By referral, and participate in meetings – example NICU multi-d rounds, newborn rounds. I show up where invited.
Main differences: 504 Plan requires child to be disabled under the ADA, and parents have less protection to changes in the Plan under 504
4 sources of law. Most specific: state regs
Car analogy – you make meaningful progress- a Chevy, not a Rolls-Royce.
Then again, not a Yugo. Doctors can be useful with #3 – can’t write a scrip for ABA, but can ask what research backs up the schools “autism program."
2 federal district court cases: PARC and Mills brought in the early 1970s In PARC, parents of children with intellectual disabilities sued the Commonwealth of Pennsylvania on 14th Amendment grounds for excluding their children from school. In a consent decree entered in PARC, the parties agreed that children with intellectual disabilities were entitled to a public education and could not be excluded from school without a prior hearing. In the Mills case, the District of Columbia was not educating children with disabilities, including children with emotional and behavioral problems, in spite of its acknowledged obligation to do so. In its defense, the District of Columbia claimed it did not have the resources to do so. The Mills court held that the District of Columbia’s duty to educate all children could not be excused on the basis of insufficient resources.
When Use of RTI Violates the Law:When it violates child find!Nothing in the new EIS/RTI provisions mitigates the affirmative duty of the schools to locate, identify, and evaluate any child with a suspected disability who mightneed special education services
If you have concerns about emotional disturbance, it might be worth getting your own clinical evaluation, as school psychologists aren’t always trained in clinical evaluationsYou can also advocate for schools to have clinical evaluation performed.
Let’s talk about the anatomy of an IEP. How many have seen an IEP? How would you describe it? It seems complicated so let’s break it down. There are 3 main parts:Present levels of academic and functional performance.GoalsServicesIn other words, what can the child do now, what would we like the child to be able to do, and what supports and services does the child need the school to provide in order to be able to do those things.First place to start with advocacy is the present levels of performance. This is the place where the students strengths and weaknesses should be recorded. It also the place where the parent’s concerns (or the social worker’s) should be recorded. It’s important to make sure all concerns are recorded in the PLOP b/c the PLOP sets the stage for the goals and services. The goals and services must mirror the concerns identified in the PLOP. That is, you have to address each item identified in the PLOP later in the IEP, and you can’t have goals and services that are not justified in the PLOP. That’s why it is so important.Goals must be SMART: specific, measurable, use action words, be realistic and relevant, and time limited. So what’s wrong with this goal: “Johnny will exhibit behaviors appropriate to her age.” How would you fix it? “By the end of 9 weeks, Johnny will reduce weekly referrals to the office from 5 per week to 3 per week.”Services must be designed to meet the child’s unique needs, not her disability category. Drop-down menus.The IEP drives the placement, not the other way around. What are special education and related services?Special education services include specially designed instruction, provided at no cost to parents to meet the unique needs of a child with a disability. What does that look like?modify curriculum – supply a simpler version of the curriculum for SWDmodify instructional methods – people learn in different ways (listening, watching, doing, pictures)Related Services: services that are required to assist a child to benefit from special ed. Pretty comprehensive:transportationinterpreting services, speech and occupational therapyrecreationcounselingnursing servicessocial workparent counseling, etc.
BIP – Where would we find the def of BIP? (In the SE regs. Page 7)Related services – Where would we find a list of related services? (Page 20)Supplementary aids and services – same (page 23) So if Johnny needs a 1:1 aide in order to stay in the regular classroom, then the school needs to provide it in order for the child to stay in the LRE.Transition (p. 24)IEP must also address the child’s participation in SOLs and the diploma goal. Where a standard or modified standard diploma is even a remote possibility, I advise to check those boxes. Once you check Special Diploma, it will be very difficult to get the child in the classes s/he needs to earn a standard. Can always use other diplomas as a fallback. Student must give informed consent!
Again, this is where medical providers can be helpful – what’s the goal, and is the education practice likely to get the child to the goal? What’s the science backing up the IEP?
Placement: One IEP is developed, IEP team needs to decide on placement. What is placement?can be, but not necessarily a physical locationbasic instructional setting in which the child will be educatedChild must be education in the LRE to the maximum extent appropriateRestrictiveness is measured based on who the child is educated with: the more the child is educated with non-disabled peers, the less restrictive the setting isLEA must provide a continuum of placements, ranging from regular classroom to a special school to home-based tutoringRegular class is default, so IEP must include an explanation of the extent to which the child will not participate with non-disabled children in the regular class
Again, a doctor’s advocacy can fix this disconnect!
Most important thing to remember – YEARS of working with the school are going to be needed. Cooperation is key. Can’t put the lawyer in the middle all day long…
Formal complaint process- litigation – requires a specialist – a lawyer.
What can you do? Advise parents to ask for a MDR when child is suspended.
Determination is made on a case-by-case basis. Write solid evaluations. If the evals say that child is very impulsive and doesn’t think through consequences before acting, then an impulsive act might be caused by the disability.If the eval says the child has poor verbal communication skills and uses non-verbal, sometimes aggressive, behavior to communicate distress, then maybe it is directly and substantially related to the disability.If a child’s IEP sets a goal to improve coping skills, and those skills are not taught, and the child acts out as a result of something going on at home, the behavior could be a direct result of failure to implement the IEP. Also look at BIP to see if school implemented. For example, a child’s behavior intervention plan might say that the child should be permitted to leave the classroom and go to a quieter room when he is feeling anxious or overwhelmed. If the child then acts out as a result of not being permitted to leave the classroom, the conduct might be considered the direct result of failure to implement the IEP.If any one of those factors is met, it is a manifestation, and the child’s placement cannot be changed – cannot be suspended. Must do FBA/BIP.
Important for parent to request that FBA be an evaluation. Why? Because triggers right to IEE.
3rd scenario only comes into play when the child is being long-term removed, so when is it not appropriate to come up with a plan designed to address the behavior so that it does not recur?
What these services actually look like will often depend on the nature and severity of the child’s disability, the length of the removal and any previous removals, and the degree to which the child’s performance lags behind his peersWhat’s the most common placement during disciplinary removal? Almost always home-based. What’s the problem with home-based? No social goalsCan’t progress in general curriculumAlmost always predetermineAlmost always use min # of hours for medical homebound, which DOE says is inappropriate – also not meeting unique needs
Look at this as an investment of your time…. Both for this patient, and future patients.
Maintain credibility – don’t be the 1:1 aide MD, or the untimed SATs MD. IEPs are not like buying a car – we don’t bid high and negotiate from there.
If the parent believes the school cannot or will not provide FAPE, he has two optionscan unilaterally place the child in a private school after giving notice of their intention to seek tuition reimbursement from the schooluse one or more of 3 options for dispute resolution:State Complaint (State Department of Education)MediationDue Process Complaint (Independent Hearing Officer/Administrative Law Judge), followed by appeal to state or federal court (deference to hearing officer).
Leverage means clearly showing why they’d lose at a hearing – not overselling it.
When in doubt, return to first principles.
Why does this help you? Help patients earlier in the process. Why does this help me? Fewer cases that need a lawyer – more people served.
Cell phone for medical providers, not patients!
Prescription pads for education problems 11.2.10
Prescription Pads for Education Problems CAROLYN POINTER, JD NOVEMBER 2, 2010 THE BETTY SAMS CHRISTIAN CHILD HEALTH ADVOCACY PROGRAM AT THE UVA MEDICAL CENTERMEDICAL LEGAL PARTNERSHIPS| CHARLOTTESVILLE
ThanksThanks to William B. Reichhardt, of the LawOffices of William B. Reichhardt & Associates, andto Angela Ciolfi and the JustChildren team at theLegal Aid Justice Center for their assistance withthis presentation.
What is a MLP? A medical-legal collaboration addresses the multiple needs of low-income patients Provider training on legal issues and how they affect health Patient identification from practices Advice, counsel, and extended representation for patients and families in need Curbside consults for providers Based on model at the Boston Medical Center
By the end of today, you will be able to… 1. UNDERSTAND HOW AN IEP IS SUPPOSED TO WORK. 2. IDENTIFY SPECIAL EDUCATION PROBLEMS.3. EFFECTIVELY ADVOCATE FOR PATIENTS WITH SPECIAL EDUCATION PROBLEMS.4. USE A ―PRESCRIPTION PAD‖ TO HELP PATIENTS WITH SPECIAL EDUCATION PROBLEMS.
What is ―the law‖?IDEA (IEP) 504 (Accommodation Plan) ―No otherwise qualified individual The Individuals with Disabilities Education Act (IDEA) gives with a disability…shall, solely by children with disabilities the right reason of her or his disability, be to a ―free appropriate public excluded from the participation in, education‖ be denied the benefits of, or be Combination of federal and state subjected to discrimination under laws [includes LEAs]‖ Children identified as disabled can get special services via an Modifies school requirements Individualized Education Plan under ADA (IEP) from the local school district The child must have a physical or Services include… anything necessary for the student to access mental impairment which a FAPE (Free Appropriate Public substantially limits at least one Education) major life activity (walking, hearing, speaking, learning…)
IDEA: Sources of Law Federal statutes (20 U.S.C.A. § 1400 et seq.) Federal regulations (34 C.F.R. § 300 et seq.) Judicial decisions (federal and state) State regulations 20-81-10 et seq. Also Guidance documents from state and federal departments of education (Office of Special Education Programs (OSEP)
Terminology and Definitions IEP – Individual Education Program LEA – Local Ed Agency IEE- Independent Ed Eval FAPE- Free Appropriate Public Education. BIP – Behavior Intervention Plan FBA – Functional Behavioral Assessment PLOP – Present Level of Performance.
The School’s Requirement to Provide FAPE A free appropriate public education ―FAPE‖ ―Appropriate‖ means that a child must have educational services and accommodations that allow the child to make meaningful educational progress in the least restrictive school environment. The Individual Education Program (IEP) is a unique contract and a roadmap for each child
What is ―meaningful educational progress‖? Must address the child’s needs as defined by eligibility for services in one or more disability categories. To be meaningful, educational progress must be measureable and observable over time. School cannot be required to implement a specific methodology, but must use viable research based programs.
The Life Cycle of an IEPChild Find Evaluation Eligibility IEP/FAPE Termination Revision Placement Annual Review Implementation
Goals Vs. Methods The IDEA requires that the IEP state measureable goals designed to meet the child’s unique needs related to his disability. Goals are to be academic and functional – to allow for meaningful progress in the general curriculum. Education practices must be based upon peer- reviewed research Methodology must have shown beneficial results in a number of controlled studies.
Common Special Education Problems The ―Diagnostic Disconnect‖ – Parents and school do not agree about the nature and scope of a child’s disability. Eligibility does not match the student’s diagnosis or needs. Therefore – Impossible to have viable IEP
Common Problems There is no defined baseline from which to measure progress. Goals and objectives are vague and not measurable. Failure to offer services relevant to the disability. Failure to offer alternative assessments Concentration on discipline procedures prevents attention to learning
What Problems Do We Want to Solve? For Now – FAPE requires meaningful educational progress in the least restrictive school environment. Now for Then – Compensatory services for demonstrated regression. Always – Establish some cooperative working relationship between parent and school.
Most common special education claimsFailure to determine eligibility- IDEA or 504. IEP fails to provide FAPE – defective as to level and scope of services and/or placement. Compensatory services needed for regression. Failure to provide transition plan/services
Recognizing when a case should go to formal complaint processReasons to ConsiderFiling Reasons to Avoid Filing Clear Noncompliance Parents are just tired Clear Regression of of fighting with LEA Skills Parents want to set Failure to Offer or precedent ―for all Define Placement other parents having Denial of Rights under same problem.‖ IDEA (i.e. denial of IEE) As leverage to Clear Denial of FAPE recover attorney fees. Denial of Eligibility
Common Issues in Discipline Cases Findings and Procedures in the Manifestation Determination Review (MDR) Denial of FAPE by extended homebound exclusion without adequate services. Failure to provide FAPE in an alternative learning environment.
Discipline of StudentswithDisabilities Students with disabilities receive extra protection from disciplinary exclusion. School may not change the student’s placement (i.e., suspend) for behavior that is a manifestation of the student’s disability. Students who are suspended or expelled are entitled to FAPE.
Overview of Discipline Procedures Misbehavior Change in Short-term Placement removal Manifestation No MDR Determination Review No Services Behavior is a manifestation of No manifestation. disability. Placement may be Return to original changed, but placement + FAPE must be FBA/BIP provided.
Discipline of StudentswithDisabilities Short-term removal is a removal ≤ 10 school days school must provide due process protections afforded to all students (notice + hearing) Change in placement is a removal > 10 consecutive school days (or shorter periods of repeated removals constituting a pattern) School must provide: due process provided to all students + manifestation determination review hearing + Services during removal
Is the behavior a manifestation of the disability? Was the behavior caused by the disability? Was the behavior directly & substantially related to the disability? OR Was the behavior the direct result of the school’s failure to implement the IEP? If the answer is ―YES‖ to any of these questions, the behavior is a manifestation of the child’s disability. The child must be returned to the original placement Functional Behavior Assessment + Behavior Intervention Plan (FBA-BIP)
Whatis a FBA/BIP? 8 VAC 20-80-10 ―Functional behavioral assessment‖ means a process to determine the underlying cause or functions of a child’s behavior that impede the learning of the child with a disability or the learning of the child’s peers. A functional behavioral assessment may include a review of existing data or new testing data or evaluation as determined by the IEP Team.‖ ―Behavior intervention plan‖ means a plan that utilizes positive behavioral interventions and supports to address behaviors that interfere with the learning of students with disabilities or with the learning of others or behaviors that require disciplinary action.‖
Whenis a FBA/BIP required? A FBA/BIP is required: When the child’s ―behavior impedes the child’s learning or that of others,‖ the IEP Team shall ―consider the use of positive behavioral interventions, strategies, and supports to address the behavior.‖ (8 VAC 20-81-110(F)(2)) When the child’s behavior is a manifestation of the disability (8 VAC 20-81-160) When the child’s behavior is not a manifestation of the child’s disability ―if appropriate.‖ (8 VAC 20-81-160(C)(6).
Dangerousness Exceptions If the behavior is a manifestation of the disability, then the child cannot be removed from the placement unless: Child possessed or carried weapons or drugs to school; or Child inflicted serious bodily injury on another person while at school or school function, or Hearing officer or judge has determined the child is too dangerous to remain at school The child may then be removed to an interim alternative educational placement for up to 45 days, but must still receive FAPE.
No Manifestation If the conduct is NOT a manifestation of the student’s disability, the school may change the student’s placement, but MUST provide FAPE during removal. Services during removal MUST start on the 11th day of removal and allow the student: To make progress on IEP goals AND To participate in the general curriculum Advocate for an FBA and/or BIP—and be prepared to explain why doing an FBA and/or BIP is appropriate
I’m a doctor, not a advocate!ANYONE WHO CAN LEARN THE KREBS CYCLE CAN LEARN HOW TO BE A CHILD ADVOCATE. -JEROME A. PAULSON
Goals of Great Doctor Advocacy Access appropriate services for patient Minimize time needed for advocacy Develop good relationships with community partners
Effective AdvocatesAccurately assess the problem and identify solutionsMaintain credibilityBe creative in pursuit of remediesEstablish or repair a collaborative parent-school relationship
Dispute Resolution: 4 Options Informal resolution State complaint to VDOE Can Be Made By ANYONE Formal Complaint (written, signed, statement of violation) Schools Submit Response Investigation by VA DOE 60 days to VA DOE decision 1-year statute of limitations Mediation Due process hearing state or federal court
When do doctors make the best advocates? Negotiating with school districts – the art of leverage.Paving a great paper trail. What are your experiences with schools? What can you do? What should they do?
Use charts to easily illustrate problems Use the LEA’s data for comparison charts. Charts can show: o Lack of progress o Loss of skills o Inability of LEA to track data. o Regression
Advise Parents to Gather Information Copies of eligibility determinations and requests IEPs for last 3 years, FBA, BIP Work samples, teacher notes/emails, parent- teacher journals –progress reports for annual goals. All school and private testing-SOL history and report cardsAll of this should be available under FERPA, but parents may need to pay reasonable copying fees
Advocacy Tactics Know your audience – are you addressing parents, teachers, administrators, or lawyers? What needs to be included? Ask an expert for help… What is the best vehicle for your input? Letter, call, attending a meeting?
Advocate in a letter Be specific and use examples How you know this child? What problems have you identified? How did you identify them? What services or accommodations would help your patient? How do you know this? How can the recipient contact you? Use your title to impress, but don’t use lingo that can be unclear to non-medical folks.
Advocate in a TEAM meeting Parents can invite anyone, including MDs, to IEP meetings The TEAM must consider your information when making decisions Use your title to impress, but be wary of too much ―lingo.‖ Follow up in writing!
Tips for Advocates Obtain, review and understand complete educational record, including witness statements, incident reports, and statements by client. Make sure you know who the ―Parent‖ is – in some cases, there may be active biological and foster parents, as well as interested relatives or other guardians. Respond immediately to student discipline situations Understand dates, deadlines and notice requirements, & make sure parents are also aware. Put concerns, confirmation of meetings, agreements, etc. in writing. Create a record. Give schools a chance, and the information necessary, to do the right thing before assuming the worst.
Can’t I just write a prescription? 1. TEMPLATE LETTERS 2. CURBSIDE CONSULTS 3. REFER A FAMILY TO MLP
Prescription Pads for Education ProblemsTake an IEP and call me in the Form letters to get startedspring… Request an IEP evaluation Request written copies of evaluations Request school records Provide a diagnosis
Request an IEP evaluation DATE School Principal School Address Re: NAME OF STUDENT Dear Principal _______: I am writing because I am concerned about STUDENT’s academicprogress. I am specifically concerned that _______________. I wouldlike STUDENT to be evaluated for eligibility for an IEP and a 504 Plan. I look forward to working with you to help STUDENT. Pleasecontact me at: PHONE EMAIL ADDRESS if I can provide more information. Sincerely, NAME
Provide a clinical diagnosis Dear Principal _________________: I am writing to provide you with information aboutSTUDENT, my patient since _____. I am a board certifiedpediatrician, graduated medical school in ____, and INSERTCREDENTIALS HERE. STUDENT was diagnosed with [mental retardation, hearingor visual impairment, speech or language impairment, seriousemotional disturbance, orthopedic impairment, autism,traumatic brain injury, specific learning disability – see attacheddraft diagnoses worksheets] in ____. This diagnosis was basedon ____ (tests, evaluations, etc with dates). STUDENT’S disability adversely affects HIS/HEReducational performance by _____________ue to thisimpairment, the child needs specially designed instruction inorder to succeed in school.
Autism – as defined by VDOEDEFINITION: "Autism" means a developmental disabilitysignificantly affecting verbal and nonverbal communicationand social interaction, generally evident before age three, thatadversely affects a childs educational performance. Othercharacteristics often associated with autism are engagement inrepetitive activities and stereotyped movements, resistance toenvironmental change or change in daily routines, andunusual responses to sensory experiences. Autism does notapply if a childs educational performance is adversely affectedprimarily because the child has an emotional disturbance. Achild who manifests the characteristics of autism after agethree could be identified as having autism if the criteria in thisdefinition are satisfied.
Characteristics of ASD – according to VDOE•Children with Aspergers Disorder demonstrate the following characteristics:Impairments in social interaction, such as marked impairment in the use of multiple nonverbalbehaviors such as eye-to-eye gaze, facial expression, body postures, and gestures to regulate socialinteraction; failure to develop peer relationships appropriate to developmental level; a lack ofspontaneous seeking to share enjoyment, interests, or achievements with other people (i.e., by a lack ofshowing, bringing, or pointing out objects of interest); or lack of social or emotional reciprocity arenoted; andRestricted, repetitive and stereotyped patterns of behavior, interests, and activities such asencompassing preoccupation with one or more stereotyped and restricted patterns of interest that isabnormal either in intensity or focus, apparently inflexible adherence to specific, nonfunctional routinesor rituals, stereotyped and repetitive motor mannerisms, persistent preoccupation with parts of objects.•Children with Autistic Disorder demonstrate impairments in:Social interaction; and Restricted, repetitive, and stereotyped patterns of behavior as listed above; andImpairments in communication, such as delay in, or total lack of, the development of spoken language(not accompanied by an attempt to compensate through alternative modes of communication such asgesture or mime). In individuals with adequate speech, marked impairment in the ability to initiate orsustain a conversation with others, stereotyped and repetitive use of language or idiosyncratic language,or lack of varied, spontaneous make-believe play or social imitative play appropriate to developmentallevel is noted.
Steps 3, 4, and 5, according to VDOEThe childs educational performance is not adversely affectedprimarily because the child has an emotional disturbance.There is documentation of an adverse effect on educationalperformance due to one or more documented characteristics ofautism.List and/or describe:Due to the identified Autism, the student needs speciallydesigned instruction.
Curbside Consults… it’s free and easy! When you aren’t sure what to do, call your MLP attorney and ask. When you’re not sure what to say, call your MLP attorney and ask. When you aren’t sure if this is a case, call your MLP attorney and ask.
What to do when a patient needs a lawyer? TELEPHONE: 434-977-0553 X117 FAX: 434-977-0558 CELL: 434-284-0882 EMAIL: CAROLYNP@JUSTICE4ALL.ORG