Quick draw letters to respond to typical questions

[guess]

I'm going to take a page from Links' playbook and book a couple spaces out. The advanced topic thread for questions. Posting a quick draft heading out. I'll edit and fill out later. Rough draft banged it out fast. I have links there but obviously you would write in a cite, submitting the actual docs you've printed out. Whether this gets split or more added cumulatively to be determined. I already see where I need to get on typos it'll have to be later.






During the course of a meeting with [student name]'s school regarding his/her 504 plan I have been asked the question, "What do you do in the 'real' world?" regarding his/her disability due to a reductive interpretation of disability and education law. I have provided this written response as a source to be entered in [student name]'s permanent record to serve both as a resource with recent and relevant supporting documentation from the Department of Education's Office of Civil Rights and the US Department of Justice, and an answer to the question itself.

I have taken this question posed in colloquial terms to mean what are the protections outside of FAPE and section 504 in primary and secondary schools and how do we operate within them. The short answer is like any American with a documented disability who needs and is entitled to protections we know the law, our rights, and scale flexibly within them.

The 'real' world has the ADA, ADAA, ACAA, USDA Office of Civil Rights, HHS Office of Civil Rights, covering buildings, public education, medicine, transportation, agriculture, virtually any public accommodation that operates within the United States of America.

Realize further that the existence of laws in relation to one another are non-competitive; that greater protections will prevail whether they are federal or state.

Please read the US DOJ's explanation in http://www.ada.gov/reg2.html.

"Section 35.103 is derived from sections 501(a) and (b) of the ADA. Paragraph (a) of this section provides that, except as otherwise specifically provided by this part, title II of the ADA is not intended to apply lesser standards than are required under title V of the Rehabilitation Act of 1973, as amended (29 U.S.C. 790-94), or the regulations implementing that title. The standards of title V of the Rehabilitation Act apply for purposes of the ADA to the extent that the ADA has not explicitly adopted a different standard than title V. Because title II of the ADA essentially extends the antidiscrimination prohibition embodied in section 504 to all actions of State and local governments, the standards adopted in this part are generally the same as those required under section 504 for federally assisted programs. Title II, however, also incorporates those provisions of titles I and III of the ADA that are not inconsistent with the regulations implementing section 504. Judiciary Committee report, H.R. Rep. No. 485, 101st Cong., 2d Sess., pt.3, at 51 (1990) [hereinafter "Judiciary report"]; Education and Labor Committee report, H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 2, at 84 (1990) [hereinafter "Education and Labor report"]. Therefore, this part also includes appropriate provisions derived from the regulations implementing those titles. The inclusion of specific language in this part, however, should not be interpreted as an indication that a requirement is not included under a regulation implementing section 504.

Paragraph (b) makes clear that Congress did not intend to displace any of the rights or remedies provided by other Federal laws (including section 504) or other State laws (including State common law) that provide greater or equal protection to individuals with disabilities. As discussed above, the standards adopted by title II of the ADA for State and local government services are generally the same as those required under section 504 for federally assisted programs and activities. Subpart F of the regulation establishes compliance procedures for processing complaints covered by both this part and section 504."

Therefore it is recommended to school administration at this point to review directly with the Education's Office of Civil Rights and US DOJ to review the non-competitive coexistence of Section 504, FAPE, Title II, Title III, the IDEA, assistive technology continuum from low to high tech, and any other relevant civil rights title such as I, IV, and IX if there is any confusion about its role and responsibilities to uphold civil rights requirements in education by implementing effective and necessary accommodations with fidelity to provide access equal to non-disabled peers.

To aid the district in finding relevant and recent statements regarding the coexistence of the IDEA, 504 and ADA to satisfy FAPE please see the attached document K.M. v. Tustin, and settlement agreement with Delran Township School District.

http://www.ada.gov/delran-sa.htm
http://www.justice.gov/crt/about/app/briefs/kmtustinbr.pdf
http://www.justice.gov/crt/about/app/briefs/kmtustindecision.pdf

In anticipation of the school offering "significant assistance" to a PTO/PTA I have provided a copy of the OCR's Letter of Findings for Irvine Unified School District. It clarifies what a recipient's obligations are and what defines significant assistance.

http://main.diabetes.org/dorg/living-with-diabetes/edmats-lawyers/atty-irvine-ocr-lof.pdf

In regard to any low, medium or high technology assistive technology needed to implement a 504 accommodation related to [student]'s disability please see the attached example that gives examples of assistive technology on a continuum. The list is meant to provide examples but not limited to only what appears, it is not an exhaustive list. As you will see listed on the low end items such as pencil grips and binder clips qualify. Analogous items to [student]'s disability are wipes, soap, a keyboard cover for computer labs, etc. His/her autoinjector is a device is a delivery mechanism automating the injection of rescue meds. He/She may also need access to a one-way or two-way communication device at the higher end of the technology continuum.

http://www.assistivetechnology.vcu.edu/files/mt/2/AT_Continuum_Generic10_06.pdf

Should there be any questions about these necessary and appropriate accommodations please reference State of Michigan v. Liebau where the court upheld the decision that 504 accommodations related to food allergy are not a private contract between parents but for the school to provide equal access to disabled students in order to deliver FAPE.

http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20130730_C306979_46_306979.OPN.PDF

The district may also have question regarding cost and applying a reasonable standard to FAPE. To answer that question I have included the following responses to similar or exact questions the district may have. Please take note nearly all accommodations to practice strict avoidance of allergen are low to no cost because there are no high tech or high cost methods for prevention. In consideration of undue burden it is highly recommended that the district perform a careful calculation on spending recipient funds when making deliberate choices to not grant low to no cost effective and necessary accommodations for [student] to deliver FAPE equal to non-disabled students that would result in a higher cost spent by the district in legal fees fighting low to no cost accommodations.

http://www.dueprocessillinois.org/zirkel.html
Letter to Anonymous, 30 IDELR 705 (OSEP 1998). Lack of sufficient resources and personnel is not a proper justification for the failure to provide FAPE.

http://www.doe.mass.edu/bsea/decisions/03-3629.pdf ((fill in FSOS, undue burden))


Thank you for the opportunity to fully understand what laws in coexistence form an overlapping network of protection for disabled individuals where the greater protections prevail.

Please place a copy of this letter along with all the resources provided from courts and departments in [student's name] file. Consider these documents as parental participation in the formation of the variety of sources the team will use to craft the 504 plan.