A number of brick & mortar schools have recently shuttered in the city of Philadelphia due to asbestos. As with covid-19 closures, the obligation to educate children continues even if a brick & mortar building is forced to close. If your special needs child has moved to virtual learning due to an asbestos related closure, a legal argument can be made that they need to be moved into a new brick & mortar school if they are unable to make progress in the virtual setting.
(March, 2022)
We are now two years from the start of the covid-19 pandemic and two years from virtual school closures across the state of Pennsylvania. “Two years” also has special significance in special education law as two years represents the minimum statute of limitations claim window for compensatory education damages claims. For children that received improper programming over the course of covid-19 school closures, particularly in the spring of 2020, failure to seek a claim for damages now quite likely will mean that any opportunity to seek damages in the future will expire. If your child received improper programming during virtual programming, please reach out without delay.
(April, 2021)
I recently sat down with Liia Richmond from Child Guidance Resource Center for a conversation about virtual education and a return to the brick & mortar setting. Watch the interview below:
Education in the Time of Covid-19 (Update)
(December, 2020)
When school’s throughout the Greater Philadelphia Region shuttered in March, 2020, the primary educational shortfall witnessed by our office was School District’s vastly reducing the amount of special education support that children were receiving. We frequently saw cases where, even if a child was spending the vast majority of their school day in a special education classroom in the brick & mortar building, once they started receiving instruction virtually, special education programming reduced precipitously. Through this fall, we’ve seen School District’s make much better efforts to implement special education programs, in that children are now (by and large) receiving special education instruction on a regular basis. However, significant problems remain. Often, School District’s are failing to make updates to IEPs to ensure they can be appropriately implemented in the virtual setting. School District’s are not updating IEP goals that do not work virtually. School’s are failing to monitor progress, leaving it unclear as to the present levels of the children in their care. School District’s are failing to conduct evaluations and reevaluations to determine current levels and areas of need. Most children learning virtually struggle to make progress, and that is all the more true for children with disabilities. For children with more severe disabilities, even being able to follow along with a virtual lesson may prove impossible. For these children, School District’s may be obligated to place them in brick & mortar settings – often private schools – so that they may be appropriately education. For children that can at least access instruction, questions still need to be asked regarding the efficacy of programming, how programming is being delivered, the amount of synchronous vs. asychronous instruction, how goals & SDIs are written, etc… Keep in mind, wherever there have been programming failures, compensatory education damages may be owed.
Education in the Time of Covid-19
(August, 2020)
We are about to enter the most uncertain public school year in our lifetimes. The vast majority of public school’s in the greater Philadelphia area, along with many District’s across the country, will be opening only virtually. When District’s closed their doors this past spring, it was an unprepared for and largely unprecedented emergency situation. Most District’s did a poor job implementing special education programming. Most parents accepted that such was the reality of an uncertain time. This fall needs to be different. School District’s have now known for months that opening virtually was a possibility and there has been time to prepare. What is clear is that School District’s need to make best efforts to reasonably implement IEPs. Meaning, individualized programming still needs to occur. Differentiated instruction still needs to occur. Progress monitoring still needs to occur. Children still need to be provided with an opportunity to make meaningful progress. Simply providing a minute fraction of the special education support a child was receiving in the physical building is not going to be adequate. If your child is not receiving adequate support, we can help.
(October, 2019)
Welcome Christa Miller
We are pleased to announce that Christa Miller has joined the Law Offices of Kenneth S. Cooper as a full time special education attorney. Our continued growth will allow us to better serve the Delaware Valley.
The Power of LRE
(March, 2019)
When I give presentations about special education law, I always say that there are two pillars to the law: FAPE (“Free Appropriate Public Education”) and LRE (“Least Restrictive Environment.”) While I’m sure I’ll touch on FAPE in whole or in part in posts to come, I want this post to be instructive on the power of LRE to dictate programming.
At its core, LRE goes to the very intent of federal special education law (“IDEA”), which was written by congress largely to ensure that children with disabilities have equal access to public education as their non-disabled peers. With that in mind, the intent of LRE is to ensure that children with disabilities are, when possible, educated in the same classrooms and with the same material as their non-disabled peers. The idea being that if a child is able to be educated in the regular education setting, there are few, if any, “restrictions” being placed on them in the classroom. Of course, many children with disabilities cannot be educated effectively in a regular education setting and thus, need a “restriction” placed on them, such as time in a special education setting.
As parent-side special education attorney’s, the vast majority of our fights with schools involve fighting for placements that are considered more restrictive for our children, whereas schools often claim that the service we are fighting for is too restrictive. The easy example is when we try to place children into full time special education school settings, which are nearly always private schools, and face blow back from school districts claiming that such a placement is far too restrictive for the child and therefore not the child’s LRE.
However, what brings LRE to my mind is the rare opposite occurrence where I recently represented a family in a case where the school district was seeking a placement that the family deemed too restrictive. We were able to win the case by showing that the child’s IEP, as written, could in fact be implemented in the neighborhood school and that the District could not show with reasonable certainty that the neighborhood school placement would, therefore, not be able to meet the student’s needs. Read the decision to see the power of LRE in action:
Happy Holidays!
(December, 2018)
Beyond being a time to relax, unwind and, of course, assess how your child is doing in school, the winter break can serve as a mini test case to help determine if your child necessitates extended school year services (“ESY”).
Most commonly, ESY is a service provided by the public school district for children with IEPs that, if they have an extended break, are likely to struggle with regression and/or recoupment of academics upon their return to school in the fall. Of course, like most everything else in special education law, it’s never quite as simple as that!
(Scroll down for PA Code s14.132 – ESY Eligibility)
For most children, the only “extended” time away from the rigors of school that they have each year outside of summer is the winter holiday break. Especially for children that are being programmed for with the benefit of an IEP for the first time, school’s will often say that they cannot make a determination regarding whether or not a child necessitates ESY because they have never in fact progress monitored the child to see whether they appear to meet any of the ESY criteria.
For parents that believe their child may necessitate summer programming, then, the winter holiday break can serve as preview to how their child may do if provided no educational instruction over the summer break. When your child returns to school after the new year, talk to your child’s teacher and see if there are any signs of meeting the ESY criteria. If so, even for a child with a brand new IEP, you will have your foot in the door to making a successful argument that your child should qualify for ESY.
Should you have any questions about ESY and how it may apply to your child, feel free to give us a call or shoot us an email.
PA Code s14.132 – ESY Eligibility
(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.
Authority
The provisions of this § 14.132 amended under sections 1372 and 2603-B of the Public School Code of 1949 (24 P. S. § § 13-1372 and 26-2603-B).
Source
The provisions of this § 14.132 adopted June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021; amended June 27, 2008, effective July 1, 2008, 38 Pa.B. 3575. Immediately preceding text appears at serial pages (334875) to (334877).
Cross References
This section cited in 55 Pa. Code § 3270.4 (relating to definitions); 55 Pa. Code § 3280.4 (relating to definitions); and 55 Pa. Code § 3290.4 (relating to definitions).
