Revocation of Consent for Special Education and Section 504

To date, the Department of Education's Office of Civil Rights and and OSEP have not provided much guidance on how to handle the situation whereby parents have revoked consent for special education but are seeking accommodations through a Section 504 Plan. Under IDEA, when a parent revokes consent for special education the student no longer has a safety net when it comes to disciplinary procedures. A question then comes into play when they ask for the same disciplinary protections under Section 504. Since this is an unresolved legal issue, the School District of Oconee County will consider 504 eligibility on a case-by-case basis. It is expected that in most situations the 504 Plan would look very similar to the IDEA accommodations the parents declined.

Stating the Location of Services in an IEP

In T.Y. v. New York City Department of Education, 584 F. 3d 412 (2nd Circuit 2009), the parents of a student with autism sought tuition reimbursement for private school placement claiming several IDEA violations. One major violation they asserted was how the district failed to specify in the IEP which school their child would attend. District policy stated that a citywide placement offer was responsible for identifying a school capable of providing the most appropriate services. This typically took place after the IEP meeting was held. In this particular case, once the parents learned which school their child was supposed to attend they vistited the school then objected to the placement. The district offered another school but the parents rejected it without visiting then later enrolled their child in a school for autistic students and requested reimbursement. They claimed that the district committed a procedural violation by not adhering to 20 U.S.C. Section 1414(d)(1)(A) of the IDEA which indicates an IEP must include the "anticipated frequency, location, and duration of those services." In this case, the U.S. Court of Appeals, Second Circuit, noted "the term 'location' does not mean the specific school location, but the general environment of the overall program." Hence, there was no procedural violation of IDEA.

Should a Similar IEP Be Put In Place When a Student Is Retained?

For the majority of students with disabilities, the goals (and objectives if applicable) of an IEP should be written to target curriculum-based measures. The purpose is to provide access to the general curriculum. Furthermore, LEAs have been warned about the importance of writing IEPs that change over time as IEPs that are similar from year to year indicate a lack of progress. However, if a student repeats a grade it would substantiate having a very similar IEP with regard to goals as the student would be working on the same curriculum two years in a row. The important thing for teams to consider in this case is the documentation of progress from the previous year. If the student mastered some of the goals and objectives, they need to be replaced by ones that are more rigorous. However, if there are goals that were not mastered it would make sense to target them the following year if they were written based on a curriculum the student will be exposed to again.

Federal Court Rejects Parent's Request for Tuition Reimbursement

In LATHROP R-II SCHOOL DISTRICT, vs. WILLIAM GRAY, by and on behalf of his son
(Case No. 08-6040-CV-SJ-GAF
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI, ST. JOSEPH DIVISION), the parents of a student with autism were unable to obtain reimbursement for private tuition. Although the first panel found the student's IEPs were deficient due to a lack of baseline data in the development of goals and also stated the district failed to adequately address behavior, a federal district court reversed a lower court's ruling and determined reimbursement was not warranted. As soon as the district learned the student with autism was going to be transferring to their school it enrolled staff members in an autism training program and hired an occupational therapist who had prior experience working with children with autism. After enrollment, the district hired an autism consultant to conduct a functional behavioral assessment and make recommendations while staff members initiated strategies to address the student's behaviors. Over time, the student made progress in the area of speech and language mastering many goals and the team amended his IEP to include a special diet designed to decrease improper sexual and non-sexual behaviors. Furthermore, positive behavioral support strategies were utilized. Although the IEPs did lack starting-point data, the federal district court pointed out that the IDEA requires only "a statement of the present levels of educational performance" and "measurable annual goals and objectives".

Disability Services for Students in Postsecondary Settings

Yesterday Carol Miller (TriCounty Technical College) and Dr. Arlene Stewart (Clemson University) presented a workshop at Hamilton Career Center focusing on how to successfully transition students with disabilities to college life. Both stressed the importance of teaching self-advocacy skills in the K-12 setting and explained that disability services can vary significantly from one campus to another. One of the main differences between high school and college pointed out by Ms. Miller is that students are responsible for the management of their accommodations. Students arrange appointments with the Office of Disability Services...not parents. Furthermore, it is the student's responsibility to take Faculty Notification Forms to instructors and to initiate communication with faculty if there are problems. Accommodations must be requested by the student and once in place they must be requested for every test, in every class, at least a week in advance. Dr. Stewart shared that the three most important steps for a successful transition include educational planning, student participation in decision-making, and the development of self-advocacy skills. At Clemson University, typical in-class services for students with documented disabilities include extended time, low distraction space for testing, note takers/recording devices for lectures, use of a calculator/computer, and spelling/grammar consideration.

Another point that was made very clear is that just because an accommodation had been granted in high school, it may/may not be appropriate in college.

Assisting 504 Students Transition to Postsecondary Educational Settings

In Volume 25, Issue 11 of the Special Educator (December 4, 2009), school attorney Dave Richards with Richards, Lindsay and Martin in Austin, Texas offer guidance to districts on how to facilitate postsecondary transition for students served under a 504 plan. He stresses the importance of explaining to students that there are distinct differences between 504 services in the K-12 setting and in college settings. In postsecondary settings, students with disabilities are responsible for making college staff aware of their disabilities and accommodations. It is also the student's responsibility to provide requested documentation verifying the existence of a disabling condition and it must be provided at the student's expense. Furthermore, colleges are afforded the opportunity to use "reasonable accommodation" standards which means they can refuse to provide an accommodation if doing so would impose "an undue hardship on the operation of its program or activity."
Students with disabilities also need to be aware that the Section 504 regulation at 34 CFR 104.37(b) prohibits counselors from counseling students with disabilities to "more restrictive career objectives than nondisabled students with similar interests and abilities." Finally, districts can help students with disabilities transition more successfully by fostering self-advocacy skills. They should be encouraged to participate in or even lead their own 504 team meetings and they need to be able to communicate their accommodation needs clearly.

Reexamine 504 Plans When Problem Behaviors Escalate

In Volume 25, Issue 11 of the Special Educator (December 4, 2009), school districts are advised to reevaluate students' 504 plans when it appears they are not responding to previous discipline measures that have been imposed. Tips for consideration include:
1. Does medication impact behavior? Invite the school nurse or other medical professionals to the section 504 meeting if it is suspected that medication may be impacting behavior.
2. Conduct a Functional Behavior Assessment and develop a Behavior Intervention Plan (BIP) based on the results. Sometimes school personnel other than the classroom teacher are needed to observe and collect data.
3. Review the student's BIP regularly and make changes as needed.
4. Consider whether the behavior in question is a manifestation of the student's disability before the 10-day rule kicks in. Be proactive.
5. Make sure key players are involved in decision-making. If the behavior is taking place more often in a particular setting (PE for example), make sure the teacher or other school personnel most knowledgeable about the behavior are present to provide input at meetings.