Tuesday, August 30, 2011

Arizona Current Stop On 2011 Jim Gerl Special Education Law Tour

Landsat 7 Satellite image of the Phoenix Metro...Image via Wikipedia
well I'm in toasty hot Phoenix for the current stop on the 2011 Jim Gerl Special Education Law Tour.  It is hot, but it is a dry heat, much like an oven! Predicted high tomorrow is 107 degrees!

The conference is going well.  Inspiration and Stevie Wonder friend Mike May spoke this morning.  He has graciously agreed to be interviewed for this blog.  He is an award winning skier and all around sports guy.  He is also blind.  He has also had successful stem cell eye surgery.  He does not seem to accept limitations.  He is also working on a GPS device that may increase mobility options for people with disabilities.  Interesting guy!

My sessions on the resolution were well received.  I love giving co-presentations with great co-presenters!  We had some fun with various scenarios, and some talented dispute resolution state staff as the "Very Much Ready For Prime Time Players."  We had some fun and gave a great presentation.
Enhanced by Zemanta

Friday, August 26, 2011

Special Education Law 101 - Part XII Legal Representation

WASHINGTON - AUGUST 07:  The statue of 'Contem...Image by Getty Images via @daylife
This is another in our continuing series of posts which are an attempt to set forth the basics of special education law.  This is meant to be an introduction to the key concepts for beginners and a review for those readers with experience.

The federal regulations implementing IDEA provide that parties to due process hearings have a right to be accompanied by legal counsel and by individuals with special knowledge or training with respect to the problems of kids with disabilities "...except that whether parties have the right to be represented by non-attorneys at due process hearings is determined under State law." 34 C.F.R. §300.512.  This regulation was changed recently to reverse a previous long standing policy of the department of Education that had permitted non-attorney advocates to fully represent parents in the past.To be clear a parent may still have an advocate present to advise her, but the advocate may not be able to represent the parent depending upon state law.

There is one US Supreme Court decision concerning legal representation: 
In Winkelman by Winkelman v. Parma City Sch. Dist  550 U.S. 516, 127 S.Ct 1994,  47 IDELR 281 (5/21/2007) the Supreme Court ruled by a 7 to 2 margin that the IDEA grants independent enforceable rights to parents as well as students.  Accordingly, the court concluded that parents may pursue IDEA appeals in federal court without being represented by an attorney.  NOTE: This decision applies only to federal court appeals of due process decisions.  All parties agreed that a parent may appear at a due process hearing without counsel.

Enhanced by Zemanta

Wednesday, August 17, 2011

Special Education Law 101 - Part XII Stay Put

Ventura Freeway US 101Image via Wikipedia
This is another post in our ongoing series on the basics of special education law.  Please let us know how you are enjoying this series.  We feel that this is a good introduction for newbies and a good refresher for seasoned pros.  

Today we talk about the stay put provision. One of the basic concepts in this area of the law, yet also one of the most misunderstood.

Stay Put

              IDEA § 615 (j) provides that (except in certain discipline cases), during the pendency of any due process or court proceedings pursuant to this section, unless the parties agree otherwise, the student ‘…shall remain in the then-current educational placement of the child…”  This is commonly referred to as the stay put provision.  The stay put placement is the last agreed upon IEP, unless the parties agree otherwise. See 34 C.F.R. § 300.518.

              The Supreme Court interpreted and endorsed the stay put decision in the case of Honig v. Doe 484 U.S. 305, 108 S.Ct. 594, 559 IDELR 231 (1988).  In that decision, the Supreme Court, noting the Congressional intent in preventing the exclusion of disabled students and reiterating the importance of the procedural safeguards under the IDEA, refused to read a dangerousness exception into the stay put provision.  Honig v. Doe, supra.  (NOTE; please note that IDEA’04 now has provisions pertaining to danger/injury.  See discussion above.)

              John M. by Christine M & Michael M v. Bd of Educ of the Evanston Township HS Dist No. 202 502 F.3d 708, 48 IDELR 177 (7th Cir. 9/17/7) The Seventh Circuit noted that determining “then current educational placement’ is an inexact science requiring a fact driven approach.  Respect for the purpose of the stay put provision requires focus upon the child’s educational needs so the educational status quo for a “growing, learning, young person” often makes rigid adherence to a particular educational methodology an impossibility.  Stay put, therefore, requires flexibility in interpreting the educational placement per the last agreed upon IEP and flexibility concerning the child’s needs.
Enhanced by Zemanta

Tuesday, August 16, 2011

I Won't Back Down: The Blog Continues

CHICAGO, IL - JUNE 22:  Sarah Chambers, a spec...Image by Getty Images via @daylife
I recently ran a post about a blatant attack on this blog.  There are always those who are motivated by negativity and spite.

Those of you who know me are aware that I don't back down when I'm right.  This blog serves a useful purpose for many different types of special education stakeholders who read our posts.  We continue to be honored by your loyalty.  

The purpose of this blog is educational.  We seek to provide information about the fast developing field of special education law that any and all special education stakeholders might find useful.  We provide links to many types of resources.  Many parents, special and general ed teachers, special ed directors and administrators, lawyers for parents and school districts, related service providers, paraprofessionals, principals, adults with disabilities, advocates, professors, state and federal education staff, hearing officers, mediators, complaint investigators, monitors and other stakeholders have told me that they enjoy the blog and the impartial approach that it takes.

As the disclaimer on the lefthand side of the blog states.  We never give legal advice to either side in a special education dispute.  Because I am a hearing officer and mediator and state consultant, I always employ an impartial approach.  I never represent school districts or parents in a special education dispute.  The same philosophy is reflected in the posts on this blog.  I am not an advocate for either side; there are other people who fill that role well.  We never discuss ongoing cases or reveal any personally identifiable information about litigants.  These pages are for educational purposes only, and judging by your response, the purpose is being achieved.

As to the attack, I'm sorry if I scared you.  As I said before, I won't back down when I'm right.  The naysayers shall not prevail.Thanks again to all of you for reading these posts.
Enhanced by Zemanta

Saturday, August 13, 2011

Special Education Law 101 - Part XI Compensatory Education

200 pxImage via Wikipedia
This is another in our continuing series on the basics of special education law.    If the parents (or adult student) win a due process hearing, the two most common types of relief are compensatory education and reimbursement for a unilateral placement.  Today we will take a hard look at the former remedy.

Compensatory Education

Reid ex rel Reid v. District of Columbia 401 F.3d 516, 43 IDELR 32 (D.C. Cir. 3/25/05).  The D.C Circuit developed a 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.  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.  Accordingly, the court remanded this matter for the submission of evidence as to the student’s deficiencies resulting from the denial of FAPE. 

The other standard method for calculating compensatory education is a mor quantitative method providing an approximation of the lost number of days of FAPE and awarding tutoring (or other compensatory services) based upon that calculation minus the time it reasonably should have taken the school district to learn of the denial of FAPE. See the  Third Circuiot decision in MC v. Central Regional Sch Dist 81 F.3d 389, 21 IDELR 389  (3d Cir. April 17, 1997).

Another  important issue involves delegation.  Bd of Educ of Fayette County, KY v LM ex rel TD 478 F.3d 307, 47 IDELR 122 (6th Cir. 3/2/7) It is inappropriate for HO to delegate the type or amount of compensatory education to the IEP team.

Enhanced by Zemanta

Saturday, August 6, 2011

Special Education Law 101 - Part X: Unilateral Placements

Brookstone SchoolImage via Wikipedia

This is another in our continuing series on the basics of special education law.  Today we enter the mysterious world of unilateral placements.  If the parents (or adult student) win a due process hearing, the two most common types of relief are compensatory education and reimbursement for a unilateral placement.  Today we will take a hard look at the latter remedy.

Unilateral Placements

In the case of Burlington Sch. Comm. v. Dept. of Educ., et. al. 471 U.S. 359, 105 S.Ct. 1996, 556 IDELR 389 (1985), the Supreme Court was faced with the issue of whether the IDEA permitted courts to award reimbursement to parents when the IEP developed by the schools is not appropriate and the parent removes the student from public school and places him in a private school that does provide FAPE.  Noting that the statutory provisions of the IDEA confer broad equitable powers upon the courts to fashion an appropriate remedy, and the fact that judicial review of IDEA cases often takes years, the Supreme Court held that the IDEA does empower courts to award such reimbursement.  Burlington, supra.

In Florence County Sch. Dist. v. Shannon Carter, et. al. 510 U.S. 7, 114 S.Ct. 361, 20 IDELR 532 (1993), the Supreme Court was faced with a unilateral placement case in which the public schools provided an inappropriate education leading to a unilateral placement at a private school that provided an appropriate education for the student but that did not meet some of the requirements of the SEA (specifically state approval of the private school.)  The Supreme Court held that courts may award reimbursement in these cases.  Carter, supra.

In Forrest Grove Sch Dist v. TA 129 S.Ct. 2484, 52 IDELR 151 (U.S.  6/22/9)   The Supreme Court held that it is not a prerequisite to reimbursement under IDEA that a child have been previously enrolled in and receive services from a public school. The Court noted that under its previous rulings in Burlington and Carter, courts have broad authority to grant appropriate relief when there has been a violation of IDEA.  The Court held that the 1997 amendments do not limit that authority. The ambiguous language of the provision at issue was not sufficient to effectuate a repeal by implication of Burlington and Carter.

     The IDEA now provides that a hearing officer or court may order an LEA to reimburse parents for a unilateral placement if the hearing officer or court finds that the LEA had not made FAPE available to the student in a timely manner prior to the enrollment in the private school.  IDEA, § 612 (a)(10)(C)(ii).  Such reimbursement may be reduced or denied if the parents failed at the last IEP meeting to reject the proposed placement and state their intent to enroll the child in private school at public expense, IDEA, §  612 (a)(10)(C)(iii)(I)(aa); or if they fail to give written notice to the LEA of their  rejection of the proposed placement and state their intent to enroll the child in private school at public expense 10 business days prior to removal, IDEA, §  612 (a)(10)(C)(iii)(I)(bb); or if the parents fail to make the student available for an evaluation, IDEA, §  612 (a)(10)(C)(iii)(II); or upon a judicial finding of unreasonableness with respect to the actions taken by the parents, IDEA, §  612 (a)(10)(C)(iii)(III).  Reimbursement shall not be reduced or denied for failure to give notice if the school prevented the parent from providing such notice, IDEA, §  612 (a)(10)(C)(iv)(I)(aa); or if the parents were not provided with written procedural safeguards stating this notice requirement, IDEA, §  612 (a)(10)(C)(iv)(I)(bb); or if compliance with the notice clause would likely result in physical harm to the child, IDEA, §  612 (a)(10)(C)(iv)(I)(cc).  Within the discretion of the hearing officer or court, reimbursement may or may not be reduced or denied if the parents are illiterate or cannot write in English, IDEA, §  612 (a)(10)(C)(iv)(II)(aa); or if compliance with this clause would likely result in serious emotional harm to the child, IDEA, §  612 (a)(10)(C)(iv)(II)(bb).  See also, 34 C.F.R. § 300.148. 

Enhanced by Zemanta

Friday, August 5, 2011

This Blog Under Attack; What We Do and What We Do Not Do!

030711 580Image by kayels via Flickr
This blog has recently come under attack.  In these situations, I find it useful to review the disclaimer prominently displayed on the lefthand side of the blog.

My work in special education law is as an impartial.  I serve as a hearing officer and mediator or as a state consultant or speaker.  I never advise or represent parents/students against school districts or school personnel against parents/students.  This sometimes frustrates readers who leave comments or send emails seeking legal advice.  I am sorry about that; I wish I could help.  But it would not be ethically acceptable.

Also, this blog is for educational purposes only.  We seek to educate our readers about special education law.  We do not pretend to be a substitute for a lawyer licensed in the state where a person resides.  We seek, rather, to inform the readers of this blog about current issues in this complicated and ever-growing area of the law.  We share many resources that we hope are useful to all the stakeholders in this field who regularly, or occasionally tune us in.

I never discuss cases pending before me.  Personally identifiable information is protected by law for those folks.  I also never discuss the lawyers who appear before me.  This is tempting because of some amusing antics, but I save those gems for training hearing officers, mediators and others who are occasionally bothered by counsel.

In discussing special education law issues on these pages, I do not discuss issues pending before me in cases.  Any matter pending before me as a hearing officer is determined on its own merits.  In each case, the parties produce evidence.  The case is decided solely upon the evidence in the record in the case.  Each case is treated seriously and with respect for the child, the parents and the school personnel.  The factual record is applied to the law, and the issues are resolved.  Cases are not given more consideration or less consideration because of the juiciness of the issues.  I try to resolve each case fairly and with the appearance of fairness.  I teach techniques concerning these matters to other hearing officers.

Similarly, with mediations, I do not spend more or less time on cases depending on the issues.  Instead, I spend the appropriate amount of time based upon the parties ability and willingness to attempt to resolve the dispute.  Mediation is my preferred way to resolve special education disputes because it has the possibility of repairing the relationship issues. 

If you find the information in this blog to be useful, please share that with others.  I have fun here, I admit that readily.  But I hope that you also find the blog to be a valuable resource.  Please keep reading!  Thanks.
Enhanced by Zemanta