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  • Wisconsin Lawyer
    September 01, 2014

    Children in School:
    The ABCs of Special Needs Students

    Understanding school districts’ obligations and students’ rights will help parents and attorneys ensure that students receive appropriate special education services in Wisconsin schools.

    frustrated kidImagine that you get a call from a long-standing client, the parent of a school-age child. Her child has been struggling with reading assignments and performing below his grade level academically. Your client received a letter from the school district advising her that the child’s school has referred him to the office of special education. The district is requesting your client’s consent to have the child evaluated for special education services and is requesting a meeting to discuss an evaluation plan. The client is upset by the letter from the school district. She believes that poor teaching is the reason for her child’s low academic performance, citing prior conflicts with the child’s teacher, and requests your representation.

    Determining the Educational Issues

    According to Attorney Robert “Rock” Pledl of Pledl and Cohn, Milwaukee, who practices disability and civil rights law including special education matters, lawyers should not act like litigators the minute they walk through the school door. He added that usually when parents call lawyers, it is because communication with the school has broken down. He suggests that attorneys find out what the educational issues are first, then apply the law.

    The Office of Special Education and Rehabilitative Services (OSERS) in the U.S. Department of Education is responsible for overseeing the Individuals with Disabilities Education Act (IDEA) to ensure that state and local agencies provide special education and related services to children with disabilities. Part B of the IDEA enumerates guidelines schools must follow for educating children ages 3 to 21. To receive funding, school districts must comply with six main requirements of the IDEA. Two of the six main principles are that schools must ensure that children are provided with a free and appropriate public education and must provide evaluations for children who are identified as having a suspected disability.

    Your client’s school district complied with the IDEA by identifying a possible disability that is interfering with the student’s learning and requesting consent for an evaluation. The district appears to be proactively seeking parental input on a potential educational issue. Assume that you advise your client to consent to an evaluation. One advantage of having an evaluation would be the identification of a possible reason for the issues the student has, thus enabling the school district to begin the process of accommodating specific needs.

    Some students and parents may resist having an evaluation because of concerns that a student will be stigmatized by potential results. If a parent or a student is resistant to consenting, examining the reason for the resistance may provide the attorney with insight as to the best way to proceed.

    Individualized Education Plans

    Suppose, in the above scenario, that after the evaluation, the school notifies your client that the testing showed the child has a severe learning disability, and the school requests that your client attend a meeting to discuss creating an individualized education plan (IEP). To be eligible for an IEP, a child must have one or more of the disabilities enumerated in the IDEA and also must need special education so as to advance academically. The school’s evaluation reveals a need for special education based on the child’s specified learning disability.

    Your client calls you, upset by the test results, and concerned that her child is going to be removed from regular education classes. She expresses concern that he will suffer from self-esteem issues and will never get into a decent college if he spends his school years in a special education classroom.

    Another one of the six main components of the IDEA’s Part B requires schools to provide education and services for children with disabilities in the least restrictive environment possible. The IEP developed with parental input should address services the child needs and how they will be provided. In addition to the governance of the IDEA, Wis. Stat. chapter 115 provides that the IEP team, in its development of an educational plan for the child, “shall consider the strengths of the child, the concerns of the child’s parents for enhancing the education of their child, the results of the initial evaluation or most recent reevaluation of the child, and the academic, developmental and functional needs of the child.”

    Faith N. KohlerFaith N. Kohler, Marquette 1997, is a federal agent with the U.S. Postal Inspection Service in Milwaukee. Her primary areas of investigation are violent crimes and financial investigations. Research assistance provided by Lucy Kelly, Milwaukee Legal Resource Center.

    As such, you should advise the client to actively participate as part of the IEP team, which would convene, review the evaluation results and other data, and develop a proposed plan for the parent to consent to. IEP team members can include teachers, principals, school psychologists or counselors and any service providers such as speech pathologists that the school deems necessary to the development of an appropriate plan for the child.

    According to Jennifer Mims-Howell, director of specialized services for Milwaukee Public Schools (MPS), and Tina Flood, MPS chief academic officer, the input of IEP team members, including parents, can help keep the focus on providing services that will enhance student outcomes. MPS statistics show that in the 2013-14 school year, 20.5 percent of MPS students had an IEP, and Mims-Howell says that the district has a variety of educational opportunities to meet students’ needs.

    Although available services and resources may vary depending on the size and location of school districts, your client has the right to participate in the IEP process, offer input, and ultimately, to even decline services on behalf of her child if she so chooses. Due process allows her to challenge the school district if she believes an IEP is not appropriate for her child.

    Resolving Disagreements Concerning Appropriate Educational Services

    The provision of appropriate services is an area in which due-process issues might arise, according to Monica Murphy, an attorney with Disability Rights Wisconsin. Murphy stated that sometimes parents and school districts disagree as to what constitutes a free, appropriate public education.

    Another area in which Murphy sees parents and schools in dispute is defining the least restrictive environment for the child. This can stem from incidents in which parents believe schools have violated their children’s rights through inappropriate use of seclusion and restraint.

    By declining the Individual Education Plan, the parent is waiving the child’s right to services.

    Suppose that instead of a learning disability, your client’s child was found to have autism spectrum disorder and was having outbursts of temper in the classroom. Murphy has seen situations in which children with disabilities have been severely restricted or kept out of school entirely. She stated that services can vary between school districts, and that to effectively meet students’ needs, districts should offer a continuum of services.

    While Wisconsin does not require precomplaint mediation, Murphy stated that mediation is often helpful in resolving special education disputes. The Wisconsin Special Education Mediation System’s Web page shows data indicating that between August 1998 and June 2011, mediation resulted in agreements that resolved 87 percent of its cases.

    Vicki Davis, who practices with Pledl and Cohn, Milwaukee, suggests that to better assist clients in resolving educational disputes, attorneys should become familiar with the types of testing provided by school districts. These include tests for autism spectrum disorders and behavioral and emotional disabilities. She added that familiarity with testing and what the tests show helps lawyers understand what is going on with a child whose educational issues are in dispute. Attorneys should be familiar with the school’s disciplinary system for dealing with disputes involving children with behavioral disabilities. According to Davis, attorneys should focus on the needs of the child when seeking dispute resolution.

    Children with Disabilities Who Do Not Qualify for Special Education Services

    Suppose that instead of a severe learning disability or autism spectrum disorder, your client’s child has a disease that requires him to take medication every day. Although the disease is controlled, the medication causes the child excessive drowsiness while he is in morning classes. Or perhaps he has dyslexia, not severe enough to warrant special education services but limiting enough that he reads more slowly and takes more time to write out assignments.

    Section 504 of the Rehabilitation Act of 1973 covers children with disabilities who do not require special education but need reasonable accommodations to ensure equal access to educational opportunities. A “504 Plan” is intended to accommodate students who do not qualify for special education services but have a disability that “substantially limits one or more major life activity.” The spectrum defining major life activity is broad and includes eating, sleeping, learning, and communicating with other people. Accommodations depend not on the diagnosis but on the student’s specific limitations. Generally students with disabilities who are covered under the IDEA would be covered by section 504 as well. Chapter 115 of the Wisconsin Statutes and chapter PI 11 of the Wisconsin Administrative Code establish guidelines for the education of children with disabilities. While OSERS and its administration of the IDEA are directly linked to funding of state educational systems, section 504 is related to civil rights and defines a disability more broadly. Reasonable accommodations for your client’s child might be allowing the child to have a study hall for his first class and providing him with extra time to complete assignments and tests.

    IEPs Versus 504 Plans

    Development of a 504 plan typically is less structured than the IEP process. Schools make accommodations for a disability rather than provide services, although in some situations 504-qualified students are also eligible for related services such as nursing or transportation. 504 plans are not federally funded, and are not intended to replace IEPs, notes Andy Woyte, who facilitates 504 plans for MPS. Parents need to know that the IEP is the district’s proposed customized blueprint for providing a free and appropriate public education in the least restrictive environment for their child. By declining the IEP, the parent is waiving the child’s right to those services. A child with an identified disability will be covered by the antidiscrimination protections of section 504 but would not in this scenario be eligible for the specific services identified in the IEP.

    Parents might also want to consider that by asking their child’s school district to provide services or supports through a 504 plan that they were eligible for through an IEP, they could be in effect unnecessarily depleting the resources of the district and local municipality by blocking access to federal resources for needed services. The net effect ultimately is that a district might be less able to provide the levels of programming and services that all parents would like to see their children have access to.


    Participating in a discussion with the child’s school enables a collaborative approach to identifying a child’s needs and a school district’s resources. Woyte echoes Pledl’s suggestion to start a discussion with schools that opens with an information gathering or conciliatory approach rather thanwith an adversarial posture. He notes that overall, for parents, advocates, and schools alike, the goal should be “the best outcomes for kids.”

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