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PALS October 2019 - Nancy E. Potter, Education Civil Rights Attorney


PALS Meeting Minutes

October 30, 2019 9:15 a.m.

Roots of

800 Main Street Pittsburgh, PA 15215

Speaker Nancy E. Potter, Education Civil Rights Attorney

Nancy E. Potter is an attorney at McAndrews Law Offices, P.C. in their Western Pennsylvania office located in Pittsburgh. Nancy’s practice includes cases in all major areas of education advocacy, with a focus on special education and enforcing the education rights of the most vulnerable students. Nancy provides legal representation to students and families from early intervention through post-secondary education in the areas of special education, education civil rights, student discipline, and enrollment of special populations. She provides training, advocacy materials and technical assistance on education law to parent and student groups, lawyers, activists and service providers and is a frequent guest lecturer at area universities and law schools. Nancy graduated from University of Pittsburgh School of Law and received her undergraduate degree from Oklahoma State University. She served as a judicial law clerk to the Honorable Oliver J. Lobaugh. Prior to joining MLO, Nancy was a supervising attorney at the U.S. Department of Education’s Office for Civil Rights were she led a team working to promote educational excellence through vigorous enforcement of civil rights in our nation’s schools. Nancy also previously worked as a staff attorney at the Education Law Center and represented abused, neglected and at-risk youth at KidsVoice.

Education

  • University of Pittsburgh School of Law, Juris Doctor

  • Oklahoma State University, Bachelor of Science

Affiliations

  • Pennsylvania Bar Association

  • The Council of Parents Attorneys and Advocates

Bar Admissions

  • Pennsylvania

Practice Areas

  • Special Education

  • Student Discipline

  • Education Civil Rights

Nancy E. Potter

McAndrews Law Offices

600 Law & Finance Building

429 4th Avenue, Pittsburgh, PA 15219

T: 412.313.5510

npotter@mcandrewslaw.com

McAndrewsLaw.com

Education Civil Rights Overview

Nancy began with an overview of education civil rights including;

IDEA - The Individuals with Disabilities Education Act (IDEA) is a law that makes available a free appropriate public education to eligible children with disabilities throughout the nation and ensures special education and related services to those children.The IDEA governs how states and public agencies provide early intervention, special education, and related services to more than 6.5 million eligible infants, toddlers, children, and youth with disabilities.Infants and toddlers, birth through age 2, with disabilities and their families receive early intervention services under IDEA Part C. Children and youth ages 3 through 21 receive special education and related services under IDEA Part B.

Section 504 - The Rehabilitation Act of 1973, Section 504 addresses protections for students with disabilities. Section 504 is a federal law designed to protect the rights of individuals with disabilities in programs and activities that receive Federal financial assistance from the department.

Title 2 - Title II of the Americans with Disabilities Act of 1990 extends protection against discrimination to the full range of state and local government services, programs, and activities including public schools regardless of whether they receive any Federal financial assistance.

Title 6 - Title VI was enacted as part of the landmark Civil Rights Act of 1964. It prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance.

Title 9 - Title IX of the Education Amendments of 1972 protects people from discrimination based on sex in education programs or activities that receive Federal financial assistance. Title IX states that: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

For the purpose of this PALS meeting Nancy focused on Special Education and began with the information found in the following presentation (click on image to open):

Extended School Year (ESY)

Based on multiple accounts of disqualification from Extended School Year (ESY) services last year and questions about the practices of school districts when it comes to ESY, Nancy provided an overview of the subject.

- Students are evaluated for ESY services.

- Federal and State agencies have different "nets" for this evaluation.

- In Pennsylvania 22 Pa. Code §14.132 provides seven (7) factors for determination of qualification for ESY services:

(a) In addition to the requirements incorporated by reference in 34 CFR 300.106(relating to extended school year services), school entities shall use the following standards for determining whether a student with disabilities requires ESY as part of the student's program:

(1) At each IEP meeting for a student with disabilities, the school entity shall determine whether the student is eligible for ESY services and, if so, make subsequent determinations about the services to be provided.

(2) In considering whether a student is eligible for ESY services, the IEP team shall consider the following factors; however, no single factor will be considered determinative:

(i) Whether the student reverts to a lower level of functioning as evidenced by a measurable decrease in skills or behaviors which occurs as a result of an interruption in educational programming (Regression).

(ii) Whether the student has the capacity to recover the skills or behavior patterns in which regression occurred to a level demonstrated prior to the interruption of educational programming (Recoupment).

(iii) Whether the student's difficulties with regression and recoupment make it unlikely that the student will maintain the skills and behaviors relevant to IEP goals and objectives.

(iv) The extent to which the student has mastered and consolidated an important skill or behavior at the point when educational programming would be interrupted.

(v) The extent to which a skill or behavior is particularly crucial for the student to meet the IEP goals of self-sufficiency and independence from caretakers.

(vi) The extent to which successive interruptions in educational programming result in a student's withdrawal from the learning process.

(vii) Whether the student's disability is severe, such as autism/pervasive developmental disorder, serious emotional disturbance, severe mental retardation, degenerative impairments with mental involvement and severe multiple disabilities.

(b) Reliable sources of information regarding a student's educational needs, propensity to progress, recoupment potential and year-to-year progress may include the following:

(1) Progress on goals in consecutive IEPs.

(2) Progress reports maintained by educators, therapists and others having direct contact with the student before and after interruptions in the education program.

(3) Reports by parents of negative changes in adaptive behaviors or in other skill areas.

(4) Medical or other agency reports indicating degenerative-type difficulties, which become exacerbated during breaks in educational services.

(5) Observations and opinions by educators, parents and others.

(6) Results of tests, including criterion-referenced tests, curriculum-based assessments, ecological life skills assessments and other equivalent measures.

(c) The need for ESY services will not be based on any of the following:

(1) The desire or need for day care or respite care services.

(2) The desire or need for a summer recreation program.

(3) The desire or need for other programs or services that, while they may provide educational benefit, are not required to ensure the provision of a free appropriate public education.

(d) Students with severe disabilities such as autism/pervasive developmental disorder, serious emotional disturbance; severe mental retardation; degenerative impairments with mental involvement; and severe multiple disabilities require expeditious determinations of eligibility for ESY services to be provided as follows:

(1) Parents of students with severe disabilities shall be notified by the school entity of the annual review meeting to encourage their participation.

(2) The IEP review meeting must occur no later than February 28 of each school year for students with severe disabilities.

(3) The Notice of Recommended Educational Placement shall be issued to the parent no later than March 31 of the school year for students with severe disabilities.

(4) If a student with a severe disability transfers into a school entity after the dates in paragraphs (2) and (3), and the ESY eligibility decision has not been made, the eligibility and program content must be determined at the IEP meeting.

(e) School entities shall consider the eligibility for ESY services of all students with disabilities at the IEP meeting. ESY determinations for students other than those described in subsection (d) are not subject to the time lines in subsection (d). However, these determinations shall still be made in a timely manner. If the parents disagree with the school entity's recommendation on ESY, the parents will be afforded an expedited due process hearing.

- ESY services are NOT limited to summer. These services can be provided during any school breaks (think Winter and Spring Breaks), AND weekends.

- There must be an IEP review meeting prior to February 28th to determine ESY. (section d above)

- The district is required to notify the state of the decision to offer ESY on March 31st. (section d above)

- Progress reports and observations from general education and special education teachers, self/home documentation of observations, and assessments are all used in the ESY evaluation process.

- Districts are not required to offer ESY to students with 504 Plans, although some do. NOTE: if your child has a 504 Plan and is being offered ESY it should be a red flag that may be the student needs to be evaluated for an IEP.

- ESY can be delivered in many ways; packets for home, training for parents, teacher services at home of private tutor, summer camps the family finds.

- If you disagree with the determination of ESY you should request an explanation of the denial and respond to it with your concerns and why.

- If at the end of the process you are still not in agreements don't sign the NORep and first request mediation. If there is still no agreement request a due process hearing. NOTE: lawyers are not allowed in this process.

- If you believe your child meets at least one of the seven factors to qualify for ESY and the district disagrees but offers a summer school program, keep pushing! Do not feel like pushing back will put a target on your back. This is a way for disagreements to be resolved legally.

You may be interested in;

Understanding Your Rights to ESY

What to Do if You Disagree with an ESY Proposal

ESY: There is No One Size Fits All

Is My Child's ESY Program Appropriate?

Summer and Special Needs: How to Find the Right Fit?

ESY: It's That Time of Year Again

Extended School Year Services for Post-21 Years of Age

Teacher's Desk Reference: Practical Information for Pennsylvania Teachers Extended School Year (ESY)

Extended School Year Services in Pennsylvania

Security in Schools

Next, we discussed a hot topic from our September 2019 meeting, school security and the presences of police officers and school resource officers in schools.

What you need to know?

Police Officers that are working in schools as a part of a community's police department is NOT bound by IDEA. This means students receiving special education services are treated in the same manner as a student not receiving services when it comes to encounters, the issuance of citations, arrests, etc. Since police officers are not bound by IDEA, a Manifestation Determination does not apply in these instances.

What can you do?

The best thing you can do to help protect your child from a police officer who may not know anything about your child and unknowingly escalate a situation is to develop SDIs in the IEP providing very specific instructions when it comes to possible interaction.

For instance:

A school's policy may read, "If a student is in the hall after the bell rings they must report to the officer on duty." Your child's IEP may replace "officer on duty" with office, guidance counselor, special education teacher, etc.

There are elements within your child's IEP for training of those interacting with your child, use it! Write in, "District will provide training to all officers for working with differently abled students and how to deescalate situations." Of course you can be more specific.

In addition, parents in the community can request that all officers entering the schools in the district receive specific training related to working differently abled students.

For more information from McAndrews Law Offices on school security, Manifestation Determination, and the school to prison pipeline visit:

Creating Pathways to Justice® for People with Intellectual and Developmental Disabilities in Today's Criminal Justice System

Discipline of Special Education Students

From Prison to College: The Power of Special Education

Behavior is Education, Too!

Juvenile Justice and Special Education

The Tremendous Impact of School Districts' Lack of Special Education Program on the Juvenile Justice System

Child Find

In recent years school districts have gotten better at identifying students using child find. This sometime starts with teacher's funneling information to parents. Often students are identified with speech/language and reading deficits. Often students are being "redirected" to learning support classes under RtII and MTSS. While this system of school-wide support is great, there are times when students who should be receiving Special Education services are not because the issue can be masked or lost within the supports offered. Some students are feeling the pinch during the transition from elementary to middle school or middle to high school as supports for students who are not receiving special education services see a "dropped off" in support.

For more information from McAndrews Law Offices on Child Find, RtII, and MTSS visit:

Child Find Under Section 504 of The Rehabilitation Act

Why Parents Should ThinkTwice Before Delaying an Initial Evaluation for MTSS/RtI

Hospital/Homebound

Generally a student receives six (6) hours of instruction for each week missed when they are on Hospital/Homebound. The district should have a policy in place for Hospital/Homebound services. These policies may be readily available on the district's website. If not you will need to complete a Right to Know form and submit it to the district. Prior to having a conversation with your child's IEP/504 Plan Team you will want to have your documentation ready. Generally district's have Hospital/Homebound forms for physicians to complete and for parents to submit. You may also want to prepare a letter from the doctor indicating hominy days a child may be out of school, how many days the child may be incapacitated, the child's ability after, and how long it may take for the child to be able to complete a full day of work, and eventually return to school.

Homebound Students May Not Be Excluded from Class Activities

Other Subjects We Touched On

We touched on what a parent should do during the Evaluation Process as it relates to "showing" a child's ability. The question was what do you do? Do you let your child fail to show "need" or do you continue doing what you know works best for your child to grow? The answer is continue to provide your child the supports you know help them thrive while documenting EVERYTHING, including photos. Tell your story, your child should not have to take two steps back to take any steps forward.

O'Hara's New School-wide "Clip System" has created anxiety in some students and the feeling of a bullying environment amongst some parents. This is apparently being used as a classroom/school behavior management system. We focused on the aspect of anxiety and bullying which sparked conversation about anxiety among girls, anxiety among students attending high achieving schools and resources on these topics:

Bullying 101: Know Your Rights & How To Protect Your Child

Bullying in Schools - What Parents Can Do to Protect Their Child with a Disability

When Anxiety Interferes with a Student's Ability to Learn: IEPs, 504 Plans, and the Limits of Districts Responsibility

Which Laws Protect My Child from Discrimination and Harassment?

Disability Harassment and the Responsibilities of Schools

Bully and the Responsibility of Schools

Tackling Anxiety: Learning from Eagles OL Brandon Brooks' Example

Suggested Reading/Research

Under Pressure: Confronting the Epidemic of Stress and Anxiety in Girls

by Lisa Damour Ph.D.

2019

Though anxiety has risen among young people overall, studies confirm that it has skyrocketed in girls. Research finds that the number of girls who said that they often felt nervous, worried, or fearful jumped 55 percent from 2009 to 2014, while the comparable number for adolescent boys has remained unchanged. As a clinical psychologist who specializes in working with girls, Lisa Damour, Ph.D., has witnessed this rising tide of stress and anxiety in her own research, in private practice, and in the all-girls’ school where she consults. She knew this had to be the topic of her new book. In the engaging, anecdotal style and reassuring tone that won over thousands of readers of her first book, Untangled, Damour starts by addressing the facts about psychological pressure. She explains the surprising and underappreciated value of stress and anxiety: that stress can helpfully stretch us beyond our comfort zones, and anxiety can play a key role in keeping girls safe. When we emphasize the benefits of stress and anxiety, we can help our daughters take them in stride. But no parents want their daughter to suffer from emotional overload, so Damour then turns to the many facets of girls’ lives where tension takes hold: their interactions at home, pressures at school, social anxiety among other girls and among boys, and their lives online. As readers move through the layers of girls’ lives, they’ll learn about the critical steps that adults can take to shield their daughters from the toxic pressures to which our culture—including we, as parents—subjects girls.

Suniya S. Luthar, Ph.D.

suniyaluthar.org

Suniya Luthar is Foundation Professor of Psychology at Arizona State University and Professor Emerita at Columbia University’s Teachers College. After receiving her Ph.D. from Yale University in 1990, she served on the faculty of the Department of Psychiatry and the Child Study Center at Yale. Between 1997 and 2013, she was at Columbia University’s Teachers College, where she also served as Senior Advisor to the Provost (2011-2013).

Dr. Luthar's research involves vulnerability and resilience among various populations including youth in poverty, children in families affected by mental illness, and teens in high achieving schools (who reflect high rates of symptoms relative to national norms). A mother of two grown children herself, her recent scientific focus has been on motherhood; studies aim to illuminate what best helps women negotiate the challenges of this life-transforming role, and to apply these insights in interventions toward fostering their resilience.

Education:

BS Child Development (Hons.), Lady Irwin College, Delhi University, India, 1978

MS Child Development, Lady Irwin College, Delhi University, India, 1980

PhD (Distinction) Developmental/Clinical Psychology, Yale University, New Haven, 1990

Dr. Luther recently conducted a study for Shadyside Academy related to her research involving teens in high achieving schools. She presented her findings to the SSA community along with this presentation on Youth in High Achieving Schools: Maximizing Resilience.

Other Resources from Nancy E. Potter & McAndrews Law Offices, P.C.

Top Ten Rules to Develop an Appropriate IEP

What Do I Need To Know About Answering NOREPs?

Major Changes in Special Education Over the Past Twenty Years

Full List of Articles on McAndrews Law Offices' Website

Reference Material

Need information regarding the rights to special education in Pennsylvania? The Education Law Center’s “A Guide for Parents and Advocates” is a great start.

Next Meeting: November 20, 2019 9:15 a.m. Market District Café Atrium 910 Freeport Road in the Waterworks Mall Pittsburgh, PA 15238 with Guest Speaker, John Tortorea, Transition Services Specialist at Pa Connecting Communities

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