Advocating For Your Child With Special Needs

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Advocating For Your Child With Special Needs

• Josh Kershenbaum, Esq.
• Kristy M. Asral, M.Ed.

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Introductions

• Josh Kershenbaum, Esq.
• Frankel Kershenbaum, LLC
• [phone] Josh_at_DaveFrankel.com
• Kristy M. Asral, M.Ed.
• Asral Behavioral Consulting Services, Inc.
• [phone] kristyasral_at_gmail.com

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Goals

• LEARN ABOUT
• Your childs RIGHTS
• Strategies for successful ADVOCACY
• Area and online RESOURCES
• LEARN FROM
• Us
• Each other

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The Law

• Federal AND State Laws
• Individuals With Disabilities in Education Act
  (IDEA)
• Section 504 of the Rehabilitation Act (504)
• Chapter 14 of the Pa. Code (Special Education)
• Chapter 16 of the Pa. Code (Gifted)

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IDEA 504

• What is IDEA?
• Federal Law (Compliance Federal )
• Individuals with Disabilities IN EDUCATION Act
• What is Section 504?
• Federal Anti-Discrimination Law
• Protects people with disabilities generally not
  only kids, and not only in school

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Pennsylvania Laws

• Ch. 14 of the Pa. Code (Special Education)
• Ch. 16 of the Pa. Code (Gifted)
• Why do we care?
• Affords some additional protections
• Examples
• Dual enrollment
• Gifted

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Be a Law Nerd!

• IDEA http//idea.ed.gov/
• 504 http//www2.ed.gov/about/offices/list/ocr/50
  4faq.html
• Ch. 14 (Pa. Code) http//www.pacode.com/secure/da
  ta/022/chapter14/chap14toc.html
• Ch. 16 (Pa. Code)http//www.pacode.com/secure/da
  ta/022/chapter16/chap16toc.html

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Stages of the Process

• Diagnosis (Evaluation)
• By Doctors/other professionals
• By School
• Is your child eligible for special education
  related services?
• IDEA Part C Infants and toddlers (0-2)
• IDEA Part B Ages 3-21
• What is the appropriate placement for your child?
• Individualized Education Plan (IEP) and/or 504
  Plan
• Behavioral Plan
• Private School Placement
• Is your child making meaningful progress?
• How to resolve disputes?

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Diagnosis (Evaluation)

• Initial Evaluation
• Child Find - Districts must identify children
  with special educational needs.
• Reevaluations
• At least every three years
• Can request one per year
• Independent Educational Evaluations (IEEs)
• At Districts expense
• District can refuse and request a hearing

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Diagnosis (Evaluation)

• Initial Evaluation (by school)
• Notice and Consent (permission to evaluate)
• To determine eligibility and placement
• Must consider parental input and other
  evaluations/recommendations
• All areas of suspected disability
• Valid measures
• Qualified practitioners
• NOT JUST IQ

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Diagnosis (Evaluation)

• Reevaluations
• Notice and consent (permission to evaluate)
• Measures progress (or lack thereof)
• Before decreasing or terminating services
• Qualified practitioners
• Valid measures
• At least 1x/3yrs Can request 1x/year.

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Diagnosis (Evaluation)

• Independent Educational Evaluation (IEE)
• If you disagree with Districts evaluation
• At Districts expense
• You choose the evaluator
• District can refuse and ask for hearing to defend
  its evaluation
• TIP Schedule ahead of time!

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Eligibility for Special Education Related
Services

• Eligibility under IDEA
• Child with a disability - IDEA 1401(3)
• who, by reason thereof, needs special education
  and related services.

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Eligibility for Special Education Related
Services

• Who is a child with a disability under IDEA
  (AND Pennsylvania law)? (20 U.S.C. 1401(3) 34
  C.F.R. 300.8)
• Learning disabilities
• Mental retardation
• Emotional disturbance (disability or disorder)
• Other health impairment
• Orthopedic impairment
• Severe disabilities
•  Autism
• Traumatic brain injury
• Hearing impairment or Deafness
• Visual impairment or Blindness
• Multiple disabilities
• Developmental delay (PA State Law Age 3 age
  for First Grade) (Delay by 25 of age or 1.5 SD
  below the mean in cognitive, communicative,
  social/emotional or self-help).
•  

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Eligibility for Special Education and Related
Services

• Eligibility under 504
• No otherwise qualified individual with a
  disability in the United States . . . shall,
  solely by reason of her or his disability, be
  excluded from the participation in, be denied the
  benefits of, or be subjected to discrimination
  under any program or activity receiving Federal
  financial assistance . . . .
• Individual with a disability disability
• Physical or mental impairment that limits at
  least one major life activity. (seeing, walking,
  hearing, speaking, breathing, reading, writing,
  calculating, working, caring for self, manual
  tasks, and others)

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Eligibility for Special Education and Related
Services

• Limitations of 504
• Not individualized
• Its about EQUAL ACCESS, not EDUCATIONAL BENEFIT
• Fewer procedural protections than IDEA
• Less clearly defines rules

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Eligibility for Special Education and Related
Services

• IDEA vs. 504
• Eligible under IDEA Eligible under 504
• Not necessarily the other way around!
• IDEA Individually tailored to your childs
  unique needs
• 504 Access that is equal to that of non-disabled
  students
• IDEA has elaborate procedural protections for
  parents (notice, timelines, etc.)
• 504s EQUAL ACCESS
• IDEA INDIVIDUALIZED EDUCATION
• http//www2.ed.gov/about/offices/list/ocr/504faq.h
  tmlinterrelationship

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Eligibility for Special Education and Related
Services

• What is your child entitled to under IDEA?
• FAPE Free and Appropriate Public Education
• Free
• no cost to parents
• Appropriate
• Meaningful progress
• Follows IEP
• Individualized to childs needs
• Public education
• Special education and related services

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Eligibility for Special Education and Related
Services

• What is Special Education?
• Specially designed instruction, at no cost to
  parents, to meet the unique needs of a child with
  a disability, including (A) instruction in the
  classroom, in the home, in hospitals and
  institutions, and in other settings and (B)
  instruction in physical education. -
• 20 U.S.C. 1401(29) see 34 CFR 300.39

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Eligibility for Special Education and Related
Services

• What is Specially Designed Instruction (SDI)?
• Adapting, as appropriate to the needs of an
  eligible child . . . the content, methodology, or
  delivery of instruction
• To address the unique needs of the child that
  result from the child's disability and
• (2) To ensure access of the child to the general
  curriculum, so that the child can meet the
  educational standards within the jurisdiction of
  the public agency that apply to all children.
• 34 CFR 300.39

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Eligibility for Special Education and Related
Services

• What are Related Services?
• transportation, and such developmental,
  corrective, and other supportive services
  (including speech-language pathology and
  audiology services, psychological services,
  physical and occupational therapy, recreation,
  including therapeutic recreation, social work
  services, counseling services, including
  rehabilitation counseling, orientation and
  mobility services, and medical services, except
  that such medical services shall be for
  diagnostic and evaluation purposes only) as may
  be required to assist a child with a disability
  to benefit from special education, and includes
  early identification and assessment of disabling
  conditions in children.
• 20 U.S.C. 1401(22) See 34 CFR 300.34

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Eligibility for Special Education and Related
Services

• What is NOT included?
• Medical services
• Provided by a physician
• Except those needed to determine eligibility and
  placement
• Implantable medical devices (e.g. cochlear
  implants), including maintenance and replacement

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Placement

• Least Restrictive Environment (LRE)
• Your child is entitled to FAPE in the LRE
• Law prefers Inclusion (mainstreaming)
• But only to the maximum extent appropriate (in
  which educational progress can be made)
• Less inclusion More restrictive
• Sometimes, most appropriate more restrictive.
• Based on the CHILDS individual needs, not the
  schools resources.

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Placement

• Individualized Education Plan (IEP)
• 504 Plan
• Positive Behavioral Intervention Plan (BIP)
• What is it?
• How to get one?

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Placement

• Individualized Educational Plan (IEP)
• Must
• Annual review
• Present levels of academic achievement and
  functional performance.
• Measurable goals to make meaningful progress
• Specifically Designed Instruction
• Transition plan (starting at 16 y/o)
• AND MORE
• MODEL IEP http//www.pattan.net/files/Forms/Engli
  sh/IEP-ANN110409.pdf

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Placement

• Functional Behavioral Assessment (FBA) and
  Positive Behavioral Support Plan (PBSP)
• If child is exhibiting disruptive behaviors that
  interfere with learning.
• Steps
• FBA Data collection tool - identify target
  behavior, function,
• Create Behavior support plan spell out how
  staff, peer, parent, child should change, teach
  replacement behavior, etc.

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Placement

• Private School Placements
• If District cannot provide FAPE, it must pay for
  it to be provided elsewhere.
• Parents can place child in private school and sue
  for tuition reimbursement
• Unilateral placement
• Forest Grove case
• Must give 10 days prior written notice

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Progress Monitoring

• What is meaningful progress?
• Depends in part on ability
• How should it be measured?
• Grades are NOT ENOUGH
• Recent and accurate data across time
• How much progress is good enough?
• Must be meeting goals
• Must comply with IEP
• Achievement scores should be going UP

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Dispute Resolution

• IEP Meeting and Notice of Recommended Educational
  Placement (NOREP)
• Informal Meeting
• Mediation
• Due Process Hearing
• Appeals to Federal Court
• Damages (What you can/cant get)

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Dispute Resolution

• IEP Meeting and Notice of Recommended Educational
  Placement (NOREP)
• Purpose
• Requirements
• Strategies

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Dispute Resolution

• Strategies for effective IEP meeting
• Prepared in advanced
• All documents ahead of time (get and share)
• Question list
• Parent input letter
• Bring a friend?
• Tape recording?
• Dont sign the NOREP!

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Dispute Resolution

• Informal Meeting

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Dispute Resolution

• Mediation
• Office of Dispute Resolution http//odr.pattan.ne
  t/

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Dispute Resolution

• Due Process Hearing
• Either side can request
• Like a trial, but less formal
• CAN have attorney District WILL have one.
• Witnesses (including experts)
• Evidence
• Hearing officer will rule

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Dispute Resolution

• Appeals to Federal Court
• Either side can appeal Hearing Officers decision
  to Federal Court
• Cannot go to Federal Court before Due Process for
  IDEA claims.
• Can go straight to Federal Court on pure 504
  claims.

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Dispute Resolution

• Damages (What you can/cant get)
• CAN recover
• Compensatory Education (Trust Fund)
• Tuition Reimbursement
• Attorneys Fees and Costs
• CANT recover
• Punitive Damages
• Pain and Suffering (emotional damages)
• Non-attorney advocate fees and costs
• Damages outside 2-Year Statute of Limitations

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Other Issues

• Discipline in School
• Students may not be punished for behaviors that
  are the result of their disabilities.
• IDEA Strict protections
• Manifestation Review
• http//www.wrightslaw.com/info/discipl.index.htm
• Medication
• District cannot REQUIRE that you medicate your
  child (e.g., Ritalin, etc.)
• Insurance (Medicaid, other)
• District cannot require that you use your
  insurance to pay for services.

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Other Issues

• Special Needs Trusts
• Essential part of estate planning for ALL parents
  of children with special needs
• Protects childs access to state and federal
  benefits (Medicaid, Medicare, etc.)
• Do not do it yourself.
• Consult with an attorney

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The Fab Five

• Be Organized!
• Keep everything in one binder
• Try to keep everything in chronological order
• Keep a phone log
• Trust Your Instincts
• Parents know best!
• Know Your Rights
• Do not rely on the District to educate you
• Document EVERYTHING Throw away NOTHING
• Dates, names, locations, phone calls, emails,
  etc.
• Dont Go It Alone
• Bring a friend, partner, spouse, advocate or
  lawyer to all meetings.

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Lawyers and Advocates

• Do you need one?
• Lawyer, Advocate or Both?

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Web Resources

• www.WrightsLaw.com
• www.Pattan.net
• www.COPAA.org
• Education Law Center www.elc-pa.org
• PA Health Law Project www.PHLP.org
• www.DaveFrankel.com
• www.AsralBehavioralConsulting.com

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Contact Us

• Josh Kershenbaum, Esq.
• Frankel Kershenbaum, LLC
• Four Tower Bridge
• 200 Barr Harbor Drive, Suite 400
• West Conshohocken, PA 19428
• [phone] Josh_at_DaveFrankel.com
• Kristy Asral, M.Ed.
• Asral Behavioral Consulting Services, Inc.
• [phone] kristyasral_at_gmail.com