News/Blog - Togut Law

What are some remedies for violation of the IDEA?

Parents are often faced with addressing a school system’s violation of their rights under the IDEA. What should parents do?  There are informal and formal ways for parents to address violation of their rights.  And there are many different types of remedies for violation of your rights.    Parents can also speak to the special education director or other school official to seek redress for violation of their rights. I do not recommend that you try to speak to the school board of education. Why?  School board members are not responsible for your child’s special education programming and instruction. School board members have no direct authority to address your concerns.

A more formal process for addressing your possible violation of your rights is to file a state complaint or file a due process complaint. I would strongly advise you to seek the advice of a special education attorney before you file a state complaint or due process complaint. I have spoken to many parents over the years who did not know what they really were doing after filing for a due process. Special education litigation is complex.  Special education litigation should not taken lightly.  I generally recommend for parents to pursue a due process hearing if there are no other reasonable alternatives. Another reason is when there is an urgent issue that must be considered by the school system for your child as soon as possible.

Settlement of Disputes

Suppose you file for due process and the school system agrees to settle your case. . . . what should you ask for?  In general, you can propose almost any type of settlement to the school system.  The type of settlement you achieve is not limited to what the law provides. For example, in one mediated settlement, the parents wanted to speak to the school board members about their concerns.  The school system agreed.  If this case had been litigated, a judge would not enter an order requiring the school board to hear the parents’ concerns.  One caveat, however, is the revision or amendment of an IEP cannot occur in mediation. The mediation agreement will provide for the parents and IEP team to meet to change or amend the child’s IEP.

You can also seek other unusual or different type of remedies in a special education dispute at a resolution session.  A resolution session is a type of settlement forum. All of the typical confidentiality rules for settlement apply in a resolution session.  You should be prepared in most special education settlements to agree to a confidentiality clause.  This clause prohibits you from discussing the terms and conditions of settlement in public and to third parties outside your immediate family.

Due Process Hearings

If a judge rules in your favor after a due process hearing the type of remedies available are still varied but somewhat more limited.  Generally, judges may award compensatory education, reimbursement of expenses, or order a school system to pay for a private placement.  I often hear from parents that they want to school system to pay for their child’s private school placement. Although this remedy may be preferred by some parents, the legal barriers are often difficult to overcome. A parent must prove the school system failed to provide his or her child did not receive a free appropriate public education. Second, a parent must further prove the proposed or selected private placement for the child is appropriate. Third, a parent must show that he or she complied with the procedural requirements for requesting  private placement.

I will provide a more extensive discussion of the legal requirements for requesting private school placement in another post.  A parent may also request reimbursement of expenses for  special education instruction and services that should have been provided to the child. Compensatory education is special education instruction and services the child should have received because the school system failed to provide FAPE.  Courts have discretion in awarding compensatory education.

The gist of this advice is to secure the representation of a special education lawyer before you decide on any type of special education litigation. It will likely result in you securing a better settlement or better decision in due process. It may also result in securing the type of remedy or remedies that you really want. I fully understand that many parents cannot afford hiring an attorney for special education litigation and due process.  But there is no reason why most parents cannot at least request a special education attorney review their case to determine if it has sufficient merit to prevail at due process.

 

 

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Annual IEP Meeting: What To Do Next?

In the last post, I discussed the affect of the Endrew F. decision and why you should use this decision at the next annual IEP  meeting.  In sum, the Endrew F. decision held that a child with a disability that is not fully integrated in regular classes  should not be bound by the de minimus or trivial benefit standard. In other words, an IEP developed by the school system should demonstrate the child is making more than de minimus or trivial progress on his IEP goals and objectives. The new standard – which will be further developed by the lower courts – requires that a school system must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.  The focus is on the unique needs of the child and his individualized circumstances.

As IEP season is closing and the end of the school year is near, parents should request at the annual IEP meeting that the school system develop an annual IEP for their child so that he will make progress appropriate in light of the child’s circumstances. This means writing annual IEP goals and objectives that are more challenging instead of lowering expectations for the child. How often how you seen a school system write the same or very similar IEP goals and objectives for a child each year?  This shows the school system has set low expectations for the child’s educational progress. Instead, the school system should be developing annual IEP goals and objectives for the child that show he is making educational progress.  For example, parents should continue to challenge educators to develop behavioral goals and objectives and/or a behavior intervention plan that shows real and concrete progress toward reducing or eliminating his difficult behaviors.  If the child is physically aggressive toward adults and peers, then the annual IEP goal and objective on this area should show the child will act appropriately toward adults and peers.  A reduction in physically aggression is implicit in this goal. An IEP goal that reduces physical aggression toward adults and peers from five times to one time per week, for instance, may meet the new standard.   Unless a child’s behavior improves, it is very unlikely he will make educational progress and be placed in the least restrictive environment. A child’s physical aggression is perhaps the most significant reason why the child is placed in self-contained classes. Parents should expect the school system to reduce their child’s physical aggression toward adults and peers so that he can benefit educationally and be placed in less restrictive classes such as resource classes once or twice a day instead of most or the entire school day.

There are many more examples of how parents can advocate for better annual IEP goals and objectives for their child using the Endrew F. new standard. Instead of “behavior,” you can insert the word “academic,” “fine motor control,” “social skills,” “communication skills,” and “vocational skills” among many others to set higher standards for your child’s progress each school year.  The days of lower expectations for a child with a disability that is not fully integrated in regular classes is over. The Supreme Court in Endrew F.   focused on the unique needs of the each child to determine his progress.  As parents, you will know what are the unique needs of your child and set higher expectations for your child’s progress on his IEP goals and objectives at the annual IEP meeting. For more information about the Endrew F. decision and how you can use this decision at the next annual IEP meeting, see www.wrightslaw.com/nltr/17/al.0323.endrew.douglas.scotus.htm#sthash.oS4pxUqd.dpuf  and http://www.copaa.org/news/336815/USSC-Affirms-Promise-of-the-IDEA-in-Endrew-F.-Decision.htm.

 

 

 

 

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Annual IEP Meetings and Endrew F.: What Happens Next?

I posted last month about the U.S. Supreme Court’s decision in Endrew F. v. Douglas County School District RE-1.  Since the Supreme Court issued this decision, I have read many commentaries, analyses, blogs, posts, and other thoughts about the meaning of this decision for parents of children with disabilities with IEPs.  I would say most of the comments were positive. In other words, many attorneys who practice in the area of special education believe the Supreme Court’s decision in Endrew F.  believe it will be favorable for parents.  For me, I have tried to be a student of the law for many years and try not to rush to rendering an opinion on such an important case such as Endrew F. until the “jury is out. What do I mean?  In my many years of practicing law, I try to wait for lower courts to interpret a Supreme Court decision or new statute and then wait for appeals to follow before jumping to rendering an concrete opinion.  I have learned that it may take sometimes years before lower courts and appellate courts interpret a Supreme Court decision or new statute before you can determine which way the legal wind will blow.   As an example, it took many years before lower courts and appellate courts interpreted the meaning of the Supreme Court’s decision in Rowley. And it also took many years before lower courts and appellate courts had an opportunity to review and issues decisions on the Individuals with Disabilities Education Improvement Act of 2004. In fact, the courts are still churning out new decisions on the IDEA of 2004.

I would take my analysis one step further. In which state you live may also determine whether the Supreme Court’s decision in Endrew F. will be interpreted favorably for parents of children with disabilities. You can bet families in California, for instance, will likely receive better and more favorable decisions interpreting Endrew F. than families in Georgia.  You have probably heard from time to time how liberal courts are in California and the Ninth Circuit Court of Appeals. I bet you never heard anyone say the administrative law judges, federal district courts, and the Eleventh Circuit Court of Appeals are very liberal. So it is more predictable that administrative law judges and federal district courts in Georgia will be more cautious and moderate about their interpretation of the Endrew F. decision. This is not say that some judges in Georgia will construe and interpret the Endrew F. decision more liberally. We can certainly advocate for a liberal interpretation of this decision. But I would be cautious in predicting precedent setting special education decisions of Endrew F. by most judges in Georgia who tend to be judicially conservative.

So what do parents do in the meantime? Most annual IEP meetings usually occur in March, April, May and even June of each school year.  You can definitely advocate that the standard for reviewing IEP goals and objective is no longer just a de miniums or a trivial benefit standard. The Court in Endrew F. expects that a child with a disability will make more than trivial progress during the school year.  How much more is yet to be determined. The Supreme Court in Endrew F. declined to “establish any one test for determining the adequacy of educational benefits upon all children are covered by the Act.” Again, what test is adopted by the courts will depend, in part, in which state or jurisdiction you live in. You can safely argue that when a school system develops an IEP with the same goals and objectives from year to year indicating that he has failed to make meaningful progress toward such goals and objectives will no longer pass muster.  In other words, you should not accept adoption of the same goals and objectives for your child each year for several years. This will not pass the Endrew F. test.  You should advocate for an IEP that is reasonably calculated to enable your child to male progress appropriate in light of the child’s circumstances. You may be able to advocate that your child’s potential for making progress should be considered by the IEP team. Higher aspirational goals, depending upon your child’s unique circumstances and abilities, should be on your list at an annual IEP meeting. The Supreme Court, however, in Endrew F. cautioned that a court should consider whether the IEP is reasonable, and not whether the court regards it as ideal.

For a child in regular education classes, the Court in Endrew F.  expects the IEP should be reasonably calculated to enable the child to achieve passing grades and advance to grade to grade.  This is basically the same standard adopted by the Court in Rowley in 1983. The IEP team should expect more of a child with a disability fully integrated in regular education classes. On the other hand, Rowley did not address or provide concrete guidance with respect to a child that is not fully interpreted in regular education classes and will not be able to achieve on a grade level. For these children, the Court in Endrew F.  clearly stated the standard should be markedly more demanding than just de minimus or trivial benefits. What that standard may be is yet to be determined by a court in Georgia. You can reach for the sky or just reach further than you ever have for your child at your annual IEP meeting.  No doubt, Endrew F. sets no specific limitation on what the IEP team must do for a child that is not fully integrated in regular education classes.

If you have comments or questions about the Endrew F. decision, please feel free to  contact me.

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Endrew F. v. Douglas County School District RE-1

On January 12, 2017, I posted about a pending U.S. Supreme Court case entitled Endrew F. v. Douglas County School District RE-1. In sum, this case involved the Supreme Court interpretation of the IDEA and the Court’s decision in Rowley on the legal standard for reviewing an IEP.  The Court in Endrew F. was asked  to decide is the standard or test for determining whether an IEP conferred educational benefits upon any child covered by the IDEA.    On March 22, 2017, the U.S. Supreme Court issued a decision on this question.

It is important to understand what the court decided in Endrew F.  as well as what the court did not decide in this case.  The Court in Endrew F.  decided not  to create a formula for determining whether an IEP conferred educational benefits on a child covered by the IDEA.  The Court in Endrew F.  rejected that current standard used in Georgia courts and other courts in the country that an IEP only needed to provide trivial or de minimis benefits to the child.  Instead, the Court adopted a standard that requires an educational program (IEP) must be reasonably to calculated to enable a child to make progress appropriate in light of the child’s circumstances. What exactly does this mean? For a child that is fully integrated in a regular classroom the standard may mean the IEP must confer benefits so that the child can advance to grade to grade. But the Court was careful to emphasize that just because the IEP developed for this child confers educational benefits so he or she can advance grade to grade this does not mean the child is automatically receiving a free appropriate public education.  This is till an individualized analysis based on the unique needs of the child. In general, however, a child fully integrated in the regular classroom who is progressing smoothly through the regular education curriculum is expected to advance grade to grade.

If the child is unable to progress smoothly through the regular education curriculum depending on his or her unique educational needs, then the child’s IEP need not aim for grade-level advancement.   But the child’s educational program must still be appropriately ambitious for most children in the regular classroom.  The child’s goals may be different from other children in the classroom, but every child should have the chance to meet challenging objectives. In other words, parents should expect the child’s goals and curriculum to be more challenging each school year.  No longer will it be acceptable to write the same IEP goals and objectives for the child each year.  The IDEA demands more. It requires the IEP be reasonably calculated to enable the child to make progress appropriate in light of the child’s circumstances.

From this moment on, courts and judges will have to figure out on a case-by-case basis whether the child’s IEP was developed to enable him or her to make progress in view of the circumstances. For example, we should expect a child with an average or above average IQ with a learning disability, to make progress in the regular curriculum.  Parents should no longer accept an IEP that does show their child is making educational progress from year to year.   On the other hand, a child with severe intellectual or other disabilities may be judged somewhat differently.  A child with severe disabilities may not be able to advance grade to grade each year. But this does not mean the child cannot make educational progress.  The type and measure of the progress may different from a regular education child.  It will not be acceptable for this child to have the same IEP goals and objectives each year.   Parents should not accept that their child is making trivial progress.  Parents should expect their child will make progress in light of his or her unique educational needs. Exactly how courts will determine whether the school system developed an IEP for your child that confers progress appropriate in light of the child’s circumstances  is yet to determined.  You can expect, however, it will be determined a case-by-case basis and that trivial progress will no longer be acceptable.

If you want further analysis and guidance on developing and implementing an IEP for your child after the Court’s decision in Endrew F.  you can contact me or other special education attorney for assistance.

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How to Prepare for a Special Education Due Process Hearing

For the past month, I  prepared for a special education due process hearing.  The preparation time consumed almost every day for an entire month.   By the time I was ready to move forward for the due process hearing, I had six large binders of  documents consisting of thousands of pages of:  educational records, medical and psychiatric records, pictures, emails, transcripts, CD’s of IEP meetings, notes and progress reports, evaluations by occupational therapists, speech and language therapists, evaluations by Board Certified Behavior Analysts (BCBAs), and many other papers.  I also spent considerable time  developing my own binders of documents containing legal research, scientific-based research and articles on a variety of special educational issues, and trial and evidence notebooks.  In addition, I prepared a list of witnesses and documents that are required by the five-day rule. 34 C.F.R. 512(a)(3). The witness list contained twenty or more witnesses listed for the parents. For each witness, I had to summarize the testimony and substance of each witness. For each regular and expert witness that I  expected to appear and testify at the due process hearing, I had to prepare a subpoena and payment for each witness and mileage fees.  I had to interview each expert that I wanted to appear and testify for the parents. Further, the judge assigned to the case required the lawyers for the parents and school system to file a motion listing each expert witness each side planned to testify at the hearing and a copy of the expert’s curriculum vitae (CV) or resume. Moreover, I filed a notice to produce documents to the school system and  other written motions with the court.  Even before the due process hearing was scheduled to begin, I had amassed more than 200 hours of my time in preparation for the due process.  Although this special education due process hearing was unusual in terms of its complexity and the length of time for preparation for the hearing, the requirements for preparation that I outlined are the same for every due process hearing.  I would add that even before I filed a complaint for a due process hearing for the parents, there was considerable preparation including, but not limited to, review of educational records, retaining expert witnesses, interviewing the parents, legal and special education  research.

It is very important to understand how demanding the preparation is for a special education due process hearing.  The judge in this case set aside five days for the due process hearing.  But it is not unusual for due process hearings to last several weeks.  In these type of hearings, most judges will set aside a week here and a week there for the hearing until both sides have completed their sides of the case.  After the due process hearing, the lawyers for the parents and school system are required to read the transcript of the due process hearing, which may be thousands of pages long.  The lawyers are also required to write what are called proposed findings of  fact and conclusions of law. This may be lengthy document setting forth all of the material facts that are favorable to the parents, for example, and legal arguments why the judge should rule in favor of the parents.  After the judge reviews the proposed findings of fact and conclusion of law submitted by the parties’ attorneys, the judge issues a decision. If the decision is adverse to the parents, they face a lengthy and sometimes complicated appeal to federal district court.

From time to time, I will receive a phone call from a parent who has already filed for a due process  hearing without an attorney.  The parent may be at the beginning of the due process hearing process, which is usually the  scheduling the resolution session with the school system.  See 34 C.F.R. 300.510(a).   At other times, I am contacted by the parent just before the due process hearing is scheduled and the parent is required to comply with the five-day rule. 34 C.F.R. 512(a)(3).  Each time I receive a phone call from a parent that has filed a complaint for a due process hearing, I will usually say the same thing.  I will advise the parent to voluntarily dismiss the request for a due process hearing so that I can review the case and determine whether there is sufficient merit to actually convene a due process hearing.   I recommend this action because of the considerable time and resources that are necessary to properly prepare for a due process hearing.

Of course, there are times the school system will try to negotiate a settlement of the request for a due process hearing with the parent in a resolution session or in mediation.  In my case, the parties and attorneys decided to continue the scheduled due process hearing so that mediation could take place.  For many special education cases, mediation is often the best alternative to a due process hearing.  Mediation is voluntary under the law. 34 C.F.R. 300.506.  Mediation can be requested by either or both parties. A mediator is selected by the Georgia Department of Education Division of Exceptional Children to meet with the parties.  The parties, however, can select a private mediator at their own expense.  In my experience, the Justice Center of Atlanta has trained and experienced special education mediators who provide mediation services to the parties.  School system attorneys may advise school systems to pay for the cost of private mediation when there are high monetary or other important issues at stake.

I would advise parents who want to request a due process hearing to consult with an experienced special education attorney first before  you decide to file a complaint for due process.  It is likely to save you much time and expense by consulting with a special education attorney about the merits of your case. As you can see, there is considerable preparation before you file for a due process hearing and afterwards.  The point is if you spent adequate time and resources in preparing for the due process hearing it is more likely you will either be able to settle your case or at least have a better chance of prevailing. There are many articles published by advocates and attorneys on how to prepare and file for a due process hearing. See e.g. http://www.wrightslaw.com/advoc/tips/palmer_prepare.htm; http://www.wrightslaw.com/info/dp.index.htm; http://resources.lawinfo.com/education/-how-do-i-prepare-for-my-child-s-special-educ.html; http://www.harborhouselaw.com/articles/docs.prepare.wright.htm    I would recommend that parents read these articles and others to help you understand due process procedures better and properly prepare before you file for due process and afterwards.

 

 

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Parental Rights in Special Education

I recently read that Betsy DeVos, who is now Secretary of Education, removed a website that provides parental rights of children with disabilities in special education. Why this website was removed is unknown. Why is it important that this website is removed?  The U.S. Department of Education is responsible under federal law for the monitoring and enforcement of special educations laws such as the IDEA, Section 504 and the Americans with Disabilities Act. These laws apply to apply to children with disabilities attending public schools.  If parents of children with disabilities can no longer learn of their rights under the law to protect their children from the Department of Education, then other resources need to be utilized.

Fortunately, there are many websites on the Internet that provides parents of children with disabilities of their rights under federal special education laws. One of my favorites is Wrightslaw at  http://wrightslaw.com/  I have been told by many parents over the years that they have found wrightslaw very helpful concerning their child with a disability.  The website is parent-friendly.  There are a myriad of other websites for special education information that are too numerous to name. I have cited a few on my website under resources. You can simply type “special education” or “parental rights in special education” on a Google search and find many resources that will be help to you.  If you need specific information about your parental rights and special education laws and regulations in Georgia, I would  go to the Georgia Department of Special Education website at http://www.gadoe.org/Curriculum-Instruction-and-Assessment/Special-Education-Services/Pages/default.aspx.  There are also a number of helpful videos on U-Tube that you can find your rights in special education at https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=youtube+rights+of+parents+special+education+videos.

It may be easy finding information on parental rights in special education but not as easy understanding them.  You may find such information to be like a “word salad” or “alphabet soup.”  I would recommend that you visit my website to discovery what legal services can be performed on behalf of your child.  Special education attorneys concentrate their law practice on federal special education laws and representing children with disabilities.  The point is parents are empowered with information about their rights under the law. The more access parents have to such information the better they will be as advocates for their child.

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Betsy DeVos Should Not Be Confirmed for Secretary of Education

I rarely, if ever,  bring politics into my blogs.  But I will make an exception for Betsy DeVos. Why?  There  are compelling reasons to defeat Betsy DeVos as Secretary of State. This is not a Republican, Democratic, conservative or liberal view point. This is about protecting the rights of students in public education and ensuring they have appropriate funding and programming. To begin,   Betsy Devos comes from a very wealthy family. She is  a billionaire.  I have no problem with someone being appointed to the Cabinet if they are wealthy provided that they are also well qualified, knowledgeable, ethical, and competent to do the job for which they are appointed.  Betsy DeVos is not qualified, knowledgeable, ethical or competent to do the job as Secretary of Education.  She has no experience whatsoever in public education. In fact, most of her advocacy work in Michigan has been to strip public education of critical funding and channel public funds solely for private school vouchers and to charter schools. But DeVos’ efforts to channel public school funding into school vouchers for private school and for charter schools has not been successful. In fact, Michigan’s charter schools perform below the state average as compared to  public schools. She is most polarizing nominee for Secretary of Education ever.  https://www.washingtonpost.com/news/answer-sheet/wp/2017/01/31/why-betsy-devos-is-the-most-polarizing-education-secretary-nominee-ever/?utm_term=.2e33345bbc12 .

More importantly, DeVos is not a supporter of the Individuals with Disabilities Education Act (IDEA). During DeVos’ hearing before the U.S. Senate Committee, DeVos did not even know about funding for the IDEA. She does not have a clue about special education. Devos’ testimony before the U.S. Senate showed she does not support federal oversight of special education and such issues should be left to the states. See   https://www.washingtonpost.com/news/answer-sheet/wp/2017/01/28/the-telling-letter-betsy-devos-wrote-to-clarify-her-position-on-u-s-disabilities-law/?utm_term=.ba479405687e   How can someone who is so woefully ignorant of the IDEA be an advocate for children  with disabilities. She cannot. See  http://prospect.org/article/betsy-devos-alarms-special-education-advocates-parents. In addition, DeVos has conflicts of interests that present serious ethical questions whether she can serve two masters.  Do we really want a Secretary of Education who has fierce loyalty to private sector interests that conflict with her obligations to serve the public interest in public education? Absolutely not.  There are many reasons why DeVos is not qualified to be confirmed as Secretary of Education.  Parents of children with disabilities have much to fear if DeVos is confirmed.   I urge you to contact your U.S. Senator today and voice your opposition to DeVos as Secretary of Education.  We only need one more Republican vote in the U.S. Senate to defeat her nomination.

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Endrew F. v. Douglas Co. Sch. Dist. RE-1 – What is “some” benefit?

On January 11, 2017, the United States Supreme Court heard oral arguments in the case of Endrew F. v. Douglas County School Dist. RE-1.  For a copy of the oral argument see,   https://www.supremecourt.gov/oral_arguments/argument_transcripts/2016/15-827_gfbh.pdf.  The Court will decide this case by the end of June 2017.  Endrew F.  is the first case since Rowley , which was decided in 1983, to address what kind of  benefit should a child receive under his IEP.

Why is this case important to families of children with disabilities? It is important because the Supreme Court may further define, change or modify what is considered “some” benefit for a child with a disability.   In most jurisdictions, “some” benefit means more than de minimus. This is defined as  to  be  so minor as to merit disregard; insignificant or important.   What happens when you complain at an IEP meeting, or to a teacher, or a conference that your child is not making educational progress? Often educators will say something like your child is not guaranteed the best education or we only have to provide a Chevy and not a Cadillac to your child. Sometimes you hear  that we only have to show he receives some benefit from his special educational instruction.  As many of you know, the IEP is the centerpiece of the IDEA.  The IEP’s  goals and objectives must be objectively measured to determine whether your child is receiving some benefit from his special education instruction and services. But the IDEA as been amended several times since 1983. The IDEA now requires a child with a disability to be involved in and make progress in the general educational curriculum. 20 U.S.C. 1414(d)(1)(A)(i )(I).

The key questions for the Court are whether a child with disability making de minimus progress is legally consistent with the IDEA, as amended. Did Congress intend through its amendments to the IDEA require school system to raise the bar so that the child receives significant or meaningful benefits? Does the benefit have to be meaningful?  Is “some” benefit too low of a bar in view of the recent changes and amendments to the IDEA?  For those who has challenged an IEP in a due process hearing or through a state complaint know how hard it is to win.  The judge or decision-maker will cite Rowley and other court cases that say the IDEA only requires the child to receive “some” benefit.  This is a very low standard.  Most school districts can easily meet this standard.  Often you will hear that your child received benefits from his special education instruction. How do you measure that benefit? Well, you look at data, teacher observations, assessments and tests scores, and other factors to make this determination. But what if the standard was significant benefit? Wouldn’t that be a higher standard than just some or de minimus benefits? Probably so.

This is the Court’s decision in Endrew F. is very important to parents of children with disabilities.  If the Court raises the bar to a “substantial” benefit so as to allow the child to make progress in the regular educational curriculum this would be very good. It would be easier for parents to show in a due process or court proceeding that their child did not make progress. It would require school districts to do more educationally for your child.  They could not claim anymore that your child received just more than de minimus benefit from his IEP.  Of course, there is no way to predict exactly what the Court will decide.  I will revisit the Endrew F. case when the Supreme Court issues a decision. I will give you some analysis of the Court’s decision and how it may affect your child’s special education programming and services under his IEP.

 

 

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Happy Holidays

Instead of posting another blog on special education issues, I am choosing instead to wish everyone a very happy holiday and a healthy and safe New Year.  Let the New Year bring success and progress for

all children with disabilities.

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Random Thoughts on Special Education Law

I have attended two IEP meetings within the past week. Both of them very different from each other.  One involved a second grade student diagnosed with ADHD, Bipolar Disorder, Adjustment and Conduct Disorders.  This student was recently identified and determined eligible for special education and related services. The other child is a 10th grade student diagnosed with Autism, Intellectual Disability and Speech Impairment. He had been in special education most of his life.  The child is nonverbal and has limited self-help, independent living skills, social skills, and toileting skills. The approaches for these two children –  in terms of  setting goals and objectives and relating services – were very different. But the ultimate goal is to develop an IEP for each child that provided educational benefits and a free appropriate public education.

Each IEP meeting has its own dynamics. For the child with ADHD, the school system had served him under a Section 504 Plan.  The plan was inadequate to address this child’s behavioral challenges and deficits in reading fluency among other things. The school system had unduly delayed identifying and evaluating the child for special education under the IDEA.  The psychoeducational evaluation conducted by the school was inappropriate. There was no occupational therapy or assistive technology evaluation conducted.  The child was determined eligible for special education and related services under the category of Other Health Impaired and Emotionally Behaviorally Disordered.  At the IEP meeting, the team focused mostly on the child’s challenging physical and verbal aggression and behaviors.  The school system had conducted a perfunctory functional behavioral assessment and behavior intervention plan for the child while he was served by a Section 504 plan.  It was incumbent to request an independent educational evaluation for the child because the school’s evaluation was inappropriate.  It was also necessary to secure an appropriate functional behavioral assessment so that a proper behavior intervention plan could be developed and implemented. There were about ten educators at the IEP meeting but only the special education director and a couple of other staff spoke during the meeting. The challenge in this situation is get the special education director to facilitate other staff to contribute to the child’s IEP.  We made some progress on this front.  However, the special education director was clearly leading the meeting and making most of the suggestions and proposals for the child’s IEP, including goals, objectives, services, and placement. The legal guardian of the child, who was not the parent, did not have much knowledge of special education laws so my role was more of an advocate for the child. It is usually better when the parent or guardian is vocal and assert their concerns about the child’s educational programming. In absence of an active parent or guardian, a special education attorney’s role is more pronounced and weighty.

My other random thoughts on special education law concern the 10th grade student with autism and intellectual disability. The mother, who was savvy but relatively quiet at the meeting, had a number of serious concerns about her child’s IEP and its implementation.  There were able a dozen school staff, including occupational, speech and language, assistive technology, and vocational specialists. In fact, a representative from the Department of Vocational Rehabilitation attended the IEP meeting which is quite unusual.  The parent invited an educational advocate to the meeting who had more than 25 years of teaching experience with children with autism and severe disabilities. Working in tandem with an experienced educational advocate is important so that everyone is on the same page in securing appropriate services for the child.  We addressed all aspects of the IEP for the child. Some changes were made in the goals and objectives.  The transition plan was modified to address more of the child’s prevocational needs. The primary parental concerns of communication, self-help and independent life skills, especially toileting, vocational and behavioral challenges were properly addressed at the IEP meeting. Most of the members of the IEP team were active and vocal in expressing their concerns and suggestions.  The parent’s primary concerns were addressed but still she feared because of past experiences with the school that the revised IEP services would not be implemented. It is true that you can develop a great IEP on paper, but if it is not implemented properly it fails to provide an educational benefit for the child. To insure an IEP is properly implemented takes a great deal of effort by both the parents and school system. For ideas how to monitor an IEP and its implemented, see http://www.wrightlaw.com.

 

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