Special Education Basics: The Difference Between IEPs and 504s

Most parents of children with disabilities do not have extensive experience advocating for accommodations within their school system. In an ideal world, a school would promptly and properly identify the needs of students with disabilities and work to ensure parents understand their options. Since this ideal is not always upheld, it is important to understand the core tenets of special education law. One of the most common issues parents run into is understanding the difference between an Individualized Education Program (IEP) and a 504 Plan. Both IEPs and 504 Plans offer formal assistance and accommodations for K-12 students who are struggling in school. However, there are some key differences between the two.

An IEP is a written program that provides with specificity what, if any, free special education resources, services and supports will be put into place to meet your child’s unique needs. This includes any specialized instruction your child may engage in. The written IEP will also set specific learning goals for your child. The underlying law that applies with an IEP is the Individuals with Disabilities in Education Act (IDEA). This is a federal law focused on special education for children with disabilities.

A 504 Plan is a plan established by the school to determine what free supports and accommodations the school will put into place to ensure your child can learn alongside their peers in the classroom. Unlike an IEP, there is no standard 504 Plan and a 504 Plan need not necessarily be a written document - although most schools do produce written plans. A 504 Plan does not typically set specific learning goals like an IEP does. The underlying law that applies with a 504 Plan is Section 504 of the Rehabilitation Act of 1973. This is a federal civil rights law that focuses on stopping discrimination against people with disabilities.

Under the IDEA, a parent or guardian must give written consent before a child is evaluated for IEP eligibility and give written consent before the school can begin implementing the services described in the IEP. Under Section 504, a parent must consent to an evaluation but it does not have to be in writing. An IEP must be reviewed at least once a year, and a child on an IEP must be re-evaluated every three years in order to determine if services are still needed. For a 504 Plan, the rules vary by state although most schools loosely follow the same timeline as an IEP.

So, how do you determine which of these two options would best suit your child? In order to qualify for an IEP, a student’s school performance must be adversely affected by one of thirteen qualifying disability categories under the IDEA. The child must need specialized instruction in order to progress in school. Conversely, to qualify for a 504 a child need only have any disability that interferes with the ability to learn and progress in a general education classroom setting. The disability must substantially limit one or more basic life activities for the student. Because the requirements to qualify for an IEP are stricter than those for a 504 Plan, a child who does not qualify for an IEP may still qualify for a 504 Plan.

If you think your child might need an IEP or a 504 Plan, reach out to your school administrators and request an evaluation for your child. If you have questions about your child’s IEP or 504 Plan, contact an education advocate or attorney.

Written by education attorney, Megan Mitchell at Abdnour Weiker, LLP

www.Lawyers4Students.com

Do I Need an Attorney, an Advocate, Both or Neither?

When do you need a special education attorney versus a parent advocate?

Federal and state laws require school districts to find and identify children with disabilities. Parents can request that their child be evaluated, and schools must respond appropriately. Once children have been identified, the schools are required to determine if they are eligible for special education services, and if they are, to provide those services in an appropriate manner.

In many cases, and with the right information, parents can advocate effectively for their child in the special education setting. The special education process was set up to be relatively non-adversarial and to allow parents to be members of the IEP team and collaborate with schools. However, some school districts push back when parents question their decisions, fail to truly inform parents of their rights under IDEA and Section 504, and fail to identify, evaluate or provide appropriate services to children with disabilities. If you are experiencing push back, you suspect something is wrong but cannot get your school to listen, or you believe your child is not getting services that allow him or her to progress appropriately, it may be time to call for help.

Your next decision is whether to call a special education attorney or parent advocate.

Abdnour Weiker, LLP has both advocates and special education attorneys to handle cases. Our advocates are many times more financially affordable to families, typically billing at 50% of the attorney hourly rate. Another benefit to hiring Abdnour Weiker, LLP is that you can start with an advocate but if the situation ever progresses to needing an attorney, our attorneys are already up to speed and familiar with your case. That means less time transitioning from an advocate to an attorney, and less money spent by the family.

Both advocates and attorneys should have a solid understanding of the IDEA and 504 frameworks at the state level, disabilities, educational theories and practices, and school environments. They should be aware of appropriate interventions for children with disabilities, be able to connect you with resources and services outside the school, and be adept at effectively communicating with school districts.

Here are some tasks that BOTH special education attorneys and advocates should be able to do well:

• Evaluate initial and triennial Evaluation Team Reports

• Advocate for and help draft appropriate and effective IEPs

• Advocate for Section 504 eligibility and help draft appropriate and effective 504 plans

• Advocate for Independent Educational Evaluations

• Evaluate and advocate for Functional Behavior Assessments & Behavior Intervention Plans

• Advocate for students with behavioral disabilities and protect those students when schools want to discipline them

• Understand and advocate for effective progress monitoring

So, when should you consider a special education attorney?

Advocates and attorneys should be able to evaluate your case to determine if you need legal or advocate assistance. However, the following may be red flags to alert you that an attorney may be needed:

• Your child’s needs concern specific areas of law such as placement outside of the school, your legal rights of confidentiality, etc.;

• Your child faces expulsion and/or criminal charges for conduct within the school;

• The school has brought in an attorney to help them, or you need to answer a letter written by an attorney; or

• You need to move beyond advocacy to file a formal complaint or due process with the Ohio Department of Education, or a complaint with the Office of Civil Rights.

The best way to determine if you need an advocate or attorney is to call one and ask. A responsible advocate will tell you when you need an attorney, just as a responsible attorney will tell you when you can use an advocate. Make sure they listen more than they talk – the hallmark of effective advocacy is in their listening skills!

Questions? Call us at 614.745.2001 or visit www.Lawyers4Students.com

What Can You do to Get the Most Out of Your Child’s IEP Meeting?

There is no denying that IEP meetings can be overwhelming and oftentimes, you go into them unprepared and leave feeling exhausted. However, this does not have to be the case. Below, I will list some tips that will help you get the most out of your child’s IEP meeting and ensure that you are able to meaningfully participate from start to finish.

What to do before the IEP meeting

Once the IEP meeting is scheduled, you need to get to work. To best prepare for the meeting, you need to gather your child’s most recent multifactored evaluation and progress reports from the last year. Also include your child’s grades. If you have received correspondence from your child’s teachers that document difficulties or successes, print those off and include them in your review.

Next, ask your child’s intervention specialist for a copy of the IEP draft at least one week beforehand. Make sure that your request is in writing. While not every school district is required to provide a draft copy of the IEP before the meeting, almost all districts do when asked.

Now that you have your documents to review and a draft copy of the IEP, it is time to get to work. When looking through the ETR, look closely at the educational needs section in all individual evaluators’ pages and the team summary. These areas of need should be reflected in the IEP somewhere. Most often, these needs will be transferred into goals and accommodations, but sometimes, the need may be listed in the profile if it is determined that a goal or accommodation is not necessary. If you do not see a need reflected in the IEP somewhere be sure to write it down so it can be addressed in the meeting. The progress report can guide you in determining if the goals written in the draft are appropriate based on your child’s progress on previous goals. Lastly, your child’s grades, work completion, and teacher notes can be helpful in developing services. Be sure to write everything down that you have questions or concerns about and send that list to the intervention specialist before the meeting, even if it is the morning of the meeting. This will ensure that everyone is on the same page, allow them to prepare, and highlight your concerns in the meeting.

What to do during the meeting

Meeting day has finally arrived. While having some anxiety about the meeting is normal, your preparation will help you feel more comfortable and confident in your approach. Take some deep breaths if you feel yourself getting elevated or upset and ask for a break if one is needed. If you have brought someone with you to the meeting, use a break to talk through questions you have with that individual.

Do not be afraid to ask questions or ask someone to clarify what has been discussed. It is easy for school staff to talk over you or to you but forget to include you in the conversation. Take notes while going through the meeting and jot down questions you have so you do not forget them. At the end of the meeting, ask the team those questions. If you were not able to talk through everything in the time allocated for the meeting, ask for a follow-up meeting. Make sure that you leave that IEP meeting feeling like a valued member of the team who was able to fully participate.

What to do after the meeting

After you have been able to process what was discussed during the meeting, follow up with team members if you have any additional questions or concerns. Sometimes, it takes a little bit of processing to fully grasp everything that went on. You should receive a Prior Written Notice and a copy of the IEP a day or two after the meeting, sometimes a little longer, but if you have not received these documents by a week after the meeting, be sure to ask for them. Read the IEP and make sure it is accurate and captures all changes discussed during the meeting. Additionally, read the Prior Written Notice to verify the accuracy of the events.

If the Prior Written Notice is not accurate, is misleading, or leaves out important information, you can email your account of what occurred and ask the school team to include your feedback with theirs. You can also ask that the team make changes to the Prior Written Notice to correct any errors. Store these documents in an electronic file or a physical file for your records. Continue to collect pieces of data that you receive throughout the year, including progress reports, to be prepared for next year’s IEP review. You've got this!!

Authored by Danielle Randolph, M.Ed, Ed.S, Advocate for Abdnour Weiker, LLP

Questions? Call us: 614-745-2001

Making the Most of Progress Reports for Special Education Students & Families

It’s that time of year again…the end of the grading period. As many of us know, having lived through it, students receive report cards with their grades at the end of each marking period (typically at the end of each quarter of the school year). At the same time, special education students will be receiving their individualized education plan (“IEP”) progress reports, as these reports must be distributed any time a grade card or interim is issued.  IEP progress reports measure student progress towards meeting their IEP goals. For many parents of students with special needs, receiving their child’s first progress report of the school year can be daunting. Not only is there a lot of information to digest, but the traditional anxiety of wondering whether your child is making progress in their education adds in to create a stressful experience.

Progress reports can be difficult to digest because there is a great deal of information provided within just a few pages. However, each piece of information is important in understanding your child’s success in their educational placement. Progress reports must contain the child’s annual goals, each goal’s objectives, and a summary of the measurable data used to access the student’s progress. Progress, in the form of measurable data, must be reported on each separate objective. For the most accurate representation of the student’s abilities, there should be at least three points of data for each objective. These data points may be called “inventories” on your progress report and tell the parent how the child has performed this marking period. The data point marked as “baseline” indicates where the student started. It is imperative that the child’s baseline data be provided in the progress reports in order to appropriately gauge the student’s progression and/or regression. From there, a parent or guardian can compare the student’s baseline data to their current data to evaluate their progress. It is important to remember to ensure that the measurement being used to monitor the student’s progress is the same measurement that is written in the IEP.

Progress reports must also include comments from the intervention specialist and/or related service provider collecting the data, and a description of the child’s progress toward meeting each goal in measurable terms and in clear, concise language. The comments from the intervention specialist should include the number of times your child was assessed and the manner in which your child was assessed, such as the time of day they were assessed and whether they were assessed in a one-on-one or small group setting. Any specific issues that may have impeded the student’s progress, such as excessive absences or refusal to participate, should be noted in the progress report as well. It is typical to see more information under each objective rather than under the annual goal itself; this is because the student is working toward meeting each objective in order to reach the overall goal. All of this information is provided to the parent in order for the parent to determine whether their child is making adequate progress in their education.

What is adequate progress, anyway? Well, it is unique to each student, given that each student’s IEP goals should be specifically tailored to the child. However, we can utilize the baseline, inventory, and target data to evaluate the student’s performance. For example, a student’s goal may be to decrease time spent demonstrating unexpected negative behaviors for less than fifteen minutes a day. That student may have had a baseline of demonstrating unexpected negative behaviors for 45 minutes a day. We can look at the inventories of measurable data to determine whether the student’s time spent demonstrating unexpected negative behaviors have decreased. At the end of the school year, the student is demonstrating unexpected negative behaviors for 20 minutes each day. The student did not meet their goal but was able to decrease their time by a significant amount, which is considered adequate progress. On the other hand, if that student was demonstrating behaviors for 70 minutes a day at the end of the school year, a movement from the baseline further away from the target, the data is showing regression. Parents should look at their child’s progress on each objective, as well as the overall goal, to determine whether their child is making appropriate progress.

What are the next steps that a parent can take after receiving an unfavorable progress report? Parents always have the right to call an IEP meeting at any time during the school year. If the student is not making adequate progress toward their goals, parents can use the data provided by the school to write new, more appropriate goals for the student. The Individuals with Disability Education Act (IDEA) states that the school must revise an IEP to “address any lack of expected progress toward annual goals.” Alternatively, if the student has regressed, parents can use this data to advocate for extended school year (ESY) services to combat regression of skills.

Although progress reporting periods can be a stressful time for families with students with special needs, parents can be assured that the flexible nature of an IEP will allow them to make necessary adjustments at any time. As a parent, advocating with our emotions can lead to further disputes with the school. However, advocating for your child with solid data can open the door to endless possibilities for appropriate special education services.

Written by Renee Stromski, Esq. of Abdnour Weiker, LLP

Questions? Call us! 614-745-2001

Parents: Three Steps to Take to Minimize the Impact of the Columbus City Schools Labor Strike on Your Children

Parents: Three Steps to Take to Minimize the Impact of the Columbus City Schools Labor Strike on Your Children

On Sunday, August 21, 2022, the members of the Columbus Education Association (“CEA”) voted overwhelmingly to go on strike, the first in the district since 1975. Classes are scheduled to begin on Wednesday, August 24. The Columbus City Schools Board of Education (“BOE”) has adopted an Alternative Opening Plan should the strike continue through the first day of school. 

Here are three important steps to take to minimize the impact to your child: 

• Send Them to School, Even if it’s Online. The Columbus City Schools BOE has adopted an online learning plan using substitute teachers should the strike continue. Regardless of how you feel about the strike, you should review the Asynchronous Learning Plan in advance. Be sure to look up the schedule and assignments and prepare your child(ren) to attend and complete those assignments when school starts on August 24. Importantly, sending your children to school does not indicate support for either the BOE or the union. Sending your children to school is also not considered “crossing the picket line,” a term that historically applies to employees reporting to work while their fellow union members are on strike. 

• Make it a Teachable Moment. Everyone retains information better when we experience it. While the strike is an unfortunate reality, you can also use it as an opportunity to explain the nature of the debate, as well as the history of labor strikes in the U.S. This is made much easier with YouTube videos like “The Labor Movement in the United States” and “A Brief History of Labor Unions,” among dozens of other online resources just for students. 

• Document Missing Services, Especially for Students with Disabilities. If your child receives specialized supports or services through an IEP or 504 Plan, you should record, in detail, exactly what accommodations, supports and services were not provided. The BOE’s obligation to provide an appropriate education to students with disabilities does not go away during a strike or because the curriculum is being delivered online. The BOE should provide access to live substitute therapists, private therapists and/or alternative placements for students who cannot learn or receive services online. Recording this information will help you recover any missed services later, which can be accomplished through an IEP meeting, mediation or by filing a written or due process complaint with the Ohio Department of Education. 

Authored by Mark Weiker, Esq. at Abdnour Weiker, LLP

Questions? Call us. 614-745-2001

HELP! I need to call a lawyer.

5 Things You Need to Know Before Contacting an Attorney 

1. Understand Your Deadlines & Call as Soon as You Have Them 

   If you only need to respond with your intent to appeal, do so as soon as possible to start the process. For K12 items, this can generally be done via email to your child's school principal's office. You can have an attorney do this for you should you consult and retain them within the deadline to submit your intent to appeal. 

   If you have a hearing scheduled or need to submit an appeal, contact a lawyer several days in advance of this deadline, if not at least a whole week prior. 

   If you have an interview or investigation meeting, follow the same advice as if this was a hearing or appeal submission and contact a lawyer ASAP. 
   

2. Documentation – Keep it Handy, But Share What is Requested 

   It is always helpful to keep all communications with your employer, school, university, an adverse party, etc., safe and secure. Attorneys will often request specific documents, i.e., IEPs, suspension notices, and ODE letters, so do have those ready to send. 

   As far as other communication goes, you can send these items to the firm you are contacting after scheduling a consult, though keep in mind that attorneys often will not have time to read each article in its entirety. 

3. Have a General Understanding of Your Goals for Contacting an Attorney 

   In many cases, your objective to remedy your situation is clear, getting your child re-enrolled in school, appealing a court decision, getting assistance through a hearing, etc. However, you may feel a more general sense that an injustice has occurred, and you would like to see action taken. In either situation, it is best to gather a sense of your goals as a client to effectively communicate to an attorney’s office what type of assistance you need. Even a brief list of goals will be enough to have a successful initial consultation. 

4. The First Person You Talk to at Their Office is Likely Not an Attorney (and They Did Not Do the Bad Thing to You) 

   This person, often an office administrator or intake coordinator, is here to answer questions about the firm you are contacting and create your file as a client. They will typically need to walk through a list of questions for their intake process and will likely have information to share with you about what that process entails.  

   Please keep in mind that they are the liaison between you and the attorney. They cannot control your case's outcome, answer any legal questions, or provide a remedy for the situation outside of getting you in touch with an attorney. 

5. Retainers, Flat Fees, Contingency Defined 

   While many attorneys operate on a retainer fee structure, the most well-known payment structure is often referred to on billboards and commercials as "you don't pay unless we win." To distinguish the former from the latter, here are some general definitions of typical payment structures that lawyers utilize: 

   Retainers - A fee that the client pays upfront to an attorney to commence representation, which is held in trust until the attorney works on/earns the fee. With each piece of work that the attorney does, that balance will deplete. 

   Flat Fees – A fee paid upfront to cover all work that the attorney will perform. This is a fixed amount and is generally non-refundable. 

   Contingency – The lawyer or firm only receives compensation if they successfully represent the client. Commonly known as "pay if we win." 

* Please Note: The Concept of "Wins" *

Many people seeking an attorney will want to know, "what is your firm's 'win-rate' or 'record?'" Frankly, that metric is not typically logged or measured as it is difficult to assess what a "win" is, given how different each client's goals usually are. Thus, keep in mind that many offices will not have a straightforward response for this as there is not a straightforward answer in many cases. 

Relief Has Been Denied in Most Anti-Masking Lawsuits Against Schools

Over the last two years, Ohio school boards have become a lightning rod for citizens to unload their personal and political thoughts on almost everything pandemic related. From virtual learning to masking to quarantining, school boards have absorbed the diverse and sometimes raucous opinions of their constituents. Outcomes in recent lawsuits suggest that courts are largely unwilling to interfere with the discretion of school boards to make unpopular decisions.

Montgomery County Schools Cases

In September 2021, the U.S. District Court for the Southern District of Ohio in Dayton dismissed three separate lawsuits brought by pro se parents against three different Montgomery County Schools (Huber Heights City Schools, Mad River Local Schools and Northmont City Schools). The parents each alleged that the schools’ policies requiring masks were a violation of their children’s constitutional rights. The dismissals by the Court were not based on the merits of the claims, but rather on a rule prohibiting parents from filing pro se claims in federal court on behalf of their minor children.[i] The Court held that, “the rule against non-lawyer representation protects the rights of those before the court by preventing an ill-equipped layperson from squandering the rights of the party he purports to represent.”[ii]

Chillicothe City School District Case

On Nov. 1, 2021, four parents filed a lawsuit against the Chillicothe City School District and school administrators alleging that the school’s policy requiring masks was “arbitrary, capricious and based on ignorance due to failure to inquire into facts.”[iii] The parents’ pro se claims brought on behalf of their minor children were dismissed sua sponte by the Court for the same reason as those in the Montgomery County cases, while claims brought by the parents on their own behalf survived. Nonetheless, the parents’ request for a Temporary Restraining Order (TRO) was denied because the parents “[had] not shown that they [were] likely to succeed on the merits of the remaining claims or that irreparable injury would accrue from denying the motion.”[iv]

In addition to the Chillicothe case, at least two other cases included requests for a TRO by parent-plaintiffs, and the courts denied the requests in both cases.

Mayfield City School District Case

In September 2021, a parent in the Mayfield City School District sought a TRO against the school district because the school board was attempting to institute a mask requirement.[v] The parent argued that the mask mandate caused “immediate and irreparable harm” to students, staff, and the general community.[vi] The parent also alleged that the mandate was a violation of her daughter’s constitutional rights and impeded on her daughter’s fundamental right to a public education.[vii]

The Court denied the motion for TRO because the parent failed to meet the necessary elements, finding that masking did not impede on the student’s ability to attend school. The Court also found that there was likely no chance of irreparable harm to the plaintiff’s daughter or other minors should the mask mandate be allowed to stand.[viii] Notably, the Court identified that, “the mask mandate was implemented to prevent serious injury, illness, and death in the District and broader community…[and] the risks associated with not wearing a mask in public schools are well-documented and supported by scientific evidence.”[ix]

Forest Hills Local School District Case

In another case filed in September, a plaintiff in the Forest Hills Local School District took issue with the meeting in which the school board adopted the mask policy. The plaintiff alleged a violation of the Open Meetings Act[x] and sought a TRO preventing the school board from enforcing the mask requirement.[xi] The Court denied the relator’s request for a TRO after holding a conference with the parties.[xii] After the TRO was denied, the plaintiff filed an affidavit to have the judge disqualified due to the judge’s comments at the conference, but the Ohio Supreme Court determined that the judge was not prejudicial.[xiii]

Hudson City School District Case

A more recent case was filed by three parents in the Summit County Common Pleas Court on Jan. 10 against the Hudson City School District. The parents sought injunctive relief prohibiting the school district from enforcing masking and quarantine rules absent a health department order, among other requests for relief. As of February 7, 2022, no hearing on injunctive relief has been scheduled or held, and no such relief has been ordered by the court, although the case is still pending.

While some case dismissals have been procedural, and others are only denials of immediate injunctive relief, the outcomes to date indicate a reluctance on the part of Ohio courts to disrupt the difficult decisions made by local boards of education—at least when it comes to masks.

[i] See P.G. v. Huber Hts. City Schl Dist., 3:21-cv-257 (S.D. Ohio, Sept. 23, 2021), citing Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002).

[ii] Id., citing Bass v. Leatherwood, 788 F.3d 228, 230 (6th Cir. 2015).

[iii] Wettersten v. Chillicothe City Schl. Dist., 2:21-cv-5187 (S.D. Ohio, Nov. 1, 2021).

[iv] Id.

[v] P.M. v. Mayfield City Sch. Dist. Bd. of Educ., No. 1:21 CV 1711 (N.D. Ohio, Sept. 13, 2021).

[vi] Id. at 2.

[vii] Id.

[viii] Id.

[ix] Id. at 4.

[x] Doe v. Forest Hills Loc. Schl. Dist., A-2102899 (Hamilton Cty., Aug. 18, 2021) (documents sealed).

[xi] In Re Disqualification of Jenkins, No. 21-AP-114, ¶¶17-18 (Sep. 22, 2021).

[xii] Id.

[xiii] Id. at 2.

Mark Weiker, Esq., Abdnour Weiker, LLP

Lawyers4Students.com

Can I Leave Work to Attend an IEP Meeting?

FMLA LEAVE MAY BE AVAILABLE TO PARENTS TO ATTEND IEP MEETINGS 

On August 8, 2019, the U.S. Department of Labor, Wage and Hour Division (“the DOL”) issued guidance on whether an employee may take protected leave under the Family and Medical Leave Act (“FMLA”) to attend a meeting to discuss the Individualized Education Program (“IEP”) of the employee’s son or daughter. U.S. Dept. of Labor, WHD, FMLA 2019-2-A(August 8, 2019). 

1. FMLA Leave

As a starting point, FMLA provides that an employee eligible for FMLA may take up to 12 weeks of job-protected, unpaid FMLA leave per year “to care for the spouse, son,daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.” 29 U.S.C. §2612(a)(1)(C); see also 29 U.S.C. §2611(11); 29 C.F.R. §825.112–.115.

2. IDEA and Related Services

Alternatively, the Individuals with Disabilities Education Act (“IDEA”) requires public schools to develop an IEP for astudent who receives special education and related services, with input from the child, the child’s parents, teachers, school administrators, and related services personnel. Under IDEA, “related services” may include such services as audiology services, counseling services, medical services, physical therapy, psychological services, speech-language pathology services, rehabilitation counseling services, among others.

3. DOL Conclusion

Considering both statutes, the DOL instructed that attendance at IEP meetings does qualify FMLA-covered leave so long as the employee’s son or daughter suffers from a “serious health condition” as defined in the law. FMLA defines a “serious health condition” as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider. Many students receive “continuing treatment” by a healthcare provider pursuant to their IEP. 

4. FMLA Medical Certification

An employer may require the parent to provide a medical certification in order to verify the existence of the child’s serious health condition. This certification is a standard FMLA form issued by a health care provider, further supporting the request for leave. This certification would verify that the child’s condition qualifies as a “serious health condition” under FMLA. 

5. Parents Input is “Essential”

In issuing the guidance, the DOL recognized that the parents in question attend IEP meetings in order to “help make medical decisions concerning their children’s medically-prescribed speech, physical, and occupational therapy, to discuss their children’s wellbeing and progress with the providers of such services, and to ensure that their children’s schoolenvironment was suitable to their medical, social, and academic needs.” The DOL also instructed that, a parents’ attendance at IEP meetings is often “essential to [the parent’s] ability toprovide appropriate physical or psychological care” to theirchildren, further justifying the application of FMLA protected leave for IEP meetings. 

6. Intermittent Leave 

Under FMLA, an employee may use the leave intermittently or on a reduced leave schedule when medically necessary because of a family member’s serious health condition. 29 U.S.C. §2612(b)(1); 29 C.F.R. § 825.202. This means that the employee may apply the FMLA leave as-needed, for portions of a workday, rather than in a scheduled days or in continuous days. Intermittent leave is the type of leave most parents would need to request and use for IEP meetings. 

Finally, the DOL instructed that the child’s doctor does not need to be present at IEP meetings in order for the leave to qualify under FMLA. The conclusion provided by the DOL alsoapplies to any special education meetings held pursuant to IDEA. 

This article was authored by education and employment attorney, Mark A. Weiker. 

Questions? Call us: 614-745-2001

Dyslexia 101

Does your child struggle to read?

• Does your preschooler have trouble with common nursery rhymes, can’t learn and remember the names of the letters in the alphabet, or have a hard time recognizing common rhyming patters like cat, rat and bat?

• Does your kindergartener or first grader read “puppy” instead of the written “dog” when looking at an illustration? Does he or she have trouble sounding out words or connecting letters with sounds?

• If your child is a second grader or up to young adult, does reading come slowly, does he or she avoid it if at all possible?

• If in high school, is a foreign language almost impossible to learn?

• For all age groups, does your child have difficulty finding the right words to say, pronounce names and places incorrectly?

 What are your child’s strengths?

• Does your child have a great imagination, a good understanding of concepts, like to solve puzzles?

• Does your child have excellent verbal comprehension?

• Does your high school student have good thinking skills like reasoning and abstraction?

• Does he or she learn best by doing, or excel in areas not driven by reading?

• For more clues, please see The Yale Center for Dyslexia and Creativity, http://dyslexia.yale.edu/clues1.html.

If some or all of the above answers are positive, your child may have DYSLEXIA, a very common learning disability. Some experts say up to 80% of all people with learning disabilities have dyslexia.

Here’s the good news:

Dyslexia is treatable. Schools can help.

 What is dyslexia?

Dyslexia has nothing to do with intelligence. People with dyslexia are scientists, architects, authors and more. Go ahead, Google famous people with dyslexia. You’ll find lots of amazing people who have overcome their dyslexia and done incredible things.

You may be thinking that dyslexia is only about reversing letters, and your child doesn’t do that. Dyslexia is now understood to be a disorder of the language system in the brain.

Dyslexia “reflects a deficiency in the processing of the distinctive linguistic units, called phonemes, that make up all spoken and written words.” Shaywitz, S. (1996), Dyslexia: A New Model of the Reading Disorder Emphasizes Defects in the Language-Processing Rather than the Visual System, Scientific American, 275(5) 98.

That means that your child’s brain has trouble decoding words, or breaking words into their distinctive sounds.

Think of your brain like a bunch of paths in the forest. Typical readers can see the word “bed” three times, sound it out and remember it, and the fourth time they see the word, their brain sends a signal from the logic part to the long term memory part that what they are seeing is the word “bed.” The signal travels a distinctive or well-worn neural path from the logic to long-term memory. They’ve got it.

In a dyslexic brain, the neural path from logic to long-term memory is not distinctive or well worn. There may be branches or blocks preventing the signal from going though, or the path may be so lightly drawn that is really isn’t a path. Dyslexic readers will have to see and focus on the word “bed” over four hundred times to have it go to long-term memory!

Researchers at the Yale Center for Dyslexia and Creativity have taken numerous fMRIs of typical and dyslexic brain to show these differences.   Their website is a wonderful resource. Dr. Sally Shaywitz of the Yale Center also has a great book called Overcoming Dyslexia that is well worth reading, and has excellent pictures of the fMRIs.

What can you do?

The brain is most pliable and able to put down new neural pathways in childhood. The time to act is now – delays in reading prevent children from learning and will make them fall further and further behind in school. Teachers call the K-3 grades the “Learning to read” grades, and grades 4 and up “Reading to Learn.”

Dyslexia is not a life sentence!

Dyslexia is treatable. Evidenced-based multisensory programs like Orton Gillingham, Wilson Reading Method or LindaMood Bell are effective at teaching dyslexic students to read and actually lay down the neural pathways that are blocked or missing. The programs are multisensory and intensive, and while they take several years, if done correctly and by qualified teachers, they do work.

First things first: evaluate your child and find out exactly what is wrong.

If your car stops running, you have several options, but just knowing that the car doesn’t start is not enough to determine the problem. Reading problems are the same. You need to know specifically what is wrong so you can know the specific type of education intervention that is necessary.

The first thing you need is an evaluation to determine if your child has dyslexia. You can see a specialist privately, or you can ask your child’s school to evaluate. There are pros and cons to both methods. Private evaluations by qualified professionals can be costly, but if dyslexia is found, they will unequivocally state that your child has dyslexia and needs specific educational methods to address reading deficits.

Did you know that schools have the responsibility to identify children with disabilities?

A federal law called Individuals with Disabilities Education Act or IDEA makes states responsible for finding children with disabilities and then educating them according to their unique needs.   This means that Ohio has the responsibility to search out children with disabilities, from birth through age 21.

If you suspect your child may have dyslexia, you have the right to request an Evaluation from the school.

If the school determines your child has dyslexia, it will implement an Individualized Education Plan (IEP) tailored to his or her needs, and your child will receive the educational services he or she needs to learn how to read. If dyslexia is in your child’s evaluation, schools must use programs or curricula that are evidence-based to address the dyslexia.

 Is it really that easy?

In some enlightened school districts, it really is that easy. Unfortunately, most school districts make it very, very difficult. If you are running into roadblocks, consider hiring an advocate or attorney.

What if the school won’t conduct an evaluation?

At this point in the process, some school tell parents that they are going to try different interventions before evaluating the child. This is often called response to intervention (RTI). RTI sounds reasonable, but legally schools must try these interventions at the same time as they evaluate the child – they can’t unnecessarily delay an evaluation.

 What happens at an evaluation?

An evaluation must be completed within 60 days of getting your consent to evaluate. It must meet certain requirements. For example, an email telling you your child has been given one test and found not to have a disability is not an evaluation as Ohio defines it.   Some of the rules for an acceptable evaluation are:

• An evaluation should be done on a form called PR-06 (Evaluation Team Report),

• An evaluation team includes the parents, the child’s teacher, and many other staff from the school district.

• The team must formally meet to discuss the results of the evaluation,

• Parents must be given the report so that they can meaningfully participate in the meeting,

• The school must not use one single assessment to determine if your child has a disability, but use a variety of assessments and strategies, including information from the parents, the classroom teachers, and medical professionals if necessary.

What does the evaluation team decide?

The evaluation team has to decide three things at the meeting:

1. If the child has a disability

2. If that disability has an adverse effect on the child’s education, and

3. If the child needs special education and related services.

Individualized Education Program (IEP)

If the team decides the answer is yes to all three of the above questions, your child will be identified as having a disability, and the school will have 30 days to write an Individualized Education Plan, or IEP. Your child is covered under IDEA and has the right to specialized instruction and accommodations.

This is where is becomes very important to have “dyslexia” in the evaluation, not just “learning disability.” The goals and services of the IEP must be written specifically for your child with dyslexia, and must be tailored to actually provide educational services to address the dyslexia.

What if you disagree with the team’s determination?

Parents are a part of the evaluation team, but the school district makes the ultimate decision. If you disagree with the evaluation results, you are entitled to ask for an Independent Educational Evaluation (IEE) at pubic expense. This is an evaluation done by a non-school related professional. The school may not just deny your request, but must respond in one of two ways:

1. Grant you the IEE, or

2. Prove to a hearing officer that their decision was correct.

When should I bring in outside help?

Unfortunately, many schools put up roadblocks for students with dyslexia. District may not evaluate, may evaluate but not be specific enough in the report to find dyslexia, or may offer educational services that are not scientifically tailored to actually help. We have seen IEPS that only look at how fast a child reads, not whether they understand what they are reading. We’ve seen schools deny dyslexia as though it doesn’t exist, or blame behavioral problems on children when the underlying problem is their dyslexia. The school to prison pipeline for struggling readers is tragically all too real.

If your school is putting up roadblocks, consider bringing in a skilled advocate or attorney to help ensure that your child gets the appropriate educational services and accommodations. There is no reason children with dyslexia should struggle to read.

Questions? Call us! 614-745-2001

HOW TO: Be A College Student With A Disability

If you were a student with a disability in elementary, middle or high school and are now in college, you’ve probably noticed a huge difference. Gone are the intervention specialists and teachers who read your IEP or 504 and kept you on track educationally, emotionally or physically. College professors expect you to manage your classes, your student life, everything, on your own. They may never have heard of an IEP or 504, and they may not understand that you may need accommodations. But you do. Still. So what should you do?

You hopefully received in high school what the law calls FAPE – a Free and Public Education. If you had an IEP, it should have been tailored to making sure you received specialized educational services under IDEA – the Individuals with Disabilities Education Act. Or you may have had a 504 plan – accommodations for your disability that you were entitled to based on Section 504 of the Rehabilitation Act of 1973.

Here’s the bad news. Colleges don’t have to provide a Free and Appropriate Education (FAPE) to you. This is because colleges are not subject to IDEA.

However, you still have protections. Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans With Disabilities Act of 2008 prohibit discrimination on the basis of disability in college.   This means that those accommodations you received under an IEP or 504 in high school may still apply in college.

The huge difference between high school and college: you are your own advocate. In high school you had teachers, parents and administrators helping you and advocating for you. You may have gone to your annual IEP or 504 meetings, where a lot of school staff and you and your parents hashed out a plan that was the best fit for you to learn what you needed to learn.

But in college, you are the one who needs to bring up your need for accommodations.

- The "How To" -

1. Identify yourself to the college as a student with a disability. Colleges should have an office responsible for disability services. Check out their website and see what kinds of documentation they require, and what services they routinely offer. For example, Columbus State Community College offers Read and Write Gold for everyone on campus regardless of disability.

2. Get tested, if necessary. The college may need documentation. Colleges can set their own requirements for documentation, and often a copy of your 504 Plan or IEP is not enough to prove that you currently have a disability.

   • Who pays for any testing you may have to get? In high school or below, the school district paid for any evaluations. Colleges are not responsible for paying. If you qualify for your state vocational services, the state may pay. Opportunities for Ohioans with Disabilities (OOD) at http://www.ood.ohio.gov/Core-Services/BVR can help. Otherwise, you are responsible for paying for an evaluation that the college needs to determine if you have a disability.

3. Documentation to show the following:

   • That you have a disability;

   • The disability substantially limits a major life activity; and

   • The disability shows the need for academic adjustments (or accommodations).

     • When don’t you need documentation? A medical diagnosis may be enough for a college, proved that it includes how the disability impairs you as a student. Colleges have leeway in making this determination – you may be required to provide additional documentation.

4. Work with the college in determining which accommodations are necessary for you. It isn’t as simple as showing the college what you got in high school and asking for the same accommodations. Remember, you don’t have the right to specialized educational services. Colleges do not have to give you any accommodation that fundamentally alters the program or result in undue financial burden on college. For example, you may get extra time on a test, but the college won’t have to change the content of the test.

Remember, the person at the disability office is not like your intervention specialist or teacher in high school. The disability officer evaluates your documentation, works with you to figure out which services you need, helps you with arranging services and testing modifications, and deals with any problems that may come up. The officer does not tutor you, give you counseling, or help you manage your time. Depending on the college, other offices may provide tutoring, counseling and other services.

Who pays for aids or services you may be entitled to receive? Colleges cannot require that you pay for them, and they can’t charge you more than non-disabled students. In most cases the college is responsible for aids or services, although colleges don’t have to pay for aids or services that are an undue financial burden on the college.

Finally, you should plan on initiating this process as soon as possible. Don’t wait until after you have struggled all semester in a class! These are proactive accommodations – the point is to help you as problems arise, not give you a pass afterwards. Ask for accommodations before you take the test, write the essay, or do the lab. Be your own advocate. We have encountered issues where colleges were not aware of the disability, no request for accommodations were made by the student, and now the student is facing academic probation or expulsion.

- Think about the following -

• Understand your disability. Be able to explain it clearly to others.

• Acknowledge your areas of strength as well as weakness. We all have them. Own them.

• Make sure you are prepared for the classes. If you are weak in math, take preparatory classes so that when you get to college you can succeed. Take the summer school program in your college. Community colleges are excellent places to take classes, get used to college, and still have a bit of a safety net. Columbus State Community College has excellent disability services. Call them.

• Learn time management and organizational skills. All college students need them, but disabled students often have to work harder and longer than the average student. Make sure that you work smarter, not just longer.

• Finally, do your research when considering colleges. Some colleges are better suited than others for your type of disability. Visit, ask questions, and look at the requirements for the program(s) you are interested in. Don’t waste your time and money in a program that is not a good fit.

If you feel that the college has discriminated against you because of your disability, work with the disability officer. If that doesn’t work, move higher up the chain of command. And if you need someone to advocate for you, contact Albeit Weiker, LLP. We understand higher education and disability law.   You may not be entitled to a free and appropriate college education, but you have legal rights as a student with a disability.

Questions? Call us! 614-745-2001

The Intersection of Special Education & Social Security Eligibility

Meet Emmy (pictured). She is our Special Education Advocate. 

You can read more about her here: Emily Haynes 

Social Security Eligibility As a parent with a child receiving Social Security benefits, you are most likely aware that to be eligible for Supplemental Security Income (SSI), your child has “a physical or mental condition or a combination of conditions that results in “marked and severe functional limitations. This means that the condition(s) must very seriously limit your child’s activities.” Examples include: HIV infection; Total blindness; Total deafness; Cerebral palsy; Down syndrome; Muscular dystrophy; Severe intellectual disability (child age 7 or older); Low Birth weight

Social Security Benefits In addition to Supplemental Security Income (SSI), a child with disabilities as defined by the Social Security Administration may also be eligible for: Rehabilitation and training if older that age 15, Medicare/Medicaid, Children’s Health Insurance Program.

Special Education In addition to SSI, you may also be eligible for special education for your child. All children have the right to a free and appropriate public education (FAPE). Children with disabilities may need to be taught in a different way than typical children, and may not be able access that free and appropriate public education without support. There are two main Acts that protect children with disabilities: the Individuals with Disabilities Education Act (IDEA), and Section 504.

The Individuals with Disabilities Education Act (IDEA): Generally The Individuals with Disabilities Education Act (IDEA) may protect your child. IDEA provides federal assistance to State and local education agencies to guarantee special education and related services to eligible children with disabilities, ages 3-21. The goal of IDEA is to serve children with disabilities by meeting their “unique needs and prepare them for further education, employment, and independent living.”

The Individuals with Disabilities Education Act (IDEA): Eligibility An important part of the IDEA called Child Find requires schools to identify, locate and evaluate all children with disabilities, regardless of their situations, who have significant, individual needs and require intensive interventions through special education and related services.

In other words, your child must be found to meet all three factors:1. Have a disabling condition2. Have an adverse effect on education performance3. Need for special education

IDEA has 13 categories, and children must be identified in one of them to be eligible. These are: Autism, Blindness, Deafness, Emotional Disturbance, Hearing Impairment, Intellectual Disability, Multiple Disabilities, Orthopedic Impairment, Other Health Impaired, Specific Learning Disability, Speech or Language Impairment, Traumatic Brain Injury, Visual Impairment

The Individuals with Disabilities Education Act (IDEA): Benefits Parents can request that their child be evaluated, and schools must respond appropriately. Reevaluation of the child occurs every three years, and a knowledgeable team must conduct both the initial evaluation and all subsequent evaluations. Parents have the right to request an Independent Education Evaluation at public expense one time for every evaluation.

Once children have been identified, the schools are required to determine if they are eligible for special education services, and if they are, to provide those services in an appropriate manner. This plan is called an Individualized Education Program (IEP), and parents are valuable and contributing members of the IEP team. IEPs outline the strengths and weaknesses of the child, and set out goals for the child to work toward with specific instruction and accommodations. Parents must be updated at regular intervals with actual data showing progress towards those goals. Finally, IDEA provides important protections children with disabilities in the area of discipline, if the reason for the disruptive behavior is related to their disability.

Individuals with Disabilities Education Act (IDEA): Protections If you believe your child needs special education, or is receiving services but is not progressing, your IEP and/or Evaluation may not be adequate.

In 2015, the Federal government determined that Ohio “Needs Assistance” because of low scores in special education. Specifically, our percentage of children with disabilities who drop out of high school is dangerously low: 22%. Only 47% of children with disabilities graduate with a regular diploma. Both these measures suggest that special education in Ohio is not meeting the requirement to provide those children with a free and appropriate public education.

You have options under IDEA to raise questions, disagree with schools, and to ensure that your child’s individual needs are being met. These include notice, consent, available complaint procedures, mediation, and due process.

Section 504: Generally IDEA provides specialized special education to children with disabilities, but not all children are adversely affected by their disability. Section 504 is a civil rights law that prohibits discrimination on the basis of disability.

Section 504: Eligibility A similar Child Find is found in Section 504. It requires schools to evaluate any student “who, because of a handicap, needs or is believed to need special education and related services.” That handicap or impairment must substantially limit a major life activity, have a record of such impairment or be regarded as having such impairment. Major life activities include: Caring for one's self, Performing manual tasks, Walking, Seeing, Hearing, Speaking, Breathing, Learning, Working. Eating, Sleeping, Standing, Lifting, Bending, Reading, Concentrating, Thinking, Communicating, and finally, “major bodily functions” that are major life activities.

Section 504: Benefits Section 504 generally provides accommodations to children with disabilities. For example, a child with a severe peanut allergy would be protected under a 504 plan, as would a child with ADHD who needs movement breaks during testing. Because 504 targets nondiscrimination, a 504 plan delineates reasonable accommodations and services so that education, nonacademic and extracurricular services are provided with non-disabled students to the maximum extent appropriate for the child with the disability. These activities may include counseling, athletics, transportation, health services, and special interests groups or clubs.

Section 504: Protections The Office of Civil Rights regulates a 504 plan. Procedures available to parents are notice, grievance procedures and due process hearings. Discipline of children under a 504 is also protected, although not to the same extent of children under IEPs .

Questions? Call us! 614.745.2001