, J.D., Special Ed Law & Advocacy Strategies

March 16, 2004

You receive this email newsletter by request.

To be removed, click the link at the bottom of the page

View this newsletter online at: reedmartin.com/specialedonlinenewsletter53.htm

A weekly newsletter from

s Media, LLC

REED MARTIN, J.D.

SPECIAL EDUCATION LAW & ADVOCACY STRATEGIES

Your Special Education Resource Center

http://www.reedmartin.com

March 16, 2004

Attention: If you hit the spam button instead of the delete button you will be removed from the list permanently. You have to send confirmation that you made a mistake for the system to allow your email to be reinstated

Special Education Calendar

View our calendar of events

Promote your event - submit your request

nochildwithadisabilityleftbehind.com/

calendar/month.php?date=20040301

Join us in the chat room EVERY Thursday night 9:00 - 10:30 PM, EST

Only 4 days left to save $10 on Early Registration for Reading & burg, PA Workshops

Reading, PA

burg, PA

Join Our Exclusive Community!

POWER Membership

(Parents Organizing to Win Educational Rights)

Benefits include an exclusive membership web community with message board, chat room, parent corner, member highlights, member stories, FREE workshops, STRATEGIES newsletter and more!

Only $25 a Year (7 cents a day)

Includes: LRE Text Workshop Session I; No Child Left Behind Mini Audio Workshop; IEP Report Video Workshop; Being an Advocate Audio Workshop, Getting Your Child With Autism an Independent Evaluation Audio Workshop; Chat Room; Message Board and more!

More Information

NEW WEB SITE No Child With A Disability Left Behind.com

Your One-Stop Resource for No Child Left Behind Information

www.nochildwithadisabilityleftbehind.com

New No Child Left Behind Information

No Child Left Behind Implementation

New, Flexible Policies Help Teachers Become Highly Qualified

NEW

Teacher Quality website

ARE YOU USING YOU MOST EFFECTIVE ADVOCACY TOOL?

PRIOR WRITTEN NOTICE

Thirty years ago Congress placed in the IDEA the problem solving process called, Prior Written Notice.

PWN Is one of your Procedural Safeguards

PWN must be given to the parent in writing

PWN is not the notice regarding your upcoming meeting.

Learn what PWN is and is not by one of the nation's leading experts in special education law,

This 30 minute Video CD describes our most important procedural safeguard, Prior Written Notice. Plays with Windows Media Player

POWER Members Save $2.00 - Pay in the POWER Site

No Child With A Disability Left Behind Video CD w/HandoutPrice $15.00 Quantity

Child Find in IDEA

§300.125 Child find.

(a) General requirement.

(1) The State must have in effect policies and procedures to ensure that—

(i) All children with disabilities residing in the State, including children with disabilities attending private schools, regardless of the severity of their disability, and who are in need of special education and related services, are identified, located, and evaluated; and

(ii) A practical method is developed and implemented to determine which children are currently receiving needed special education and related services.

(2) The requirements of paragraph (a)(1) of this section apply to—

(i) Highly mobile children with disabilities (such as migrant and homeless children); and

(ii) Children who are suspected of being a child with a disability under §300.7 and in need of special education, even though they are advancing from grade to grade.

( Documents relating to child find. The State must have on file with the Secretary the policies and procedures described in paragraph (a) of this section, including—

(1) The name of the State agency (if other than the SEA) responsible for coordinating the planning and implementation of the policies and procedures under paragraph (a) of this section;

(2) The name of each agency that participates in the planning and implementation of the child find activities and a description of the nature and extent of its participation;

(3) A description of how the policies and procedures under paragraph (a) of this section will be monitored to ensure that the SEA obtains—

(i) The number of children with disabilities within each disability category that have been identified, located, and evaluated; and

(ii) Information adequate to evaluate the effectiveness of those policies and procedures; and

(4) A description of the method the State uses to determine which children are currently receiving special education and related services.

(1) In States where the SEA and the State's lead agency for the Part C program are different and the Part C lead agency will be participating in the child find activities described in paragraph (a) of this section, a description of the nature and extent of the Part C lead agency's participation must be included under paragraph ((2) of this section.

(2) With the SEA's agreement, the Part C lead agency's participation may include the actual implementation of child find activities for infants and toddlers with disabilities.

(3) The use of an interagency agreement or other mechanism for providing for the Part C lead agency's participation does not alter or diminish the responsibility of the SEA to ensure compliance with the requirements of this section.

(d) Construction. Nothing in the Act requires that children be classified by their disability so long as each child who has a disability listed in §300.7 and who, by reason of that disability, needs special education and related services is regarded as a child with a disability under Part B of the Act.

(e) Confidentiality of child find data. The collection and use of data to meet the requirements of this section are subject to the confidentiality requirements of §§300.560-300.577.

(Authority: 20 U.S.C. 1412 (a)(3)(A) and ()

Check out our

Web Specials

Must be ordered online

Lots of great bargains

No Child With A Disability Left Behind Manual Set

No Child With A Disability Left Behind Manual, Resource Disk & Video CD Plays with Windows Media Player

No Child With A Disability Left Behind Manual, Resource Disk & Video CDPrice $35.00 Quantity

Educational Tools 4 Kids

Keep your kids learning while having fun. Flash Cards

Software

Educational Workbooks

Musical CD/Tape Sets

Video Tapes

DVD's & More

Great Easter Gifts and they don't cause cavities!

Click here

IS IT TRUE THAT A PARENT CANNOT SUE THE STATE UNDER THE IDEA, FERPA, SECTION 504, OR THE ADA?

Pace v. Bogalusa City Sch. Bd.

(325 F.3d 609, 5th Circuit 2003)

, J.D.

A recent post on our message board

A recent posting on one of our message boards asked about a Federal Court of Appeals decision that said parents can no longer sue their State in special education matters. Could that be? What would that do to our advocacy strategies? What would that do to the power of the parent to stand up to their local school district and their State Education Agency?

We felt we should answer this on our site, for everyone, rather than just on a thread in that chat room.

This case is one of the most seemingly self-contradictory decisions we have ever read in the 36 years that we have been concentrating on special education law. Basically the Court’s decision suggests:

First, that only IDEA claims can be raised in special education cases and non-IDEA claims such as FERPA (the Family Educational Rights and Privacy Act), Section 504 and the ADA (Americans with Disabilities Act) cannot be raised in special education matters, and

Second, that the Eleventh Amendment to the U.S. Constitution prohibits suits by a citizen against their State even in an IDEA issue. An aggrieved parent cannot sue their State Education Agency?

View the complete article:

http://www.reedmartin.com/suingthestate.htm

April 17- Freehold, NJ No Child With A Disability Left Behind Workshop by

Only $35 if paid by 4/10

Evaluation Quick Tip Slide Show

Click Here

New No Child Left Behind Flexibility: Highly Qualified TeachersFact Sheet

Under No Child Left Behind, our nation made a commitment to ensuring that every student has a great teacher. These new policies will help us keep that promise so that every child can reach his or her potential." -U.S. Secretary of Education Rod Paige

States are now preparing to meet the 2005-06 deadline for ensuring all of their teachers are highly qualified. Ahead of that deadline, the Department is providing three new areas of flexibility for teachers to demonstrate that they are highly qualified. This flexibility will benefit teachers, local and state administrators, and most importantly--students.

New Flexibility

I. Rural TeachersApproximately one-third--or almost 5,000--of all school districts in the United States are considered rural. As Department officials have traveled the country listening to teachers and state and district officials, they frequently have heard that the highly qualified teacher provisions of the No Child Left Behind law don't adequately accommodate the special challenges faced by teachers in small, rural districts. Often, the teachers in these areas are required to teach more than one academic subject. This new flexibility is designed to recognize this challenge and provide additional time for these teachers to prove that they are highly qualified.

o Under this new policy, teachers in eligible, rural districts who are highly qualified in at least one subject will have three years to become highly qualified in the additional subjects they teach. They must also be provided professional development, intense supervision or structured mentoring to become highly qualified in those additional subjects.

II. Science TeachersScience teachers, like rural teachers, are often needed to teach in more than one field of science. Some states allow such science teachers to be certified under a general science certification, while others require a subject-specific certification (such as physics, biology or chemistry). In science, where demand for teachers is so high, the Department is issuing additional flexibility for teachers to demonstrate that they are highly qualified.

o Now, states may determine--based on their current certification requirements--to allow science teachers to demonstrate that they are highly qualified either in "broad field" science or individual fields of science (such as physics, biology or chemistry).

III. Current Multi-subject TeachersCurrent teachers do not have to return to school or take a test in every subject to demonstrate that they meet highly qualified requirements. No Child Left Behind allows states to create an alternative method (High, Objective, Uniform State Standard of Evaluation or HOUSSE) for teachers not new to the field--as determined by each state--to certify they know the subject they teach. But, for multi-subject teachers, this alternate process could become unnecessarily protracted and repetitive as they go through the HOUSSE process for each subject.

o Under the new guidelines, states may streamline this evaluation process by developing a method for current, multi-subject teachers to demonstrate through one process that they are highly qualified in each of their subjects and maintain the same high standards in subject matter mastery.

Existing Flexibility

A common theme emerged from frequent meetings, visits and listening sessions with teachers and state and local officials across the country: States haven't been taking full advantage of flexibility (in requirements and in funding) already at their disposal through No Child Left Behind. Outlined below are some of these untapped areas:

I. HOUSSE for Current TeachersNo Child Left Behind does not require current teachers to return to school or get a degree in every subject they teach to demonstrate that they are highly qualified. The law allows them to provide an alternate method (HOUSSE) for experienced teachers to demonstrate subject-matter competency that recognizes, among other things, the experience, expertise, and professional training garnered over time in the profession.

II. Middle School Teacher RequirementsImportantly, states have the authority to define which grades constitute elementary and middle school. States may determine, by reviewing the degree of technicality of the subject matter being taught and the rigor of knowledge needed by the teacher, whether demonstrating competency as an elementary or as a middle school teacher is appropriate. In addition, states may approve rigorous content-area assessments that are developed specifically for middle school teachers aligned with middle school content and academic standards.

III. Testing FlexibilityNCLB provides flexibility in developing assessments for teachers to demonstrate subject-matter competency. States may tailor teacher tests to the subjects and level of knowledge needed for effective instruction.

IV. Special Education TeachersThe highly qualified teacher requirements apply only to teachers providing direct instruction in core academic subjects. Special educators who do not directly instruct students in core academic subjects or who provide only consultation to highly qualified teachers in adapting curricula, using behavioral supports and interventions or selecting appropriate accommodations, do not need to demonstrate subject-matter competency in those subjects.

Congress, in the context of the Individuals with Disabilities Education Act (IDEA) reauthorization, is considering modifying how the highly qualified teacher provisions of NCLB apply to special education teachers. The Department looks forward to working with Congress in addressing this need.

Terms to Know: Highly Qualified Teachers

· Highly Qualified Teachers: To be deemed highly qualified, teachers must have: 1) a bachelor's degree, 2) full state certification or licensure, and 3) prove that they know each subject they teach.

· State Requirements: NCLB requires states to 1) measure the extent to which all students have highly qualified teachers, particularly minority and disadvantaged students, 2) adopt goals and plans to ensure all teachers are highly qualified and, 3) publicly report plans and progress in meeting teacher quality goals.

· Demonstration of Competency: Teachers (in middle and high school) must prove that they know the subject they teach with: 1) a major in the subject they teach, 2) credits equivalent to a major in the subject, 3) passage of a state-developed test, 4) HOUSSE (for current teachers only, see below), 5) an advanced certification from the state, or 6) a graduate degree.

· High, Objective, Uniform State Standard of Evaluation (HOUSSE): NCLB allows states to develop an additional way for current teachers to demonstrate subject-matter competency and meet highly qualified teacher requirements. Proof may consist of a combination of teaching experience, professional development, and knowledge in the subject garnered over time in the profession.

Legal Issues In Locating, Identifying And Educating Children With Dyslexia And Other Reading Disabilities

, J.D.

http://www.reedmartin.com/legalissuesandreading.htm

How early should schools be able to locate students with reading problems?

The "child find" duty is present for all students, 0-21, but reading problems are first noticed typically when the child enters structured education that formally includes reading instruction. That is typically in the first grade.

But if the child is in a program operated by a public agency prior to that time, and the precursors of reading problems are evident, that public agency must have some ability to pursue identification as described below.

Child find is in the IDEA at 20 U.S.C. 1412(a)(3) and 34 C.F.R. 300.125.

Notice of the parents and student’s rights has to be made available to parents under the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act of 1973 (Section 504) and the Americans with Disabilities Act (ADA) relative to the duties of your school district and your State Education Agency to determine how to meet the needs of students with disabilities.

Q. At my last IEP meeting I wanted to discuss physical therapy needs. The school said "physical therapy is a personnel issue and cannot be discussed at an IEP meeting." Are they right?

A. They could not possibly be more wrong.

There were some early rulings on this, many years ago, because parents would go to IEP meetings and say "I understand that Mrs. is wonderful with children like mine so I insist that Mrs. be my child's teacher." Schools refused to do that and the federal Office of Special Education Programs responded by raising the obvious problem. The IEP is typically in the Spring and does not begin until the Fall. What if Mrs. is no longer there? So the rule became that IEP meetings should not discuss specific personnel by name, and that assignment of specific personnel to carry out a program was to be left to the administration.

View the complete article: http://www.reedmartin.com/askreedphysicaltherapy.htm

Independent Evaluation

Q. For those who have been requested an independent evaluation, I'm curious as to how the mechanics work

View the answer: http://www.reedmartin.com/independentevaluation.htm

A. You need to nail down the site of the evaluations you need (classroom observation, in-home observation, playground social interaction) and evaluation tools (are we asking for an IQ test, etc.) You need to make sure that the evaluator(s) followed the test protocol. In my cases I had virtually all school board evaluations thrown out because we could show that they did not follow the protocol for the test they were using (for example -- untimed, quiet place, student could use assistive technology, whatever. Typically the school's diagnostician will be rushed by the school and might violate the test protocol. There should be a thorough review of all records on the student and the evaluator should observe the student in natural settings. It may require a team (more than one evaluator) to get what you need. If you are going to use the evaluator as a witness at a Hearing or trial then you might ask if he/she had testified as an expert witness at any previous trial and ask to see a copy of their testimony. Some very bright and amiable experts turn to absolute stone when cross examined in a trial setting.

Who pays for the evaluation obviously tilts the scale in terms of setting up what is to be evaluated, etc. It is impossible for a parent (or even a school) to say "just evaluate as long as you need and forget the expense." I had a Hearing in which the current evaluations did not ring true at trial and the Hearing Officer ordered an evaluation, by five different diagnosticians, at the expense of the State Education Agency. After $18,000 had been spent we were still no closer to an agreement. (Let me add, just to give closure, we won the case and the student got what they needed, paid for by the State.) So make sure going in that you know what will be evaluated, by whom, reported to whom, at what expense, and so forth.

Initial Evaluation under the IDEA

§300.320 Initial evaluations. (a) Each public agency shall ensure that a full and individual evaluation is conducted for each child being considered for special education and related services under Part B of the Act—

(1) To determine if the child is a "child with a disability" under §300.7; and

(2) To determine the educational needs of the child.

( In implementing the requirements of paragraph (a) of this section, the public agency shall ensure that—

(1) The evaluation is conducted in accordance with the procedures described in §§300.530-300.535; and

(2) The results of the evaluation are used by the child's IEP team in meeting the requirements of §§300.340-300.350.

http://www.reedmartin.com/initialevaluationunderidea.htm

The information in this email and website is educational and not intended to be legal advice

s Media, LLC

P. O. Box 4003town WV 26504-4003

(P) (F)

connie@... www.reedmartin.com

www.specialedadvocate.com www.educationaltools4kids.com