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Is your hearing officer competent?

When a parent disputes a decision made by a school district regarding the special education and/or services of their child, one option is to file a “Due Process Complaint”.  [See Procedural Safeguards, 20 USC 1415(b)(6) and (c)(2).]  When a complaint is filed, the state’s Department of Education assigns the case to an “Independent Hearing Officer”.  20 USC 1415(f)(1)(A).

States differ on who fills the role of Independent Hearing Officer (“IHO”).  In a few states (Pennsylvania, for  example), the DOE appoints dedicated hearing officers to special education matters.  These people tend to be experienced practitioners in special education law, whether lawyers or school psychologists or similar professions.  In several states (New Jersey, Arizona, Wisconsin, for example), the DOE relegates the cases to the state’s version of the Office of Administrative Law.  From there, Administrative Law Judges (“ALJs”) are appointed as the hearing officers of special education cases.

While true IHOs handle only special ed cases, ALJs handle numerous different types of administrative law cases.  The types of cases handled by ALJs include civil service appeals, some workers compensation cases, denials of benefits (such as social security, welfare, disability, etc.), alleged violations of environmental laws, and many others.  In other words, the scope is very wide and ALJs cannot possibly be intimately knowledgeable about the laws in all of those areas.  (Think of it this way, if you have a problem with your knee, do you go to a heart surgeon? No, you go to an orthopedic surgeon.)

The main special education law, the Individuals with Disabilities Education Act (“IDEA”) requires that IHOs meet certain requirements.  “A hearing officer conducting a [Due Process] hearing . . . shall, at a minimum . . . (ii) possess knowledge of, and the ability to understand, the provisions of this chapter, Federal and State regulations pertaining to this chapter, and legal interpretations of this chapter by Federal and State courts; . . . and (iv) possess the knowledge and ability to render and write decisions in accordance with appropriate, standard legal practice.” 20 USC Sec. 1415(f)(3)(A); 34 CFR Sec. 300.511(c).

What all that legal mumbo-jumbo means is that whomever is assigned to hear special education cases should be competent in special education law (IDEA, etc.) as well as in making well-reasoned written decisions.  Many ALJs do not have the required knowledge or experience (or time) to handle special education cases.  In my opinion, the system is broken and the blame lies with the state DOEs.

I have suggestions on how to fix this, but won’t discuss them on this blog (for now, but perhaps in the future).  But one thing you should do as a parent is consult with a special education attorney to determine if you will get a competent hearing officer to hear your dispute.

Top Ten Special Ed Law Tips

Sometimes you just need some quick tips to help you through the maze that is special education law.  Fair enough.  Here are my Top Ten tips for parents and advocates:

1.  Put everything in writing!  Document every single thing you do as it will only help your child and help if you find yourself in a dispute with the school.  Email is best because it has a date, time, and recipients noted.

2.  Make them put everything in writing!  Not only should you document everything, make the school do the same.  If they say something during an IEP meeting or agree to a service, make them put that in the IEP or in writing to you.  An old saying goes “If it isn’t in writing, it didn’t happen.”

3.  Do not sign anything until you are 100% sure about it.  If you need to consult with an attorney or expert in special education, do so.  If there is any doubt in your mind, don’t sign a document.  Make sure your child is getting the services you believe are necessary.

4.  Keep your expectations reasonable.  This does not mean that you shouldn’t demand the moon for your child; you should.  But also realize that schools have lots of kids – sometimes lots of other disabled kids – and they have limited budgets.  Talk to someone to make sure you are not being unrealistic in what you ask for.

5.  Consult a special education expert about what your child needs.  You need to be able to translate your child’s needs into concrete things a school can do for your child, whether that is different curriculum, access to the classroom, therapies, services, etc.  A good education advocate or education psychologist can often help you know what your child needs.  And don’t jump onto bandwagons, such as the 1-on-1 aide bandwagon; such aides are helpful, but only when your child actually needs that.  For example, if your child is dyslexic, an aide won’t do much for your child unless that aide is a dyslexia specialist.

6.  Be prepared!  I know I sound like the Boy Scouts, but it is a good motto for special education.  Read as much as you can about your child’s disability; make sure you understand your child’s challenges (reading? writing? math? social? behavior?).  Go into an IEP meeting or any other interaction with the school armed with tons of information – more is better.

7.  Know your rights.  Most parents don’t know their and their child’s rights under the law for special education.  First, the school should give you “procedural safeguards” that list your rights.  Read that carefully or consult with a special education lawyer who can tell you your rights.

8.  Keep your emotions in check.  I know this is easier said than done when it comes to your child, but yelling matches never accomplish anything.  This is why advocates are sometimes helpful because they can remain calm and objective.  Remember what our mothers always told us: “You catch more flies with honey than with vinegar.”  If you follow Tip #6 above, it will help you follow this Tip.

9.  Take copious notes.  Write down everything, especially at an IEP meeting.  Again, this may be when an advocate comes in handy.  Parents are often overwhelmed at these meetings and intimidated by the sheer number of people around the table “on the other side”.  You will need notes to confirm what you heard and make sure everything is in the IEP that should be.  These notes also come in handy if you end up in a dispute with the school.  Keep a journal or diary or let your advocate do that.

10.  Don’t back down.  This is an easy thing to do when you think “it’s me against an entire school district.”  But if you have followed all of the Tips above and you still feel strongly that you are asking for the right things for your child, do not let them convince you otherwise.  They are obligated by LAW to provide a Free Appropriate Public Education (FAPE) to your child with a disability.  And if you have to fight them and you win, you can be reimbursed for your attorney’s fees.  So don’t be afraid to do battle.

I hope these are helpful.  I will share more law-related tips in the future.  And look for my book “Schoolkidslawyer’s Step-By-Step Guide to Special Education Law: Workbook for Parents, Advocates and Lawyers” which will have more of these tips, forms, and an explanation of the entire special education process for you.  Hopefully this is coming out Fall 2015!

And always, you can contact me for a consultation at 267-209-0783 or info@schoolkidslawyer.com.

 

“Is special education instruction by a paraprofessional legal?”

Recently, I was asked this (not so) hypothetical:

4th grade child has an IEP (high functioning Down Syndrome) and is placed in a life skills classroom. There is one special education teacher and seven aides rotating through the classroom.  Reading and math instruction is being solely taught by an aide with the teacher touching base with the child once a week for this instruction. Are there any laws or regulations that say direct instruction can be delivered by a paraprofessional?

Here is my analysis and answer:

A State may only receive federal funding for special education under IDEA if: “The State educational agency has established and maintains qualifications to ensure that personnel necessary to carry out this subchapter are appropriately and adequately prepared and trained, including that those personnel have the content knowledge and skills to serve children with disabilities.”  20 U.S.C. Sec. 1412(a)(14)(A).

“The qualifications under subparagraph (A) include qualifications for related services personnel and paraprofessionals that— (i) are consistent with any State-approved or State-recognized certification, licensing, registration, or other comparable requirements that apply to the professional discipline in which those personnel are providing special education or related services; (ii) ensure that related services personnel who deliver services in their discipline or profession meet the requirements of clause (i) and have not had certification or licensure requirements waived on an emergency, temporary, or provisional basis; and (iii) allow paraprofessionals and assistants who are appropriately trained and supervised, in accordance with State law, regulation, or written policy, in meeting the requirements of this subchapter to be used to assist in the provision of special education and related services under this subchapter to children with disabilities.”  20 U.S.C. Sec. 1412(a)(14)(A) (emphasis added.)

So, first, paraprofessionals in the special ed environment (implementing an IEP) must be properly certified in the discipline they are teaching.  This is true for reading and math.  You must look to the State’s education code on who has the proper certification and/or licensing to meet this certification requirement.

They must also be appropriately TRAINED and SUPERVISED.

What does “trained” mean?

All special education teachers must be HIGHLY QUALIFIED.

“Each person employed as a special education teacher in the State who teaches elementary school, middle school, or secondary school is highly qualified.”  20 U.S.C. Sec. 1412(a)(14)(C); 20 U.S.C. Sec. 6319(a)(1).

This is especially true for core academic subjects.  20 U.S.C. Sec. 6319(a)(2).

For paraprofessionals (aides), specific requirements are set forth in the No Child Left Behind Act.

“Each local educational agency receiving assistance under this part shall ensure that all paraprofessionals hired after January 8, 2002, and working in a program supported with funds under this part shall have— (A) completed at least 2 years of study at an institution of higher education; (B) obtained an associate’s (or higher) degree; or (C) met a rigorous standard of quality and can demonstrate, through a formal State or local academic assessment— (i) knowledge of, and the ability to assist in instructing, reading, writing, and mathematics; or (ii) knowledge of, and the ability to assist in instructing, reading readiness, writing readiness, and mathematics readiness, as appropriate.”  20 U.S.C. Sec. 6319(c) and (d).

What does “supervised” mean?

Again, the No Child Left Behind Act explains the duties of a paraprofessional (aide).   20 U.S.C. Sec. 6319(g).

“A paraprofessional may not provide any instructional service to a student unless the paraprofessional is working under the direct supervision of a teacher consistent with this section.”  20 U.S.C. Sec. 6319(g)(3)(A).

The question is whether the special ed teacher checking in once a week is appropriate direct supervision.  This will depend on the facts of what the teacher means by “touching base” with the student.  In other words, is the teacher ever observing or monitoring how the aide is providing instruction?

Conclusion

So, can paraprofessionals teach core subjects under an IEP?  Maybe, but doubtful.  (1) They must be properly certified; (2) “highly qualified”; and (3) properly supervised.  Investigation into the facts of each case will determine if these three required elements are being satisfied.

Sorry to give the age old lawyer answer of “it depends”, but each case can be different and the only way to give a definite answer is by what the detectives on Dragnet always said, “Just the facts, ma’am, just the facts.”

 

 



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