Parents with Disabilities - LRP 2013

AS18: Accommodations for Parents With Disabilities Karen Haase Tuesday, April 30 – 1:30 p.m. – 2:45 a.m.

Wednesday, May 1 – 9:45 a.m. – 11:00 a.m.

Statutory & Regulatory Background

IDEA • Schools must ensure that parents “are afforded the opportunity to participate.” 34 C.F.R. § 300.322(a) • School districts “must take whatever action is necessary to ensure that the parent understands the proceedings ... including arranging for an interpreter for parents with deafness.” 34 C.F.R. § 300.322(e)

Section 504 • “No otherwise qualified individual with handicaps ... shall, solely by reason of her or his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination.”

– Facilities – “Qualified handicapped persons” with respect to “other services” if eligible

ADA • Public entity is required to ensure that communications with individuals with disabilities are as effective as communications with others.

• Title II of the ADAAA prohibits disability discrimination by all public entities – Facilities – Service dogs

Physical Access • Two legal standards, depending on whether the facilities are “existing facilities” or “new construction” – Under Section 504, existing facilities are facilities constructed prior to June 3, 1977 – Under Title II, existing facilities are facilities constructed prior to January 26, 1992 • Must operate programs so that they are accessible when “viewed in their entirety”

Case Law

Tacoma (WA) Sch. Dist. No. 10, 108 LRP 1045 (OCR 03/21/07)

• A parent with mobility impairment • Neighborhood school was built in 1901; not accessible • Parent complained repeatedly; “constant conflict" • Parent requested student accessible building for first grade • Requested transportation; school denied

Tacoma (WA) Sch. Dist. No. 10, 108 LRP 1045 (OCR 03/21/07)

• OCR: – The district did not provide accessible programs during kindergarten year – Transfer was acceptable method for providing accessibility – Failure to initially provide transportation was not a violation (initially) – Failure to publish the name, title, or contact info of the disability coordinator was a violation

Talbot County (PA) Pub. Schs., 45 IDELR 45 (OCR 2005)

• Parent with severe hearing loss • Asked district to use CART during IEP meetings • District refused and instead instructed staff to accommodate in other ways • The parent showed that during some of the meetings accommodations were not used

Talbot County (PA) Pub. Schs., 45 IDELR 45 (OCR 2005)

• OCR found violation – Parent was unable to participate in her son’s meeting effectively – District was not required to adopt the parent’s preferred methodology – District ordered to provide a means of communication that would allow the parent to participate in the meeting effectively

Los Angeles Unified Sch. Dist., 107 LRP 2570 (SEA CA 12/21/06)

• Non‐English‐speaking parent argued that the school district denied her meaningful participation in her child’s IEP because it failed to provide a state “certified” interpreter • ALJ: no requirement that a state “certified” interpreter is required • Interpreter can be staff member

Colo. Sch. for the Deaf and the Blind, 113 LRP 2971 (SEA CO 12/05/12)

• Staff fluent in ASL; parents are not • During an IEP meeting, staff members held conversations in ASL • Parents claimed this excluded them from meaningful participation in the development of student’s IEP

Colo. Sch. for the Deaf and the Blind, 113 LRP 2971 (SEA CO 12/05/12)

• State complaints officer found as a matter of fact that the staff did have a brief exchange in ASL at one of student’s IEP meetings – The exchange related to a snack fee that the parents had not paid, and as such, was unrelated to any substantive discussion of the student’s IEP.

Colo. Sch. for the Deaf and the Blind, 113 LRP 2971 (SEA CO 12/05/12)

• The complaints officer wrote: “Regardless of the content of the exchange, communicating in ASL at an IEP meeting when Parents are not proficient in ASL excludes Parents from that discussion. In fact, [Grade] Teacher chose to communicate in ASL because she was unsure of whether she should bring the matter up at the IEP meeting and wanted to check with CSDB Special Education Director before doing so.”

Colo. Sch. for the Deaf and the Blind, 113 LRP 2971 (SEA CO 12/05/12)

• Concluded that this “brief and isolated incident ... did not prevent Parents from meaningfully participating in the development of Student’s IEP”

Recording IEP Meetings

Regulations • “An SEA ... has the option to require, prohibit, limit, or otherwise regulate the use of recording devices at IEP meetings.”

• Policy “must provide for exceptions if they are necessary to ensure that the parent understands the IEP or the IEP process or to implement other parental rights guaranteed under Part B.”

Kaskaskia (IL) Special Educ. Dist. 801, 16 IDELR 132 (OCR 1989)

• Parent alleged his learning disability prevented him from taking notes • Staff members objected to being taped • District offered to provide an unbiased note‐taker who would provide the parent with written, legible notes at the conclusion of the IEP meeting, at the district’s expense

Kaskaskia (IL) Special Educ. Dist. 801, 16 IDELR 132 (OCR 1989)

• OCR: – Tape recording was not the only means of assisting the parent with a disability – District’s offer of note‐taker was a good faith effort to meet the parent’s needs – District could refuse to allow the parent to tape record

Belvidere Cmty. Sch. Dist. No. 100, 112 LRP 12955 (SEA IL 02/27/12)

• Mother has ADHD and dyslexia, asked to tape IEP meeting • District offered to retain a third‐party service organization – Could advocate – Could answer questions – Could take notes • Parents refused; filed due process

Belvidere Cmty. Sch. Dist. No. 100, 112 LRP 12955 (SEA IL 02/27/12)

• Hearing officer: – District’s offer constituted a “reasonable accommodation” – District is not required to allow tape recording absent mutual agreement of both the parents and the individual IEP team members

E.H. v. Tirozzi, 16 IDELR 787 (D. Conn. 1990)

• Mother’s native language was Danish • Student’s teacher refused to be tape recorded, claiming that tape recording “alienates people and creates tension” • State hearing officer ruled in favor of school; parents appealed to District Court

E.H. v. Tirozzi, 16 IDELR 787 (D. Conn. 1990)

• District Court: “Without a clear understanding of what that plan entails, E.H. cannot effectively evaluate the program to determine whether she believes it to be in her child’s best interest. Accordingly, she cannot complain, in any meaningful way, with respect to any matter relating to the IEP, which is her right.”

E.H. v. Tirozzi, 16 IDELR 787 (D. Conn. 1990)

• District Court rejected the school district’s argument that the special education teacher had a privacy interest in not being tape recorded – Expressed skepticism if there was a privacy right to not be tape recorded – If there was, teacher’s expectation of privacy was diminished in light of her position and the context of an IEP meeting

V.W v. Favolise, 16 IDELR 1070 (D. Conn. 1990)

• Basis for demand to tape: – Injury to mother’s hand prevented note‐taking – Dad had to work

• School refused • Hearing officer ruled for school; parents appealed

V.W v. Favolise, 16 IDELR 1070 (D. Conn. 1990)

• District Court: “Plaintiffs need not demonstrate some wellspring for their right to tape record meetings, particularly where, as here, they are given a statutory right to attend and participate in those meetings. It would seem that such a right is, and should be, innate.”

V.W v. Favolise, 16 IDELR 1070 (D. Conn. 1990)

• Special ed director testified that if taping were allowed, teachers would predetermine and parents would be “left out of the collaborative ‘loop’” • If team “resort[s] to illegal ‘consensus‐building,’” parents could go back to due process.

My Advice on Taping • Assume every conversation is being taped (check state wiretap laws) • Always be the most reasonable people in the room • Review district policy.

• If taping prohibited, be ready to accommodate parental disabilities

Access to IEP Documents

Letter to Boswell, 49 IDELR 196 (OSEP 2007)

• “IDEA does not specifically require school districts to provide written translations of IEP documents.”

• Documents translated into a parent’s native language could help a district to prove parental consent.

New Haven Unified Sch. Dist., 110 LRP 44200 (SEA CA 07/14/10)

• The parents’ primary language was Spanish – One member of each IEP team was able to interpret from English to Spanish – School did not provide the mother with copies of the IEP documents in Spanish

• Mother filed for due process, claiming that she was denied meaningful participation

New Haven Unified Sch. Dist., 110 LRP 44200 (SEA CA 07/14/10)

• ALJ: – District’s failure to translate documents resulted in denial of meaningful participation.

– Since the mother could not understand the documents, she was deprived of timely information in her native language and thereby, deprived of meaningful participation in the IEP process. *California has specific statute

Sidney Pub. Schs., 110 LRP 19430 (SEA NE 01/23/10)

• Mother had a visual impairment which prevented her from reading text which was not in at least 36 point bold font • District: – Provided some documents in requested font – Other times read the documents aloud – Mailed forms to mother’s scribe – Refused request for large‐print textbooks and other homework materials

Sidney Pub. Schs., 110 LRP 19430 (SEA NE 01/23/10)

• Mother filed due process claiming inability to meaningfully participate • Hearing officer: – No particular format required – Mailing regular print forms to address of mother’s reader was permissible – Non‐disabled parents were not expected to read students’ textbooks or other homework papers, therefore no discrimination

School Activities

Rothschild v. Grottenthaler, 16 IDELR 1020 (2d Cir. 1990)

• Deaf parents asked for ASL interpreter at school activities and meetings.

• School: parents not qualified because “Section 504 was designed to protect children, not their parents.”

• District Court: school pays for school‐initiated activities; parents pay for extracurricular.

Rothschild v. Grottenthaler, 16 IDELR 1020 (2d Cir. 1990)

• 2d Cir.: Ruled for parents in entirety – Parents qualified to participate in any “Parent‐ oriented” activities incident to their children’s education that are offered by the school district.

– The fact that a particular institution is primarily engaged in the provision of one category of service does not exempt it from Regulation 104.3(k) in its provision of other services.

Rothschild v. Grottenthaler, 16 IDELR 1020 (2d Cir. 1990)

• 2d Cir.: (cont’d) – Parents “are not excluded from the protection of section 504 merely because they are parents and not school children.”

– Reversed District Court re: extra‐curriculars and graduation – school must pay for interpreter at all events and activities.

Mt. Diablo (CA) Unified Sch. Dist., 44 IDELR 261 (OCR 2005)

• Hearing impaired parents asked for interpreter so they could chaperone their child’s field trip.

• The district refused; policy was to provide interpreter services to parents only for “mandatory” activities.

• The parents filed a complaint with OCR.

Mt. Diablo (CA) Unified Sch. Dist., 44 IDELR 261 (OCR 2005)

• OCR: no violation – Must provide equal access “to communication or participation in programs that are intended to benefit them.”

– Field trips for benefit of students, not parents.

– Parents entitled to interpreter for graduation ceremonies, parent‐teacher conferences, etc.

– OCR cautioned that only providing interpreters for “mandatory” activities could violate 504.

Escondido (CA) Union Elem. Sch. Dist., 17 IDELR 767 (OCR 1991)

• Hearing impaired parent demanded licensed ASL interpreter at conferences.

• District provided teacher who was qualified but not licensed in ASL. • Parents cancelled parent/teacher conference, filed OCR complaint.

Escondido (CA) Union Elem. Sch. Dist., 17 IDELR 767 (OCR 1991)

• OCR: –Interpreter offered by the district was adequate.

–No obligation to provide “independent” or “licensed” interpreter.

Letter to National Holistic University (CA), 103 LRP 47165 (OCR 06/11/03)

• • • •

University refused to provide ASL interpreter at graduation.

University argued that it had no obligation to father.

Father paid for interpreter, filed OCR complaint.

University agreed to revise its policy and to pay the parent his costs for the interpreter.

Hillsboro (OR) Sch. Dist. 1J, 59 IDELR 82 (OCR 2012)

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Parent who used service dog tried to volunteer in kindergarten class.

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Principal asked: ‒ ‒ ‒

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Why she needed dog; what it did Proof of insurance Vaccination records and training certifications

Mother filed OCR complaint.

Hillsboro (OR) Sch. Dist. 1J, 59 IDELR 82 (OCR 2012)

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OCR: ‒ ‒

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Principal’s inquiries and requests violated both Title II and Section 504.

Other volunteers weren’t required to provide insurance information as they were covered by the district’s liability and workers’ compensation policies.

Ordered school to allow mom to volunteer with dog and without answering questions.

Hillsboro (OR) Sch. Dist. 1J, 59 IDELR 82 (OCR 2012)

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OCR (cont’d): ‒ ‒

‒

Referenced DOJ’s regs re: service animals Public entity may only ask if a service animal is required because of a disability and what work or task the animal has been trained to perform Cannot require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal

Lake-Lehman (PA) Sch. Dist., 20 IDELR 546 (OCR 1993)

• • •

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Hearing impaired parent wanted sign language interpreter at board meetings.

District refused to pay.

District: no interpreter unless the meeting involved the academic or disciplinary situation of student.

Parent planned to attend every board meeting until further notice.

Lake-Lehman (PA) Sch. Dist., 20 IDELR 546 (OCR 1993)

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OCR: ‒

District’s board meetings constitute “other services” as defined in 34 C.F.R. § 104.3(k)(4) ‒ Limiting interpreters to meetings involving academic or disciplinary situation of disabled person’s child was discriminatory ‒ Disabled entitled to equally effective access to meetings – understanding board, asking questions, and making comments

Practical Suggestions Be proactive regarding: ‒ Parents’ access to IEP meetings ‒ Parent/Teacher Conferences ‒ Public events (graduation, school play, concerts, etc.)

• Locate Disability Coordinator • Train building staff • Look reasonable •

Thank you!

Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase