What is a “reasonable accommodation”?

Recently I was asked to explain what a “reasonable accommodation” is.

The person put the question in some context:   Their child’s “special education school thinks a table in classroom with curtain is a reasonable accommodation for his bathroom needs. The class is coed teenagers with different cognitive and physical abilities.”

I doubt this is a “reasonable accommodation”, but let’s explore how we get there.

504 and ADA, not IDEA

First, “reasonable accommodation” is 504  and ADA language, not IDEA.  Under IDEA, a school must develop an IEP that meets all needs of a student with a disability.  This is not an ‘accommodation’; rather it is a legal requirement so that a child may receive a FAPE.

What does 504 require?

Section 504 of the Rehabilitation Act of 1973 (504 for short) is a federal law that prohibits a  facility that receives federal funds from discriminating against a person with a disability.  Under 504, a public school must ensure that a child with a disability has equal access to education and services.  To accomplish that, the school must provide modifications to education and services or a “reasonable accommodation” to such student so that he/she is not discriminated against because of his/her disability.

What does the ADA require?

The Americans with Disabilities Act (ADA) is very similar to 504 and applies to schools equally.  The purpose is to prevent and prohibit discrimination against students with disabilities, so it requires the same as 504.

How is “reasonable accommodation” defined?

Unfortunately, neither 504, ADA, nor their regulations define this specific term.  We know from caselaw that schools are required to make reasonable accommodations according to a person’s disability unless such changes would fundamentally alter the nature of the school’s purpose, i.e. providing educational services.

There are obvious accommodations like making sure there is wheelchair access to all parts of the school for a student confined to a wheelchair.  There are slightly less obvious accommodations like assigning a staff member or student to assure that child in a wheelchair can get out of the building in case of fire or a fire drill.   But this is still reasonable.

Types of “reasonable accommodations”

There are several types of accommodations already determined to be reasonable.  They fall under categories.

a. Accessibility: This includes the wheelchair example above and a special needs bus or transportation.

b. Service Animals: For children who need the assistance of a service animal, schools must allow access to accommodate that child’s needs.

c. Interpreters: Access to sign language interpreters or hearing aids for those who have hearing disabilities or access to other interpretors like Braile materials or interpreters when a child with a disability does not speak English.

d. Auxiliary Aids and Services: A school may need to provide a medical plan or extra access to a nurse for a child with diabetes, epilepsy, or other illness requiring medication and/or monitoring during the school day. Or perhaps a child’s disability requires a smaller classroom, less noise, less distraction, different lighting, etc.

e. Removal of Barriers: If doors or stairways or other typical structural aspects of the school are a barrier to a child with a disability, the school must find alternate ways to accommodate that student.

There are several others, but these are the major categories in which schools must provide accommodations.

Is the accommodation reasonable?

Reasonableness is going to be determined by what the disability is and how it interferes with the child’s access to educational services.  So, accommodation may be decided on a  case-by-case basis, but, again, can’t change the fundamental purpose of the school.

Some guidelines (not legal advice):

– Identify your child’s specific needs

– Suggest an accommodation (don’t necessarily rely on the school to design one themselves, as it may not be appropriate)

– If the school finds your suggestion unreasonable, ask them to state why

– Ask the school to suggest an accommodation

– Provide medical documentation if appropriate

– Ask the school to respond to request in a reasonable time

Is the bathroom example in the question reasonable?

Although the person did not reveal what the disability of the child is, a desk in a room with other children with a curtain does not seem reasonable for numerous reasons: anxiety of the child because of the location; potential health risks because of unsanitary conditions; and may not appropriately address the need of the child.

Final word

Follow the guidelines above (and think of more yourself) to determine a reasonable accommodation that the school should make in order for your child with a disability to access the educational services.  If the accommodation that the school provides seems shocking or inappropriate, it is not likely reasonable.

 

Websites for Parents of Twice Exceptional (2e) Kids

 

 

 

 

 

 

 

Audio Recording IEP Meetings – Is It Allowed?

Having an audio recording of what happens in an IEP meeting is powerful evidence, especially when school districts deny what was said or fail to put a service in writing into the IEP.   For example, an audio recording can prove or disprove what was actually discussed during the meeting, whether the parents were given proper opportunity to participate, and what decisions or objections were made.   For those reasons, parents often wonder if they are permitted to record an IEP meeting.

So, can you do it?

Federal Law

There is no federal law prohibiting a parent or school official from recording IEP meetings.  IDEA and the other special education laws are silent on that specific issue.

However, IDEA does say a few things that are relevant to the discussion:

  • Parents are critical members of the IEP team
  • Parental participation in IEP meetings is vital and if a school blocks such participation, it is a denial of FAPE
  • Parents have the legal right to understand the IEP and, if necessary, have it explained to them

Audio recording an IEP Meeting, when the IEP Team is aware and consents to it, is not a violation of federal privacy law.

So that means you can do it, right? Not so fast.

The U.S. Department of Education (USDOE) Office of Special Education Programs (OSEP) has issued a letter opinion and Policy Memorandum on this subject in June 4, 2003 (PDF file).  The bottom line of the analysis is that it is a local policy issue and depends on several factors.

When a federal law is silent on an issue, the individual states can decide or legislate on the issue.

State Privacy Laws

The next hurdle to overcome is what state law says on privacy and audio recordings.  Each state has its own laws regarding the consent required to audio record events, even if they are ‘public’ events.

Some states are known as ‘dual consent’, which means both parties must know about and agree to the recording.  Some states are ‘single consent’ which means that only one of the interested parties (usually the parent who wishes to record the IEP meeting) has to agree to it.

While not exhaustive of every state’s law, the Digital Media Law Project collected links to some state’s laws on this issue.  This site is not being kept up to date, so make sure you check your own state’s law on recording or consult with a local attorney.

School District Policies

It is therefore left to the State Educational Agency (SEA) or Local Educational Agency (LEA) to determine the policy on audio recording these sessions.

The SEA or LEA (local school district) may issue a policy requiring, prohibiting, limiting or in any other way regulating audio recording of IEP Meetings.  If the public agency has a policy that prohibits or limits the use of recording devices at IEP meetings, the policy must have exceptions necessary to protect parental rights, such as the ability to understand the IEP or the IEP process. Any such policy on tape recording IEP meetings must be uniformly applied.

Protecting Access to Recordings

Any recording of an IEP meeting maintained by a public agency is an “education record,” within the meaning of the Family Educational Rights and Privacy Act (FERPA)[1] and would be obtainable by the parents through a written request.  It would also be subject to the protections of FERPA prohibiting its release to anyone not authorized under that law.

So what do you do?

Parents wishing to use audio or video recording devices at IEP meetings should consult state laws or local school policies for further guidance or consult with a local education attorney.

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[1] 20 USC §§1232g and 1232h; Regulations 34 CFR §99.1 et seq.

Transportation is a Mandatory “Related Service” for Special Ed Kids That Need It

Under IDEA, transportation is a “related service” that must be provided to kids with an IEP.1  Transportation must also be provided to infants and toddlers as part of Early Intervention Services.2

Transportation includes travel between home and school; between schools (if the child attends more than one campus); travel within and around school buildings (if that is a challenge); and specialized equipment like ramps, lifts, or adapted buses if required to transport the child with a disability.3

What kind of transportation will be provided to my child? This depends entirely on what your child’s needs are. If your child has Sensory Processing Disorder, he/she may not be able to ride the regular large bus to school. If your child is in a wheelchair or has other physical impairments, he/she might require a specially-adapted vehicle. Alternatively, you as the parent may be reimbursed by the district if you provide the transportation agreed to by the IEP team.

Transportation needs should be discussed during an IEP meeting or 504 planning meeting. If the school district needs to send the child with a disability outside the school for services or places the child in an ‘out of district’ program or private school, the school district must also provide transportation to those services or program.

Learn more about how school buses and transportation for your child with a disability fits into planning for your child’s education and IEP in our book SchoolKidsLawyer’s Step-By-Step Guide to Special Education Law.


1. 20 U.S.C. §1401(26)(A); 34 C.F.R. §300.34(a).
2. 20 U.S.C. §1432(4)(E)(xiv); 34 C.F.R. §300.34(a).
3. 34 C.F.R. §300.34(c)(16).

 

 

New special ed case involving charter schools and attorney’s fees

The U.S. Court of Appeals for the Third Circuit handed down an excellent decision on October 11, 2017 for parents of children with disabilities.  In the case of H.E., et al.  v. Walter D Palmer Leadership Learning Partners Charter School, et al., the Court held and reaffirmed its prior ruling that “success on a claim for procedural relief can constitute a victory ‘on the merits’ that confers ‘prevailing party’ status” allowing the parents an award of attorney’s fees.

Parents had children with disabilities enrolled at Walter D Palmer Leadership Learning Partners Charter School.  The parents had alleged that the charter school was not providing a Free Appropriate Public Education (FAPE) to their children.  The parents entered into a settlement agreement with the charter school whereby the school was to provide the children with compensatory education and contribute towards the parents’ attorney’s fees, but before the school could deliver on the agreement, it closed in 2014.

The parents filed a Due Process complaint against both the charter school and the Pennsylvania Department of Education (PADOE), alleging that PADOE as the state agency was responsible to make good on the charter school’s agreement.  However, the administrative hearing officer dismissed the parents’ case and held that the parents could not go after PADOE and had to get their relief through the charter school’s settlement claims process.

Parents filed an appeal in the federal district court seeking reversal of the administrative hearing officer’s decision plus attorney’s fees and costs for having the fight the battle.  The federal court vacated the hearing officer’s decision and sent the case back to the hearing officer on the issue of compensatory education, but denied the parents’ claim for attorney’s fees because it was a victory on purely procedural matters, not a substantive claim, and therefor they were not “prevailing parties”.

The federal appeals court reversed the federal district court on that basis and said that parents were indeed prevailing parties and entitled to reimbursement of their attorney’s fees and costs.

Thankfully courts are beginning to recognize that these battles are difficult and expensive for parents to bear and their statutory right to be reimbursed for the costs and fees paid to fight these cases when they win should be honored.  It is a re-balancing of the playing field.

The full decision can be downloaded from the Third Circuit Court of Appeal’s website here.  (It is a PDF file)

Special Education Law and Child Custody

According to the American Psychological Association, 40-50% of marriages in the United States end in divorce.  Of all children born to married parents this year, 50% will experience the divorce of their parents before they reach their 18th birthday. (Patrick F. Fagan and Robert Rector, “The Effects of Divorce on America,” Heritage Foundation Backgrounder, May 2000.)

So, the question arises: What happens to kids with special education needs who come from broken homes?

It is important to recognize that special education law is, for the most part, federal law and the same in all 50 states, but family law is state law and may differ from state to state.  Thus, the following are just a few issues facing divorced parents and the education of their children with disabilities.  You should check with your own state’s family law or hire a local attorney to get answers to your specific situation.

Which parent makes the special education decisions?

Education decisions fall under the category of “Legal Custody” of the children.  This is different from “Physical Custody and Visitation”.  Usually both divorced parents share legal custody of the children born during the marriage.  This means that unless a court Order or divorce agreement says otherwise, both parents of a child with a disability share the education decision-making ability and rights.

However, the divorced parents might not always agree on the education choices for the child.  For example, one parent might not feel the child has a disability or is eligible for special education; or one parent might not agree with the other parent on what the school is offering for services.  There are a number of provisions in the special education law which require parental consent.  Who has the ability or right to give such consent?

If there is (or might be) a dispute between the divorced parents, the parties should work out an agreement or have the Court decide to alter the general rule.

What happens when there is an agreement or Court Order?

A divorce agreement (sometimes called a Joint Parenting Agreement) or Court Order controls how education decisions are made for a child.  Again, if the agreement or Order simply says “joint legal custody” (which is typical) or is otherwise silent, both parents have equal rights to making education decisions and should cooperate for the best interests of the child.

As stated above, sometimes one divorced parent allows his/her emotions towards the other ex-spouse interfere with the decisions for the child.  In these situations, the agreement or Order should be very specific about who makes the special education decisions for the child or how a dispute can be resolved.  Even if there is “joint legal custody” on other issues (religion, morals, etc.), education decisions may be separated out and either one parent has the exclusive right to make these decisions or the power to override the other parent.

The Court always has the power to enforce such agreement or Order or to modify it so as to protect the child.

How does physical custody or visitation impact this situation?

Although “joint physical custody” is a possibility (usually meaning the child spends equal amounts of time in each divorced parent’s home), it is not as common as granting one parent physical custody and the other parent visitation rights.  This means one of the parents’ homes will be the ‘primary residence’ of the child and the other parent gets to see the child on a regular schedule.

This has a number of effects on the education of a child, particularly one with special needs.  First, ‘primary residence’ of the child will determine the public school responsible for the child’s special education (who manages the IEP or 504 plan).  If that school district is not particularly helpful to children with disabilities or has a track record of violating special education laws, it will impact both the Court’s and the parents’ positions on physical custody.  Careful thought should be given to where the parent having physical custody resides and the ‘home school district’ (not to be confused with homeschooling).  This is also a challenge if there is joint physical custody and the divorced parents live in two different school districts; it may be unclear to which school district the child is assigned.

Another issue that can arise is which parent has the right to attend IEP meetings.  IDEA says that parental participation is critical, but the law does not say if that means one or both parents.  What if the parent who doesn’t have legal custody wants to attend an IEP meeting just to make sure that everything is being done right for his/her child?  Can the school bar him/her from the meeting?  Also, is the non-custodial parent allowed to pick the child up from school?  What if one of the parents has a restraining order against the other parent, but the order doesn’t discuss whether the restrained parent can visit with the child?  Or attend school events?

The school may be caught in the middle.

If the joint parenting agreement or court Order spells out these issues, then the school should be provided with a copy of that document so there is no question.  However, if the document doesn’t explicitly say what happens in these situations, the school might demand that the parents sign a document that clarifies the issues.

What if the child is not doing his/her homework?

Suppose either the custodial parent is not making the child complete homework assignments or it is the parent who has overnight visitation not enforcing homework because such parent doesn’t want to reduce their limited time with the child.  What happens when the other parent learns that the child’s performance in school is deteriorating because of the homework issue?  What can that parent do?

Again, the school’s special education services will likely be blamed when it may not be its fault at all.  The school should not be caught in the middle on this issue either, but also the school should not be allowed to rely on this as an excuse for inadequate services.  In this situation, it may be necessary to bring in a family law mediator or the judge to figure out a solution to this problem.

Who has the right to file a dispute with the school district?

It is not clear that even if one parent has sole legal custody on education decisions that such parent is the only one who can file a dispute against the school district.  For example, if the custodial parent is not enforcing the special education rights of the child against the school, can the non-custodial parent file the lawsuit against the school?

In most states, non-custodial parents do not relinquish all of their legal rights over the child.  For example, a custodial parent usually cannot leave the state without notifying the other parent and obtaining court approval to do so.

Thus, the non-custodial parent may retain the right to file a lawsuit on behalf of the child for violation of the special education laws by the school district.  What is not clear is the role of the custodial parent in this situation.

These are unresolved issues at this point and I won’t propose to resolve them here.  The purpose of this is to give you some food for thought on concerns you might face when parents of a child with a disability divorce.

As always, for specific legal advice consult with a lawyer in your locality.  You may wish to consult with both a family law lawyer and a special education lawyer if one lawyer does not handle both areas.

 

 

The New Jersey Dyslexia Handbook

A group of smart minds in the New Jersey world of special education gathered and put together an excellent guide to assist schools, parents, and providers in helping children with dyslexia.  They recently issued “The New Jersey Dyslexia Handbook: A Guide to Early Literacy Development & Reading Struggles” (PDF) which is free to download from the NJ Department of Education website.

The table of contents shows that it covers everything from the definition of dyslexia to screening to various interventions and accommodations that can be made for the student.

If you have a student with dyslexia, you should download your free copy here:

http://www.state.nj.us/education/specialed/dyslexia/NJDyslexiaHandbook.pdf

 

 

What is your worst special education experience with a school district?

In the Comments describe your worst experience advocating for a child with a disability with your school district.  Did they fail to adequately find or evaluate a disability?  Did they design a poor IEP?  Did they fail to take your suggestions for the IEP?  Are you unhappy with the placement or classroom for your child?  Did the school district not provide the services they agreed to in the IEP? Is your child with a disability being bullied and the school district is not doing anything about it?  Something else?

Please stick to FACTS and not just namecalling.  Also, include your city, state, and name of the school district so that others can be aware.  If you don’t feel comfortable publishing that with your name, you can either post anonymously or only include your state.  We’d love to hear from you.

If you need a special ed lawyer to help you, visit the Council of Parent Attorneys and Advocates at www.copaa.org and start your search there.  If you are in NJ or PA, we at SchoolKidsLawyer.com can assist you.

 

Guardianship Affidavits – Revised NJ Law

NOTE: This change applies to the appointment of a guardian for a person receiving services from the Division of Developmental Disabilities (DDD).  It does not change the requirements for guardianship of a person outside the DDD system.

I was recently asked if Nurse Practitioners (“NPs”) or Physician Assistants (“PAs”) are qualified to complete affidavits to support the guardianship of a disabled adult in New Jersey.  The short answer is YES because of recent amendments to the law, specifically the required documents to be submitted to the court when you file a petition for guardianship.

Here is the longer answer:

NJ Court Rule 4:86 governs guardianship.  The rule used to read: “Affidavits or certifications of two physicians having qualifications set  forth in N.J.S.A. 30:4-27.2t, or the affidavit or certification of one such physician and one  licensed practicing psychologist as defined in N.J.S.A. 45:14B-2, in such form as  promulgated by the Administrative Director of the Courts.”  R. 4:86-2(b)(2).  Thus, the old law for a petition for guardianship required two affidavits from either a licensed doctor or psychologist.

The statute was revised in 2015 on the issue of who constitutes a “physician”. The language was changed to:

The moving papers shall include: (1) a verified complaint; (2) an affidavit from a practicing physician or a psychologist licensed pursuant to P.L.1966, c.282 (C.45:14B-1 et seq.) who has made a personal examination of the alleged incapacitated person not more than six months prior to the filing of the verified complaint; and (3) one of the following documents: (a) an affidavit from the chief executive officer, medical director, or other officer having administrative control over the program from which the individual is receiving functional or other services provided by the Division of Developmental Disabilities; (b) an affidavit from a designee of the Division of Developmental Disabilities having personal knowledge of the functional capacity of the individual who is the subject of the guardianship action; (c) a second affidavit from a practicing physician or psychologist licensed pursuant to P.L.1966, c.282 (C.45:14B-1 et seq.); (d) a copy of the Individualized Education Program, including any medical or other reports, for the individual who is subject to the guardianship action, which shall have been prepared no more than two years prior to the filing of the verified complaint; or (e) an affidavit from a licensed care professional having personal knowledge of the functional capacity of the individual who is the subject of the guardianship action.

Thus, accompanying the petition for guardianship (complaint) must be one affidavit from a doctor or psychologist and one of the following:

  • Another affidavit from doctor or psychologist
  • An affidavit from the director of an appropriate facility
  • An affidavit from an approved person from the NJ Division of Developmental Disabilities (DDD)
  • An IEP
  • An affidavit from a “licensed care professional”

“Licensed care professional” is defined as “a duly certified or licensed advanced practice nurse, board certified assistant behavior analyst, board certified behavior analyst, clinical nurse practitioner, licensed practical nurse, family counselor, nurse, occupational therapist, physical therapist, physician assistant, professional counselor, registered nurse, social worker, or speech language pathologist.”  N.J.S.A. 30:4-165.8(2)(b).  So, that includes NPs and PAs, among other professionals.

This makes the required documentation for a guardianship petition a bit easier to obtain, although not less stringent.  But in this modern age of healthcare, NPs, PAs, counselors, RNs, social workers, and other professionals may be the people who know the disabled individual best.  That is what courts are looking for, namely, credible evidence to support the guardianship.

If you have questions about guardianships in NJ or PA, contact us via one of our websites: http://schoolkidslawyer.com or http://thurstonlawpc.com or call us at 856-335-5291.

Don’t Read This – I’m a Liar

I’m going to lie to you.  About special education law.

So don’t read any further. You’ve been warned.

(If you continue reading, you’ll see why.)

I’m a special education lawyer who represents parents and children with special needs.  (All you heard was “lawyer”, so you know I’m lying. So stop reading now.)

If you become my client, here is what I will tell you:

  1. The school district is always wrong.
  2. I guarantee you’ll win.
  3. Of course I’ll handle your case pro bono (for free).
  4. Your kid deserves a one-to-one aide (no matter what).
  5. No IEP? I’ll get your kid one immediately.
  6. This case will be over in a week.
  7. This school district and its attorneys always back down when they know I’m in the case.
  8. Don’t use an advocate.  They’re all idiots.
  9. No one knows more about special ed law than me.  Trust me.

Ever heard any of these?

OK, here is where I stop lying and start telling you some truths:

  1. The school district is always wrong.  No, they’re not and sometimes you or your lawyer needs to listen to find the best way to resolve the case.
  2. I guarantee you’ll win.  No lawyer should ever say this, especially in sped law cases.  Not only does the case depend on the facts, it depends on the Hearing Officer or Administrative Law Judge that hears the case.
  3. Of course I’ll handle your case pro bono (for free).  Be very wary of an attorney who says this.  It might be an attorney who has never handled a special ed case before.  That spells Trouble with a capital T.
  4. Your kid deserves a one-to-one aide (no matter what).  Although parents might like to hear this, it is seldom true.
  5. No IEP? I’ll get your kid one immediately.  What if your child isn’t eligible for an IEP?  And usually having a lawyer involved at eligibility stage is a bad thing (because the school district will get their lawyer involved and they’ll tell two friends and so on and so on . . . nothing will ever get accomplished.)
  6. This case will be over in a week.  If a lawyer says this to you, RUN AWAY VERY FAST.  No special ed case is over in a week.  EVER.
  7. This school district and its attorneys always back down when they know I’m in the case.  Oh really? Why is that Captain Ego?  How many times have you actually interacted with this school district?
  8. Don’t use an advocate.  They’re all idiots.  Actually, most advocates are quite talented.  They have their limits, but real special ed lawyers like trained advocates because they help the parents at a much reduced cost and know when to get the lawyer involved.
  9. No one knows more about special ed law than me.  Trust me.  Umm, no, don’t trust a lawyer who says this.  It is a sales pitch, probably by someone who wants your child to be the guinea pig on the lawyer’s first special ed case.

So why did I write a post like this? and am I lying again?

Many parents of children with disabilities don’t even know that special education law exists, let alone what their rights are.  Too many lawyers are trying to ‘cash in’ on this burgeoning area of the law.  It is kind of like those digging for gold in the Wild Wild West, only there isn’t any gold.

I want you to be careful.  From a selfish perspective, I’ve seen too many lawyers who don’t know what they’re doing in this area make bad law for the parents who fight these battles later.  (One example is the Batchelor case out of the 3rd Circuit.  An employment law attorney named Frank Schwartz made really bad law probably because he knew nothing about special ed law.)

Here is the point: a special education case involves the education of YOUR child.  Do you really want to trust your child’s future to a lawyer who just wants to make some money?  If you want the best possible result for your child, you need to invest time in researching your special ed lawyer as much as you do researching the therapies and physicians who help your child.  If you don’t, you may end up spending a lot of money (paying YOUR lawyer) with very little results (or worse, negative results).   Work closely with your lawyer (and/or advocate) to make sure you have a ‘team’ approach to the case.  After all, it is about YOUR child.  In the end, you will be much happier and won’t think all lawyers are jerks.  And liars.

I wouldn’t lie about this. (Even though I’m a lawyer.)

Now, back to more lying:

I’m naturally thin and eat cheesecake for every meal.  😉