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From An IEP to Section 504 Plan When, Why and What To Do When Your Child Is No Longer IEP Eligible But Still Requires A 504 Plan.

April 4, 2023

Your Team Says an IEP is No Longer Needed


The IEP process is designed to ensure that your child receives a FAPE through the offer of appropriate placement, goals, services, and modifications/accommodations. However, there are occasions when the IEP team determines that your child no longer requires the IEP goals and the related services that are tethered to those IEP goals because they have demonstrated the ability to access their education without the need for related services and specialized academic instruction.


What To Be On the Lookout For Before You Agree


Before any change is agreed to make sure you consider some of the following questions:

  1. Has your Child consistently met IEP goals based on data driven progress reports?
  2. Is the IEP team basing the removal of the IEP and change to a 504 plan solely on a single test or assessment? If so, make sure you have collected work samples and day to day data demonstrating your child is accessing their education without the need for specialized academic instruction. If you dispute the assessment, you have the right to request an independent educational assessment (but note, the District has the right to defends its assessment and may file a due process complaint against you).
  3. Don’t forget that behavior, social and emotional skills as well as executive functioning, organization and attentional deficits affect your child in school and therefore may still be entitled to keep that IEP if those areas of need are affecting your child’s ability to be successful in school.
  4. Has your child demonstrated a history of success without the need for in school special education such as multi sensory based instruction, mental heath instruction, instruction in language or an ability to succeed without that extra push in or pull out support?


What Happens When the IEP is Removed But Your Child/Student Still Needs Access


Often, the IEP team will follow up with the review of a Section 504 plan as an option when a Student is determined not to require an IEP. The Office of Civil Rights has some pretty clear guidelines about what a Section 504 plan is (and what it is not) and how the IEP differs from the IEP program.


https://www2.ed.gov/about/offices/list/ocr/504faq.html


STUDENTS PROTECTED UNDER SECTION 504


Section 504 covers qualified students with disabilities who attend schools receiving Federal financial assistance. To be protected under Section 504, a student must be determined to: (1) have a physical or mental impairment that substantially limits one or more major life activities; or (2) have a record of such an impairment; or (3) be regarded as having such an impairment. Section 504 requires that school districts provide a free appropriate public education (FAPE) to qualified students in their jurisdictions who have a physical or mental impairment that substantially limits one or more major life activities.


A student has a disability referenced in the IDEA, but does not require special education services. Is such a student eligible for services under Section 504?


The student may be eligible for services under Section 504. The school district must determine whether the student has an impairment which substantially limits his or her ability to learn or another major life activity and, if so, make an individualized determination of the child's educational needs for regular or special education or related aids or services. For example, such a student may receive adjustments in the regular classroom. Note that a medical diagnosis alone may still not entitle your child to a 504 plan or even an IEP.


The 504 Plan is a written document that is legally binding and enforceable. While there are no IEP goals or specialized academic instructions, a 504 Plan must still allow for FAPE by providing a host of general education accommodations that the school staff, teachers, and assigned educators must adhere to so that Students can learn.


Is a Section 504 re-evaluation similar to an IDEA re-evaluation? How often should it be done?


Section 504 specifies that re-evaluations in accordance with the IDEA is one means of compliance with Section 504. The Section 504 regulations require that re-evaluations be conducted periodically. Section 504 also requires a school district to conduct a re-evaluation prior to a significant change of placement. OCR considers an exclusion from the educational program of more than 10 school days a significant change of placement. OCR would also consider transferring a student from one type of program to another or terminating or significantly reducing a related service a significant change in placement.


Your Child Has Behavior But Is Still Entitled To Behavior Support and Legal Protections Under a Section 504 Plan


Schools must conduct an additional evaluation of a student with a disability under Section 504, “a manifestation determination” before implementing a disciplinary removal that will result in a significant change in placement. A significant change in placement due to discipline means: (1) a removal from class or school for longer than 10 consecutive school days, or (2) a series of removals from class or school that together total more than 10 school days in a school year and constitute a pattern of removal. Examples include expulsions and certain suspensions. Accurate records of the basis for excluding the student and the time during which the student was excluded are needed for a school to determine whether and when a proposed disciplinary

removal would be a significant change in placement.


The Leigh Law Group are California and San Francisco based attorneys who represent disabled Students grades K-12 as well as in College when Section 504 Plans are missing or are no implemented. We represent students statewide including Los Angeles, San Francisco, Oakland, Berkeley, Sacramento and throughout the Bay area is issues related to Section 504 plans and disability accommodations.

Why Schools File Legal Claims Against Parents

November 3, 2022
Let's face it there are some special education administrators emboldened by their hired gun tax payor funded attorneys who get away with constantly muscling and bullying parents of children with IEP's rather than attempting to mediate, problem solve and work to identify solutions that help children, families and schools. The wait, don't tell and then game of I gotcha is so gross because it leaves families without any alternatives. So families are marched into lawsuits and that has a devastating affect on trust between parents and schools. That's why the Leigh Law Group attorneys exists-to give Parents the equal power to level that playing field. While the Education Code allows a school district to sue a parent of a child with disabilities do you know when they can do that? Let's consider a few examples: 1. IAES: A school district can sue a parent using the due process administrative trial like procedures to obtain an order seeking to remove a child to an IAES-interim alternative setting for up to 45 days. A local educational agency (LEA) may request an expedited due process hearing when it believes that maintaining the current placement of the child is substantially likely to result in injury to the child or to others. (20 U.S.C. § 1415(k)(3)(A); 34 C.F.R. § 300.532(a).) The hearing officer may return the child to the placement from which he was removed, or may order a change in placement to an appropriate IAES for not more than 45 school days if the hearing officer determines that maintaining the current placement of such child is substantially likely to result in injury to the child or to others. (20 U.S.C. § 1415(k)(3)(B)(i); 34 C.F.R. § 300.532(b)(2).) The expedited due process hearing must occur within 20 school days of the date the complaint requesting the hearing is filed and the hearing officer must make a determination within 10 school days after the hearing. (34 C.F.R. § 300.532(c)(2).) 2. And this is a biggie-when after the provision of special education services the parent either partially consents to an IEP or revokes consent to special education. Ca. Educ. Code Section 56346(f) and also see https://lnkd.in/gSfZEwYS. 3. A school district may after a manifestation hearing sue a family in an expedited due process hearing to have the child remove from school (they may seek an expulsion hearing) or they may also pursue due process to have the child's placement changed. Check out this CDE resource on disciplinary resources and federal guidance on manifestation hearings and discipline.
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DIPLOMA AN OPTION FOR STUDENTS WITH SIGNIFICANT COGNITIVE ABILITIES

October 24, 2022
Under federal regulations and corresponding state law, obtaining a high school diploma after a student meets local high school graduation requirements ends a student’s rights to continued IEP’s and offers of FAPE. 34 CFR 300.102, CA. Educ. Code Section 51225.3. For the longest time, California students with significant cognitive disabilities were not afforded the right to earn a diploma and instead IEP teams offered only certificate of completions. Ca. Educ. Code 56390. A Certificate of Completion required the student to meet IEP goals and complete school district approved courses of study. Ca. Educ. Code 51225.3 (defines requirements for certificate of completion courses of study). A student ages out of the IEP process at the age of 22. Ca. Educ. Section 56026.

DP and CDE Differences

October 13, 2022
If you think that your child’s school district has violated special education law—including failing to provide your child with a free appropriate public education (“FAPE”), you can either file a due process complaint or a complaint with the California Department of Education (“CDE”). There are always ways a seasoned special education attorney can help with this process and moreover, can even provide you with services such as amicably settling your differences and avoid the below discussed time consuming and sometimes frustrating processes. A Leigh Law Group attorney retained can provide you with all the options that best obtains you and your family’s goal. This blog is not legal advice and does not constitute all the ways a family can resolve school disputes. How Due Process Works Parents may file a due process complaint with the Office of Administrative Hearings (“OAH”) if they believe that the school district is not providing their child with FAPE. Timing Matters Parents generally have two years from the date they knew about the underlying issue to file a due process complaint alleging issues during those years. Filing a due process complaint results in a due process hearing unless the parties settle before hearing starts. Generally, before the due process hearing, parents and school district representatives have the option to voluntarily mediate with an OAH Administrative Law Judge (“ALJ”) or during a resolution session. The goal of the meditation is to resolve the dispute before the due process hearing. If the parties do not reach a settlement agreement at the mediation, then the parties proceed to the due process hearing. At the due process hearing, an ALJ will review the evidence and determine whether the schools district provided your child with FAPE. After hearing evidence and reviewing written closing arguments from both sides, the ALJ will issue a decision stating whether there was a violation, and if there was, corrective actions the district must take. A due process hearing is similar to a trial with witnesses and documentary evidence. Either side may appeal by filing a civil action in federal district court if they are dissatisfied with the ALJ’s decision within 90 days from the date of the final administrative decision. How a California Department of Education Complaint Works Anyone may file a complaint with the CDE when they believe the school district has violated special education law. Timing Matters The CDE investigates the complaint to determine whether the school district violated special education law. The issues must be filed within 1 year of the violation or knowledge of the violation. The CDE acts as a neutral investigator; they do not advocate for either the parents or the school district. The CDE will issue a decision stating whether there was a violation of special education law. This process mostly covers failures to implement the IEP. If there was a violation, then the decision will include actions the school district must take to correct the violations. It is important to realize, however, that after you submit your evidence—usually in the form of a letter—to the CDE, your case is in the hands of the investigator. What is the difference between filing for due process and filing a complaint with the California Department of Education? A CDE complaint can resolve any alleged violations of federal and state special education laws relating to failure to implement the IEP reviewed by a state compliance investigator, starts with a state complaint outlining the issues and each side gets to speak to the investigator but does not get to see the other sides evidence generally. An attorney can help you file a complaint as well as give you guidance as to the legal violations and potential remedies. The statute of limitations is one year. A due process complaint focuses on violations of both procedural and substantive violations of FAPE. The due process complaint can take days if not months, is appealable to state or federal court, allows for a decision by an ALJ who hears organized evidence, witnesses and experts and the participant has a greater chance of being heard about the harms caused and why remedies should be awarded. There generally is a two-year statute of limitations. An attorney should be retained in these circumstances as the process is appealable by any side to federal court and there may be other civil issues implicated in these types of filings. If you believe the school district is not providing FAPE or violating your child’s special education rights, you should consider retaining an attorney and the Leigh Law Group attorneys are very experienced in the above processes, how to use them and when and if to use them strategically.

Who Attends an IEP Meeting

October 13, 2022
Students who receive special education services have an individualized education plan (“IEP”). IEPs are governed by a host of laws, law guidance, case law and state and federal special education laws. Of particular importance is the federal Individuals with Disabilities Education Act (IDEA). IEP’s are created for students who attend public school, which includes California charter schools, for the sole purpose of providing a Free and Appropriate Public Education (“FAPE)”. The IEP is the centerpiece of special education law. To be eligible for an IEP, a student has to: 1) Have one or more of the 13 enumerated legal conditions that are covered under IDEA and state education law, which includes learning disabilities like dyslexia and dysgraphia, dyscalculia and a host of others. 2) Need services in school as a result of that disability or disabilities to access their education and be provided a FAPE. IEP meetings are held with your child’s IEP team. At the first meeting, the IEP team will develop the IEP after discussing eligibility following a school psychologist’s assessment. Expect to discuss IEP goals designed to be met within a year, services designed to help your child meet the IEP goals modifications and accommodations and a variety of placements designed to meet your child’s needs. During subsequent IEP meetings, the team will discuss your child’s progress and goals, and revise the IEP accordingly. The first IEP meeting is held within 60 days after your child qualifies for special education. After that, IEP meetings occur annually. However, you can request an IEP at any time. An IEP must include: • A statement of the child's present levels of academic achievement and performance; • A description of how the child's progress toward meeting goals will be measured; • A statement of the special education and related services to be provided to the child; and • An explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class. The following people must attend an IEP meeting: • The parents. • Your child’s general education teacher(s) if your child is in any general education classes. • Your child’s special education teacher(s). • A school district representative in charge of providing resources to your child. • An evaluator (such as a psychologist or other specialist) who will presents the results of the psychoeducational evaluation of your child. • Any other school specialists (such as a behavior analyst). • Anyone else that you believe will help advocate for your child, including an attorney. In California, a parent has the right with the appropriate notice to audio record the IEP. Bringing an attorney to an IEP meeting ensures that your child receives the resources they need. The school district’s IEP team members do not always discuss all the options available to you legally, nor do they always agree with Parents about what is and is not FAPE or progress —so it is helpful to have someone who is familiar with the IEP process by your side who will look out for your child’s interests. An attorney will make sure that your child is receiving a free appropriate public education because Leigh Law Group attorneys know the IEP requirements and understand how to work with IEP teams with a focus on your child and your child’s needs . Remember, an IEP is a legal proceeding and more often than not, you will need an attorney to help you navigate the IEP. The Leigh Law Group has been representing parents in IEP meetings effectively and zealously for more than twenty years.

How do we get more mental health counselors in schools?

By m.muotka • August 15, 2022
The last couple of years have been taxing for kids’ mental health. The pandemic, isolation, online schooling and other issues have disrupted kids’ lives, their learning and their relationships. Now, over 40% of teenagers report struggling with persistent sadness or hopelessness. Due to this “unprecedented mental health crisis” among young people, the federal government recently announced almost $300 million in… The post How do we get more mental health counselors in schools? first appeared on Leigh Law Group.

Automated hiring technology can result in ADA violations

By m.muotka • July 27, 2022
These days, the hiring process typically involves uploading resumes and filing online applications. That allows employers to use artificial intelligence (AI) and various algorithms to “review” applicants and help narrow the field down to a select group of candidates to interview. Automated hiring technology includes everything from gamified personality tests to voice analysis. Those behind this technology often claim that… The post Automated hiring technology can result in ADA violations first appeared on Leigh Law Group.

Your boss says you’re an independent contractor. It may not be true.

By m.muotka • July 26, 2022
The vast majority of the time, California law assumes that workers are the employees of who they work for. If a worker is going to work as an independent contractor, the hiring company must prove that they qualify under the law. This is important because employees are entitled to many more benefits and protections than independent contractors. For example, employers… The post Your boss says you’re an independent contractor. It may not be true. first appeared on Leigh Law Group.

Has Title IX made school sports gender-equal? No, says NCAA report

By m.muotka • July 22, 2022
Title IX of the Education Amendments of 1972 turned 50 years old this year. The law prohibits gender-based discrimination in any school or education program funded by the federal government. It is most widely known for its effect on sports in the American education system. Has it lived up to its promise to bring gender equity to school sports? No… The post Has Title IX made school sports gender-equal? No, says NCAA report first appeared on Leigh Law Group.

Researchers: federal IDEA funding plan needs to be updated

By m.muotka • June 30, 2022
The current formula for providing federal funding for students with disabilities is inequitable and needs to be changed, according to two recent studies. Even if the federal government came through with the $38 billion it owes to states to educate students with disabilities, the researchers argue, the existing funding formula would leave many students with less funding than they actually… The post Researchers: federal IDEA funding plan needs to be updated first appeared on Leigh Law Group.

Are tip pools a form of wage theft?

By m.muotka • June 29, 2022
A restaurant owner may decide that they would rather use a tip pool than allow each employee to collect their own tips. All this means is that, when tips collected from the tables, they are combined into a single pool and then divided fairly or equally among the service staff. Owners and managers sometimes like this idea because it frees… The post Are tip pools a form of wage theft? first appeared on Leigh Law Group.
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