Rather than Copy the entire text here, I am placing a link to this
information. Below is my personal battle for Amber which is ongoing at
the time of this writing.
Click
Here for the entire text in PDF
http://www.kent.k12.wa.us/ksd/ss/PDF/wac_392_172.pdf
FYI - This document is 130 pages long but in order for you to
really be an effective advocate for your child you should read most all
of it. There are many sections that just deal with legalese bull, but a
lot more that will have a direct relationship to your ability to fight
for your child. Many can summarize the highlights but in order to really
be informed you should read the entire text.
Now having said that I have entered some of the text that you will
find in the PDF file here. I have also highlighted that part of the text
that you should pay special attention to. Now not everything I have
placed here will pertain to your child and some that does I have not
included here. What I have included are items that pertain to my child
or those I felt were of such import that they should be given special
attention.
WAC 392-172-020 Purposes. (1) The purposes of this chapter
are to: (a) Implement chapter 28A.155 RCW consistent with the
Individuals with Disabilities Education Act, 20 United States Code
section 1400 et seq.; (b) Ensure that all special education students as
defined in this chapter have available a free appropriate public
education (FAPE) that emphasizes special education and related services
designed to meet their unique needs and prepare them for employment and
independent living; (c) Ensure that the rights of special education
students and their parents are protected; (d) Assist school districts
and other public agencies to provide special education and related
services; and (e) Assess and ensure effectiveness of the public agencies
responsible for providing special education pursuant to chapter 28A.155
RCW, including state residential education programs established and
operated pursuant to chapter 28A.190 RCW, state schools for the deaf and
blind established and operated pursuant to chapter 72.40 RCW, and
education programs for juvenile inmates established and operated
pursuant to chapter 28A.193 RCW. (2) School districts and other public
agencies must be aware that there are additional federal and state civil
rights regulations (29 US Code 764, RCW 49.60.030, 43 USC 12101 et seq.)
that apply to students who have a disability regardless of the student's
eligibility for special education and related services. If a student has
a physical, sensory, or mental impairment which substantially limits one
or more major life activities, the district or other public agency has
an obligation to provide that student appropriate educational services.
Such services must be designed to meet the needs of the student with a
disability to the same extent the needs of students without disabilities
are met. A school district and other public agency's obligation to
provide appropriate educational services to meet the needs of a student
who has a disability exists separate and apart from the obligation to
provide a free appropriate public education to a student who qualifies
for special education and any necessary related services under these
regulations.
This highlighted
section is very important as it allows for your child to receive
services even if they do not meet the qualifications under an IEP
provided they meet the qualifications of the aforementioned laws that
are on the books. In Amber's case she meets the Qualifications of DSHS
under DDD for both physical handicaps and a mental IQ of 67 which is
more than 2 standard deviations below the norm. She also meets the
qualifications of the 504 plan of the ADA in several categories.
WAC 392-172-030 Students’ rights to special education programs. (1) Each school district, other
public agency, and residential schools operated pursuant to chapters
28A.190 and 72.40 RCW shall provide every eligible special education
student between the age of three and twenty-one years, a free
appropriate public education program, including special education for
students who have been suspended or expelled from school. A free appropriate public education is
also available to any eligible student even though the student is
advancing from grade to grade. The right to special education for
eligible students commences on their third birthday with an
individualized education program (IEP) in effect by that date. If an
eligible student's third birthday occurs during the summer, the
student's individualized education program team shall determine the date
when services under the individualized education program will begin.
Amber was doing quite
well and was receiving passing grades in all her regular classes. In
fact she even passed the reading and writing parts of the WASL. The
school personnel would constantly state that as she has passed the WASL
and was receiving passing grades she did not qualify. According to
people I talked with at OSPI (Office of Superintendent of Public
Instruction ) Though
the IEP team may take these into account they CANNOT be used as the sole
criteria for denial of eligibility. The IEP team MUST consider all
available information to include but not limited to Physiological tests,
Physical abilities, Mental abilities, Social abilities, Learning
Disabilities and any Special
Circumstances.
WAC 392-172-055 Related services.
(2) The terms used in the definition of "related
services" are defined as follows:
(a) "Classified staff services" includes:
(i) Services provided by classified staff which provide
for the student’s safety, personal care, and instructional assistance; and
(ii) Services provided to certificated staff by
classified staff which provide assistance for special education students
to achieve placement in the
least restrictive environment.
Now we were never seeking that Amber be under an
IEP (SPED) in High School, all we wanted was for the school to
acknowledge that she had a Learning Disability and some physical
problems. We felt both could be handled through the 504 plan but as we
were stonewalled in getting the Non-Verbal Learning Disability (NLD) accommodations
we wanted; namely verbal testing and verbal reading of material to her
(or books on tape) we had to go forth with the IEP.
Under the law
however the school should have made the accommodations of verbal
assignments and tests and less homework and test questions to take into
account her NLD. We were never seeking a lowering of the standards to achieve
a better grade only accommodations to allow Amber to show she was
proficient in the subject matter with or through verbal testing and less
questions on the test so she would not be forced to stay up past
midnight doing homework and stressing over tests that increased her Dystonia
and therefore her pain.
Through conversations with people at OSPI and at
WA-PAVE I was told that these accommodations were well within the scope
of the 504 plan and should have been implemented, but the schools IEP
team saw otherwise and so we have to fight for Amber and get the IEP done
so she would qualify under "instructional assistance" and
still be placed in regular classes "least restrictive
environment".
If you have a look at the Parent & Educator Guide of the
504 plan It is clear that these services are available under a 504.
However you also have to realize that there is little incentive for the
school to provide much under a 504. The reason is twofold .
Number 1 is money.
Though the Feds mandate the 504 they do not
provide any funding and so the school district has to eat these costs.
Many choose not to. Under an IEP and SPED the school can apply for and
get Federal funding for many Accommodations like PT, OT, Student Aide,
Special instruction or Tutoring and more. They also receive funding just
because your child is in SPED with an IEP, whether they do anything or
not.
And 2nd.
There is little enforcement when it comes to a 504
plan. The school district is required to follow procedure as in giving
tests for evaluation, noting all evidence presented, having certain time
restriction of when things have to be done, honoring all items placed on
the 504 plan etc. But so long as they follow 'Procedure', OCR will not
interfere. The schools have no obligation to actually do anything as the
OCR will not investigate individual complaints not related to 'procedural'
issues. Your only recourse is to file a Due Process complaint with the
school and though it clearly states a school cannot withhold
accommodations for financial reasons it will be considered at any
hearing whether spoken aloud or not.
The school most likely will institute things that
will reduce their liability in case of accident like more time to get to
class, use of the elevator, someone to walk you child from class to
class, someone to carry their books, etc. They may institute some things
that do not cost them in time or money like an extra set of books for
home use, less homework, more time to finish assignments , etc
But try to get them to do something under a 504
that will cost them money or time and you will hit a brick wall.
Although the accommodation is clearly one that is available according to
the Parent & Educator Guide
Appendix E and 504 plan & IDEA Q&A
and other places on this site and the web. The school will be reluctant
to do anything for your child that will cost them time or money and as
such getting your child qualified under an IEP and SPED will greatly
increase your chances of getting results. It will also give you more
options as to filing complaints. You can file within the school and get
mediation, You can file through the States Board of Education ( here in Washington
that would be the OSPI) and you can have an appeals hearing as well as
file a civil suit.
WAC 392-172-106 General areas of evaluation. (1) The evaluation of a student
shall be in all areas related to the suspected disability, including, if appropriate, health,
vision, hearing, social and emotional status, general intelligence,
academic performance, communicative status, and motor abilities.
(2) The evaluation shall be sufficiently comprehensive
to identify all of the student’s special education and any necessary related services needs,
whether or not commonly linked to the disability category in which the
student has been classified.
Amber would be considered to have Health, Vision,
Social, Emotional, Intelligence, Academic and Motor Ability deficits.
What the IEP team would qualify her under would not matter. It would be
the related services we would be seeking as the school has seen fit to
disallow her NLD as cause for having verbal testing, books on tape or
someone read to her and less test questions and homework all viable
under the 504 but not provided by our school district.
WAC 392-172-108 Evaluation
procedures.
(b) For a student suspected of having a learning
disability, the determination of whether the student is eligible under
this chapter shall be made by child’s
parent(s) and a group of qualified professionals which must
include:
(i) The student’s
general education classroom teacher;
(iv) At least
one individual qualified to conduct individual diagnostic examinations
of children, such as school psychologist, speech language
pathologist, or remedial reading teacher.
(5) No single
procedure shall be the sole criterion for determining a student’s
eligibility or disabling condition and/or for determining the
appropriate educational program for a student.
No regular classroom teacher, of Amber, was present
at the meeting.
The Vice Principals constant reiteration that
passing the WASL was enough to disqualify Amber was in error according
to (5)
Amber was tested by Dr. Dorsch Ph.D Mary
Bridge Children's Hospital. The testing was extensive :
Dr. Dorsch wrote an 14 page summary and
recommendation report of her test results and included another 5 pages
of the actual test results. All was dismissed by the school when we had
our meeting. The 'feeling' I got at the meeting was that they either did
not believe the test results or were of an opinion that they were not
going to give them any weight in making any decisions. In fact the
School Psychologist disparaged the test by stating " This seems very
complete but the results would really depend on how the test was
given". Basically calling into question the honesty and competence
of Dr. Dorsch.
I do not know Dr. Dorsh's qualifications but I do
know she has spent years dealing with children and testing them. She is
a part of the faculty at Children's Hospital in Seattle and works out of
an office at Mary Bridge in Tacoma. She seemed more than competent
during our meetings and I seem to recall her having said she has been
doing this type of work for 15 + years as she wished she had met Amber
some 12 years ago so that she could have been involved in her needs.
Below is a a list of WAC codes for certain
eligibility requirements that I believe can be applied to Amber specifically.
At the least a case can be made for each though some might be a stretch
others are dead on.
WAC
392-172-118
WAC
392-172-122
WAC
392-172-124
WAC
392-172-126
WAC
392-172-128
WAC
392-172-134
WAC
392-172-136
WAC
392-172-142
WAC
392-172-148
The
aforementioned chapters all deal with specific disabilities of which Amber
has in total or in part an interest in. Any of these could be used to
qualify her for SPED , but as I stated earlier the only reason we are
seeking SPED is that the school will not provide accommodations under the
504 plan for what we feel are legitimate concerns due to her learning
disabilities.
WAC
392-172-159 Development, review, and revision of individualized education
program-consideration of special factors.
(3)
If, in considering the special factors described above, the IEP team
determines that a student needs a particular device or service (including
an intervention, accommodation,
or other program modification) in order for the student to receive a free
appropriate public education, the IEP team must include a statement to
that effect in the student's individualized education program.
For those of you that feel you have not been treated
fairly by the schools you have several options the first being Mediation.
WAC 392-172-312 Mediation
Currently only available to children who are in SPED
and have an IEP. This is a non formal meeting of the parents, school
and OSPI as well as any other interested parties to try to hash out a
compromise. You as the parent have the right to stop the proceedings at
any time and opt to go to legal processes or to not go any further. But
this mediation is provided at no cost and so should be considered before
you wind up spending a fortune on lawyers. Both the school and you have to
agree to mediation and nothing is binding nor can the mediator do more
than make suggestions. They have no power to force anyone to do anything. The mediator is supposed to be
non-partial but as they work at the behest of OSPI I seriously doubt that
you will encounter true impartiality. Still you may receive what you
desire so use this option. It has no legal binding powers on you should
you choose to seek other remedies.
The next step if you so desire can be to register a
complaint with OSPI (Office Superintendent Public Instruction) or your
Dept of Education. Or if your child is under the 504 plan file a complaint
with OCR for procedural violations or a Due Process hearing for individual
remedies.
WAC 392-172-324 Definition—Complaint.
Be sure to include all necessary formal material as
stipulated so that there will be no denial of your complaint on the
grounds that you failed to comply with some technicality. You do not have
to do any of these nor do them in order but it would be best if you did
cause if you wind up in court you can document that you have tried going
through the hoops that OSPI has laid out and have not found them adequate.
It will go far in your credibility at court. You would be smart to have an
attorney or really good advocate for the Complaint process.
Always, Always, Always do EVERYTHING in
WRITING!!!!!!
You need to have a paper trail so that you can
document everything you have done. This will help you if you ever have to
go as far as the courts to get what you want.
The next stop would be to appeal to a Court of Law.
WAC 392-172-360 Final decision—Appeal to court of
law.
And if all else fails you have the right to bring a
civil action under section 615 (e)(2) of the Individuals with Disabilities
Education Act. A civil action may be filed in either state or federal
court.
As stated earlier our intention is to get Amber accommodations
under the 504 plan and we believe that everything we are asking for can be
accommodated under the 504 plan, but the school district sees it
differently. They have this idea that to give Amber certain accommodations
she must qualify for SPED even though the accommodations have nothing to
do with altering her class work to a degree to insure she is able to pass
with a better grade. All we want is verbal testing and someone to read to
her the chapters that are required of regular students. We would like to
have her homework reduced and her test questions reduced so that she can
complete them within a reasonable amount of time We are not asking
that her requirements be dumbed down so she gets an A instead of a B but
only that if she can show her proficiency of regular class material in 20
questions instead of 50 that she be given 20.
From all I have conferred with of this matter from
Ambers psychologists to people working at OSPI to impartial advocates like
those at WA-PAVE and even a call to the US dept of Education and the local
Seattle offices of OCR (Office of Civil Rights). I have been told my
desire for accommodation as I have stated is not unreasonable and should
fall under the 504 plan. Why the school is being so adamant that Amber
qualify for SPED.... Well the only reason I can think of is that they get
more Federal funding the more SPED students they have. The problem is that
although being under the 504 will have no bearing on Amber's chances for
college entrance being under an IEP and SPED will. I have done my homework
and will be fighting again to have Amber covered under the 504 even though
I have initiated the IEP. As the parent I have the right to stop any
process from proceeding if I feel it is no longer necessary. I have
contacted the OCR (Office of Civil Rights) as they are responsible for
administering the 504 plan, to find what other weapons I can place in my
arsenal before my next meeting with the school. Apparently they are more
interested in procedural violations and not individual needs . Though the
person I talked with said he as well thought the matter was a 504 issue.
The spokes person said if I feel that the school did not fairly and adequately
consider all information provided in rendering their decision I could file
a complaint with their office but if I just did not get what I was asking
for I needed to file for Due Process or take another approach to remedy the
situation.
In other words if I feel that the school did not
adequately consider all information provided nor seek out information from
those I listed in my letter or in some way did not conduct all the
appropriate testing and gaining of information to make an informed
decision, I could file a complaint with OCR, because these would be
procedural issues.
I also called the offices for mediation for some
advice as to how best to continue in my efforts to advocate for my
daughter but was informed they only deal with the IEP and SPED as they are
funded in part by the Feds for these mediations. My only alternative while
Amber is qualified under a 504 is a Due Process hearing. One could always
file a civil suit against the District if you have the money and time.
The current date is Sep. 24, 2008 and I would think
the next meeting would be in 30 days or less.
An update:
I received a call from the Special Ed director at the
district and she stated that she would call the school and see if they
could do anything as far as accommodations that I am seeking. She also
said she was in the process of reading DR. Dorsch's report I had attached
to my letter and had gotten a call from Amber's psychologist and was going
to try to return the call. Apparently she at least is doing something.
Whether it will be enough time will tell.
It is interesting that though I gave the Dr's report
to the school psychologist at the previous meeting, he had not made copies
and sent them to anyone. The reports that were distributed to those
involved were ones I had made and hand delivered to about twelve
individuals I thought needed the information. Do not rely on any party to
do anything. Always find a way to do it yourself if possible cause one
cannot rely on others to do what is needed.
Update : We had our second meeting and though the ass
kissers were more cordial and more willing to agree of what we were saying
they did not make any changes to the 504 other than to protect their
collective asses in case of emergency. They were working on a way to
evacuate my daughter from the school as she now uses an electric mobility
chair to get around. You can read more of our fight as regards this matter
in the
Blog of Amber and Family .
Suffice to say we have elected to get the IEP and SPED so that we
will have more weight placed on what we want and more options to fight
for what they are unwilling to give. As stated here and other pages of
this site the 504 plan is by far the easiest to get but the hardest to
enforce. It is a Federally mandated program with no teeth with which to
really force the school to do anything. The IEP and SPED however is Federally
funded and allows for considerably more ways to fight for your child.
If your child
does not qualify for an IEP and SPED you have to fight under the 504. Use
the Due Process hearing and if necessary file a civil action in Court. Do
not let the school dictate to you of things you know are available
accommodations under a 504. If you lose at the Due Process hearing you can
always take them to court and let a judge or jury decide. This will of
course cost you money so be prepared if you lose but should you win I
would think your costs would be reimbursed by the school. Talk to a lawyer
whether you intend to hire one or not to know just what to expect.
If your child
will qualify under an IEP and SPED then you might want to consider this
alternative to get what you want. The school will likely give more as the
Feds are paying but even if they don't you have more options to fight the
school before it costs you money for a civil suit.
I may be low
income and a civil suit (if I lose) will likely put me on welfare and I'll
lose my rentals but I am 50 years old and have lived over half my life. My
daughter is just starting out with 60+ years ahead of her. I need to make
sure she is prepared to face the future as best she can and if that means I
take a hit in the short term to ensure her future, then so be it.
Besides what am
I really giving up? I mean we just paid the 2nd half property taxes,
almost $6500.00, and we have a grand total of $2200.00 left to our name.
After we pay to get Tami's car out of the shop and the insurance on a
couple rentals due in December we might save enough for Aprils half
property taxes. We live on a shoestring saving just enough to pay property
taxes and insurance. We will never have anything for ourselves so the only
loss we will face is losing our kids inheritance. It probably would be
less stressful on us just to sell the rentals and go on welfare than to
try and fight to keep our heads above water. I mean seriously. I can't
work, hell I can barely walk. The wife wouldn't be able to hold a job what
with having to care for Amber and Joey and me. We are borderline poverty
as it is and I know renters of mine that are on welfare, section 8 housing
and food stamps and paid utilities and they even get cash for other things
as well as reduced phone costs and in total they make more than I do and I
have to bust my ass to take care of the rentals, cleaning roofs, chimneys,
gutters, repairing things and replacing things and re-renting when they
move and dealing with their sob stories and well it would just be so much
easier to take the handout than fight to survive. Yet we do, mostly cause
I want my kids to inherit something that will give them a leg up to a
better life and cause I know that in time they will have lives of their
own and then what we have will be enough for the Wife and I, though as
Amber deteriorates it does appear we might be taking care of her for the rest
of our lives.
Sorry, I
suppose this rant could have been better placed elsewhere but I was
thinking it so just decided to say it.
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