Paying for IEEs - Revisited

Parents frequently ask us about having their school district pay for an independent educational evaluation - an IEE - such as those we provide here at The Yellin Center. We wrote about this subject at length in a post from November 2013, but it has become clear to us that it is time to share this discussion again. We have added some additional information, (see the boldface text below) and hope this post helps answer questions that you may have.

 
When Must School Districts Pay for Evaluations?

Parents sometimes ask us if they can have their school district pay for their child's evaluation at The Yellin Center. The simple answer is "maybe, under certain circumstances," and we thought it might be helpful to explain the laws and regulations that govern this area.

The Individuals with Disabilities Education Act (IDEA) recognizes that an evaluation of a student in all suspected areas of disability is a crucial first step to determining whether that student is eligible for IDEA services and what kind of services will help that student to succeed in school. In fact, the "clock begins to run" with respect to the time limits set forth in the IDEA only once the parent consents to an evaluation of the student. The law anticipates that the school will then conduct an evaluation of the child and share the results with the parents and the IEP team, the committee that creates the student's Individualized Education Program. 

In many situations, this works out well for all concerned. The school district conducts an evaluation at no cost to the family; the findings make sense to the parents; the findings are incorporated into the student's IEP; and nothing more needs to be done. 

However, sometimes families do not agree with the findings of the school district evaluators and feel there may be something more going on with their child. Sometimes parents have had a long history of difficulties with the school and simply do not trust them to do an evaluation. Some parents of children enrolled in a private school do not want to have to work with the local public school district (especially in New York City). And, quite often, parents want the kind of in-depth, multi-disciplinary evaluation done here at The Yellin Center, rather than a more "cookie-cutter" series of tests given by their school's evaluators. In each of these situations, the parents seek an Independent Educational Evaluation (IEE) such as the ones we conduct here at The Yellin Center.

Before we look at specific rules and scenarios, we need to emphasize one important point. Parents have the absolute right to have their child independently evaluated and federal law requires that the public school district must consider the results of such evaluation. Dr. Yellin and his team frequently attend IEP meetings (via phone or other technology) to discuss the results of our evaluations and have been universally well-received by schools. However, the law does not require that districts follow the recommendations of our reports (or any outside evaluator).

So, when can a parent have a district pay for an IEE? 

1. The parent must disagree with the evaluation conducted by the district or consider it inadequate and notify the district of their intention to obtain an IEE.
2. The district must then either file for a due process hearing with a State Hearing Officer or agree to pay for the IEE.
3. The district can set criteria for the IEE's they will fund -- how much they cost, the geographic location of the evaluator(s), and the specific qualifications of the evaluator(s). However, the U.S. Department of Education notes that, "the district must allow parents the opportunity to demonstrate that unique circumstances justify an IEE that does not fall within the district's criteria. If an IEE that falls outside the district's criteria is justified by the child's unique circumstances, that IEE must be publicly funded." So, even if your district tells you that you are restricted to using the private evaluators on a list they provide, that is not strictly correct and you can and should push back to obtain the services of the evaluator you choose. 
4. An IEE can also be ordered by a State Hearing Officer as part of a due process hearing when aspects of an IEP are in dispute. 

We also encounter situations where a district paid evaluation at The Yellin Center is part of an ongoing discussion between a family and a school district, especially when the district has not been successful in addressing a child's educational needs. And families need to keep in mind that The Yellin Center has always had a sliding scale for families who need assistance in paying for our services. 

There are countless resources available to explain this process to parents and school administrators, but some you might find useful are:

• For New Jersey familes, a memo from the New Jersey Department of Education, with a list of Frequently Asked Questions about IEEs.
• From the U.S. Department of Education, a memo discussing why districts cannot set absolute cost limits on IEEs. 

One subject not addressed in our original post on this topic is the rights of parents when a district refuses to evaluate, either because they do not believe that the child has a disability, or without even providing a reason. The IDEA only addresses the situation where a family disagrees with an evaluation that has been already conducted. To the frustration of many families, if the school district declines to evaluate a student, the only remedy of the family is to file a complaint with a State Hearing Officer to challenge this decision. In addition, as noted above, parents always have the right to go ahead on their own to seek an IEE. 

Legal and Medical Checklist for College

A family member recently reached out for help; her 18-year-old daughter is leaving for college at the end of August and she wanted to know if there were any documents she should have her daughter sign that would make both day-to-day and emergency situations easier for them both. In addition, the family lives in one state and the college is located in another. She wasn't sure if that made any difference. I've always know that this mom was a smart woman, and her excellent questions and concerns just confirmed that. This is what I advised:

HIPAA
The federal law governing privacy of medical records applies in all states and would mean that the medical records of this college freshman would not be accessible to her parents. In addition, the student's doctors could not discuss her medical condition with her parents, even in an emergency. I suggested that the parents speak to the young woman and that they should discuss the benefits (and privacy concerns) of having her execute a general HIPAA Release Form allowing her doctors to speak with her parents. In addition, many student health services have their own forms and, if the student agrees, she should execute that form as well.

FERPA
While we are on the subject of federal laws, FERPA, which protects the privacy of student records, gives students over 18 and those in college the sole right to their educational records. As we noted in a post back in 2010  (it's sometimes hard to believe we have been blogging for ten years and have posted almost 1100 blog posts!) FERPA has numerous exceptions, but we advised that our family member should have her daughter execute a FERPA release form (often available at the office that generates student grades/records) to allow her parents to access her educational records. In addition, students who are registered with their campus Office of Disability Services should check to see if there is a separate form that is used by that office.

HEALTH CARE PROXY 
This form, which can have different names in different jurisdictions, would allow the student's parents (or anyone else she designates) to make medical decisions when she is not able to do so. This is different than just medical information (covered by the HIPAA release) but is used for such serious situations as where someone is unconscious or so ill or injured that issues of life support come into play. I urged that the parents and student have a serous conversation about this form and that all involved understand its purpose and the wishes of the student executing it. Sometimes, this form is prepared in connection with a document called a Living Will, which is a written expression of how the party executing it feels about issues like artificial respiration and tube feeding. Note that this latter document is advisory, while the Health Care Proxy is a binding authority. Different states have different forms for this document, so I suggested to my relative that she search online for forms from reputable sources in each relevant state and make sure that the form they use covers the requirements for both state of residence and the state where the college is located. In general, these forms need to be witnessed. A form from the New York State Department of Health, fillable  and with a lengthy Q and A section, is available online.

This forms above will be sufficient for most situations, but some families also may choose to have their student execute a Durable Power of Attorney, a form that allows the person who signs it (here, the student) to give someone authority during the signer's lifetime to handle financial, business, banking, and other matters. The form can be useful if the student has assets or an interest in property. Different states use different forms and these forms can be a bit confusing to create. You may want to speak to an attorney if your family circumstances warrant creating this document. Likewise, most students this age neither need nor have a Last Will and Testament, but special situations may make this document important and now would be a good time to have one prepared by an attorney.

With all the paperwork completed, students and their families can concentrate on much more enjoyable issues, like decorating their dorm room, meeting new roommates, and hitting the college store for their stock of mugs, banners, and t-shirts. Here's to a great start to college!

Supreme Court Hears Case on Educational Benefit

Last June, we wrote about a case that was being considered for hearing before the United States Supreme Court, Endrew F. v. Douglas County School District. The Supreme Court subsequently agreed to hear this case and oral arguments before the Court were held this past Wednesday. As we had discussed, the case was brought by the parents of a child with autism who were seeking reimbursement for private school tuition from their public school district in Colorado, and is focused on the level of educational benefit that a school must provide to a student with a disability eligible to receive special education under the Individuals with Disabilities Education Act (IDEA).

 

The IDEA requires that a student receive an "appropriate" education, often referred to as "FAPE" - a free, appropriate, public education -and if a district program does not provide FAPE, then the district may be required to pay for the student to attend a private school that does provide such benefit. The "appropriate" standard was first formulated in 1982 and over the years there has been a divergence among  states as to what that standard really means, with terms like "more than de minimus" and "meaningful" being applied by courts in different states in different ways. Resolving this different interpretation of a federal law is one of the key roles of the U.S. Supreme Court. 

In the Endrew case, the student's parents were not satisfied with the very minimal progress he had been making in his public school program, both academically and behaviorally. By not adequately addressing his emotional and behavioral needs, the public school  program did not enable him to advance academically. The Endrews decided to enroll him in a private school and to seek reimbursement for the tuition they paid. Notably, once removed from the public school and receiving support for his emotional and behavioral needs, young Mr. Endrew made real academic progress; no one disputes that the new program offered him substantial benefits. 

In what Justice Alito described as "a blizzard of words", the attorneys representing the school district, the parents, and the U.S. government sought a clear standard for the benefit to be achieved under FAPE, one that would meet the needs of students, recognize that students with severe disabilities might not be able to make the same kind of progress as other, less disabled students, and not place undue financial burdens on school districts to pay for private school tuition. The goal, as noted in the brief filed by the Solicitor General, representing the U.S. government, should be to have the Supreme Court "clarify the proper FAPE analysis and establish a uniform standard to guide courts, state educational agencies, and parents across the country". We will see if the court is able to do so. 

Least Restrictive Environment Revisited

Least Restrictive Environment (LRE) has long been a fundamental part of the Individuals with Disabilities Education Act (IDEA). The IDEA mandate with respect to LRE states that,

To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

We have written about LRE before, and have thought that it was such a settled part of current law and practice that it was not subject to question. We were wrong. A recent blog post on the website of AASA, the School Superintendents Association, urges that Congress consider changing the LRE requirements of the IDEA to look only at the educational benefit to be provided by placing students in the least restrictive environment and not to consider benefits to such students that are not strictly educational, such as communication, collaboration, and social skills. The blog also suggests that revised guidelines on LRE, "could lead to a reduction of litigation ... [and have the] potential to ease the educational, financial, and emotional strains that are placed on parents and school officials when special education litigation reaches the courts." In short, the author wants to reduce the cost of litigating LRE issues when parents exert their rights to have their children educated in the least restrictive educational environment.

Our colleagues at COPAA, The Council of Parent Attorneys and Advocates, quickly responded to the blog post. In a detailed public post, the COPAA leadership discussed the court cases where LRE has been considered (and well settled) and noted that, "including students with disabilities in general education benefits students without disabilities. Research shows that time spent with non-disabled peers not only benefits students socially and connects them with their community but also enhances academic achievement for students with disabilities."

COPAA also posted a blog written by educational leaders which noted that LRE was not being appropriately implemented in all parts of the country and urged that it be expanded -- not limited -- and properly utilized for all students. These leaders did agree with the AASA blogger that the time and energy now used for litigating LRE issues could be put to better use, but noted that their recommendations for how to reduce such litigation were quite different. The COPAA bloggers wrote:

"We support efforts to scale-up the use of universal design for learning principles to all classrooms. We support efforts to expand access to communication and assistive technology to all students who need it. And we support school improvement and restructuring efforts ... including greater family and community engagement, strong administrative leadership, multi-tiered systems of supports used with fidelity, values- and evidence-based inclusive policy and practice, and integration of all support services for the benefit of all students."

We hope the folks at AASA -- and in Congress -- are paying attention.

U.S. Supreme Court Asked to Look at "Educational Benefit" under IDEA

Parents of students who receive services under the Individuals with Disabilities Education Act (IDEA) are aware that this federal law requires that their child receive a free, appropriate, public education, universally referred to as FAPE. But just what is considered appropriate has been the subject of litigation almost since this law was enacted in its earlier form (under a different name) in 1975.

The prevailing standard for "appropriate" was articulated by the Supreme Court of the United States in 1982 in the Rowley case, which we examined in this blog more than six years ago. As we noted at that time, the Court set the standard for appropriate far lower than parents and their supporters would have wanted, stating that the IDEA required only:

"...personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction … and should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade."

Over time, the Rowley standard has been subject to interpretation by courts throughout the country and the federal Circuit Courts of Appeals, whose decisions are subject to review only by the Supreme Court, have diverged in their views about what constitutes an appropriate education.

Now, a case is being considered for review by the Supreme Court from the United States Court of Appeals for the Tenth Circuit, which affirmed the decision of a lower court that providing "some" educational benefit to a Colorado student with autism was sufficient to meet the standards required for FAPE. The Supreme Court has asked the Obama administration's representative, the U.S. Solicitor General, to weigh in as to whether the Court should take on this case.

 The question posed by this case is described in the amicus brief  filed by Autism Speaks, which urges the Supreme Court to consider it:

 "Some circuits require a substantial educational benefit (often described as a “meaningful” one) while others ... require only a just-above-trivial educational benefit. [Supreme Court] review is necessary to resolve the conflict over an issue of paramount importance to children with disabilities, their parents, and their school districts."

The problem, as the amicus brief notes, is  "that the just-above-trivial educational standard adopted by the Tenth Circuit ... and by other courts of appeals, is not reasonably calculated to meet the educational needs of children with disabilities, and therefore impairs their access to an education and opportunity for independence and self-sufficiency."

We will continue to follow this case and to see if the U.S. Supreme Court decides to grant a writ of certiorari and accept this case for review.

English Language Learners

Required professional development courses vary greatly in quality, so it is a real delight when a day devoted to accumulating necessary Continuing Legal Education credits turns out to be a truly fascinating series of lessons in areas that attorneys working in the field of education and special education don't always consider.

Such was the case yesterday at the Practicing Law Institute's School Law Institute. Discussions about sexual assault on campus, transgender youth in public schools, the use of police authority and arrest powers in schools, and how changing family dynamics make deciding who is the "client" in an educational matter complicated, all were extremely well-presented. So was the more expected discussion of new developments in special education case law.

One particularly interesting topic was presented by Abja Midha, Esq. of Advocates for Children of New York, where she is Director of the Immigrant Students’ Rights Project, which works to protect English Language Learners’ and immigrant students’ access to educational programs and improve their educational outcomes. The Project has numerous resources available - many in multiple languages - and is involved in policy initiatives as well.

Ms. Midha noted that not all children who are English language learners (ELL) are immigrants. Some were born here to parents who speak languages other than English. And some children who are proficient in English have parents who have limited English proficiency and require translation services to be able to access necessary information about their child and the school system.

Federal statutes and case law have created significant rights for ELL. In the 1974 U.S. Supreme Court case  Lau v. Nichols, (414 U.S. 563), brought by non-English speaking Chinese students in the San Francisco public schools, Justice William O. Douglas' opinion noted, “There is no equality of treatment merely by providing students with the same facilities, textbooks, teachers, and curriculum; for students who do not understand English are effectively foreclosed from any meaningful education. Basic English skills are at the very core of what these public schools teach. Imposition of a requirement that, before a child can effective participate in the educational program, he must already have acquired those basic skills is to make a mockery of public education.”

The day's presentations on all topics will be available in a couple of weeks as an "on demand" program. The Practicing Law Institute offers scholarships to selected programs for attorneys in the nonprofit sector and others.

Bad News About a Bad Law

Back in May 2011, we wrote about a then pending Florida law that would prohibit physicians from asking parents about whether there are guns in their homes. The question, when asked by a pediatrician or family physician, can open the topic of gun safety and allow the doctor to counsel the parent about what is needed to make sure that their own and other people's children are kept safe. 

Gun advocates claimed that this would constitute harassment and somehow lead to records being kept by physicians as to which of their patient families had guns present in their homes. Opponents of the law pointed to limits on a physician's judgment, freedom of speech issues, and the appalling number of children injured or killed by playing with guns found in their home or another house at which they play.

The law was signed by Florida Governor Rick Scott shortly after our original post about it. In September of 2012 we were able to report that Federal District Court Judge Marcia G. Cooke had ruled that the Florida law was unconstitutional and issued a permanent injunction which blocked its enforcement.

Late last week, we learned that the United States Court of Appeals for the 11th Circuit, in Atlanta, overturned Judge Cooke's injunction, which means the law can take full effect. You can read the complete 160 plus page decision and the dissent by Judge Charles R.Wilson here.

We hope that some of the groups that brought the initial lawsuit against this law will continue to seek to overturn it. The next stop for this would be the United States Supreme Court. We will continue to follow and report on new developments. 

The Jury is Out on New NYC Special Education Rules

Parents who place their children in private special education schools in New York City and seek to have their tuition payments either made directly by the public school system (Connors funding) or reimbursed to them (Carter funding), have long come up against a NYC Department of Education which has put up extensive procedural barriers to avoid making these payments. Even the Mayor's office noted, in a press release, "The special education placement process has been fraught with contention and litigation in recent years."

    

Now, in the face of a bill pending in the New York State legislature which would make it easier and quicker for families to receive public funding, the City has decided to remove the most onerous barriers faced by families seeking school funding and, according to a statement by NYC Mayor Bill de Blasio, is "...turning the page, making changes that will ease the burden on these parents [by] ... cutting red tape, speeding up the process, and reaching outcomes that do right by families.”  A 2012 bill which would have permitted funding in religious schools was vetoed by the Governor, but the current bill (which has been put on hold in light of this action by New York City) did not include this provision.


The specifics of the new policy are scheduled to be put in place by September of this year and include:

• Expedited Decisions: The City will now seek to reach a settlement with parents (in cases where settlement is appropriate) within 15 days of receiving notice from the parent of their intention to place their child in a private special education school.
• Ending Unnecessary Litigation: The City will no longer litigate cases which were settled or decided in prior years, or where the Department of Education fails to offer a school placement, except where there is a change in the kind of educational setting the student requires.
• Less Paperwork: Parents will no longer need to submit full documentation every year. The new requirement will be for documentation every three years.
• Quicker Payments: The City will make monthly payments where required by a school and give parents a payment schedule for other payments. 
• Payments Pending Appeals: Where parents have won a claim for tuition reimbursement which the City seeks to appeal, the City will pay the tuition while the appeal is pending.

Attorneys practicing in the area of special education are hopeful that these new policies mark an end to the very difficult relationship between the City and it's Department of Education and parents. Still, the devil is always in the details and families and the attorneys representing them are reserving judgement until they see how this new approach works in practice. 

Lawsuit Results in Fairer LSAT Accommodations

Thanks to our colleague, Jo Anne Simon, Esq., whose legal practice focuses on disability civil rights in high-stakes standardized testing and higher education, we have just learned of a Consent Decree from the United States District Court for the Northern District of California, which changes the rules for individuals with disabilities who seek accommodations to take the Law School Admission Test (LSAT).

We have written before about the Law School Admission Council (LSAC) and their refusal to comply with a survey of accommodation practices by the United States Government Accountability Office, as well as how the American Bar Association was urging the LSAC to end their practice of "flagging" scores of students who took the LSAT with disability accommodations. Flagging is the practice of annotating score reports of individuals who receive extended test time due to disability, something which the College Board (SAT, AP, and other exams) and the ACT folks have not used in the last ten years.

The Consent Decree is the result of a lawsuit brought by the California Department of Fair Employment and Housing, several individual students (represented by The Legal Aid Society - Employment Law Center), and the U.S. Department of Justice against the LSAC. Its terms are sweeping and include:

• An end to flagging of LSAT scores

• Creation of a panel of experts to establish "best practices" in handling accommodations, which the LSAC shall be required to implement
• Creation of a fund of almost seven million dollars to compensate individuals who were turned down for LSAT accommodations because of inappropriate requirements by the LSAC.

• Permitting many candidates to submit testing conducted within five years of the date of the request for testing accommodations, instead of within three years as currently required.

These changes are long overdue and should bring fundamental fairness to an exam that is a required by virtually every law school in the country. Anyone even thinking of applying to law school should read this decree in its entirety.

Photo credit: www.stockmonkeys.com via flickr

Compensatory Education

The Individuals with Disabilities Education Act (IDEA) specifically sets forth remedies for certain violations of student rights. For example, an IEE, an Independent Educational Evaluation, must be provided at public expense where a district fails to conduct a timely or complete evaluation of a student, or even when a parent simply disagrees with the findings of a school evaluation. Likewise, the IDEA includes the right to reimbursement of private school tuition for parentally placed students where the district has not provided a Free Appropriate Public Education (FAPE) and certain other conditions are met. However, there is no specific statutory remedy designed to aid students who have graduated high school or aged out of IDEA eligibility (generally at age 21) without receiving the educational services to which they were entitled by law.

For these students, the courts have utilized the equitable remedy (meaning that it was created by judges to right a wrong) of compensatory education. Compensatory education for younger students, who are still subject to the IDEA, comes into play when a school district has seriously deprived a student of the educational services he or she should have received. For example, a student with a learning disability whose district consistently refused to evaluate him could be awarded compensatory educational services by a hearing officer or court -- services such as summer tutoring, additional supports during the school year, or placement in a specialized school -- which are designed to "make up" for the school's failure to properly identify the student as one who needed IDEA services. 

But what about students who have already graduated from high school or aged out of eligibility for IDEA services?  As the U.S. Court of Appeals for the First Circuit has noted, “In order to give meaning to a disabled student’s right to an education between the ages of three and twenty-one, compensatory education must be available beyond a student’s twenty-first birthday. Otherwise, school districts simply could stop providing required services to older teenagers, relying on the Act's time-consuming review process to protect them from further obligations.”1

Federal Courts have found that the age of the student seeking "post graduation" compensatory services does not make a student ineligible for such services. As a federal court in Indiana noted, the fact that the student was “now 24 years old does not moot his case. The Court may award adult compensatory education if it is necessary and appropriate to cure a past violation of the IDEA.”2

The courts that first crafted this use of compensatory education built on the reasoning in cases that provided for tuition reimbursement under the predecessor statute to the IDEA, noting that, like retroactive tuition reimbursement, compensatory education required school districts to “belatedly pay expenses that [they] should have paid all along.”3

For students no longer covered by the IDEA - because they have graduated or have aged out of eligibility - compensatory education can take the form of post-secondary education, requiring payment for a student who had already graduated high school to attend a reading program at a college for students with learning disabilities. It has also been used to  require a school district to provide annual reevaluations and annual IEPs for a student over the age of 21. However, it is generally available only where there has been a gross deprivation of a student's rights. It is not an easy remedy to obtain and cannot really compensate for having an appropriate education during the years prior to graduation.


Photo credit: Janet Lindenmuth/Creative Commons

[1] Phil v. Mass. Dep’t of Educ., 9 F.3d 184 (1st Cir. 1993)

[2] Brett v. Goshen Community Sch. Corp., 161 F. Supp. 2d 930 (N.D. Ind. 2001)

[3] 800 F.2d 749, 754 (8th Cir. 1986).

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

When Must School Districts Pay for Evaluations?

Parents sometimes ask us if they can have their school district pay for their child's evaluation at The Yellin Center. The simple answer is "maybe, under certain circumstances," and we thought it might be helpful to explain the laws and regulations that govern this area.

The Individuals with Disabilities Education Act (IDEA) recognizes that an evaluation of a student in all suspected areas of disability is a crucial first step to determining whether that student is eligible for IDEA services and what kind of services will help that student to succeed in school. In fact, the "clock begins to run" with respect to the time limits set forth in the IDEA only once the parent consents to an evaluation of the student. The law anticipates that the school will then conduct an evaluation of the child and share the results with the parents and the IEP team, the committee that creates the student's Individualized Education Program. 

It's Our City

In many situations, this works out well for all concerned. The school district conducts an evaluation at no cost to the family; the findings make sense to the parents; the findings are incorporated into the student's IEP; and nothing more needs to be done. 

However, sometimes families do not agree with the findings of the school district evaluators and feel there may be something more going on with their child. Sometimes parents have had a long history of difficulties with the school and simply do not trust them to do an evaluation. Some parents of children enrolled in a private school do not want to have to work with the local public school district (especially in New York City). And, quite often, parents want the kind of in-depth, multi-disciplinary kind of evaluation done here at The Yellin Center, rather than a more "cookie-cutter" series of tests given by their school's evaluators. In each of these situations, the parents seek an Independent Educational Evaluation (IEE) such as the ones we conduct here at The Yellin Center.

Before we look at specific rules and scenarios, we need to emphasize one important point. Parents have the absolute right to have their child independently evaluated and federal law requires that the public school district must consider the results of such evaluation. Dr. Yellin and his team frequently attend IEP meetings (via phone or other technology) to discuss the results of our evaluations and have been universally well-received by schools. However, the law does not require that districts follow the recommendations of our reports (or any outside evaluator).

So, when can a parent have a district pay for an IEE? 

1. The parent must disagree with the evaluation conducted by the district or consider it inadequate and notify the district of their intention to obtain an IEE.
2. The district must then either file for a due process hearing with a State Hearing Officer or agree to pay for the IEE.
3. The district can set criteria for the IEE's they will fund -- how much they cost, the geographic location of the evaluator(s), and the specific qualifications of the evaluator(s). However, the U.S. Department of Education notes that, "the district must allow parents the opportunity to demonstrate that unique circumstances justify an IEE that does not fall within the district's criteria. If an IEE that falls outside the district's criteria is justified by the child's unique circumstances, that IEE must be publicly funded." So, even if your district tells you that you are restricted to using the private evaluators on a list they provide, that is not strictly correct and you can and should push back to obtain the services of the evaluator you choose. 
4. An IEE can also be ordered by a State Hearing Officer as part of a due process hearing when aspects of an IEP are in dispute. 

We also encounter situations where a district paid evaluation at The Yellin Center is part of an ongoing discussion between a family and a school district, especially when the district has not been successful in addressing a child's educational needs. And families need to keep in mind that The Yellin Center has always had a sliding scale for families who need assistance in paying for our services. 

There are countless resources available to explain this process to parents and school administrators, but some you might find useful are:

• For New Jersey familes, a memo from the New Jersey Department of Education, with a list of Frequently Asked Questions about IEEs.
• From the U.S. Department of Education, a memo discussing why districts cannot set absolute cost limits on IEEs and a link to a number of other memos discussing other aspects of the IEE funding process.
• For a review of court cases that have dealt with the IEE issue, a law review survey of cases by Perry Zirkel.

Getting IDEA Services Takes Time

Josh K

Several parents have asked us recently how long it will take to get their child special education services from their public school district. The law is clear as to the timelines that apply to this process; however, when these timelines are not followed, it can be frustrating for families whose child is about to begin a new school year or is struggling during an ongoing year.

The IDEA (Individuals with Disabilities Education Act), which sets the federal standards for special education services, links the time frame for providing services to the evaluation of the student and provides a deadline for students who are undergoing an initial evaluation. It states that the evaluation process must be undertaken "within 60 days after receiving parental consent for the evaluation," but allows states to determine their own time limits.

New York law requires that the evaluation of a student be conducted and (if the student is found to be eligible for special education services) that "appropriate special education programs and services ... be provided to the student with a disability within 60 school days of the receipt of consent to evaluate." The same time frame applies to re-evaluation. And what are school days? The New York regulations define them as "any day, including a partial day, that students are in attendance at school for instructional purposes... except that, during the months of July and August, school day means every day except Saturday, Sunday and legal holidays."

New Jersey allows for 90 days between the initial referral for special education and the implementation of services, which is illustrated in this linked chart. Connecticut moves more quickly, requiring that services be implemented within 45 days after receiving a referral form.

Even families who have obtained Independent Educational Evaluations (IEEs) such as those conducted by practices like The Yellin Center need to consent to the evaluation process to get the ball rolling for their child. The school district must consider the IEE but will almost always want to assess the student themselves in specific areas. We generally advise families not to waste time arguing with their school about this. Let them conduct their own assessment if they wish to, but make sure they are aware of the IEE, since some test instruments can only be given at certain intervals or will be invalid. There are numerous test instruments available, so another one can be selected.

We know from experience that the deadlines that states set for evaluation and implementation of services aren't always followed. Especially here in New York City, there can be significant backlogs in school district evaluations and getting anything done in the summer is quite difficult in some districts. However, legal recourse also takes time and parents often have no practical solution but to be persistent in making sure that the process of getting services is moving along according to legally mandated timetables.We wish we had an easy answer, but at this point can only urge parents to move ahead promptly when they are seeking special education services for their child, since the process can be a slow one.

Interim Changes to an IEP

Parents of students receiving services under the Individuals with Disabilities Education Act are generally familiar with the annual review process. This is a meeting that takes place each year, usually in the spring, which reviews the student's progress under his or her Individualized Education Program (IEP) and sets forth the plan for the coming school year -- services to be provided, goals to be met, and how and where the student will be educated. Every three years this review becomes a "triennial" and includes a re-evaluation of the student's level of performance and academic functioning.

Parents who have worked with this system for a number of years know that the annual or triennial review is the time to bring up concerns and seek different or additional services. This is a time when they are a mandated part of the team that decides how their child will be educated and the other folks around the table usually are those who know their child best -- classroom teacher, special education teacher, school psychologist, and others.

But what parents sometimes do not know is that the IEP that emerges from the annual review is not etched in stone and the requirement for an annual review is a legal minimum, not a maximum. So, parents and schools can seek a new meeting at any time. Furthermore, changes to an IEP can be made without the need for a meeting. The IDEA specifically provides:

Section 614(d)(3)(D) Agreement.--In making changes to a child's IEP after the annual IEP meeting for a school year, the parent of a child with a disability and the local educational agency [the school district] may agree not to convene an IEP meeting for the purposes of making such changes, and instead may develop a written document to amend or modify the child's current IEP.

The regulations which amplify the law, further go on to state:

Section 300.324(a)(4) (ii) - If changes are made to the child's IEP in accordance with paragraph (a)(4)(i) of this section, the public agency must ensure that the child's IEP Team is informed of those changes.

So, parents should keep in mind that they have options if they are not happy with how things are going under their child's IEP. They can contact the head of their IEP Team, raise their concerns, and if agreement can be reached, the IEP can be modified without need for another meeting. If that does not work, they can seek another meeting of the IEP Team, even if they are not "due" for another annual meeting, and bring their issues to the full IEP team. It's their right to do so.

Planning to Protect Your Children's Future

This week is National Estate Planning Awareness Week. It's a good time for all parents, especially parents of children with learning and other challenges, to think about whether they have taken the steps necessary to ensure their children's future -- financial and otherwise.

It helps to understand what happens when parents don't have wills. In the event that both parents die by an untimely accident or illness that leaves behind minor children, a court will award custody of the children based on "the best interests of the child." The preference of the parents for one family member over another, for example, won't be clearly known to the court that makes this decision. In addition, any funds left behind by the parents (savings, investments, life insurance, or proceeds of a "wrongful death" lawsuit) will be placed in a trust by the court, to be administered according to state law and to be released in full to the child when he or she attains majority, usually at age 18. Only children with the most significant disabilities will have their funds placed in a trust that is administered by a court-appointed trustee. A child with significant special needs who may be receiving benefits from a state or federal agency will lose those benefits that are income based, at least so long as the money left behind by the parent lasts.

In contrast, parents who have sat down and thought about their children's future and who have put in place a plan for what will happen after they are no longer around can take important steps to protect their children and make sure they will have access to their legacy in the most effective and helpful ways.

First, parents can name a guardian for their minor children and for children with significant disabilities who will be in need of guardianship as adults. While this instruction from parents is not controlling on the court administering the parent's estate (see the "best interests of the child" standard mentioned above), it can go a long way to influencing the naming of a guardian, particularly when parents set forth their reason for their decision.

Second, parents can create trusts to hold the assets which will be available to help support their children. These trusts can be set up during the parents' lifetime or, more commonly, in their wills. They can specify how assets are to be spent, at what age(s) their children will receive some or all of the principal of the trust, and who will control the trust purse strings and make necessary financial decisions during the term of the trust.

Most children will reach an age -- 21, 25, 30 -- when they have sufficient judgment and maturity to manage the assets in their trust. But other children will be unable to handle their own finances in any way, especially the significant sums that may have been left to them in a trust. This situation can arise when a child has significant physical or cognitive disabilities, emotional difficulties that impair judgment, or is addicted to drugs, alcohol or gambling. The situation will be different for each family, but parents will know which children fall into this category. For these children, a trust may need to last through their lifetime. And, for children with special needs who are receiving government benefits, parents need to work with a skilled financial planner or special needs attorney who can help set up a trust, generally called a Special or Supplemental Needs Trust, that will ensure that their child can continue to receive their benefits, while being able to supplement the limited categories of items that such benefits cover by providing funds for such items as housing, travel, and education.

After years of legal practice, your blogger has learned not to be surprised at how many parents of young children don't have wills. Often writing a will is something they plan to do, but just haven't gotten around to yet. Sometimes, they can't agree on who should be named as a guardian of their minor children and put off this contentious decision by avoiding writing a will. Planning for the future by writing a will is something that all parents, particularly parents of children with special needs, need to make a priority.

Photo: Jeremy Koren

Extended School Year

As the academic year moves along, many students are beginning to think ahead to summer and to a break from school. Even though the weeks of vacation can mean that the first part of the following year will include a review of skills that got a bit rusty over the summer, this isn't a major issue for the vast majority of students. 

For some students who are receiving services under the Individuals with Disabilities Education Act (IDEA) however, the summer break may pose a significant challenge to fragile educational progress. For these students, an extended school year (ESY) may be the solution. The IDEA is silent about extended school year services, but the subject is dealt with in the regulations that implement the law. These are quite general, and simply note that such services should be provided if the child's IEP team determines that they are necessary for that student to receive a Free Appropriate Public Education (FAPE). The regulations further note that such services should not be limited to any particular classification of disability or to any type of services.

Our colleagues at the Wrightslaw website have recently addressed this issue and note that the criteria for an extended school year vary from state to state. Here in New York, for example, extended school year services, sometimes called 12 month services, can be provided by an IEP team only "to prevent substantial regression. Substantial regression would be indicated by a student’s inability to maintain developmental levels due to a loss of skill, set of skill competencies or knowledge during the months of July and August." Other states have different standards, so the first step to deciding whether to seek an extended school year should be to check the specific laws and rules that apply to your state. For most students with learning difficulties, an extended school year is neither necessary nor obtainable from the public school system. This doesn't mean that students can't work on their academic skills in summer school programs, at camp, or otherwise -- just that such educational services will not be formally provided and paid for by the public school district.

Photo: Stephanie Precourt/Flickr Creative Commons

School Law Institute

Yesterday's annual School Law Institute, sponsored by the Practicing Law Institute, covered a number of topics of interest to the attorneys, advocates, and school employees in attendence -- and should be of interest to parents as well. Not covered by the program, but very much a feature of the day, was the new format in which the conference was conducted, with each participant having an iPad at their seat, set up to provide the course materials, PowerPoint presentations, and course evaluations at the touch of a button. This is the kind of experience some of our children have in their iPad powered classrooms, and it was fascinating to see how this group of professionals, who ranged from their twenties through grey-haired seniors, handled this technology.

One topic covered at length was manifestation determination, the process by which a school is required to look at a student facing long term suspension (10 days or more, or a combination of shorter suspensions which add up to ten days or more) to determine if the student's conduct is connected to a disability. For example, if a student who has been classified as having an emotional disturbance and has an IEP in place is facing a suspension for fighting, the school is required to convene a meeting to determine whether the student's behavior was a manifestation of his disabilty. If so, his IEP team needs to immediately put in place appropriate measures to address this problem behavior and set up a behavioral intervention plan (or modify the one he may already have), so that the issues that triggered the fighting are included. This does not mean that students with IEPs cannot get suspended from school. Just that before that happens, the school needs to take a look at the student's disability and determine whether his IEP is doing a sufficient job of helping the student to deal with his areas of difficulty. These rules apply to public, charter, and state approved non-public schools, but not to other private schools.

Another presentation, by former Executive Director of Advocates for Children of New York, Elisa Hyman, Esq. focused on the disparities in how affluent families and those without means fare when dealing with the Individuals with Disabilities Education Act. It is more difficult for families who do not speak English, who do not know how to go about finding legal representation, or who cannot lay out tuition for a private school to avail themselves of the benefits of the IDEA. Ms. Hyman and her colleagues are working to use the attorney fee provisions of the IDEA to obtain services and an appropriate education for students who might not otherwise receive the free, appropriate, publicly funded education contemplated by the law.

Photo: Steven Depolo/Flickr Creative Commons