Yesterday, the Supreme Court decided, 8-0, in Fry v. Napoleon Community Schools, that families do not have to exhaust remedies under IDEA when rights are fully supported by the ADA and Section 504. This is a huge deal in the special education legal community. It means that families do not need to waste time and money asserting concerns in a forum that can not address their needs before proceeding to a court that can. You can read the entire decision here.
A big THANK YOU to this family for bringing their fight all the way to the Supreme Court and sharing their story.
On July 26, 2016, the United States Department of Education’s Office for Civil Rights (OCR) published a Dear Colleague letter and Resource Guide to ensure that students with attention-deficit/hyperactivity disorder (ADHD) were receiving a Free Appropriate Public Education (FAPE). OCR wrote the letter in response to concerns that school districts were not properly identifying, evaluating, and meeting the needs of students with ADHD. You can read the entire letter and guide here.
OCR reminded districts that because of the Americans with Disabilities Amendments Act of 2008 (Amendments Act), more students with ADHD are entitled to protections under section 504. This is because the Amendments Act required a broad definition of disability; expanded the list of major life activities to include concentrating, reading, thinking and functions of the brain; and prohibited the consideration of the ameliorative effects of medication when evaluating whether a student has a disability. You can read more about those changes here.
OCR warned that school districts should not assume that a student’s academic success necessarily means that the student does not have a disability. If a student was receiving good grade, but spent an extraordinary amount of time studying, required extra help at home to complete assignments and/or needed extra time to finish exams, this student may in fact have a disability and these mitigating measures would in fact serve as evidence of the disability-related need. OCR reminded districts that an academically gifted student may still require specific and explicit instruction in order to reliably record homework assignments, organize information into class notes, state a multi-stage project, write more efficiently, or respond to challenges relating to attention and concentration.
Another interesting aspect of the guidance is the reminder that in order to evaluate a student with suspected ADHD, the school district may need to provide a medical assessment of the student (with parental consent) at no cost to the parents. In other words, the district cannot deny services because a student has not been diagnosed with ADHD by a medical doctor. If that evaluation is required, the district must propose and provide it.
Finally, OCR wrote that they “cannot overemphasize” the importance of ensuring that a 504 Plan or IEP is actually implemented. OCR explained this failure occurs most in two different scenarios: first, teachers and other staff are completely unaware that a plan exists; or, the plan is so vaguely worded that the parties are unclear or disagree about what the plan requires. In my years of experience as a lawyer representing students with ADHD, I have to agree that these failures are pervasive and often result in a denial of FAPE.
If your child has ADHD and you are concerned about their educational progress, contact the North Shore Massachusetts office of attorney Lillian E. Wong for an initial consultation.
Attorney Wong is pleased to announce that she has joined the American Diabetes Association's Advocacy Attorney Network, a group of attorneys from around the country dedicated to ending discrimination against people who have diabetes. Attorney Wong has previously advocated for clients with diabetes , and her work with the American Diabetes Association will focus on education issues. The American Diabetes Association website contains a number of helpful documents about advocacy and legal rights for students with diabetes in the school setting. You can find those documents here.
If you have a child with diabetes and are concerned about school-related issues, contact the Boston area Law Office of Lillian E. Wong. Attorney Lillian Wong represents parents and their children throughout Massachusetts.
In June 2010, the United States Government Accountability Office (GAO) published a report that found that students with disabilities were not being afforded an equal opportunity to participate in extracurricular athletics in public elementary and secondary schools. The GAO emphasized that participation in extracurricular athletics provides important health and social benefits to all student, particularly those with disabilities. You can read the entire report here.
On January 25, 2013 the Office of Civil Rights (OCR) issued guidance on how schools can ensure that students with disabilities are provided equal access to extracurricular sports (club, intramural, interscholastic). You can read the entire document here.
There are three main points in to this January 25, 2013 document. Each section provides interesting example cases and analysis, but here is a summary:
First, OCR warns against general rules and stereotypes that bar students with disabilities from participating in sports and reminds schools to use an individualized inquiry.
Second, OCR explains that the governing law, Section 504 of the Rehabilitation Act of 1973 (Section 504), requires schools to affords qualified students with disabilities an equal opportunity to participate and defines equal opportunity as making reasonable modifications and providing those aids and services that are necessary to ensure an equal opportunity to participate, unless doing so would fundamentally alter the nature of the activity.
Finally, OCR instructs that even students with disabilities who cannot participate in the school district's existing extracurricular program (even with reasonable modifications or aids or services) must still have an equal opportunity to receive the benefits of extracurricular athletics and suggests multiple ways to provide this opportunity such as creating district-wide or regional teams, mixing male and female students together, or offering "allied" or "unified" teams where students with disabilities participate with students without disabilities.
If you have questions about disability-based discrimination and equal access to education, including
extracurricular activities, contact the Boston area law office of Lillian E. Wong today.
Parents and educational advocates often ask me what to do when a teacher is "bullying" a student.
Massachusetts' Bullying Law
Many people are surprised to learn that the Massachusetts Anti-Bullying law does not apply when teachers are "bullying" students. The Massachusetts Anti-Bullying law defines a "bully" as a "student," making it legally impossible for the teacher to be labeled a bully under this statute.
Reframing the Question
Just because the anti-bullying law does not apply to teacher/student interactions, doesn't mean the teacher is acting appropriately. When I'm told a teacher is bullying as student I always ask for a more detailed description about the teacher's actions.
Is the teacher refusing to implement the student's IEP or 504 accommodations? Then the teacher is denying the child a Free Appropriate Public Education (FAPE). Is the teacher continually making fun of the child's known or perceived disability? Then the teacher has committed disability-based harassment and discrimination. Is the teacher impermissibly sharing confidential information about the student? Then the teacher is violating the child's privacy rights under FERPA.
Before any parent makes allegations against a teacher, it's important to have a clear understanding of what events took place and what laws are implicated. It's also useful to corroborate reports of teacher "bullying" and provide supporting documentation to the school. If you have questions about the laws governing teacher/student interactions, contact the Boston area law office of Lillian E. Wong today.
The CDC recently released a report entitled Attention Deficit Hyperactivity Disorder Among Children Aged 5–17 Years in the United States, 1998–2009. The study finds that ADHD currently affects 9% of children in the US, an increase from 7% in 1998.
Does this mean more children with ADHD are on IEPs?
Not necessarily. Just because a child has been diagnosed with ADHD doesn't mean he or she qualifies for special education (and an IEP).
In order to qualify for an IEP, your child must need special education supports and services. Even though ADHD is not specific disabling conditions under the Individuals with Disabilities Education Act (IDEA), a child with ADHD can be found eligible for special education under “Other Health Impairment” category. The Federal Regulations specifically include ADD and ADHD in their definition of Other Heath Impairment. Alternatively, a child with ADHD might be found eligible for special education under the “emotional disturbance” (ED) or “specific learning disability” (SLD) classifications.
What if a child is found ineligible for an IEP?
If a child who has ADD/ADHD is found ineligible under the IDEA, she might still be eligible for support under Section 504 of the ADA. In order to establish 504 eligibility, you must show that ADHD interferes with a "major life activity." Section 504 eligibility is often established by showing ADHD interferes with the major life activity of learning.
Learn more about the difference between an IEP and 504 plan here.
If you believe your child needs an IEP or a 504 plan and your school district disagrees, contact Boston area special education attorney Lillian E. Wong for help.
This is the third part of an eight-part series, "Top Flaws of IEP/504s and What You can Do About Them"
My expert thinks my child needs a certain accommodations and services, but the school disagrees. Isn't the expert more qualified than the school?
What You Can Do
Just because the expert has more experiences or qualifications than school officials, doesn't mean that the expert's recommendations must be followed. The law doesn't require the school to implement expert recommendations, but the IEP/504 team must "consider" them. How can you turn consideration into implementation? Provide the team with the expert's report ahead of time. This allows everyone to read the recommendations before the meeting. If at all possible, have the expert attend the IEP/504 meeting. If actual attendance won't work, request that the expert participate by phone. Either way, it is essential to allow experts to explain their recommendations to the team and to answer any questions the team might have.
If you need help advocating for your child's educational rights contact Boston area special education lawyer Lillian E. Wong today.
This is the first part of an eight-part series, "Top Flaws of IEP/504s and What You can Do About Them"
I don't see the point of attending IEP/504 meetings. I barely get a chance to talk and when I do, I'm ignored. How can I get the school to listen to me?
What You Can Do
Always remember that as a parent you are an essential member of your child's IEP/504 team. While the school is not required to implement every request you have, they are required to listen and consider your input. One of the best ways to become an active member of the team is to ask questions. After you ask a question, listen and analyze the answer. Ask follow-up questions. If you are nervous about talking in the meeting, type up your concerns an ahead of time and distribute the document at the start of the meeting. If after the meeting you still feel ignored, send the team a follow-up letter documenting any remaining requests, questions, or suggestions.
If you need a special education advocate in Massachusetts, contact Boston area attorney Lillian E. Wong today.
This question was originally posted on www.avvo.com
My daughter is in public school and is a diabetic. At the moment, the school nurse is insisting, and has had added to my daughter's health plan that a parent is required to escort her on all field trips. I thought the public school is supposed to make reasonable accommodations for persons with disability. So what if we can't go? Isn't discrimination if they leave her behind? I have every intention of hashing this out with them, however I'm just weighing my options in case they won't budge.
Yes, it does sound like the school in violation of Section 504 of the American's with Disabilities Act (ADA). It is discrimination to preclude an otherwise qualified individual with a disability the opportunity to participate in or benefit from an aid, benefit, or service that is not equal to that afforded others. 34 CFR 104.4 (b)(1)(ii).
I would recommend speaking contacting a special education attorney. You can find a list of special education lawyers in your area at www.copaa.org.
Just because your child has been diagnosed with ADD or ADHD doesn't mean that he or she is not automatically eligible for special education. This article explains the eligibility criteria under the Individuals with Disabilities Act (IDEA) and Section 504 of the ADA.
Eligibility Under IDEA
In order to qualify under IDEA, your child must need special education. For example, your child may need special education because ADD/ADHD makes her unable to pay attention in class. Another indicator that your child might need special education supports and related services is if your child's ADD/ADHD causes him to act impulsively towards other students, straining social relations and resulting in school discipline.
Even though ADD/ADHD is not specific disabling conditions under IDEA, a child with ADD/ADHD is usually found eligible for special education under “Other Health Impairment” category. The Federal Regulations specifically include ADD and ADHD in their definition of Other Heath Impairment. Alternatively, a child with ADD/ADHD might also be found eligible for special education under the “emotional disturbance” (ED) or “specific learning disability” (SLD) classifications.
Eligibility Under Section 504
If a child who has ADD/ADHD is found ineligible under the IDEA, she might still be eligible for support under Section 504 of the ADA. In order to establish 504 eligibility, you must show that ADD/ADHD interferes with a "major life activity." Section 504 eligibility is often established by showing ADD/ADHD interferes with the major life activity of learning.
Find out more about special education eligibility in Massachusetts here.
To learn more about the difference between a IEP and a 504 plan click here.
To read a parent Q & A about ADD/ADHD and special education click here.
It is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.
Brown v. Board of Education, 347 U.S. 483 (1954)
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Topsfield, MA 01983