Special Education Law Blog

Hard Economic Times Creating More Physical Barriers

When you are in a wheelchair (which I experience vicariously through my son everyday) a cracked sidewalk is a major obstacle. On more than one occasion, especially in urban areas, we have been forced into the street to make our way to doctor's appointments, restaurants any other places in the community. Lack of funds for maintenance, especially in hard economic times, has created enormous access issues on public sidewalks. Well I am happy to report that in Texas and other places around the country, people with disabilities are filing ADA lawsuits for safe and barrier-free access to public sidewalks.  The stakes are high but you should not have to risk your life just to access the community.

October Is National Disability Employment Month

The U.S. Department of Education has issued a proclamation that October is National Disability Employment Awareness Month. While I am glad for the greater attention to this essential issue, however, I can not feel that nice proclamations and a special monthly designation are merely nice rhetorical flourishes. We need the US DOE to  set guidelines, goals, standards and priorities to actually increase employment for people with disabilities. A good start would be for the US DOE to vigorously insure that the SEAs are holding LEAs responsible for full implementation of their transition responsibilities under IDEIA. We will not see greater rates of employment until schools recognize the centrality of transition planning, which day to day I have not seen.

Painful Failure of the Special Education System

The following is a speech given to a local autism support group. The speech is from the parents of a young adult who was diagnosed as being on the autistic spectrum in his late 20s, after his time in school had passed, and as discussed below well too late to prevent tragic consequences. I publish this with the permission of the parents of this young adult with the hope that their pain may spare others the same tragedy. There are many lessons to be learned from this story: keep a close eye on your student's use of the internet, social development is often more important than academic, transition planning for self-sufficient and safe outcome can not be emphasized enough, and sex education that is meaningful for students with special needs is even more important than for other students.

Senate Press Release on ADA Amendments

The following is a press release from Senator Orrin Hatch of Utah who along with Senator Harkin of Iowa have sponsored a bi-partisan bill to overturn the Supreme Court's narrowing of the scope and application of the  ADA. Here is an un-annotated version of the pending bill. Download ada_restoration_bill.doc The bill has already passed the House. The reforms in the bill would also apply to section 504 of the Rehabilitation Act.  (Nod to Jess Butler of COPAA for making both the draft bill and press release available)

Support for Students with Autism at College

Some colleges and universities around the country are actually taking proactive steps to address the needs of students with autism. For many students academics is not the top issue. Socialization, organization and advocacy top the list for many students. I have seen a number of students that I have represented at the K-12 level get into 4 year college but then fail because they spent excessive amounts of time playing video games or otherwise not able to handle the social and organizational pressures of college or university.

A recent newspaper report stated:

"The Organization for Autism Research, a nationwide group, is creating a line of videos designed to educate college staff. The first is aimed at professors; a second, in the works, will be geared to resident assistants.

AHEADD, the Pittsburgh-based organization, recently opened offices in Dallas, Washington and Albany, N.Y. It charges between $4,200 and $5,700 per semester for help with all aspects of college life."

This AHEADD program sounds promising and could be the difference between matriculation and flunking out. George Washington University also has a clearinghouse of information that is accessible online. It is nice to see that at least to some degree colleges and universities are recognizing that there are large number of  students on the spectrum  and other disabilities who are capable of college but need supports to make it a reality.

Action Needed on ADA Bill Pending in Congress

ADA for parents of children with special needs may not be part of everyday concerns. When our children age out or graduate from IDEIA this will be one of the primary sources of substantive rights in the workplace and in public accomodations. Recent Court cases have greatly weakened the legal protections of ADA which can be reversed in Congress. This bill is different from the IDEIA legislation that is still pending in Congress. The following is a call for legislative action from COPAA!

From COPAA (The Council of Parent Attorneys & Advocates: http://www.copaa.org ):

Please contact Congress to support the ADA Amendments Act of 2008, H.R. 3195. The bill could come to a vote next week.  This important bill will amend the ADA and Section 504 to ensure that the rights of adults and children with disabilities are protected.  When Congress passed the ADA in 1990, it was intended to protect people with disabilities from discrimination.  A series of Supreme Court decisions narrowed the act, holding that many people with disabilities were not eligible for the ADA¢s protections.  H.R. 3195 will override them and re-establish the protection against discrimination that Congress intended.  (This is the same bill that is sometimes called the ADA Restoration Act.)

If you represent an organization or disabilities group (including informal parent group), we would also appreciate it if you would write a letter to Congress on your letterhead (if you have it) and provide a copy to COPAA: [email protected] 

Please ask your Congressional Representatives to support H.R. 3195, the ADA Amendments Act of 2008.  Call 202-224-3121 (TTY 202-225-1904) and ask for your Representative¢s office.  You can send an email and look up your Representative here: http://www.house.gov/writerep

The bill could come to the House Floor for a vote as early as next week, so please call or email promptly.  Calls are much more useful if you can make them.

H.R. 3195 IS VERY IMPORTANT BECAUSE IT WILL RESTORE EMPLOYMENT RIGHTS UNDER THE ADA AND MAKE CLEAR THAT THE SAME LANGUAGE APPLIES TO SECTION 504 OF THE REHABILITATION ACT.

Since both laws define disability the same way, the same corrective language should apply to both.  Unfortunately, a few school districts began attacking the bill yesterday in the press, arguing that it should not apply to 504 to protect children in school.  We need to help show that there is support for the bill.

First, the ADA Amendments Act of 2008 will protect youth with disabilities moving into the world of employment.

Courts have wrongfully narrowed the ADA and held that people with epilepsy, diabetes, intellectual and developmental disabilities, muscular dystrophy, and cancer (among many others) are not eligible for the ADA¢s protections.  Studies show that plaintiffs lose 97% of ADA employment discrimination claims, mainly because they cannot meet the definitions of disability established by the Supreme Court.  This is not what a bipartisan Congress intended when it passed the law.  H.R. 3195 will overturn these decisions.      

    H.R. 3195 will ensure that people with disabilities do not lose ADA eligibility simply because their condition can be addressed with assistive technology or helped by medication.  It will ensure that employees are not discriminated against because of their actual or perceived impairments.  It will make clear that the ADA protects people whose disabilities prevent or severely restrict them from doing activities of central importance to most people¢s lives.  H.R. 3195 will thus correct the decisions in Sutton v. United Airlines, Toyota Motor Manufacturing v. Williams, and their companion cases.

Second, H.R. 3195 will add simple conforming language applying the ADA Amendments Act of 2008 to Section 504 of the Rehabilitation Act.

Since the ADA and Section 504 define disability similarly, the same amendments should apply to both. Children and young adults with disabilities in school deserve the same protections as adults seeking employment.

When you talk or write to your Congressional representatives, it is important to make these points.  H.R. 3195 will not change what most school districts are already doing to determine whether children with disabilities are entitled to 504 protections.  But it will ensure that no child has the door to equal protection slammed by applying the old, outdated ADA case law to 504.  H.R. 3195 will make clear that the small number of children who have inappropriately been denied 504 eligibility should receive it. 

MORE DETAILED INFORMATION ABOUT H.R. 3195 and Sec. 504

H.R. 3195 is only about ELIGIBILITY for the ADA and 504.  This is a different issues from whether 504 plans are effective or inadequate.  It is important today to protect the rights of children to be ELIGIBLE under 504, just as adults would be under the ADA.  That is what H.R. 3195 will do.  Please stay focused on this.

No child should have the door to 504 eligibility slammed because of old, outdated ADA case law, that a bipartisan consensus agrees should be changed.  H.R. 3195 will clarify that those children who have been inappropriately denied 504 coverage under outdated ADA-like theories are entitled to 504¢s protections.  This is a relatively small number of children, but it is crucial that they be protected.

Still, it is important to emphasize that H.R. 3195 will not cause schools to face any major changes in determining IDEA eligibility.  Most schools correctly find that children with a range of impairments are eligible for 504¢s protections.  In general, courts considering claims from students with disabilities have generally held that those children are eligible for 504, unlike the employment decisions. 

It is a myth to claim that H.R. 3195 will force school districts to accommodate large numbers of children that they would not otherwise.  H.R. 3195 includes provisions to protect schools and employers against inappropriate disability claims.  It is important to protect against discrimination, both in employment and at school.  It appears that some school districts are unfortunately fighting the bill.  The effect of excluding school districts is that some districts could begin in the future denying children with disabilities the same promise of equal protection and protection from discrimination under 504.  This is wrong.  Every child deserves to be free of discrimination.

Please urge your Congressional Representatives to support H.R. 3195 and keep America¢s promise to people with disabilities: children and adults.  Equality of the law and justice will benefit all Americans.

Thank you,

Robert Berlow

Jessica Butler

COPAA Govt. Affairs Co-Chairs

Denise Marshall

COPAA Executive Director

Council of Parent Attorneys & Advocates, Inc.

A National Voice for Special Education Rights & Advocacy

www.copaa.org

email [email protected]

Comprehensive Transition Toolkit from NASET

Transition planning is the hot topic these days under IDEA 2004. For the obvious reason that the emphasis under IDEA 2004 is meaningful life outcomes in the real world.  In Illinois, the State Performance Plan [each state is mandated to have a SPP] ("SPP"), which is the state's targeted goals for collecting data and monitoring progress over time required under IDEA 2004 [I think of it as the State's IEP for itself] has a goal in the area of transition which incorporates a comprehensive report from NASET. This report covers numerous aspects of transition planning and is downloadable for free. It details the need for research-based means of reaching transition goals, defines key categories of goals, emphasizes the need for positive behavioral interventions to stem the flood of special education students who are dropping out (roughly 1/3), the need for collaboration with parents and students in the process.

The table of contents of the report include the following topics:

• Standards and Indicators

• Supporting Evidence and Research

• Self-Assessment Tool

• Priority Setting Tool

• Action Planning Tool

Health Literacy A Serious Educational Issue

A recent article in the Washington Post reveals that the level of reading and math literacy is having a significant effect on the ability of patients to participate and understand medical decisions, and to carry out doctor's directions. A significant number of patients could not understand the difference between a teaspoon and a tablespoon.

There are efforts to simplify the jargon that only makes this literacy deficit worse. In addition, the drug company Pfizer has sponsored a program called Ask Me 3 which:

" Designed by the Partnership for Clear Health Communication, a coalition of national health and literacy groups, the program encourages patients to ask three simple questions and to be sure they understand the answers: What is my main problem? What do I need to do? Why is that important?"

For many students with special needs this article should be brought to your next IEP meeting. Issues relating to understanding the body, expressing pain and symptoms, and other necessary skills (e.g. tablespoon vs. teaspoon) can and should be made goals both in the IEP and definitely in transition plans.  The Ask Me 3 reads like benchmarks under a health-related goal.  Moreover, the key fact here is that being behind in reading and math literacy is more than an educational issue, it can be a matter of life and death.

Serious Games, Have Serious Possibilities

Social impact/serious gaming apparently is a new movement in the area of "gaming" that should have some very interesting and useful applications for students with special needs. The purpose of the game is to convey some socially important message in the context of a game. One of the "games" that was particularly interesting is called "Job Training Entertech" which is described as follows:

" An online, simulated high-tech company, where students learn job skills as part of a training course. Students move through the virtual Entertech company, encountering virtual co-workers and supervisors, and making decisions involving workplace ethics, teaming and company policies.”

I have many students who I represent that would benefit from such a program and it certainly could be incorporated into the achievement of job-related transition goals; certainly more palatable than flipping through books on vocational training. Moreover, the interactive features at least on a simulated level allows for mistakes to be made and problems solved without real life consequences.

Your IEP is a Transition Plan

IDEA 2004 emphasizes the need for planning for real life outcomes after public school. While transition planning has for many years been a part of the law, this new emphasis is welcome and long overdue.  The transition parts of the law are not just in the narrow section of the law which talks about THE transition plan. From the purposes section and throughout the new law the emphasis is on functional goals and concrete steps to achieve post high school outcomes.  This new emphasis in the law has caused me to rethink my view of the IEP itself.