504 Accommodations

Accommodations - What are Testing Accommodations?
Testing accommodations are modifications are changes made in testing to prevent your child's disability from interfering with her ability to demonstrate her true skill levels. They can include:
• Changes to the test such as multiple choice rather than short answer, or a reduced number of test items.
• Changes in the administration of the tests such as extended time, having items read using a text-reader, or having someone write your child's answers as she says them aloud.

Decisions on Accommodations for Tests - What You Need to Know
Shortly after your child is formally diagnosed with a learning disability, the IEP team or Section 504 committee will likely discuss whether your child should have accommodations on his testing.
Testing accommodations are permitted under both Section 504 and IDEA. Further, in some cases, accommodations can apply to more than just classroom assessments. Under certain conditions, they can apply to high-stakes accountability testing in state-level assessments and with college entrance exams.
Are Accommodations Helpful or Harmful?
While testing accommodations can seem like a good idea to support your child, it is important to be aware of the possible negative affects they may have for him and for his school. Helpful aspects of accommodations include:
• When carefully applied, accommodations enable teachers to get a more accurate assessment of your child's knowledge and skills.
• Accommodations can help your child feel more comfortable with the testing process, knowing that his disability will not prevent him from succeeding.
• Accommodations can potentially help your child receive better grades and possibly more academic recognition.
• Accommodations may result in slightly higher scores on college entrance exams.
Conversely, there are potential negative affects of testing modifications that should be carefully considered before choosing to use them for your child. Possible harmful aspects of accommodations include:
• Testing accommodations may be misused and misapplied. This can artificially increase your child's scores. This can cause teachers overestimate his skills and ultimately lead to frustration and failure.
• Your child may not get extra help he needs because he appears to have higher skill levels than he really has.
• In the worst cases, teachers may inadvertently focus less on your child, believing that the accommodations are all the support he needs.
• When accommodations are over-used, children with disabilities have inflated scores. Such scores are used in instructional decisions and determining how to spend funds, place personnel, and provide professional development. As a result, students with disabilities can lose valuable support because they do not appear to need it.
Limitations on Testing Accommodations
Section 504 and IDEA allow for accommodation on testing, but they do not require schools to accommodate students to such a degree that they have advantages over other students.
While most schools allow IEP teams to determine classroom testing accommodations, there are typically strict guidelines for using accommodations during state-level accountability testing. In setting limits, states try to balance student need and fair access to testing with the need for school accountability for improvement.
The most significant reason for rigid regulation is that statewide assessment results reflect the quality of instruction children receive. Large numbers of modifications can artificially raise students' scores. This can prevent school improvement and mask serious instructional problems.
Another reason for regulation, and this is unfortunate but true, there are people who attempt to get modifications for their children when they are not really needed because they believe it will give their children advantages over other students. This is especially true among older students who are competing for scholarships and higher college entrance exam scores.
Making the Right Decision for Your Child
To make the best decision for your child, focus on:
• Assessment Data - Accommodate only in the areas where his disability would prevent him from showing what he truly knows. For example, if his learning disability is in written language, a scribe to write his responses, only exactly as your child states them, is appropriate.
• Develop your child's goals, objectives, and specially designed instruction on his IEP before discussing testing accommodations. This will enable the IEP team to think about accommodations while keeping in mind his total education program.
• Clearly specify what the accommodation will be and how and when it will be used in the IEP.
• Consider the supports your child needs in daily instruction. If he needs accommodations daily.

This is legal information only, not legal advice!
The above listed information about special education law is for general information only. General legal information is not the same as legal advice -- which requires the application of law to an individual's specific circumstances. Although I believe the information to be accurate and useful, I strongly recommend that you consult a lawyer if you want professional advice regarding your specific legal situation and do not rely solely on the information provided above.

Corporal Punishment

Here in the Northwest, Corporal Punishment is prohibited by law, in both Oregon and Washington. However, this is not necessarily true for the rest of the United States. There are twenty jurisdictions in the United States where corporal punishment(spanking, paddling) is permitted.

There remains a philosophy that a "spanking or "paddling" will curb student defiance and misbehavior. The problem with this thinking is that many of our most vulnerable students, those with disabilities, have behaviors that are manifestations of their disability and are not within their control, thus physical punishment is ineffective. Physical punishment would at best have no "positive" effect and at worst exacerbate the problem.

Further the ACLU/Human Rights Watch reported that last year students with disabilities disproportionately were subjected to corporal punishment. Clearly the population for which this type of discipline is harmful is the very population targeted.

There is some hope on the national front. Representative Carolyn McCarthy of New York is planning on introducing federal legislation to prohibit the use of corporal punishment entirely.

We as educators, parents and advocates must encourage the use of positive behavioral supports and prohibit the use of aversive discipline on our vulnerable special needs population.

Purpose of an Individualized Educational Program

Purpose of the IEP
I. Purposes of the IEP – The IEP is a collaborative effort between school personnel and parents to meet a student’s individual education needs including communication, management, accountability, compliance, monitoring and evaluation.
Communication – the IEP is a communication vehicle between the parents and the school personnel to provide a planned educational program for the student, to set goals, determine services to meet specific needs and to decide anticipated outcomes. It further can be a means of resolving differences and providing procedural safeguards.

Management – The IEP is a management tool. It sets forth the procedures required by the IDEA as to how a school will determine the the special education and related services necessary to provide an appropriate education as required under FAPE. The IEP is the contract that obligates the school district to provide and deliver the services decided upon.

Accountability – Once completed school districts are accountable for implementing the IEP that was developed. The school district is also required to revise and rewrite the IEP when necessary.

Compliance and Monitoring – The IEP can be used to assess school’s compliance with the FAPE mandate of the IDEA.

Evaluation – The IEP is evaluation tool. The annual goals contained in the document are measured by using the criteria specified in the document to determine a student’s progress.
The IEP must contain goals that are measurable and the school personnel must ensure that the goals will be measured. Further the IEP must describe how a student’s annual goals will be measured.

GENERAL PROCEDURE AND IMPLEMENTATION OF THE IEP

1. Referral – usually by the school, but can be initiated by the parents or others. Following a referral a (MDT) a multidisciplinary team evaluates the student. The team must contact the parents and obtain consent for evaluation. If parents consent to an evaluation must occur within 60 days of the consent if the MDT find the student eligible then the school must convene an IEP team within 30 calendar days.
2. The IDEA imposes no specific time limits with which the IEP must be implemented following its development, but the Office of Special Education Programs indicates that no delay is permissible
IEP Team

The IDEA delineates the person who is to compose the IEP tem and it is the school district’s responsibility to ensure that all the required participants attend the meeting. The required participants are found in the text “The Law and Special Education” (Yell, 282)

Content of IEP

The IDEA requires that at a minimum, eight components be present in the IEP. State and local agencies may require additional elements. (Yell, 288).

Substantive Requirements
Parental Participation – One of the most important mandates in the IDEA regarding an IEP is the requirement that the parents be equal partners in the IEP process. The school must take significant steps to ensure that one or both of the parents are present at the IEP meeting. The meeting may be conducted without the parents but only after exhaustive attempts have been made to contact them, which can be documented. (Yell 300-301).
Review and Revision - The IEP must be reviewed and if necessary revised at least annually. However, either the school or the parents can initiate a review earlier, if they determine the goals need revision. (Yell,302).

Communicating the Requirement of the IEP – The IDEA requires that the IEP be implemented as developed. The requirements apply to both general and special education requirements, thus when general education teachers are instructing students on an IEP, they must have access to the IEP document. (Yell, 303)

Litigation and the IEP - The Supreme Court has directed lower courts to apply a two prong test to determine if procedural and substantive compliance with FAPE was provided in the IEP. To determine substantive compliance with the FAPE mandate, the court must examine the following: 1) The IEP goals and objectives. 2) The evaluation procedures used to measure a student’s progress toward meeting those goals. 3) Actual student progress in a school’s special education program. Procedural flaws may but not necessarily invalidate and IEP. The Court would need to determine if the procedural error somehow compromised the student’s right to a FAPE. (Yell, 304).


This is legal information only, not legal advice!
The above listed information about special education law is for general information only. General legal information is not the same as legal advice -- which requires the application of law to an individual's specific circumstances. Although I believe the information to be accurate and useful, I strongly recommend that you consult a lawyer if you want professional advice regarding your specific legal situation and do not rely solely on the information provided above.

Continuum of Placement for Students with Special Needs

Continuum of Placement for Students with Special Needs

I. Inclusion remains a controversial concept in education because it relates to our educational and social values, including how we perceive those with disabilities. There are strong advocates on both sides of the issue and it is one that is yet to be resolved by local or state education authorities.
“The debate over the inclusion of students with disabilities not only concerns
Disagreements in following IDEA’S requirements of a FAPE, LRE, AND IEP, but also takes into account conflicting educational theories of attainment. Supporters and dissenters
to the full inclusion movement view the education of students with disabilities from
different perspectives and have opposing interpretations concerning the purpose
behind the educational system. “Gordon, S. “Making Sense of the Inclusion Debate
Under IDEA”, BYU Law Journal, 189-225.

Clearly, this is an issue that is far from settled. A simple review of case law from the various
Federal circuit courts indicates that the debate surrounding inclusion and the factors that
must be considered is far from established. The controversy over the best educational
placement for students with disabilities continues to be debated, and the best that advice
to districts and professionals considering placement issues is to consider that the IDEA
was not intended as a “one-size-fits-all” approach to educational placement. Gordon, pg 222.

II.
Definitions in order to discuss the concept of inclusion it is necessary to first have a common basis of reference.

1) Mainstreaming – Selective placement of special education student in one or more “regular education classes”. Generally a student must “earn” the opportunity to be placed in the general education classroom and must “keep up” with the assigned work.
2) Inclusion – is a term that attempts to educate the student to the maximum extent appropriate in the school classroom that he/she would otherwise attend. It involves bringing support services to the student, rather than separating the student to a specialized classroom.
3) Full Inclusion – All students will be in the regular classroom program full time regardless of the disability and all services will be provided in the regular education classroom Research Bulletin 11, 1993 Phi Delta Kappa’s Center for Evaluation, Development and Research.

III. Does Federal Law Require Inclusion? Two federal laws govern education of children with disabilities the IDEA 1997, 2004 and the Rehabilitation Act of (1973).
1) The IDEA as amended in 2004 does not require inclusion. Instead, the law requires that children with disabilities be educated in the “least restrictive environment appropriate” to meet their “unique needs”. Indeed, the IDEA does presume that the least restrictive analysis will begin with the placement in the regular classroom.
a) IDEA requires school districts to “have a continuum of placements”
2) Rehabilitation Act of 1973 – Section 504 requires that a recipient of federal funds provide for education of each qualified handicapped person with persons who are not handicapped to the maximum extent appropriate to the needs of the handicapped person

IV. Court Guidelines for Placement The IDEA and the Rehabilitation Act leave many questions unanswered that the local school districts must determine themselves. Through litigation some guidance has been given by the following case law.
1) Greer vs. Rome City School District (11th Circuit, 1992) – finding, “Before the school district may conclude that a handicapped child should be educated outside of the regular classroom it must consider whether supplemental aids and services would permit satisfactory education in the regular classroom.” The Court made an additional finding that the school district cannot refuse to serve a child because of added cost. However no clear directions or determination was made about what costs are reasonable and what is excessive.
2) Sacramento City Unified School District vs. Holland (9th Circuit, 1994) - in this case the Court established a four part balancing test to determine whether a school district is complying with the IDEA. The four factors are as follows:
a) The educational benefits of placing the child in a full time regular education program
b) The non-academic benefits of such a placement
c) The effect the child would have on the teacher and other students in the regular classroom.
d) The costs associated with this placement.
3) Oberti vs. Board of Education of the Borough of Clementon School District (3rd Circuit Court, 1993) in determining appropriate placement the court ruled that three factors must be considered.
a) The court should consider whether the district made reasonable efforts to accommodate the child in regular education. The school must “consider the whole range of supplemental aids and services…”
b) The Court should compare the educational benefits the child would receive in regular education with supplemental aids and serves compared to the educational benefits in a special education classroom.
c) The Court should consider the effect the inclusion of the child with disabilities might have on the education of other children in the regular education classroom.
• Interestingly here the Court is imposing its view of educational benefits
V. Studies on Placement demonstrating benefit of inclusion:
a) Kavale, K.A., Glass, G.V. “The Efficacy of Special Education Interventions and Practices.” A Compendium of Meta-Analysis Findings.” Focus on Exceptional Children (1982) 1-14
b) Wang, M.C. Reynolds, M.C., Walberg H.J. “Serving Students Needs at the Margins” Educational Leadership (1988) 12-17
c) Carlberg, C., Kavale, K., The Efficacy of Special versus Regular Class Placement for Exceptional Children” A Meta Analysis” The Journal of Special Education (1980) 295-305.
d) The Council on Exceptional Children, Position Paper (1993).


This is legal information only, not legal advice!
The above listed information about special education law is for general information only. General legal information is not the same as legal advice -- which requires the application of law to an individual's specific circumstances. Although I believe the information to be accurate and useful, I strongly recommend that you consult a lawyer if you want professional advice regarding your specific legal situation and do not rely solely on the information provided above.

Purpose and Provision of Section 504 of the Rehabilitation Act of 1973

Purpose of Section 504 – Section 504 is a brief section of the Rehabilitation Act of 1973.

“No otherwise qualified individual with a disability in the United States…
Shall, solely by reason of his or her disability, be excluded from the participation
In, be denied the benefits of, or be subjected to discrimination under any program
Or any activity receiving Federal financial assistance.”

Because school districts receive federal funds, Section 504 protects students with
Disabilities from discrimination in public schools.

Students with disabilities who attend public schools whether or not they are
Protected by the IDEA are protected under Section 504.

Preschool, Elementary, Secondary, Postsecondary and Afterschool programs
Are all included.

Who is protected?

Any person who, 1) has a physical or mental impairment which substantially
Limits one or more of such person’s major life activities, 2) has a record of such
Impairment or, 3) is regarded as having such impairment.

Physical Impairments defined as: A) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems, neurological, musculoskeletal, special sense organs, respiratory, including speech organ, cardiovascular, reproductive, digestive, genitor-urinary, and hemic and lumphatic, skin and endocrine.

Mental Impairment defined as: B) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

Substantial Limitation of a Major Life Activity which through case law and 504 regulations has come to be defined as:

Substantial limitation – means that an individual ibis unable to perform a major life activity that the average person in the general population can perform or is significantly restricted in the manner or duration in which he or she can perform the major life activity when compared to the manner or duration under which the average person can perform the activity. (Yell, Principles of Special Education, pg. 122) This determination must be assessed for each student on an individual basis.

Major Life Activity – means “functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, breathing, learning, and working.


Section 504 Coverage and Reasonable Accommodations - all students with disabilities are protected from discrimination in elementary, secondary and post secondary schools. Students must have the equal opportunity to benefit from a school’s academic or nonacademic programs or services as their non-disabled peers. This includes physical accessibility and reasonable accommodations.

Physical Accessibility - school academic and non-academic programs, structures and activities must be physically accessible to student with disabilities. This applies to all facilities within a school: classrooms, playgrounds, gyms, water fountains. Swimming pools, parking lots and restrooms.

Reasonable Accommodations - Section 504 only defines reasonable accommodations as it relates to employment. Therefore case law has primarily defined what reasonable accommodations are in the educational context. The case law has set forth that programs do not need to make substantial modification, only reasonable ones. (Alexander v. Choate (1985)

Relevant factors to consider to determine if modifications are reasonable include: 1) undue hardship on the program; 2) size, type and budget of the program; 3) the nature and cost of the accommodation.

What are Testing Accommodations? Testing accommodations are modifications or changes made in testing to prevent a child’s disability from interfering with their ability to demonstrate their true skill level.

Where and when are Accommodations used? Accommodations can be used in the classroom to modify (teaching strategies, learning environment, behavior management) and in statewide testing (high stakes testing)

What are reasonable Accommodations? - The following have been sustained by the courts or provided for in local school districts.

1) Academic adjustments - a) length of time to complete a degree; substitution of courses, modifying methods of instruction; modifying materials; altering environmental conditions; modifying examinations ( giving tests orally, allowing student to dictate answers, shortening length of exam, allowing more time to take the test, altering test format, enlarging text, reducing reading level of the test.

2) Reasonable Classroom accommodations

a) Classrooms modifications –
Student (e.g. preferential seating)
Alter physical setup of classroom
Reduce distractions (e.g. study carrel)
Provide increased lighting
Schedule classes in accessible areas.

b) Academic Adjustments/Instruction.
Allow more time to complete assignments
Adjust length of assignments.
Modify pace of instruction.
Use peer tutors.
Provide outline of lectures.
Use visual aids.
Use advance organizers.
Use mnemonic devices
Highlight texts and worksheets.
Tape lectures.
Adjust reading levels of materials.
Use specialized curricular materials.
Provide study guides.
Give tests orally or on tape.
Allow more time to complete tests.
Allow students to dictate answers.
Alter the test format.
Use enlarged type.
Reduce the reading level of the test.

c) Environment
Place student in front w/ back to rest of students
Cardboard cubicle
Use ear plugs or headphones.
Use line markers, or penlights to read
Reduce distracting stimuli (e.g. air conditioner, traffic, doors or windows).

d) Tests:
Provide a structured study guide that matches the test
Allow ample space for student response
Provide Written and Oral reminders of upcoming tests.
Provide short breaks during lengthy tests.
Allow students to use notes with the test.

e) Managing Behaviors
Use physical signals (e.g. tap on desk, hand on shoulder)
Allow for movement
Model appropriate behavior
Positive reinforcement when engaged in appropriate
Behavior
Teach and Practice Body Relaxation
Teach student to ask for breaks

f) Auxiliary Aids and Devices
Provide interpreters.
Provide readers.
Use audiovisual aids.
Tape tests.
Provide assistive technology devices and services, such as Laptops.

Are there limitations on Testing Accommodations? The Supreme Court has ruled that programs or schools do not need to make substantial only reasonable ones. Determining what is reasonable is difficult and subjective, however accommodations are generally considered reasonable if they do not impose excessive financial and administrative burdens or require a fundamental alteration in the program.

Testing Accommodations do not require schools to accommodate students to such a degree that they have advantages over other students. During high stakes testing there are strict guidelines for using accommodations so that they balance the needs of the student with the state’s need to determine accountability for improvement.



This is legal information only, not legal advice!
The above listed information about special education law is for general information only. General legal information is not the same as legal advice -- which requires the application of law to an individual's specific circumstances. Although I believe the information to be accurate and useful, I strongly recommend that you consult a lawyer if you want professional advice regarding your specific legal situation and do not rely solely on the information provided above.

Bullying in Schools

Bullying in Our Schools

Oregon passed HR 2599 into law 2009: ORS sec. 339.351 to sec. 339.364. Section 339.364(1) states
In part “each district shall adopt a policy prohibiting harassment, intimidation or bullying…” Will this law help? How will this legislation and others similar to it throughout many other states help protect our children, especially the most vulnerable of our student body, those with Special Needs. Although these recent amendments do not create a statutory cause of action, it does not prevent a student from seeking redress under other civil or criminal statutes.

It has been reported that 40% of 8th graders and 30% of high school juniors admit to being harassed at school or on their way to and from school. Hammond, Betsy, “Oregon to beef up anti-bully laws”, 4, March, 2009. Furthermore the National Association of State Directors of Special Education (NASDSE) report that children with special needs may be at particular risk of being bullied by their peers.

To add to these dismal statistics, a survey of elementary and middle school students in Massachusetts revealed that more than 30% of the students believed that adults did little or nothing to help in bullying incidents. (Mullin-Rindeler, 2003).

Clearly there is a duty on educators and all school personnel to keep our children safe. School personnel act in loco parentis, while children are within their care and control. This Latin phrase basically means that while a student is in the custody of a school, the school can and often should act as a parent. This places an affirmative obligation on them to ensure that the school is safe and that their charges are free from the denigrating bullying that appears on the rise.

Rob Horner of the University of Oregon, believe that anti-bullying laws alone will have little impact on bullying. He believes that we need to teach children what we want and expect of them rather than wait until they make a mistake and then punish them. Hammond, Betsey, “Oregon to beef up anti-bullying laws” 4, MRCH, 2009. He proposed the use of Positive Behavioral Supports (PBS) which is currently used in 40% of Oregon Schools.

All parents need to be alert to the signs that their child is being bullied, and take action. Parents must notify the school, preferably in writing, (Gebser letter) and record and document any and all incidents. For parents with children with Special Needs, they additionally should meet with the Special Education team, review the child’s IEP or 504 Plan and include any accommodations necessary to stop the harassment. Further it is important for parents and districts to bear in mind that those individuals who are covered by the IDEAIA and Section 504 of the Rehabilitation Act, the acts of bullying or harassment may rise to a violation of the civil rights of the individual


This is legal information only, not legal advice!
The above listed information about special education law is for general information only. General legal information is not the same as legal advice -- which requires the application of law to an individual's specific circumstances. Although I believe the information to be accurate and useful, I strongly recommend that you consult a lawyer if you want professional advice regarding your specific legal situation and do not rely solely on the information provided above.

Recreational experiences for Individual with Disabilities

It is important for all of us as parents, educators and advocates for those with disabilities to remember to provide recreational experiences. These experiences not only provide a pleasurable pastime, but also offer experiences that enable individuals with exceptionalities to challenge themselves and accomplish goals. McCarthy Teszler School in Spartanburg, South Carolina, helped students at the School for the Deaf and blind climb a rock wall. Anna Brown a recreation therapist at McCarthy Teszler said the experience “helps students with their confidence”. (GreenvilleOnline.com, Nathaniel Cary) Here in Oregon we have a wonderful facility on Mt. Hood (Kiwanis Camp) that affords children and adults with disabilities the outdoor camping experience. The Camp provides a variety of recreational activities including canoeing, horseback riding, fishing and swimming. These experiences foster self-confidence for the Campers and provide lasting memories and friendships.

This is legal information only, not legal advice!
The above listed information about special education law is for general information only. General legal information is not the same as legal advice -- which requires the application of law to an individual's specific circumstances. Although I believe the information to be accurate and useful, I strongly recommend that you consult a lawyer if you want professional advice regarding your specific legal situation and do not rely solely on the information provided above.

Research on Autism at University of Washington

As parents know who have children diagnosed with Autism Spectrum Disorder (ASD) is a neurodevelopmental disorder that is characterized by impairments in the areas of social reciprocity, communication and repetitive behaviors. Parents are naturally concerned about the future of their children and how they will integrate into the greater society. There is hope. Research being conducted at the University of Washington’s Autism Center indicates that intensive early intervention can make a critical difference for many children. This new intensive program has led to impressive gains in the I.Q. of very young children. This therapy was developed by Sally Rogers of University of California, Davis. Parents have reason for hope. Great strides are being made to improve the quality of life for children with ASD and their families. Families should always be cognizant that individualized and multidimensional treatment is still the standard that provides the most significant improvement in symptoms.

This is legal information only, not legal advice!
The above listed information about special education law is for general information only. General legal information is not the same as legal advice -- which requires the application of law to an individual's specific circumstances. Although I believe the information to be accurate and useful, I strongly recommend that you consult a lawyer if you want professional advice regarding your specific legal situation and do not rely solely on the information provided above.

CDC Research on Autism

The Center for Disease Control and Prevention provides valuable information to parents of children with Autism. In, 2000, the CDC organized the Autism and Developmental Disabilities Monitoring Network, (ADDM). As outlined on their website the ADDM network provides information on the prevalence, characteristics and public health impact of ASD in the U.S. (www.cdc.gov) The report provides summaries of prevalence overall, as well as by race, ethnicity, sex, level of cognitive functioning and other associated characteristics. Data from the ADDM studies indicates a “significant average increase in identified ASD prevalence in 2006 as compared with 2002…” The CDC indicates that it is unknown whether these statistics reflect a true increase in ASD or simply a greater awareness and identification of the condition. Regardless of the exact reason for the increased reporting of children with ASD, it is essential that a coordinated effort combining public and private enterprises be conducted to address the needs of individuals with ASD. (www.cdc.gov. “Prevalence of Autism Spectrum Disorders---Autism and Developmental Disabilities Monitoring Network, United States, 2006) Surveillance Summaries, December 18, 2009.

This is legal information only, not legal advice!
The above listed information about special education law is for general information only. General legal information is not the same as legal advice -- which requires the application of law to an individual's specific circumstances. Although I believe the information to be accurate and useful, I strongly recommend that you consult a lawyer if you want professional advice regarding your specific legal situation and do not rely solely on the information provided above.