Friday, August 29, 2014

Bullying of Kids With Disabilities - The Series - Rides Again

English: Bullying on IRFE in March 5, 2007, th...
English: Bullying on IRFE in March 5, 2007, the first class day. (Photo credit: Wikipedia)
















Before I get to our newest bullying series, I want to thank our readers for the overwhelming response to my notice that my 2012-2013 caselaw outline is for sale.  We appreciate your ongoing support.  If you need information about the legal update, please shoot me an email at jimgerl@gmail.com.

Bullying remains the hottest of hot button issues in special education law. We are going to be running an updated version of our previous series on Bullying in the coming weeks.  The series is one of our most popular sets of posts, please let me know whether you find it useful.

One development that we will highlight is the recent of courts to view bullying as an IDEA, or at least a potential IDEA issue.

As always we appreciate your reading the blog!

Monday, August 25, 2014

Weekly Question!

I hate it when all violations of IDEA are described as a denial of FAPE. What other violations of IDEA can you list off the top of your head?

Friday, August 22, 2014

My 2012-2013 Summary of Special Education Caselaw Is Now Available

English: A stack of copy paper.
 (Photo credit: Wikipedia)
















I have a legal update I want you to buy.

Our main goals in establishing this blog seven plus years ago were to provide a discussion of special education law issues from an impartial perspective and to put special education stakeholders and practitioners in touch with other available resources.  In view of these goals I have so far resisted the temptation to advertise products on the blog. I am rethinking this policy and would appreciate your thoughts.

Another purpose of the blog, however, was to inform people of the services I offer in the field of special education law.  I have decided, therefore, to occasionally let readers know on these pages some of the resources and services that I make available. So far, these would include only items that I have created myself.

Now available for purchase is a  259 page outline of the caselaw from courts and hearing officers that were issued in calendar years 2012-2013.  This is the same legal update outline that I use in part when training hearing officers, mediators, complaint investigators, monitors, state department of education staff and other persons.  The outline has been successfully used by hundreds of people as a starting point for legal research on a topic of interest or an issue in a special ed case.  Lawyers, advocates, parents, school officials and other readers of this blog will find the outline to be an invaluable tool as a starting point for their research.  It does not cover every decision, but it is a very thorough legal update. I prepare one each year for the caselaw primarily from the two previous years.

If you are interested in purchasing the outline, please send me an email at jimgerl@gmail.com and I will send you all of the details. 

If there is a positive reaction to this outline, I will offer other outlines on various topics from time to time.  I appreciate your feedback on this matter.


Thursday, August 21, 2014

Breaking News: Our LinkedIn Special Ed Law Group has 16,000 Members

Nederlands: Linked In icon
Linked In icon (Photo credit: Wikipedia)




















One of our goals in creating this blog was to provide both discussion of special education law topics from an impartial perspective and to provide resources where interested persons can find more information.

The impartial perspective is very important.  I have never represented or advised parents or school personnel on a special ed matter.  I am a hearing officer and mediator for a number of states.  I also advise states and train their personnel.  That is why when parents or school personnel contact me, I cannot help them.  They generally understand that I am impartial.  The disclaimer on the blog explains this point in more detail.

The breaking news is this: the Special Education Law Group that we started through this blog over on LinkedIn now has over 16,000 members.  (That is not a typo!) That is  an increase of more than 5,000 in the last year. There are members all over the world. You should go to the group's site and take a look. There are always good discussions- sometimes even heated disagreements. If you lose this post, there is always a link to our LinkedIn group on the lefthand side of the blog. It is a part of our effort to use social media to spread good impartial information about special education law.

For those with long memories, we also have a Facebook group.  At some point unfortunately the Facebook overlords went all corporate in our face and "archived" our group because we were not constantly issuing nonsensical posts about what we ate for breakfast, etc. The group still exists, but it is cumbersome.  We also started a Ning group, but they have since disappeared from the internet.

We also offer a lot of resources for parents, teachers (both regular ed and special ed), principals, school psychologists, hearing officers, mediators, complaint investigators, monitors, special ed directors, academics, advocates, SEA personnel, LEA personnel, paraprofessionals, other related services providers, lawyers (both parent and school district) as well as other special ed law junkies of all types.

On the left-hand side of the blog, you can sign up for a free subscription to our blog.  You can choose between receiving posts by email or in a reader by RSS feed.  You can also get a widget to insert this blog directly into your own website or blog. Subscriptions are important because numbers have meaning in the blogosphere.  Please sign up for a subscription.  Thanks.

Also on the left hand side are a series of embedded YouTube videos of interviews of me on dispute resolution topics by Marshall Peter, Director of CADRE. (Many other videos and resources pertaining to special ed dispute resolution are available on the CADRE website - there is a link under resources.)

Many readers follow our headlines on twitter.  Check out our twitter activity here. Other readers follow our posts on our Tumblr mini-blog here.

There are many links to websites and other important blogs on the lefthand side of the blog.  Also the search bar is just for this blog. So if you are interested in one topic, say bullying, just type it into the search bar and you can find all of our posts on that topic.

There are many more valuable resources on the blog.  Please explore it and take advantage of these other sites. Also, we are always looking to improve. If you know of other impartial resources, please suggest them.  

In the meantime, we appreciate your outstanding support.

Tuesday, August 19, 2014

Procedural Violations: My Presentation at the Utah Special Education Law Institute - Part II

An original Get Out of Jail Free Chance card.
An original Get Out of Jail Free Chance card. (Photo credit: Wikipedia)












In part I of this post, I provided some of the law and background concerning procedural violations. In this post I will describe my very unscientific study of procedural violation caselaw from a two year period. But first, before I got to the meat of the presentation, I had to give four caveats:
#1 Special Education Law is closer to Metaphysics than it is to Contract Law. ...just sayin'

#2 My informal and unscientific study of procedural violations relies upon published decisions. Most lawyers believe that cases that are very good for one side tend to settle, and other factors like the new resolution session may influence cases from going through  to decision and on to court. So the sample certainly doesn't reflect a fair representation of actual disputes. Also the non-random sample looked at cases from a two year period further reducing the scientific validity of the "study."

#3 Perhaps most importantly, the session was not designed to teach school personnel how to get away with procedural violations.  My position is that nobody should violate IDEA, procedurally or substantively, ever. Period. I was not attempting to design a get out of jail free card.

#4 Finally, it is important to remember that the requirement for something more than just a procedural violation pertains only to due process hearings.  A state complaint investigator can remedy a procedural violation without regard to the additional factors that must be found before a denial of FAPE can be determined by a hearing officer or court on a due process complaint.  Remember also that the limit on procedural violations is only applicable to FAPE cases.

OK so now for my findings and remember that there is no claim to scientific method  (insert drum roll here.):

The most actionable procedural violation = holding the IEP Team meeting without the parents.

The number one harmless procedural violation = failure to invite persons to the IEP team meeting.

The number two actionable procedural violation =  failure to maintain/retain documentation of the student's progress.

The number two harmless procedural violation = post-secondary transition issues.

Honorable mention harmless procedural violations:
3. issues regarding IEP goals
4. fba/bip behavior issues
5. due process complaint issues
6. IEP TEam meeting times, duration and/or specifying frequency/duration of services, etc.

More importantly, please note that there may be a third rail in these cases. As the Circuit Court of Appeals for the Tenth Circuit has observed, the conduct of the parties in terms of unreasonableness or bad faith has a bearing on how courts analyze procedural violations (and maybe everything else.) See, Sytsema by Sytsema v. Academy Sch Dist No. 20 538 F.3d 1306, 50 IDELR 213 (10th Cir. 2008).  See also, Hjortness by Hjortness v. Neenah Joint Sch Dist 498 F.3d 655, 48 IDELR 119 (7th Cir. 8/20/2007) and MM ex rel DM v Sch Dist of Greenville County 303 F.3d 523 (4th Cir. 2002).  This is a variation on the old saw- bad facts make bad law, yet there is more than a little truth in it.




Again please note the limitations of my study. But there it is. How do my "results" compare with your experience?

  

Monday, August 18, 2014

Weekly Question!

I hate it when all violations of IDEA are described as a denial of FAPE. What other violations of IDEA can you list off the top of your head?

Friday, August 15, 2014

Procedural Violations: My Presentation at the Utah Special Education Law Institute - Part I

The Delicate Arch, a natural arch near Moab, Utah
The Delicate Arch, a natural arch near Moab, Utah (Photo credit: Wikipedia)


















The 2014 Utah  Institute on Special Education Law was fantastic as always.  At least it was once I finally got there.  My presentation went well; those in attendance participated actively and made great comments during a two hour session right after lunch on the second day of the conference.  I enjoyed it, and the discussion was rich.

My topic was procedural violations - which ones are more likely to be actionable. It involved a review of  recent court decisions involving procedural violations.  First some law:

There are four categories of IDEA violations that can result in a due process hearing or court appeal: Denial of a Free Appropriate Public Education (FAPE); inappropriate educational placement; inappropriate evaluation and failure to identify. IDEA §§615(f)(1)(A), 615(b)(6).  Decisions by a hearing officer concerning FAPE must be made on substantive grounds. IDEA §615(f)(3)(E)(i); 34 C.F.R. §300.513(a)(1) ; See 71 Fed.Reg. No. 156 at 46707.
Unlike substantive violations of the Act, procedural violations are only actionable if they impede FAPE; or significantly impede the parents’ opportunity to participate; or cause a deprivation of educational benefits.  IDEA § 615 (f)(3)(E) {20 U.S.C. §1515(f)(3)(E)}; See 34 C.F.R. § 300.513(a)(2); See District of Columbia Public Schs (JG) 111 LRP 23798 (SEA DC 1/28/11); In Re: Student With a Disability 58 IDELR 270 (JG) (SEA WV 3/6/12); Midd West Sch Dist 112 LRP 42002 (JG) (SEA Penna 7/22/12). This provision was added by the 2004 reauthorization, but many courts had already read the old IDEA to the same effect.  For example, see, D. L. ex. rel. J. L. v. Unified Sch. Dist. 42 IDELR 139 (Tenth Cir. 2004); M. L. v. Federal Way Sch. Dist. 39 IDELR 236 (Ninth Cir. 2003); and Gadsby v. Grasmick 25 IDELR 621 (Fourth Cir. 1997). The Act also notes that despite the rule regarding procedural violations, a hearing officer may order an LEA to comply with procedural requirements of the law. §615(f)(3)(iii).
Compliance with IDEA procedures is important.  As the Supreme Court noted in the seminal Rowley decision, the ACT’s procedural requirements are significant.  To determine whether a child with a disability has been provided a free and appropriate public education ("FAPE"), the Court announced a two-part test. The two part test involves first whether or not the school district has substantially complied with the procedural safeguards in the Act and second an analysis of whether the student's IEP is reasonably calculated to confer meaningful educational benefit.  Bd. of Educ., etc. v. Rowley, 458 U.S. 178, 102 S. Ct. 3034, 553 IDELR 656 (1982)

In the next post I will discuss the meat of the presentation.
.