Wednesday, July 30, 2014

Standard for Non-FAPE Cases

English: The Supreme Court of the United State...
English: The Supreme Court of the United States. Washington, D.C.
 (Photo credit: Wikipedia)



















This post was inspired by a discussion during a presentation by Professor Mark Weber at the recent conference at Seattle University at the Academy for IDEA hearing officers.  It was also inspired by a law review article by Professor Weber: Mark C Weber, “Common-Law Interpretation of Appropriate Education: The Road Not Taken in Rowley,” 41 Journal of Law & Education 95 (January 2012); also available at the SSRN. Professor Weber has a lot to answer for!

The standard for FAPE was articulated by the seminal  Rowley decision of the Supreme Court.  At least 75% of the IDEA cases involve FAPE.  But IDEA cases can involve four issues: FAPE; placement (LRE, discipline; etc); evaluation, and identification (child find, eligibility, etc.) IDEA, § 615(b)(6).  Hearing officers and judges tend to generically refer to all violations of IDEA as a denial of FAPE.  For example, you may see an issue stated as - did the district deny FAPE to the student by improperly evaluating him on...    An evaluation violation is not a FAPE question, but we lump everything into FAPE sometimes and that is not accurate.

So does the Rowley basic floor standard apply in these other kinds of cases? The circuit courts of appeal have addressed standards for some of the elements of the other three violations (eg, LRE or child find), and my view is that the Rowley analysis is inapplicable.  I'm not sure that the legal standard gets a lot of analysis in these other cases though. What do you think?

Monday, July 28, 2014

Weekly Question!

Procedural violations of IDEA are only actionable if they adversely impact the child's education or significantly impair the parents' participation rights. Which procedural violations are most likely to result in an adverse finding against a school district?

Thursday, July 24, 2014

ADA Is 24 Years Old

This is the internationally recognized symbol ...
This is the internationally recognized symbol for accessibility (Photo credit: Wikipedia)






















The Americans With Disabilities Act was signed into law twenty-four years ago this Saturday. If you are interested in suggestions on how to celebrate, here is an ADA Anniversary Toolkit. For more information about the ADA, see this post in the blog of the Council of Exceptional Children.

Our friends at the U. S. Census Bureau have assembled some interesting numbers in honor of the data.  Here they are:




Americans with Disabilities Act: July 26
On July 26, 1990, President George H.W. Bush signed the Americans with Disabilities Act, which prohibits discrimination against people with disabilities in employment, transportation, public accommodations, commercial facilities, telecommunications, and state and local government services.
Population Distribution
56.7 million
Number of people in the United States in 2010 with a disability. People with disabilities  represented 19 percent of the civilian noninstitutionalized population. Persons with a disability have a physical or mental impairment that affects one or more major life activities, such as walking, bathing, dressing, eating, preparing meals, going outside the home, or doing housework. A disability can occur at birth or at any point in a person’s life.
By age —
• 8 percent of children under 15 had a disability.
• 21 percent of people 15 and older had a disability.
• 17 percent of people 21 to 64 had a disability.
• 50 percent of adults 65 and older had a disability.
Source: Americans with Disabilities: 2010 
>
20%
Percentage of females with a disability, compared with 17 percent of males.
Source: Americans with Disabilities: 2010 
>
Where They Live
19%
Percent of the civilian noninstitutionalized population in West Virginia with a disability ─ the highest rate of any state in the nation. Utah, at 9 percent, had the lowest rate.
Source: 2012 American Community Survey, Table R1810
>
30%
Percent of the civilian noninstitutionalized population in Pike County, Ky., with a disability ─ the highest rate in the nation among counties with populations of 65,000 or more. Arlington County, Va., at 5 percent, had among the lowest rates.


23%
Percent of the civilian noninstitutionalized population in Lorain, Ohio, with a disability ─ among the highest rates in the nation among places with populations of 65,000 or more. Weston, Fla., at 3 percent, had among the lowest rates.
>
Specific Disabilities
7.6 million
Number of people 15 and older who had a hearing impairment. Among people 65 and older, 4 million had hearing impairments.
Source: Americans with Disabilities: 2010 
>
8.1 million
Number of people 15 and older with a vision impairment. 
Source: Americans with Disabilities: 2010 
>
30.6 million
Number of people 15 and older who had movement impairment, such as walking or climbing stairs.
Source: Americans with Disabilities: 2010 
>
3.6 million
Number of people 15 and older who used a wheelchair. This compares with 11.6 million people who used canes, crutches or walkers.
Source: Americans with Disabilities: 2010 
>
2.4 million
Number of people 15 and older who had Alzheimer’s disease, senility or any form of neurocognitive disorders.
Source: Americans with Disabilities: 2010 
>
12.0 million
Number of people 15 and older who required the assistance of others in order to perform one or more basic or instrumental activities of daily living, such as bathing, dressing, doing housework and preparing meals.
Source: Americans with Disabilities: 2010 
>
Earnings and Poverty
$20,184
Median earnings in the past 12 months for people with a disability. This is 66 percent of the median earnings, $30,660, for those without a disability.
Source: 2012 American Community Survey, Table B18140
>
323,000
Number of employed people with disabilities earning $100,000 or more annually. This amounts to 4 percent of all people with disabilities who were employed. In comparison, 8 percent of all people without a disability who were employed earned $100,000 or more annually.
Source: Disability Employment Tabulation, from 2008-2010 American Community Survey, Table Set 7A <http://www.census.gov/people/disabilityemptab/data
/>
23%
Percentage of people with a disability who were in poverty. By comparison, those without a disability had a poverty rate of 15 percent.
Source: 2012 American Community Survey, Table B18130
>
Government Assistance
30%
Percentage of people who received income-based government assistance and have a disability; 18 percent of assistance recipients had difficulty walking or climbing stairs.
Source: Disability Characteristics of Income-Based Government Assistance Recipients in the United States: 2011 (from American Community Survey) 
>
42%
The percentage of income-based assistance recipients in West Virginia with a disability, which led all states. Arizona ranked the lowest, at 25 percent.
Source: Disability Characteristics of Income-Based Government Assistance Recipients in the United States: 2011 (from American Community Survey)
>
Health Insurance
10%
Percentage of people with a disability who lacked health insurance. Those without a disability were more likely to be without coverage (15 percent).
Source: 2012 American Community Survey, Table B18135
>

Tuesday, July 22, 2014

Seattle Academy A Big Success

Pike Place Market in Seattle
Pike Place Market in Seattle (Photo credit: Wikipedia)


















Last week was the annual Seattle U. Academy for IDEA hearing officers and administrative law judges. It was especially good this year. All those special ed hearing officers in one place is always good- a chance to compare notes, think about what works and get some validation. It is nice to see old friends and make some new ones.  

My panel on decision writing led things off.  It easily filled three hours and it went very well. The participants were very involved and they gave helpful input.  Two colleagues offered sample decisions for discussion.  It was one of those sessions where we all learned from each other.  It was a decision-writing clinic. Great session.

Other highlights included learning about behavior in children from Jerry Sattler and getting a copy of his authoritative treatise on the subject.  Also an interesting session on neuroscience and decision making biases finished off the training. 

Thanks again to those who made this training a success.


Monday, July 21, 2014

Weekly Question!

Procedural violations of IDEA are only actionable if they adversely impact the child's education or significantly impair the parents' participation rights. Which procedural violations are most likely to result in an adverse finding against a school district?

Monday, July 14, 2014

Weekly Question!

Procedural violations of IDEA are only actionable if they adversely impact the child's education or significantly impair the parents' participation rights. Which procedural violations are most likely to result in an adverse finding against a school district?

Thursday, July 10, 2014

More Thoughts on Ermini v. Vittori

Seal of the United States Court of Appeals for...
Seal of the United States Court of Appeals for the Second Circuit. (Photo credit: Wikipedia)



















Our last post discussed the breaking second circuit decision in Ermini v. Vittori.  You can read that post here. It is a big case.

The case is interesting for a number of reasons.  First there is the international aspect.  The case involves a treaty- pretty unusual and different than the usual statutes, regs and caselaw.  And yes, as alert readers have informed me, the child involved, Danielle, is in fact a boy.

Also the case raises issues of domestic violence. Awareness of this problem is higher than ever and that is good.  But the problem for society is still a huge one.  There is a tie in to special ed law.  I believe that there is a connection between domestic violence and the bullying problem which continues to be a hot button.  The Ermini decision places domestic violence issue front and center.

But the big question from our perspective is how this case will affect the IDEA analysis of ABA-based therapy.  I predict (and my crystal ball is sometimes cloudy!) that hearing officers and courts in special education cases will soon be hearing arguments on just what this second circuit decision means for purposes of IDEA.  It was not an IDEA case, but I am already imagining the arguments that clever lawyers on both sides will be making.

What are your thoughts on the IDEA significance of Ermini v. Vittori?