Special Education Advocacy for Juvenile Defenders OPD JTIP TRAINING Juvenile Defense Training Academy Race, Equity and Representing Juveniles UW Law School July 22, 2017 Nicole McGrath Attorney
Outline of Presentation What is Special Education? ◦ The Individuals with Disabilities Education Act (IDEA) ◦ Free Appropriate Public Education (FAPE) ◦ Child Find for Eligibility ◦ Discipline of Students with Disabilities — the Manifestation Determination Review (MDR) ◦ Section 504 of the Rehabilitation Act
Outline of Presentation How to Use Special Education Law in Delinquency Cases Client Interview Obtaining School records School Discipline Proceedings Pretrial, trial, transfer hearings, disposition, placement and reentry
Role of Juvenile Defender in Education Advocacy What is educational advocacy? What is the role of the juvenile defender in educational advocacy?
What is Special Education? A set of services and protections providing disabled students ◦ Between the ages of 3 and 21 ◦ With a Free and Appropriate Public Education (FAPE) ◦ In the Least Restrictive Environment (LRE) ◦ Includes youth in juvenile facilities
What is Special Education? Specially designed instruction, at no cost to the parents, to meet the unique needs of a disabled child, including: Instruction in the classroom, home, hospitals, institutions, and other settings Instruction in physical education Speech-language pathology and other related services Vocational education
What Special Education is Not A code word for mental retardation A particular class room Cookie- cutter “one size fits all” services Subject to availability or cost A privilege
Special Education: Our goal is to… Understand eligibility for special education and Section 504 accommodations. Understand how students are identified for special education and 504. Understand how to craft an IEP that includes the appropriate instruction, supports, services, accommodations, modifications, goals and school placement for an eligible student.
Sources of Special Education Law Federal Sources ◦ IDEA 2004 (20 U.S.C. § 1400 et al.) ◦ Federal Regulations (34 C.F.R. 300 et al.) ◦ Section 504 (of the Rehabilitation Act of 1973); State Sources ◦ State Statutes ◦ Chapter 343 Special Education and Other Specialized Education Services ◦ State Regulations ◦ DIVISION 15 SPECIAL EDUCATION OARs 581-015-2000 et al Local Sources ◦ Local School District Student Handbooks and Codes of Conduct
Basic Special Education Law Eligibility for Special Education and Related Services Students are eligible if they have a qualifying disability that adversely affects educational performance. OR provides special education for children 3-21 Qualifying disabilities are those identified in the Individuals with Disabilities Education Act (IDEA) OR also recognizes pre school children who experiencing physical, cognitive, communication, social or emotional, or adaptive development as having a developmental delay These children will also be eligible for special education and related services A child who is otherwise eligible for special education even if they make passing grades and advance grade to grade
Entitlements Under the IDEA • FAPE • Modifications and Accommodations • Related Services • Transition Services • LRE • Education with children who are not disabled to the maximum extent appropriate through the use of supplemental aids and services • IEP • An individualized education program developed yearly containing a student’s services, placement and goals • Disciplinary Protections • Other Procedural Safeguards
Everyone’s rights FAPE ◦ Free and Appropriate Public Education LRE ◦ Least Restricted Environment 504/IDEA/IDEIA/ EI/EISE ◦ Federal acts for disability FERPA ◦ Family Education Rights and Privacy Act
Free Appropriate Public Education (FAPE) Free Appropriate Public Education (FAPE) Defined by IDEA as: Special education and related services that, “(A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program requires under [20 U.S.C> § 1414(d)]”
Free Appropriate Public Education (FAPE) Until last month The right to FAPE does not entitle a child to the right to have their educational potential maximized – it is an opportunity floor. a child’s IEP must be “ reasonably calculated to enable the child to receive educational benefits ”
FAPE NOW SCOTUS has redefined FAPE Endrew F. v. Douglas County School Dist 137 S.Ct. 988 2017 WL 1066260 15-827 (March 22, 2017) to meet its substantive obligation under IDEA, schools must offer individual education plan (IEP) reasonably calculated to enable child to make progress appropriate in light of child's circumstances
Special Education: IDEA Definitions How is disability defined under IDEA? 11 or 12 Eligibility Categories. Children in care often qualify under categories of ◦ Emotional Disturbance (ED) ◦ Learning Disabled (LD) and/or ◦ Other Health Impaired (OHI).
SPED Eligibility Categories Intellectual disability; Hearing impairment, including difficulty in hearing and deafness; Speech or language impairment; Visual impairment, including blindness; Deaf-blindness; Emotional disturbance; Orthopedic or other health impairment; Autism; Traumatic brain injury; or Specific learning disabilities.
Parental Rights under the IDEA Parents hold all educational rights for students under the age of 18 Parent can bring knowledgeable individuals to team meetings. Build community-based advocacy team to support child and family. Maintain communication with school officials, including periodic progress reports and participation in school meetings.
Special Education: 504 Definitions Actual Impairment. History of Impairment. Perceived Impairment. Must substantially impact major life activities such as learning.
SPED: Identification Child Find : Principle that schools and mandatory reporters should seek out eligible children to identify, locate and evaluate them within and without their boundary.
Child Find to Eligibility Complex rules based on age ◦ Birth to 3 ◦ 3-5 ◦ School age
IDEA Identification Community Advocates: How do we identify children who may have qualifying disabilities? Multiple Sources: child, family, evaluations (MH assessments or psych. Evaluations), medical evaluations, review of education records, red flags…
IDEA Identification Red-Flags: poor grades, behavioral difficulties, discipline referrals, poor attendance, negative attitude toward school, inattention at school, socially withdrawn, fighting, off-task, frustration, fear, etc.
Sec. 504 Students with a broad range of disabilities must have access to school facilities and programs, similar to non-disabled students. Many students who do not qualify for special education are covered by Section 504.
Sec. 504 Plans Typically describe accommodations the school will make to facilitate a student’s learning Most do not include the specially designed instruction (special education services) found in an IEP.
Sec. 504 Evaluation/Eligibility 504 procedures should mirror IDEA processes: consent, evaluation, 504 meeting, written plan with modifications and accommodations, and possibly specially designed instruction.
IDEA: Evaluation Consent for Testing: Must be informed and received by parent or education surrogate .* caseworker cannot give consent for testing even though they are legal guardian.
IDEA: IEP Individual Education Plan/Program : individualized, written education plan with short-term objectives and measurable annual goals. IEP Team: school or parent/surrogate invites.
IDEA: Evaluation Assessment must address all areas of suspected disability. Assessment must be in child’s native language. Minimum testing described for each disability category.
IDEA: Eligibility Individual Education Plan: in writing, based on assessment and addresses all areas of concern. Timing: IEP must be held within 30 days of eligibility determination. Eligibility meeting after assessments completed.
IEP Schools (LEA) usually develop a written plan for the student’s accommodations.
IDEA: IEP Advocacy Don’t feel pressured to complete in 1 ½ hours… Ask Who, What, Why, When, Where… Ask evaluator to explain assessment Draft IEP brought to meeting is a draft only.
IEP Advocacy Advocate role: Participate in all school meetings if possible IEP Meetings : occur at least annually , can be more frequent if necessary to address the child’s needs.
IDEA: IEP Placement Placement: least restrictive required (LRE) Continuum of placements required.
IDEA: IEP Components Assistive Technology Transition Services Plan Behavioral Intervention Plan (BIP) supported by a Functional Behavioral Assessment (FBA). Extended School Year (ESY) data keeping and determination.
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