Special Education & Collaborative Advocacy: Community Education Presentation

The Collaborative Advocacy Approach to SpEd under IDEA

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• An IEP is “[A] comprehensive plan prepared by a child’s ‘IEP Team’ (which includes teachers, school officials, and the child’s parents), an IEP must be drafted in compliance with a detailed set of procedures. 20 U.S.C. §1414(d)(1)(B). These procedures emphasize collaboration among parents and educators and require careful consideration of the child’s individual circumstances." �Endrew F. v. Douglas County Sch. Dist. RE-1 (2017) ___U.S.___ [137 S.Ct. 988, 994, 197 L.Ed.2d 335, 344]; citing 20 U.S.C. §1414 (emphasis added).
• The IEP process anticipates the application of expertise and the exercise of judgment by school authorities; and further that parents and school representatives will collaborate regarding their respective opinions on the degree of progress a child's IEP should pursue. �20 U.S.C. §§ 1414; 1415.  

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The �Collaborative �Advocacy Approach to SpEd under IDEA

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• Families and students should be active participants in the IEP process, contributing information about the child. For optimal IEP formation and implementation, students and parents are familiar with their rights under IDEA. Don't forget the student.
• Parents have procedural rights to participation and informed IEP consent. 20 USC §1400(c)(5)B); 1414§(a)(1)(D); 1414 § (b)(4)(A); 34 C.F.R. § 300.306(a)(1). "Among the most important procedural safeguards are those that protect the parents’ right to be involved in the development of their child’s educational plan. Parents not only represent the best interests of their child in the IEP development process, they also provide information about the child critical to developing a comprehensive IEP and which only they are in a position to know.” Amanda J. v. Clark County School, 267 F.3d 877, at 882 (9th Cir. 2001) (emphasis added).
• The law requires that Special educators, Therapists and District members of the IEP Team have the expertise necessary to allow review and scrutiny of the education and related services that are appropriate to meet the child's unique needs.

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The Collaborative Advocacy Approach to SpEd under IDEA� Updated to Remedy COVID Learning Loss

US DOE OSERS: �September 30, 2021 Guidance�Return to School Roadmap: Development and Implementation of IEPs in the LRE (Least Restrictive Environment) under the IDEA

• Urges importance of IEP meetings and collaboration amongst schools, teachers, related service personnel, students, and families – to identify present levels and address recoupment for COVID learning loss in the IEP where all of the members of the IEP Team believe this may be appropriate, this includes some strategies/tools customarily only available on initiation of a dispute.

United States Department of Education Office of Special Education Programs (OSEP) Guidance on IEP Challenges

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Parents and Districts should work collaboratively to resolve disagreements that may occur when working to provide a positive educational experience for all children, including children with disabilities. 

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IEP Team Collaboration to ensure Access to FAPE �

• Call an IEP Team Meeting to discuss concerns.
• District will hold an IEP within 30 days. 
• Gather materials to support your concerns: e.g. evaluations; IEP progress reports; work samples; report cards; or share new information updated assessments. 
• Ask educators at meeting to apply their expertise to the issue you are monitoring based on your child's unique circumstances.
• IEP Team decision requires collaboration and thoughtfulness about a student's unique needs.

What is a collaborative approach to addressing concerns regarding implementation of my Child’s IEP ?

The Collaborative Advocacy Approach to SpEd: Section 504

• Section 504 Placement procedures: "In interpreting evaluation data and in making placement decisions, a recipient shall (1) draw upon information from a variety of sources, including aptitude and achievement tests, teacher recommendations, physical condition, social or cultural background, and adaptive behavior, (2) establish procedures to ensure that information obtained from all such sources is documented and carefully considered, (3) ensure that the placement decision is made by a group of persons, including persons knowledgeable about the child, the meaning of the evaluation data, and the placement options, and (4) ensure that the placement decision is made in conformity with § 104.34." 34 C.F.R. § 104.35 (emphasis added)

The �Collaborative Advocacy �Approach to SpEd: Section 504

• Because the Office of Civil Rights interprets Section 504 and its regulations to require parent consent for evaluation and placement, parent participation in the 504 process is vital.
• As a best practice, districts largely include students and parents in Section 504 Plan meetings. Protecting Students With Disabilities�Frequently Asked Questions About Section 504 and the Education of Children with Disabilities. OCR   (www.2.ed.gov/about/offices/list/ocr/504faq.html, last visited 2.27.2022)

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�Special �Education and related laws:�IDEA �

• Individuals with Disabilities Education Act (IDEA) entitles students with a qualifying disability who by reason of the disability require special education and related services to a free and appropriate public education (FAPE) implemented through an IEP. 20 USC § 1400 et seq. Cal. Ed. Code, §§ 56000(a), 56026 (a)–(d), 56303
• "A FAPE includes special education and related services that conform to the curriculum standards set by the state. It must also conform with each student's Individualized Education Plan ("IEP"). 20 U.S.C. § 1401(9). Special education is 'specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability. 20 U.S.C. § 1401(29).'" J.R. v. Oxnard Sch. Dist. (C.D.Cal. July 30, 2019, No. LA CV17-04304 JAK (FFMx)) 2019 U.S.Dist.LEXIS 161104, at *7.

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Special Education and related laws: Section 504 of the Rehabilitation Act of 1973

• Section 504 of the Rehabilitation Act of 1973 (Section 504) is an anti-discrimination law that applies to entities that receive federal funding or assistance, including schools. 29 U.S.C. § 794
• Pursuant to Federal Regulations, in the K-12 school setting, Section 504 entitles a student with a disability that limits a major life function (walking, breathing, learning, etc.) to FAPE implemented through a Section 504 Plan. 34 C.F.R. § 104.33 (b)(1)(i). 
• Under 504, FAPE is an education comparable to what is provided to students without disabilities. 34 C.F.R. § 104.33. 
• Not all students protected from discrimination under Section 504 are covered by its FAPE/504 Plan provisions. Section 504 also protects individuals with "... a record of such an impairment" or who are " regarded as having such an impairment." 34 C.F.R. § 104.3 
• An IEP pursuant to IDEA satisfies the requirements of 34 C.F.R. § 104.33(b)(1)(i). 34 C.F.R § 104.33 (b)(2)

IDEA/504 Compared

• IDEA is an education law requiring establishment of two elements for entitlement: The student is a person with one of the 13 qualifying disabilities and by reason of the disability the child requires special education and related services. It is not an anti-discrimination statute.

• Section 504 is an antidiscrimination law that protects a student if they have "a physical or mental impairment which substantially limits one or more major life activities, (ii) ... a record of such an impairment, or (iii) …[are] regarded as having such an impairment."  
• Accommodations and certain related services are typically the elements an IEP and Section 504 Plan have in common.
• IEP entitled students have anti-discrimination rights under Section 504.

Overview of the IDEA

• To assist in educating children with disabilities, the Individuals with Disabilities Education Act (IDEA) provides States with federal funding. To access the funding States through Special Education Local Plan Areas (SELPAs) and Local Education Plan Areas (LEAs, which are typically school districts)  must provide every eligible child a free appropriate public education, (FAPE) by means of a uniquely tailored individualized education program (IEP). 20 U. S. C. §§1401(9)(D), 1412(a)(1).

IEP Assessment

• IDEA requires a LEA to ensure that a student is assessed in all areas of suspected disability. 20 U.S.C. § 1414(b)(3)(B).

IDEA Eligibility

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• IDEA requires two elements for a student to qualify for an IEP: 1) Establishment of at least one of the 13 qualifying disabilities (e.g., Specific Learning Disability (SLD), Other Health Impaired (OHI), etc.) + 2) By reason of the disability, the child requires special education and related services. 20 U.S.C. § 1401(3); 34 C.F.R. § 300.8; Cal. Educ. Code § 56026(a)-(b); 5 C.C.R. § 3030. 

IEP Eligibility: Element 1- �at least one of the�13 qualifying disabilities is established

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• The 13 qualifying disabilities under the IDEA are: 
• Autism Spectrum Disorder (ASD)
• Deaf-Blindness
• Deafness
• Emotional Disturbance (ED)
• Hearing Impairment
• Intellectual Disability (ID)
• Multiple Disabilities
• Orthopedic Impairment (OI)
• Other Health Impairment (OHI)
• Specific Learning Disability (SLD)
• Speech or Language Impairment (SLI)
• Traumatic Brain Injury (TBI)
• Visual Impairment, including Blindness (VI)

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IEP Eligibility: Element 2, By reason of the disability the child requires SpEd and related services

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In California, depending on the disability, the second element may be shown by the following depending on the circumstances : 

The disability adversely affects educational performance/access to educational benefit.

Pattern of Strengths and Weaknesses.

Failed Response to Intervention such as a Student Study Team (SST), etc.

A severe discrepancy between cognitive ability and academic performance – the discrepancy model; 22.5 points or more but must not rule out eligibility if significant discrepancy does not exist and must not use significant discrepancy as the only means of qualification.�See: 20 U.S.C. § 1401(3); 24 C.F.R § 300.8; 5 C.C.R. § 3030; Cal Ed. Code §§ 5633;56336-38 ; 56339;56845.2

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IEP Eligibility Exceptions

Cal. Educ. Code § 56026(e): Eligibility Exceptions

• Even if a student meets the criteria, they may not be eligible for special education services if the primary reason for meeting the criteria is:
• 1. Lack of appropriate instruction in reading/math
• 2. Limited English proficiency
• 3. Temporary physical disability
• 4. Social maladjustment
• 5. Environmental, cultural, or economic factors.

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IDEA's Purpose:�FAPE

• To provide FAPE, an IEP should provide special education and related services designed to meet a student’s unique needs and provide preparation for future education, employment and independent living. 20 U.S.C. §1400 (d)(1)(emphasis added). 

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IDEA FAPE components: SpEd and Related Services

• FAPE is implemented through appropriate  special education and related services offered in the form of an IEP. 20 U.S.C. §1401(9)(D).
•  Special education is “specially designed instruction . . . to meet the unique needs of a child with a disability." 20 U.S.C. §1401(26).
•  Related services  are services “required to assist a child . . . to benefit from” special education. 20 U.S.C. §1401(29).  

US Supreme Court Review of FAPE �Standard in �Endrew F. (2017)

• "For a child fully integrated in the regular classroom, an IEP typically should be 'reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.'" Endrew F. v. Douglas County Sch. Dist. RE-1 (2017) ___U.S.___ [137 S.Ct. 988, 992, 197 L.Ed.2d 335, 342]; citing Bd. of Educ. v. Rowley 458 U. S., 176 at 204, 102 S. Ct. 3034, 73 L. Ed. 2d 690.
• "A child's IEP need not aim for grade-level advancement if that is not a reasonable prospect. But that child's educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives." Endrew F. v. Douglas County Sch. Dist. RE-1 (2017) ___U.S.___ [137 S.Ct. 988, 992, 197 L.Ed.2d 335, 342].���

US Supreme Court's Establishment of �IDEA �FAPE �Standard�Endrew F. (2017)

•  To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. Endrew F. v. Douglas Cnty. Sch. Dist. RE-1 (2017) ___U.S.___ [137 S.Ct. 988, 999, 197 L.Ed.2d 335, 349].�

Endrew F (2017): FAPE Standard Applied

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• "Integration in the regular classroom and individualized special education calculated to achieve advancement from grade to grade" will provide FAPE for most children. Endrew F. v. Douglas County Sch. Dist. RE-1 (2017) ___U.S.___ [137 S.Ct. 988, 999-1000, 197 L.Ed.2d 335, 350-351].)
• If it is "not a reasonable prospect for a child [to progress smoothy in the general ed curriculum], his IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives. Endrew F. v. Douglas County Sch. Dist. RE-1 (2017) ___U.S.___ [137 S.Ct. 988, 1000, 197 L.Ed.2d 335, 351].�

IEP: FAPE Standard�Implemented

•  "FAPE is implemented through an IEP in which special education and related services are 'tailored to the unique needs' of the individual student." Endrew F. v. Douglas County Sch. Dist. RE-1 (2017) ___U.S.___ [137 S.Ct. 988, 994, 197 L.Ed.2d 335, 344], citing Rowley, 458 U. S., at 181, 102 S. Ct. 3034, 73 L. Ed. 2d 690.
• "The IDEA requires that every IEP include 'a statement of the child’s present levels of academic achievement and functional performance,' describe 'how the child’s disability affects the child’s involvement and progress in the general education curriculum,' and set out 'measurable annual goals, including academic and functional goals,' along with a 'description of how the child’s progress toward meeting' those goals will be gauged. §§1414(d)(1)(A)(i)(I)-(III). The IEP must also describe the 'special education and related services . . . that will be provided' so that the child may 'advance appropriately toward attaining the annual goals' and, when possible, 'be involved in and make progress in the general education curriculum.'" Endrew F. v. Douglas County Sch. Dist. RE-1 (2017) ___U.S.___ [137 S.Ct. 988, 994, 197 L.Ed.2d 335, 344], citing, 20 U.S.C §1414(d)(1)(A)(i)(IV)) (emphasis added).�

IEP Goals

• Goals should be ambitiously challenging, but attainable. Baselines should be stated. In addition, if a California state standard or alternative curriculum is checked under the IEP goal, the state standard number should be cited. 20 U.S.C. § 1414(d)(A)(I)(I) & (II); CA EC 56345(a)(1), (2), and (3). 

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Parent/�Student Tip: �Understand Present Levels/�Baselines and State or Appropriate Curriculum Standard

IEP Goals

•  Understand present levels and  baselines.
• Tied to appropriate state or curriculum standard where relevant.

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Parent/�Student Tip: �Review and Retain the Progress �Reports the District �prepares 

Progress Reports 

•  Provide a Measure of how the IEP is working. 
• May provide comfort that the IEP is being implemented appropriately. 
• May signal an adjustment to the IEP is necessary.

Offer of FAPE: Least Restrictive Environment

• The IEP Team's determination with respect to the Least Restrictive Environment along the continuum of alternative placements should be stated at the beginning of the Offer of FAPE. Students with disabilities are to be educated in the general education setting to the greatest extent possible unless it is determined that they cannot access their education in this setting with appropriate supplementary aids and services. 20 U.S.C. § 1412(a)(5)(A). Placement must be in the least restrictive environment (LRE) along a continuum of alternative placements ranging from the least restrictive- General Education with Resource Specialist (RSP) type support- to the most restrictive- home teaching placement. 20 U.S.C. § 1400(d)(1)(A); 34 C.F.R. § 300.115(a) 

Offer of FAPE:�Accommodations

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Offer of FAPE Accommodations 

• An IEP must include a statement of the supplementary aids, services, and accommodations necessary to allow the student to advance appropriately toward attaining the annual goals, to be involved in and make progress in the general education curriculum, to participate in extracurricular and other nonacademic activities; and a statement of any individual appropriate accommodations that are necessary to measure the academic achievement and functional performance of the child on State and districtwide assessments. 20 U.S.C.S. § 1414(d)(1)(A)(IV) &(VI)(aa) CA EC 56345(a)(4).

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Offer of FAPE:�Other Supports and Services/�Services and Supports

Offer of FAPE Other Supports and Services 

• An IEP must include a statement of the program modifications or supports for school personnel that will be provided for the child (e.g. consult). 20 U.S.C. § 1414(d)(1)(A)(IV).

Offer of FAPE IEP Services and Supports Minutes 

• An IEP must include a statement of the special education and related services and supplementary aids and services, based on peer-reviewed research to be provided to the child. 20 U.S.C. § 1414(d)(1)(A)(IV).

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Offer of FAPE: Extended School Year 

ESY: California Code of Regulations Section 3043

• Extended school year services shall be provided, in accordance with 34 C.F.R. Section 300.106 [(United State Code of Regulations)], for each individual with exceptional needs who has unique needs and requires special education and related services in excess of the regular academic year. Such individuals shall have disabilities which are likely to continue indefinitely or for a prolonged period, and interruption of the pupil’s educational programming may cause regression when coupled with limited recoupment capacity, rendering it impossible or unlikely that the pupil will attain the level of self-sufficiency and independence that would otherwise be expected in view of his or her disabling condition. (emphasis added).
• Data on regression and recoupment and documented memory challenges are considered on this inquiry. 

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Settings Page 

Settings Page Information Highlights

• Percentage of time in and out of SpEd
• Promotion Criteria
• Frequency of Progress Reporting.

Overview of Relevant Laws: Section 504

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• 29 USC 794(a) (SECTION 504)  Promulgation of rules and regulations. No otherwise qualified individual with a disability in the United States, as defined in section 7(20) [29 USCS § 705(20)], 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 or under any program or activity conducted by any Executive agency or by the United States Postal Service. The head of each such agency shall promulgate such regulations as may be necessary to carry out the amendments to this section made by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978. Copies of any proposed regulation shall be submitted to appropriate authorizing committees of the Congress, and such regulation may take effect no earlier than the thirtieth day after the date on which such regulation is so submitted to such committees.
• (b) “Program or activity” defined. For the purposes of this section, the term “program or activity” means all of the operations of—...
• (2) (B) a local educational agency (as defined in section 8101 of the Elementary and Secondary Education Act of 1965 [20 USCS § 7801]), system of career and technical education, or other school system;...

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Overview of Relevant Laws: Section 504

• Section 504 is an anti-discrimination law that applies to entities receiving federal financial assistance. 
• The FAPE provisions are different than those established by IDEA and are implemented in the K-12 context through the regulations at 34 C.F.R. § § 104.33- 104.36 requiring a free and appropriate public education, which is implemented through a Section 504 Plan or an IEP. State law and Office of Civil Rights guidance also apply see: Frequently Asked Questions About Section 504 and the Education of Children with Disabilities  (www.2.ed.gov/about/offices/list/ocr/504faq.html Last visited February 27, 2022)

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Eligibility 504

34 C.F.R. § 104.3  (emphasis added)

(1)  A person with a disability under Section 504 is "any person who (i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment. 

(2) (i) Physical or mental impairment means (A) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genito-urinary; hemic and lymphatic; skin; and endocrine; or (B) any mental or psychological disorder, such as intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities. 

2 (ii) Major life activities means functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 

2 (iii) Has a record of such an impairment means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities. 

2(iv) Is regarded as having an impairment means (A) has a physical or mental impairment that does not substantially limit major life activities but that is treated by a recipient as constituting such a limitation; (B) has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or (C) has none of the impairments defined in paragraph (j)(2)(i) of this section but is treated by a recipient as having such an impairment.

 Section 504 Assessment

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34 CFR 104.35 Evaluation Procedures 

• The preplacement evaluation requirement of Section 504 requires notice and the use of fair assessments.
• "The Section 504 regulatory provision at 34 C.F.R. 104.35(b) requires school districts to individually evaluate a student before classifying the student as having a disability or providing the student with special education." Protecting Students With Disabilities. Frequently Asked Questions About Section 504 and the Education of Children with Disabilities. OCR (www.2.ed.gov/about/offices/list/ocr/504faq.html Last visited 2/27/2022.)
• Diagnosis alone is not sufficient to entitle a student to a 504 but will protect the child from discrimination.

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 Section 504 Assessment

•  If IDEA evaluations determine that a child with an established qualifying disability under IDEA does not require special education and related services as a result of that disability, the need for a 504 Plan is not automatically established. The inquiry focuses on whether the disability is determined to substantially limit one or more major life activities- e.g. caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working, among others, but importantly is not limited to learning. 
• If the answer is yes, a 504 Plan must be established. 

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Section 504 FAPE

• FAPE under Section 504 is: " the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs..." of students with disabilities "...as adequately as the needs of..."  students without disabilities "...and (ii) are based upon adherence to procedures that satisfy the requirements of §§ 104.34, 104.35, and 104.36." 34 C.F.R. § 104.33 

Section 504 Meetings

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No Expiration Date

• 504 Plans do not expire. The outstanding 504 Plan remains intact until a replacement has been developed at an annual meeting. 

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Parent/�Student Final Tip: IEP and 504�Implementation Student Self Advocacy�

Self-Advocacy 

• We all benefit from knowing and understanding what makes us unique, including our strengths and challenges. A student's participation in their education plan meeting, even if only for minutes when young, starts this process with respect to one of the most important opportunities in a child's life- the right learn. Understanding how and what accommodations they need to learn increases the chance the law's FAPE promise is realized.

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Questions?