Transition

Transition, in the language of special education, concerns the efforts required of the school district to prepare the student for life after school. IDEA'04 changed the definition of transition services. The process is no longer "outcome" oriented; it is now "results" oriented. I pondered over this change for days - wondering why the busy U. S. Congress would change one word in a complex statute to another word that means exactly the same thing. I still haven't learned the reason. Section 602 (32).

IDEA now requires that beginning not later than the IEP in effect when the child is 16 years old that an IEP contain appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate independent living skills. Section 614 (d)(1)(A)(i)(VIII)(aa).

I became a lot more interested in the topic of transition when I saw a great poster session at the conference of the Council on Exceptional Children in Boston last year. The presenter conducted a study that showed that post-secondary "outcomes" for students with disabilities were, for the most part, not very good. (I may be simplifying some complex concepts, but that was the bottom line.) We spend all this money on special education for k-12 and then do very little after high school.

I just read a great article by Professor John Willis Lloyd that triggered this memory. He says that the focus on access isn't enough; that most kids with disabilities really need special education. You can read his excellent article here.

What do you think about the job the schools do in transitioning children with disabilities to the world? Are we asking too much of the schools? Are we not asking enough? I'm interested in your opinions.

Merry Christmas

It is that time of the year. To all of the many readers of this blog, I wish you a very Merry Christmas. Whatever holidays you celebrate, I hope you truly enjoy them. This is a good time to consider those who are less fortunate than you. In my admittedly limited experience, I find that giving is the best road to happiness.

So travel safely and try to stay warm and cozy. Watch out for the mistletoe, and have a fantastic Christmas.

Duncan Named Education Secretary

President-elect Obama has nominated Arne Duncan to be his Secretary of Education. As the current chief of the Chicago Public Schools, Duncan is known as a reformer, yet he gets along well with teacher unions. Here are some news accounts: http://www.washingtonpost.com/wp-dyn/content/article/2008/12/16/AR2008121601115.html?hpid=topnews
http://www.nytimes.com/2008/12/16/us/politics/16educ.html?_r=1

and an editorial
http://www.suntimes.com/news/commentary/1332922,CST-EDT-edit16d.article

As readers of this blog know, I am a bit concerned that we know very little regarding the President-elect's positions on special education. We know that he favors full funding of special education and increased early childhood intervention, but after that we are not sure. I was encouraged to hear Mr. Duncan in his speech link education to the economy and poverty. Here is the link to the Obama official press release.

Secretary-designate Duncan has a tough job ahead of him. I wish him luck.

News Widget: New Bells & Whistles

I keep experimenting with the gizmos on the left-hand side of the blog. My goal is to make it as useful as possible for the wide variety of stakeholders who read the blog. Please let me know if you have suggestions for other items that would be helpful, and don't be afraid to tell me what you do not like as well as what you do like.

One of the new gadgets is a special education news widget. It should be white in color with blue letters (I think.) Thanks to the Council for Exceptional Children for making it available. It is a collection of headlines about special education from around the country. If you are interested in one of the headlines, click on it in order to be taken to the whole story. Granted not many of the items relate directly to legal issues, but I know that readers are interested in non-legal issues as well.

Another new feature is the "get my blog as a widget" button. It should be orange in color (I hope) and right after the subscription options. If you have a blog or other website and you would like to have a widget for this special education law blog on your website, click on the button and follow the instructions. I believe that on your website, it would work and look something like the special ed news widget described in the last paragraph.

Also I have added a new poll. Just below the photos of me as a hearing officer, the new poll asks what trait is most important for a hearing officer. This new poll seeks further information in pursuit of my "what makes a good hearing officer" notion. I'll be interested in your answers.

Enjoy the new stuff!

Student Health Records: Feds Provide Guidance

The federal Departments of Health & Human Resources and Education have issued a joint document providing guidance on the applicability of the Family Education Rights and Privacy Act (FERPA) and the Health Insurance Portability and Accountability Act (HIPAA) to student health records. Both laws deal with privacy rights of students and their families, as does the main federal special education law, IDEA.

Because a number of our readers deal with student health records in various respects, and because it is unusual to find two powerful agencies of the federal government agreeing upon a document, I bring this publication to your attention.

If you are interested in this topic or if you deal with student health records, please review this document:
http://www.hhs.gov/ocr/hipaa/HIPAAFERPAjointguide.pdf

Due Process Hearings: What Process is Due - Part II

In the previous installment in this series, I stated my doubts as to whether the adversarial and expensive due process hearing system is the best way to resolve special education disputes. I also described a thought-provoking session by Professor Rhoda Pierre Cato at the recent NAHO conference concerning due process in administrative hearings. This is what happens when one pays attention at a conference!

One source of confusion is that the term "due process hearing" is a term of art, usually suggesting a less adversarial system. "Due process" is also a constitutional right, and the amount of due process that must be provided in an administrative hearing is the subject of much litigation and many Supreme Court decisions. Once again, the law uses the same phrase in multiple ways.

Professor Cato interprets these Supreme Court decisions, especially the seminal Matthews v. Eldridge, 424 U.S. 319 (1972), to mean that what process is due is a flexible calculation that permits the hearing officer to utilize a very non-adversarial approach. Due process still requires notice and the opportunity to be heard, but the way in which a party is heard is more relaxed. She advocates an "Inquisitorial" method. (Those who know me have probably guessed that I couldn't help myself from asking if there was a relationship to the Spanish Inquisition, which nobody ever expects. There isn't.) In this system, the rules, especially evidentiary rules, are relaxed for all parties whether they have lawyers or not. The hearing officer asks many questions to ascertain the facts, and listens to both sides without advocating for either. The hearing officer is not an advocate but participates actively to ensure a record complete enough to write good decision. The system is not adversarial.

There is other support for the Inquisitorial method for administrative hearings. Another conference participant, hearing me discuss this concept, alerted me to a law review article recommending this method for unemployment hearings. See, Milligan, William M., "Essay: Torquemada and Unemployment Compensation Appeals'" 29 U. Mich. J. of Law Reform 389 (Fall 1995 - Winter 1996). His position is summarized here beginning at page two:
http://www.nauiab.org/adobe/winter2k.pdf

Like many stakeholders, I am very comfortable with the current more adversarial due process hearing system. I'm familiar with it. I'm too old to change now. Inertia is a powerful force. Fortunately, however, special education law isn't about me. It's about some great kids who have special needs.

My question for my readers is- should we adopt some version of the Inquisitorial model for special education disputes? At this point, I think Congress would need to amend IDEA, the special education law, to allow it, but is there merit in moving to a less adversarial hearing system of dispute resolution? What do you think.

Select Changes in Federal Regs Become Final

The federal Office of Special Education Programs has adopted final IDEA regulations that were proposed in May of this year. 73 Fed. Register No. 231 at page 73005 (OSEP 12/1/2008). Does it strike anybody else as odd that these new regs were made final just before the old administration leaves town?

Most of the buzz has been about the changes permitting parents the final word on removing children from special education. My concern, however, was with the changes to the due process hearing system making lay advocates ability to represent parties a matter of state law. I felt that it was not clear whether OSEP was saying that the matter could be regulated by the state departments of education or whether the issue was to be determined by reference to state law concerning the unauthorized practice of law. Here is OSEP's response to my comment:

Comment: One commenter requested that the final regulations clarify whether it is sufficient for an SEA to provide by regulation or procedural rule that a lay advocate may represent parties at due process hearings or whether the ability of a lay advocate to represent a party at a due process hearing instead is controlled by State law regarding the unauthorized practice of law...
Discussion: Whether an SEA may have a State regulation or procedural rule permitting non-attorney advocates to represent parties at due process hearings or whether that issue is controlled by State attorney practice laws is determined by State law. If State law is silent on the question of whether non-attorney advocates can represent parties in due process hearings, there is no prohibition under the Act or its implementing regulations on nonattorney advocates assuming a representational role in due process hearings. Changes: None.
73 Fed. Register No. 231 at p. 73017-73018 (OSEP 12/1/08)

There now - that's clear. Any questions? {Does one have to go to a special school of bureaucracy to learn how to use so many words without saying anything?} The only change made to this proposed regulation was to clarify that whether both sides could be represented by a nonattorney advocate is a matter of state law. The proposed regulation referred only to parents.

You can check out my previous posts on the proposed regs at:
http://specialeducationlawblog.blogspot.com/2008/07/deadline-for-public-comments-about-new.html and
http://www.blogger.com/post-edit.g?blogID=1691205078500083881&postID=4241349750325311151

You can see the complete analysis of comments by OSEP at:
http://frwebgate6.access.gpo.gov/cgi-bin/PDFgate.cgi?WAISdocID=414449135907+0+2+0&WAISaction=retrieve

Do Court Decisions Shape Special Education? Part III

In the first two installments in this series I described a fascinating recent paper by Professor Samuel R. Bagenstos of the Washington University School of Law that concludes that courts do not have much of a role in shaping special education. The paper is available here: http://www.aei.org/docLib/20081010_Bagenstos3.15.08.pdf

His study finds that from 2000 to 2007, an average of only 374 federal lawsuits involving special education were filed per year in the United States. By contrast, the author states that during a one year period ending on March 31, 2007, nearly 14,000 employment discrimination cases were filed in federal courts. As a result, the author concludes that the courts have little effect upon special education.

Many of you have had the same reaction to this article that I had. Duh- yes court decisions shape the substantive area of law. In the second installment I challenged some of the conceptual math. The numbers are interesting, but slightly deceptive.

In this installment I want to challenge some of the logic underlying the argument. Some cases have had a dramatic impact on special education. Rowley, the seminal Supreme Court decision, defined the FAPE standard and determined how courts and hearing officers would review IEPs. The Burlington decision allowed reimbursement for unilateral placements as relief. Honig v. Doe found the stay put provision to have teeth. The Garret F decision said that cost is not a defense. Indeed, all of the substantive Supreme Court cases have had a major impact on special education. So do certain appeals court decisions. For example, the bullying and IEP implementation hot button cases can have a major impact upon special ed.

I think the real question involves who is asserting their procedural safeguards, including due process hearings and court appeals. If 80% of due process hearings happen in six states plus Washington DC, maybe justice is not widespread. If as many suspect procedural safeguards are accessed mostly by the wealthiest families, maybe justice is not widespread. So maybe the really interesting question is not do court decisions shape special education, but who is litigating the cases that do shape special education?