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DRHD
Joined Apr 29, 2008
Posts: 135

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Posted:Dec 16, 2012 4:35:08 PM

Kellygh, how did the meeting go on Friday 12/14? I did not feel the earth move so I will presume it went well.

DRHD

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kellygh
Joined Oct 14, 2012
Posts: 27

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Posted:Dec 16, 2012 8:24:35 PM

DRHD, the IEP portion of the meeting (to discuss the admended OT eval considered "new info") was postponed. The OT had a family emergency. I agreed to not proceed without her. The 504 mtg, as you indicated it might, did not go in our favor. Denied.

On one hand, I feel better knowing that our son will continue to receive support in RTI. The team appears to be very open to our input and bent over backwards to grant every accommodation, including AT, and listen to concerns. The right support is the most important thing; however, this whole process leaves me confused and a little skeptical. I understand RTI intersects w/ special education & 504, but is there any boundary? I have talked to at least 4 other people in our district that have been denied services through IDEA &/or 504. I realize that is hardly a representative sample, but with some of these kids having significant issues, I wonder if RTI is being used in place of the aforementioned. Just a lot of questions. Is my son not eligible for a 504(still believe he is) and our school is just being terrific offering everything we would have asked for and then some? When I think of being ineligible, I think of not needing services. If a disability is deemed not "substantially limiting" then why offer all the modifications the team just said he doesn't qualify for? Good teaching and support or using RTI, perhaps inappropriately, to replace 504 & special education? Do schools have an incentive to not classify kids? IDK. If we were to appeal, we certainly can't argue the school did nothing for us. In the end, my son is really the most important, regardless of how the support is categorized; however, I am still quite confused re: policy. Guess I just let it go? Thanks so much for the support & help!
[Modified by: kellygh on December 16, 2012 08:30 PM]

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DRHD
Joined Apr 29, 2008
Posts: 135

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Posted:Dec 16, 2012 9:21:30 PM

Kellygh,

Thank you for providing me the update of this past Friday's meeting. The accommodations offered by the school division appear to be reasonable and to extend the asistance of RTI is something that no doubt was unexpected.

I think you are asking the correct questions about RTI and it's use as this is the case throughout the different states. I have some opinions about RTI and will share them in a response tomorrow.

Just to be specific, what was the basis of the denial of your son's eligibility for 504? Also, please help me understand how your son is receiving a related service such as OT and is not eligible for a special education disability category or have I missed something during our dialogue.

DRHD

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kellygh
Joined Oct 14, 2012
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Posted:Dec 16, 2012 10:45:24 PM

The OT evaluation was completed 2 days before our IDEA eligibility mtg. I had asked the resource teacher,1 WK prior to the mtg, if it had been done. You could tell by the reaction, "Oh, s***", it had not. I spoke w/ the OT after our mtg, and she told me she was going to amend her eval. She stated had she seen some of my son's work prior to the meeting, as well as knowing more about our concerns/struggles, she would have qualified him. She amended the eval & qualified my son for consultative OT services (specifically for AT & working on awkward/immature grip + fatigue). I realize consulting services are not a lot, but we happily take what we can get.

I'm glad RTI is offering support for all students; however, it would have never identified my son. Everything I have read, some from the school, states students are not to remain in Tier 2 or 3 indefinitely; however, the Director of Special Services told us "some kids need that daily aspirin" each day no matter what. I kept pushing on the fact that the work samples they provided are all based on support in Tier 2 RTI, strong parental support, & work w/ an independent psychologist. His performance was said to be the reason for denial, but yet they said he's being considered w/out support to determine substantial limitations. Now under RTI, they are offering to provide AT/keyboard help each morning, extra time for written work, modifications on written homework, editing, they will keep him after school to work on homework if we decide that would be helpful, provide raised line & other OT paper, dictation etc. They even told us not to hesitate to let them know if we have an intervention(s) we want them to try. All this & more for a child who is not eligible? Makes no sense but what parent would argue with a school that appears to be doing back flips to help? Hmmm.. One of my many concerns about RTI is the glaring lack of child/parental protections & enforceable accountability!
[Modified by: kellygh on December 16, 2012 10:57 PM]

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DRHD
Joined Apr 29, 2008
Posts: 135

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Posted:Dec 17, 2012 10:24:42 AM

Kellygh,

Throughout my career, I have evolved thru the the passage of PL 94-142 and the present day iterations of IDEA 2004 as amended, and I am taken aback by what you have described as your experience in this SC school district. I can't help but sense there are some well intended persons who are attempting to provide assistance to you but I conclude they have offered "smoke and mirrors" to accommodate the compliance issues that you have experienced. In this regard please note the following:

1) Occupational therapy is not a special education service. It is a related service. For a child to receive a related service there must be a disability. To date the local school district did not find your son eligible as a child with a disability but yet the OT in this matter has stated she will provide a consultative OT service. This is simply not consistent with federal and state regulations. To the extent, this school district will now provide a related service to a non-disabled child is interesting.

2) The RTI issue is a "never ending story". The RTI strategy evolved thru IDEA statutory language and is probably one of the most confusing sources of intervention for suspected children with learning disabilities. Congressional intent in matters specific to the identification of suspected LD and pertinent to assessing the child would be the extent a child would respond to itervention that would be research based and progress monitored. Once that was stated in the IDEA revisions, RTI took on a life of it's own and it continues to spiral out of control. RTI was intended to be an alternative to the use of the "discrepancy model" of comparing ability to achievement for a suspected child with a learning disability. However, the IDEA statute makes it very clear that RTI is not a mandated intervention and the use of the discrepancy model was not prohibited. The problem has been that states and local school districts have taken the RTI concept and has made it mandatory that all referrals for special education must progress thru school based RTI intervention first. The problem has been is that RTI has in fact been used and has served to delay and or deny the right for a child to receive a timely evaluation for special education services. This was the case in your situation. Congress never intended for early intervention to delay or deny your procedural safeguards.

3) As for what you now have is this: 1) Your child did not meet the eligibility criteria for an IDEA classification as learning disabled 2) Your child did not meet the eligibility criteria for 504 3) Your child was found to be appropriate to receive OT as a related service on a consultative basis and has no identified disability and 4) Your child continues to be provided RTI services to continue to search for the "substantial limitation to a major life activity: learning". Kellygh, I find these developments to be mindboggling and beyond my own experienced comprehension.

Nontheless, the issue before you is what will be your course of action at this time? My suggestion is to "ride the wave of uncertainty" because your child is receiving a benefit and interventions that cannot be totally understood. My only comfort in all this is that this school district is attempting to make something right that has procedurally advanced in a non-compliant way.

I envision no benefit for you at this time to seek avenues of appeal, impasse, mediation, a due process hearing, or even a complaint action for now. Let this all play out for the moment. As I mentioned before, your son will succeed in spite of the efforts being implemented in his behalf. Please keep me posted.

DRHD
[Modified by: DRHD on December 17, 2012 10:31 AM]

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kellygh
Joined Oct 14, 2012
Posts: 27

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Posted:Dec 17, 2012 10:57:20 AM

Thank you so much, DRHD, for all of your support and wisdom. For now, I will ride it out, but I have questions for our next meeting. How long will these services be provided is a start. The 504 team explicitly stated, including the Director of Special Services, that my son does have a SLD. "Your son is absolutely learning disabled, we are not disputing that, but we are not certain it substantially limits." There is an attorney in our area that specializes in special education law, and I am going to call her for a consult. I don't necessarily plan on appealing, but I would like clarification on some of these legal issues here in Dixie. I'm starting to question my own reading comprehension abilities, Lol! Again, I'm happy about services, but I know they can be yanked at any time, without consent, or notice. We were encouraged 2x in the mtg to focus on all of our son's strengths & being a great kid. Really? Talk about patronizing. Of course we know how terrific my son is & all his strengths. It's the whole reason I get so upset, spend a lot of time, $, reading/seeking info, & going down the eligibility road. I love our little guy fiercely & know he has gifts to share with this world. I really appreciate the time you have given me, DRHD! Blessings

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DRHD
Joined Apr 29, 2008
Posts: 135

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Posted:Dec 18, 2012 11:42:16 AM

Kellygh,

For some reason, I received no notification that you had responded to my earlier posting. My internet connection and internet email has been so unstable I am not sure what I have received or have not received. Nontheless, I have reviewed your latest posting and find this school district to be even more remarkable than I have previously intimated.

Your school system has stated to you that they admit your son is SLD but yet they have chosen to not classify him as such under IDEA. Interesting. Then, they are attempting to implement services to demonstrate the substantial limitation to his potential eligibility for a 504 identification. Even more interesting.

Within the criteria of who may be eligible for a 504 disability it is stated that those who have a "physical or mental impairment" are the target group. Within the target group of "mental impairment", the statute and regulations are very explicit that this could include those with a "specific learing disability". I am not getting the picture from this SC school division who chooses to interpret these rules and regulations to suit their purposes.

I would definetly encourage you to consult the special education attorney there where you reside and please have me to understand if you are told anything any differently that what I have been describing for you in these issues. I just find this all perplexing.

As the game plan is to "ride the wave" I think is prudent. Just keep me informed.
[Modified by: DRHD on December 18, 2012 11:45 AM]

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kellygh
Joined Oct 14, 2012
Posts: 27

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Posted:Dec 18, 2012 6:52:16 PM

What does "unameliorated state" mean from a legal perspective? I only know what amelioration (n) means in everyday language; however, after looking back over 504 mtg paperwork, I believe this is where the crux of the disagreement occurs. The school noted my son's documented disability but denial is said to be because he does not demonstrate "substantial limitation" compared to average peers. The school says the work sample they paraded out was done w/out help & guidance. This appears to be the way they are defining unameliorated. Independent work w/out assistance from the teacher. I define unameliorated as not getting help & support in the home, school, or professionally. In other words, improvement or representative work samples must be considered in light of RTI participation etc., because they can not be assumed to show the how my son is affected.Nevermind the exceeding number of work samples that show differently. The school psychologist's own work samples is a good one, but, of course, the school explains that away with "that's just one snapshot; conversely, we are not allowed to use that same argument with the 1 work sample the teacher provided. Ha! Am I wrong in my interpretation? I hope what I'm trying to say made sense.
[Modified by: kellygh on December 18, 2012 06:58 PM]

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DRHD
Joined Apr 29, 2008
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Posted:Dec 18, 2012 7:16:14 PM

Kellygh,

I think you have asked me a question that I will want to do some case law research to define what this cutting edge school district is trying to say to you. I think I know but I want to provide you with something concrete. I must say, this is all so very interesting. I do not believe I have ever come across a school district that swallows elephants and chokes on gnats like this one. I'll get back to you after I amelioriate.

DRHD

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DRHD
Joined Apr 29, 2008
Posts: 135

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Posted:Dec 18, 2012 8:16:44 PM

Kellygh,

The below FAQ came from an OCR FAQ on the identification of chilodren with a 504 disability;

21. May school districts consider "mitigating measures" used by a student in determining whether the student has a disability under Section 504?
No. As of January 1, 2009, school districts, in determining whether a student has a physical or mental impairment that substantially limits that student in a major life activity, must not consider the ameliorating effects of any mitigating measures that student is using. This is a change from prior law. Before January 1, 2009, school districts had to consider a student’s use of mitigating measures in determining whether that student had a physical or mental impairment that substantially limited that student in a major life activity. In the Amendments Act (see FAQ 1), however, Congress specified that the ameliorative effects of mitigating measures must not be considered in determining if a person is an individual with a disability.
Congress did not define the term “mitigating measures” but rather provided a non-exhaustive list of “mitigating measures.” The mitigating measures are as follows: medication; medical supplies, equipment or appliances; low-vision devices (which do not include ordinary eyeglasses or contact lenses); prosthetics (including limbs and devices); hearing aids and cochlear implants or other implantable hearing devices; mobility devices; oxygen therapy equipment and supplies; use of assistive technology; reasonable accommodations or auxiliary aids or services; and learned behavioral or adaptive neurological modifications.
Congress created one exception to the mitigating measures analysis. The ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses shall be considered in determining if an impairment substantially limits a major life activity. “Ordinary eyeglasses or contact lenses” are lenses that are intended to fully correct visual acuity or eliminate refractive error, whereas “low-vision devices” (listed above) are devices that magnify, enhance, or otherwise augment a visual image.

I'm of the opinion that this school district is interpreting the rules of 504 before the amendments to ADA that amended 504 at the same time.

DRHD

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kellygh
Joined Oct 14, 2012
Posts: 27

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Posted:Dec 19, 2012 4:23:01 PM

The previous post corresponds to my understanding of ameliorative effects &/or mitigating measures. I asked for the rubric used to determine eligibility today, because they did not give me a copy. There was considerable discussion on item "C" under Part 111-Substantial Limitation. A) Does this student demonstrate a substantial limitation (underlined) on one or more of the major life activities when compared to an average student of approximately the same age? Team answered "No." Team always means school staff in our case. B)Is the substantial limitation due to the identified disability and not to other factors such as environment, motivation etc. Team answered "no" again. ***C) Has the above determination been made without reference to the ameliorative effects of mitigating measures such as medication, equipment, prosthetics, devices such as hearing aids, mobility devices, oxygen, use of assitive technology, or learned behavioral or nerilogical modifications? Team answers "yes." I also have copies of the work samples from other students described as "average" by the teacher. Opps..the name of the child is on two of them! As a parent & therapist, I'm pretty sure that is a no-no. Anyway, when discussing the above, we kept stating that deference has to be given to the amount of input is required for my son's output. How do you compare that? Well, the school's response was our son's work sample is with no guidance or help. Strictly independent work. That's apparently what constitutes unameliorative state to them. If our son didn't have difficulty commensurate with his peers, why would we seek an evaluation, eligibility etc.? If their logic holds, no child who is gifted or doing well enough can have a qualifying learning disability. Again, no matter how RTI slices it, services (eligibility) are still based on a discrepancy model. The only difference, IMO, is the current version excludes those not failing. In the 1st PWN we received, prong one was said to be met due to a "severe and unusual discrepancy, " and I have talked & written until I'm blue in the face regarding the input that goes into output with our son, and it just doesn't matter. Average, above average, or superior=denial, except under RTI. My son & oldest daughter are in a non-title 1 school with over 1000nd kids, gulp, and I forgot to ask how many are served under IDEA or a 504 plan. There are 68 kids being served in RTI w/ the highest number in 2nd grade (son is in 2nd grade). 11 in tier 3 and 6 in tier 2. BTW, I scheduled a consult w/ an attorney on the 4th. Just got a mtg. notice for the 8th (IEP team) to discuss the admended OT eval. I won't be surprised at all if the district asks the OT to change the eval again to "does not qualify."
[Modified by: kellygh on December 19, 2012 04:24 PM]

[Modified by: kellygh on December 19, 2012 04:25 PM]

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DRHD
Joined Apr 29, 2008
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Posted:Jan 05, 2013 7:57:10 AM

Kellygh,

I trust you and your family had a very nice Holiday and have settled into the flow of a New Year.

I would appreciate if you would share the outcome of your visit with the attorney you met with on the 4th. Also, you have a meeting coming up on the 8th regarding OT that should be interesting.

Please update me if you will.

DRHD

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kellygh
Joined Oct 14, 2012
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Posted:Jan 08, 2013 9:27:43 PM

Thanks so much for checking-in, DRHD! I hope you & yours had a wonderful holiday as well. My New Year started with me being sick as a dog; therefore, I had to reschedule my appt w/ the attorney for the 10th. I will be sure to update.

The IEP team "reunion," lol, went OK. We were greeted by more faces than were present at any previous mtg. We had met everyone previously but never have so many been in attendance at once. Coincidence? After the director of SS opened with the purpose of the mtg, she asked my son's teacher to review the most recent RTI data, and I interrupted. I stated we had been denied an IEP & 504, recently had the 504 eligibility mtg & RTI update, and it was superfluous to rehash; in addition, I added we know qualifying for consultative OT services would not change my son's ID status. Whew! The unspoken relief in the room was palpable. Hallelujah! The Hamilton's have enough sense to know everyone hates redundacy, has more important cases/things to attend to, and ain't nothing (short of failing, major illness, or injury) that is going to change that.

Thank you, again, for inquiring! Back soon.
Kellygh
[Modified by: kellygh on January 08, 2013 09:28 PM]

[Modified by: kellygh on January 08, 2013 09:29 PM]

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kellygh
Joined Oct 14, 2012
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Posted:Jan 08, 2013 9:42:14 PM

BTW, I asked the 504 coordinator how many kids had 504 plans. She said "one." That one child covers Pre-K through 2nd grade. There are approx. 1,050 kids @ our school (Pre-K--5th) Any idea the percentage of kids, roughly, in the US w/ 504 plans? 1 child seemed astonishingly low, but I base that on immediate gut rather than stats/knowledge. None the less, I can confirm there has not been an increase in 504 eligibility w/in our district as some have speculated would result from changes to law.

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DRHD
Joined Apr 29, 2008
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Posted:Jan 08, 2013 9:48:56 PM

Kellygh,

Thank you for responding to my message and it is quite interesting to hear about your meeting. I remain perplexed as to how a child in this school district is eligible for OT as a related service when their is no identified disability under IDEA. Interesting indeed.

I would like to request that after you meet with your attorney and have more time to reflect upon this experience, please respond back to me.

I do hope you are feeling better.

DRHD

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DRHD
Joined Apr 29, 2008
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Posted:Jan 09, 2013 7:30:45 AM

Kellygh,

For a school to have over 1.000 children and to have only 1 child identified with a qualified 504 disability is suspect. You mentioned that it could be due to the changes in the law. My first question is which one: IDEA or the Rehabilitation Act of 1973 as amended (Section 504).?

As for 504 classificatiions, the amendments to the American with Disabilities Act (ADA), 2008 revised the Rehabilitation Act of 1973 at the same time and frankly broadened the scope of classification significantly. In the revisions to ADA, Congress became tougher to discriminate against those with qualified disabilities by broadening the scope of who would be eligible. The revisions also overturned several Supreme Court decisions litigated on ADA issues. This was a powerful statement by Congress.

Nontheless, school districts nationwide are playing a numbers game and using RTI as the process to lessen the number of children who are being referred for evaluation under both IDEA and 504. Also, IDEA brings federal funding to a school district on a per disabled child basis while 504 is a civil rights statute and has no funding mechanism to it. In sum and to answer your question, the proportion of 504 classifications to a student body should frankly be very low. One reason for this is that the identification criteria is much more stringent while the IDEA criteria are less so. There seems to be no pattern as to how many should be identified in a given school population but in my opinion each school district seems to take a position on issues relative to identification for 504.

I will comment further on this.

DRHD


[Modified by: DRHD on January 09, 2013 07:35 AM]

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kellygh
Joined Oct 14, 2012
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Posted:Jan 09, 2013 10:58:53 AM

Yes, I was referring to the broadening scope of ADA & 504 classification. It seems many thought the 2008 revisions would open 504 classification to many students previously deemed ineligible. My only point was it does not seem the broadening scope has had any impact on our elementary school. Lol. I would expect numbers to be low; however, I assumed the number would be higher, if even just from the increase in children diagnosed with medical conditions such as ADHD & diabetes.

I am only hung-up on classification, because of the increased protections/due process. If RTI is going to be used to intervene, remediate, monitor, &/or identify SLD, it seems imperative, IMO, that IDEA, ADA like protections are provided to parents & children in tier 2 or 3. 504 is unfunded, but I do believe schools are allowed to use a certain percentage of IDEA funds for RTI?? If so, I wonder if the number of students a school has in RTI dicates the percentage of funds they may draw? Thanks for the responses!

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