Tuesday, September 29, 2009

CEC Adopts New Policy on Restraints and Seclusion

The Council for Exceptional Children has adopted a new policy concerning the use of restraints and seclusion on children with disabilities. The policy recommends that restraints and seclusion be used only as a last resort where the child or others are in physical danger. It also recommends that data collection for the use of such tactics be mandated by law and that further research be done on the effects of these techniques.

Here is a link to the full policy. Here is the accompanying press release.

The CEC is a well-respected organization. I'm sure that Congres will review this policy

Seal of the United States Government Accountab...Image via Wikipedia

before deciding what changes to make in the law. See our previous posts on the GAO report and Congressional hearings on the abuses of restraints and seclusion on school children with disabilities.
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Saturday, September 26, 2009

Great Hearing Officer Conference

Boise, Idaho signImage via Wikipedia

OK so I'm still getting the hang of my mobile-posting voice recognition technology.

The last post should read "Great Hearing Officer Conference." Lost in translation is the phrase that comes to mind. I was describing the conference of the National Association of Hearing Officials. I have been lucky enough to have served as a member of the faculty for this conference for the last five years. It is a fantastic group of people. They all do administrative hearings of various kinds. They also have some fun.

This year the conference was in beautiful Boise, Idaho. Great place. I also learned a lot about Basque culture. (I am sometimes amazed by what I do not know about the world and the people who inhabit it!) There was also a feast featuring Paella and Basque dancers. Potatoes are fantastic in Idaho.

Concerning the hearing process, I presented three sessions. There were many other excellent sessions offered including a useful diversity training. Keynotes by Justices of the Idaho and Oregon state supreme courts and an inspired defense of the rule of law by the Dean of the U of Idaho School of Law were each worth the price of admission.

I came away with two new thoughts. First, a good hearing officer must be a Renaissance person. A wide experience and world view coupled with appreciation for music, art, and life are minimum requirements.

Second, I got confirmation of a view I have been developing. A friend who is one of the foremost experts on Administrative law confirmed my newly-formed opinion that the reason that the federal and state Administrative Procedure Acts are vague regarding the hearing process is by design. Some experts believe that the law has not yet caught up to the reality of current day administrative law where the "trial" for many types of disputes takes place in an administrative hearing. Purists would have all "trials" take place before an Article III court (the judicial branch of government). If fact, today many disputes are resolved by administrative hearing officers (who are really part of the executive branch.) I disagree. I believe that the administrative hearing process is left vague in order to permit the administrative hearing officer to fashion procedures that will allow the fair presentation of evidence given the facts and circumstances of a dispute. This individualized justice ensures that the parties receive due process of law for a particular dispute and set of facts. Consistency is less important than fairness.

Any dissenters?

Thursday, September 24, 2009

Rate hearing officer...

Rate hearing officer conference, excellent session and disruptive attorneys.

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Tuesday, September 22, 2009

Comparative Special Education Law: Europe

I'm a big fan of comparative law. By looking at how things are done in the legal systems of other countries, we can evaluate how we do things here. Generally our legal system is far superior to that of other countries. (Just my opinion, but hard to argue.) Our Constitution's protections of individual rights and commitment to due process of law are really pretty awesome.

I recently came across a report entitled State of Minorities and Indigenous Peoples 2009- Education Special. The report is long and very interesting for a number of reasons, but here I am only going to discuss the special education law related contents. The report is available on this website. Look for the 2009 report.

On page 97 of the 127 page report, there is a description of three landmark cases. In one, DH et al v. The Czech Republic, Application # 57325 (Grand Chamber, European Court), the Court found that the practice of routinely placing children belonging to ethnic minorities in special schools for children with mental disabilities violated their rights. The European Court found that the use of invalid and culturally biased testing instruments caused Roma children to be 27 times more likely to be placed in such special schools than non-Roma. (Disproportionality anyone?)By utilizing these invalid and culturally biased instruments, the Court found the defendant to be in violation of Article 14 of the European Convention on Human Rights. I find this case fascinating. What do you think? Does this case raise any issues we should be concerned about?

Map of the Czech Republic showing cities and m...Image via Wikipedia

Friday, September 18, 2009

Senator Harkin Named Chair of the Senate Education Committee

Last week Senator Tom Harkin of Iowa was named to succeed Senator Ted Kennedy as Chairman of the all-important Senate Committee on Health, education Labor & Pensions. The Help Committee has jurisdiction over IDEA, the special education law, and other federal education issues. For our readers, the question is how will his chairmanship affect special education law. Many of us openly admired his predecessor. It is too early to predict how Chairman Harkin will affect education, but, here is some information on Senator Harkin, who also chairs the Senate Appropriations Subcommittee that covers education:

Sen. Tom Harkin speaks at a rally held by the ...Image via Wikipedia

Senator Harkin is widely regarded as a friend of people with disabilities and one of the principal architects of the Americans with Disabilities Act. This blog article makes that case.

Here is Senator Harkin's official website. This website provides some information on his voting record. This site contains additional biographical information beyond that on the link of the first mention of his name above. This is his Facebook page.

We do know that Senator Harkin was recently a cosponsor of a bill to fully (40% of excess costs) fund special education. Here is a report on that bill. This development is very encouraging.

Wednesday, September 16, 2009

The Idea Remedies Tour PartXXI: More on Compensatory Education

By now you know about my my IDEA Remedies Tour. I spoke in early July at the Seattle U. Academy for IDEA Hearing Officers on the topic of compensatory education.There have been many changes to the remedy of compensatory education. In late July, I presented two sessions at the 16th annual Education Law Conference in Portland, Maine. One of my topics there was the remedy of reimbursement for a unilateral placement. Collectively, I've been having some fun calling these events my IDEA Remedies Tour, and various other tours lamenting the premature demise of my high school rock drummer
aspirations. The recent posts concern the meat, or law, of the presentations as opposed to my preferred parts of the conferences, networking, seeing old friends, schmoozing, etc.

You now know about the trend toward a qualitative standard for compensatory education and the jurisdictions and colleagues that continue to hold the belief that a qualitative calculus is preferable.

Seal of the United States Court of Appeals for...Image via Wikipedia

Another major development in the law of compensatory education concerns the concept of delegation. Notably in

Bd of Educ of Fayette County, KY v LM ex rel TD 478 F.3d 307, 47 IDELR 122 (6th Cir. 3/2/7) the Sixth Circuit held that a hearing officer may not delegate the terms of a compensatory education award to the IEP team. IDEA requires that a due process HO not be an employee of the LEA, and some members of the IEP team are employees. See, Reid ex rel Reid v. District of Columbia 401 F.3d 516, 43 IDELR 32 (D.C. Cir. 3/25/05)(same conclusion re delegation issue). Contrast, LT ex rel BT v. Mansfiled Township Sch Dist 52 IDELR 71 (D. NJ 3/17/9) (Court ordered parties to develop remedial plan including compensatory education); New York City Dept of Educ 48 IDELR 116 (SEA NY 5/30/7) (remand to IEPT); Fulton County Sch Dist 49 IDELR 30 (SEA Ga 7/11/7); Hacienda La Puente Unified Sch Dist 48 IDELR 237 (SEA Calif 7/23/7); Fallbrook Union High Sch Dist 107 LRP 69374 (SEA Calif 11/20/7) (HO remanded matter to IEPT to determine correct placement).

Monday, September 14, 2009

I'm GettingThe Hang of Voice Recognition Software; Tech Update

That last post was pretty close to what I actually said. I'm starting to get the hang of the voice recognition software. Soon I'll be posting from my cellphone regularly! This may not sound like much, but it is a big personal victory.

In any event, the point was to remind you to vote in our non-scientific poll on the left-hand side of the blog. The question is given the recession should money/cost be a defense in special education cases. No has a commanding lead with 25 votes to 7 votes for yes. Maybe trails with 4 and one respondent claiming that he is too poor to vote. Please register your vote and make your voice heard.

Also please take one of the free subscriptions to this blog if you have not already done so. We are quickly becoming a force in the blogosphere, but numbers add to our credibility. Please spread the word about the three types of free subscriptions (email, RSS feed for a reader/aggregator, and widget.) Thanks to all subscribers for being there for these posts.

Finally don't forget to check out the discussion groups and other resources listed on the groups listed under helpful links on the left-hand side of the blog. The huge Facebook group brings many people together. The LinkedIn group is probably the fastest growing group. Check them out, you may get hooked.

Sunday, September 13, 2009

Remember to vote. Remember...

Remember to vote. Remember to vote in the pole concerning should expense or cost be a defense.

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Thursday, September 10, 2009

The IDEA Remedies Tour- Part XII (or so) More Compensatory Education

By now you know about my my IDEA Remedies Tour. I spoke in early July at the Seattle University Academy for IDEA Hearing Officers on the topic of compensatory education. Lotsa changes to the remedy of compensatory education. In late July, I presented two sessions at the 16th annual Education Law Conference in Portland, Maine. One of my topics there was the remedy of reimbursement for a unilateral placement. Collectively, I've been amusing myself calling these events my IDEA Remedies Tour, and various other tours illu

Centennial Fountain, Seattle University. From ...Image via Wikipedia

strating that I'd like to be a rock drummer again! The most recent posts concern the meat. or law, of the presentations as opposed to my preferred parts of the conferences, networking, seeing old friends, schmoozing, etc. The last post described the trend toward a qualitative standard for compensatory education. That is a major change in the law, but not all courts have hopped on the bandwagon. For example, in MC ex rel JC v. Central Regional Sch Dist 81 F.3d 389, 23 IDELR 1181 (3d Cir 4/17/1996) The Court adopted a quantitative formula for compensatory education: an award of compensatory education accrues when district knows or reasonably should have known education is not appropriate and continues for the period of deprivation of FAPE, but excludes the period of time reasonably necessary to correct the problem; Neena S by Robert & Jamie S v. School District of Philadelphia 108 LRP 71218 (ED PA 12/19/8)(same); Cumberland Valley Sch. Dist. 106 LRP 20056 (SEA Pa. 2/18/6) (same); Heather D v. Northampton Area Sch Dist 48 IDELR 67 (D. NJ 6/19/7). Court reversed SRO and awarded compensatory education from eighth grade all the way back to first grade. See also, Sch Dist of Philadelphia v. Deborah A ex rel Candiss C 52 IDELR 67 (E.D. Penna 3/24/9); Bakersfield Sch Dist 51 IDELR 142 (SEA Calif 10/22/8)(one hour per week for 12 months); San Benito High Sch Dist 108 LRP 69428 (SEA Calif 11/14/8); Unionville-Chadds Ford Sch Dist 47 IDELR 280 (SEA PA 4/12/7); In Re Student with a Disability 48 IDELR 146 (SEA NM 4/27/7) Elizabethtown Area Sch Dist 50 IDELR 24 (SEA PA 3/25/8); Warwick Sch Dist 107 LRP 10896 (SEA PA 12/1/6); In Re Student with a Disability 106 LRP 65292 (SEA NY 10/31/6); (similar quantitative approaches). For a defense of the quantitative approach and a criticism of the qualitative approach, See Zirkel, Perry, “Compensatory Education under the Individuals with Disabilities Education Act: The Third Circuit's Partially Mis-Leading Position,” 111 Penn State Law Review 879, 901-902 (2006); Available at SSRN:

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Tuesday, September 8, 2009

New Hot Button Issue- Service Dogs Part II Other Recent Caselaw

Some of you think that I am preoccupied with service dogs, but I believe that this is a coming trend in special education law. Other posts in this series have described a recent Illinois case involving an injunction requiring a service dog be permitted in school and the district's appeal.

A review of recent caselaw shows a pattern of other activity. For example, Hughes ex rel DWH v. District Sch Bd of Collier County 51 IDELR 130 (M.D. Fla 9/22/8) Magistrate recommended that parent claim re denial of FAPE because of failure to provide student with a service dog be permitted to proceed. Contrast, Bakersfield City Sch Dist 51 IDELR 142 (SEA Calif 10/22/8) HO upheld IEP that failed to include a service dog as a related service where student did not need the dog to receive FAPE and where dog would be more restrictive than aide offered in IEP.

resting service dogImage by faster panda kill kill via Flickr

Also I forgot about this case because it turns on the exhaustion of administrative remedies. So thanks to Mitch for reminding me. In
Cave ex rel Cave v. East Meadow Union free Sch Dist 514 F.3d 240, 49 IDELR 92 (2d Cir. 1/23/8) the Second Circuit rejected parents 504/ADA claims to add a service dog to student’s IEP because of failure to exhaust by first requesting a due process hearing.

By the way, I'm having some trouble with citations in the blog lately. I had a fancy add on to my browser that provides links to citations automatically, but it messes up this platform. If I haven't yet fixed it, please email me if you need a citation that gets botcher in the blogosphere.

In the meantime, please let me know if you hear of other cases involving service dogs. The tail wags the caselaw?

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Saturday, September 5, 2009

I'm Now Also a DC HO! & Disclaimer

I'm pleased to note that I am now accepting assignments as a due process hearing officer for Washington, DC. As most of you know, I have been a hearing officer and mediator for West Virginia since 1989. I also serve as a hearing officer for special education disputes in Utah, Pennsylvania (one district only - conflict); and as a backup for Alaska. In addition, I train hearing officers, mediators and other staff at national, regional and state level trainings.

As a result of my positions as an impartial (I have not yet ever represented parents or school districts in education disputes), I occasionally point out the disclaimer on the left-hand side of the blog. There are some things we cannot try to do with this blog. This seems like a good time to review it.

The Heading is IMPORTANT- Please Read. It is important. The purpose of this blog is educational only. We try t

City of Beckley, West VirginiaImage via Wikipedia

o provide information on special education law for a variety of stakeholders including: parents, special ed teachers, general ed teachers, school district attorneys, school principals, special ed directors, parent attorneys, children with disabilities, service providers, law professors, advocates, education professors, paraprofessionals, special ed coordinators, school disciplinarians, board members, advocacy groups, state education staff, hearing officers, mediators and adults with disabilities. We also try to increase awareness of the resources available to people involved in special education, and the links, blog roll and news sources on the left-hand side of this blog are intended to do just that. Many readers take advantage of the free subscriptions also available on the left-hand side of the blog; this helps our credibility in the blogosphere. Thanks for subscribing.

But the key point of the disclaimer is that this blog does not provide legal advice. If you are having a dispute involving special education, please consult with an attorney licensed in your jurisdiction, preferably one experienced in special education law. Also because of FERPA, the IDEA privacy protections and related state privacy laws, we cannot discuss actual parties to cases not in the public record, and we cannot discuss any protected personally identifiable information or reference any particular parties. Nothing on this blog should be misconstrued to be advice or instruction concerning what to do in a particular situation. The disclaimer also prohibits abusive, profane, offensive or defamatory language of any kind. The last category has not been a problem, but we lawyers tend to be careful.

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Thursday, September 3, 2009

Reflections on the IDEA Remedies Tour - Part II Developments in Compensatory Education

This series of posts concerns my IDEA Remedies Tour. I spoke in early July at the Seattle University Academy for IDEA Hearing Officers on the topic of compensatory education. Lotsa changes going on in the law as to the remedy of compensatory education. By the way, I'm not talking about the Title I definition of compensatory education for poor and culturally deprived children. ( Instead, my session was on the changes in the law of compensatory education, meaning the remedy when a parent/student prevails in a special education case.

In late July, I presented two sessions at the 16th annual Education Law Conference in Portland, Maine. One of my topics was the remedy of reimbursement for a unilateral placement. This portion of the series focuses upon the meat of my presentations. There have been many recent developments in the area of compensatory education as a remedy for violations of IDEA. The biggest change is the trend toward a qualitative standard for comp ed awards. The "old" method for calculating such awards was more quantitative in nature, A hearing officer or court would award one hour of compensatory education for each hour (or day) of denial of FAPE. Then came the Reid decision.

>content="Microsoft Word 12">The D.C Circuit developed ">qualitative standard for awards of compensatory education in order to place disabled students in the same position they would have occupied but for the school district’s violation of IDEA. The court rejected the hearing officer’s calculation awarding one hour of compensatory education for each day of denial of FAPE. The court also rejected the parents’ request of one hour of compensatory education for each hour of denial of FAPE. Instead, the court adopted a more flexible approach based upon the needs of the child who has been denied FAPE and suffered an educational loss. For example some students might require only short intensive compensatory programs targeting specific deficiencies. Other students may require more extended programs, perhaps requiring even more hours than the number of hours of FAPE denied. Compensatory education awards require adherence to the equitable principle of case-specific flexibility. Accordingly, the court remanded the matter for the submission of evidence as to the student’s deficiencies resulting from the denial of FAPE. See also, Seattle Sch Dist 48 IDELR 86 (SEA Wash 6/12/7); West Lyon Community Sch Dist v. Northwest Area Educ Agency 107 LRP 30759 (SEA Iowa 5/9/7); BC by JC v. Penn Manor Sch Dist 46 IDELR 135 (Pa Commonwealth Ct. 8/15/6); Berkeley Unified Sch Dist 107 LRP 2566 (SEA Calif 12/28/6) (similar qualitative approaches). Friendship Edison Public Charter Sch Collegiate Campus v. Nesbit 532 F.Supp.2d 61, 49 IDELR 159 (D. DC 1/31/8) Ct rejected HO’s “cookie cutter” approach to compensatory ed, noting that HO could not calculate an appropriate compensatory ed award without first determining present levels of performance; Freemont Unified Sch Dist 108 LRP 24532 (SEA Calif 2/19/8) HO tailored compensatory education award to the specific needs and weaknesses of the student as shown by present levels of performance; Mary McLeod Bethune Day Academy Public Charter Sch v. Bland ex rel TB 534 F.Supp.2d 109, 49 IDELR 183 (D.DC 2/20/8) Court remanded to HO because he had provided no explanation as to the justification for an award of 37.5 hours of compensatory ed although the court rejected the district argument that HO had used “cookie cutter approach” because there was no explanation at all. {On remand, the court approved the formula articulated by the HO because even though hours of service were used, the award was tailored to the unique needs of the child, 555 F.Supp.2d 130, 50 IDELR 134 (D.DC 5/27/8)}

More on this development in the next post.


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