Big Changes to §504: Do They Affect Special Education - Part III

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In previous posts we have examined why Congress made changes to the Americans with Disabilities Act and §504. Now were ready to discuss some of the changes:

- The definition of major life activities has been expanded to include major bodily functions, sleeping, standing, lifting,bending, reading, concentrating, thinking and communicating.

- Impairments that are episodic or in remission is considered a disability if it would substantially limit a major life activity when active.

- The determination of whether an impairment substantially limits a major life activity must be made without regard to the ameliorative effects of mitigating measures such as medication, medical supplies, ...low vision devices (not including ordinary eyeglasses or contact lenses), prosthetics, hearing aids, cochlear implants, ...the use of assertive technology, ... learned behavioral or adaptive neurological modifications... 42 USC §12102(4)(E).

- a relaxed definition of substantial limitation.


These are the big changes. In the next post on this series, we will review how theses changes might affect the education of children with disabilities.

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Gerls Rock Tour Summer 2010 - We Have a Winner!

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By now many of you know about my special education law summer 2010 speaking tour. I have been struggling with a name for the tour. A number of you have had some interesting suggestions. Thanks for all the ideas. One reader had a great suggestion: Gerls Rock Tour.

The suggested name encompasses several layers of meaning. One is the Disney based Girlz Rock. I wasn't aware of it, but you can read about it here. In addition it is meant to be a general shout out to those of the female persuasion, as the suggesting reader called them.

I like it. What do you think?

Here is the remaining portion of the tour itinerary:

From August 30 - September 1, 2010, I will be at the Arizona Special Education Directors Institute in Litchfield Park, Arizona. I will do three presentations on the role of the non-attorney advocate in IEP team meetings and due process hearings. You can follow the links to register here.

I will for the sixth straight year be a part of the faculty at the National Association of Hearing Officials Annual Conference from September 26 - 29, 2010 in Music City, Nashville, Tennessee. I will be presenting on the prehearing process and on ruling on objections. The registration link trail begins here.

Disclaimer time (I am still a lawyer): None of the state agencies or private organizations mentioned above in any way endorse this blog or any statements made by me or readers and commenters. For purposes of things said here, I do not represent any organization or person. My statements are my own and only represent my own opinion.

Any way, please find me at these conferences and say hello. I always enjoy talking to those who read this blog.

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Tour Contest Winner

Look for new post tomorrow for the winner of the name the tour contest.
Sent from my BlackBerry wireless device from U.S. Cellular

Big Changes to §504: Do They Affect Special Education - Part II

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In the previous post in this series, we discussed the buzz during my summer rock tour on special education law concerning the changes to §504 and the ADA. The big question seems to be how the changes will affect the education of children with disabilities.

Congress was very upset with two lines of court decisions stemming from two opinions by the U. S. Supreme Court. One line of cases began with Sutton v. United Airlines 527 US 471, 30 IDELR 681 (1999). There the Supremes ruled that in determining eligibility for employees with disabilities who have used mitigating measures, such as medication or contact lenses, the disability must be measured by taking the mitigating measures into account. (Under §504 and ADA to be eligible, a person must have a disability that substantially affects a major life activity.)

Another involved cases following the decision in Toyota Manufacturing v. Williams 534 U.S. 184, 102 LRP 6137 (2002). In that case, the Court held that people who have impairments that substantially limit a life activity are not protected where the limitation is one that would substantially affect the lives of most people. The Supremes ruled that this would not be a major life activity.

It was in reaction to these changes that Congress changed the laws. More on the changes in the next post in this series.

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Update on Social Networks for Special Education Law

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In addition to this incredible blog, we have also sponsored a number of special education law groups on various social networks. These groups, we hope, utilize some of the new technologies to connect people and to encourage further discussion of topics that interest some or all special education stakeholders (as you may have noticed, I love that word; do stakeholders generally have stakes in their hands? The imagery is fantastic!)

The Facebook group is the most successful. At last count, we had some 830 members. The discussion boards sometimes reflect the emotion that comes with special education conflict, but the discussions are always interesting and generally very informative.

The LinkedIn group is also very active. A lot of special education types have connected through that group. Communication is a wonderful thing. The Plaxo group is still new, but we have great hopes for it.

The Ning group has meet its demise. Ning will no longer be free soon, and the internet really should be free. Chant in unison... Free Ning!

Don't forget that you can also sign up for our tweets on Twitter. Or you can use the mobile version of this blog to read the posts on your mobile phone.

Most important of all, if you haven't already signed up for a free subscription, please do so in order to avoid missing our posts. You can subscribe to receive our posts by email, or by RSS feed in a reader or aggregator, or if you have your own blog or website, you can get a blidget(=blog = widget) to insert directly into your website or blog.

Links for the free subscriptions, the social network groups, and the other services mentioned in this post are available on the lefthand side of the blog.

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The Jim Gerl Tour (de France?) on Special Education Law Continues Later This Month

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If you read this blog regularly, you know that I have a delusional belief that I am a rock star and that my special ed law presentations somehow constitute a rock and roll tour of the country. As the title indicate, I continue to struggle with a title for the tour. Suggestions by readers to date have not exactly been helpful.

If you will be in any of the following places while I am in town, please stop me and say hello. I have met a bunch of readers this summer and I always enjoy meeting those who read these pages. Please continue telling me what you think.

From August 30 - September 1, 2010, I will be at the Arizona Special Education Directors Institute in Litchfield Park, Arizona. I will do three presentations on the role of the non-attorney advocate in IEP team meetings and due process hearings. You can follow the links to register here.

I will for the sixth straight year be a part of the faculty at the National Association of Hearing Officials Annual Conference from September 26 - 29, 2010 in Music City, Nashville, Tennessee. I will be presenting on the prehearing process and on ruling on objections. The registration link trail begins here.

Disclaimer time (very different from hammer time) None of the state agencies or private organizations mentioned above in any way endorse this blog or any statements made by me or readers and commenters. For purposes of things said here, I do not represent any organization or person. My statements are my own and they really couldn't buy me if they tried, which so far they haven't

Any way, please find me at these conferences and say hey.

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Big Changes to §504: Do They Affect Special Education - Part I

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As my summer rock tour on special education law continues, one theme is emerging: there have been big changes to §504 (through the ADA amendments by Congress.) The big question is how much these changes will affect the education of kids with disabilities.

At least three speakers, and many of the hallway conversations, during these conferences have directly addressed the changes to §504. One frequently heard comment is that the main dissatisfaction of the Congress with decisions involving §504 and the ADA in the employment context. Congress felt that the U. S. Supreme Court was interpreting the laws too narrowly and blocking many employees from going to court to be heard on the question of reasonableness of accommodations that they were requesting.

In particular Congress took issue with two lines of cases by the Supreme Court. One involved cases following Sutton v. United Airlines 527 US 471, 30 IDELR 681 (1999). Another involved cases following Toyota Manufacturing v. Williams 534 U.S. 184, 102 LRP 6137 (2002).

In the next part in this series, we will look at these cases and why Congress was upset.

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Disability Discrimination - Part I

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A friend of mine has spent years bringing public attention to issues of disability discrimination and its history. She recently informed me of a practice at Ellis Island that shocked me.

When public health officials tested the potential immigrants, those suspected of having a "mental defect" would be stopped and an official would place an "X" on the persons shirt with chalk. This greatly offends me. Can you imagine being greeted in a new land by somebody who write on you with chalk? Here is an article that describes the practice. Here is a powerpoint about the practice.

I know that immigration is a big issue in today's news. What do you think about the big X written in chalk? Isn't this a harsh way to make the point? What would you do?

I am also intrigued by the fact that some of the immigrants were clever enough to remove the chalk marks or simply turned their shirts inside out! Some people were just destined to be Americans.

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Tip of the Hat to CADRE - Part I

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I had reason today to take a long look at the excellent work of CADRE.

If you are involved in dispute resolution in special education at all, you are likely already aware of CADRE, the OSEP funded technical assistance organization that specializes in dispute resolution. I have met many of you at the incredible CADRE conferences. If you want to learn about special ed mediation, IEP facilitation, and network with others involved in these disciplines, you need to attend one of the CADRE national symposia.

If you are interested in special education law, especially the dispute resolution end of the spectrum, you need to visit the CADRE website. There is a permanent link on the lefthand side of the blog, but you can also use this link. Mediators will find the mother load of resources there. IEP facilitators will find all materials from one of the big national conferences on the topic. Check out this valuable resource.

More on CADRE in the next post in this series.

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The Metaphysics of Special Education Law

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I pointed out a few times during my presentations at the recent Wyoming and Utah Special Education Conferences that special education law is a lot closer to metaphysics than it is to, say contract law.

Contract law, and other types of old law, have "hornbook" rules that have been settled for ages. Old lawyers can apply those settled rules to a fact pattern and predict an outcome with reasonable certainty. (Although as one very senior attorney once told me, "anybody who says they know what a jury will do is lying.")

Special ed law, though, is new law. New law being roughly defined as what did not come over on the boat from England. The mid 1970's stuff is brand new law. Especially when you mix in equal parts of social policy and children's rights, the result is less predictable than other fields of law. Pity the fool.

Add to this mix, the never-ending cycle of special education law and things become even less clear. IDEA must be periodically reauthorized by Congress, we are again overdue. Then the feds must promulgate regulations, upon which the public may comment before they are finalized. Then, states develop regs. Soon hearing officer decisions appear followed by court opinions. Just when we become comfortable with the current state of the law, Congress reauthorizes and the process begins again.

So if a lack of ambiguity appeals to you, special education law may not be your cup of tea. (I still think that there must be a Jeff Foxworthy joke in that line, but I cannot find one I can use in a public forum. Any ideas that are fit to print?)

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Utah Conference Was Outstanding

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The 2010 Utah Institute on Special Education Law was another outstanding conference. The second leg of my summer tour was a big success. For one thing, I got to renew a bunch of old acquaintances. For another, I met some readers of this blog for the first time. Thanks again for introducing yourselves.

I also really enjoyed working with the Utah hearing officers and mediators. I got to do the training of these folks this year and, as always, I really enjoyed working with them. My fellow hearing officers and mediators see the world from a perspective that is a bit different from the advocates for either side. I'm glad that I got to spend some time with them.

The sessions were packed full of information and the conference materials should be a valuable resource. As usual, some of my favorite moments involved conversations with my colleagues in more informal settings. You know who you are.

I'll have more on the substantive sessions from the Utah and Wyoming conferences in coming weeks.

The Utah Institute is a great conference. If you ever get a chance, please attend it.

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Seclusion and Restraints Big Topic at Conferences

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This week, I am at the Utah Institute on Special Education Law. Seclusion and Restraints continues to be the hottest of hot button issues in special education law. Two speakers have mentioned the issue so far.

The post yesterday discussed the controversy over whether the new federal law should prohibit IEP teams from including seclusion and restraints.

The House and Senate bills define physical restraints as "a personal restriction that immobilizes or reduces the ability of an individual to move his or her arms, legs or head freely." The bills define seclusion as "a behavior control technique involving locked isolation." Seclusion does not include "time outs."

Both speakers emphasized that there will be a renewed emphasis on positive behavior interventions and restraints. This is consistent with the answer to my question by Dr. Alexa Posny, the new Assistant Secretary of Education for the Office of Special Education and Rehabilitative Services. Look for the reauthorization of IDEA to include enhanced and more specific directions for IEP teams concerning behavior techniques and interventions. In addition, HR 5628, the Ending Corporal Punishment in Schools Act, also emphasizes the need for positive behavior interventions. Look for more PBIS mandates soon.

One speaker predicted a huge increase in IDEA hearings and court appeals involving behavior issues, especially concerning seclusion and restraints. The awareness of this issue is likely to cause such a result as we have previously predicted in this blog.

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2010 Utah Institute on Special Education Law Begins: Washington Update

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I am attending the 2010 Utah Institute on Special Education Law. I will be presenting at the Post Institute trainings for hearing officers and mediators. I have already met a few readers of this blog here. Thanks for saying hello.

There are a number of highly regarded national speakers here. I am always amazed by how much is going on in special education law.

The first keynote was by Nancy Reder, the Director of Government Services for the well-respected National Association of State Directors of Special Education. She spoke on What's Happening in Washington. The short answer was that given the domination of health care reform, banking regulation, the BP oil spill and the impending elections- not very much.

ESEA, formerly known as No Child Left Behind, will eventually be reauthorized- maybe early next year, but don't hold your breath. IDEA will be reauthorized after that.

The seclusion and restraints bill has passed the House. The Senate has not yet acted, and once again do not hold your breath. One controversy that has popped up involves whether the law should prohibit IEPs from including mention of seclusion and restraints. The House agrees with advocacy groups that the law should not allow theses aversive techniques in any IEP. The Senate apparently does not agree and this major policy difference prevents this issue from being resolved.

The Congress seems to be paralyzed at this point, but seclusion and restraints continues to be a major hot button issue. Thanks to Nancy Reder and the Utah Institute for this useful information.

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