide assessments or, if not, then which statewide assessments will they take? If the child has autism, there will be an autism supplement. There will be transition planning that has to be done. If the child is at the right age to be doing that. There are extended school year services. Of course the IEP needs to look at whether or not that is appropriate for that child. Travel training and of course termination of services, if that's appropriate. Graduation and of course the big one in some cases which is behavior. If your child has behavior that interferes with learning or is disruptive to other students, then that has to be addressed at the IEP meeting. There is a functional behavioral assessment which we mentioned earlier. That assessment is done to determine why and when the student is displaying inappropriate behaviors and how best to respond. So once the functional behavioral assessment has been done, then the IEP team develops a behavior intervention plan that identifies the supports and services that are needed so that a student does not behave inappropriately. It should also identify the antecedent to the behaviors which may be one of the most critical pieces to see what happens before the behavior happens, strategies for the behavior, and identifies the consequences step by step. Sometimes behavior plans will be wholly driven by consequences and will really not include a lot of strategies to prevent the behaviors and so you want to make sure that those are present there. Parents are generally asked to sign a statement that the child can follow the student code of conduct. Be sure to look at the code of conduct before you sign a statement like that. Write exceptions into the IEP or to the behavior intervention plan for parts of the student code of conduct that would present problems for a particular student. Discipline, of course, is a topic for another webcast, but one important difference between 504 and IDEA in terms of discipline is that under 504, if the child misbehaves and the school decides that the behavior is not a manifestation of the disability, then the child can be expelled permanently. Under IDEA, the child is still entitled to a free appropriate education even if expelled and a lot of litigation goes on around that issue, which is why we're not going to go into it in any more in depth today. After the IEP team has agreed on the IEP, the next step is to determine placement, which is of course where the services are provided. Placement decisions have to be made at every IEP meeting, and they have to be based on the individual needs of the student. So it isn't just a matter of we have all kids with that syndrome in class. It can't be something like that. It has to be really based on the individual needs of each student. The first consideration must be given to placement that is on the home campus in general education classrooms. That's very important because too often it seems to be overlooked as an option in many IEP meetings, particularly ones after the child has been getting special education services for awhile. That is supposed to be considered at every IEP meeting. Then the child is placed in the least restrictive environment and that is supposed to mean that the child is to the maximum extent appropriate is educated with their age appropriate peers and non disabled peers in a general education classroom on their home campus. Other words that are often used are inclusion, integration, mainstreaming which essentially mean the same sort of thing, but at every IEP meeting they will decide what the least restrictive environment is for implementing the program that's been developed. Questions that should be answered in the IEP meeting when determining the least restrictive environment -- can the child learn the same curriculum as other kids the same age with only consultative special education services? That means special education professionals would consult with the general education teachers providing the education and could the child do that? Could the child learn the exact same curriculum as other kids the same age with just those kind of consulting with special education service providers. Can the child participate in the same learning activities as with other students but just with modifications? Then you would look at, does the child need any supplemental aids and services in order to remain in the classroom, and does the child need any services that cannot be provided in the regular classroom? Once you have completely answered those questions, it will be fairly clear what the least restrictive environment is that is appropriate for that student. But those questions have to be answered very completely in order to get that place. After that, at the IEP meeting, everything has been pretty much decided at that point and you come to the point where they ask you if you agree or disagree. If you agree with everything in the IEP, including placement, then the meeting ends in agreement and everybody leaves happy and I do so love those meetings that end that way. But if the parents and the school don't agree, then in most cases the meeting is tabled for a cooling off period, during which time both sides are urged to come back -- think about the other side's position and to come back with maybe other supporting documentation that supports their position in terms of what they -- whether it's an IEP goal or a related service or placement issue. And so everyone comes back together at that time and tries to agree again. In my experience, that seldom happens that after that cooling off period people come back and say, oh, well, now I've seen the light and I agree with you; but that's the way it's set up to do that. At that point, if you don't agree, then you have some options, some of which are pretty good and some which are not so great. Of course you have the option not to do anything. You can sign that you disagree and then the school can -- parents often don't understand this. Even if you disagree, the school can implement its plan over the parents' objection unless the parents do something else to prevent that. The parents can file a complaint to the state education agency which won't prevent the school from going forward with their plan, but it will -- the school -- the state education agency will do an investigation and determine whether the school or the district has violated the procedure of the law. Parents can request mediation which is more and more commonly used now and in my experience very successfully used to avoid a lawsuit and different states can have different procedures for the mediation as far as requesting it and all that sort of thing, but they do all have to offer mediation as an option and schools are generally very -- you know, they don't resist mediation at all because it is a good option. If you have no experience in mediation in any setting, it really is a -- it's a mechanism of alternative dispute resolution that involves a mediator. You hope someone very knowledgeable about the law in that area, special education law, meeting with the school district representative and the parents and basically trying to work out an agreement. The parents have already -- and the parents and the district have already sat around the table trying to work out an agreement themselves and it didn't go so well for them to get to this point, so the mediator steps in and tries to do it. Mediation is not a forced thing. It's not like arguing a case to a judge who will ultimately decide on their own what should happen. Mediation – a mediator tries to get both sides to come to an agreement and -- but if you don't come to an agreement, the mediator doesn't force one on you. They will just try to get both sides to agree. In a mediation, generally no one gets everything that they wanted when they came in the door, but in the best mediations, everyone will get about 75 percent of what they wanted if it all works out pretty well. So mediation can be very effective and of course a much less expensive option for both the school district side and on the parents' side, particularly if they have -- if they hire an attorney to go forward to the next step which would be filing for a due process hearing. That's a really serious step to take and I urge parents to at least discuss it with your -- either a private attorney who does special education cases or with your state's protection and advocacy agency to really get a good opinion on the likelihood of success of going forward with the due process hearing on the issues you're involved in and to find out exactly what's involved because it -- it can be an overwhelming task. It can be done. You don't have to have a lawyer to do it. It can be done without a lawyer, but it can be an overwhelming k to do that because there are many procedural rules that have to be followed that you can lose by just not following those rules or missing deadlines that are there. So it's not the easiest thing to do. In the law it looks like, if you disagree, you can just do this, but just going and filing a due process hearing and ultimately prevailing in that at least is not very easy. Well, we've gone through an hour and we've covered a lot of things only scratching the surface of any one thing. I'm going to stop in a minute to let Tajauna tell me if there are any questions and read those to me and I'll try to answer them, but as I said before, if we don't get to your question today or if you think of a question later, you can call us any time and you have the number or E-mail me. My E-mail is on there and you can E-mail me directly or E-mail the -- send an E-mail to the webcast and we will get those questions answered for you. Okay, Tajauna, do we have any questions? TAJAUNA: Yes, we do. The first question is, I would like to know what the presenter considers the difference between some one being learning disabled under 504 and learning disabled under IDEA. I am really talking about the eligibility guidelines and how someone could ever be disabled, I. e, a processing problem which limits learning and not be eligible under IDEA? JACQUIE: Well, that's a really good question and my answer is probably not going to be satisfactory just because I'm agreeing with what I think the questioner's point of view is, which is that if the child has a learning disability, particularly processing difficulties, then it's really hard to understand why they wouldn't be eligible under IDEA. Districts use -- they use the standard that is given that we read earlier about that you have to have one of those disabilities and of course that's the easy part, one of the listed disabilities, but then you have to also meet that requirement for --for meeting the education -- special education and related services in order to get an educational benefit from school. So what schools typically -- or often, not typically, particularly as I’m talking to a multi-state audience, what they will sometimes do is they will say well learning disability is -- they don't need special education and related services. We can just give them some accommodations and some modifications and we can do that under 504 and we don't need to -- they don't need to be covered under IDEA, but you know I would argue and have argued before hearing officers that if a child has a learning disability, they do need special education and related services and it's not enough to just throw in an accommodation or a modification and hope that things go well, that timing is critical, especially for kids with learning disabilities. You don't want to wait and start giving them services when they hit junior high or high school. They really need those -- they really need those critical services early on. So as I said, that's probably not a satisfactory answer because what you are really asking is a question that maybe only the school can answer as to why won't they give eligibility under IDEA to students with processing disorders and I wish I knew. It's always a fight or is often a fight. TAJAUNA: Okay, since there are three different documents/laws for oversight of special education, the ADA, Section 504 and IDEA, what document supersedes the others or is there an order of progression that should be taken into account? JACQUIE: Well -- okay, let's see, how best to answer that. The ADA really covers -- although students are covered by it, they get better coverage under the other laws. And so when the ADA is applied to schools, it's generally not just to special education student, but more to things like accessibility of the school, physical accessibility, barrier removal and things like that. Sort of the broader things rather than the individual students. So then that brings us down to 504 and IDEA. Neither law supersedes the other I guess, but many more students would be covered under 504 than under IDEA because of the eligibility piece. For 504, students just have to have a physical or mental impairment that substantially limits one or more major life activities. So there would be a big circle of students who would be covered by 504. Now, when students meet the eligibility under IDEA, they are in a smaller circle inside the 504 circle. So technically, if a student is covered by IDEA, they are also covered by 504, but the reason you don't hear about that much or you don't -- parents don't say, you know, my child is under IDEA and 504 is because once you're under IDEA, you have more protection, more procedural protections, more enforcement mechanisms, greater enforcement mechanisms and a greater array of services that you can get under IDEA. So even though they are technically still covered by 504, they don't use 504 because IDEA has more and so they use IDEA. So generally the only students who are having 504 meetings are the students who have disabilities but are not under IDEA. I hope that answers the question. TAJAUNA: Okay, this is from a parent. It says at my recent IEP meeting I was told I had to sign to show participation only. I have yet to see revised IEP, nor has my son said anything different about what is transpiring in his classroom. Is the school doing the IEP process legally? JACQUIE: Well, honestly I can't tell if they're doing it legally just from that, although I'd be happy to talk to you in more detail about it; but from that description I can't tell. I mean, they're not -- I just can't tell from that, I'm sorry. It really depends on so many things that I'd be really skewing your question if I tried to put in all the ifs on my own, but if you'll just contact me, I'll be real happy to talk to you about that. They can't require you to sign for participation. They can certainly request that, but they can't -- they don't have any power to require your signature on a document. They can indicate that you were there in the meeting without you signing one way or the other. TAJAUNA: Okay. The next question is, is there an agency available that will look at a child's needs in their proposed IEP for evaluation? When does the parent need an outside or second opinion? JACQUIE: Okay, assuming from the first part of that question we're talking about evaluation -- okay, I think I understand now. I think that the question is -- and please feel free to write it again and correct me if I'm wrong -- but when you get an evaluation, is there somebody else you could show it to because you don't know exactly how to read evaluations, because they tend to be in another language, too. Professionally they use different words and concepts and so if you don't un—if there’s somebody that can explain the evaluation to you so that you know if you need to request an additional evaluation? And the answer to that is probably different in different states. There may be states where -- or there may be places where you have that -- clearly you could go f you can pay for it, you can go to any kind of an educational psychologist or licensed school psychologist and you could ask them to look at it and tell you what they think. And then explain it to you somebody that's not connected with the school. You could do that, but whether or not that service is available to a parent at no cost, I'm not aware of it. So somebody else listening may know about that and send it to us and we'll pass it along if there is a service like that available because that would be really good if there was a free service that would do that but I'm not aware of one. And the second part of the question is of course you can ask for an independent evaluation at any time if you disagree with what the school -- even what the school interprets as the results of this even if you may not completely understand everything in the evaluation, if you disagree with what the school says about it, then you can certainly ask for an independent one. TAJAUNA: Okay. As a Center for Independent Living we occasionally get crises, last minute phone calls from parents needing information/support for the ARD meeting. We have been thinking about a support group of parents, professionals and paraprofessionals who could accompany the parent/child to the ARD meeting. Any suggestions on this approach? Has it been done previously by others? JACQUIE: Yes, it has and it's a great idea. It's wonderful and I didn't mean the IDEA when I said that, but it's a wonderful thing to do for parents to have that kind of a resource. Parents can -- you know, they can always hire people to go with them, but you know, it's prohibitive for most people to do that. And there are in many parts of the country, there are different groups that have done this, that have put together parents and professionals and paraprofessionals and sort of created materials that can help parents, first of all, and to go by themselves, but then having someone to go with you and to really sort of either just as a person to be there to support or ask questions or as a real advocate for the parent and student, of course, and these services when they are offered, they tend to get overwhelmed quickly because there is such a great need for that. That you won't -- you won't be twiddling your thumbs on that one. You will be busy once you start offering that service, and if you E-mail me, I can get you the names of other organizations that are similar to that and can pass those along to you so you can contact them individually and see what they've done, what has worked and what hasn't worked and get the benefit of their experience in doing that, but congratulations on looking into it because it will be a great service. TAJAUNA: Jacquie, before we go to the next question, do you want to give your E-mail address again? JACQUIE: Sure. It's jbrennan@tcm -- I got that wrong already -- so Texas Medical Center. It's always hard to give letters because letters sound different, but tmc and then Baylor College of medicine, bcm.edu, so jbrennan@tmc.bcm.edu. EDITORS NOTE: jbrennan@bcm.tmc.edu is the correct address. TAJAUNA: Okay, Thank you. The next one is why do any request for accommodation become subject to the IEP? My child is not a special education student with an education plan but does have a disability. Why do we need to delay until a committee can be convened to get an answer of yes or no? Can the school district do this? JACQUIE: Read me the very first part of that again. TAJAUNA: Why do any requests for accommodation become subject to the IEP? JACQUIE: Okay. And it sound like this child is covered by 504 and not IDEA. And if that's the case, I'll proceed for now as if it is, then, yeah, I agree with you that you shouldn't have to wait for a meeting if you think there is something that would help, why don't we do this? But, yes, it's legal for them to call a meeting before they implement modifications or accommodations, but what would maybe push it over to the illegal side is if they seem to be waiting too long to do that. I mean, if you come up with -- if you say I think my child needs accommodation and they say, well, we have to have a meeting to get it in their plan and we can do that next week, that's probably reasonable. If they say, well we have to have a meeting but we're real busy, so ask us in a couple of months -- well, that probably wouldn't be legal, although there is no bright line for that particular question about accommodation. Of course honestly it depends on what you're asking for. You know, if you're just saying my child needs a pencil grip or my child needs -- could you please give my child a little more time on this assignment; they’re having trouble with it? Well they can probably do that without having a meeting, but if you're asking for something bigger or something that's more permanent like your child is always going to need double time on tests or only two choices on multiple choice questions -- the number of things you can do with modifications and accommodations is endless, but if it was something bigger like that, then it would affect more than just a little bit of time then they can have a meeting and they can say there needs to be a meeting and as long as they have it within a reasonable period of time of your request, they are probably within their legal bounds. It's just that with 504 the enforcement and the procedural safeguards are so -- well, almost nonexistent or at least, at the very least even where they exist they are easier to ignore, I think would be one way to put it than they are under IDEA that it just makes it harder for a parent to enforce those rights under 504. TAJAUNA: Okay, this next one is actually a statement. This is regarding the question on help at IEPs, and we have a parent in Illinois who wrote local centers for independent living, CILs, might offer advocacy services which could help parents go to the IEP at no charge and just to let our listeners know that ILRU does have a list of all of these centers for independent living all throughout the United States and you can either call ILRU at (713)520-0232 if you're looking for a number and/or you can go to the website at www.ilru.org and on the left you'll see where it will have a listing for CILs. So if you're looking for a CIL in your area, you can get that information from ILRU. And that’s to see if they provide any assistance with IEP advocacy services. This next E-mail is from the same parent who asked about -- or who had mentioned that they had to sign a form saying they had participation only, but I'm not sure if it's related because it came in at a different time. So it states: Nothing in my son's IEP mentions his learning disabilities in math or writing. He is labeled EBD, yet there has never been an FBA done, and Jacquie, I'm hoping you know what all these mean -- done when he has had incidents related to misbehavior. His school's objectives pertain to math and writing but do not say when he is going to be specifically working on the objectives, only the usual rhetoric of student will demonstrate 80 percent. This is via teacher observation. How can I get them to state specifically when and where, et cetera, he will be working on objectives? JACQUIE: Well, they should. They should. It sounds like it's not a very well written IEP from what you've said and they should address the learning disabilities in math and writing and wherever the learning disabilities exist, they should be specifically addressed. As far as what you can do to get them to do that, you would need to go back to where we discussed the -- your alternatives, your options when you disagree. Because if they refuse to write the IEP in such a way that there are measurable goals, and you mentioned that the only other observation was teacher observation, which is generally an element, but it shouldn't be the only way to measure it because that's just too subjective to really be an accurate measurement. A teacher can continue to say every year that, oh, the child is making progress and doing well when in fact that may not be the case if you really had a good measurement. If you measure the child's reading skills at the beginning of the year and then you measure them with a test at the beginning of the year and you measure them with the same test at the end of the year, then you'll have an idea of how much progress has been made, but having a teacher just say, oh, yeah, he's doing great is not a good measurement. So they should -- that should all be addressed in the IEP. If it isn't, you have the option of, of course, filing a complaint with the state education agency requesting mediation or filing for due process to get the kind of IEP that the child will need to really -- to not only do well but to be able to measure that. TAJAUNA: Okay. And this is our last question. Is the new time line for evaluations in IDEA 2004 60 calendar days for any evaluation or only initial valuations? Also since federal regs are still not out, do the state regs stand? JACQUIE: Well, and so many regs come out they probably do it if they don't conflict with the current law and I guess we didn't say this at the beginning, but by a strange run of events today, having to do with our office not having air conditioning and us being in Houston, I'm not in the office so I don't have the new IDEA in front of me and I know the 60-day timeline exists but I'm not sure if it's for initial -- and it is for initial evaluations but I'm not sure if it covers all evaluations. I'm just not sure. I will look that up when I get in the office tomorrow and E-mail you back about that. TAJAUNA: Okay and then the last thing that I have is actually another statement and this is for -- also to assist parents and it says parent training and information centers can assist parents with their rights in the IEP process as well. And this is from the regional education coordinator there and it says all 50 states have a PTI or a parent resource center that can help parents as well. And so I guess basically they're just letting you -- she's letting you know that there are parent training and information centers out there. I'm not sure how you would locate them. JACQUIE: Your school district can tell you about those or the state education agency can, and yes of course I know about those, but the question I was answering really seemed to have -- seemed to want to know more about places where - - not just education but actually having people go with you to ARD meetings and things like that. But, yeah, your educational -- the regional offices can be a really great help and I would for sure you can contact your state education agency and find out about the one in your state. TAJAUNA: Perfect. Thank you, Jacquie. That was our last question/statement. So I'm going to hand it back over to you. JACQUIE: Well, I believe that I will then hand it back over to you. TAJAUNA: Okay. JACQUIE: We're done and I know you like to finish a few minutes early so you can say your ending things. TAJAUNA: Absolutely. JACQUIE: I'm done. Just send in more questions if you think of them later. TAJAUNA: Okay, all right. Well thank you very much Jacquie. You definitely provided the audience with some terrific and very important information I hope all of you listening have learned from today's webcast. Also note that this webcast will be archived on ILRU's website which you can find by visiting www.ilru.org. Before closing, I would like to thank, again, our presenter, Jacquie Brennan. I would also like to acknowledge the National Institute on Disability Rehabilitation and Research, NIDRR, who funds your host for today's program, the Disability Law Resource Project. I would also like to thank the in-house staff at ILRU who, without their efforts, this webcast would not be possible: They include Marj Gordon, Sharon Finney, Dawn Heinsohn, Vinh Nguyen, Maria del Bosque as well as the technical expertise provided by Rob Dickehuth and our realtime captioner Marie Bryant. I encourage anyone with questions from today's webcast, they can call a toll free number at 1-800-949-4323 to receive technical assistance. Again, thank you for joining us and we hope you will join us again for the webcast on the Department of Justice's Project Civic Action being presented by Mary Lou Mobley on Wednesday, April 19th, at 2:00 p.m. central standard time. Thank you very much. Goodbye.