Important Sources of Information - Region 10 Website

1

1

Section 504, Technology, and the Student with Dyslexia

Presented by David M. Richards Richards Lindsay & Martin, LLP 13091 Pond Springs Rd., Ste 300 Austin, Texas 78729 Copyright 2013. All Rights Reserved

Important Sources of Information

  Procedures Concerning Dyslexia and Related Disorders, Rev’d 2007, Updated 2010 (“Blue Book”)

  Technology Integration for Students with Dyslexia (“The Plan”)

  Section 504 regulations and OCR guidance

  Note: some case examples of impairments other than dyslexia are used to illustrate points by analogy

Some terms…

  “Assistive technology device” Under the IDEA, the term “means any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve the functional capabilities of a child with a disability. The term does not include a medical device that is surgically implanted, or the replacement of such device.” 34 C.F.R. §300.5

2

Some terms…

  “Instructional technology” --technology that is readily available in the classroom and is used by all students. (Puckett & O’Bannon, 2012).

  The Section 504 regs contain no tech references or unique definitions, so

–  FAPE rules determine what tech (if any) is required, and –  Nondiscrimination rules apply to instructional tech.

1. The mandate of TEX. EDUCATION CODE §38.0031

5

  TEA shall “establish a committee to develop a plan for integrating technology into the classroom to help accommodate students with dyslexia.”


6

  Required plan elements: –  “determine the classroom technologies that are useful

and practical in assisting public schools in accommodating students with dyslexia (considering budget constraints of school districts); and

–  develop a strategy for providing those effective technologies to students.”

3


7

  TEA shall “provide the plan and information about the availability and benefits of technologies identified [in the plan] to school districts.”


8

  What the mandate requires– –  The creation of a Committee –  Committee creation of a plan for use of technology in

the classroom by students with dyslexia (the Plan) –  Identification of useful, practical, and cost-effective

technologies –  A strategy for providing those technologies –  Access by school districts to the Plan.


9

  What the mandate DOES NOT say–

–  The state is not required to fund the technologies identified in the Plan

–  Each student with dyslexia is not required to have access to the technologies identified in the Plan

4


10

  What the mandate DOES NOT say–

–  Districts are not required to follow the Plan, utilize the strategies, or buy the identified technology

–  The identification of a strategy or technology in the Plan does not guarantee effectiveness with respect to a particular child with dyslexia.

2. Can technology benefit students with Dyslexia? Yep.

11

  Most Common Benefits (per the Plan): –  Computer mediated instruction with synthesized

speech feedback to improve basic reading, and access to electronic texts to aid in comprehension.

–  Time management, note taking, exam prep and written responses are all enhanced through technology as a supplement to direct teach instruction and intervention.


12

  But notice this cautionary language from the Plan:

“Technology is not intended to take the place of quality reading instruction…. Technology should never be used as a substitute for quality instruction; it is intended to supplement, not supplant.”

5


13

  Section 2 of the Plan identifies examples of technologies to support students with dyslexia

–  The list provides examples only –  The list is not exhaustive –  The list DOES NOT CLAIM that each item is

appropriate or necessary for a student with dyslexia –  An appropriate technology might not be listed –  A student may not require technology

3. Who decides what tech (if any) to use?

14

  It depends on eligibility… –  For students with dyslexia who are IDEA-eligible, the

ARD Committee will make the ATD decision

–  For students with dyslexia who are Section 504-eligible, the 504 Committee will make technology decisions as part of Section 504 Plan development

–  For students with dyslexia not covered by either federal law, district policy and practice control.


15

  What’s the likelihood of IDEA or Section 504 eligibility for a student with dyslexia?

–  In 2004, Congress made changes to IDEA to shrink eligibility, especially targeting LD.

–  In 2008, Congress made changes under the ADAAA to dramatically expand Section 504 eligibility (with particularly strong impact on dyslexia).

6

16


  More kids with dyslexia qualify under §504 due to ADAAA? Definitely.

–  Congress’ command to read language expansively –  “Reading” is its own MLA– a much narrower area of

impact than “learning.” –  Dyslexia instruction, accommodation &

compensatory skills (like reading slower, highlighting words, etc.) are mitigating measures.

–  “Substantially limiting” is not “significant restriction”

17


  While some students with dyslexia will be eligible under the IDEA, these materials focus on the more likely result of Section 504 eligibility.

4. The §504 FAPE 34 CFR §104.33(b).

“…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 Sec. 104.34, 104.35, and 104.36.” 18

7

4. The §504 FAPE 34 CFR §104.33(b).

  It’s provided at no cost to parents (it’s Free)

  It’s appropriate –  It’s individualized –  It doesn’t reduce expectations –  It’s provided in the LRE

19

4. The §504 FAPE: leveling the playing field

© 2010 Richards Lindsay & Martin, LLP

Think of this teeter totter, perfectly balanced, as a level educational playing field.

20


The student with a qualifying §504 impairment and need for a Plan has an impairment that interferes with the level playing field.

21

504 eligible

+ Plan


8


Evaluation data identifies the areas of need and degree or amount of 504 services needed to level the playing field.

22

504 eligible

+ Plan



The 504 Plan should reduce the impact of the impairment to level the playing field by providing appropriate services & accommodations.

23

504 eligible + Plan

504 Plan




If the §504 services & accommodations are insufficient to level the playing field, there is more work to be done.

24

504 Plan

504 eligible

+ Plan

9



If the §504 services and accommodations are excessive, the playing field is not level, and there is more work to be done.

25

504 eligible + Plan

504 Plan

5. Choosing the right technology (if any) for §504 students with Dyslexia

26

  In Section 504, “evaluation” does not necessarily mean “test” or “assessment”

–  In the §504 context, “evaluation” refers to a gathering of data or information from a variety of sources so that the committee can make the required determinations. §104.35(c)(1).


27

–  Since specific or highly technical eligibility criteria are not part of the §504 regulations, formal testing is not required to determine eligibility. Letter to Williams, 21 IDELR 73 (OCR 1994).

–  In short: no formal instrument or assessment is required if 504 Committee can make eligibility & services decisions without it.

10


28

  Does every Section 504 student with dyslexia have to get a piece or two of technology?

  No, not unless technology is required for FAPE. –  So, how do we know if it’s required for FAPE? A few

examples from Hearing Officers, OCR, & the Courts.


29

  Note the fact-based analysis on need and solution. Manalapan-Englishtown Regional Bd. of Ed., 107 LRP 27925 (SEA NJ 2007).

–  The elementary student had an acute peanut allergy –  Doctor required that EpiPen be used “expeditiously”

following exposure to peanut protein (ingested, touched or inhaled).

–  If student waited for paramedics to administer the EpiPen, “there is absolutely no way” he would survive.


30

  Manalapan-Englishtown, Continued

–  LIKELIHOOD OF EXPOSURE: “Peanuts are a common food and people, especially children, who have eaten or contacted peanuts do not always wash or otherwise completely remove peanut proteins from themselves and it is almost impossible to make the school environment completely peanut-free.”

11


31


–  LIKELIHOOD OF EXPOSURE: “Therefore, it is probable that J.B., Jr., whether on a school bus or in class, will probably have some exposure to peanut proteins in his school day.”


32


–  RESOURCES ON BUS: “A school bus driver, driving conscientiously, would not be able also to simultaneously monitor a severely allergic student and, if the student were to begin to experience an allergic reaction, expeditiously administer an EpiPen and, thereby allow the student to avoid the above-described problems. J.B., Jr., is too young to be responsible to monitor himself and to administer his own EpiPen.”


33


–  SOLUTION: “Therefore, a nurse, aide or other trained adult is required for those purposes.”

–  Note the identification of a universe of appropriate service providers from which to choose (from very expensive to low-cost).

12


34

  Grant v. St. James Parish Sch. Bd., 33 IDELR 212 (E.D.LA. 2000).

–  Student was §504 & dyslexic under LA dyslexia law –  Student’s performance was on or above average

academically even before accommodations. She consistently passed the statewide assessment.

–  She received extended time, repeated directions read aloud on tests, no penalty for misspellings, and I hour weekly in Project READ.


35

  Grant v. St. James Parish, Continued

–  Court rejected parent demand for spec. ed FIE, ATD assessment, and 1-2 hours per day small group tutoring.

–  WHY? Student is currently making progress despite mild-moderate impact from dyslexia.   If benefit is already received, how are more services

necessary?


36

  Smith v. District of Columbia, 58 IDELR 155 (D.D.C. 2012).

–  Parent of an IDEA-eligible student argues that he would make greater progress with a laptop.

–  Student has daily classroom access to a computer, calculator, highlighters, and sticky notes, all of which were recommended in the AT Evaluation.

–  Student was making slow, but steady progress.

13


37

  Smith v. District of Columbia, Continued

–  Student could use (and take home) a Fusion Writer to assist in word processing, typing, and proofreading, and the school was in the process of installing Read Outloud and Draft Builder software, both of which were recommended by the Evaluation.


38

  Smith v. District of Columbia, Continued

–  District Court: “While it is certainly understandable that H.S.'s mother wants to provide him every possible educational opportunity, DCPS is not required to fund services that go considerably beyond the ‘basic floor of opportunity.’ The Court cannot conclude that, given all of this technological assistance, H.S. was denied a FAPE here because DCPS did not also provide him with a laptop or other software to take home.”


  High v. Exeter Township Sch. Dist., 54 IDELR 17 (E.D. PA. 2010).

“…although assistive technology will almost always be beneficial, a school is only required to provide it if the technology is necessary. Moreover, the failure to provide assistive technology denies a student FAPE only if the student could not obtain a meaningful educational benefit without such technology.”

39

14


40

  Watch for these common (and problematic) approaches to choice:

–  “It’s new so it must be better than the old stuff we’ve been using” Dear Colleague Letter (Electronic Book Readers), 110 LRP 37424 (OCR 2010).

–  “But a Tablet PC is cooler.” Collier County Sch. Bd., 44 IDELR 80 (SEA FL. 2005); “iPad is cooler” Carlsbad USD, 59 IDELR 87 (SEA CA 2012).


41

  Parent preference vs. data, Lincoln Elem. Sch. Dist. 156, 47 IDELR 57 (SEA IL. 2006).

–  Parent demands special transport. as related service. –  Student lives too close to school for regular bus –  Hearing Officer: “It is clear that it is inconvenient for

the parent to bring the student to school. However, no testimony indicated that he had a medical or other disability which would require transportation.”

–  No transportation was required as a related service.


42

  Parent preference vs. data

–  Meeting both disability needs and educational needs.   North Lawrence (IN) Comm. Schools, 38 IDELR 194 (OCR

2002)(unlimited water fountain access and the student with diabetes).

–  The problem: Parents don’t always know the educational repercussions of their preferences or demands. School folks need to tell them!

15


43

  Parent preference vs. data

–  The solution: Encourage parents to explain to 504 Committee why a particular piece of technology is necessary for their child.

–  Then, focus 504 Committee discussion on the data supporting need and if there is a need, the appropriate approaches that address the need.


44

  The tension between remediation and accommodation

–  Is it possible to accommodate in such a way that the student doesn’t learn skills he’s capable of learning?

–  Yes. Sherman v. Mamaroneck Union Free School District, 340 F.3d 87 (2nd Cir. 2003).


45

  Jefferson County School Dist. R-1, 39 IDELR 119 (SEA CO. 2001).

–  Parent complains when school refuses to provide at-home computer for homework for student with dysgraphia.

–  Student has access to computers at school (which he did not use).

–  Staff provided time at school to complete homework

16


46

  Jefferson County, Continued

–  Hearing Officer: “It appears the teacher members of the IEP team believe this student to have the capability of writing in his own hand. It will require physical training and student working through his emotional frustrations while learning to do so. If this is so then student will not need a home computer.”


47

  Jefferson County, Continued

–  Hearing Officer: “Further, he has failed to demonstrate that he will effectively use those computers which are available to him at school. The home computer requested is at this point a ‘want’ and not a ‘need’.”

6. Do teachers and students know how to use the technology?

48

  What good is the technology in the hands of a teacher or student who can’t use it? –  When choosing tech, consider need to train student,

staff, and perhaps parents to assist with the device

–  Monitor use to determine when additional training may be required

–  Does the student not use the technology? That’s something to be discussed by the 504 Committee.

17

7. Evaluating the effectiveness of technology in use

49

  Since the Committee made the choice to use technology on the basis of data, evaluating effectiveness is easy.

–  What concern was the device chosen to address? –  How is the student now performing in the problem

area? –  Has there been progress or improvement or are

things about the same? –  Does the Committee need need to make a change?

8. Other issues of concern

50

  Won’t recordings of the classroom violate the privacy rights of other students under FERPA?

  As a general rule, No. –  FERPA only applies to education records –  An education record, by definition, is maintained by

the school. 34 C.F.R. § 99.3. –  If the student makes the recording and preserves it for

personal, educational use, it never becomes an education record subject to FERPA


51

  Aren’t there copyright or other intellectual property issues involved when K-12 classroom instruction is recorded?

  As general rule, no. –  The school owns the property (work for hire) –  If concerned, the school can always impose an

acceptable use policy prohibiting commercial or public use of the recording

18


52

  What happens when Tommy breaks or loses the iPad provided through his Section 504 plan?

–  Can the school make him or his family pay for it, or does that violate the “Free” part of FAPE?

–  If the device is lost or damaged, does the school have to give him another one?


53

  Alamo Heights ISD, 110 LRP 36348 (SEA TX 2010), aff’d, 60 IDELR 60 (5th Cir. 2012).

–  A DynaVox was required by the student’s IEP –  Parent was required to sign a School District

Technological Device Lending Agreement in order for the student to access the device

–  Parent signed the agreement under protest.


54

  Alamo Heights ISD, Continued –  Hearing Officer: “However inappropriate it may

have been for the District to shift the risk of loss/costs of a necessary educational device to the Student’s parents; the attempt alone, did not result in a denial of FAPE for the student.”

–  [Of course, had the device been damaged or lost and had the District attempted to enforce the agreement, a different result on the denial of FAPE question is likely.]

19


55

  If the device is lost or damaged, does the school have to provide another one?

–  As long as the device is determined by the 504 Committee or ARD Committee as required for FAPE, the device has to be provided.

–  If the device is lost or broken, the school will have to replace it OR provide FAPE in some other way (following changes to the 504 Plan or IEP).


56

  Since Cindy (a Section 504 student with dyslexia) got one, everybody wants a laptop with voice recognition technology. Does everyone get a laptop now?

–  NO. For Section 504-eligible students, make tech decisions one student at a time through the 504 Committee process, looking for need as evidenced by data.


57

  What about technology that is already in the classroom or is available to everybody? Does it have to be accessible to students with disabilities?

Yes, see Dear Colleague Letter on Electronic Book Readers noted previously, and next slides.

20


58

  In re: Student with a Disability, 59 IDELR 29 (SEA IA 2012).

–  The District has a 1:1 laptop program, and C.T. participated in that program.

–  He received his laptop on August 10, 2011 –  On September 11, 2011 the District identified C.T.

as needing additional technology not already available on standard, district-issued laptops (almost one month after the start of classes).


59

  In re: Student with a Disability, Continued

–  The speech-to-text software, which was ordered in June 2011, was not installed and prepared for use until October 2011.

–  In response to parental complaints about text-to-speech software, a District official wrote the following: "The program is on his machine now; she was just not happy with it taking seven weeks.”


60


–  “The District considers itself in compliance with the IEP because C.T. had access to assistive technology in a classroom-based computer, even [though] C.T. did not have that technology on his 1:1 laptop for home use.”

21


61


–  “This argument must be rejected. First, the speech-to-text program was specifically designed for completing "longer writing assignments," the kind of assignments that high school students would be expected to complete at home.”


62


–  “Second, the District's interpretation would deny C.T. an equal opportunity for participation in the 1:1 laptop initiative. By not having IEP-required assistive technology on his 1:1 laptop, C.T. was denied equal access to the "full variety of educational program and services available to nondisabled peers.’ The Department will not accept an interpretation of C.T.'s IEP that renders the District's 1:1 laptop initiative inaccessible to C.T. ”

Documents

Important Sources of Information - Region 10 Website