Friday, December 31, 2010

Happy New Year - Hint for You Be The Judge

A Danish Christmas tree illuminated with burni...Image via Wikipedia
Happy New Year!  Isn't this time of year great.  We just finished with Christmas and the many blessings provided by the emergency broadcast system (see the Christmas post). Now we are celebrating the new year and the promise associated with a clean slate.

It is time for resolutions.  Even those who are not Cubs fans seem to be full of hope at this time of year. Hope is a good thing to have.

By the way for those of you playing along with the You Be the Judge series.  The current fact pattern is not from a court decision - at least not one court decision (hint, hint).

Thanks for reading and for enjoying the wide world of special education law.
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Tuesday, December 28, 2010

Procedural Safeguards The Series - Part IX

federal register - u.s. gov image - no copyrightImage via Wikipedia
This is the ninth installment in a multi-part series on procedural safeguards under the federal special education law, the Individuals With Disabilities Education Act. I work a lot in this area, so it is near and dear to my heart. Despite the importance of procedural safeguards. however, many issues in this area are misunderstood. I hope that all of the different types of special education stakeholders who read this blog find the information in this series helpful. Be sure to tell me what you think about the series.

State Complaint Procedures

Each state education agency must maintain a state complaint procedure. 34 C.F.R. §§300.151-300.153. OSEP has stated that the state complaint system is required even though Congress has not specifically provided or addressed a state complaint system in the IDEA. 71 Fed. Register No. 156 at page 46606 (August 14, 2006).

Within one year of an alleged violation of the Act, any entity may file a state complaint. 34 C.F.R. §§300.151-300.153. A ruling is required within 60 days subject to extension for exceptional circumstances or an agreement to mediate. 34 C.F.R. §300.152. Only agreement, and not consent, is required to extend the 60 day time limit for processing complaints. 71 Fed. Register No. 156 at page 46604 (August 14, 2006). Here is an analysis by the Regional Resource Centers concerning how the exceptional circumstances exception should be applied.
Where a state complaint and a due process hearing are requested on the same topic, the complaint investigator must set aside the portion of the complaint being addressed by due process until the hearing officer issues a decision. 34 C.F.R. §300.152(c). 71 Fed. Register No. 156 at page 46606 (August 14, 2006).

Where a state complaint investigator finds that IDEA has been violated, a corrective action is ordered. The relief that may be awarded includes compensatory education and reimbursement. 34 C.F.R. § 300.151(b). The purpose of this change to the federal regulations in 2006 was to make it clear that states have broad flexibility in awarding an appropriate remedy in resolving state complaints. 71 Fed. Register No. 156 at page 46602 (August 14, 2006).

When a state has finished processing a state complaint, a party who disagrees with the result may file a due process hearing complaint on the same issue if the statute of limitations has not passed. 71 Fed. Register No. 156 at page 46607 (August 14, 2006).

Here is the OSEP Topic Brief on State Complaint Procedures:

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Friday, December 24, 2010

A Christmas Message - A True Story

Christmas in the post-War United StatesImage via Wikipedia
With all of the commercials and ads and internet sales and commercialism, sometimes we really forget what Christmas is about.  Yesterday was an interesting twist. 

I was driving in my car doing some last minute errands.  As I frequently do, I had the radio on and was listening to some music.  The Christmas songs were enjoyable.  Then I heard this:

And so its been said,
Many times many ways...
(then in a computerized-mechanical voice)
This is a test of the emergency broadcast network...

I can't make this stuff up.

Merry Christmas everybody.  Please have a happy holiday secure in the knowledge that the emergency broadcast network is still alive to protect us in the event of a nuclear war! Can I get an amen?

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Wednesday, December 22, 2010

Procedural Safeguards The Series - Part VIII

Mediator 2Image via Wikipedia
This is the eighth installment in a multi-part series on procedural safeguards under the federal special education law, the Individuals With Disabilities Education Act. I work a lot in this area, so it is near and dear to my heart. Despite the importance of procedural safeguards. however, many issues in this area are misunderstood. I hope that all of the different types of special education stakeholders who read this blog find the information in this series helpful. Be sure to tell me what you think about the series.


Mediation is a highly flexible way to resolve disagreements between school systems and parents of children with disabilities. An impartial person, called a mediator, helps parents and school district personnel to communicate more effectively and develop a written document that contains the details of their agreement. The mediator has been trained in effective mediation techniques.

Participation in mediation is completely voluntary; parents and school districts only have to participate if they choose to. The mediation process is also confidential; discussions cannot be used in any future due process hearing or court proceeding. 34 CFR § 300.506(b)(8); 71 Fed. Register No. 156 at pages 46695-96 (August 14, 2006).

IDEA requires state education agencies to provide a mediation system at no cost to the parties; mediation is free for both parents and school districts. Mediation must be available at any point in the process, including disputes arising before a due process complaint has been filed. IDEA §615(e).

A mediation agreement must state that mediation discussions are confidential and may not be used in a subsequent due process hearing or court proceeding. § 615(e)(2)(F)(i). IDEA specifically provides that mediation agreements are enforceable in court. § 615(e)(2)(F)(iii). OSEP has noted that nothing prevents parties to a mediation from agreeing to have the mediator facilitate an IEP team meeting. 71 Fed. Register No. 156 at page 46695 (August 14, 2006).

Mediators must be selected on a random, rotational or other impartial basis, and one such impartial basis would be agreement by the parties. 71 Fed. Register No. 156 at page 46695 (August 14, 2006). Because mediators are not selected by the parents, states are not required to provide a list of their mediators or their qualifications to the parents or the public in general. 71 Fed. Register No. 156 at page 46695 (August 14, 2006).

ADDITIONAL RESOURCES for MEDIATORS: In addition to the general IDEA resources, mediators should frequently visit the CADRE website. The Consortium for Appropriate Dispute Resolution in Special Education is an OSEP funded group that encourages mediation, IEP facilitation and other means of special education dispute resolution that are less formal and legalistic than due process hearings. Their website is loaded with helpful articles, materials and other information and may be found at
Here is the OSEP Topic Brief on Mediation:

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Monday, December 20, 2010

The Effect of Mobility Upon A Child's Education

US Government Accountability Office sealImage via Wikipedia

We like to move around.  As a country we are a highly mobile bunch. How many of us have siblings, or kids or other relatives  in another state?  (The Christmas visit is near, no?)  One advertising slogan encourages us to "move around the country."  How many movies center upon the theme of a road trip?

Indeed, in America travel has legal implications.  The right to travel, or more accurately to move from state to state, is a fundamental right with constitutionally protected status.  Just ask the supremes.  Shapiro v. Thompson 394 U.S. 618 (1969).  You can re ad the decision here.

So it was with some interest that I read the recent report by the Government Accountability Office concerning mobility and education.   They found that 13% of children in grades K - 8 are highly mobile (defined as having moved 4 times or more!).  They are disproportionately poor and African American.

11.5% of schools were highly mobile (ie, more than 10% of  K - 8 students left school before the end of the year).  Highly mobile schools had larger percentages of poor kids, special ed kids, and limited English proficiency kids.  Concerning the challenges for the special education kids, the report note the difficulties caused by trying to get records from one school to the next. (Note that the issue of transfer students was one of the areas addressed by the 2004 amendments to IDEA.)

This is an interesting report.  I encourage you to read it, especially if you are a mobile parent or student or if you work with mobile students.  Here is a summary.  Here is the entire report.
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Thursday, December 16, 2010

Tech Update: Facebook Special Education Law Group Now Has 885 Members

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One of the offspring of this blog is the Facebook special education law group.  We created the group to provide an additional forum for open and robust discussion of special education law issues. The group certainly has some robust discussions.  It is one of the ways that we try to get resources to all of the stakeholders in special education.  

Many folks take advantage of the free subscriptions to this blog available on the lefthand side of the blog.  You can subscribe by email, or to our RSS feed in an aggregator or feed reader, or if you have your own blog or website, you can get a blidget (or blog + widget) that contains our posts or headlines right there on your blog or website. Please take one of the free subscriptions.  Numbers rule in the blogosphere, and our robust numbers help our credibility.  Thanks and please keep reading.

You can also follow us and get the posts on Facebook.  Many folks who do that have also joined the Facebook special education law group.  Check it out.  The group now has 885 members.  I have extended an open invitation for friend status to all group members so that they can get our posts through Facebook.

Other folks follow the blog by signing up for our twitter feed.  You can also get our "tweets" by following the link on the lefthand side of the blog. 

Other readers have joined our LinkedIn special education law group.   All of these options are available because our goal is to share this information with as many people as possible.  Are we still having fun?  Yes we are.
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Monday, December 13, 2010

Procedural Safeguards The Series - Part VII

Meetings are often held in conference roomsImage via Wikipedia
This is the seventh installment in a multi-part series on procedural safeguards under the federal special education law, the Individuals With Disabilities Education Act. I work a lot in this area, so it is near and dear to my heart. Despite the importance of procedural safeguards. however, many issues in this area are misunderstood. I hope that all of the different types of special education stakeholders who read this blog find the information in this series helpful. Be sure to tell me what you think about the series.

Facilitated IEPs

In order to help IEP teams reach agreements, several states and districts have been experimenting with facilitated Individualized Education Program (IEP) meetings. The use of externally facilitated IEP meetings is a growing national trend. When relationships between parents and schools are difficult, facilitated meetings may be helpful.

While a facilitator does not chair the IEP team meeting, he helps keep members of the team focused on the development of the IEP while at the same time defusing conflicts and disagreements that may arise during the meeting. At the meeting, the facilitator uses a number of communication and other skills that create an environment in which the IEP team members can listen to and consider each other’s suggestions and work together to complete the development of an IEP that will provide FAPE for the child.

The type of person who facilitates the meeting varies. Sometimes, a member of the team will facilitate the meeting. In some cases, a district representative with expert facilitation skills may be called in to help the team complete the IEP process. In other cases, another parent, a trained parent advocate, or support person may facilitate the meeting. Occasionally a student may lead his own IEP meetings.

When IEP teams reach an impasse or meetings are expected to be extremely contentious, however, an independent, trained facilitator not affiliated with the team or school district may be able to help guide the process. The presence of the trained facilitator helps keep the team members on task. The facilitator also is trained in using techniques to help prevent miscommunications and disagreements from derailing the IEP process.

A helpful guide to IEP Facilitation by the TAA Alliance and CADRE may be found here:
All of the materials from the presentations at the National Conference on IEP Facilitation sponsored by CADRE are available here.

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Thursday, December 9, 2010

You Be The Judge - Part III

Gavel | Andrew F. Scott: P6023391Image by afsart via Flickr
This is the third installment in a new series.  We will provide you with a nice juicy, yet thorny,  fact pattern and you then get to become the hearing officer or judge.  (Not so easy is it?)  Remember though that special ed law is closed to metaphysics than it is to contract law.  There may not always be a "right" answer.  There may be as many correct answers as there were disparate rulings on the last case to be decided by the Supremes.  Remember also the dialectic of special ed law: it is new law and at the same time the law is changed periodically creating a cycle of uncertainty. Remember to let us know what you think.  Enjoy:

Jimmy was born on May 10 2001, and he was diagnosed with autism, among other conditions on October 2 2003.   Jimmy was found to be eligible for special education and related services as a preschool special needs student. He began attending preschool in the school district in approximately December, 2004.
          Between January 10, 2005 and May 25, 2005 there were five IEP team meetings for the student.  At the January 10 meeting the school district representatives placed a draft IEP on the table and asked the parents to sign it so that they could get on with the business of educating children.  The parents balked and asked to discuss the proposed IEP.  The LEA staff agreed to do so although their resentment was palpable.  The meeting was not completed because it had been scheduled for twenty minutes and according to the meeting notes, the “pesky questions” from the parents “ruined everything.” The meeting was rescheduled for January 17th.
          At the January 17th meeting, the parents appeared with an “advocate’” who was another parent who had lost five previous due process hearings against the school district.  The advocate was disrespectful of the LEA personnel frequently demanding that they explain their education, experience and other credentials in detail. She frequently referred to the special ed director as “jackass.”
          After two hours, the meeting was reconvened on January 30th.  The meeting was scheduled for the whole school day.  The meeting note reflect that the student’s father and the “advocate” “engaged in delaying tactics.”  The parent spent four hours asking questions concerning the meaning of the goal “manages his clothing.”  The meeting was contentious and tempers flared many times.  The special education teacher, weary of being questioned as to her qualifications told the parent late in the afternoon to “shut up and sit up straight.”
          The meeting was rescheduled for February 12th.  At this meeting the parent and the “advocate” demanded that the IEP include 30 hours of discrete trial training and a dedicated one-on-one aide and occupational therapy because the research shows that all autistic children require these services. The LEA personnel refused noting that the district has an “eclectic” methodology program that it uses for all autistic children. The impasse was never resolved.
          Another IEP team meeting was convened on May 25, 2005. At this meeting the school district personnel developed an IEP for Jimmy.  The IEP featured the school district’s eclectic methodology in an inclusion setting.  Jimmy also received a two hours per week of speech-language therapy as a related service.  No prior written notice was issued by the school district.
          Jimmy made progress toward his 19 of his 24 IEP goals and in the general curriculum during the rest of the 2004-2005 school year. But in the first half of the next school year, he made progress toward only two of his 24 goals.
          On July 5, 2005, the student’s IEP team met and the parents requested that the student be evaluated for occupational therapy.  On August 3, 2005, the schools district’s occupational therapist conducted an evaluation of Jimmy. He was able to cut with scissors, zip and unzip a book bag and button and unbutton a large button. He was on age level with fine motor skills and adult daily living skills. The therapist concluded that occupational therapy was not recommended for Jimmy.
          On September 15 and 16, 2005, the schools preschool special needs specialist/lead teacher made formal observations of Jimmy in his classroom. She found during said visits that Jimmy's program was appropriate and that he was making educational progress despite his lack of progress toward his IEP goals.
          On September 25, 2005, the IEP team was reconvened at the parents request.  The parents said nothing at all during the entire meeting.  The advocate was not present at the meeting.  The parents appeared to have been arguing loudly with each other just before the IEP team meeting.  The LEA members of the team drafted an IEP that was identical to the previous school years IEP, with no changes even to present levels of performance.
          On September 27, 2005, the parents filed a due process complaint.
          You are the hearing officer - how do you rule? 
 (Hint this is not a real case- or at least not one real case.)
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Monday, December 6, 2010

Feedback You Be The judge - Part II

G.W.F. Hegel is considered to be one of the ea...Image via WikipediaThe feed back on the second installment of the new you be the judge series has been amazing.

Some of you though, still seem to think that the way the court decides a case is the only correct answer.  The whole point of new law (that which did not come over on the boat from England) like special education law is that we are more in the realm of advanced existential philosophy than we are say contract law.  Almost all answers were correct,  There is room for many approaches.
The clearest example is how courts disagree on the same set of facts.  A previous example we have used here is the series of disagreements over the set of facts in TA, the case that made it to the U S Supreme Court.  The hearing officer ruled one way.  The district court reversed and ruled the other way.  The U S Court of Appeals reversed and ruled the other way, but one of three judges dissented.  The Supreme Court affirmed, but three of the nine disagreed.  None of them was wrong; special ed law is evolving.  
If the ambiguity is frustrating, sorry it is the best we can do.  So make sure your tray tables are in their locked position because Wednesday brings part three of this fun new series.  Our wild ride continues. Hegel anyone?

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Thursday, December 2, 2010

You Be the Judge Part II - "The Answer"

Four Corners - A Common BondImage by Chazz Layne via Flickr
The facts from the last installment in our new series were taken from another real decision.  This time the facts were from Systema by Systema v. Academy Sch Dist No. 20, 538 F.3d 1306, 50 IDELR 213 (Tenth Circuit 08/26/2008).  First, many of you had excellent answers.  One thing we all know at this point is that there is never one right answer in special education law.  Thank you for sharing your thoughts.  Everybody who plays wins; in this game that is true.

You can read the entire Tenth Circuit decision here.  Do not distress if your answer varied.  In fact, this is one area where the federal circuits vary in their analysis.

In summary, the court held that the student was not harmed by the district's failure to complete an IEP where the parents unilaterally terminated the process.  The court remanded to the trial court, however, concerning the substantive validity of the IEP.  Interestingly, the court noted that FAPE analysis is limited to the written IEP document itself and that subsequent proposals made by the district must not be considered. This is not "the law" everywhere.  

What do you think of this rule?  Should a FAPE analysis be limited to the "four corners' of the IEP?

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