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Posted by daisy madness
- February 07, 2014, 07:06:45 AMI sent a letter about that back in September. it was before i knew what a LOU was. i included the staff member name, date, and content of the conversation in my initial letter to the Superintendent asking for the bus aide. I gave a copy to OCR.
I haven't heard anything back from OCR yet about the school's response.
I haven't heard anything back from OCR yet about the school's response.
Posted by ajasfolks2
- February 06, 2014, 07:58:59 AMI'm stunned as to the school district's statement about why cannot transport Disabled/Spec Needs kids.
I'd send a "letter of understanding" to the school district on that one. State the date, approx time, and person who told you that and send it certified.
What is on their district website as to bus transportation? Sometimes you can find gems online.
I'd send a "letter of understanding" to the school district on that one. State the date, approx time, and person who told you that and send it certified.
What is on their district website as to bus transportation? Sometimes you can find gems online.
Posted by daisy madness
- February 04, 2014, 07:51:41 PMYelloww, it is a small, rural district. When I made my first phone call to the superintendent's office to ask about the situation, I was told by the staff member that they cannot transport children with disabilities because they do not have a "special bus." I so wish I had that in writing.
Ajas, thank you for rewording that question. I'll try it again that way.
TT, I will try my best to be sure to stick to regulations and not get side tracked.
OCR was calling the district today. She said she'd let me know their response. I never heard anything so I think the district probably said they'd get back to her. They'll probably drag their feet for a few weeks before responding. That seems to be their MO. Although it wouldn't be very smart for them to play games with OCR.
Ajas, thank you for rewording that question. I'll try it again that way.
TT, I will try my best to be sure to stick to regulations and not get side tracked.
OCR was calling the district today. She said she'd let me know their response. I never heard anything so I think the district probably said they'd get back to her. They'll probably drag their feet for a few weeks before responding. That seems to be their MO. Although it wouldn't be very smart for them to play games with OCR.
Posted by yelloww
- February 04, 2014, 12:26:52 PMTo add to TT's thoughts, it seems to me that if they transport one child with ANY sort of disability via some other sort of transportation other than the regular sized school bus (small bus, van, etc) to accommodate that child's disability, then they are clearly picking and choosing which disabilities they want to accommodate.
Do they have ANY children who ride a different bus?
Do they have ANY children who ride a different bus?
Posted by ajasfolks2
- February 04, 2014, 08:50:48 AMQuote from: daisy madness on February 03, 2014, 12:48:30 PM
I asked "Is it within OCR's scope to determine if it is discriminatory for the district to state that they refuse to administer epi in accordance with his emergency action plan should he experience anaphylaxis on the bus? Can the district pick and choose when they apply his emergency action plan and when they do not?" She gave me a wishy washy non-answer.
So, just a suggested small edit/rewrite to your questions of OCR as stated above:
Quote
"Why is it NOTIs itwithin OCR's scope to determine if it is discriminatory for the district to state that they refuse to administer epi in accordance with his emergency action plan should he experience anaphylaxis on the bus?
How can the district pick and choose when they apply his emergency action plan and when they do not?"
Just seems to put the ball even more in OCR's court to have a meaningful answer, KWIM?
Posted by twinturbo
- February 03, 2014, 12:56:53 PMI'd be a broken record that it's an effective, necessary related aid to benefit equally from a related service. See previous post about when does custody begin and when does it end. At the meeting to the school not necessarily to OCR. However, the burden of proof you have should ideally point to SOMEONE needs to be there to deal with administration. If the school does not want to have the driver trained then let's hear how they will demonstrate in loco parentis with regard to EAP.
I mean, this may not work but go down on record making the argument as close to the foundations of doctrines, law, regulations as much as possible. Treat this as a recorded interrogation going before a court later. The bus issue really is a controversial area.
Don't quote the next part but think of it this way: if you're arrested you're in custody and therefore your safety is the responsibility of the arresting agency from that moment. But with kids going to school we're wondering (we meaning the system) if there's a responsibility. Gee, ya think?
But you're there, you're the parent, this is your child, you know the specifics and what child needs for school. Good luck.
I'll go out on a limb here as long as you don't hold me to this. Just IMHO, not advice. Hold on to that question and keep asking it until you get clarification. I bet OCR is trying to stay within the rules knowing while they can't force a specific accommodation there really aren't too many options at this point that will satisfy FAPE. Option 1 bus driver. Option 2 any responsible adult... okay, who if not an aide?
I would change the question slightly, though. I would ask if the unaffected peers benefit from this related service to FAPE more than child with a disability. Therefore if that discrimination exists between the safety of unaffected (non-disabled peers) and the level of safety of child with hidden, episodic disability then that discrimination should be prohibited and elminiated by the use of an effective, necessary accommodation. That eliminating that discrimination in safety is not an over extension of obligation by the SD in delivering FAPE.
1. Logical structure outlining existence of discrimination (meaning non-disabled peers benefit more from same service than qualifying child), query OCR on agreement with the existence of said discrimination.
2. If agreed that discrimination exists propose accommodation.
3. If accommodation is both effective and necessary then why not use accommodation.
Some rough notes I made from OCR's letter of clarification on reasonable standard applied to K12. More for the clarification of what the SD's obligation is to deliver FAPE. I'd say the bus most closely resembles #5 in logical structure.
[spoiler]3. Adjustments may be substantial. Substantial does not equate unreasonable or not necessary (an unauthorized extension of obligation). It is only when they go beyond necessary to eliminate discrimination against an otherwise qualified individual does it become an extension (i.e. not reasonable, not necessary)
4. 504 compliance to deliver FAPE does not require any changes beyond necessary to eliminate discrimination
5. Where a school district is meeting needs of students w/o disabilities to a greater extent than students w/disabilities discrimination is occurring.
6. Even substantial modifications are not extensions of obligation to eliminate discrimination.
7. "reasonable" coincides with modifications that do not alter fundamental nature. It does not define the degree of modification.
8. Section 504 prohibits discrimination by removing barriers to existing programs-- it does not constitute affirmative action, there is no special selection conferring additional benefit to overcome disability. It merely requires adjustments, without pronouncement on degree of adjustment, necessary to eliminate discrimination. (See 5 above).[/spoiler]
I mean, this may not work but go down on record making the argument as close to the foundations of doctrines, law, regulations as much as possible. Treat this as a recorded interrogation going before a court later. The bus issue really is a controversial area.
Don't quote the next part but think of it this way: if you're arrested you're in custody and therefore your safety is the responsibility of the arresting agency from that moment. But with kids going to school we're wondering (we meaning the system) if there's a responsibility. Gee, ya think?
But you're there, you're the parent, this is your child, you know the specifics and what child needs for school. Good luck.
Quote from: daisy madness on February 03, 2014, 12:48:30 PM
I asked "Is it within OCR's scope to determine if it is discriminatory for the district to state that they refuse to administer epi in accordance with his emergency action plan should he experience anaphylaxis on the bus? Can the district pick and choose when they apply his emergency action plan and when they do not?" She gave me a wishy washy non-answer.
I'll go out on a limb here as long as you don't hold me to this. Just IMHO, not advice. Hold on to that question and keep asking it until you get clarification. I bet OCR is trying to stay within the rules knowing while they can't force a specific accommodation there really aren't too many options at this point that will satisfy FAPE. Option 1 bus driver. Option 2 any responsible adult... okay, who if not an aide?
I would change the question slightly, though. I would ask if the unaffected peers benefit from this related service to FAPE more than child with a disability. Therefore if that discrimination exists between the safety of unaffected (non-disabled peers) and the level of safety of child with hidden, episodic disability then that discrimination should be prohibited and elminiated by the use of an effective, necessary accommodation. That eliminating that discrimination in safety is not an over extension of obligation by the SD in delivering FAPE.
1. Logical structure outlining existence of discrimination (meaning non-disabled peers benefit more from same service than qualifying child), query OCR on agreement with the existence of said discrimination.
2. If agreed that discrimination exists propose accommodation.
3. If accommodation is both effective and necessary then why not use accommodation.
Some rough notes I made from OCR's letter of clarification on reasonable standard applied to K12. More for the clarification of what the SD's obligation is to deliver FAPE. I'd say the bus most closely resembles #5 in logical structure.
[spoiler]3. Adjustments may be substantial. Substantial does not equate unreasonable or not necessary (an unauthorized extension of obligation). It is only when they go beyond necessary to eliminate discrimination against an otherwise qualified individual does it become an extension (i.e. not reasonable, not necessary)
4. 504 compliance to deliver FAPE does not require any changes beyond necessary to eliminate discrimination
5. Where a school district is meeting needs of students w/o disabilities to a greater extent than students w/disabilities discrimination is occurring.
6. Even substantial modifications are not extensions of obligation to eliminate discrimination.
7. "reasonable" coincides with modifications that do not alter fundamental nature. It does not define the degree of modification.
8. Section 504 prohibits discrimination by removing barriers to existing programs-- it does not constitute affirmative action, there is no special selection conferring additional benefit to overcome disability. It merely requires adjustments, without pronouncement on degree of adjustment, necessary to eliminate discrimination. (See 5 above).[/spoiler]
Posted by daisy madness
- February 03, 2014, 12:48:30 PMQuote from: twinturbo on February 03, 2014, 12:34:08 PM
The way I play the game is sticking to the script I only repeat what's in the regs. Speaking of which use the search function here for "in loco parentis" a lot of the groundwork for that doctrine is laid out by some of the members here wrt to 504, epi, etc.
Also, the OCR attorney was very careful to repeatedly say that it is not within OCR's scope to force the district to make a specific accommodation. They will not require them to put an aide on his bus. I asked "Is it within OCR's scope to determine if it is discriminatory for the district to state that they refuse to administer epi in accordance with his emergency action plan should he experience anaphylaxis on the bus? Can the district pick and choose when they apply his emergency action plan and when they do not?" She gave me a wishy washy non-answer.
Posted by daisy madness
- February 03, 2014, 12:41:18 PMQuote from: CMdeux on February 01, 2014, 05:49:42 PM
One other caveat which is truly critical going into mediation--
find out WHO appoints the mediator and whether or not agreements reached there are binding.
OCR appoints the mediator. I believe the mediator is an employee of OCR. The OCR attorney who called me is also an OCR mediator, although she will not mediate this since it is her own case. If an agreement is reached, and the district does not abide by it, I can report it to OCR (although I'm not sure exactly what they would do). Also, she said that sometimes, a district will agree to mediation with the sole goal of scoping out the complainant's case with no intention of agreeing to anything. She said that the mediators are trained to look for that and shut it down immediately.
She said that most of the time the mediator will not physically come to the school but that I can go to OCR's office if I want to and physically sit with the mediator. I think that is what I will do. I do not wish to sit with the school district, unless I bring an attorney. I'm unsure on the finances of that at the moment. She said that school districts generally do have their attorney present.
And the car sales analogy is perfect. They did that for months.
I just received an email from OCR. She will be calling the district tomorrow to ask if they are willing to mediate. If so, she will put in the request with OCR for mediation. OCR supervisors then review my complaint. If they determine that this may be a "class" issue, they reject the mediation and go straight to investigation. If they believe this to be an issue particular to my child, they will proceed with the mediation. Mediation must take place within 3 weeks.
I know I'm preaching to the choir here, but this is different than the Voluntary Resolution Agreement that a district can enter into with OCR after they have formally begun an investigation.
Posted by twinturbo
- February 03, 2014, 12:34:08 PMThe way I play the game is sticking to the script I only repeat what's in the regs. Speaking of which use the search function here for "in loco parentis" a lot of the groundwork for that doctrine is laid out by some of the members here wrt to 504, epi, etc.
This next part I'm going to categorize as risky because it's more aggressive but if I found the process stalled by foot dragging I'd press hard and fast on when does custody begin for the SD and how is it NOT the moment child enters bus all the way through when child exits bus at the end of the day.
The bus is a related service, he is in custody (bad term I know habit from dealing with arrestees in custody), this is all FAPE. He needs a related aid in the form of a bus aide to benefit equally to peers from the related service=bus. It is an effective, necessary accommodation appropriate for this child.
This next part I'm going to categorize as risky because it's more aggressive but if I found the process stalled by foot dragging I'd press hard and fast on when does custody begin for the SD and how is it NOT the moment child enters bus all the way through when child exits bus at the end of the day.
The bus is a related service, he is in custody (bad term I know habit from dealing with arrestees in custody), this is all FAPE. He needs a related aid in the form of a bus aide to benefit equally to peers from the related service=bus. It is an effective, necessary accommodation appropriate for this child.
Posted by daisy madness
- February 03, 2014, 12:20:28 PMQuote from: twinturbo on January 31, 2014, 09:12:43 PM
Transportation by itself can be troublesome because it can be at times exempt from ADA. In this case transportation is a related service to FAPE and in order to benefit from that service as adequately as it is for non-disabled peers his 504 accommodation to have a responsible adult ready to administer epinephrine is a necessary and effective accommodation.
I'll be writing this down in my notes and bringing it to the meeting. This is exactly the point I'm getting at. But I don't think I find the words as well as you do.
Posted by CMdeux
- February 01, 2014, 05:49:42 PMOne other caveat which is truly critical going into mediation--
find out WHO appoints the mediator and whether or not agreements reached there are binding.
find out WHO appoints the mediator and whether or not agreements reached there are binding.
Posted by twinturbo
- February 01, 2014, 11:44:40 AMOne more thing before I go on holiday mode and forget.
Mediation cuts both ways. You know you're going into this as a compromise--that part we can check off as done. Now, the other side MUST come with the same good faith intention which must include a representative capable of making decisions.
Do not fall prey to false pretenses where the representative from the school side needs to "ask permission for that accommodation" or "need to consult [superiors]".
Beware the car sales strategy where you work with the sales agent that needs to "talk to the manager" before giving you anything solid.
I would be bold yet civil in two possible scenarios:
(1) SD lawyer shows up unannounced. Postpone, come back with your own.
(2) School representative is not empowered (or claims not to be) to make decisions, needs to 'consult others'. Postpone, say you came in good faith to mediate when the other side comes through with a decision maker mediation can continue.
Decision talks, BS walks.
Matter of fact, I'd try to clarify that through the OCR contact if the SD will be having its lawyer there, and confirm they are sending a representative capable of making decisions to the mediation.
Mediation cuts both ways. You know you're going into this as a compromise--that part we can check off as done. Now, the other side MUST come with the same good faith intention which must include a representative capable of making decisions.
Do not fall prey to false pretenses where the representative from the school side needs to "ask permission for that accommodation" or "need to consult [superiors]".
Beware the car sales strategy where you work with the sales agent that needs to "talk to the manager" before giving you anything solid.
I would be bold yet civil in two possible scenarios:
(1) SD lawyer shows up unannounced. Postpone, come back with your own.
(2) School representative is not empowered (or claims not to be) to make decisions, needs to 'consult others'. Postpone, say you came in good faith to mediate when the other side comes through with a decision maker mediation can continue.
Decision talks, BS walks.
Matter of fact, I'd try to clarify that through the OCR contact if the SD will be having its lawyer there, and confirm they are sending a representative capable of making decisions to the mediation.
Posted by twinturbo
- January 31, 2014, 09:12:43 PMdaisy, you know I'm not a lawyer and therefore we never consider my posts legal advice, right?
Now that I've repeated that I might have something interesting for your upcoming mediation with OCR. I'm betting you're already hitting the right notes otherwise you wouldn't have OCR flexing at least a little muscle here.
I'm going to link to something at the GPO (Government Printing Office) re: 504 and FAPE with specific attention to related aids and services. The GPO is considered the gold standard of regulations so anything on even the Dept of Ed wouldn't supersede it. GPO doesn't make the regulations they're just responsible for holding the most accurate version of them.
http://www.gpo.gov/fdsys/pkg/CFR-2010-title34-vol1/xml/CFR-2010-title34-vol1-sec104-33.xml
Transportation by itself can be troublesome because it can be at times exempt from ADA. In this case transportation is a related service to FAPE and in order to benefit from that service as adequately as it is for non-disabled peers his 504 accommodation to have a responsible adult ready to administer epinephrine is a necessary and effective accommodation.
Notice I'm staying away from "reasonable", stick to necessary, effective, appropriate. One thing I learned from a webinar recently is if it's a surprise that the SD's attorney is there see if you can postpone until you can have your own attorney.
This is my next attempt at digging further into transportation as it relates to FAPE because this seems to be a battle ground for accommodations especially with regard to epinephrine administration. It's a lot of raw thought and drawing on different references so hopefully I can come back to refine this over some time.
Now that I've repeated that I might have something interesting for your upcoming mediation with OCR. I'm betting you're already hitting the right notes otherwise you wouldn't have OCR flexing at least a little muscle here.
I'm going to link to something at the GPO (Government Printing Office) re: 504 and FAPE with specific attention to related aids and services. The GPO is considered the gold standard of regulations so anything on even the Dept of Ed wouldn't supersede it. GPO doesn't make the regulations they're just responsible for holding the most accurate version of them.
http://www.gpo.gov/fdsys/pkg/CFR-2010-title34-vol1/xml/CFR-2010-title34-vol1-sec104-33.xml
QuoteCode of Federal Regulations
Title 34 - Education
Volume: 1
Date: 2010-07-01
Original Date: 2010-07-01
Title: Section 104.33 - Free appropriate public education.
Context: Title 34 - Education. Subtitle B - Regulations of the Offices of the Department of Education. CHAPTER I - OFFICE FOR CIVIL RIGHTS, DEPARTMENT OF EDUCATION. PART 104 - NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE.
Subpart D - Preschool, Elementary, and Secondary Education.
§ 104.33Free appropriate public education.
(a) General. A recipient that operates a public elementary or secondary education program or activity shall provide a free appropriate public education to each qualified handicapped person who is in the recipient's jurisdiction, regardless of the nature or severity of the person's handicap.
(b) Appropriate education.
(1) For the purpose of this subpart, the provision of an appropriate education is the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to procedures that satisfy the requirements of §§ 104.34, 104.35, and 104.36.
(2) Implementation of an Individualized Education Program developed in accordance with the Education of the Handicapped Act is one means of meeting the standard established in paragraph (b)(1)(i) of this section.
(3) A recipient may place a handicapped person or refer such a person for aid, benefits, or services other than those that it operates or provides as its means of carrying out the requirements of this subpart. If so, the recipient remains responsible for ensuring that the requirements of this subpart are met with respect to any handicapped person so placed or referred.
Transportation by itself can be troublesome because it can be at times exempt from ADA. In this case transportation is a related service to FAPE and in order to benefit from that service as adequately as it is for non-disabled peers his 504 accommodation to have a responsible adult ready to administer epinephrine is a necessary and effective accommodation.
Notice I'm staying away from "reasonable", stick to necessary, effective, appropriate. One thing I learned from a webinar recently is if it's a surprise that the SD's attorney is there see if you can postpone until you can have your own attorney.
This is my next attempt at digging further into transportation as it relates to FAPE because this seems to be a battle ground for accommodations especially with regard to epinephrine administration. It's a lot of raw thought and drawing on different references so hopefully I can come back to refine this over some time.
Posted by daisy madness
- January 31, 2014, 07:07:55 PMGot it. Thanks! OCR will be calling the district next week to ask if they are willing to mediate. If so, mediation must take place within 3 weeks. I'll be sure to update.
Posted by Janelle205
- January 31, 2014, 07:05:56 PMI would try the resolution first.
I haven't had any battles with the school, since I'm the one with allergy here. But from other legal issues we've had, it does help to be able to say "We tried to do the reasonable thing here, and the other party chose to dig in their heels first."
I haven't had any battles with the school, since I'm the one with allergy here. But from other legal issues we've had, it does help to be able to say "We tried to do the reasonable thing here, and the other party chose to dig in their heels first."