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By Reed Martin, J.D. Taken from Reed's manual: Is Your Child Getting
Everything They Are Entitled To Under The IDEA, Section 504, ADA and FERPA?
Always work in groups
Always work with other parents in groups. It will help keep you from getting
burned out.
You will be able to have success on a point and share it with other parents,
at the same time another parent has made a breakthrough that can be shared
with you.
Once you solve one problem, you will run into another problem -- and someone
else in your group might already know how to solve it.
Groups break down school resistance. One parent asking for Prior Written
Notice might get ignored. One parent asking for the Section 504 and ADA
self-evaluations might get ignored. Dozens of parents each demanding them
will force a response.
Group complaints to the state education agency will likely get answered
while one parent's complaint might be ignored. Groups of parents that cross
district lines, so that several parents in each of several districts can
make the same complaint to the state, can have added strength.
Be sure to use the federal laws -- all the federal laws
Many schools like to deal in state rules and regulations. Make them follow
the federal laws and regulations to assure you are getting what the federal
laws provide.
Many schools like to deal only with the IDEA. Your child under the IDEA is
also qualified under Section 504 and the ADA. And they have rights under
FERPA. Insist on the school following your rights under those laws as well.
Get the written notices of your rights under the IDEA, under Section 504,
under the ADA and under FERPA. Each law produces its own notice so make sure
your school district can give it to you. If they have to produce the notice,
they might actually learn something about those laws.
Make sure that your school posts the required notices that these rights, and
the statements of rights exist, and where parents can get them. Schools and
state education agencies must post on any publication that is generally
circulated that parents and students have rights, the name of the person to
contact for more information, their address and phone number. Complain if
that does not happen and get parents to demand copies of their rights. The
more parents that demand them, the more likely your school will start
producing them.
Your state and local educational agencies should be able to give you a
statement of your rights and the agency's duties under Section 504, as
required by 34 C.F.R. 104.32(b). These are quite different from your rights
under the IDEA.
Your state education agency and local school district must have written
guidelines for evaluating for mental or physical impairment under Section
504, 34 C.F.R. 104.35.
When a child is deemed eligible for Section 504 protections, the school
district "shall provide a free appropriate public education to each
qualified disabled person who is in the recipient's jurisdiction, regardless
of the nature or severity of the person's disability." 34 C.F.R. 104.33(a).
Some school districts insist that Section 504, unlike the IDEA, does not
require a written plan. But 104.33(b)(2) states that "Implementation of an
individualized education program developed in accordance with the IDEA is
one means of meeting the standard."
Not having a plan for a Section 504 eligible child means an unconstitutional
level of discrimination is occurring against that disabled child. Wouldn't a
school be foolish not to put its 504 program in writing so that it could
show it had now stopped its unconstitutional discrimination against that
child?
Obviously, since Section 504 comes from the same cases and same
constitutional interpretations as the IDEA, a 504 plan should be developed
in a meeting with the parents, the student over a certain age, and
appropriate school personnel. Yet some school districts insist that there
does not have to be a meeting, and certainly does not have to be a meeting
that includes the parent.
In 1990, the U.S. Congress in considering the Americans with Disabilities
Act, found that no school district or state education agency had
successfully completed the self-evaluation under Section 504 so they ordered
them to complete it and to also do a self-evaluation under the ADA. The
requirements are virtually the same as those detailed on pages 8 - 9 in our
manual: Is Your Child Getting Everything They Are Entitled to Under the
IDEA, Section 504, ADA and FERPA about the Section 504 self-evaluation.
The Federal government published a free 267 page guide to the ADA
self-evaluation for schools. Do you think your school district even bothered
to get it?
Communicate in writing -- and insist on getting responses in writing
Your written communication to the school shows who you put on notice, when
you put them on notice, and what you were asking them to start doing, or
stop doing.
If you have an oral communication from your school, ask them to put it in
writing.
If they will not, then put the essence of it in writing yourself, send them
a copy, and direct that it be put in your child's file folder. Keep a copy
yourself. Your dated memorandum of the conversation qualifies as the "best
evidence" of that conversation and if you ever have to end up in court (we
sincerely hope not) your record which was made contemporaneously with the
event will serve as the record of the conversation. A school witness might
even be barred from trying to remember what was said long ago since they did
not put it in writing.
This information is educational and not intended to be legal advice.
Reed Martin is an attorney with over 35 years experience in special
education law and recognized as one of the nation's leading experts. He can
be reached through email at
connie@reedmartin.com or
www.reedmartin.com
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“The only pure and consistent advocates for a child are his or her parents
or family members,” explains Betsy Primm, coordinator of Georgia Learning
Resource Services Metro-North branch. “That doesn’t mean that educators
don’t advocate every day for their students, but year in and year out, that
is a parent’s role.” |
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