[Fwd: The Special Ed Advocate, April 20, 2005 (Issue 306)]

[Guest guest]

This is a free online newsletter that can be very helpful, especially at

IEP time. Michele tld me about it.

Meg

--- The Special Ed Advocate, April 20, 2005 (Issue 306)

Date: Wed, 20 Apr 2005 17:38:05 -0700

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The Special Ed Advocate Newsletter

April 20, 2005

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Home <http://www.wrightslaw.com>

Issue - 306

ISSN: 1538-3202

In this Issue

1. IDEA 2004: Guidance from USDOE <#1>

2. slaw: IDEA 2004 - Coming Soon!

3. Section 504 Protects Special Ed Teacher from Retaliation <#3>

4. Section 504 - Child Not Eligible for Money Damages in IDEA Case <#4>

5. slaw Programs in NH, IL, MI, HI <#7>

6. Find Help & Helpers at Yellow Pages for Kids <#8>

7. Subscription & Contact Info

<#9>

Subscribe

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Dear Meg Hefner

This issue of The Special Ed Advocate

<http://www.wrightslaw.com/subscribe.htm> includes guidance on IDEA 2004

and new cases about retaliation and damages under Section 504.

Highlights: IDEA 2004 - guidance from U. S. Department of Ed;

slaw: IDEA 2004 - coming soon; Section 504 protects special ed

teacher from retaliation; Section 504 - child not eligible for damages

in IDEA case; slaw programs in NH, IL, MI, HI; find help and

helpers at Yellow Pages for Kids.

The Special Ed Advocate newsletter is free - please forward this issue

<http://www.wrightslaw.com/nltr/05/nl.0420.htm> or the subscription link

<http://www.wrightslaw.com/subscribe.htm> to your friends and colleagues

so they can learn about special education law and advocacy too. We

appreciate your help! Download this issue

<http://www.wrightslaw.com/nltr/05/nl.0420.htm>.

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1. IDEA 2004: Guidance from U. S. Dept of Education

The Individuals with Disabilities Education Act of 2004

<http://www.wrightslaw.com/idea/> takes effect on July 1, 2005. Do you

know how the law will affect you? Your child? Your school, school

district and state?

The U. S. Department of Education is publishing documents to " support

constituents in preparing to implement the new requirements. " Each

document focuses on a specific topic or legal issue (IEPs, assessments,

discipline, procedural safeguards, etc.).

These documents have been reviewed by the U.S. Department of Education,

Office of Special Education Programs (OSEP), for consistency with IDEA

2004.

State and Districtwide Assessments

<http://www.wrightslaw.com/idea/osep/assessments.pdf> - new requirements

about accommodations; alternate assessments; new reporting requirements;

information required in IEPs (2 pages)

Discipline <http://www.wrightslaw.com/idea/osep/discipline.pdf> - new

standards for manifestation determinations; new authority for school

personnel; new standard for " special circumstances " ; new definition of

serious bodily injury; authority of hearing officer; expedited hearings

(3 pages)

Disproportionality and Overidentification

<http://www.wrightslaw.com/idea/osep/overidentify.pdf> - policies and

procedures; collection and examination of data; new requirements when

reviewing policies and procedures. (2 pages)

Early Intervening Services

<http://www.wrightslaw.com/idea/osep/early.intervening.pdf> - describes

activities to implement early intervening services; professional

development; evaluations; scientifically based literacy instruction;

reporting requirements; use of funds. (2 pages)

Highly Qualified Special Education Teachers

<http://www.wrightslaw.com/idea/osep/hqt.pdf> - new definition of highly

qualified special education teacher; requirements for special ed

teachers who teach to alternate achievement standards and multiple

subjects; related services personnel and paraprofessionals; personnel

development plans. (4 pages)

Initial Evaluations and Reevaluations

<http://www.wrightslaw.com/idea/osep/eval.reeval.pdf> - new provisions

about parental consent for children who are wards of state; new 60-day

timeline for initial evaluations; new procedures for evaluating children

who may have specific learning disabilities; new procedures for

reevaluations; new evaluation requirements before change in eligibility;

new requirements about evaluating present levels of academic achievement

and developmental needs of child.

(3 pages)

Individualized Education Programs (IEPs)

<http://www.wrightslaw.com/idea/osep/iep.pdf> - new requirements for

present levels of educational performance; accommodations; assessments;

changes in measurable annual goals, measuring and reporting progress;

new requirements about services based on peer-reviewed research; changes

in transition requirements; new requirements for children who transfer

within and between states. (3 pages)

Individualized Education Program (IEP) Team Meetings and Changing the

IEP <http://www.wrightslaw.com/idea/osep/iep.team.pdf> - required

members of IEP team; changes in IEP team member attendance; new rules

about excusal from IEP meetings; new provisions about changing IEPs;

consolidation of meetings; alternate ways to participate in meetings. (2

pages)

Aligning IDEA with the No Child Left Behind Act

<http://www.wrightslaw.com/idea/osep/nclb.align.pdf> - addition of new

definitions (core academic subjects, limited English proficient, highly

qualified teacher); performance goals and indicators; requirements about

reporting progress in educating children with disabilities to public and

state; alternate achievement standards; records of migratory children;

eligibility determination; personnel development plans. (3 pages)

Preschool: Age 3 to Kindergarten

<http://www.wrightslaw.com/idea/osep/preschool.option.pdf> - Part C

funds for children ages 3 to Kindergarten; expanded definition of

" infants and toddlers " ; new policies re: notice to parents, educational

components; consent. (3 pages)

Children Enrolled By Their Parents In Private Schools

<http://www.wrightslaw.com/idea/osep/private.school.pdf> - requirements

about providing services to children who attend private schools; 'child

find' requirements for children who attend private schools; equitable

participation; new requirements about children evaluated and found

eligible; new requirements for consultation between public and private

school representatives; written affirmation requirements; right to

complain to SEA.

Procedural Safeguards: Surrogates, Notice and Consent

<http://www.wrightslaw.com/idea/osep/safeguards.notice.consent.pdf> -

new procedures for appointing surrogate parents; revised requirements

about procedural safeguards notice to parents; additions to notice

content, requests for due process hearings, civil actions; consent for

wards of the state. (3 pages)

Procedural Safeguards: Mediation and Resolution Sessions

<http://www.wrightslaw.com/idea/osep/safeguards.med.resolution.pdf> -

new mediation requirements; new requirements about meeting with a

" disinterested party " ; new requirements about legally binding

agreements, confidentiality of discussions, enforceability of agreement;

new requirements for " resolution sessions " ; limitations on attorneys'

fees. (2 pages)

Procedural Safeguards: Due Process Hearings

<http://www.wrightslaw.com/idea/osep/safeguards.due.process.pdf> -

clarifies who may request a due process hearing; specifies timelines for

requesting due process hearings; new prior written notice requirements

and timelines; new requirements for hearing officers; new guidelines for

issues raised at due process hearings; new parameters for hearing

officer decisions; timelines for bringing a civil action; additional

provisions for awarding attorneys fees.

Go to Changes in the IDEA 2004: Guidance from OSEP

<http://www.wrightslaw.com/idea/osep.statute.htm> for the complete list

of guidance documents. As additional publications are approved by the U.

S. Department of Education, we will add them to this page

<http://www.wrightslaw.com/idea/osep.statute.htm>.

Visit IDEA 2004 <http://www.wrightslaw.com/idea/index.htm> for more

articles and news about IDEA-2004 .

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2. slaw: IDEA 2004 - Coming Soon

We are working on a new publication. slaw: IDEA 2004 describes

changes to the key statutes of IDEA 2004 by section and subsection and

includes extensive commentary by Pete . This publication will be

available before the reauthorized law goes into effect on July 1, 2005.

Subscribers to The Special Ed Advocate newsletter

<http://www.wrightslaw.com/subscribe.htm> will receive advance notice by

email before slaw: IDEA 2004 is available to the public. Watch

your email box - we'll keep you posted.

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3. Section 504 Protects Special Ed Teacher from Retaliation

Sturm worked as a special education teacher at Griswald Middle

School in Rocky Hill, CT from 1998 to 2003. She advocated for her

students. In March, 2003, she was told that her contract would not be

renewed and she was " allowed to resign. " When she applied for other

positions, she was not hired.

Ms. Sturm filed a lawsuit against the Rocky Hill School Board. She

claimed that the district violated her First Amendment right to freedom

of speech. She alleged that the district retaliated against her in

violation of Section 504 of the Rehabilitation Act. She alleged that

school administrators made statements that were " defamatory or invaded

her privacy by placing her in a false light " and that the district was

liable for wrongful discharge under state law.

The school district responded with a motion to dismiss all counts in her

complaint.

On March 29, 2005, the U. S. District Court of Connecticut issued a

ruling on the school board's motion to dismiss and allowed her case to

go forward on the following issues: violation of First Amendment rights

under federal and state law, and retaliation under Section 504.

The court wrote: " Section 504 of the Rehabilitation Act expressly

incorporates the anti-retaliation provision of Section 503 of the

Americans with Disabilities Act . . [that] prohibits retaliation against

any individual because he or she opposes any act or practice made

unlawful by the act. Courts have extended protection against retaliation

under the Rehabilitation Act to those who advocate on behalf of the

disabled . . . Because the plaintiff has standing to claim retaliation

based on her efforts on behalf of her students, the motion to dismiss is

denied . . . "

Read the ruling in Sturm v. Rocky Hill Board of Education

<http://www.wrightslaw.com/law/caselaw/05/sturm.rockyhill.ct.pdf> (U. S.

District Court, District of Connecticut)

Note: This ruling is in pdf so you must have Adobe Acrobat PDF Reader on

your computer to read it. If you don't already have Adobe Acrobat

Reader, you can download a FREE copy here

<http://www.adobe.com/products/acrobat/readermain.html>. It's a nifty

program and you'll use it a lot.

Learn more about retaliation

<http://www.wrightslaw.com/info/retal.index.htm>.

Retaliation Caselaw: Pamella Settlegoode v. Portland Public Schools

<http://www.wrightslaw.com/law/caselaw/04/9th.settlegoode.portland.htm>

- the U. S. Court of Appeals for the Ninth Circuit reinstated the 1

million dollar jury award to the special ed teacher who was retaliated

against and fired for advocating for her students. This decision also

clarified freedom of speech for teachers.

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4. Section 504: Child Not Eligible for Damages in IDEA Case

On March 30, 2005, the U. S. Court of Appeals for the Fourth Circuit

issued a new decision about monetary damages under Section 504 in J. S.

v. Isle of Wight (VA)

<http://www.wrightslaw.com/law/caselaw/05/4th.js.islewight.va.sol.damages.htm>.

This case involved J. S., a child who was found eligible for special

education services at the end of 1st grade. After he completed 3rd

grade, he moved to a different school district. Although he had an IEP,

the new school did implement the IEP, develop a new IEP, or provide

special education services.

When his mother requested that the school evaluate him, the school

resisted and " her efforts to have J. S. tested proved unsuccessful. " The

school finally evaluated J. S. when he was in the sixth grade and

concluded that he had a disability and was eligible for special

education services. At that time, an IEP was developed.

In January 2003, J. S.'s mother filed suit against the Isle of Wight

school board, superintendent, and special education director. Count I of

her complaint asserted that the school district violated the IDEA. Count

II alleged that the school district discriminated against J. S. because

of his disability, a violation of Section 504. Count III alleged that

his civil rights under 42 U.S.C. § 1983 were violated.

The school district admitted that that they violated the IDEA, agreed to

comply with " all applicable provisions of IDEA " , and agreed to pay costs

and attorney's fees associated with his claims under IDEA.

In J. S. v, Isle of Wight

<http://www.wrightslaw.com/law/caselaw/05/4th.js.islewight.va.sol.damages.htm>,

the Court discussed statutes of limitations - the fact that Section 504

does not contain a statute of limitations, the federal " borrowing "

doctrine, notice of claims provision, then tackled the issue of money

damages for failure to provide FAPE.

" Finally, we address J.S.'s attempt to recover money damages under §

1983 for the defendants' admitted violation of the IDEA. We clearly

disapproved of this practice in Sellers

<http://www.wrightslaw.com/law/caselaw/4th.sellers.manassas.damages.htm>

.. . . [and] held that 'parties may not sue under section 1983 for an

IDEA violation.' Sellers

<http://www.wrightslaw.com/law/caselaw/4th.sellers.manassas.damages.htm>,

141 F.3d at 529. "

The Court found: " . . . the defendants in this case have not only

conceded their violation of the IDEA, but have tendered to J.S. all

forms of relief that he was entitled to receive under the statute,

including: (1) an agreement to comply with all applicable provisions of

the IDEA concerning J.S.'s right to a free and appropriate public

education; and (2) an award of costs and attorney's fees. "

" Having obtained exactly what he was entitled to receive under the IDEA,

J.S. cannot reasonably maintain that a deficiency in the statute's

remedial scheme justifies an enforcement action under § 1983. "

Does this mean that damages are never available under Section 504? These

decisions will help you sort these issues out:

W.B. v. Matula

<http://www.wrightslaw.com/law/caselaw/3rd.wb.matula.pdf>, U. S. Court

of Appeals for the Third Circuit. Availability of damages under Section

504, IDEA, and Section 1983 when district refused to evaluate, classify

and provide appropriate services to disabled child; exhaustion,

qualified immunity, due process (1995).

Witte v. County Sch. Bd

<http://www.wrightslaw.com/law/caselaw/case_Witte_Co_9th_991202.pdf>,

U. S. Court of Appeals for the Ninth Circuit finds that damages are

available in school brutality case. (1999)

Polera v. Bd Ed. Newburgh City Sch. Dist

<http://www.wrightslaw.com/law/caselaw/2002/2nd.polera.newburgh.504.exhaust.htm>\

,

U. S. Court of Appeals for the Second Circuit found that the disabled

child must first exhaust administrative remedies under IDEA before (2002).

More Special Education Caselaw <http://www.wrightslaw.com/caselaw.htm>.

Learn about Section 504

<http://www.wrightslaw.com/info/sec504.index.htm> - frequently asked

questions, articles, caselaw, free pubs.

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5. Coming Up! slaw Programs in New Hampshire, Illinois, Michigan,

Hawaii

<http://www.wrightslaw.com/speak/index.htm>slaw Special Education

Law and Advocacy Training Programs

<http://www.wrightslaw.com/speak/index.htm> focus on four areas: special

education laws including significant changes in IDEA 2004; how to use

the bell curve to measure educational progress & regression; SMART IEPs;

and advocacy tactics & strategies.

Manchester, NH: May 6-7, 2005 (Boot Camp)

<http://www.wrightslaw.com/speak/05.05.nh.htm>

Springfield, IL - May 13-14, 2005 (Boot Camp)

<http://www.wrightslaw.com/speak/05.05.il.htm>

Oakland Schools, Waterford, MI - May 24, 2005 (Special Education Law &

Advocacy Training) <http://www.wrightslaw.com/speak/05.05.mi.htm> -

Attorney Wayne Steedman

<http://www.wrightslaw.com/speak/steedman/bio.htm> and advocate Pat

Howey <http://www.wrightslaw.com/speak/howey/bio.htm> present a full-day

slaw training program - NEW!

Hilo, HI - July 29, 2005 - LDA Conference (Keynote Speakers &

Presenters) <http://www.wrightslaw.com/speak/05.07.hi.htm>

Hilo, HI - July 30-31, 2005 - Boot Camp

<http://www.wrightslaw.com/speak/05.07.hi.htm>

Schedule <http://www.wrightslaw.com/speak/index.htm> l Programs

<http://www.wrightslaw.com/speak/programs.htm> l Speakers

<http://www.wrightslaw.com/speak/speakers.htm> l FAQs

<http://www.wrightslaw.com/speak/faqs.htm>

<http://www.wrightslaw.com/speak/speakers.htm>

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6. Need Help? Visit the Yellow Pages for Kids

If you are looking for help - or a helper - visit the Yellow Pages for

Kids with Disabilities <http://www.yellowpagesforkids.com>. Your state

Yellow Pages <http://www.yellowpagesforkids.com> has many resources -

evaluators, speech language therapists, tutors, special ed schools,

advocates, attorneys, organizations, and support groups.

These articles will help:

Working with Independent Evaluators and Educational Consultants

<http://www.fetaweb.com/01/consultants.htm>

Strategies to Find a Support or Study Group

<http://www.wrightslaw.com/info/advo.parent.group.htm>

Help Others: Please print and distribute Flyers for Your State Yellow

Pages for Kids <http://www.yellowpagesforkids.com/help/state.flyers.htm>.

Free Listings in the Yellow Pages: If you help parents get services for

children (i.e., an evaluator, educational consultant, academic tutor,

advocate, attorney, special ed school, etc.) or you facilitate a support

or study group for parents, submit an application be listed in the

Yellow Pages for Kids. Send an email to app@...

for an application. Listings in the

Yellow Pages are free.

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7. Subscription & Contact Info

The Special Ed Advocate <http://www.wrightslaw.com/subscribe.htm> is a

free online newsletter about special education legal and advocacy

issues, cases, and tactics and strategies. Subscribers receive " alerts "

about new cases, events, and special offers on slaw books.

Law Library <http://www.wrightslaw.com/law.htm> Seminars & Training

<http://www.wrightslaw.com/speak/index.htm>

Advocacy <http://www.wrightslaw.com/advoc.htm> Yellow Pages for Kids

<http://www.yellowpagesforkids.com>

No Child Left Behind <http://www.wrightslaw.com/nclb/> Free Newsletter

<http://www.wrightslaw.com/subscribe.htm>

IDEA 2004 <http://www.wrightslaw.com/law/idea/index.htm> Newsletter

Archives <http://www.wrightslaw.com/archives.htm>

Contact Info

Pete and Pam

slaw & The Special Ed Advocate

P. O. Box 1008

Deltaville, VA 23043

Website: http://www.wrightslaw.com

Email: newsletter@...

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[Guest guest]

These are the folks that do the training that I've told you guys about

in the past. It's a phenomenal advocacy training! If it comes to your

area, I highly recommend it. You will never attend an IEP meeting the

same. And then the website and newsletter are wonderful resources to

find any kind of info you need. I think Doolittle's legal case

is documented on the 's Law site.

Michele W

Meg Hefner wrote:

> This is a free online newsletter that can be very helpful, especially at

> IEP time. Michele tld me about it.