Getting the Most from an IEP or 504 Plan

Earlier this week I had the opportunity to present a national webinar for ADDitude Magazine on "A Parent’s Guide to Evaluating and Troubleshooting Your Child’s IEP or 504 Plan." 

As with other presentations I have done, I planned out a series of slides (and you can see them and the entire free presentation if you click on the link above) that set out how to tell if there were problems with an IEP or 504 Plan and what parents can do if there are such problems. Some of the remedies I mentioned were:

• How minor issues with an IEP can be dealt with without needing to hold a meeting of the IEP Team. These include increasing or decreasing the frequency of a service (such as OT or PT) that is already provided in the IEP, or adding a minor accommodation, such as having exams taken in a quiet location in addition to extended time.
• More extensive changes to an IEP will likely need a meeting of the IEP Team. These might include adding a service or support, changing a class setting, or even changing the school a child is attending. Parents need to keep in mind that they are entitled to request an IEP meeting at any time, not just once a year as is customarily scheduled. That is a right, not a favor being done by the school.
• Parents are also entitled to a new evaluation once each year. The IDEA requires re-evaluation every three years, but if parents feel that circumstances warrant it, they can have their child re-evaluated more often. As with a new IEP meeting, this isn't something that the school might do as a favor. It is a legal right. 
• Also, parents who have had a recent evaluation and realize that it was inadequate, can seek a publicly funded Independent Educational Evaluation, an IEE, which can then be the basis for a modified IEP. We have an extensive blog post on this subject.

Almost as interesting to your blogger as preparing and presenting a webinar, are the questions parents have during (and after) the webinar. Some parents wanted to know:

• What happens to their child's IEP when they move? We were able to point them to a blog post on this too. 
• Several folks wanted me to explain again the differences between an IEP and a 504 Plan. We were able to tell them that these stem from two different laws, both designed to help individuals with disabilities, but having different procedures and sometimes offering different supports.

In addition to this recent webinar, you can check out and listen to my several other webinars for ADDitude. 
 

Building a Better IEP or 504 Plan

Yesterday, Dr. and Mrs. Yellin were the featured speakers in a webinar from ADDitude Magazine, where Mrs. Yellin is a regular columnist, writing on "Your Legal Rights." For this event, they jointly presented information on how parents can make sure that their child's IEP or Section 504 Plan will properly provide what is needed for their child to succeed in school.

As they explained to their live audience of close to 2,000 listeners, the first step in creating an effective IEP or 504 Plan is to fully understand the issues with which your child is dealing by having a thorough evaluation, one that looks beyond labels or diagnoses. They noted that it's important to keep in mind that these plans need to be individualized, and that administering a standard battery of tests may not be sufficient to get to the source of your child's problems.

The assessment that begins the IEP or 504 process needs to delve deeply into the specific areas of breakdown. It needs to look not just at a child's challenges, but also look at strengths, since these can be leveraged to help to bypass challenges. Likewise, areas of interest or affinities should be identified, since these can help your child become involved in their academics. Presenting a sports obsessed struggling reader a book about baseball or football is more likely to keep his or her interest than having that same student read about travel or music.

Another key point of the webinar was the importance of goals. Having appropriate goals is critical to a successful plan. Goals set out in an IEP or 504 Plan should be:

• Specific, objective, and quantifiable
• Should include standardized measures
• Must contain a clear understanding of:
• Who is responsible for implementation
• The frequency of assessment
• The mechanism for reporting to parents
• A clear understanding, upfront, of what constitutes sufficient progress. 

You can listen to the webinar in its entirety on the ADDitude website, or watch it on YouTube, below. 

Understanding Federal Disability Laws

Parents often ask us to explain the differences between the IDEA (Individuals with Disabilities Education Act) and Section 504 (of the Rehabilitation Act of 1973). And, for post-high school students who are no longer eligible under the IDEA, we get similar questions about the Americans with Disabilities Act (ADA). We've written about each of these laws numerous times in our more than 900 posts, often comparing and contrasting them. You can use the search feature on the right hand side of this page to search the "tag" for each law.

A 2016 Arizona case that ended up in the U.S. Court of Appeals for the Ninth Circuit contains a helpful explanation comparing and contrasting these several laws. Thanks to attorney Pete Wright for bringing it to the attention of his colleagues. The excerpts from the Circuit Court decision appear without quotation marks, citations, or footnotes, and we have added in headings to make it easier to read. You can see properly formatted text in the full court decision.

The Circuit Court explained:

There are three primary and overlapping pieces of federal legislation... The IDEA, Section 504 of the Rehabilitation Act, and Title II of the ADA.

The IDEA
Congress enacted the IDEA to ensure that all children with disabilities have available to them a free appropriate public education [or FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living. The IDEA focuses on making a FAPE available to disabled students through development of Individualized Education Programs (IEPs). States receiving federal financial assistance under the IDEA must have in place policies and procedures to properly develop IEPs for qualifying children.

Section 504

Section 504 of the Rehabilitation Act is broader than the IDEA; it is concerned with discrimination in the provision of state services to all individuals with disabilities. It provides that no otherwise qualified individual with a disability . . . 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
Like the IDEA, section 504 applies to public schools that receive federal financial assistance ...
The regulations adopted pursuant to section 504 require qualifying public schools to provide a free appropriate public education to each qualified handicapped person.

How FAPE Differs Under Each Law
FAPE is defined differently for purposes of section 504 than it is for the IDEA. Under ... section 504 regulations, FAPE requires "regular or special education and related aids and services that
(i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of non-handicapped persons are met and
(ii) are based upon adherence to procedures that satisfy the requirements of [the law]".
Section 504's regulations gauge the adequacy of services provided to disabled individuals by comparing them to the level of services provided to individuals who are not disabled. One method of ensuring that the educational aids and services are designed to meet individual education needs as required under [504] is to implement an IEP developed in accordance with the IDEA, but a showing that FAPE was denied under the IDEA does not necessarily establish a denial of FAPE under section 504.

The ADA
Title II of the ADA was modeled after section 504.... It provides 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 any such entity.
[Both Section 504 and the ADA include the right to sue for damages. However, a public entity can be liable for damages under § 504 (or the ADA) only] if it intentionally or with deliberate indifference fails to provide meaningful access or reasonable accommodation to disabled persons.

While the IDEA remains the best option for many of the students we see, it is important to be aware that there are other federal laws that can help students -- and all individuals -- get the help they need to overcome their challenges. 

US DOE Guidance on Section 504 and ADHD

K-12 students who struggle with attention may be entitled to support and accommodations under either the Individuals with Disabilities Education Act (IDEA) or Section 504 (of the Rehabilitation Act of 1973).  For those students whose ADHD (which we will use here to include students with attention difficulties, whether or not they include hyperactivity) has a significant impact on their academic performance, or for whom attention difficulties occur together with learning or related challenges, the IDEA is often the best way to receive what they need to be successful in school.

The IDEA generally provides more extensive services, permits more parental input, and is available to students in both public and private schools. However, not all students meet the criteria for receiving IDEA services, which include having a specific category of disability (attention generally falls under "other health impaired"), and being in need of "special education and related services." For students with ADHD who do not meet the IDEA requirements and who are in public schools, Section 504 can provide what these students need to be successful in school despite their attention difficulties.

Earlier this year, the Office for Civil Rights (OCR) of the U.S. Department of Education, which administers Section 504, issued a letter to offer guidance to states and school districts about problems with the way in which Section 504 was being applied to students with ADHD. These problems included:

• Failing to identify students who may have ADHD;
• Failing to properly evaluate students suspected of having ADHD;
• Inappropriate decisions about the education, services, and setting that may be required by students who had been properly identified and evaluated; and
• Failure to let the appropriate school personnel (especially teachers) know about the 504 Plan so it could be properly implemented. 

In addition to the extensive guidance letter (42 pages), the OCR created a brief, clear, two page document titled Know Your Rights: Students with ADHD. One point mentioned in this document, which often is raised by schools when they decline to consider a student with attention difficulties for a 504 Plan, is "Regardless of how well he or she performs in school, a student who has trouble concentrating, reading, thinking, organizing or prioritizing projects, among other important tasks, because of ADHD may have a disability and be protected under Section 504." We frequently find that schools use the excuse "but she gets good grades" or "but he is doing well on tests" when parents know that their child is struggling with attention and could learn and perform better with the accommodations and supports available under Section 504. We hope that seeing this issue set forth in black and white might help schools better understand their obligations to students with ADHD.

Food Allergies

There are kids with allergies in Indianapolis who are going to attend their first baseball game tonight. In honor of Peanut Allergy Awareness Night, the AAA minor league Indianapolis Indians are banning all products containing peanuts from their home game against the Louisville Bats. As any parent of a kid with a peanut allergy knows, sports stadiums can be dangerous places for their children, with the time honored "peanuts and Cracker Jack" all around. For kids whose allergies are severe, a baseball stadium can be just too dangerous to risk.

It seems sometimes that food allergies are on the rise. More and more menu items and food packages are stamped "gluten free" and peanuts are forbidden in some classrooms and even entire schools. But, according to Dr. Marshall Plaut, Section Chief of Food Allergy, Atopic Dermatitis and Allergic Mechanisms of the National Institute of Allergy and Infectious Diseases, the jury is still out as to whether more of today's kids have allergies than was the case in the past. The Centers for Disease Control and Prevention has stated that more children had food allergies between 1997 and 2011 than in prior years; however, in an article in Vanderbilt  Magazine, Plaut describes the statistic as "relatively anecdotal."

Milk, eggs, peanuts, tree nuts, fish, shellfish, soy, and wheat make up the "Big 8," the most common allergenic foods. Although food allergies are triggered by specific components within foods, the reactions they cause in allergy sufferers—ranging from mild upset stomach to skin conditions to severe anaphylaxis—are actually caused by the person's own body. The immune system of someone with a peanut allergy responds to the presence of peanuts as it would to a threat from, say, malicious bacteria. Interestingly, some allergies, particularly those to milk and soy, can be outgrown. Others, like peanut, tree nut, and fish/shellfish allergies, tend to be life-long. And some people may develop allergies in adulthood.

If food allergies are indeed on the rise, no one seems to know why. One theory centers around people's recent fixation with cleanliness. Over-use of antibacterial products, according to the "hygiene hypothesis," has interfered with the normal development of children's immune systems. Another theory claims the opposite: that the presence of more pollution in the water and air and chemicals in the processed foods that make up more and more of our diets are causing children to develop allergies.

Whatever the cause, allergies can dominate the lives of families with children whose responses can be severe. Dr. Jane Choi, Allergist and Assistant Professor of Medicine at Vanderbilt University Medical School, recommends that her patients keep food journals to try to pinpoint exactly what they react to. Sometimes this can be tricky; for example, a reaction to french fries may not indicate a potato allergy but actually a corn allergy if the fries were cooked in corn oil. Choi also directs patients to carry two EpiPens in case one misfires.



Trying new foods can be a scary proposition for children with allergies (and their nervous parents); one approach, described in the Vanderbilt Magazine article, is to try a very tiny bit of the new food and then wait at least five minutes. If there is no reaction, it may be safe to try a little more. If the child experiences tingling in his mouth, a skin reaction, or an upset stomach he should not eat any more of the food and should brush his teeth or rinse thoroughly with water or mouthwash to avoid ingesting any more. This should only be tried if your child's physician recommends it; dealing with possible allergic reactions should not be a "do it yourself" project.

Parents whose children have food allergies should be certain that there is a 504 Plan in place for their child and that his teachers, the school nurse, and the school administration know about the allergy and know how to treat allergic reactions. They should provide an EpiPen or equivalent device for each classroom in addition to the pens their child carries. Note that not all schools permit young children to carry their own EpiPen. The 504 Plan should be reviewed at least annually and updated as needed. Parents also need to make sure that the 504 Plan doesn't just stay on file in the nurse's office; school staff need to know what steps to take and whom to call in case of an emergency.

The public demand for allergen information may make things tricky for the food service industry. But for those who suffer from food allergies, the trends of thoroughly labeling foods and providing food options free of the Big 8 make life with food allergies a little easier to swallow.

Friday Reading

Keeping up with educational issues and news isn't easy. From time to time we want to share some articles and resources we have encountered and hope you find them as informative and helpful as we have.

Section 504
An excellent discussion of Section 504 by Mary Durheim looks at what this law can do for students, how it is implemented, and what to do if you believe it has not been appropriately applied to your student. It's a particularly thorough review of a law that parents can often find confusing.

Adaptive Equipment
A recent article in the New York Times features a public school physical therapist who uses an innovative approach -- and some strong carpentry skills -- to create custom furniture and other adaptive equipment for children with physical disabilities. We love the way he thinks through what these students need to be part of classroom activities and hope his approach, which is very low cost and highly effective, can inspire parents and professionals to "think outside the box" when addressing the needs of students with disabilities.

What Do Students Need to Learn?
As students are in the midst of Common Core testing, and as a record number of parents here in New York and around the country have elected to "opt out" of these tests, it is timely to think about what students should be learning -- and why. Harvard Graduate School of Education (GSE) Professor David Perkins has addressed this question in a new book, Future Wise: Educating Our Children for a Changing World, and you can read an article summarizing his perspective in ED, the magazine of the GSE.

Resources for Children with Special Needs 
This nonprofit organization operates only in New York City, but they offer an array of resources - hotlines for questions, workshops, and special programs (most in English and Spanish) -- for students with a wide range of disabilities. Take a look at a video describing what they do and how they do it.

Related Services

Both the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973 (Section 504), the two federal laws that families rely upon when their children need help in school because of learning or other disabilities, mandate that children be provided with "special education and related services." We've written before about both of these laws and how they work, but our focus here is on the related services that both laws require schools to provide for students.


What are related services? The IDEA defines such services as:

"...transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, school nurse services designed to enable a child with a disability to receive a free appropriate public education as described in the individualized education program of the child, 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 the early identification and assessment of disabling conditions in children.

The IDEA specifically notes that related services do not  include a medical device that is surgically implanted, or the replacement of such device. These devices can include a cochlear implant for students with hearing loss or an insulin pump for students with diabetes. Section 504 refers to "related services" without such an extensive definition, but districts generally apply the same definitions as they do to IDEA services.

Let's look at each of these services and see how they might apply to your child.

Transportation above and beyond regular bus service provided for all children may include bus service to and from school in a regular bus, or service in a bus with a bus aide, or transportation to school related activities. For students who have been placed by their district or parents in private special education schools, this can include transportation beyond the distances generally allowable to other students. Note that special transportation services must be specifically provided for in a student's IEP or 504 Plan; such service is not automatic.

Speech-language services include a wide variety of services provided by a licensed speech and language pathologist. These services are generally provided in small groups, but can be individual. They go beyond correcting difficulties with articulation and can be very helpful to students with expressive language problems of all kinds. Note that the IEP or 504 Plan needs to specify the frequency and duration of such services and the student-therapist ratio. In an IEP this can look like: "Student will be provided with speech-language services three periods of 45 minutes per week in 5:1 setting (ie: one speech therapist working with a group of five students)." Usually, the smaller the group, the more intensive the services provided.

Audiology, interpreting, and orientation and mobility services are provided to students with hearing and/or vision difficulties or blindness.

Occupational therapy is often provided to students with graphomotor (handwriting) issues and can assist these students with both handwriting and keyboarding.

Physical therapy helps students with mobility, balance, and movement difficulties manage their movements around the school. Note that these services, as well as the other services discussed, all must be specified in the IEP or 504 Plan as to frequency, ratio, and duration.

Other related services that can be included in an IEP or 504 Plan can include counseling, social work, and psychological services, all of which can be provided to any student who needs them. Medical services can also be provided, but are limited to diagnostic services. This distinction between educational and medical services is consistent with the focus of the IDEA on providing only those services which help as student to obtain a benefit from his or her education.

IEP and 504 - What Parents Ask

Your blogger presented a webinar earlier today for ADDitude Magazine, for which she writes the "Your Legal Rights" column.  The topic was "IEP vs. 504 Plans: Which Does Your ADHD/LD Child Need and How to Go About Getting It." Hundreds of parents listened in and many of them had questions, some of which are no doubt shared by most parents who deal with these two laws. There is a link to hear the complete webinar but in the meantime, some of the most common questions -- and their answers -- were:

Can a student have both a 504 Plan and an IEP at the same time?

No. Section 504 (of the Rehabilitation Act of 1973) specifically states that having an IEP (an Individualized Education Program under the Individuals with Disabilities Education Act -- IDEA) satisfies the requirements of Section 504. So, if a student would qualify for services under both laws, the student should get an IEP.

Which law would apply to a student with ADHD? 

It depends on the extent to which the student requires special education or related services because of his ADHD. If the student's attention problem is so significant that it seriously impacted his ability to learn, or if the student also has a specific learning disability, he would qualify for an IEP under the category of Other Health Impaired or Specific Learning Disability. [IDEA requires that a student fall within one of ten categories of disability in order to receive services.] If the student has ADHD but the impact is less significant and doesn't rise to the level of his needing special education services because of it, he would generally not qualify for an IEP but would be eligible to receive services under Section 504.

How do I start the process of getting my child an IEP or a 504 Plan?

First, parents should have met with their child's teacher and discussed how things are going in school. Once they have done so, if they believe that their child needs a 504 Plan they should make a written request to their school's 504 Team. Most schools have specific forms for this and you can obtain them from the school office or even the school website. Complete the form, along with any documentation you may have, and submit it to the 504 Team. You may be invited to their meeting, but the law does not require this and the procedure varies from place to place. The 504 Team will decide if more information is needed (and any evaluations they require will be at school expense) and will decide upon a plan for your child. 

To begin the IEP process, parents need to advise the school -- the guidance office or principal is generally the point of contact -- that they believe that their child requires special education services and sign a consent for their child to be evaluated. The evaluation process must be completed within 60 days of the consent and is followed by a meeting which includes the parents, to decide whether the student qualifies for IDEA services and to create the IEP, which must be in writing.

We have a written a number of blogs, linked below, which deal with some of these topics, including:

• Section 504 Q and A
• Special Education Terminology
• Getting Services in Private Schools
• Preparing for IEP Meetings
• Changing an IEP
• IEP Tips and More Tips

Getting Comfortable with Uncomfortable Terminology

Christopher Webb

Families of children who struggle with learning and related issues, especially those who receive services under the Individuals with Disabilities Education Act (IDEA) or Section 504 of the Rehabilitation Act of 1973 (Section 504), encounter a great deal of unfamiliar vocabulary and acronyms. We've looked at some of those acronyms before, and will spend some time in a future blog on some vocabulary that may be unfamiliar to many parents and students.

Today, however, we are looking at three of the most difficult words that families encounter, words that tend to make both parents and students uncomfortable. By understanding these words and why they are used, we hope to make them less powerful and to enable parents to better understand what they do -- and do not -- mean when used to discuss their child.

One of these terms is co-morbid, which can sound downright, well, morbid. But this term has nothing to do with things that are scary or creepy. In fact, it is an often used medical term to describe conditions that occur together, whether or not they are caused by the same process. So, a middle-aged person who is overweight might have co-morbid high blood pressure and diabetes. The two conditions both impact the health of the individual, but each needs to be considered and treated separately, although weight loss might positively impact both conditions. Children with learning difficulties may have such co-morbid conditions as attention deficit disorder (ADD) or anxiety. If learning difficulties are addressed, the anxiety may subside. Individuals may also have other co-morbid conditions that have no particular impact on their learning -- medical conditions that need treatment but are not related to their learning and/or attention issues.

Another term families can encounter is classified, as in "we will have to have your child classified in order to provide her with services." This term comes from the way that services are provided under the IDEA; students are not eligible to receive special education and related services, supplementary aids and services, and program modifications under an IEP (Individualized Education Program) unless they fall into one of ten categories, which include things like specific learning disabilities, speech or language impairments, or hearing impairments. We often tell parents to think of a classification as a key; it is simply a way to access services and it usually doesn't matter what classification is used (and classification categories can be changed), since the services provided to a classified student are supposed to be unique to that student's individual needs.

Finally, the one term that makes parents most uncomfortable is disability. We don't like it either, but many parents need to deal with it since it is used throughout every law that provides the basis of services to children of all ages who are experiencing challenges with learning or related issues, and that allows older students and adults access to accommodations (such as extended time on the SATs, text-to-speech software provided by their college, or job modifications in the workplace) throughout their lifetime. While the IDEA looks to its classifications to decide what is a disability, the Americans with Disabilities Act (ADA) takes a more functional approach, looking at the impact of "a physical or mental impairment that substantially limits one or more major life activities" and then very broadly explaining that "major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." No matter how you or your student encounter the word "disability" it's important to keep in mind that this term is just Congress's way of setting up a plan to decide who is eligible for services and accommodations. Don't let it define how you or your child view his unique combination of strengths and challenges.

Support Services and Accommodations in Private Schools

An article in our most recent newsletter discussed how and when students are entitled to a publicly funded education in a private school. Even students enrolled in a private school by their parents have rights to special education services if they have an IEP under the Individuals with Disabilities Education Act (IDEA) from the public school district. Parents seeking such an IEP need to contact the public school district in which the private school is located. These services are funded from a different source than is available to public schools, but once a student has an IEP he or she can get at least some special education services, no matter where he or she attends school.

But not all students who need supports or accommodations (such as extended time on tests) have "disabilities" as defined by the IDEA. Sometimes students have learning or other issues that do not require special education services, but still need some additional support or more time to take their examinations. In a public school these students would receive such supports or accommodations under Section 504 of the Rehabilitation Act of 1973 (Section 504), the federal law that applies to individuals with a physical or mental impairment that substantially limits one or more of such person's major life activities (including learning, thinking, etc.). The problem for students in private schools is that Section 504 does not apply to private schools -- only to schools that receive federal funding (as do essentially all public schools, directly or indirectly).

So, what are the options for such students, who have real learning or other issues but who don't qualify for an IEP and can't get help from Section 504? For most of these students, the answer lies in the Americans with Disabilities Act. We don't hear much about this law for school age students, since most services and accommodations are provided by the IDEA or Section 504 for this age group. However, it most definitely applies to everyone, regardless of age, and requires that all aspects of a student's education be made accessible so long as the accommodations needed to do this are not an undue burden on the school. What does accessible mean here? It means that students who need extra time to complete their exams, or who need specialized software (such as voice-to-text or text-to-voice), or who need a scribe, or audiobooks,  should be provided with these items. It does not, however, mean that students are entitled to the kinds of services that even Section 504 provides for students in public schools. There is a discussion of the ADA and Section 504 on the website of the U.S. Department of Education.

One important consideration for students in religious schools is that all religious institutions, including religious schools, are exempt from the ADA. Since Section 504 does not apply to these schools either, students who do not have an IEP may not be entitled to accommodations unless the school elects to make them available.

Photo: Renato Ganoza/Flickr Creative Commons

Section 504 - Q & A

We have written before about Section 504, the federal law that can be used to provide school services for some children. But we know that parents -- and schools -- are still confused about what this law can and cannot do for their child and when and how it should be applied. So, we thought it would be helpful to answer some of the questions parents have recently asked.


Q: What is the difference between 504 and "Special Education"?


A: Section 504 and the Individuals with Disabilities Education Act (IDEA), which provides for "special education services," both are federal laws which apply to every state. The main difference is that the IDEA requires that a student both have a "disability" and because of that disability require special education services. Section 504 also requires that a student have a "disability" but once the student is shown to have a disability, it is not necessary to show that he or she needs special education services.


Q: That's confusing. So how do I know if my child needs a 504 Plan or an IEP, the Individual Education Program provided by the IDEA?


A: For some students, it's an easy call. Those with health issues, such as asthma, allergies, or diabetes, will need a 504 Plan to help manage their medical issues, even if they have no significant learning problem. Some students with attention difficulties that do not significantly interfere with their educational progress will do fine with a 504 Plan. But, if a student needs special education services -- services such as reading instruction, a smaller class setting, resource room -- or related services, such as speech therapy, occupational therapy, or physical therapy, then that student should be receiving his or her services under the IDEA.


Q: Does it make a difference how my child receives services?


A: It often does. The IDEA requires parental involvement and consent in setting up the services and goals for a child who receives services under that law. That means you, the parent, can help shape your child's education. It also requires the school to at least consider any Independent Educational Evaluations you may choose to submit. In contrast, 504 services are provided under a 504 Plan that is set up without mandated parental input. The protections and procedures for parents who disagree with a school providing IDEA services are more extensive than under Section 504.


Q: My child's school says he isn't doing poorly enough to qualify for IDEA services, but they will give him a 504 Plan. What should I do?


A: The IDEA gives states some leeway in determining how to decide whether a student needs special education services. Some states, like New Jersey, still use what is called a "discrepancy model" that requires students to show a significant gap between their ability (usually measured by things like IQ tests) and their classroom performance. Other states, like New York, are moving to a different model, called Response to Intervention, which is a more flexible way to determine who needs special services. While we believe that students who truly need special education should receive those services under the IDEA, it is reasonable to accept the 504 Plan and see if it provides enough support. If it does not, and the school still does not want to provide IDEA services, it might be time to consider seeking advocacy assistance to consider your options.


Q: Can my child have both a 504 Plan and an IEP under the IDEA?


A: While this is theoretically possible, it is not something we recommend or something that most schools will do. The IDEA is broader in both the services it provides and the protections it provides for parental rights. Once a student is classified under the IDEA, he or she is entitled to all the services he or she needs to make education accessible. So, if there is a medical or attention issue, that can be dealt with as part of the IEP. Once you have an IEP there is no need for a 504 Plan.


Q: Why does my child's school seem so reluctant to provide an IEP, while they are pretty free with 504 Plans?


A: Because they are accountable to the State for the number of students that are classified under the IDEA. If they have more classified students than other schools, they will be subject to scrutiny with respect to why they are classifying so many students. Special education can be a substantial expense that is at least partly paid at the State level. Schools are not subject to the same scrutiny for their 504 Plans.

Special Education and Charter Schools

Yesterday's 11th Annual School Law Institute at the Practising Law Institute explored a number of important topics, including "Special Education in New York's Charter Schools," presented by attorney Matthew Delforte.

Charter schools are public schools and are funded by public funds, but they are not subject to many public school requirements and are operated by private charter organizations, rather than the state or local department of education. Still, they are required to comply with many laws that also impact regular public schools, including the Individuals with Disabilities Education Act (IDEA) and Section 504. Interestingly, rather than being part of any particular school district, charter schools are each considered to be their own district (or, more technically, LEA - local education agency).

So, what does this mean for students who are enrolled in charter schools and who are in need of special education services?

First of all, for their charter to be approved or renewed, charter schools must demonstrate that they accept and retain children with disabilities in numbers "comparable" to traditional public schools in their area. Students enrolled in charter schools are fully entitled to special education services: evaluation, planning by a Committee on Special Education, development of an IEP, and provision of appropriate services. However, it is the student's district of residence (where the student/parents reside), not the charter school, that is responsible for this identification and planning process. What this means is that the charter school must provide the services in the student's IEP but has limited input into the development of the IEP and determination of the services it specifies.

The consequences of this split responsibility between the student's home district, which determines services, and the charter school, which must provide them, are complicated and are of particular complexity when dealing with the most disabled students.

The law requires that the student's home district provide services to the student while he is in the charter school, but what if the charter school doesn't have the kind of class that student requires, or the kind of expertise that the child needs? Remember, the charter school doesn't set up the student's educational plan; that is done by the home district and the charter school often has little input into the IEP. Many IEP's specify the ratio of teachers to students for special education settings but charter schools set up their own class structures. Parents should also be aware that charter schools are not responsible for transportation; it is the responsibility of the student's home school district to provide transportation to the charter school if this is part of the IEP.

So, as this area is further refined in law and practice, parents may want to think carefully before enrolling a student in need of substantial specialized services in a charter school. Yes, the law says your child should be properly served in this setting, but conflicts between the autonomy granted to charter schools and their obligations to serve all children can impact their ability to provide optimal levels of service.

Planning Your Trip to School Services

You wouldn't head off on a journey without the right equipment -- tickets, maps, proper clothing, and a plan. In the same way, parents seeking help for their children from public schools need the right equipment for their particular journey.

First, they need an understanding of the terminology used by schools and originating in the federal laws that give students with learning and other disabilities specific rights. It is also important that families understand the difference between the two laws that require schools to offer specific services to students with learning difficulties. The Individuals with Disabilities Education Act (IDEA) and Section 504 (of the Rehabilitation Act of 1973) both can be used to help struggling students. They both require that a student have a specific disability, but then impose different standards.

If a student has a disability AND because of such disability he or she requires special education or related services, then that student will be covered by the IDEA. An example would be a student with a reading problem, who needs specialized reading instruction. Without such instruction the student would not be able to make regular progress and move on from grade to grade. However, if a student had a visual impairment that required him or her to use special software and large print books to be able to access the classroom materials, but otherwise did well in school, that student would fall within the protections of Section 504. Students with attention difficulties who do not need other academic support generally fall under Section 504; those who have attention problems together with academic difficulties are most often eligible for IDEA services. The two laws are very similar for students in grades K-12, but parents are required members of the team that develops the IEP under IDEA, but are not necessarily part of the 504 Team that develops the 504 Plan.

So, once you know the terminology and are somewhat familiar with the laws that will apply to your child, what else can you do as you prepare to deal with your child's school? One important step is to create a record of your child's achievement and testing and of earlier steps you have taken to deal with your child's issues. Keep a folder, by year, of report cards, earlier IEPs or 504 Plans, testing, etc. Keep a log of who you spoke to and why and when. Document the results of all conversations (eg: 12/3/2010 - Called guidance counselor about setting up a meeting of the IEP team; she said she would get back to me. 12/15/2010 - received notice of IEP meeting to be held on January 20, 2010 -- see notice in file).

Do not attend meetings of the IEP Team by yourself. Bring a spouse and/or a friend or advocate. You need to be able to focus on what is being said while someone else takes careful notes, including the names and titles of all those at the meeting (or get a copy of the sign-in sheet, but be sure you can read all the names and positions). If you are not certain that you agree with the decisions of the IEP Team, you should tell them that and state that you need some time to consider this information. Remember, no matter how helpful the school personnel may be, the only person at the meeting who has no other consideration than what is best for your child is YOU. Even the most caring school staff has to consider the needs of other children, the financial impact of your child's needs, and staffing issues. So, plan for your meeting and you will find that your journey through the IEP or 504 process will be more likely to be a positive one.

The Limits of Services

We continue to get questions from parents about a subject we have addressed before -- what does a school have to do to meet the needs of a student who struggles?

In our May 3, 2010 blog entry we looked at the history of the term FAPE -- free, appropriate, public education -- which is the standard that schools must follow. Let's look a bit further at how FAPE applies in practice and what parents can expect from their schools.

First of all, it is important to remember that only students who receive services under the IDEA or Section 504 of the Rehabilitation Act of 1973 are entitled to FAPE. That means that if your daughter could benefit from supports in reading or writing, but does not meet the level of disability required by either of these laws, there is no legal requirement for her school to address these issues. Parents should also be aware that FAPE extends to students who attend private schools, as well as those who attend public schools, but the level of services to private school students with disabilities may differ, because services for private school students are generally less well funded by the states.

The part of FAPE that causes the most disputes between families and schools is the term "appropriate". What a parent believes to be an appropriate service may be seen by the financially strapped school district as an unnecessary luxury. Mind you, finances should not be entering into the decision process, but they do all the time. Parents always want the best for their child; schools must take into account the needs of all of their students and the more resources they expend on any one student, the fewer are left for everyone else.

Parents can be more effective when speaking to their child's school by keeping the terminology of FAPE in mind. When seeking to have the school include a particular service or program on your son's IEP (Individualized Education Program), don't talk about it being "best" or "ideal". Speak instead about it being "appropriate", and that it would allow your child to "make adequate yearly progress". Remember that there are many services that all children would find helpful but that your school district is not required to provide a perfect education. Keeping this in mind as you work with your child's school may help you get the most you are entitled to under the law.

Happy Anniversary ADA

Today is the 20th Anniversary of the Americans with Disabilities Act (ADA), signed into law by President George H. Bush on July 26, 1990.

The ADA was a latecomer to the list of legislative initiatives that individuals with disabilities may encounter during their lifetimes. The predecessor legislation to the Individuals with Disabilities Education Act (which took the name we now shorten to IDEA in 1991) first became law 35 years ago as the 1975 Education for All Handicapped Children Act. Section 504, the law that families of school age children may encounter because it provides services and plans for students with disabilities who do not qualify under the IDEA, is part of the Rehabilitation Act of 1973.

So, why is the ADA important to students who struggle in school and their families? Because the IDEA comes to an end for almost all students once they graduate high school. As we tell families all the time -- and can't stress too much -- there is no IDEA in college! College students with learning challenges (as well as those with physical and emotional disabilities) must rely upon the protections of the ADA to obtain the academic adjustments, modifications, and auxiliary aids and services they require to access the campus and curriculum.

Once these students finish their education, whether after high school, college, or at the post-graduate or professional school level, they will again have to rely upon the ADA as they seek employment and begin to work in their chosen field. As students move through their K-12 education, they need to understand not just their profile of strengths and weaknesses, but to know what their rights are and which laws apply to them. By high school, students who receive services under the IDEA or Section 504 should be aware of the impact of these laws on their education. They also need to begin to understand what kinds of rights may be available to them -- and the limitation of these rights -- under laws such as the ADA that they will need to rely upon as college students and adults.

VESID

New York parents of students receiving special education services may be familiar with VESID, which stands for Vocational and Educational Services for Individuals with Disabilities. VESID has long served a dual function in New York. It is an adult service agency, which deals with individuals over the age of 18 with a documented disability, and coordinates programs and activities to help them find productive work and lead independent lives. As part of this adult mandate, which is the same as agencies in every state established under the Rehabilitation Act of 1973 (the same law that provides "504 Plans" for students of all ages), VESID counselors may start working with students while they are still in high school, to plan for post high school transition to college or the workplace.

VESID also has an additional function; it is the arm of the New York State Education Department that operates the special education system in New York State. As the VESID website notes, it is presently responsible for the following functions:

• To oversee the implementation of federal and State laws and policy for students with disabilities;


• To provide general supervision and monitoring of all public and private schools serving New York State preschool and school-age students with disabilities;


• To establish a broad network of technical assistance centers and providers to work directly with parents and school districts to provide current information and high quality professional development and technical assistance to improve results for students with disabilities;


• To ensure a system of due process, including special education mediation and impartial hearings; and


• To meet with stakeholders through the Commissioner's Advisory Panel for Special Education Services.

There has been discontent in some circles with how VESID performs this part of its role, which has also been impacted by budget and related staffing issues that have impacted its ability to do its job. We have learned that there is now a proposal before the New York State Regents (who supervise all educational matters in the State) that "would include combining all P-12 education issues, including special education, under a new Regents P-12 Committee"which would replace VESID.

Adoption of this proposal can have a real impact in the way the special education services are overseen in New York. We will continue to follow this matter to let parents know of any changes to the special education system.

Your Advocacy Backpack

Students heading off to college in the next few days have been packing their bags and loading the car with all sorts of items to improve their dorm room and their academic work. One item that is crucial to college success for every student, especially for those who need academic accommodations because of learning or attention difficulties, is something we like to call an Advocacy Backpack.

For students who don't need to arrange special accommodations with professors, or to deal with the college Disabilities Services Office, the Advocacy Backpack is a small to medium sized bag. What should it contain?

• An understanding of how you learn best -- Do you follow a lecture better when you take notes, or when you listen and review written materials later? Do you tend to do your work at the last minute or are you someone who can break it into chunks and work on it over time?


• A sense of what kind of work environment you need -- Can you work while your roommate plays loud music, or do you need a quiet spot to concentrate? Or maybe you are the one who needs music to study.


• The recognition that ignoring a problem -- a late paper, a missed class, or an assignment you don't really understand, is only going to make things worse down the road.

If you are one of these students, you need to take steps to maximize your effectiveness and create a positive work environment. This may mean working with another student who likes to take notes, or arranging a living situation that is conducive to studying, or speaking to a professor about a difficult situation or assignment.

For students who have learning or attention difficulties that require assistance from the college's Disability Services Office, a larger Advocacy Backpack will be required. This backpack will contain all of the items for students without specific learning issues, plus some important additions. You will need:

• Documentation acceptable to the school to provide you access to accommodations.


• An understanding of Section 504 and the Americans with Disabilities Act, the two laws that give you specific rights to accommodations.


• Contact information for the individuals in the Disability Services Office whose job it is to assist in planning your accommodations.


• Information about what your school requires to set up special testing settings, such as quiet rooms or extended time to complete an exam.

So, have fun picking out a colorful quilt and a terrific study lamp. But don't forget to pack your Advocacy Backpack too.