Law Office of Richard J. Murphy, PLC

11/19/2021

Here is a blog post about a recent survey about compensatory services for students with disabilities.

It is clear that the COVID-19 pandemic has disrupted (and continues to disrupt) the education of students since March 2020. It has likely affected students with disabilities even more significantly. The US Department of Education has made it clear multiple times that schools are still required to co...

11/02/2021

In October 2021, a U.S. District Court required a school district to reimburse Nevada parents for their educational expenses. The Court decided the student needed an IEP with a specific methodology in order to progress. The U.S. Department of Education has long recognized there are certain times when a particular program or method should be in the IEP.

The Court in Rogich v. Clark County decided that the school had not sufficiently considered the parent’s private evaluations. Often a school only “considers” the evaluations by holding a meeting. But they do not have to make changes to the IEP.

Here, the school did not dispute anything in the evaluations. The school did not explain why it refused to follow the recommendations from the evaluations. The private evaluations recommended the student needed a specific type of program to progress. While the school claimed it could meet the student’s needs, it did not have staff trained in any of the recommended programs. The school refused to even let the parents know what type of programs it had in the school. Also, the school did not address the parent's concerns for their child’s education.

These were violations of the IDEA. The Court decided that the school cannot ask the parents to "trust us to provide her what she needs" without more information.

The school also could not meet the student’s needs by mixing and matching programs. The Court found that mixing programs could confuse the student. When a student needs a particular program, the school must deliver instruction according to the program and with fidelity.

Because the school had not offered an appropriate program, the Court awarded over $450,000 in reimbursement. This award covered many years of private programs for the student.

Hopefully Arizona courts and hearing officers will follow the lead of this case. Schools should have to explain what they are going to do to educate a student with disabilities. They should explain why they are refusing to use a program if it is recommended. And they should include specific programs or methodologies in the IEP when the student needs them.

If you think the school is not meeting your child’s needs or not listening to your concerns you may need to contact an attorney. Please contact the Law Office of Richard J. Murphy, PLC if you need help with a dispute about the IEP or if you have concerns.

In October 2021, a U.S. District Court required a school district to reimburse Nevada parents for their educational expenses. The Court decided the student needed an IEP with a specific methodology in order to progress. The U.S. Department of Education has long recognized there are certain times whe...

08/25/2021

On August 24, 2021, the Office of Special Education and Rehabilitative Services (“OSERS”) of the U.S. Department of Education issued its Return to School Roadmap: Child Find Under Part B of the Individuals with Disabilities Education Act. Schools are still required meet their child find obligations for students with disabilities. Child find is the obligation of the school to locate, identify and evaluate students with disabilities.
The Roadmap can be accessed at the following link:https://sites.ed.gov/idea/files/rts-qa-child-find-part-b-08-24-2021.pdf
Some key takeaways from the Roadmap are that Public schools:
• are still required to conduct child find activities even if your child is now homeschooled or in a private school;
• can use regular IDEA funding as well as additional funding related to COVID-19 to meet their child find requirements. OSERS suggests “using these funds to address any backlog of initial evaluations not completed within the timeline or that were delayed due to circumstances related to the COVID-19 pandemic” including hiring additional special education and related services staff or outside vendors;
• should consider ways to supplement child find activities due to the increase in virtual instruction and not rely solely on referrals from parents to determine if a student has a disability;
• should conduct additional screenings of students and increase awareness of the effects of the COVID-19 pandemic on academic and social-emotional needs;
• should consider whether symptoms of long COVID may warrant an evaluation for special education.
This continues to be a very challenging time, especially if you are concerned that your child may need special education. If you have questions about the evaluation process, please contact a special education attorney. https://www.phoenixspecialedlawyer.com/post/usdoe-confirms-public-schools-continuing-child-find-duties-with-its-return-to-school-roadmap

12/03/2020

In November 2020, the National Center for Learning Disabilities and the National Association of School Psychologists recently issued some guidance on evaluations with “Navigating Special Education Evaluations for Specific Learning Disabilities (SLD) Amid the COVID-19 Pandemic.”

The COVID-19 pandemic has greatly disrupted the education of students with disabilities. But schools are still required to comply with the IDEA even with these disruptions.

One area of disruption is in evaluations of students with disabilities. When Arizona schools closed in March 2020, some schools asked parents to outright postpone evaluations for the rest of the school year. The IDEA and Arizona law are clear that evaluations still must be completed within required timelines. The COVID-19 pandemic has not changed those deadlines or obligations. But evaluations may look different.

While the report addresses considerations for specific learning disabilities, it has helpful information for all students with disabilities and can help with discussions with the school.

Here are some of the challenges the report covers:

1. Interruption to instruction. Schools should provide grade level instruction with appropriate supports regardless of whether they are in person or virtual learning. The school should provide more intensive instruction to students who need it.

2. Administering assessments under new circumstances. Standardized assessments may still be used but changes in the way they are administered such as virtually or with face masks on may call some of the results into question. Now, more than ever, additional information should be used to support the test findings. This can include curriculum assessments, work samples, teacher observation, etc.

3. For specific learning disabilities, the COVID-19 pandemic has created some additional challenges particularly for students who are not yet eligible under this category. For SLD, the school has to exclude other factors including lack of appropriate instruction before finding a student eligible.

If a school refuses to evaluate your child or does not find them eligible under SLD because they cannot exclude a lack of appropriate instruction, make sure that they begin to take data so that those factors can be assessed soon and interventions can be put into place as soon as possible in order to make that determination.

For more detailed information about the report and evaluations during the COVID-19 pandemic, check out my blog post

The COVID-19 pandemic has greatly disrupted the education of students with disabilities. But schools are still required to comply with the IDEA even with these disruptions. One area of disruption is in evaluations of students with disabilities. When Arizona schools closed in March 2020, some schools...

10/29/2020

How to prepare for a possible return to remote learning

With COVID-19 cases increasing across Arizona, some school districts have already returned to remote learning for short periods of time. It is possible that your child’s school may decide to return to online instruction in response to an outbreak or uptick in cases.

Here are three tips so you can be better prepared if that happens for a week, a month or more.

1. Get some baseline data: If your school stops in-person instruction it is important to know what level your child is at if your school closes. This way you can have a good sense of what they could and could not do when they went to online instruction. With this information you can compare how your child was doing with in-person instruction versus online instruction and to see if any services need to be made up or changed.

You can try to get that information from your child’s teachers. The school is required to report to you on IEP goals at least every quarter. You should have received a report of progress around the beginning of October.

But many goals require the school to collect data weekly or even daily. So it is a good idea to request an update from your teacher on a weekly basis (or at least every two weeks). That way if schools go to online instruction you should have a good idea of where they are on their goals and skills.

2. Prepare to collect data yourself to share with the school: If your student is back at home you should try to collect some data on what he or she can do related to the IEP goals and his or her needs.

• You could try to video record your child doing or attempting a task from their IEP goals.
• You can ask the school to provide you with copies of the forms they used to track the goals.
• Even keeping track of their progress in a notebook or on the computer is good. Whatever method you use, it is important that you document how your child is doing.

For more information, check out my previous post on this issue: https://www.phoenixspecialedlawyer.com/post/2020/05/21/how-you-can-help-your-student-with-disabilities-by-keeping-data-during-the-school-closure

3. Consider parent counseling and training: Make sure you understand the online platform the school is using so you can support your child. Under the IDEA, schools may be required to provide you with “parent counseling and training” to help get skills that will help support the implementation of your child’s IEP. So if you have questions about the best way to help your child in the online setting, you could ask for training on the programs the school is using. Parent counseling and training is a related service on the IEP. So it would need to be added to the IEP but that can be done without a meeting if the team and you agree in writing.

Remember that the IEP still needs to be implemented. With the school closures from March to May 2020, the US and Arizona Departments of Education made it clear that the IDEA still applied. If there is a short term closure by a few schools or something more widespread or longer, it is very likely the IDEA protections will remain in effect. So keep track of any missed services, lack of progress or regression in online instruction.

If there are significant issues, you can request a change to the IEP if your child’s needs have changed. Even if it is a short amount of time, it is still good to keep in touch with the school so that any transition to online instruction and back to in-person instruction is as smooth as possible.

https://www.phoenixspecialedlawyer.com/post/how-to-prepare-for-a-possible-return-to-remote-learning

10/23/2020

Child Find Timeline: From concern to determination of student needs

If during the school closures, you have noticed some deficits that concern you, you can request the school evaluate your child for a suspected disability. The child find obligation is an important IDEA right that is meant to make sure children do not slip through the cracks and continue to struggle. With appropriate supports, students with disabilities should be able to thrive. Read my previous post about school issues child find can address. https://www.facebook.com/RichardJMurphyPLC/posts/1727772800710706

1. Once a parent requests the evaluation, the school has up to 15 school days to hold a meeting to get “informed written consent” from the parent. School days, unlike calendar days, are days that schools are in session.

Consenting to have your child evaluated is not the same as consenting to special education. You may consent to an evaluation to see if your child has a disability and then refuse consent to special education if you feel he or she does not need it.

2. Once the school receives your consent to evaluate your child, they have 60 calendar days to complete the evaluation and determine if your child is a student with a disability who requires special education. This is done in a Multidisciplinary Evaluation Team (MET) meeting. Parents are part of the MET team.

3. If your child has a disability and qualifies for special education, then the school will prepare an Individualized Education Program or IEP. Under the IDEA, the school has 30 calendar days after the determination of eligibility at the MET meeting to develop the IEP.

4. If the school determines your child is not eligible, you can request the school pay for additional testing from professionals not affiliated with the school. This is called an independent educational evaluation or IEE. See my blog post about IEEs. https://www.phoenixspecialedlawyer.com/post/what-to-do-if-you-disagree-with-a-school-evaluation-an-iee-is-a-great-tool

If you have questions about a school’s child find obligation or any other special education issues contact a special education attorney.

10/16/2020

What is Child Find and why kids may not be found

Public schools, including charter schools, have an obligation to locate, identify and evaluate students who may have a suspected disability. This is called the “child find” obligation in the Individuals with Disabilities Education Act or IDEA.

It is possible that during the school closures, you may have noticed your child has some problems with math, reading, writing or other areas that you may not have noticed before. If so, you may want to ask the school for an evaluation to determine if your child has a disability that is impacting their education.

If a school suspects a student may have a disability:

• They should request permission from parents to have students evaluated.
• But schools may often wait for a parent to request the evaluation.
• Sometimes schools may discourage parents from requesting or pursuing an evaluation.
• They may say that you should give it time
• They may discourage you from “labeling” your child.

If you suspect your child has a disability, there is no reason to wait.

Any request for evaluation must be in writing under Arizona law. If the request is not in writing, the school is not obligated to start an evaluation.

The purpose of the evaluation is to determine if your child needs more supports or services to be able to learn in school in the form of special education.

If you are worried about your child’s education from the coronavirus closures or now that they are back in school, you should consider requesting an evaluation. If you have questions about the process, consider contacting a special education attorney. For more information, check out my blog post.

Public schools, including charter schools, have an obligation to locate, identify and evaluate students who may have a suspected disability. This is called the “child find” obligation in the Individuals with Disabilities Education Act or IDEA. It is possible that during the school closures, you ...

10/09/2020

What you need to know about Stay Put and COVID-19 school closures.

The maintenance of current educational placement is often called “stay put.”

Unless the IEP team met to change your child’s placement as a result of the school closures and changes to instruction, your child’s placement is the same as it was on the last IEP. If your child received most of the instruction with general education peers with some special education in the same setting before the closures then that is the placement the school should still provide.

If the school has noticed a change in your child’s educational needs since the school closures, the school may want to meet to change your child’s IEP. If you agree with those changes, that is great. If you do not, filing a due process complaint is the best way to make sure the change does not go into effect.

Stay put protects students while a dispute about their IEP is pending. This protection only applies if a due process complaint has been filed.

It is a good idea to include in the due process complaint that you want the placement from the last IEP to be the stay put placement so there is no confusion.

The stay put provision prevents a school district from changing a student's placement during a “proceeding” under the IDEA unless the parents consent to the change. If a school district wants to change a student's placement with a new Individualized Education Program a parent can stop it with a due process complaint.

If you disagree with a suggested change to your child’s IEP such as stay put or any other IEP change you should contact a special education attorney.

For more detailed information check out my blog post.
https://www.phoenixspecialedlawyer.com/post/what-you-need-to-know-about-stay-put-and-covid-19-school-closures

One of the most important protections or “Procedural Safeguards” for students in the Individuals with Disabilities Education Act or IDEA is the maintenance of current educational placement, often called “stay put.” This protection is important to understand with school changes as a result of...

10/02/2020

How to Make Sure Arizona Students’ Least Restrictive Environment Rights Are Not Violated Because of COVID-19

COVID-19 changes have made it more difficult for schools. But this is not an excuse to educate students in either a more or a less restrictive environment than stated on the IEP.

The Office of Special Education Programs confirmed this week that school districts must continue to follow the IDEA.https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/qa-provision-of-services-idea-part-b-09-28-2020.pdf

What is Least Restrictive Environment (LRE)?

LRE means that students with disabilities should be educated with their general education peers to the “maximum extent appropriate.” A student should be in the general education classroom unless their disability is so severe they cannot learn even in that setting even with extra help.

Every IEP explains when and why the student will not be in a general education class. This is part of the IEP’s placement decision.

What does LRE look like in different school settings?

Schools in Arizona are teaching students in-person, online, and a hybrid model of some online and some in-person. Each one of these options affects general education, so then special education needs adjustment.

No matter which learning model the student is in, the school must still provide instruction in the LRE from the IEP.

Classroom placement is based on the student needs. Inconvenience to the school does not matter in the decision making process.

If you are concerned about whether the school is providing instruction in the appropriate LRE, you should compare the instruction before COVID-19 to see if it has changed. If you think the school is not complying with the LRE requirements or otherwise not implementing the IEP, you could consult a special education attorney.

https://www.phoenixspecialedlawyer.com/post/how-to-make-sure-students-least-restrictive-environment-rights-are-not-violated-because-of-covid-19

09/25/2020

5 key legal differences between 504 plans and IEPs to help you advocate for your child.

Parents of students with disabilities have likely heard of both the IDEA and Section 504 of the Rehabilitation Act. But as there is overlap between the two laws it can be confusing.

The IDEA is a comprehensive statute that specifically identifies procedures schools must follow for students who qualify for special education. Section 504 is a brief anti-discrimination statute that ensures that persons with disabilities are not excluded from benefits by publicly funded entities including schools.
It is important to remember that every student who is on an IEP and receiving special education is also protected under Section 504. But a student only on a 504 plan is not entitled to the protections of the IDEA.

Here are 5 key differences:

1. Evaluations: The IDEA has very specific requirements about what initial evaluations must include. Section 504 does require an evaluation as well but, often schools will rely on outside medical diagnoses provided by the parents to find a student eligible for a 504 plan.

Section 504 requires that a school re-evaluate a student before any significant change in placement. The IDEA does not, but does require re-evaluations at least every three years.

2. FAPE in 504 v. IDEA: The decision between a 504 plan or an IEP should be based on the student’s needs. If a student needs special education because of their disability, the school is required to develop an IEP.

504 FAPE requires a comparison between services for students with disabilities and students without disabilities because a school must meet the needs of students with disabilities as adequately as it meets the needs of students without disabilities. But FAPE under the IDEA is provided when a school develop (and implements) an IEP that is designed to meet the student’s individual educational needs.

3. Long-term suspension or expulsion: Before imposing a long term suspension on (or expelling) students with disabilities, the school is required to conduct a manifestation determination review for students on 504 plans or IEPs. This involves determining whether the conduct leading to the discipline was related to the student’s disability. If it was, the school cannot impose the discipline and must take other steps.

The IDEA provides these protections for students undergoing the evaluation process in certain circumstances but Section 504 does not.

4. Disputes: Students on 504 plans or IEPs can file requests for hearings if a dispute arises. For 504 plans, the school district or charter school will usually select and appoint a hearing officer to hear and decide the dispute. For IEP related disputes, parents can file a state complaint or a due process complaint. The procedures for those complaints are spelled out in the IDEA. In Arizona, due process hearings are heard by an administrative law judge in the Office of Administrative Hearings.

A key right for a student on an IEP in a due process complaint is “stay put.” This protection prevents a school from changing the student’s placement while the complaint is pending. Section 504 does not provide that protection.

Students on IEPs or 504 plans are also entitled to bring complaints with the Office of Civil Rights if the school is discriminating against the student.

The law limits the time to file any disputes against a school district or charter school, so if you think a school is not complying with the IDEA or Section 504, it is important to proceed without delay to preserve any potential claims you might have.

5. When do the protections end? The IDEA covers education of students with disabilities on IEPs from age 3 to graduation from high school or up to age 22. The IDEA does not provide any protections for students in college. There is no FAPE requirement for colleges under Section 504. But students with disabilities in most colleges are required to be provided with accommodations under Section 504.

This is a brief overview of some of the differences between these two laws. You can read more information about Section 504 and the IDEA here: https://www.phoenixspecialedlawyer.com/post/5-key-legal-differences-between-504-plans-and-ieps-to-help-you-advocate-for-your-child

Parents of students with disabilities have likely heard of both the IDEA and Section 504 of the Rehabilitation Act. But as there is overlap between the two laws it can be confusing. The IDEA is a comprehensive statute that specifically identifies procedures schools must follow for students who quali...

09/18/2020

What to do if you disagree with a school evaluation. An independent educational evaluation can be a great tool to make sure your student is getting the service and supports they need.

A parent of a student with a disability is entitled to request an independent educational evaluation, or IEE, each time the school conducts an evaluation. An IEE is an evaluation paid for by the school but conducted by a professional chosen by the parent. An IEE is a great way to get more information about your child’s needs and make sure the school is doing what it can to meet those needs. Think of an IEE as a second opinion.

• How to request an IEE? In order to request an IEE, a parent only needs to notify the school they disagree with the school’s evaluation. This should be done in writing such as an email. In response to this request, the school either has to agree to fund the IEE or file a due process complaint defending its evaluation. It cannot simply refuse to agree to an IEE. The school should respond in a reasonable time but the law does not set a specific time limit.

• Scope of the IEE: You can ask for an IEE in some or all areas the school evaluated. These might include: cognitive/intellectual, academics, social/emotional, speech-language, occupational therapy, functional behavioral assessment, or autism specific assessments. You may even be able to get an IEE in areas the school did not evaluate if the school should have evaluated in those areas. So a disagreement about the school’s evaluation can include a disagreement about the scope of the evaluation as well as the testing that was conducted. This is true even if the school determined it did not need to do any new testing.

• Timeline: There is no specific timeline for requesting an IEE. You could request it as soon as the school reviews its own evaluation if you disagree with it. But if you request an IEE disagreeing with an evaluation conducted more than 2 years before, the school will most likely refuse the IEE request and ask to conduct its own new evaluation. The school is not permitted to fix flaws in its evaluation in response to a parent’s request for an IEE. So if your request was within 2 years, you do not have to let the school re-evaluate instead of approving the IEE.

After the IEE is completed, the school should hold a meeting to review the report and decide as a team (with the parent included) if any changes need to be made to the student’s IEP. But the school is not required to adopt any of the IEE report’s conclusions or recommendations. It is only required to consider the results of the IEE.

An IEE can be a good tool to assist your child but it can be complicated. If you are thinking of requesting an IEE or are concerned with the school’s evaluation, it could be a good idea to consult a special education attorney to make sure your child’s rights are protected.

For more information on this topic, check out my blog post: https://www.phoenixspecialedlawyer.com/post/what-to-do-if-you-disagree-with-a-school-evaluation-an-iee-is-a-great-tool

09/11/2020

Students on IEPs have a lot of educational records that parents need to easily access. These records include the IEPs, evaluations (which are updated at least every three years), reports of progress on IEP goals (which the school is supposed to provide every quarter along with the school report cards), and prior written notices (documenting the school’s decisions and the reasons for them). You may also have private evaluations, medical diagnoses and written communications to and from the school.

In order to effectively advocate for your child, here are a few suggestions to make sure you can readily find them.

• If they are all electronic, you can have a folder with the files on your computer. If the school has a web platform with these records, it is a good idea to download these records to your computer so you can have a copy of them.

• If you prefer paper records (which may better for an IEP meeting), consider putting the records in a binder so you can access the documents when you need them. A binder should at least include the last two IEPs, most current evaluation report and prior written notices.

• If you have an IEP meeting coming up and do not have copies of these records, consider requesting copies of the records from the school to review before the meeting.

With organized records, you are in a better position to know how your child has done with previous IEPs and if changes need to be made. This can help you protect your child’s rights by making sure you and the school know what they should be doing and what they said they would do.

To read more information about this and other parent tips, see https://www.phoenixspecialedlawyer.com/post/tips-to-help-parents-effectively-advocate-for-students-with-disabilities