Friday, March 24, 2017

Analysis of the Supreme Court Decision in Endrew F.

Endrew F. Case Analysis and Comments by Mark Gross


The Supreme Court divides children into two groups – those who have the cognitive ability to achieve at grade level and those who simply cannot.  This may be a bit simplistic, as a lawyer told me yesterday, and that is true.  But for purposes of the decision, that is how the Court divided the world of IDEA students and I suspect the reality is that a lot of our clients usually can be placed into one group or the other.
                Regarding the first group – those who can advance from grade to grade by performing at grade level – the Court essentially says that an “appropriate” IEP is one that will allow the child to legitimately advance to the next grade by performing at grade level.  That means the grade level achieved by other children of the same age.  The decision is aimed at academic progress, not behavioral progress.    It seems to me we can stretch that a bit to include behavioral issues that were really not discussed here.  We could argue that behavioral issues can be assessed as part of the IEP under this same standard if the behaviors, if unaddressed, easily could cause the child to fail to advance.  Essentially, the Court said that the decision it reached in the Rowley, which was that the help she received was sufficient to allow her to move legitimately from grade to grade, was sufficient under IDEA.
                The Court says the IEP must be “assessed” in light of the child’s circumstances,” which is obviously correct, and unexceptional.  I have heard some concern over this, as if it is a significantly limiting factor.  I disagree.  Each IEP is tied to the student’s unique needs, or unique “circumstances.”  Nothing new or troubling here.  So, for these students the progress that is “appropriate” is moving legitimately from one grade level to the next grade level. See p. 11.  On p. 12, the Court describes these students, whom it describes as those educated in the regular classroom, as taking “regular examinations,” receiving grades, and attaining “an adequate knowledge of the course material.” P. 12.
                I am using the word “legitimately” only because I am a bit concerned that the Court’s emphasis on moving the child with a disability from grade to grade could result in more “social” promotion just to be able to say their IEP is working.  I think it is something to be on the lookout for.
There has been some discussion of what the phrase “fully integrated in the classroom” means in Endruw and whether inclusion programs are affected.   I think not.  The Court said, “When a child is fully integrated in the regular classroom, as the Act prefers, what that typically means is providing a level of instruction reasonably calculated to permit advancement through the general curriculum.” Pp. 13-14.   The next sentences read as follows; “Rowley had no need to provide concrete guidance with respect to a child who is not “fully integrated in the regular classroom and not able to achieve at grade level.  That case concerned a young girl who was progressing smoothly through the regular curriculum.  If that is not a reasonable prospect for a child, his IEP need not aim for grade-level advancement” (emphasis added).  P. 14.
This language I think well establishes that that when the Court refers to students “integrated in the classroom” and operating in the “general curriculum,” it is referring to students operating at the same grade level of the rest of the students in the class.  It is not, in any way, discussing a student in an “inclusion” program who may be placed in the regular classroom in part for socialization benefits but who is operating with his or her own adapted curriculum that is NOT at the same level as the other students. The adapted curriculum is often significantly below that level.  We should not read things into the word “integrated” that were not before the Court.  The concept of “inclusion” was not in any way a part of the decision in this case.
                The best part of the decision is the discussion for the second group -- those the Court refers to as “not able to achieve at grade level.” P. 14.  To be precise with an example, I have a 35 year old son with Down Syndrome. He operates at about the cognitive ability of a 2nd or 3rd grader.  He falls within the second group.
                It is here that I think the Court’s language is really, really good.  The Court describes the IDEA as “an ‘ambitious’ piece of legislation.”  Dec. at 11.  “A substantive standard not focused on student progress would do little to remedy the pervasive and tragic academic stagnation that prompted Congress to act.”  The words “pervasive and academic stagnation” – particularly “stagnation,” where schools often leave students is important to note.
                The Court then uses words we (or at least I) have never before heard or read when courts discuss what children who cannot learn at grade level deserve.  It says the educational program must be “appropriately ambitious,” and the objectives of the plan must be “challenging.”  P. 14.  This standard is “markedly more demanding than the ‘merely more than de minimus’ test applied by the Tenth Circuit.”  The Court also says that the language in Rowley that referred to “confer some educational benefit” actually had “little significance,” p. 10, thereby driving a stake through the heart of the standard school districts have been relying on for decades to minimize their programs.   “Ambitious,challenging,” and “markedly more demanding than de minimus” all sound very positive and aggressive.
                I also found one other area that I liked, at the very end of the decision (p, 15).  The Court talks about deference to school authorities.  It says, “deference is based on the application of expertise and the exercise of judgment by school authorities.”   The decision then briefly discusses the process, stating that by the time the dispute reaches a federal court “school authorities will have had a complete opportunity to bring their expertise and judgment to bear on areas of disagreement.  A reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions… .”  (emphasis added). P. 16.  This language seems to me to tell federal judges that if they are going to defer to school officials’ “expertise,” the school officials are going to have to be able to explain “cogently” how they applied that expertise in a specific case with specific facts.  It allows a little less of the “trust me, we educators know what we are doing and you just cannot understand it“defense school authorities may make.


Mark Gross serves as Of Counsel to the Law Office of Brian K. Gruber, P.C.   Mark recently retired from a long and distinguished career as Deputy Chief in the Appellate Section in the Civil Rights Division at the U.S. Department of Justice. Mark is also a professor at American University School of Law.

Friday, December 16, 2016

IDEA Amendments Address Discipline Disparities


USDE Addresses Disparities in Discipline of Students with Disabilities Based on Race or Ethnicity


On December 13, 2016, the United States Department of Education (USDE), Office of Special Education and Rehabilitation Services amended regulations to the Individuals with Disabilities Education Act (IDEA).  

The amendments are aimed at promoting equity in disciplinary actions involving students with disabilities.  The amendments establish a standard methodology States must use to determine whether significant disproportionality based on race and ethnicity is occurring in the State and in its local educational agencies (LEAs). They clarify that States must address significant disproportionality in the incidence, duration, and type of disciplinary actions, including suspensions and expulsions, using the same statutory remedies required to address significant disproportionality in the identification and placement of children with disabilities.  The amendments also clarify requirements for the review and revision of policies, practices, and procedures when significant disproportionality is found.  They require that LEAs identify and address the factors contributing to significant disproportionality as part of comprehensive coordinated early intervening services (comprehensive CEIS) and allow these services for children from age 3 through grade 12, with and without disabilities.

While it will be 2018-2019 before the requirements take effect, we are hopeful that the continued focus on disparities will create significant change in school climates and cultures.

To read the draft copy, click here.

Also issued was a Dear Colleague Letter by the Office for Civil Rights (OCR) which reminds schools and parents of their obligation under Title VI of the Civil Rights Act of 1964 (Title VI) not to discriminate on the basis of race, color, or national origin in the administration of special education or related aids and services.  OCR cited their enforcement activities have confirmed that there continues to be over-identification of students of color as having disabilities, under-identification of students of color who do have disabilities, and unlawful delays in evaluating students of color for disability and their need for special education services.

If you have questions about how your child is being disciplined, please contact the Law Office of Brian K. Gruber, P.C. to schedule a consultation.  


Disclaimer:  This blog is made available by the Law Office of Brian K. Gruber, P.C. for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site, you understand that there is no attorney client relationship between you and the publisher. The blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Thursday, September 29, 2016

When Do I Need a Special Education Attorney?


If you are asking yourself this question, you probably have concerns with your child’s education or have questions as to the process.  Both are indicators it’s time to set up a consultation with an attorney in order to have your child’s educational program analyzed and receive the information you need to protect your child’s right to a free appropriate public education.

Whether it’s taxes, purchasing a home, seeking medical attention, or getting a car repaired, we seek information and expert opinions to educate ourselves regarding the matter.  While there are a multitude of resources available on the internet, not all of these resources are trustworthy but more importantly the application of this information is typically not applicable to your individual child’s circumstances.  I can read or watch a You-Tube video on how to change the air filter in my car, but if I get the hood open and the part is not as described, I will most likely end up causing damage to the engine rather than saving the money I had intended to save by trying to DIY.  The same unintended damage can happen to your child’s education.

We have clients who after researching their particular concern thought they should advocate for their child’s disability code to be changed not realizing the repercussions that would hold for their child’s future.  We have had clients agree to changes in placement for their child not realizing what types of behaviors their child would now be exposed to.  The list of Individualized Education Program (IEP) missteps, misunderstandings, and misguided good intentions is innumerable.  This is why the best answer as to when to hire an attorney is before there is a concern or a problem. It goes back to the old saying – be proactive rather than reactive.

The following scenarios provide examples of when you might also need a special education attorney:
  • If you are unsure as to whether your child is making progress.
  • If you have disagreed with school-based members of your IEP team.
  • If you have filed for mediation or due process without an attorney.
  • If your child has been disciplined in ways that you feel are not appropriate.
  • If your child is continually being sent home without being suspended or is suspended more than 10 days.
  • If you have been invited to a manifestation determination meeting and don’t know what it is.
  • If your child has been recommended for expulsion.
  • If the school team is recommending your child be sent to another school/program.

Do not put your child’s right to free appropriate public education at risk due to a lack of knowledge or understanding.  Special education involves not only the intricacies of the law but also knowledge of educational research and instructional methodologies.  Attorneys who practice in special education can guide you through the paperwork, processes, and advise you as to the appropriate actions to take based on your child’s individual needs. 

Our attorneys are experienced and knowledgeable about the law and all areas education.  If you would like more information, please contact the Law Office of Brian K. Gruber, P.C. to schedule a consultation.


Disclaimer:  This blog is made available by the Law Office of Brian K. Gruber, P.C. for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site, you understand that there is no attorney client relationship between you and the publisher. The blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Friday, August 5, 2016

Are Your Child’s Suspensions Denying Them a Free Appropriate Public Education?

Are Your Child’s Suspensions Denying Them a
Free Appropriate Public Education?

The United States Department of Education (USDE) released guidance this week through a Dear Colleague Letter indicating that short term suspensions or disciplinary removals may result in a denial of free appropriate public education (FAPE) for students with disabilities.  The guidance serves as a reminder to school staff to consider the child’s needs and the effects that suspension may have on the child and to provide alternatives to excluding the child from school.

The USDE identified many supports Individualized Education Program (IEP) teams could include in a student’s IEP that could assist a child to benefit from special education including the following:
  • instruction and reinforcement of school expectations;
  • violence prevention programs;
  • anger management groups;
  • counseling for mental health issues;
  • life skills training; or
  • social skills instruction.

The guidance also emphasized the importance of providing behavioral supports to students in the least restrictive environment.  IEP teams may not remove the child from the general education environment solely due to the child’s behavior when behavioral supports could be effective in the regular education setting.  The USDE included social skills instruction, meetings with a behavioral coach, and training for school personnel as examples of such behavioral supports for IEP teams to consider.

Determining whether a child has been denied a FAPE is based upon the facts in individual case by case situations.  The Dear Colleague Letter listed the following, “circumstances that may indicate either a procedural or substantive failure in the development, review, or revision of the IEP include, but are not limited to, the following:
  • The IEP Team did not consider the inclusion of positive behavioral interventions and supports in response to behavior that impeded the child’s learning or that of others;
  • School officials failed to schedule an IEP Team meeting to review the IEP to address behavioral concerns after a reasonable parental request;
  • The IEP Team failed to discuss the parent’s concerns about the child’s behavior, and its effects on the child’s learning, during an IEP Team meeting;
  • There are no behavioral supports in the child’s IEP, even when the IEP Team determines they are necessary for the child;
  • The behavioral supports in the IEP are inappropriate for the child (e.g., the frequency, scope or duration of the behavioral supports is insufficient to prevent behaviors that impede the learning of the child or others; or consistent application of the child’s behavioral supports has not accomplished positive changes in behavior, but instead has resulted in behavior that continues to impede, or further impedes, learning for the child or others);
  • The behavioral supports in the child’s IEP are appropriate, but are not being implemented or not being properly implemented (e.g., teachers are not trained in classroom management responses or de-escalation techniques or those techniques are not being consistently implemented); or
  • School personnel have implemented behavioral supports not included in the IEP that are not appropriate for the child.”


The Dear Colleague Letter also identified, “circumstances that may indicate that the child’s IEP is not reasonably calculated to provide a meaningful educational benefit include, but are not limited to, the following:
  • The child is displaying a pattern of behaviors that impede his or her learning or that of others and is not receiving any behavioral supports;
  • The child experiences a series of disciplinary removals from the current placement of 10 days or fewer (which do not constitute a disciplinary change in placement) for separate incidents of misconduct that impede the child’s learning or that of others, and the need for behavioral supports is not considered or addressed by the IEP Team; or 
  • The child experiences a lack of expected progress toward the annual goals that is related to his or her disciplinary removals or the lack of behavioral supports, and the child’s IEP is neither reviewed nor revised.”

Not only do removals from school potentially result in a denial of FAPE, the USDE also provided a sampling of the research which demonstrates that the removals rarely result in a change in the behavior.  In addition, they include research that has shown that the adverse results include a decline in academic performance and greater potential for students to drop out of school.  The USDE includes resources and training for school personnel available at www.ed.gov/rethinkdiscipline and http://ccrs.osepideasthatwork.org.

If you have questions about your child’s provision of a FAPE, please contact the Law Office of Brian K. Gruber for more information or to schedule a consultation.


Disclaimer:  This blog is made available by the Law Office of Brian K. Gruber, P.C. for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site, you understand that there is no attorney client relationship between you and the publisher. The blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Tuesday, July 26, 2016

What Can You Do If Your Child is Being Bullied?


As students and parents are beginning to think about school supplies and returning to school in the fall, the first thought should not be of fear and anxiety but rather what teacher they will have and will they get to be in class with their best friend.  Unfortunately for many students and especially those with disabilities, returning to school means torment, ridicule, stress, fear, and innumerable other emotions they experience as they face their bully.

Schools have the obligation to protect all students from bullying, especially students with disabilities. According to studies done in the United States, students with disabilities are 2-3 times more likely than a student without a disability to be bullied in school. Because of the prevalence and harmful outcomes of bullying, the Office of Civil Rights (OCR) issued a series of “Dear Colleague” letters to guide and update parents and school staff on the process of properly handling bullying situations and protecting students’ rights. 

According to the OCR, the bullying of a student with a disability may result in the loss of a free and appropriate public education (FAPE). The loss of FAPE due to bullying occurs for a few main reasons. First, if the bullying has created a hostile environment in which the student with disabilities is struggling to engage in class, social situations, and other school activities. Next, if the school did not take the appropriate steps to quickly end the bullying. Finally, if school staff knew or should have known bullying was occurring at school yet did not effectively remedy the situation.

Signs Parents Should Watch for:
  • Injuries they cannot explain
  • Declining or unusually low grades
  • Lost items of clothing or electronics
  • Emotional instability or unpredictable behavior
  • Change in eating patterns such as coming home from school hungry
  • Declining class participation or no longer wanting to socialize with other peers
  • Nightmares or increased tiredness
  • Increase in absences and a feeling of resentment toward school
  • Behaviors that are harmful such as running away or self-harm.

What Parents Can Do:

If you think your child has been bullied, talk to them and see if they can provide you any details.  Immediately contact the school and complete the school’s bullying form. You should keep a copy of this form as it is not considered an educational record and is maintained separately form the rest of your child’s records.  The school staff should investigate your concerns and if appropriate you and the school should create a plan to address the bullying.  You can ask for an IEP or 504 meeting to review your child’s plan and if appropriate revise the child’s individualized plan to ensure the provision of a FAPE.  This might include adding goals and possibly services for counseling, self-advocacy, etc. If you are unable to agree as a team as to how to address the student’s needs, you can utilize your procedural safeguards for dispute resolution which include mediation and due process.  You can also contact the Office of Civil Rights to discuss options which may include filing a complaint regarding possible disability discrimination.

Bullying can cause irreparable harm to students socially, emotionally, and academically.  Bullying can also result in the loss of FAPE and should be addressed immediately. If your child has been bullied and you would like more information on the steps you can take, please contact the Law Office of Brian K. Gruber for more information or to schedule a consultation.


Disclaimer:  This blog is made available by the Law Office of Brian K. Gruber, P.C. for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site, you understand that there is no attorney client relationship between you and the publisher. The blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Monday, July 11, 2016

504 Accommodation Plans vs. Individualized Education Programs (IEP)


FAPELAWBLOG
In the public education system, there are many ways to help a child succeed. If a student has a special need or is not succeeding in school, there are options available to parents which vary by states and school systems. If a child has a disability or you suspect the child has a disability, there are two options all public school systems must make available.

504 Accommodation Plans
504 plans are set in place by a school to help level the playing field between students with disabilities and students without disabilities. The Americans with Disabilities Act (ADA) is a federal civil rights law that prohibits discrimination against individuals with disabilities. ADA and the Section 504 of the Rehabilitation Act of 1973 require public schools to provide accommodations for students with disabilities in K-12 education. Under Section 504, students are granted accommodations to help them achieve the same tasks as their classmates. These services will not change what is expected from the student, but they will accommodate the assignments so that the student can complete them.

Eligibility under Section 504
Section 504 describes eligible students as, “(1) Handicapped persons means any person who (i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment.” In order to receive accommodations under Section 504, the student’s disability must substantially hinder the child’s educational growth in one or more areas. Once a student is referred to a 504 team, the 504 team will look at data and evaluations of the student to determine if a 504 plan is necessary. If a student is determined eligible for a 504 plan, the plan is written by the team which includes the parent.

Individual Education Programs
An Individualized Education Program (IEP) is a legal document that is written by a team of school system staff and the parents. IEP’s are written in accordance with the mandates of the Individuals with Disabilities Education Act (IDEA).

Determining Eligibility
To begin the process of determining if a child requires an IEP, school staff and 
parents determine the evaluations needed evaluate whether the student has an educational disability and whether the student requires special education services. Evaluations are conducted by the school, but parents can commission their own independent evaluations at their own expense. Evaluations are completed by professionals with experience in the areas the child’s suspected disability. Classroom observations, standardized testing, and examinations of skills in question will be conducted to ensure the evaluators and IEP team know the exact areas in question. The evaluators present the evaluation results in an IEP meeting.  If the evaluation shows the child has an educational disability and requires specially designed instruction, the IEP team will draft an IEP for the child to receive special education services.

IEP Meeting
An IEP meeting will be convened to draft a set of goals for the child to attain. It includes the services the school will provide in order to reach those goals and a tangible way for the student to demonstrate progress. The parties that makeup the meeting are the parent(s), a general education teacher of the child, a school district representative, a special education teacher, someone able to interpret evaluation results, if the child is of appropriate age they may be on the team along with any other guest invited by the parents or school officials who offers special knowledge of expertise regarding the student.

Free Appropriate Public Education (FAPE)
The local school system is responsible to provide a FAPE to all students in their district age 3-21 years old. FAPE means the school system is responsible to provide “some educational benefit” to children with special needs in the district while also ensuring they are in the “least restrictive environment.”

504 plans and IEP’s can have overlapping techniques for helping students learn, but in the end the goals and services available through these two documents are different. IEPs provide students with individualized, specially designed instruction to meet the individual student’s goals. 504 plans provide accommodations to assist individual students to access the general curriculum. For more information on 504 plans, IEP’s, or for consultation for your child’s needs at school please contact the Law Office of Brian K. Gruber, PC.



Thursday, June 16, 2016

ESY v. Summer School

Extended School Year Service vs. Summer School
           There are different options for summer programs offered by public schools. One of which is Extended School Year services (ESY), a special education program that is put in place by a student’s Individualized Education Program (IEP) team. Summer school is an option for all students to continue their learning in the months school is not in session.
Extended School Year
           Extended School Year is set forth as a part of the Individuals with Disabilities Education Act (IDEA) which requires that ESY services “…must be provided only if a child’s IEP Team determines, on an individual basis, that the services are necessary for the provision of Fair Appropriate Public Education [FAPE] to the child.”  The common criteria used by IEP teams to determine whether a child is in need of Extended School Year services go beyond solely regression and recoupment of skills learned during the regular school year. They include: the child’s degree of progress toward IEP goals, whether the child will lose key skills due to the lengthy summer break, the nature and severity of the disability, or any subject the IEP team deems necessary to continue teaching outside of normal school hours in order to reach IEP goals.
For example, in the state of Maryland Extended School Year services are taken into consideration using the following codes:
·       Whether the student’s IEP includes annual goals related to critical life skills and how close the student is to reaching them
·       The likelihood of substantial regression of critical life skills caused by the normal school break and a possible failure to recoup those lost skills in a reasonable time
·       The proximity of the child mastering the goals established in his or her IEP
·       Interfering behaviors
·       The presence of emerging skills or breakthrough opportunities
·       The nature and severity of the disability(s)
·       Other special circumstances
          If the child qualifies for ESY services by the IEP team, then the services will be provided at no cost to the parents. A main difference between Summer School and ESY services is that ESY is individualized based on the child’s agreed upon IEP. Each state has a different set of regulations and statutes regarding ESY services, and should be reviewed before requesting Extended School Year services at an IEP meeting. These files may be obtained from your State Department of Education. An aggregated page of their contact information can be found here. ESY services are not provided to advance a student with special needs past his or her peers, but are only agreed upon in order to keep the student up with his or her prescribed coursework as per their IEP and school standards.
Summer School
           Summer school is a program that is not individualized and is often offered for many students who have failed courses and are in need of remediation. ESY services are only provided to students with special needs whereas summer school is provided to every student that wants to participate or must in order to receive class credit and graduate. Summer school may also be offered to students who want to advance past their current pace and take classes in addition to their normal school year course load. Some students may do this in order to take an interesting class, skip a grade, or earn college credits. Summer school classes are oftentimes taken to boost one’s GPA, and are sometimes used to replace a poor grade earned during the school year, depending on the rules of the school or service offering the summer school course.



ESY services and summer school should be treated as completely different courses of action for parents. ESY services are individualized to address specific concerns about the child’s possible regression of critical skills and is not meant for the child to advance past their required skillsets. Conversely, summer school is not individualized and is available for a student in order to remediate certain skills or classes or to advance past their current education track.  In order to have ESY services included in an IEP, the rules for developing this plan for a child must be taken into consideration before discussion in an IEP meeting. Rules for qualification of ESY services are different in each state, and a copy of your state’s Department of Education regulations should be deliberated on before deciding to seek Extended School Year services for your child. Every child has different educational needs, and Extended School Year services can be a great way to address them if you feel your child is near a breakthrough in their IEP goals or may lose critical life skills over the summer break. Summer school is also a great opportunity for retaining knowledge, but it’s non-individualized teaching style may not be the best decision for your child. If you would like additional information in regard to requesting Extended School Year services to be included in your child’s IEP, feel free to
contact our office to set up a consultation or schedule a training opportunity.