The U.S. Supreme Court is deciding whether to grant review in a case about the degree of educational benefit that a special education student should receive under an Individualized Education Program (IEP) to satisfy the requirements of the (IDEA). “Clearly, the Supreme Court should hear this important case, as the requirement that a student receive an educational benefit goes to the heart of the IDEA,” says Marion Walsh.  Millions of children around the country certain are entitled to more than “some” educational benefit in public schools and the law should, at a minimum, require meaningful educational benefit.

On May 31, 2016, the U.S. Supreme Court asked the Solicitor General to file a brief expressing the views of the United States on this question.

The plaintiffs in the case Endrew F. v. Douglas County School District RE-1 note  that currently the “courts of appeal are in disarray” on the matter of what constitutes a “free, appropriate public education,” as required for students with disabilities by IDEA.

The U.S. Court of Appeals for the 10th Circuit ruled that Endrew F., a Colorado student with autism, received a free, appropriate public education from the Douglas County school district because he received “some educational benefit,” and the court thus rejected reimbursement to the parents for the cost of private school. Reasoning that the IDEA is only “designed to provide a floor” of educational quality,  the hearing officer determined that the school district had provided Drew with a FAPE.  The parents had removed their son from public school after a dispute over the education he received under his IEP in the fifth grade.

In its decision, the appeals court acknowledged that other U.S. courts of appeal have adopted the higher standard of requiring an IEP to deliver a “meaningful educational benefit.” “The U.S. Court of Appeals for the Second Circuit requires this standards and it should be applied uniformly across the country. The standard is still too low,” says Walsh. In requesting review by the Supreme Court, attorneys for Endrew F. argue that the Court should make use of the case to resolve the dispute over this salient issue.

As it has done with many IDEA cases that seem to present an important question, the Supreme Court asked the U.S. Solicitor General to weigh in. The Solicitor General is under no deadline to file the requested brief, and observers say it is unlikely that a response will be filed before the court adjourns for the summer.

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By Felicia Lebewohl Rosen, Esq., Ed.M. (Edited by Marion M. Walsh, Esq., Littman Krooks LLP)

Take a deep breath … It can be emotionally difficult to accept and deal with the fact that your child has a disability. If you want your child with a disability to receive appropriate services to make his or her life (and yours) easier and more productive, you should acknowledge the possibility and consider seeking services.   First, you need a good diagnosis, to which interventions can be geared. This diagnosis can occur at any point during a child’s development, most commonly during infancy or early childhood. However, some parents only realize that their child has a disability in adolescence, when work and social demands become more difficult. If your doctor or psychologist makes a diagnosis, keep in mind that you need to share this information with your school district or preschool and determine whether your child is eligible for services.

The Law Protects Students with Disabilities and Requires Evaluations and Services

The Individuals with Disabilities Education Improvement Act of 2004 (“IDEA”), protects children with disabilities ages birth to 21 or until a student graduates with a regular high school diploma. The IDEA requires each state and school district to identify and evaluate all children who need special education and/or related services. Related services include physical, occupational and speech and language therapy and more depending on need.

Early Intervention (EI) is a system of services, free of charge to parents, that help children with disabilities or at risk for a disability, ages birth – 3 years old, and their families. For a child to receive EI services pediatricians, other service providers and parents may refer a child for EI. The Center for Disease Control and Prevention recommends that children be screened for developmental delays and disabilities during regular well-child doctor visits at 9, 18 and 24 or 30 months and additional screening may be warranted if a child is at high risk.

Once your child is school age and you suspect a disability or receive a diagnosis, parents may contact their school district and request that their child be evaluated for eligibility for special education and related services. School districts are responsible to provide educational and related services, free of charge to parents, for children with disabilities ages 3 – 21 or until a student receives a high school diploma. The law requires that school districts receive informed consent from parents before the child is evaluated by the school district to determine if the child has a disability under the IDEA. The individual evaluation must include a variety of assessment tools and strategies. A school district must conduct the evaluation within 60 days from the date that the parent consents to testing. At a minimum, an evaluation must include: a psychological evaluation, a classroom evaluation, a social history, a physical examination and other appropriate assessments or evaluations.

An evaluation is intended to address the following three questions:

1.  Does the child have a disability that requires special education and related services?
2. What are the child’s specific needs? and
3. What special education and related services are appropriate for addressing those needs?

If parents disagree with the school district’s evaluations, they have a right to an Independent Educational Evaluation (IEE) and request that the school system pay for the IEE. A diagnosis from a doctor or psychologist of a disability does not guarantee that a child will be eligible for special education or related services. The law requires that the disability impacts the child academically.

In New York, a Committee on Special Education (CSE) for students in grades K-12, and a Committee on Preschool Special Education (CPSE) for students ages 3-5, are multi-disciplinary teams that include, at the very minimum, the parent, a general and special educator, a school psychologist or another professional who is qualified to interpret evaluations, and a district representative. The CSE and CPSE will convene to review the evaluations and determine if the child is a “student with a disability”, as defined by the IDEA. If the parents do not agree with the evaluation decision, they may ask for an impartial hearing to challenge the decision. Some neurological conditions, such as Autism Spectrum Disorder (ASD), Attention Deficit Hyperactivity Disorder/Attention Deficit Disorder (ADHD/ADD) and a Learning Disabilities (LD) are often difficult to diagnose because there is no medical test, like a blood test or an MRI, to diagnose these disorders. Further, many other conditions have symptoms that are similar to those of ADHD/ADD and there is a great deal of comorbidity with other conditions. For example, anxiety can mask as ADHD.

At the CPSE and CSE meetings, if a child is deemed eligible, the team will draft an Individualized Education Program (IEP). The IEP is a legal document which discusses the child’s strengths and areas of need. It specifies the special education and related services that the child will receive free of charge to the parents. If the parents disagree with the IEP or the placement recommended by the CSE, the parent may request a Due Process Hearing. In some cases, filing a complaint with the New York State Education Department may be appropriate. Parents may proceed pro se (without a lawyer) or be represented by counsel.

Personal Advice on Keeping it all in Perspective

If your child has a disability, try not to waste your emotional energy on self-blame. Disorders such as autism, ADHD, and emotional and learning disabilities can be disorders in certain regions in the brain. They are not caused by bad parenting, chaotic home environments, ineffective teachers, too much sugar in the child’s diet or the child himself. Your child is still the same child you had before the diagnosis. Love, play, engage, have fun, enjoy, hug and laugh with your child. If your child is an adolescent, give your child support along with the space he or she needs to grow at their own pace.

Take care of yourself or you will not be able to take care of your child. We are all familiar with the stewardess’ message on airplanes to put your oxygen mask on before you place one on your child. So take care of yourself so you can better take care of your child. Put on your oxygen mask by joining support groups, finding solace in supportive family and friends or religion, joining support groups, exercising and eating well and remembering to enjoy and laugh. It can be a long journey.

For more detailed information about disability laws, see www.nysed.gov/specialed.

Felicia Rosen is a legal intern with Littman Krooks LLP and is an attorney. She graduated from New England School of Law and Columbia University Teachers College. 

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By Erica Fitzgerald, Esq.

If you are the parent of a child diagnosed with diabetes, it is crucial to familiarize yourself with your child’s rights. Having a developmental disability is not a prerequisite for protection under the law. Individuals with recognized disabilities, including diabetes, have the same rights to access programs and facilities as their non-disabled counterparts. This right to equal opportunity extends to the classroom. Section 504 of the Rehabilitation Act of 1973 (“Section 504”), The Individuals with Disabilities Act (“IDEA”) and Title II of the Americans With Disabilities Act (“ADA”) all ensure that students with disabilities have an equal opportunity to participate and succeed in school. These laws also provide a legal remedy for those experiencing discrimination and who are not receiving a Free and Appropriate Public Education (“FAPE”).

Section 504 is a civil rights law that protects individuals from discrimination and entitles children diagnosed with disabilities that limit a major life activity, such as learning, to a FAPE designed to meet their individual educational needs as adequately as the needs of children without disabilities. However, “learning” is only one example of a major life activity which can be impacted by a disability. Even if your child has been diagnosed with Type 1 Diabetes but continues to excel academically, he or she may still be eligible for accommodations and qualify for protection under Section 504. School districts have responsibilities to address the needs of your child with diabetes and to make sure he or she can attend school safely.

Section 504, IDEA and the ADA all consider diabetes to be a disability; therefore, it is illegal for schools and day care centers to discriminate against children with diabetes. However, the IDEA is only applicable under certain circumstances, if there is an educational impact and the child needs special education services. First, a student may have a cognitive or emotional disability in addition to diabetes which qualifies him or her for special education services under the IDEA. Second, a student without a comorbid disability may nevertheless qualify for special education services under IDEA as having an “other health impairment.” For example, a child with diabetes may experience frequent episodes of hypoglycemia and/or hyperglycemia which significantly inhibit the ability to concentrate, access instruction or attend school. Third, complications from diabetes may result in excessive loss of instruction time, rendering a child eligible for special education services under IDEA.

Failure to qualify for special education services and an Individualized Education Program (“IEP”) under the IDEA does not mean a child with diabetes is not entitled to an individualized, written diabetes management plan which establishes the student’s medical needs and how the school will meet those needs. In addition, a student with diabetes should also seek to obtain a written plan developed pursuant to Section 504 (“504 Plan”) which establishes accommodations that a student with diabetes may need, such as permission to eat anywhere and anytime or carry a cell phone and use it in class, if needed. The 504 Plan can establish procedures and protocols to ensure that a student with diabetes can attend field trips and participate in athletics and extracurricular activities safely with appropriate assistance and supervision. Having a formalized 504 Plan will also ensure access to dispute resolution procedures should any issues arise. A school district remains responsible for providing a student with diabetes with a medically safe environment that offers the same educational opportunities enjoyed by peers even if the child is making meaningful progress academically. This includes providing the student with assistance with administering insulin and glucagon, checking blood glucose levels, and allowing the student to eat snacks during the school day. But a school district’s federal obligations to provide an equal opportunity to participate extend beyond the traditional school day and include non-academic and extracurricular activities as well. Thus, it is the responsibility of the school district to ensure that a child with diabetes has access to medical supplies and any necessary assistance not only at school but also on field trips, during extracurricular activities, and at after school clubs and sports.

If your child with diabetes attends a private or parochial school, these federal laws may not apply. Only schools that receive federal funding, or facilities considered open to the public, must reasonably accommodate the needs of children with diabetes. The standard applied to private non-religious schools, nurseries, day care centers, community based organizations, summer camps after school programs and special events is not the same as the standard to which public schools must adhere. Private schools that receive federal funds are only obligated to comply with minimal obligations such as the least restrictive environment mandate, comparable facilities requirement, and the requirement to provide an equal opportunity to participate in extracurricular activities. They must provide minor adjustments to accommodate students with disabilities. Thus, it is important to understand your child’s rights and to advocate effectively for them.

Learn more about our special needs planning and special education advocacy services at www.littmankrooks.com or www.specialneedsnewyork.com.

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In public elementary and secondary schools, students with disabilities may receive services under the Individuals with Disabilities Education Act (IDEA) or the Rehabilitation Act of 1973. The IDEA does not apply in the workplace or in post-secondary education, so services available under IDEA, such as an individualized education program (IEP), are not available in college. However, services under Section 504 of the Rehabilitation Act may continue at the post-secondary level.

First, it should be noted that while Section 504 only applies to schools that receive federal funding, most colleges and universities do, and private post-secondary schools that receive no federal funding are still required to provide similar accommodations to students with disabilities, under Title III of the Americans with Disabilities Act.

Section 504 prohibits discrimination based on disability, meaning that the needs of students with disabilities must be met as adequately as the needs of students without disabilities are met. Colleges and universities must provide accommodations for students with disabilities. As a practical matter, this may include accessibility of classrooms, dormitories and other buildings; additional time on tests; substitution of some course requirements; interpreters or readers; adapted computer terminals and other services. Such services must be provided unless a fundamental alteration of the program or an undue financial or administrative burden would result.

Students with disabilities going from high school to college will need to advocate for their own needs more than ever. If the university has a disability support office, the student will need to make contact with that office to explain his or her needs. If a student has a history of accommodations in high school, then documentation of this should be provided to college or university officials. Most of all, students will need to be persistent, keeping a record of who they talked to, and continuing to press the matter until the needed accommodations are received.

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The New York State Department of Education’s Office of State Review (“SRO”), which hears appeals of special education proceedings after an Impartial Hearing Officer (“IHO”) decision, has been out of compliance with federal mandates to issue timely decisions within 30 days, since April of 2012. This delay has impeded the right of many children with disabilities to a free appropriate public education. Some cases in our office, for example, have been pending with the SRO for two years, and we believe that the SRO must come into compliance with federal mandates immediately or at the very least, within one year.

NYSED Requests Compliance Agreement

On Wednesday, July 16, the United States Department of Education (“USDOE”) conducted a public hearing in Manhattan to hear comments from the public on a proposed Compliance Agreement to be entered into by the New York State Education Department (“NYSED”) and the USDOE. Specifically, NYSED has requested that the Department allow NYSED to enter into a Compliance Agreement to resolve its noncompliance within three years. NYSED has stated that it is not able to correct this noncompliance within one year due to the significant and unanticipated increase in the number of appeals of due process hearing decisions under the IDEA. In testimony on July 16th, NYSED also attributed the delay to the quality of Impartial Hearing Officers (“IHOs”) decisions.

NYSED’s Commissioner John B. King formally requested, in an April 9, 2014 letter, that the USDOE consider allowing NYSED to enter into the Compliance Agreement. Specifically, in the letter, NYSED acknowledged that the SRO was not in compliance with IDEA mandates and identified several reasons why the State is unable to come into compliance within one year, such as the number of NYSED identified current and proposed actions to bring NYSED into compliance with the 30-day timeline requirement within three years, such as hiring more staff members.

USDOE Sought Comment on Two Questions

At the public hearing, the USDOE panel asked the public to comment on two questions:

1. Can NYSED come into compliance within one year with the IDEA Part B requirement to issue within 30 days, unless a party requests and is granted a specific extension, a State-level independent decision in an appeal of a due process hearing officer’s decision (i.e., is compliance with this requirement not feasible until a future date beyond one year)

2. Will NYSED, within a period of no more than three years, be able to come into compliance with this IDEA Part B requirement (30 days for a State-level independent decision), and, if so, what provisions should be included in the Compliance Agreement to ensure that compliance is achieved as quickly as possible?

NYSED Must Come into Compliance within One Year

NYSED must come into compliance with the IDEA requirement to issue a decision within 30 days, within one year. All stakeholders who practice in the areas—school districts, parents, attorneys and IHOs– understand the importance of IDEA timelines. In enacting IDEA, Congress recognized that timeliness is central to the IDEA and a failure to meet its procedural deadlines can be tantamount to a denial of FAPE. The SRO should not be excused for non-compliance. The SRO’s delay causes a lack of predictability, trust and accountability of the process for all stakeholders. But most importantly, the delay causes unconscionable and irreparable harm to vulnerable children who have a limited time to receive a free appropriate public education. Due to the delay, many students lose their chance for appropriate placements. As one parent at the public hearing noted, “Justice delayed is justice denied.”

The SRO, which for 2013, has rendered approximately 238 decisions, has the ability to come into compliance with simple structural and practice changes. These changes could include:

• a schedule that sets clear, mandated expectations for the number of days available to review the record, the number of days to draft a decision and the number of days to issue it;
• a directive that dismissals do not require decisions and;
• a directive to adopt, in accordance with New York Civil Practice Laws and Rules standards, a greater deference for review of decisions of IHOs, as the fact-finders.

If USDOE Allows Compliance Agreement, Must be Strong and Vigilant Federal Oversight

If the USDOE approves a three year time window to allow the SRO come into compliance, it must exercise relentless oversight over NYSED and monitor practice changes. Among other things, the USDOE should include in its compliance agreement, provisions which:

• Ensure that the NYSED implements structural changes and policies to set clear expectations for the number of days taken to review the record, write a decision and issue a decision;
• Direct the SRO to examine its review practices and issue a directive that dismissals do not require decisions and a directive to adopt, in accordance with New York Civil Practice Laws and Rules standards, a greater deference for review of decisions of IHOs;
  
• Investigate claims of bias in favor of local educational agencies (“LEA’s”) and ensure that SRO decisions are impartial and sufficiently deferential to IHO fact-finding, as SRO practices and bias toward LEAs could be contributing to a greater number of appeals;
• Address student rights lost by the delay and direct NYSED to allow IHOs increased discretion to revise pendency standards so that if any SRO decision takes more than 30 days, the prior IHO decision may become final;
  
• Monitor and examine decisions and practice to ensure reasonable progress, with goals and benchmarks;
• Create an advisory panel of New York stakeholders including LEA representatives, parents, attorneys, advocates, eligible students and other stakeholders, to have input and assist with monitoring.

In short, the SRO delays are inexcusable and have impeded the rights of many children to a free appropriate public education. The USDOE must take immediate and appropriate steps to ensure that the SRO comes into compliance with IDEA mandates with all deliberate speed, and, if it considers a compliance agreement, it must ensure that it protects the rights of New York’s most vulnerable children.

There is still time to give input. The USDOE is accepting comments. Written testimony or public comments may be submitted until July 26, 2014 by email to:  OSEPnysedhearinginfo@ed.gov by mail (postmark by July 26, 2014) to Jocelyn Logan-Friend, United States Department of Education, Office of Special Education Programs, Potomac Plaza, Room 4132, 550 12th Street, S.W., Washington, D.C. 20202.  The USDOE notes that commenters will not receive acknowledgement of receipt of written testimony and your testimony will be part of the public record that may be obtained through the Freedom of Information Act as appropriate.

By: Giulia Frasca, Esq.

The Justice Department conducted a study that shows that although children with special needs who receive special education services comprise twelve percent (12%) of the nation’s students, they constitute nineteen percent (19%) of students disciplined with either a suspension or expulsion. These percentages indicate that school districts often fail to understand the rights of students with disabilities and proactively provide positive behavioral supports.

The Individuals with Disabilities Education Act (IDEA) and the Americans with Disabilities Act (ADA) protect the rights of students with disabilities in that they cannot legally be subjected to long suspensions or expulsions for behaviors that are manifestations of their disabilities. Under New York State law, which applies to all students, whether classified or not, a “short-term suspension” is defined as five days or less. The Principal of the school can issue a short-term suspension. The parents have a right to an informal conference. The parent must receive twenty-four hour notice of the suspension and tutoring must begin, technically, immediately; however, this rarely happens.

Under New York State law, a “long-term suspension” is defined as a suspension that lasts more than five days. Long-term suspensions can only be issued by the Superintendent of the district and only after the Superintendent conducts a hearing to determine innocence or guilt. Witnesses may be called and cross-examined at the “Superintendent’s Hearing.”

Under the federal special education law (IDEA), a suspension in excess of ten school days constitutes a “change in placement,” and cannot be issued without going through the CSE. It is important to note that “ten days” can either mean ten consecutive days, or a series of short-term suspensions that add up to ten days if they are a part of a pattern of suspensions.

If a school district is seeking to suspend a student with a disability for longer than 10 days, it must conduct a manifestation determination. The “Superintendent’s Hearing”, discussed above, must occur first. If the student is found “guilty” at the Superintendent’s Hearing, the manifestation determination must be scheduled. CSE members, including the parent, attend the manifestation determination and make the determination. The CSE team will review information such as the student’s IEP, teacher observations, information from the parent and, sometimes, testimony from the student. The objective of the manifestation determination is to determine whether the conduct for which the district seeks to discipline the student was caused by, or had a direct and substantial relationship with the student’s disability, and/or was the conduct a direct result of the district’s failure to implement the student’s IEP.

If the conduct at issue is determined to be a manifestation of the student’s disability, the student must be returned to the placement from which he or she was removed unless the parent and the district agree upon a new placement.

If the CSE team has not yet conducted a Functional Behavioral Assessment (FBA), one must be conducted and a Behavioral Intervention Plan (BIP) must be developed. If the child already has a BIP, the CSE must review and modify the BIP in consideration of the conduct that led to the suspension and with the goal of preventing similar behavior in the future. If the behavior was a direct result of the district’s failure to implement the IEP, it is the district’s responsibility to immediately remedy those deficiencies. See Part 201 of the Regulations of the Commissioner of Education. If the school district does not follow the steps described above with regard to suspending a student for more than ten days, it is in violation of law.

Studies show that “reprimands, detentions and exclusion” are ineffective means of modifying student behavior and that forcing a student to be absent from school for long periods of time actually increases dropout rates, especially for students with special needs. See Discipline and the Special Ed Student, Maureen E. Hook, Ph.D. date February 14, 2014. This leads to an increased likelihood of unemployment and economic dependence for students with special needs. Rather than remediating the behaviors, suspending a student with special needs can have an unintended, detrimental effect on the student and ultimately society as a whole.

Students with special needs often exhibit associated behavioral issues and challenges and may require concrete examples of prohibited behaviors and conduct. They may have difficulty understanding the school’s disciplinary code as written. A student’s specific disability may also play a role in the behaviors exhibits. See Discipline and the Special Ed Student, Maureen E. Hook, Ph.D. date February 14, 2014. For example, a child with Tourette’s syndrome may shout something inappropriate, or repeatedly engage in conduct that is disruptive to others such as tapping, or fidgeting. A student with ADHD may have an outburst due to his or her disability. A student with autism may engage in flapping, banging or other stimulatory behavior. Before the student is disciplined, the relationship of the student’s disability with the offending behavior should be considered.

The movement from self-contained classrooms to the mainstream learning environment may influence certain conduct in students with special needs because there are many more factors that could stimulate, and/or cause anxiety or stress in a student with special needs. They face additional social, emotional, academic and environmental stressors and challenges. These challenges increase as students with special needs transition from elementary school to middle school and from middle school to high school. The predictability and flexibility of their daily schedules are no longer present. See Discipline and the Special Ed Student, Maureen E. Hook, Ph.D. date February 14, 2014.

While there may be benefits to receiving instruction in the least restrictive environment as required by the IDEA, the mainstream setting may not be appropriate for all children with special needs. It is necessary for the IEP team to consider each student’s special needs. For example, a student diagnosed with a processing disorder may not be able to maintain his or her focus any may miss crucial information in an ELA class with 25 students. The same may be true for students with hearing impairment. A student with attention issues may have trouble attending to task for extended periods of time. The implementation of common core standards and an increased emphasis on test results may often render it difficult for teacher to be able to individualize programs for students with special needs in the mainstream setting. Funding cuts also make it difficult for school district to provide students with special needs appropriate individualized instruction. See Discipline and the Special Ed Student, Maureen E. Hook, Ph.D. date February 14, 2014.

For these reasons, violations of the IDEA have been increasing. Littman Krooks LLP’s special education department works diligently with families of children with special needs to help them obtain a free appropriate public education for their children. To learn more about the Special Education Process at Littman Krooks, click here.

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A case of alleged discrimination by a Manhattan preschool against a boy diagnosed with autism reminds us that individuals with special needs are often treated unfairly and legal action is sometimes necessary to protect their rights.

The parents of a two-year-old boy say that a private school in Tribeca offered him a spot in its preschool program, but rescinded the offer after learning that the boy had been diagnosed with autism. The parents have filed a lawsuit in federal court in Manhattan, alleging violation of the Americans with Disabilities Act (ADA). “While a private school does not have to provide specialized services for a child with a disability, it may not discriminate based solely on disability,” says Marion Walsh, an attorney with Littman Krooks LLP, who assists children with special needs and their parents. “Children with high-functioning autism often can succeed very well in a mainstream environment,” she says. “From a parental perspective, enduring exclusion from school based solely on a child’s disability can be devastating.”

The parents say that the school withdrew their son’s acceptance the same day the school hosted a speaking engagement with Temple Grandin, a noted advocate for people with autism.

The allegations represent a troubling reminder that adults and children with special needs still face discrimination every day. Although strong legal protections are codified in the law, action by parents and attorneys is often necessary to enforce legal rights. Parents and attorneys must continue to be vigilant enforcers.

Three federal statutes protect individuals with special needs from discrimination:

• The Americans with Disabilities Act (ADA) prohibits discrimination against people with disabilities in employment and in public entities and places of “public accommodation,” which includes most privately-run schools and child-care centers. The ADA does not specific to schools, but in the education context, it requires schools to provide reasonable accommodations, necessary auxiliary services and reasonable modifications of policies and practices to prevent discrimination against students with disabilities.

• The Individuals with Disabilities Education Act (IDEA) requires that every public school district in the United States identify children with disabilities and provide children with disabilities a Free Appropriate Public Education (FAPE). All 50 states accept federal funding under the statute and are therefore required to provide appropriate special education and related services. The IDEA requires the development of an Individualized Education Program (IEP) for each student with a disability and that provides individually tailored services and is reasonably calculated to provide educational benefits.

• Section 504 of the Rehabilitation Act of 1973 prohibits discrimination against people with disabilities in programs and activities that receive federal funding or financial assistance. Section 504 provides that students with disabilities must receive an education that is comparable to that provided to students without disabilities. Even if students do not receive special education services under the IDEA, they may receive related services under Section 504.

Parents, advocates and attorneys have worked tirelessly and persistently to ensure that individuals with disabilities are included in school and workplaces. People with disabilities worked hard to achieve these legal protections. Parents of children with special needs, with support from attorneys and other advocates, must continue to work to enforce those rights. To learn more about the special education process, click here.

The Individuals with Disabilities Education Act, (IDEA), statute expressly provides that students with disabilities are to be educated and included with their non-disabled peers to the “maximum extent appropriate.”  This requirement is sometimes referred to as the “least restrictive environment” (LRE) mandate of the Act, and it is one of only two “maximizing” provisions in the entire statute.   With this language, Congress intended to protect students with special needs from being ostracized or isolated from the general population and requires that students with special needs be included in the general education population to the greatest extent possible.

Specifically, the IDEA  provides that States must have in place procedures assuring that, “to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and that special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”  See 20 U. S. C. §1412 (5) (B) as implemented by the Department’s regulations at 34 CFR §§300.550-300.556.
Recent Decision Mandates Inclusive Setting for Summer Program

Recently, the Second Circuit Court of Appeals, in T.M. v. Cornwall, 12-4301, held that the Congressional LRE standard applies to extended school year (ESY) services for students who are approved for twelve-month programs and who benefit from the LRE.    T.M., a student with autism was succeeding with support in a general education preschool setting during the school year.    However, for the summer, the district only offered placement in a self-contained special education classroom and offered T.M. related services only as part of the self-contained classroom experience.  T.M.’s parents rejected the summer placement because it was too restrictive and filed an Impartial Hearing.  The Impartial Hearing Officer (IHO) ruled in the parents’ favor and the district appealed.  The State Review Officer (SRO), who tends to rule in favor of school districts, reversed the IHO’s decision and the parents appealed to the federal district court.  The federal district court affirmed the SRO decision.  T.M.’s parents then further appealed to the Second Circuit Court of Appeals and received the relief requested.

Like the drafters of the IDEA, the Second Circuit judges who ruled in T.M.’s favor intended to draft a decision that would help the many children diagnosed with Autism and other disabilities who have been approved for a 12-month program and who obtain a meaningful educational benefit from an inclusive environment.
LRE Mandate Can Have Unintended Effect

However, school districts often use the LRE provision against parents.  For example, recently, a parent filed an impartial hearing against a school district for failure to provide a free and appropriate education to a student with severe social, emotional and psychiatric conditions whose conditions were exacerbated due to the inappropriate program.  His psychiatrist, the district representative and his parent recommended a residential therapeutic placement for him, but the school district would not approve a residential placement arguing that it is not the LRE.  The school district then issued a placement at a non-public state approved therapeutic day program although his doctors and other professionals maintained that he would further regress there and that it was not appropriate.  Such a position by school districts causes unnecessary delay in providing the student with FAPE, burdensome litigation and extensive costs to both parties that could have been avoided.
In my legal practice, I have encountered several similar situations with regard to students who require specific accommodations, a 1:1 paraprofessional, have severe disabilities, or are diagnosed with Autism, but are high functioning.  In these cases, an inclusive environment may not be appropriate because the student will obtain a meaningful educational benefit only if a restriction is provided.  A mainstream or integrated setting does not work for all students with disabilities.  Each student’s needs are unique and must be treated as such.  It is important for school districts, IHOs and legislators to consider that the IDEA limits LRE only to situations when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services can be achieved satisfactorily.  A cookie cutter approach can be more harmful than beneficial when applying the LRE provision of the IDEA to a student’s individualized educational program.
The special education team at Littman Krooks LLP has extensive experience advocating for parents of children with various special needs and helping them to navigate the labyrinth of special education law including cases where school districts may use the LRE against the student.

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In public elementary and secondary schools, students with disabilities may receive services under the Individuals with Disabilities Education Act (IDEA) or the Rehabilitation Act of 1973. The IDEA does not apply in the workplace or in post-secondary education, so services available under IDEA, such as an individualized education program (IEP), are not available in college. However, services under Section 504 of the Rehabilitation Act may continue at the post-secondary level.

First, it should be noted that while Section 504 only applies to schools that receive federal funding, most colleges and universities do, and private post-secondary schools that receive no federal funding are still required to provide similar accommodations to students with disabilities, under Title III of the Americans with Disabilities Act.

Section 504 prohibits discrimination based on disability, meaning that the needs of students with disabilities must be met as adequately as the needs of students without disabilities are met. Colleges and universities must provide accommodations for students with disabilities. As a practical matter, this may include accessibility of classrooms, dormitories and other buildings; additional time on tests; substitution of some course requirements; interpreters or readers; adapted computer terminals and other services. Such services must be provided unless a fundamental alteration of the program or an undue financial or administrative burden would result.

Students with disabilities going from high school to college will need to advocate for their own needs more than ever. If the university has a disability support office, the student will need to make contact with that office to explain his or her needs. If a student has a history of accommodations in high school, then documentation of this should be provided to college or university officials. Most of all, students will need to be persistent, keeping a record of who they talked to, and continuing to press the matter until the needed accommodations are received.

By Marion Walsh, Esq.

Today is National Children’s Mental Health Awareness Day.   Statistics show evidence of increasing mental health issues in children.   Chances are everyone knows a child struggling with mental health issues. According to statistics from the Surgeon General, approximately one in five children in the U.S. will experience a mental, emotional, or behavioral disorder between kindergarten and graduation. Failure to address children’s mental health needs is linked to poor academic performance, behavior problems, and school violence, dropping out, substance abuse, special education referral, suicide, and criminal activity.

Despite the high frequency and children’s clear needs for help, too many myths and unspoken stigmas plague families who have children struggling with mental health issues.  Clearly, a public health approach is necessary to address disorders and promote mental health in children.    Parents and school districts must forge partnerships to address this unfolding crisis.  Indeed, along with help from medical providers, they are the only ones who can.  However, funding cuts and tax caps in school districts have made the problems harder to address.

Signs of Mental Health Problems in Children:

The Mayo Clinic and other professionals list the following signs of mental illness in children:

· Mood changes: Look for feelings of sadness or withdrawal that last at least two weeks or severe mood swings that cause problems in relationships at home or school.  Some students simply withdraw.  School avoidance or physical symptoms without physical causes can also be a sign of mental distress.

· Intense feelings: Be aware of feelings of overwhelming fear for no reason — sometimes with a racing heart or fast breathing — or worries or fears intense enough to interfere with daily activities.

· Behavior changes: Look for drastic changes in behavior or personality, as well as dangerous or out-of-control behavior. Fighting frequently or expressing a desire to hurt others also are warning signs.

· Difficulty concentrating: Look for signs of trouble focusing or sitting still, both of which might lead to poor performance in school.

· Unexplained weight loss: A sudden loss of appetite, frequent vomiting or use of laxatives might indicate an eating disorder.

· Physical harm: Sometimes a mental health condition leads to suicidal thoughts or actual attempts at self-harm or suicide.

· Substance abuse: Some children use drugs or alcohol to try to cope with their feelings.

Why the Prevalence of Mental Health Problems in Children?

On the one hand, our world and schools are much safer and enlightened than decades ago.  Most states have outlawed corporal punishment; laws require services and accommodations for children with disabilities; parents monitor teachers’ abuse and vice versa; therapists are around every corner.    Clearly we are diagnosing disorders more precisely.   However, our society is more stressed, anxious and pressured.   Many parents must work long hours and do not see problems until they become crises.  The Internet has unleashed cruelty and crudeness of a previously unimagined scope.   Single parent families add risk factors.  In general, children may receive little training in ethics at home nor at school.  The accessibility of assault rifles shocks the conscience and makes apocalyptic violence a potential threat.

Legal Basics:

Parental Responsibilities:

Obviously, parents have a legal duty to care for their children and family represents the first source of support for a child’s mental health.  However, the increased stress and fracturing of life today makes it imperative that schools partner with parents to help children.   Parents must take a proactive role in helping their school district understand their child’s needs and also finding private help.   Yet parents, while closest to their children, can be in denial of serious problems.  A social partnership is necessary.

School District Responsibilities:

As noted by the National Association of School Psychologists, schools represent excellent places to promote good mental health.   Children spend a significant amount of time in school, and educators have the opportunity to observe and address their needs. Doing so effectively requires developing the capacity both to reinforce children’s natural mental health strengths and to identify and respond to children suffering mental health disorders.

Not every child with mental health issues has a disability but if a condition affects educational performance, the student should be referred for special education and related services.    Pursuant to the Individuals with Disabilities Education Improvement Act (IDEA), 20 USC §1400, et. seq. and parallel state law, school districts have a responsibility to identify and provide appropriate services to students with disabilities, including those who have an emotional disturbance or disability. As the Supreme Court noted in Honig v. Doe in 1988, “Among the most poorly served of disabled students were emotionally disturbed children: Congressional statistics revealed that for the school year immediately preceding passage of the Act, the educational needs of 82 percent of all children with emotional disabilities went unmet. See S. Rep. No. 94-168, p. 8 (1975).”

Under the 2006 IDEA Part B regulations, 34 CFR §300.8 (c)(4)(i), “emotional disturbance ” means a condition exhibiting one or more of the following characteristics “over a long period of time and to a marked degree that adversely affects a child’s educational performance”:

(A) An inability to learn that cannot be explained by intellectual, sensory, or health factors.

(B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.

(C) Inappropriate types of behavior or feelings under normal circumstances.

(D) A general pervasive mood of unhappiness or depression.

(E) A tendency to develop physical symptoms or fears associated with personal or school problems.

Steps School Districts Can Take:

School districts should develop a task force and work with community members to create systems and policies to proactively address student mental health needs.

1. Develop Effective Child Find and Special Education Programs with Effective Evaluations

2. Provide Effective Monitoring and Building Level Interventions

3. Train to Spot Signs of Mental Illness in Children and to Take Affirmative Steps

4. Develop Effective Anti-Bullying Programs (Bullying exemplifies and causes mental health problems).

5. Provide Parent Education and Parent Counseling and Training

6. Cultivate Partnerships with Outside Agencies

What Does Not Work

The Blame Game:

Schools often expect parents to have private mental health services to address school behavior.  Parents without resources cannot pay for private services and the community based resources have very long waiting lists.  Parents who can afford the services may not be able to address the behavior that is based in school or caused by the school environment. Often the parents get blamed for not “dealing” with the problem.  Parents also blame the school personnel for not addressing the problem.  The blame game can go in circles.  It only causes more stress to families and drains resources from schools which are facing shrinking budgets.

Review of Federal Litigation:

In the Second Circuit, which has more education law litigation than any other jurisdiction, litigation over children with emotional disturbances exceeds litigation over other types of disabilities.   Most litigation centers around whether schools provide a free appropriate public education to children under the IDEA, which is the most powerful statute available to students and families in ensuring appropriate services from school districts.   Much of IDEA litigation in the Second Circuit centers around tuition reimbursement after parents unilaterally remove their child from public school.

No matter which side is ultimately successful, case law only demonstrates failed attempts at addressing mental health issues. For example, in Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).   In this case, the student exhibited symptoms of anxiety, depression and social phobia, beginning in fifth grade and lasting for the next seven years throughout high school.  The parents finally removed the student from public school and initiated litigation to seek reimbursement for tuition at a supportive private school. The Southern District found that the District denied the student a free appropriate public education and awarded tuition reimbursement. But, the Second Circuit overturned the reimbursement award and ruled that the private school did not provide individually tailored services for the student’s unique needs.   This decision came five years after the litigation began. See also Eschenasy v. New York City Department of Education, 604 F. Supp. 2d 639 (S.D.N.Y. 20008). (Court found that student who cut class, took drugs, stole and engaged in hair pulling, cut herself, had attempted suicide and was diagnosed with a mood disorder and borderline personality features had an emotional disturbance under the IDEA and that the school district had denied her a FAPE and had to pay the parents tuition reimbursement as private school was appropriate).

Conclusion

Every parent and school professional must be aware of the impending mental health crisis confronting our youth and take steps to understand and advocate.  Parents and schools must act together to protect children become educated on risk factors and symptoms of mental health issues.