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Our official position on political candidates and appointees

The following is SchoolKidsLawyer.com‘s official position on political candidates and appointees to positions, specifically any potential or affirmed appointee to the U.S. Department of Education, the United States Supreme Court, or to any lesser court in our land.

The U.S. Department of Education and, in particular, the Secretary of Education is, by law, the person designated to enforce federal special education laws. These laws include (among others): the Individuals with Disabilities Education Act (IDEA), Sec. 504 of the Rehabilitation Act, and the Americans with Disabilities Act (ADA) as they apply to schools that receive federal funding. The Supreme Court and lesser courts also interpret these laws and set legal precedent that may affect our client.

As lawyers, we are sworn to uphold the Constitution and the laws of the United States of America and the States within which we are licensed. It is in our oath of office. Obviously, we want to enforce those laws and provide zealous and competent representation of our clients within those laws. Interpretation of those laws by government officials and agencies is critical to our job as advocates.

Thus, regardless of who is appointed to these positions, our firm must work with those individuals to try to shape policy favorable to our clients. In the case of SchoolKidsLawyer.com (Thurston Law Offices LLC), that means students with disabilities and their parents primarily.

We will not take public positions for or against any political candidate or appointee for the reason that we ultimately may have to work with that individual, regardless of our personal opinions. As we all learn as children, ‘you catch more flies with honey than with vinegar’. It is difficult to negotiate with or persuade someone to a favorable policy if you have deteriorated or destroyed any working relationship with that person. Put simply, if you make someone dislike you, working with that person will be challenging to say the least.

Thus, acting in the best interests of our clients – past, current, and future – we choose not to take any stances that may harm our clients’ positions in any legal context. Thank you for respecting our position in this regard.

Don’t go to a heart surgeon for a broken arm . . .

If you fell and broke your arm, would you go to a heart surgeon?  Of course not.  You would go to an orthopedic doctor who could determine whether you need a cast, sling, surgery, etc.

The same principle applies in law.  If someone has sued you for cutting down the tree on their property, you wouldn’t hire a tax attorney to represent you.  Similarly, if you have a special education law issue, you shouldn’t hire an attorney who focuses on wills.

Perhaps people don’t realize that lawyers focus their practices on certain areas.  We do this so we can become ‘experts’ in those areas.  The days of the ‘general practice’ lawyer who handles any and every legal problem are long gone.

However, hiring the wrong lawyer is exactly what happened in the case Z.Z. v. Pittsburgh Public School Dist. (PA Commonwealth Ct., Nov. 30, 2016).  The Pittsburgh, PA firm that represented parents, Steele Schneider, consists of primarily employment law and business law attorneys.  While they do list special education law as one of their practice areas, I don’t believe they are members of COPAA (special education advocates and attorneys organization) or any other special education law group nor have I heard of them before this case (and I practice a fair amount of special education law in Pennsylvania).

I believe the Z.Z. case was correctly decided by the court in favor of the school district and against the parents.  I also believe the reason for that is the parents (and perhaps also their attorneys) were overzealous in this case and jumped the gun, specifically seeking legal remedies through Due Process before even completing the IEP process.  The Hearing Officer found (and confirmed by the Commonwealth Court) that the IEP process had not even been completed and parents had not fully cooperated with the process before filing for the lawsuit, thus the school district had not violated IDEA.  Good special education lawyers would have counseled the parents against filing a lawsuit until the IEP process was completed and, if the case was already filed, would have advised the clients not to pursue it further.

There is an ethics rule that states that an attorney should withdraw from representing a client if “the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.” PA Rule of Professional Conduct 1.16(b)(4).  I’m also concerned that the lawyers involved in the Z.Z. case had the wrong motive for representing the parents.  (I’ll leave that up to your imagination as to what that motive might be.)

Unfortunately, a similar thing occurred in the case Batchelor v. Rose Tree Media School Dist., (3rd Cir. 2014).  In that federal court appeal, Frank Schwartz, Esq., a commercial / employment law litigator from the firm Lamm Rubenstone LLC, created horrible special education law for parents.  That case ruled that parents have to exhaust every legal remedy against a school before a hearing officer prior to going to court, even including anti-discrimination laws like Section 504 and the Americans with Disabilities Act (ADA) which say you can go directly to court.  How did this happen? Simply, Schwartz based his argument using an old version of the law that was no longer applicable (specifically, relating to exhaustion.)  This is much less likely to happen if the clients had selected an attorney that focused his/her practice on special education law (or Schwartz had referred the case out to a special education lawyer).

Thus, my conclusion is that lawyers who don’t truly practice in special education law on a regular basis should not take these cases because they end up creating bad precedent for parents and children with disabilities.  These cases also harm the public’s perception of special education lawyers and advocates.  This frustrates attorneys whose true motive is to assist these clients.  My advice to special education clients is do your research and make sure your attorney focuses his/her practice on special education law.

What documents should be in your child’s special education binder?

If you are a parent of a special education student or advocating for one, do yourself a favor and . . .

PRINT OUT THIS ARTICLE (or at least the plan below).

Not only will this article save you time and lots of money, it will help you understand how best to help your child with a disability.

When clients contact me, most are armed with a box (or seven) of documents about their child’s special education.  It is wonderful that they are documenting their child’s path and what the school district is doing (or not doing) for their child.  It should be the mantra of every parent of a child with a disability: DOCUMENT EVERYTHING!

But . . .

Usually, the documents clients provide me are overkill and disorganized.  Inside the box(es) is a pile of papers, often not in order. I doubt highly that a client wants me to bill them at $375.00/hour to go through those papers to organize them and figure out what I need.  Thus, before you meet with a lawyer or advocate, you should organize your child’s special education documents first.  You should do this even if you are advocating for your own child.

Here is a plan to explain which documents you need, which documents you don’t need, and how to organize them.

THE PLAN

1. Get a 2″ 3-ring binder with dividers.  Label the dividers as follows: MEDICAL, FAMILY BACKGROUND, EVALUATIONS, IEPs / 504 PLANS, and SCHOOL DOCS.

2. Under MEDICAL, include any papers from the original diagnosis of your child.  Also include any changes to that diagnosis (e.g. ADHD -> Autism Spectrum Disorder).  Also include a list of any major medical events, such as surgeries, hospital in-patient stays, broken bones, major or chronic illnesses, and allergies (don’t forget dental events, such as tonsillectomies, baby teeth extractions, etc.)  As best you can, document the dates and locations of these medical events, as well as treatments received.  Finally, if there are any related medical or psychological disorders in the immediate family, note those here as well (e.g. grandfather diagnosed with Alzheimer’s, uncle diagnosed with ADHD, etc.)  Finally, in the front of this section, place a list of all current physicians and medical providers seen by your child – primary care physician, occupational therapist, physical therapist, psychiatrist, psychologist, speech therapist, etc.  Make sure you have their name, the service they provide, and contact information (phone number, email address, website).

3. In the FAMILY BACKGROUND section, include notes of milestones in your child’s development (e.g. date first crawled, date first walked, date first spoke, first spoken words, etc.), especially any noted delays in such development.  Also provide a narrative of your family makeup and any major changes, such as number of living grandparents, parents, child’s siblings, aunts, uncles, etc.  It is critical to be honest about family events, such as divorces or separations, geographic relocations, domestic violence, financial or other stress, etc.  Place in this section other matters of importance in your family culture, such as religious beliefs, school history including any changes in school, ethnic celebrations, etc.

4. Do not include every evaluation of the child ever performed.  In EVALUATIONS, place only the most recent evaluations of the child.  These evaluations should be no more than 3 years old.  If the evaluations occurred more than 3 years ago, do not include them.  Thus, if this section is empty, one of the things you will be requesting is a new comprehensive educational evaluation of your child.

5. Like EVALUATIONS, within the IEPs/504 PLANS section do not include every IEP or 504 Plan since your child’s birth.  (That’s supposed to be humorous.)  My recommendation is to only include the current approved IEP or 504 Plan and all approved ones going back two school years.  You should only include a draft IEP or 504 Plan if it is related to the current approved IEP or 504 Plan (to show how the school changed or omitted certain information) or it is a current proposed IEP or 504 Plan with which you disagree.  Old drafts should be discarded because approved IEPs and 504 Plans overrule those drafts. Thus, this section should be at a maximum, 3-5 documents, especially since these are typically very long documents (you may consider only including pages from prior plans or drafts that conflict with the one currently at issue.)

6. The SCHOOL DOCS section is the trickiest of all.  My rule of thumb is when in doubt, include it.  First, if you haven’t done so already, send a FERPA request to the school for your child’s records.  (Click on the link to the left to read more about FERPA requests.)  At the beginning of this section, provide a list of all contact points at the school with names, phone numbers and email addresses of the superintendent, principal, assistant principal, all teachers that see your child, all service providers that see your child, all persons involved in lunch and/or playground monitoring, and any other person that your child may encounter in school.  Also include anyone on the IEP Team (Child Study Team) that is not included in the prior list, such as school psychologist.  [Why do this? First, it will assist your attorney or advocate into knowing who the players are.  Second, it will show the IEP Team that you are more than prepared when you show up at an IEP Team meeting with the list.  Can you imagine the fear on the faces of the IEP Team members when they see their names and contact information on a list in your notebook? Make sure you turn to that page in your binder when you first sit down.]  You should include here results from your child’s standardized tests, report cards, any disciplinary reports, absent/tardy reports, progress reports (triggered by the current IEP or otherwise), and any other key documents that discuss your child’s current levels of academic achievement and functioning in the school environment (sometimes emails from teachers or among teachers and administrators provide the true story).

Your binder may be huge, but volume is not the problem.  Disorganization is the problem which the binder resolves.  You, your attorney, or your advocate will appreciate this effort.  And, as stated previously, it will help zero in on the real issues your child with a disability is facing in the school environment.

For more on this and related topics, consider purchasing the book SchoolKidsLawyer’s Step-By-Step Guide to Special Education Law: Workbook for Parents, Advocates and Lawyers available now from Amazon.com or direct from SchoolKidsLawyer.com.

 



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