ADA is 26 Years Old

On July 26, 1990, The Americans With Disabilities Act was signed into law.  The Act prohibits discrimination against people with disabilities in employment, public accommodations (including schools) and in state and local government services.

Here is the post honoring ADA's birthday at the CEC. Here is a link to a guest post by Sen Tom Harkin on Disability.gov. Here Disability Scoop reports on President Obama's observation that the ADA fight is not over.

In honor of the twenty-sixth anniversary of the ADA, here are some fun facts from our friends at the Census Bureau:

Population Distribution

56.7 million

Number of people in the United States in 2010 with a disability, according to the Survey of Income and Program Participation

. People with disabilities represented 19 percent of the civilian noninstitutionalized population. People with a disability have a physical or mental impairment that affects one or more major life activities, such as walking, bathing, dressing, eating, preparing meals, going outside the home or doing housework. A disability can occur at birth or at any point in a person’s life. Source: Americans with Disabilities: 2010 <http://www.census.gov/prod/2012pubs/p70-131.pdf

>

15.7 million

According to data collected from the American Community Survey

 from 2008 to 2012, the number of people 65 and older — 39 percent of the population in this age group — with at least one disability. Of this group, two-thirds had difficulty in walking or climbing. The second-most cited disability was difficulty with independent living, such as visiting a doctor’s office or shopping. Source: Older Americans With a Disability: 2008-2012

20.2%

Percent of the civilian noninstitutionalized population in West Virginia in 2013 with a disability — the highest rate of any state in the nation. Utah, at 9.5 percent, had the lowest rate. Source: 2013 American Community Survey, Table GCT1810 <http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_13_1YR_GCT1810.US01PR&prodType=table

>

31.7%

Percent of the civilian noninstitutionalized population in Pike County, Ky., in 2013 with a disability — the highest rate in the nation among counties with populations of 65,000 or more (although not statistically different from the rate for Walker County, Ala., which was 29.4 percent). Loudoun County, Va., at 5.5 percent, had among the lowest rates. Source: 2013 American Community Survey, Table GCT1810 <http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_13_1YR_GCT1810.US05PR&prodType=table

>

22.4%

Percent of the civilian noninstitutionalized population in Merced, Calif., in 2013 with a disability — among the highest rates in the nation among places with populations of 65,000 or more. Johns Creek, Ga., at 4.0 percent, had among the lowest rates. A place is a city, town, village or borough, either legally incorporated or not. (The rate for Merced is not statistically different from that for West Virginia.) Source: 2013 American Community Survey, Table GCT1810 <http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_13_1YR_GCT1810.US13PR&prodType=table

>

Services for those with Disabilities

2,794

The number of business establishments providing special needs transportation in 2012, up 19 percent from 2,347 in 2007. Such businesses may use specially equipped vehicles to provide passenger transportation. These businesses employed 62,221 people in 2012 and generated revenues of $3.6 billion. Employment was up 25.3 percent and revenues increased 31.5 percent since 2007. Source: 2012 and 2007 Economic Census Industry Series (NAICS 485991

) <http://factfinder.census.gov/bkmk/table/1.0/en/ECN/2012_US/48I2//naics~485991

>

14,042

The number of business establishments that provided pet care (except veterinary services) in 2012. These businesses generated revenues of $3.5 billion. Among these businesses are those that train assistance dogs. Source: 2012 Economic Census Industry Series (NAICS 812910

) <http://factfinder.census.gov/bkmk/table/1.0/en/ECN/2012_US/81I2//naics~812910

>

25,899

Number of business establishments providing services for the elderly and people with disabilities in 2012. These businesses employed 911,331 workers and generated $34.4 billion in revenues. In 2007, there were 20,433 such establishments, employing 621,545 and producing $25.3 billion in revenues.These establishments provide for the welfare of these individuals in such areas as day care, nonmedical home care or homemaker services, social activities, group support and companionship.Source: 2012 and 2007 Economic Census Industry Series (NAICS 624120

) <http://factfinder.census.gov/bkmk/table/1.0/en/ECN/2012_US/62I2//naics~624120

>

7,834

Business establishments providing vocational rehabilitation services in 2012; these businesses employed 311,798 people and generated revenues of $12.5 billion. In 2007, there were 7,631 such establishments, employing 303,713 people and producing revenues of $11.5 billion. These businesses provide job counseling, job training and work experience to people with disabilities.Source: 2012 and 2007 Economic Census Industry Series (NAICS 624310

) <http://factfinder.census.gov/bkmk/table/1.0/en/ECN/2012_US/62I2//naics~624310

>

2,338

Business establishments providing translation and interpretation services in 2012; these businesses employed 20,248 people and generated revenues of $3.9 billion. In 2007, there were 1,975 such establishments, employing 14,546 people and producing revenues of $1.9 billion. Among these businesses are those that provide sign language services. Source: 2012 Economic Census Industry Series (NAICS 541930

) <http://factfinder.census.gov/bkmk/table/1.0/en/ECN/2012_US/54I2//naics~541930

>

3,594

The number of business establishments providing home health equipment rental in 2012, down  4.5 percent from 3,762 in 2007. Such businesses rent home-type health and invalid equipment, such as wheelchairs, hospital beds, oxygen tanks, etc. These businesses employed 33,899 people in 2012 and generated revenues of $5.4 billion. Employment was up 2.7 percent while revenues decreased 8.0 percent since 2007. Source: 2012 and 2007 Economic Census Industry Series (NAICS 532291

) <http://factfinder.census.gov/bkmk/table/1.0/en/ECN/2012_US/53I2//naics~532291

>

Specific Disabilities

Note: All the data in this section come from Americans with Disabilities: 2010

, which contains data from the Survey of Income and Program Participation

.

·         7.6 million: Number of people 15 and older in 2010 who had a hearing impairment. Among people 65 and older, 4 million had hearing impairments.

·         8.1 million: Number of people 15 and older in 2010 with a vision impairment.

·         30.6 million: Number of people 15 and older in 2010 who had movement impairment, such as walking or climbing stairs.

·         3.6 million: Number of people 15 and older in 2010 who used a wheelchair. This compares with 11.6 million people who used canes, crutches or walkers.

·         2.4 million: Number of people 15 and older in 2010 who had Alzheimer’s disease, senility or any form of neurocognitive disorders.

·         12.0 million: Number of people 15 and older in 2010 who required the assistance of others in order to perform one or more basic or instrumental activities of daily living, such as bathing, dressing, doing housework and preparing meals.

Older People with a Disability

Note: The source for the data in this section is Older Americans With a Disability: 2008-2012

, a report which uses data collected form 2008 to 2012 during the American Community Survey.

25.4%

Among the population 65 and older with a disability, the percentage who were age 85 and older, according to the 2008-2012 American Community Survey.

More than One-Third

The proportion of people 85 and older with a disability who lived alone, compared with one-fourth of those age 65 to 74, according to the 2008-2012 American Community Survey.

54.4%

Percentage of the older population who had not graduated from high school and had a disability, twice the rate of those with a bachelor’s degree or higher (26.0 percent), according to the 2008-2012 American Community Survey.

12.6%

Percentage of the older Americans living in a household with a disability living in poverty, compared with 7.2 percent of older household population without a disability, according to the 2008-2012 American Community Survey.

Earnings

$20,885

Median earnings in the past 12 months for people with a disability. This is 68 percent of the median earnings, $30,928, for those without a disability. (Both figures pertain to the civilian, noninstitutionalized population 16 years and older, with earnings in the past 12 months.) Source: 2013 American Community Survey, Table B18140 <http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_13_1YR_B18140&prodType=table

>

Mobility

Note: The source for the data in this section is Desire to Move and Residential Mobility: 2010-2011

, a report which uses data from the Survey of Income and Program Participation

.

12.5%

Percentage of householders with a disability who desired to move to another residence, higher than the corresponding figure of 8.2 percent for those without a disability. Those with mental disabilities were the most likely to desire to move (20.6 percent).

17.3%

Percentage of householders with a disability who desired to move to another residence and actually did so over a one-year period.

9.3%

Percentage of all householders with a disability who moved to another residence over a one-year period.

Weekly Question!

As we run our: an Introduction To Special Education Law, what do you think are the easiest ways for a school district or its staff to get into special ed legal trouble?

Special Education Law 101 - Part XIV #ExpensesAttorney'sFees

This is another in our ongoing series on the basics of special education law.  These posts are meant to be an introduction for those new to the field and a refresher for the seasoned veterans.

Attorney's Fees

A prevailing parent can generally get their attorney's fees from a court. IDEA §615(i)(1)(3).  They are not awarded by hearing officers but are awarded by the court.  Since 2004, a prevailing school district may get attorney's fees from a parent or parent's attorney if the case was frivolous or filed for improper purposes. IDEA §615(i)(1)(3)(b)(ii)and(iii).

Expenses-Expert witness fees

                             In Arlington Cent. Sch. Dist Bd. of Educ v. Murphy   540 U.S. 291, 126 S.Ct. 2455, 45 IDELR 267 (6/16/06) the Supreme Court ruled that a parent who prevails in an IDEA case is not entitled to recover expert witness fees under the Act’s provision allowing recovery of reasonable attorney’s fees and costs. The parents cited the legislative history of the Act- including the joint statement of the House/Senate Conference Committee which stated that “The conferees intend the term ‘attorney’s fees as part of the costs’ to include reasonable expenses and fees of expert witnesses...”  The 6-3 majority of the Court, however, rejected the parents’ argument, holding that “costs” is a legal term of art which does not generally encompass expert witness fees.  BecauseCongress used the legal term of art “costs,” rather than “expenses,” the Court found that there is no need to review the legislative history.  Thus the Court held that a prevailing parent in an IDEA case is not entitled to be reimbursed for expert witness fess.

Sometimes My Job Is Pretty Cool

Weekly Question!

As we run our: an Introduction To Special Education Law, what do you think are the easiest ways for a school district or its staff to get into special ed legal trouble?

Only 19 States Meet Requirements For IDEA Part B (ages 3 to 21) #

More than half of the states have failed to meet their obligations under the special education law. A report by the U S Department of Education finds that only nineteen states meet requirements for compliance with IDEA Part B. You can read the Department of Education statement on determination letters to the states here.

Here is the report on the Disability Scoop blog.

Here is a list of states and the federal government's conclusion regarding their compliance with IDEA:

IDEA PART B DETERMINATIONS: Following is a list of each State’s performance in meeting the requirements of IDEA Part B, which serves students with disabilities, ages 3 through 21: 

 MEETS REQUIREMENTS Connecticut, Indiana, Iowa, Kansas, Kentucky, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, Oklahoma, Pennsylvania, Republic of Palau, Republic of the Marshall Islands, Rhode Island, Vermont, Virginia, Wisconsin, Wyoming 

 NEEDS ASSISTANCE (one year) Delaware, Federated States of Micronesia, Georgia, Ohio, Virgin Islands 

 NEEDS ASSISTANCE (two or more consecutive years) Alabama, Alaska, American Samoa, Arkansas, Arizona, California, Colorado, Commonwealth of the Northern Mariana Islands, Florida, Guam, Hawaii, Idaho, Illinois, Louisiana, Maine, Michigan, Mississippi, Montana, Nevada, New Mexico, New York, North Carolina, North Dakota, Oregon, Puerto Rico, South Carolina, South Dakota, Tennessee, Utah, Washington, West Virginia 

 NEEDS INTERVENTION (two consecutive years) Texas 

 NEEDS INTERVENTION (four consecutive years) Bureau of Indian Education 

 NEEDS INTERVENTION (nine consecutive years) District of Columbia 

Weekly Question!

As we run our: an Introduction To Special Education Law, what do you think are the easiest ways for a school district or its staff to get into special ed legal trouble?

Special Education Law 101 - Part XIII #Legal Representation

This is another post in our ongoing series on the basics of special education law.  Please let us know how you are enjoying this series.  We feel that this is a good introduction for newbies and a good refresher for seasoned pros.  

The federal regulations implementing IDEA provide that parties to due process hearings have a right to be accompanied by legal counsel and by individuals with special knowledge or training with respect to the problems of kids with disabilities "...except that whether parties have the right to be represented by non-attorneys at due process hearings is determined under State law." 34 C.F.R. §300.512.  This regulation was changed fairly recently to reverse a previous long standing policy of the department of Education that had permitted non-attorney advocates to fully represent parents in the past. To be clear a parent may still have an advocate present to advise her, but the advocate may not be able to represent the parent depending upon state law.

There is one US Supreme Court decision concerning legal representation: 

In Winkelman by Winkelman v. Parma City Sch. Dist  550 U.S. 516, 127 S.Ct 1994,  47 IDELR 281 (5/21/2007) the Supreme Court ruled by a 7 to 2 margin that the IDEA grants independent enforceable rights to parents as well as students.  Accordingly, the court concluded that parents may pursue their own IDEA appeals in federal court without being represented by an attorney.  NOTE: This decision applies only to federal court appeals of due process decisions.  All parties agreed that a parent may appear at a due process hearing without counsel. Also many courts have held that a parent must retain legal counsel to assert their child's rights in federal court.

Weekly Question!

As we run our: an Introduction To Special Education Law, what do you think are the easiest ways for a school district or its staff to get into special ed legal trouble?

Happy Independence Day #independence day

Happy Independence Day!

We have had many requests to restate a post from our archives that expresses our feelings on this holiday. Here goes:

 The Fourth of July is a big holiday for our country, and these days we really need a big holiday. I have always loved this day; what other country believes in an inalienable right to pursue happiness! Independence Day is also a time to reflect on the concept of independence. Independence Day is also a time to reflect on the concept of independence. 

For people with disabilities, independence is an important goal. Congress has stated that encouraging independent living for people with disabilities is the policy of the United States government. IDEA, Section 601(c). Indeed, one of the purposes of special education is to prepare children with disabilities for independent living. IDEA, Section 601(d)(1)(A). 

Before passage of the EHA, the predecessor of the IDEA, in 1975, education of children with disabilities, who were then called "handicapped," was iffy at best. According to the legislative history of the EHA, which is quoted in the seminal Rowley decision by the Supreme Court, millions of children with disabilities were then either totally excluded from school or were warehoused until they were old enough to drop out. Bd. of Education v. Rowley, 458 U.S. 176, 191, 103 LRP 31848 (1982). At the time, it was estimated that of the eight million children who required special education, only about 3.9 million were receiving an appropriate education. Bd. of Education v. Rowley, 458 U.S. 176, 191, 103 LRP 31848 (1982). 

These numbers are shocking. 1975 was not long ago. Yet we have made real progress since then. Special education may have its detractors, but it is now widely accepted. Very few children with disabilities are now excluded from school. Some still do not receive an appropriate education, but there are now remedies available when that happens. We have come a long way!

I realize that we are not finished. I do not advocate the display of a banner reading "mission accomplished." But as we look forward on this Independence Day to how we can do a better job of educating children with disabilities and preparing them to live independently, let us also look back for a moment and congratulate ourselves on the excellent progress we have made in what in public policy terms is truly a very short time. 

Happy Independence Day.

Special Education Law 101 - Part XII #stay put

This is another post in our ongoing series on the basics of special education law.  Please let us know how you are enjoying this series.  We feel that this is a good introduction for newbies and a good refresher for seasoned pros.  

Today we talk about the stay put provision- one of the basic concepts in this area of the law, yet also one of the most misunderstood. It only applies when a due process hearing is pending.

Stay Put

              IDEA § 615 (j) provides that (except in certain discipline cases), during the pendency of any due process or court proceedings pursuant to this section, unless the parties agree otherwise, the student ‘…shall remain in the then-current educational placement of the child…”  This is commonly referred to as the stay put provision.  The stay put placement is the last agreed upon IEP, unless the parties agree otherwise. See 34 C.F.R. § 300.518.

              The Supreme Court interpreted and endorsed the stay put decision in the case ofHonig v. Doe 484 U.S. 305, 108 S.Ct. 594, 559 IDELR 231 (1988).  In that decision, the Supreme Court, noting the Congressional intent in preventing the exclusion of disabled students and reiterating the importance of the procedural safeguards under the IDEA, refused to read a dangerousness exception into the stay put provision.  Honig v. Doe, supra.  (NOTE; please note that IDEA’04 now has provisions pertaining to danger/injury.)

              John M. by Christine M & Michael M v. Bd of Educ of the Evanston Township HS Dist No. 202 502 F.3d 708, 48 IDELR 177 (7th Cir. 9/17/7) The Seventh Circuit noted that determining “then current educational placement’ is an inexact science requiring a fact driven approach.  Respect for the purpose of the stay put provision requires focus upon the child’s educational needs so the educational status quo for a “growing, learning, young person” often makes rigid adherence to a particular educational methodology an impossibility.  Stay put, therefore, requires flexibility in interpreting the educational placement per the last agreed upon IEP and flexibility concerning the child’s needs.

                 In other recent Circuit Court decisions: KD by CL v. Dept of Educ, State of Hawaii 58 IDELR 2 (9th Cir 12/27/11) Ninth Circuit held that the language of a settlement agreement prevented a private school from being the “as agreed” stay put placement.  The agreement provided that the LEA would pay for a private school program for a specific period of time rather than merely agreeing to place the child in a private school. Therefore, LEA had no obligation to pay for the private school after the period of time designated in the agreement lapsed; and in Anchorage Sch Dist v. MP by MP 689 F.3d 1047, 59 IDELR 91 (9th Cir 7/19/12) Ninth Circuit ruled that the school district denied FAPE by failing to conduct IEPT meetings at least once per year despite a number of dphs and complaints pending by the parents.  Stay put did apply, but stay put only affects the educational program in general, and the IEPT could have discussed other items.

                       MR & JR ex rel ER v. Ridley Sch Dist 744 F.3d 112, 62 IDELR 251 (3d Cir 2/20/14)  Third Circuit held that stay put applies through the final resolution of the case. The Third Circuit held that stay put does not end with a district court decision adverse to the parents, but continues through the appeals process. Thus where an IDEA ho approves a unilateral placement by a parent, stay put takes effect and remains until the appeals are over. Reversal by a district court of a ho decision that the parent’s appropriate placement is necessary to meet the child’s needs does not release the school district’s obligation to pay until the appeal is concluded because stay put accrues when the dispute arises- not when the parent’s request reimbursement. The premise of IDEA is that parents and schools working together is the ideal way to reach the statutory goal of FAPE for every child, but Congress recognized that the collaborative process may break down. Stay put maintains the educational status quo. To determine the then current educational placement, courts look at the IEP actually functioning when stay put is invoked. Parents do not have to request stay put or reimbursement for stay put to apply(NOTE: The U S Supreme Court flirted with the notion of reviewing this case and requested a brief from the Solicitor General, but recently decided not to decide this one.) See our post on the Supreme Court denial of certiorari here.

 

Achievement Gaps For Special Ed Kids: Report by the National Center For Education Outcomes #achievement gap

As most of you would assume, there continues to be an achievement gap between children with IEPs and others. The National Center for Educational Outcomes recently issued a report on the achievement gaps for kids on IEPs as compared to others and for  ELL kids as compared to others. Although there are problems with the way that the data is collected by the various states, the report is an important read.

Among the conclusions for the 2012-2013 school year is the following:

The achievement gaps between students with and without IEPs in reading and mathematics continue. This report presented average achievement gaps for elementary, middle school, and high school levels. As in past reports, there were smaller overall gaps in elementary reading and mathematics than at the middle school and high school levels. At the middle school and high school levels, for reading and mathematics, the average gaps across states spanned from 36 percentage points to 41 percentage points for 2012-13. Because states vary in the methods they use to publicly report data, this influences the achievement gaps reported. As would be expected, those states with “all students” as the comparison group tended to show smaller gaps compared to states using students without IEPs” as the comparison group. Other factors that influence the size of achievement gaps include whether a state has an AA-MAS, the percentage of students taking an AA-MAS in lieu of the general assessment, and how these data are reported. 

You can read the entire report here.  Other valuable information is available on the NCEO website here.