Special Education Law Blog: October 2009

Saturday, October 31, 2009

Last Day to Vote on Our Poll; Tech Update

This is the last day to vote on our poll. The current question is In this tough economy, should cost/expense be a defense in a special education case. No leads Yes 43 to 17 with 7 maybes and 2 too poor to vote. This is not a scientific poll. Nonetheless, be sure to make your voice heard. Vote today before the polls close.

The tech news is good. The most recent blog post was done by cellphone, and it was flawless. You can listen to my enunciation by clicking of the link to Jott. Unfortunately the corresponding Twitter mini-post got mangled. It was supposed to say "Musings of a special ed mediator. See Special Education Law Blog." Somehow musings became "uses" and law became "wall." But hey, as the public defender in My Cousin Vinny says, "I'm gettin' better!"

The post a few days back was done exclusively by email, and it was perfect. So both mobile options are working. This is great for me because I travel a lot.

Finally, the new mobile version of the blog is very successful. A number of readers have bookmarked the mobile website http://www.xfruits.com/jimgerl/?id=79913
on their web enabled mobile phones. They then can read the posts on their phones. They still need to subscribe, and that allows them to see the graphics and polls and links an

Image by prettydaisies via Flickr

d other resources that are not available on the scaled down version of the mobile website.

Our number of subscribers is at an all time high. Thank you and please keep spreading the word. The popularity of the blog helps our credibility in the blogosphere. Please keep reading.

The related special ed law groups on Facebook, Ning, LinkedIn and Plaxo continue to generate great discussions and interesting wall posts. The links to these groups are on the left hand side of the blog. Check them out when you get a chance.

Thanks again for reading this blog. I am very pleased that we can provide information, provoke thought, discuss policy choices and make resources available to all of the stakeholders who read the blog.

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Thursday, October 29, 2009

Mediation feels better....

Mediation feels better. I don't know about the participants but being a Mediator feels better than being a hearing officer.
listen

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Wednesday, October 28, 2009

California Court Rules that Private Insurer Must Pay for Autism Therapy

A Los Angeles trial court has issued a preliminary ruling that private insurance companies must pay for applied behavioral analysis treatments for children with autism. The Court found that a memo by a state agency permitting denials of coverage for such treatments was an in valid form of regulation that conflicts with a state law requiring insurers to cover mental and emotional health problems equally to physical problems. Here is the news article from the L. A. Times.

It should be noted that this is just a preliminary ruling. As long time readers of this blog know, legal disputes are never over until they're over. (I couldn't resist quoting Yogi Berra with the World Series on the horizon. Next year it will be the Cubs; do you know how many years I have been saying that?) The case has not yet been decided. There is much more yet to come.

If the preliminary ruling stands however, this could be an important decision. It

Image via Wikipedia

also may impact special education law. Many parents have attempted to have their school systems provide or reimburse for ABA treatments. These have sometimes been successful, but often get stuck in the methodology category. Since the Rowley decision, courts have held that methodology choices are the province of professional educators. Where a district program denied FAPE, however, some hearing officers and courts have ordered ABA programs. If insurance companies must pay for ABA treatments or programs, (and as I said above, we are a long way from that being "the law.") there may be fewer attempts to look to school districts to pay for such services.

What do you think about this?

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Tuesday, October 27, 2009

Correction: 12.1% of Americans Have a Disability

The most recent post incorrectly states that 21.1% of Americans have a disability. That is a typo (or else proof of my arithmetic challenge. The correct number is 12.1%. Please follow the link for more details. I'm sorry for the confusion.

Thanks to alert reader Dick for bringing this to my attention.

By the way, this post was done remotely by email. Viva technology!
Sent from my BlackBerry wireless device from U.S. Cellular

Monday, October 26, 2009

Disability Statistics: All in One Place

People often ask me about statistics. Sometimes even in combination with a lawyer joke.

If you're like me, it is hard to keep numbers at your fingertips. Don't get me wrong, I loved mathematics; I even took calculus. I just hate arithmetic (the actual adding, dividing, or otherwise dealing with numbers.) Hence my reluctance to even attempt quoting statistics.

But statistics are important in the disability arena, and I have discovered an important resource that provides a wealth of disability related statistics. An agency with a brutal name provides a great service. The agency is the Rehabilitation Research & Training Center on Disability Statistics & Demographics, or to its friends - Stats-RRC. Here is their website.

They publish an annual report with a wealth of information. The Annual disability Statistics Compendium - 2009 is a gold mine. The 160 page report has all kinds of statistics on the prevalence of disabilities, and the education and employment of persons with disabilities. You can download or read the entire report here.

Here are some stats to whet your appetite: 21.1% of Americans have a disability of some sort. The state with the lowest percentage of people with a disability is Utah with 8.9%. The highest is West Virginia with 19%.

As of the Fall of 2007, of the total of 49 Million students aged 6-17 in the United States, about 5.6 Million, or about 11.4%, receive special education services under IDEA. Of the 5.9 Million students aged 6 to 21 who receive special education services under IDEA, about 4.7 Million, or 79.8 %, spend at least 40% of their day in the regular education classroom. (As with most other categories in the report, there are breakdowns for these stats by state.)

By type of disability, the 5.9 Million students aged 6 to 21 receiving special education under IDEA, the breakdown by eligibility category is as follows:

2.6 Million specific learning disability 43.3%
1.1 Million speech/language impairment 19.2%
624,000 other health impairment 10.6%
487,000 mental retardation 8.3%
438,000 emotional disturbance 7.4%
257,000 autism 4.3%
131,000 multiple disabilities 2.2%
88,000 developmental delay 1.5%
71,000 hearing impairment 1.2%
60,000 orthopedic impairment 1.0%
26,000 visual impairment 0.4%
24,000 traumatic brain injury 0.4%
1,300 deaf/blindness 0.02%

There is a lot more detail in the charts and statistics contained in the report. I highly recommend it to everybody interested in special education.

Saturday, October 24, 2009

Breaking News: You Can Now Read This Blog On Your Mobile Phone

I love my Blackberry. I'll bet that many of you also don't remember how life was possible before the advent of the mobile telephone. I was slow to arrive into the information revolution, but I'm there now! One serious problem is that you don't get a good view of some websites on a Blackberry or other web-enabled mobile phones. Only the sites that have a mobile version, ie one readable with a phone, are easy to read and use. The full version of the special education law blog is difficult to read on a phone. But guess what?

In my ongoing quest to make the best uses of technology, this blog now has a

Image by johnmuk via Flickr

mobile version which you can read on your cellphone. Just put this website into your mobile browser and bookmark it (I'm talking like I know the lingo; please ignore any incorrect word choices):
http://www.xfruits.com/jimgerl/?id=79913

The new mobile website doesn't have all the cool graphics and the links, polls and widgets. of the full version of the blog. It does, however, have a list with links to all of the last twenty posts. I have tried it out and the posts are very easy to read.

There is also a new link to the mobile version of the special education law blog on the lefthand side of the blog, but it should be easier if you load the website into your cellphone. Let me know how it works.

So for those who cannot get enough of this blog, you can read my posts while stuck in an airport or during a boring meeting. (Hey not during my presentations or speeches, ok?). Also please continue to subscribe; we need your support through the free subscriptions to maintain or blogosphere street cred. (Once again forgive my abuse of the language.)

But remember, as exciting as this development is, please do not read this blog or anything else on your phone while driving an automobile or any place else that may not be appropriate. Thanks and please keep reading.

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Wednesday, October 21, 2009

Big New Decision by 5th Circuit: Part I - Educational Progress & FAPE

Most special education hearing officer and court opinions are pretty boring. They cite ROWLEY, the seminal supreme court decision, pay homage to the FAPE requirement and apply boilerplate from previous decisions. But every once in a while, there is a case with some new analysis. Special ed law junkies, like myself, love these reasoned decisions that seem to break new ground. Sometimes the new approaches of a court will not "have legs;" they die on the vine. Other such decisions are embraced by other hearing officers and courts around the country and become a new trend or hot button issue.

That is the true beauty of our legal system. A court applies some new logic or announces a new rule. Then professors and litigants either love it or hate it and they battle it out in other places As hearing officers and later other courts accept or reject the groundbreaking opinion, a rule gets straightened out. But as special education law lovers know all too well; there is no finality here. After the "rule" is established, Congress reauthorizes the statute and perhaps changes the rule. Then the feds ,as I love to call the Department of Education, adopt regulations. Then the states adopt regs. The cycle never really ends, and I don't think that's bad unless you abhor ambiguity. (Show of hands here, how many remember the "F-Scale?")

So the Fifth Circuit Court of Appeals has turned out two big new special education decisions in less than a month. In the next installment in this series, we'll deal with the decision involving reimbursement for unilateral placements: residential vs. educational. Today we'll discuss Houston Independent School District v. V. P. 53 IDELR 1 (5th Cir. 09/09/09). You can view the opinion here.

The court first reiterated the Fifth Circuit's four part test for whether an IEP provides FAPE:
"We have set out four factors that serve as "indicators of whether an IEP is reasonably calculated to provide a meaningful educational benefit under the IDEA," and these factors are whether "(1) the program is individualized on the basis of the student's assessment and performance; (2) the program is administered in the least restrictive environment; (3) the services are provided in a coordinated and collaborative manner by the key 'stakeholders'; and (4) positive academic and non-academic benefits are demonstrated."

NOTE: I strongly disagree that the second factor is a component of the FAPE analysis. I believe that LRE is a placement issue unrelated to the services issue underlying FAPE. I believe that FAPE is a separate and independent requirement of IDEA. That is not at issue in this case, but as my lawyer friends like to say, I am preserving my record for a fight for another day!

Back to the VP decision, the court focused upon the fourth factor in its FAPE analysis. The unusual thing about this decision is that the teacher testified that she thought the student had made academic progress not because of his IEP but rather because of modifications implemented by the teacher that were not submitted to or approved by the IEP team. The school district argued that the student had made academic progress and that was the end of the debate; case over, they win. The Fifth Circuit said not so fast. The student made academic progress in spite of not because of the district's IEP. Accordingly, this is not FAPE as defined by IDEA. Parents win.

This is somewhat related to the issue of whether a court or hearing officer may consider evidence of academic progress after an IEP is written or whether the only question was whether an IEP was reasonably calculated to achieve academic benefit at the time it was written. I once thought that that would also be a hot button issue, but itseemed that it never "had legs!"

This case is a big deal. Look for lots of discussion on this point. Other hearing officers and courts outside of the Fifth Circuit may disagree. This case is only the law for the Fifth Circuit, which includes Texas, Louisiana and Mississippi. Courts and hearing officers from other states can consider the reasoning of the VP decision and accept or reject. By the way here is a nice map of the states covered by each federal circuit court of appeals.

So I am again predicting that this case is going to be a trend or hot button issue in special education law. What do you think? Please let me know if you hear of academic progress not tied to the IEP being rejected, or accepted, in other jurisdictions. I like to keep track of these things. I'm anxious to hear your reactions. Thanks in advance.

Tuesday, October 20, 2009

Cure for Autism?

I was listening to the radio while driving through Washington, DC today. One of the stations was having a series of listener support drives. One speaker was named Gary Null. He was offering a number of items as premiums in exchange for pledges from listeners. If it was not public radio, it sure sounded like it.

He talked a lot about immune system boosters and free radicals. One of the listener premiums available to listeners who pledged a contribution was a Berry/Fruit concoction that was supposedly good for one's immune system. He also referred to the staff of the FDA as "skunks", and argued that the FDA was under the control of the pharmaceutical industry. He urged listeners to vote against all congressional incumbents.

But what caught my attention was his remarks concerning autism. He claimed to have a protocol that he could recommend that would cure autism. He gave some examples of kids he has worked with who now have no symptoms associated with autism related disorders.

The connection with our topic here is a bit thin, I'll admit it. But there are a lot of decisions in special education cases in the last few years concerning methodology, especially in cases involving autism. Even though the law is pretty clear that school districts can upursue various methodologies so long as they provide FAPE to the student. So most of these cases don't go very far, but I'm thinking that if this Mr. Null claims to have a cure, we will likely see a bunch of cases involving his system.

What do you think? Is there a cure for autism? If so, will or should that affect the legal obligations of school districts? I predict some arguments on these points.

Friday, October 16, 2009

Breaking News: Facebook Special ed Law Group Now has 600 members

Welcome to the blogosphere. As regular readers know, I'm still getting used to it although the uses of the internet for information sharing are almost limitless. I appreciate the need to try to utilize the new developments in technology to help people. That was the goal of this blog from the beginning. We have spread mostly understandable information about special education law and made known resources that are available to stakeholders. Our growing and large number of subscribers (from all sectors of special education stakeholders) shows that the plan is working

The Special Education Law Blog also seeks to use social networking tools as additional resources. We have also had great success in this regard. The lefthand side of the blog lists our mini-posts, also called tweets. The lefthand side also lists links to the Ning, Plaxo, LinkedIn and Twitter groups. By far the most successful of the groups, however, is the Facebook Special Education Law Group. I'm pleased to announce that the Facebook group has just gone over the 600 member mark. That's a big group. The discussions are pretty lively, and the opinions are strong. There is also a wall and a place to list other non-commercial resources. If you are involved in special education, please join the group. We'd be happy to have you. And to the group members, congratulations on passing another milestone.

Image via Wikipedia

It all started right here of course, and I really appreciate our readers. Please take one of the free subscriptions (available as email, RSS feed or a widget for your own blog or website) , if you haven't done so. Numbers drive credibility in the blogosphere, and we are quickly becoming a big fish. (I'm not sure I've ever quite used those words before, but I like the sound of it!)

Thanks again everybody.

Wednesday, October 14, 2009

Service Dogs Part IX- Illinois A. G. Weighs In

We have discussed the Illinois service dog case previously in this blog. I am fascinated by these types of cases and I believe that they are a hot button issue in current special education law. For example here is a link to a recent service dog case from New York state recently reported in the Adjunct Law Prof Blog. (Thanks to Professor Mitchell Rubinstein for the article and the heads up.)

The Monroe County Illinois Circuit (1st level) Judge granted the parents of 5 year old Carter Kalbfeisch, who has autism, an injunction requiring the school district to permit him to bring his service dog with him to school. The school district has appealed the decision claiming that other children are allergic to dogs.

The newest development in this case is that Illinois Attorney General has weighed in on the issue. The AG has filed a motion to intervene on behalf of the parents. She argues that the outcome of the appellate decision could affect other students with disabilities who use service animals.

Image by ©hicagoenergy via Flickr

Here is a news article from the Mt. Vernon Register- News.

Please keep me posted if you know of other service dog cases around the country. Thanks for all your support.

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Monday, October 12, 2009

Senate Confirms Alexa Posny as Assistant Secretary of OSERS

On October 5, 2009, the U. S. senate confirmed Alexa Posny as Assistant Secretary of education for the the Office of Special Education and Rehabilitative Services. This portion of the Department has jurisdiction over special education and vocational rehabilitation, among other things. Here is a link to the OSERS website.

Image by vassego via Flickr

Alexa Posny is currently the Commissioner of the Kansas Department of Education. She has formerly served as Director of the federal Office of Special Education Programs and as the state Special Education for Kansas. Here is an article from the Topeka Capitol Journal. Here is another biography of the Assistant Secretary.

I have seen her speak and she is a very effective and witty communicator. Good luck to the new Assistant Secretary from the special education law blog. I have already sent a written request for an interview.

Saturday, October 10, 2009

Testing 1, 2, 3 Again!

OK. I'm continuing to push the envelope. This post is being done exclusively by email. Pretty cool, huh. Imagine the ways I can use this if it works. I'm stuck in a hearing, or fully enjoying a conference at which I am speaking. I just send a quick email and it is posted to the blog. Granted, it is not as amazing as the posts by talking into my phone, yet the accuracy should be a little higher. This is a test... this is only a test.

Speaking of technology, the social networking groups I have begun are another great place to discuss special ed law issues. The Facebook, LinkedIn and Ning groups have some interesting wall and discussion group activity. The Plaxo group though still only has three members; if you use Plaxo and like special ed law, please join.

Image by cambodia4kidsorg via Flickr

Don't forget to vote in our poll. The question is should expense or cost be a defense in special ed disputes. No leads yes by a 37 to 10 margin with 5 maybes and 2 too poor to vote. Be sure to cast your ballot.

Finally if you enjoy these posts, please take one of the free subscriptions available on the lefthand side of the blog. Our subscriber numbers help open many doors. Thank you for continuing to read this blog!

Zemanta helped me add links & pictures to this email. It can do it for you too.

Wednesday, October 7, 2009

U S Supreme Court Declines Review of Two Special Ed Cases

The United states Supreme Court has declined review of two special education cases. The order denying "certiorari," or review, of the lower court decision may be found on pages 8 and 9 of this link.

In LM, et al v. Capistrano Unified Sch Dist 538 F.3d 1261, 50 IDELR 181 (9th Cir. 8/19/2008), the Ninth Circuit held that the school district violated state law by limiting the time that a psychologist could observe the student's placement to 20 minute increments, the parents were not thereby deprived of a meaningful opportunity to participate in the IEP review process. Therefore FAPE was provided by the district. The Supremes let the Ninth Circuit decision stand.

The other case was Stancourt ex rel Stancourt v. Worthington City Sch Dist 51 IDELR 19 (Ohio Ct App 9/9/2008). In this decision, the Ohio appellate court ruled that the stay put clause did not prohibit a school district from modifying a student's behavior plan while a due process hearing was pending because a behavior plan is not a part of an "educational placement,"where evidence supported that the behavior plan would not have been effective without modification. The Supremes also decided not to hear this case.

Image via Wikipedia

Unfortunately for us special ed law junkies, there will be no supreme court action this term. I'm going to go out on a limb though and suggest that there will be a special education decision by the high court next term. What do you think? Am I right?

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Tuesday, October 6, 2009

Is the Economy Causing Problems or Not? The Backdoor Theory

Maybe it is coming in the back door. My earlier posts confronted the economy head on. Should expense be a defense in a recession is our current poll question. (Be sure to vote; exercise the franchise.) But maybe the Supreme Court precedent and fundamental fairness require a negative answer when phrased in that way.

But I was just talking to a special education hearing officer from another state who sees the impact of the giant recession in another, and more subtle, way. (No wonder I missed it!) In her state, the numbers of certain categories of due process hearings are way up. The types of special ed issues on the rise, Independent Educational Evaluations and Reimbursement for Unilateral Placements, are the types that if not litigated can cost a school district big bucks. Maybe I was on to something, but I was not being sophisticated enough in my analysis.

What are you observing. We have readers across this great country and beyond its borders. What are you seeing. Is the economic downturn coming in through the back door? Let me know what you are observing.

As many of you know, I'm an optimist. Heck, I'm a fan of the Chicago Cubs, I have to be an optimist. I'm convinced that the economy is already rebounding. We were pretty close to the edge though, and I still think that the world of special education dispute resolution could not have been immune. Tell me what you think.

Image via Wikipedia

Saturday, October 3, 2009

Tamimg Technology: Mobile Blogging & Tech Update

Jack Kerouac via last.fm

The voice recognition technology actually understood my words for the most recent post and it seems to have gotten it right. This is a huge victory for me. My Chicago + San Francisco + West Virginia accent sometimes overwhelms the software. By the way when I make these mobile posts, you can actually hear my voice (assuming that anybody wants to) by clicking on the "listen" link. If you do, you will see that I am trying to enunciate carefully.

I had just completed a mediation, so I thought that I would raise a question about mediation. Many people feel that it is the preferred method of resolving special ed disputes because it can work on repairing the relationships between parents and school personnel. In parts of the country where there are few attorneys who represent parents, I believe that mediation is more popular. Where there are lots of complaints (the now somewhat aged GAO study found that 80% of all due process complaints are filed in just six states), I believe that mediation is not in favor. what do you think?

Any way this mobile blogging really is pretty cool. Look for occasional small posts form the road. Maybe not Jack Kerouac or Willie Nelson, but hey I'm trying.

Our number of subscribers is really booming. Thank you! The numbers are really big in the blogosphere credibility realm. If you have not already done so, please consider taking a free subscription. On the upper lefthand side of the blog, you can click on one of three options: a free email subscription where you get the posts directly to your email inbox; a free RSS feed that will deliver the posts to an aggregator or feed reader; and a free blidget, or blog widget, that you can embed into your own blog or website. Thanks for subscribing!

Also related to technology are the resources that this blog makes available to you at the click of a mouse. On the lefthand side of the blog, there are links to a number of special education law groups in cyberspace. They include the Facebook, Ning, LinkedIn, Plaxo and Twitter groups. These groups have discussion boards and threads that can be quite passionate and often contain useful information. You can also click on the link to follow our mini-posts on Twitter. I'm still working on speaking in soundbites, not my strength!

Also under "Helpful Links" are the OSEP IDEA website, with searchable federal statute and regs- it is a pretty user-friendly website, the federal information clearing house and other very useful websites.

There is also a section with links to other education law blogs that I read regularly. Followed by the CEC daily briefing (this is an example of a blidget) and a link to blognet education news which quotes the key education blog posts of the day. I also post links to registration site for conferences that I will be speaking at in the near future.

Finally there is our ongoing poll. These are not "scientific," but we enjoy them anyway. The current question is given the recession should cost/expense be a defense in a special education dispute? So far No leads Yes by a wide 34 to 10 margin. There are also 5 maybes and 2 "too poor to vote." Be sure to vote; make your voice heard. Oh yeah, I approve this message.

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Friday, October 2, 2009

Mediation. Is mediation...

Mediation. Is mediation the best way to go for special education disputes?
listen

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Thursday, October 1, 2009

If You Could Write the Special Ed Law...

IDEA, the nation's special education law is up for reauthorization. True, Congress is busy with other stuff, but sooner or, more likely later, the lawmakers will turn their attention to amending the special education statute.

What would you like to see? If you could write the law (and in a democracy, at least in theory you can have some influence), what would you do? I know that many feel that the law is imperfect or worse. If you follow the link to the Facebook special education law group on the lefthand side of the blog, you will see some passionate discussions. As I have previously mentioned, I'd like to collect your thoughts and present them as a group. As the number of subscribers of this blog continues to grow, we gain credibility in the blogosphere. I hope that this will translate into a voice in the process. So what do you think? What would you change?

I know from previous posts that that many of you have strong opinions on transition planning and related issues. What else should be changed?

I am considering requesting a change in the adversary nature of due process hearings and will continue a previous series of posts on that issue to try to flesh out the alternatives a bit more. Do you agree these changes should be made?

How about the Rowley standard? Should the educational benefit = appropriate standard be changed? Would you have the Congress reverse the other recent high court decisions: Weast (burden of proof in a dp hearing); Murphy (expert witness fees awarded to prevailing parents); Winkleman (parents can represent themselves in federal court on dp hearing appeals).

How about the Forrest Grove issue; should the Congress specify whether or not a child must attend public school before reimbursement for a unilateral placement is available, and if so for how long? Should this apply in non-FAPE cases?

Should the recent Fifth Circuit ruling that added conditions for reimbursement for a unilateral placement be codified in the statute?

Should attorney's fees be addressed?

How about Response to Intervention - is it working well as a means of identifying specific learning disabilities? Should it be expanded?

How about NCLB as it applies to kids with disabilities: do we like the accountability aspects? how about the high stakes test? What about the school sanctions provisions?

Do you think the role or mission of OSEP should change? What could it do better as the federal agency charged with enforcing the special ed law?

My goal here is to collect some of your responses and present them to Congress. Sure I've got some ideas, but why not flex our muscles. The readership of this blog is growing. I'm quite proud that many different kinds of special ed stakeholders are tuning in. We have won awards and recognition. If there is power in numbers, why not present some of our thoughts as a group? I'll try to be fair in any presentation I make and I'll try to separate out my opinions (and as you know they can be strong) from group opinions or from group lack of consensus. I think that this may be fun. Please let me know how you would change the special ed laws.

Image via Wikipedia