Instead of posting another blog on special education issues, I am choosing instead to wish everyone a very happy holiday and a healthy and safe New Year. Let the New Year bring success and progress for
all children with disabilities.
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Instead of posting another blog on special education issues, I am choosing instead to wish everyone a very happy holiday and a healthy and safe New Year. Let the New Year bring success and progress for
all children with disabilities.
I have attended two IEP meetings within the past week. Both of them very different from each other. One involved a second grade student diagnosed with ADHD, Bipolar Disorder, Adjustment and Conduct Disorders. This student was recently identified and determined eligible for special education and related services. The other child is a 10th grade student diagnosed with Autism, Intellectual Disability and Speech Impairment. He had been in special education most of his life. The child is nonverbal and has limited self-help, independent living skills, social skills, and toileting skills. The approaches for these two children – in terms of setting goals and objectives and relating services – were very different. But the ultimate goal is to develop an IEP for each child that provided educational benefits and a free appropriate public education.
Each IEP meeting has its own dynamics. For the child with ADHD, the school system had served him under a Section 504 Plan. The plan was inadequate to address this child’s behavioral challenges and deficits in reading fluency among other things. The school system had unduly delayed identifying and evaluating the child for special education under the IDEA. The psychoeducational evaluation conducted by the school was inappropriate. There was no occupational therapy or assistive technology evaluation conducted. The child was determined eligible for special education and related services under the category of Other Health Impaired and Emotionally Behaviorally Disordered. At the IEP meeting, the team focused mostly on the child’s challenging physical and verbal aggression and behaviors. The school system had conducted a perfunctory functional behavioral assessment and behavior intervention plan for the child while he was served by a Section 504 plan. It was incumbent to request an independent educational evaluation for the child because the school’s evaluation was inappropriate. It was also necessary to secure an appropriate functional behavioral assessment so that a proper behavior intervention plan could be developed and implemented. There were about ten educators at the IEP meeting but only the special education director and a couple of other staff spoke during the meeting. The challenge in this situation is get the special education director to facilitate other staff to contribute to the child’s IEP. We made some progress on this front. However, the special education director was clearly leading the meeting and making most of the suggestions and proposals for the child’s IEP, including goals, objectives, services, and placement. The legal guardian of the child, who was not the parent, did not have much knowledge of special education laws so my role was more of an advocate for the child. It is usually better when the parent or guardian is vocal and assert their concerns about the child’s educational programming. In absence of an active parent or guardian, a special education attorney’s role is more pronounced and weighty.
My other random thoughts on special education law concern the 10th grade student with autism and intellectual disability. The mother, who was savvy but relatively quiet at the meeting, had a number of serious concerns about her child’s IEP and its implementation. There were able a dozen school staff, including occupational, speech and language, assistive technology, and vocational specialists. In fact, a representative from the Department of Vocational Rehabilitation attended the IEP meeting which is quite unusual. The parent invited an educational advocate to the meeting who had more than 25 years of teaching experience with children with autism and severe disabilities. Working in tandem with an experienced educational advocate is important so that everyone is on the same page in securing appropriate services for the child. We addressed all aspects of the IEP for the child. Some changes were made in the goals and objectives. The transition plan was modified to address more of the child’s prevocational needs. The primary parental concerns of communication, self-help and independent life skills, especially toileting, vocational and behavioral challenges were properly addressed at the IEP meeting. Most of the members of the IEP team were active and vocal in expressing their concerns and suggestions. The parent’s primary concerns were addressed but still she feared because of past experiences with the school that the revised IEP services would not be implemented. It is true that you can develop a great IEP on paper, but if it is not implemented properly it fails to provide an educational benefit for the child. To insure an IEP is properly implemented takes a great deal of effort by both the parents and school system. For ideas how to monitor an IEP and its implemented, see http://www.wrightlaw.com.
What are Damages?
When a court awards damages, whether it be in a case involving a person with special needs or not, it is attempting to compensate the injured person for any losses they may have suffered as a result of the negligent party’s (or parties’) actions.
Damages can generally be defined through common law as a valuation of the injury or harm a person or entity suffers when a right or duty guaranteed by law is violated and are often categorized as compensatory or punitive. These two categories can be further qualified or enhanced based on the nature of the damage claim and statutory provisions which will be discussed below.
Compensatory damages, also commonly referred to as actual damages. These are often intended to provide compensation economic losses and general damages — which are non-economic losses. Medical expenses, lost wages, and property damage are examples of economic losses, while the reasonable value of emotional distress and pain and suffering are noneconomic or general damages. Non-economic losses can be much more difficult to recover, as it can be difficult for a DC personal injury lawyer to quantify these kinds of losses. These losses can become even more arduous to uncover when the case involves a person with disability, but that does not negate their importance.
An award of punitive damages is not based on the losses suffered by the injured party, but is intended to punish the offending party, and to deter them and others from engaging in such activity in the future. Punitive damages are sought, and are more likely to be awarded, where it can be shown that the offending party’s actions were intentional, outrageously reckless, or based in fraud, malice, or bad faith. Punitive damages can be increasingly difficult to justify. Discuss whether or not your case warrants punitive damages with a skilled personal injury lawyer.
Liquidated, Treble, and Nominal Damages
Liquidated, treble, and nominal damages are other forms of damages commonly sought in personal injury cases of varying kinds. While not falling squarely within the broader parameters of compensatory or punitive damages, these qualifying terms enhance the two primary damages categories:
The type of damages available to be recovered will be determined by a number of factors. For a better understanding of what you and your loved ones may be entitled to, contact an experienced personal injury lawyer today.
Thanks to our friends and contributors from Cohen & Cohen, P.C. for their insight into the definition of damages.
I have received many phone calls over the years from parents who tell me that their child’s school has asked them to pick up for disciplinary reasons. The typical story from parents is they have a child with a disability that has behavioral challenges at school. At work, a parent – usually the mother – receives a phone call from a school administrator or teacher that their child has been misbehaving and she should pick up her child as soon as possible. The frantic parent agrees to pick up her child at school and then misses the remaining day of work. Sometimes the school tells the parent do not bring the child back for 2-3 days. The parents agrees. Two or three days later, the parent returns with her child to school. A few weeks or months later this pattern repeats itself. The parent again receives a phone call from the school to pick up her child because of behavioral reasons. I have talked with parents that have picked up their child from school numerous times. This has resulted in some parents losing their job or they have been told by their employer they cannot continue to do this. When the parent loses her job, she ends up staying home with her child. A few parents withdraw their child from school because it becomes too difficult to keep picking up their child at school. Suffice it to say many parents have endured and suffered great hardship, emotional distress, frustration, and loss of a job and income among other things because the school asks them to pick up their child at school. Is this legal?
I do not think so. The problem is school systems and schools get away all too often with calling up a parent to pick up their child with a disability when the child become aggressive or disruptive at school. I ask why doesn’t the school address the child’s challenging behaviors in the first place instead of throwing up their hands and saying we cannot deal with your child behaviorally. Doesn’t this say the school personnel do not know what they are doing? Doesn’t this say the child’s IEP and behavior plan, if any, is inappropriate? Doesn’t this say the school is trying to skirt around the procedural protections afforded children with disabilities when disciplining them?
The Individuals with Disabilities Education Act or IDEA provides the school system must comply with a number of procedural rules before imposing out of school system. In general, a school can impose out of school suspension for a child with a disability up to ten school days in a school year. If the school system intends to suspend a child with a disability more than ten consecutive school days, then the school system must conduct a manifestation determination meeting to determine the school complied with the IEP and if the student’s conduct is directly related or substantially caused by the child’s disability. If not, the school may conduct a disciplinary hearing and can administer disciplinary according to its Student Code of Conduct. If the manifestation determination team determines the child’s conduct was directly related or substantially caused by the child’s disability, then the IEP team has a number of options, including modifying the IEP and behavior plan, conducting a functional behavioral assessment if one has not been conducted, and changing the child’s educational placement if the parents agree. There are also other procedural safeguards and rights that children with disabilities have under the IDEA when being disciplined by the school. See http://www.aea10.k12.ia.us/divlearn/specialeducation/docs/SE_Discipline_final.pdf
You will not find anywhere in the IDEA that a school can circumvent the procedural protections and safeguards afforded children with disabilities in disciplinary matters such as asking a parent to pick up their child from school. When this happens the school can technically say the parent picked up the child so there is no out of school suspension. In other words, the school can get away with sending the child home, which is tantamount to an out of school suspension. These days will not count toward the total of ten school days the school is allowed by law to impose out of school suspensions. So if the child’s school has asked you to pick up your child five days, ten days or more, there will be no record of an out of school suspension in your child’s educational records.
What should you do instead of picking up your child? I know it may be troubling, but refuse to pick up your child. Do not agree to do it. The school cannot legally require you to pick up your child because of disciplinary reasons unless and until it imposes out of school suspension for violation of the Student Code of Conduct. Yes, the school may threaten to suspend your child but remember you have rights and procedural safeguards to protect you and your child under the law if the number of days of out of school suspension exceed ten days in a school year. Instead, I would ask for an emergency IEP meeting to address your child behavioral problems. at this meeting you can ask for modification of the IEP. You can ask for a functional behavior assessment. You can ask for a behavior intervention plan or modification of the plan. You can ask for a behavioral specialist to assess your child and attend the meeting. The point is the school must provide an appropriate education for your child. A school does not provide an appropriate education for child when it asks you pick up your child for disciplinary reasons.
Finally, I would contact a special education attorney to discuss your options. Special education law and procedure can be difficult to understand. It is a maze of rules and procedures. An attorney who concentrates in special education can help you understand your rights and the school system’s obligations under the law to provide appropriate behavioral interventions, strategies and supports for your child. You have other options instead of picking up your child at school because the school asks you to do so.
From time to time, I receive phone calls and emails from parents of children with disabilities concerning reports of physical abuse of their child at school. Alarmingly, this is occurring more frequently at public schools. http://See http://www.crchealth.com/youth-programs/children-disabilities-abused-public-school-classrooms/. There is a compelling reason for the parents to be very alarmed when they hear their child may have been physically abused at school. A parent may have options, however, to address the physical abuse your their child. If your child has been physically abused at school it should trigger an investigation by the school. When the investigation is completed, administrations must notify the parents. If the physical abuse is disability related, a parent has certain rights to pursue a claim against the school system. I have previously posted information on disability related discrimination on my website.
Another type of physical abuse of your child occurs when an educator physically grabs, pushes, or other abuses him or her. If your child is nonverbal and unable to communicate, you may not learn of such abuse. For example, if your child comes home from school with unexplained scratches, cuts, and physical marks then you should consult with your child’s pediatrician. A competent medical professional can tell the difference between ordinary bumps and bruises a child may incur at school. In the event that your pediatrician determines that your child has incurred physical abuse at school your have several options.
First, you can contact the Principal or Assistant Principal at the school and discuss the matter with that administrator. If there is evidence a teacher inappropriately physically harmed your child, you can file a complaint with the Georgia Professional Standards Commission (PSC). The commission determines if there is probable cause to believe the educator violated the Georgia Code of Ethics. If so, the educator may be disciplined by the PSC. A parent may consider a civil action against the educator for assault or battery. These type of actions are difficult to bring against educators. This is because there may be no direct evidence of the educator’s abuse. Another reason is educators may be protected against such lawsuits by certain immunities. In the event you have questions concerning alleged physical abuse of your child with a disability, you should contact a special education lawyer for advise.
3 Keys to Pursuing a Personal Injury Case Involving a Child with Disabilities
When a personal injury occurs, it can be a devastating experience that permanently impacts one’s life. If the injured party is a child, his or her parents may have a number of concerns regarding immediate treatment, long term therapy and care throughout the injured child’s life. These concerns are usually addressed during a personal injury lawsuit, as these issues will likely be presented in court to help determine the appropriate compensation for the injured child. If you have a child that has been injured, it may be important to consult with an experienced attorney who can help guide you through the proper steps needed to present a successful case in court.
Anyone involved in a personal injury case should take care to preserve all evidence from the accident or anything that may have contributed to the injury. Depending on the case, evidence may include hospital reports, police reports, closed circuit camera evidence, photos and depositions from witnesses. Your attorney can help you collect the necessary evidence to present your case and accurately depict the events that occurred and how the injury was caused. Today, DC personal injury lawyers are likely to advise clients to stay off of social media to help prevent conflicting statements or other adverse effects that might be used against you in court.
Any medical records or other documents related to the case should be carefully collected and maintained in an easy-to-access manner. Medical documents may include physicians’ reports, x-rays, laboratory reports and other diagnostic evidence. In addition, treatments provided for the injured child and plans for rehabilitation and physical therapy — currently and in the future — should be thoroughly documented. Your attorney will likely compile most of these reports, but it may be helpful to keep additional copies of the information for your own records.
3. Get Expert Testimony
Personal injury cases may be complicated, comprised of significant amounts of detailed information and projections on future costs and medical needs. The testimony of experienced medical professionals is often necessary to present a comprehensive picture of the injury and its likely aftereffects in the future. A medical expert should be able to create an understandable report of the potential problems and solutions that may be required as the injured child grows into adulthood. This can help provide a full picture that may influence the size of the settlement. Generally, any future projections should be backed up with statistical data from authorized agencies. Our attorneys can help provide further guidance regarding the type of information that may be needed.
When a child is accidentally injured, it sets in motion a process of medical and legal consequences that will likely take great deal of time and energy. Anyone who has experienced a personal injury lawsuit will likely tell you it’s a long and difficult experience. Our attorneys have the experience to help your child receive the compensation they deserve.
Thanks our friends and co-contributors at Cohen & Cohen, P.C. for their added insight into pursuing an personal injury case involving a child.
The Initial Phone Call to Special Education Attorney
I receive phone calls from parents each year ranging from a multitude of special education topics and issues. The issues may range from discipline, related services, placement to bullying and harassment. In general, I try to listen to what are the essential concerns of the parent and provide feedback. For the initial phoned consultation, I do not see my role as solving the parent’s concerns about their child with a disability. Why? When I initially speak to a parent, I have not reviewed any educational records of the child. I have not yet reviewed edical, psychological, psychoeducational, psychiatric or other written information. My initial role is to investigate. I also ask probing questions so that I can get to the heart of the parent’s concerns.
A parent should contact a special education attorney in the event he or she is concerned with the education of their child. Sometimes the school system has not timely identified, located and evaluated a child suspected of having a disability. In such case, there may be a child find violation. Parents are often seeking answers to their specific special education questions. But a special education attorney should not be providing specific answers without sufficient information to provide an informed legal opinion.
Special education law and practice is very complicated. Parents should initially seek the guidance of a special education attorney for the purpose of developing a plan, strategy or goal. Parents should not initially contact a special education attorney for the purpose of securing specific legal advice about their child. I try to give general information and guidance to parents during the initial phone consultation. After the initial conversation, I ask for the child’s educational records. There usually are other documents that I need to review to form a legal opinion about the child’s special education program. I eschew answering specific questions about the child’s special education program. This is because I lack pertinent information to appropriately answer such questions or concerns.
Parents often want more than just cursory guidance during the first phone or email communication. Again, I do not think it is ethical and professional to try to answer specific legal questions related by the parent for the first communication. It will be necessary first to review all of the written documents that pertain to those questions. It also may be necessary to perform legal research, review educational research, or consult with an expert. I cannot emphasize enough how important it is for a special education attorney to secure adequate information before forming a response to a parent’s concerns.
I will not be rushed or pressured by a parent to provide legal advice when I am not adequately prepared to do so. Sometimes parents expect that I will completely accept their version of the situation. I cannot do this without completing my own independent investigation of the case. I take my responsibility to provide competent legal advice and opinion very seriously. I will not tell parents what they want me to say or what they what to hear. But I will support a parent’s pursuit of their procedural and substantive rights under applicable laws when I believe there is merit to the case. I must have ample time to do this, however.
Suggestions for Parents
You should consult with a special education attorney when you believe there is a concern or problem with your child’s special education program. Alternatively, there are times when your child has not yet been identified and evaluated to determine his or her eligibility for special education. But please do not expect immediate legal answers to your questions or concerns. An attorney has to devote time to review the necessary documents to form a legal opinion on the subject. Would you call or physician with a serious medical problem and expect that physician to provide medical advice without ever seeing the patient. I hope not. I would not want a physician making a diagnosis over the telephone without seeing me first.
These are just a few recommendations for when you consult with a special education attorney for assistance. We can be very helpful in resolving your questions and concerns but please be patient.
This is the fourth post by an experienced special education attorney that analyzes the differences between the Individuals with Disabilities Education Act or IDEA and Section 504 of the Rehabilitation Act of 1973. To completely explain and analyze the differences between these two very important federal laws that provide procedural and substantive rights to families of children with disabilities would take much time and space than I have done so to this point. But I have tried to outline the most important differences – and sometimes similarities between these two laws. Parents are not adequately explained the differences and similarities of these laws by school systems. The parental rights brochures given to parents by school systems, as required by law, probably cause more confusion and questions that is usually answered by school system staff. This is why it is so important to contact a special education attorney to explain to you these laws and if they apply to your child. This is particularly true at the beginning of the school year right now when some children, who have not been timely identified by school systems as having suspected disabilities, are exhibiting behavioral, learning or other educational problems in classes. The beginning of school is a critical juncture because the longer it takes for a school system to locate, identify, and then evaluate your child, the longer it will take remediate and properly educate your child, who is falling further behind academically and is struggling in school.
When your child is finally determined to be eligible for special education and/or related services, it is important for you to know the differences between an Individualized Education Plan (IEP) and a Section 504 accommodations plan. Both the IDEA and Section 504 require that all children with a disability receive a free appropriate public education regardless of the nature and severity of their disability. How school systems provide a free appropriate public education for a child with a disability under either the IDEA or Section 504 is starkly different. Under Section 504, the school system is required to meet with the parents and develop an accommodations or Section 504 plan. Section 504 does not provide specific details what must be contained in a Section 504 accommodations plan. There is no legal requirement who must attend the Section 504 plan meeting. Most school systems will describe the nature of the child’s disability, how the disability is affecting the child’s learning, and develop accommodations, modifications, and related services that may be needed for the child to receive a free appropriate public education. A Section 504 plan may be two to four pages at most. For example, a child with ADHD that does not adversely affect the child’s educational performance and is not in need of special education and related services, may receive preferential seating in classes, more time for taking tests and completing assignments, smaller group testing with less distractions, shorter in-class and home work assignments, and teacher or paraprofessional redirections for the student to pay attention in classes. On the other hand, the legal requirements for developing and implementing an IEP are much more detailed and lengthy. An IEP may be least 8-10 pages and some may exceed 20 or more pages depending upon the number of goals and objectives for the child.
See 20 U.S.C. 1414(d) for the requirements for an IEP, the individuals who must attend an IEP meeting, how the IEP must be developed, and the review and revision of an IEP. Annual IEP meetings may take at about three hours but I have attended a few IEP meetings that have taken 6-9 hours. If you want more information about the requirements about an IEP, then contact a special education attorney or experienced parent advocate to attend the annual or periodic review IEP meeting. I have attended countless IEP meetings but only a handful of Section 504 meetings over the past 32 years. There are good reasons why parents often want a special education attorney or experienced parent advocate to attend an IEP meeting and not a Section 504 accommodations plan meeting. I will be glad to entertain any comments and questions that parents may have why a parent should have a special education attorney or experienced advocate at an IEP meeting. I want to be clear that I am not saying all parents must obtain legal or lay advocate representation for every IEP meeting. I am saying that parents who want assistance at an IEP meeting for their child for varying reasons generally benefit from having an attorney or advocate attend such meeting.
I want to conclude these series of posts on the differences between the IDEA and Section 504 by adding it is my considered judgment and experience that parents of children with a disability should request their child to be determined eligible under the IDEA and have an IEP developed for the child. Sometimes school systems will not comply with the requirements of the law and only provide a child with a disability a Section 504 plan instead of determining their eligibility under the IDEA and developing an IEP. In such cases the Section 504 plan does not provide the specialized educational instruction and related services needed for the child to make adequate educational progress. And in some cases parents do not want their child to be classified as special education and prefer the child be considered regular education. Understandably parents may not want their child to be unnecessarily classified as “special education” if it is not warranted. But when it is warranted by testing and assessment results, and opinions of professionals, and by the requirements of law, then parents should consider accepting their child’s eligibility for special education under the IDEA. Of course, some parents choose to homeschool their child with a disability or enroll them in a private school or facility instead of enrolling them in a public school. This is a parent’s legal and parental choice. With this said, it is preferable to consult with professionals in making this choice for the best interests of your child.
This is the third segment on the differences between the IDEA and section 504. There are commonalities, of course, between these two federal special education law and regulations which I will highlight during this discussion. I have provided an overview of the IDEA and Section 504 and how these two laws interact and sometimes overlap in ensuring children with disabilities receive a free appropriate public education. To briefly recap some of the prior posts, we know, for example, the child find provisions of the IDEA and Section 504 are similar and overlap. More importantly, we know that if a school system determines that a child does not qualify under the IDEA for special education and related services then it must refer that child for an eligibility determination under Section 504. We also know the term “child with a disability” is broader under Section 504 than the IDEA. The IDEA is limited to thirteen (13) eligibility categories and the child’s disability must adversely affect the child’s educational performance and is in need of special education and related services except for a speech disability. A child with a disability for Section 504 eligibility does not have to meet this eligibility criteria. A child under Section 504 may have a temporary disability and qualify for special education or related services. Some children with ADHD may not qualify under the IDEA but will qualify for special education and related services under Section 504. In these cases, school system are required to develop a Section 504 plan or an accommodations plan to serve the child. School systems vary considerably on how much detail a Section 504 Plan should contain. A Section 504 Plan does not have to meet the detailed legal requirements of an IEP. In general, a Section 504 Plan will state the child’s disability, and how the disability substantially impairs the child’s learning at school. The Section 504 Plan will contain reasonable accommodations for the child to be served or learn at school.
A child with a medical impairment may not need special education and related services, but will need accommodations for the child to attend school. For instance, if the child is diagnosed with chronic figure syndrome which affects the child’s ability to attend school regularly or when at school affects the child’s vitality and concentration during certain parts of the school day, then a Section 504 is appropriate. The accommodations that may be implemented for such child is permitting the child time periods when he can rest or sleep if necessary. There may be accommodations to give the child more time for test testing, to complete assignments or be given shorter class assignments. There may be accommodations for the child to leave school early or attend school later in the morning. I represented a young child many years ago who had a severe seizure disorder. She also had multiple physical and intellectual disabilities as well. Before leaving for school or early in the morning, the child could have a seizure that affected her ability to go to school. The school system was required under Section 504 to permit her to begin classes later in the morning when she had a severe seizure earlier in the morning before going to school. Of course, the child’s class schedule and curriculum had to be changed or accommodated when she had such seizures. A child with a contagious disease must be accommodated at school. A school system cannot exclude a child with a contagious disease simply because the child may pose a risk of contagion to other students. Back in the 1980’s and 1990’s, there were a number of court cases addressing the school system’s obligation to make reasonable accommodations for children with Hepatitis B or HIV. The courts adopted legal and medical standards prohibiting a school system from segregating a child with HIV, for instance, from other students except under limited circumstances.
Another good use of Section 5o4 that we have not discussed is that this law protects a child outside the school and outside the school day. The IDEA only applies to children that attend school during usual school hours and extracurricular activities. But what if have a child with challenging behavior problems that cause a problem for school staff during a field trip to a museum or other extracurricular activity. A school system cannot exclude a child with challenging behavior problems from participating in extracurricular activities or field trips unless the school cannot provide reasonable accommodations so the child can participate in such activities and programs. If the child requires a behavior plan or a paraprofessional to attend such activities and programs, then the school system must generally provide such aids and services for the child. But what if the child with challenging behaviors is not attending public school but an after school program that is not operated by the school system. Does the entity or program still have to serve that child? The answer is yes in most situations. Under Section 504 any entity or program receiving federal financial assistance must make reasonable accommodations to the program or activity to the child can attend it. If the entity or program does not receive federal financial assistance, then the Americans with Disabilities Act(ADA) would apply. The ADA provides parallel or similar provisions to safeguard and protect the rights of children and adults with disabilities. but we will not go into any in-depth discussion of the similarities and differences between Section 504 and the ADA at this time. If you want more information or advice on these laws pertaining to children, youth and adults outside of a school system, then contact a special education attorney or an attorney that concentrates in Section 504 and ADA.
I regress. . . so if you have a child that attends an after-school program who has a disability, make sure that the program is compliant with Section 504 and the ADA. An after school program must serve a child with a disability if that child otherwise qualifies for that program or activity. I represented a parent that would bring her child with autism to an after school program. The program was operated by the school system and not by local government or independent private contractors. The child had some challenging behaviors. The facility would not allow the child to attend because he exhibited challenging behaviors from time to time unless the parent paid the facility about $50.00 a week so a behavioral aide could be hired. I filed a complaint with the U.S. Department of Education Office for Civil Rights under Section 504 and the ADA. I alleged the facility discriminated against the child because of his ability and had to make reasonable accommodations for the child at no cost so that he could participate in the after school program. After the Office for Civil Rights completed its investigation, it found the facility violated Section 504/ADA because it charged a fee to the parent to hire a behavioral aide even though it was unnecessary to do so. The Office for Civil Rights required the facility to train its staff and make other reasonable accommodations at no cost to the parent so the child could attend the after school program. This is a good example of how Section 504 can compliment the legal rights of a child with disability who is served under the IDEA. I will give you more examples in the next post.
In a recent post, I began an explanation of the differences between Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, and 34 C.F.R. Part 104, and the Individuals with Disabilities Education Improvement Act of 2004 or commonly referred to as the IDEA, 20 U.S.C. 1401 et seq., and 34 C.F.R 300.1 et seq. There some similarities between these two federal laws and regulations and there are some differences as well. I will give you some further similarities and differences between Section 504 and the IDEA in this post.
It is important to remember that eligibility for reasonable accommodations under Section 504 begins at birth and ends at the individual’s passing. In other words, if an individual is deemed an individual with a disability at birth, it is possible that individual may remain qualified under Section 504 for reasonable accommodations for the remainder of their life. The key test for determining eligibility of an individual with disability under Section 504 is whether they have a physical and/or mental impairment that substantially limits one or more major life activities. For example, if an individual is born with a severe mental and/or physical disability that substantially limits one or more major life activities then it is likely he will be otherwise qualified to receive reasonable accommodations for the remain of his life in a program or activity that receives Federal financial assistance and to recipients that operate or that receive Federal financial assistance for the operation of, such programs or activities. 34 C.F.R. 104.31. This means that an individual with a disability may be eligible to receive reasonable accommodations in the workplace, college, or university that receives Federal financial assistance. The Americans with Disabilities Act (ADA) provides further rights for individuals with disabilities who work in the private sector, attend a private college or university, use private accommodations such as hotels, movie theatres, museums, and other private places. I will not, however, go into a more detail explanation of the ADA at this time. I just want to give you a general idea of what protections the ADA provides individuals with disabilities.
For children with disabilities aged birth through graduation from high school, Section 504 provides certain protections and rights. A public school system shall annually identify and locate every qualified child with a disability in its jurisdiction who is not receiving a public education and take appropriate steps to notify the child’s parents or guardians of the school system’s duty to provide a free appropriate public education to that child. 34 C.F.R. 104.32. This is commonly referred to as child find responsibilities of the school system. Similarly, the IDEA also requires school systems to identify, locate and evaluate children who are suspected of having a disability. 34 C.F.R. 300.111. This child find responsibility for school systems under Section 504 and the IDEA is important because it requires schools to affirmatively identify and locate children who are suspected of having a disability. School systems in Georgia use a variety of procedures to meet this requirement. Many of you may be familiar with the SST or Student Support Team. It may be referred by another name or title but its purpose is the same. That is to convene a group of educators to determine if a child may have a disability (which may be different meaning under Section 504 as opposed to the IDEA), and refer that child for a psycho-educational evaluation. The evaluation is used by an eligibility team to determine the child’s eligibility under either Section 504 or the IDEA. Again, it is worth repeating that if an IDEA eligibility team or committee determines that a child is not eligible for special education and related services under the IDEA, then it must refer that child to another eligibility team to determine his eligibility for a free appropriate public education under section 504. In my 32 years of practicing special education law, I have found some school systems do not adhere to this requirement.
I have received calls, emails, and other communications from parents who tell me the eligibility team or committee did not determine their child qualified for special education and related services under the IDEA, but then the team or committee did not refer the child for a determination of eligibility under Section 504. This may be a violation of Section 504. As I discussed, the child find requirements of the school system apply to both Section 504 and the IDEA. Just because a child does not qualify under the IDEA for special education and related services does not mean the child does not qualify under Section 504 for accommodations and a free appropriate public education. Parents can challenge the school system’s failure to meet this requirement by filing a complaint with the United States Department of Education Office for Civil Rights in Atlanta, Georgia and claim the school system did not comply with the child find mandate of Section 504. A parent also has the right to challenge a school system’s decision to deny special education eligibility under the IDEA by filing a complaint to the Georgia Department of Education, Division of Exceptional Students, within one year of the alleged violation or by filing a due process complaint against the school system within two years from the time the parent knew or should have known of this violation as alleged in the complaint. This is a very tricky area of the law. I would strongly suggest that parents consult with a special education attorney before filing a state complaint or due process complaint against the school system to determine if the parent has a meritorious claim for violation of the child find requirements and eligibility determinations under the IDEA.
There is another separate and distinct process to determine whether a child has a special learning disability under the IDEA and is eligible for special education and related services under the IDEA. I will not explain this process now as it is complex and subject, in part, to the professional judgment of educators whether the child has a specific learning disability under the IDEA. I would be glad to explain this process to parents that wish to contact me in the future about this issuer. In the meantime, I will take a break now and will explain more about the differences (and similarities) between Section 504 and the IDEA in the next post.