10 Tips For Hiring A Special Education Lawyer

When parents disagree with their child’s school about special education or services the student with a disability is receiving, they might consider hiring a lawyer.  This may be the first time they’ve ever needed or interacted with an attorney, so they may be overwhelmed and unsure how to decide whether to employ his/her services.

I’ve tried to simplify the process in the following 10 tips for hiring a special education lawyer:

1. Don’t tell your whole story during the first meeting or phone call.

Most special education lawyers have a pretty good idea why you are calling them and have dealt with situations like yours.  Don’t expect legal advice because he/she needs to learn your case and an initial meeting is usually not thorough enough to do that.  Plus, lawyers like to do legal research before they give advice or opinions.  We often want to make sure we know the current law on an issue.  All this goes hand-in-hand with . . .

2. Remember that time = $$$$.

Abraham Lincoln famously said, “A lawyer’s time and advice are his stock in trade.” In other words, that is how lawyers get paid.  Our knowledge and expertise in legal matters is the value we bring to the table.  The fact that you are calling a lawyer indicates you can’t do it without help from someone who understands the legal system.  Plus, lawyers have cases other than yours and they will give equal priority to theirs as they will to yours.

3. Shop Around.

I recommend you talk to 2 or 3 lawyers before hiring one of them.  Not every lawyer is the same.  Ask yourself what you want your lawyer to be – aggressive? inexpensive? passionate? reasonable? Are you going to take the lead in helping your child or do you want the lawyer to take charge?  Most importantly, not every lawyer bills fees the same way.  It’s always good to compare among choices.

One of the ways to compare is to . . .

4. Research the lawyer.

You’re probably not sure how to do that.  There are websites that rate lawyers – Avvo; LinkedIn; Facebook; Yelp – but don’t put a ton of stock in those because lawyers’ friends may be posting the reviews.  Look at the lawyer’s credentials – where they went to law school; how long have they been admitted to the bar; how long has he/she been doing special education legal work; what is his/her reputation in the community or with peers; etc.  Much of this information you can get on websites, but ask your friends.

Or when talking to a lawyer you’re thinking of hiring . . .

5. Ask about other special education cases he/she has handled.

Lawyers won’t (and shouldn’t) name names of other clients, but they can describe generally other special education cases they’ve handled and what types of disabilities their other clients’ children had.  Ask if they won the case or if it settled; ask what the main issue / problem was; ask how hard the battle with the school district was; ask the highest court they’ve taken a case to; and ask if they have ever dealt with a case similar to yours.

And because special education law is becoming more about litigation (lawsuits), ask . . .

6. Does the lawyer know about both special education law and litigation?

School districts are fighting harder than ever in special education disputes.  In fact, recently a colleague (who is a trial attorney, but not a special education lawyer) commented that he was shocked at how difficult the school district’s attorney was in a case before referring it to me.  Yes, it is going to be a hard fight and you need a lawyer who understands legal procedure, evidence, examining witnesses, legal precedent, and how to argue persuasively – on top of knowing special education law.

7. Do you like him/her?

This sounds petty, but it’s not.  You need to feel comfortable with your lawyer; not as a friend, but as someone who understands you and what you want for your child.  This is a business relationship and just like you want to get along with your plumber, your mechanic, your doctor . . . you want to make sure this relationship is solid.

To make sure that this business relationship goes well . . .

8. Get a contract.

In legal terms, this is a fee agreement.  Don’t be afraid to negotiate.  Do you walk into a car dealership and just say, “OK, I’ll pay that price for this car with nothing customized to my needs”???  Of course not (or at least you shouldn’t).  You also shouldn’t just accept what the lawyer says for the agreement.  A fee agreement (also called a retainer agreement) is your contract with your lawyer.  You want to make sure that (a) the services are what you want, no more, no less; (b) you understand how fees will be charged and how much; (c) in special education cases, you may be able to recover those fees and if you do, how will they be reimbursed to you; (d) how long the contract shall last; (e) what happens if you fire the lawyer or change lawyers; and (f) what happens if you break the contract.  Expect the best, but plan for the worst.

9. Don’t ask the lawyer to work for free.

First, go re-read #2 above.  You may have a great case, but you are asking a lawyer to use part of his/her workday to help you with your case.  Just like an electrician who charges for the time he/she is at your house to fix the wiring, the lawyer needs to be paid for the time spent working on your case.  If you were charged with a crime and needed a criminal defense lawyer, you’d probably find the money to pay him/her to represent you.  The same should apply for a special education lawyer who is representing you and your child with a disability.  Lawyers have bills, need food, clothes, and some pay college tuition – like you.  If you have a job, you expect your employer to pay you.  You are your lawyer’s employer.

10. Your lawyer should be passionate about special education.

Notice I didn’t end that sentence with “law”.  Your lawyer should understand that the ultimate goal is to help with your child’s education.  Are they passionate about helping kids with disabilities?  Does he/she have a child with a disability? Ask how and why the attorney got into special education law.

You want to hire a lawyer who is passionate about special education so he/she will be passionate and understanding about your case and your child.  That way, you can work as a team to help your child.

I hope these tips help the daunting task of hiring a special education lawyer.

 

The Appropriate Use of Assistive Technology for Students – Antonia Guccione, MA, MS [Guest Blog Post]

Discerning how, when, and why students should access Assistive Technology to support learning involves many levels of decision making.  It all starts with the IEP, the student’s present levels of performance, his educational needs, and the impact those needs have on learning. Thank goodness there is help! The Wisconsin Assistive Technology Initiative provides a series of tools for educators and parents. The WATI Assistive Technology Consideration Guide is a great place to start if you suspect that there are tools that are necessary to support a student’s learning.

For example, if a student has an issue with writing, it can seriously impact that student’s ability to function in the classroom and do grade level work. For our purposes, we will assume an upper elementary age male child and begin our assessment and decision making there.  He may not be able to express thoughts, opinions, or ideas on paper.  How will he form complete sentences and/or organized paragraphs?  How can Assistive Technology help him?

Discerning how, when, and why students should access Assistive Technology to support learning involves many levels of decision making.  It all starts with the IEP, the student’s present levels of performance, his educational needs, and the impact those needs have on learning. Thank goodness there is help! The Wisconsin Assistive Technology Initiative provides a series of tools for educators and parents. The WATI Assistive Technology Consideration Guide is a great place to start if you suspect that there are tools that are necessary to support a student’s learning.

http://www.wati.org/wp-content/uploads/2017/10/WATI-Assessment.pdf [PDF file]

THE WATI

Enter the WATI Assistive Technology Consideration Guide. First, the team must agree on the impact of this issue.  While many are possible, let’s assume that the major impact for this student is his ability to do grade level work in the classroom and express his thoughts on paper in an organized paragraph.  The question becomes whether there is currently assistive technology- either devices, tools, hardware, or software that might help address this need?

Referring to the Assistive Technology Continuum, there are Low Tech, Mid Tech, and High-Tech tools to consider. Have any been tried?  Is there data to support the trials?  Possible Low-Tech tools include specialized pens, raised paper, highlighters, post -its, and slanted surfaces. Mid Tech Tools include tape recorders, spell checkers and dictionaries.  High Tech tools include word prediction software, word banks, and word processors.

Finally, would the use of these assistive technology tools support the student in performing this skill more easily in the least restrictive environment? If the answer is yes, it is time to consult with the IEP team and document this need, its impact, and interventions that might be helpful.

https://adayinourshoes.co m/wp-content/uploads/2015/09/WATI-Assessing-Students-Needs-for-Assistive-Technology.pdf [PDF file]

Based on lack of progress on IEP goals, the Committee on Special Education must consider a student’s need for assistive technology devices and/or services, as well as possible modifications and accommodations.  If a student needs such devices and/or services, the appropriate sections of the IEP must specify the:

  • nature of the assistive technology to be provided; 
  • services the student needs to use the assistive technology device; 
  • frequency, and duration of such services; 
  • location where the assistive technology devices and/or services will be provided; and 
  • whether such a device is required to be used in the student’s home or another setting in order for the student to receive a free appropriate public education.

http://www.p12.nysed.gov/specialed/publications/iepguidance/present.htm

GOALS

Goals must be written accordingly, and I recommend using the concept of a SMART Goal.  A specific goal which is measurable, attainable, realistic, and timely has a greater chance of being accomplished than a general goal.

https://east.madison.k12.wi.us/files/east/Smart%20Goals%20Information%20CC%2011_0.pdf [PDF file]

Here is an example of an objective taken directly from an AT-Resource Guide for written communication which utilizes Assistive Technology:

Goal: Jon will use an electronic graphic organizer to write an opening topic, a closing, and three supporting detail sentences to construct a five-sentence paragraph, by the end of the first semester.

Objective: Given five sentences in an electronic graphic organizer, Jon will identify and arrange the opening topic, the closing, and three supporting detail sentences to create a paragraph, by the end of the first six weeks of school.

https://www.ocali.org/up_doc/AT_Resource_Guide_6.pdf [PDF file]

IN THE IEP

Another resource which offers support to parents in understanding what Assistive Technology is and how to get it into a student’s IEP is noted below:

https://adayinourshoes.com/assistive-technology/

Once the tools have been obtained, how does one manage the Assistive Technology?  Who trains the teachers and parents? Who trains the student?  But that is a whole other discussion!

Even if the present levels of performance indicate a student who can participate in a discussion, that doesn’t mean he can write about it. A basic understanding of texts and current events is not the issue. However, ask him to summarize that information in a paragraph and the sky falls down.  On the IEP, present levels of performance are recorded, and appropriate sources of data have been discussed and administered.  These have included both formal and informal assessments, with work samples, and data charts to show progress or lack of progress over time. Are there modifications and accommodations that have been incorporated? Have these interventions resulted in significant progress or is this student still having difficulty responding to a writing prompt.

FINAL NOTES

In conclusion, Assistive Technology provides many tools to support learning and can result in a positive outcome.  It is a timely process, but one worth pursuing. Better to know what works sooner rather than later.  Assess the student’s needs, document the impact on learning, and then choose the appropriate tool to support learning in the least restrictive environment.  Keep accurate data to demonstrate progress.

If you suspect your child could benefit from assistive technology, reach out to the professionals involved in his education.  In addition, access the sites documented in this article.  I’ve only presented one need, and that is for writing. I haven’t even touched on communication, mobility, motor aspects of writing, reading, learning and studying, math, recreation, or activities of daily living, vision, hearing, and language processing. Understand that the array of Assistive Technology Tools is vast.  Following a process to obtain these tools may be involved, but it can result in access to tools that can help this child for life. 


Antonia Guccione, MA; MS

Antonia is a consultant, educator, and author with over forty years’ experience working with students of all ages, strengths, and needs.

Which Teaching Style is “Best”? – Antonia Guccione, MA, MS [Guest Blog Post]

In the districts in which I taught as a Special Educator as well as in the districts where my own children attended school, parents would always advocate for certain teachers; “the good ones” —the ones whom everyone respected and the ones who always got good results.  It’s hard to say whether there is a correlation between a student’s learning style and certain teachers. Is there one type of teacher that does well with all students?  Probably not, but if you are in the business of trying to find the best “fit” for your child, there are some things to consider.

Teacher’s Individual Style

First think about the teacher’s individual style. In the book Classroom Discipline and Management, Clifford Edwards discusses three primary teaching styles. Everyone would like to be or have the Democratic Teacher.  Children develop a sense of belonging and have a stake in the classroom. Firm guidance is being provided with each step and children are involved in making decisions.  In addition, children are taking responsibility for their own work and are involved in cooperative learning experiences where each can explore, discover, and choose his or her own way.  All the while, the teacher is firm, yet kind. This is the ideal. The results are positive; children develop a sense of belonging and have a stake in the classroom.

However, there are teachers who favor more of an autocratic style.  They tend to force their will on students rather than motivate them.  There may be little warmth or humor in interactions and these teachers refuse to tolerate any deviation from rules.  In the worst case, they exact punishment for those who refuse to conform.  Is it necessary sometimes to be firm?  Of course.  Are there consequences for improper behavior? Yes, definitely. Teachers must use their judgement as each situation differs. However, a daily diet of this autocratic style may result in students who are hostile to demands, commands, and reprimands. 

Then there are teachers who are too permissive and promote a classroom atmosphere which is chaotic and not conducive to either teaching or learning. They underestimate the importance of rules and do not follow through on consequences.   Sometimes a child needs some room or a special set of circumstances.  Again, teachers must use their judgment.  On an ongoing basis though, students may feel empowered to challenge rules and expectations at every turn.

The Child’s Individual Learning Style

When thinking about the best fit for your child, another variable to consider is his or her individual learning style.  You, as parents, know your child best. By the time children have completed third grade you are probably familiar with their style, be it visual, auditory, kinesthetic, or geared to reading and writing.   You know what kinds of assignments appeal to them and which ones are problematic. 

https://teach.com/what/teachers-know/learning-styles/ .

In addition, the theory of multiple intelligences can often be helpful in understanding the needs of your child. There are seven basic styles.  Which does your child favor?

  • Linguistic intelligence (“word smart”)
  • Logical-mathematical intelligence (“number/reasoning smart”)
  • Spatial intelligence (“picture smart”)
  • Bodily-Kinesthetic intelligence (“body smart”)
  • Musical intelligence (“music smart”)
  • Interpersonal intelligence (“people smart”)
  • Intrapersonal intelligence (“self-smart”)
  • Naturalist intelligence (“nature smart”)

Teaching Environment

Classroom management is a topic onto itself. Behavior does not happen in a vacuum. Many a student has been coaxed into learning by an engaging lesson which peaks his or her curiosity. Teachers need to excel at their craft.  According to James Stronge, effective teachers excel in the following: 

  • Professional knowledge.
  • Instructional planning.
  • Instructional delivery.
  • Assessment
  • Learning environment.
  • Professionalism.

It is a teacher’s primary responsibility to devise engaging lessons in line with standards and assessments as well as a student’s learning style.

In the end, I think good teachers will devise a combination of the three basic types that are in the literature.  While the ideal may be the democratic teacher, sometimes a more permissive attitude is needed; other times some firmness is required. 

Action Items

If you find that your child is thriving, reach out and thank that teacher! However, if you find that your child is developing coping behaviors in school which are not to your liking, dig below the surface and investigate the teaching style, the classroom atmosphere, and the curriculum and assignments being presented.  Think about your child’s type of intelligence and learning style. Consult with the professionals to engage their help if necessary. Somewhere in there is a solution to promote an atmosphere conducive to teaching and learning and a happy and engaged child. 

Edwards, Clifford H,  Classroom Discipline and Management,.  John Wiley & Sons, Hoboken, N.J.  2000.

Stronge, James H, Qualities of Effective Teachers,  Alexandria, Va., ASCD, 2002.

Why Schools Shouldn’t Reject Your Child’s Diagnosis

Recently, I have heard (far too many) stories from parents that the schools are taking away services from their child and/or denying providing services because the school does not believe the child’s diagnosis.  This is wrong and illegal on so many levels, but I will adress the three (3) most important reasons why schools should never deny or reject a child’s diagnosis. 1. Only licensed physicians (medical doctors, doctors of osteopathy, and/or nurse practitioners depending on your state law) may provide a diagnosis and most IEP team members from the school district are NOT licensed physicians (school psychologists are not licensed physicians). As an example, in New Jersey (and most states have similar laws to my knowledge) a person must have a license to “practice medicine or surgery”.  N.J.S.A. 45:9-6.  Diagnosis is practicing medicine.  N.J.S.A. 45:9-5.1. If one of the school staff suggests or takes the position that your child doesn’t have a diagnosis that has been confirmed by a physician, ask such person if he/she holds a physician’s license in your state. 2. Many diagnoses are “hidden” disorders or neurological problems, but should not be denied simply because you can’t “see” them. If a child has Down Syndrome or Cerebral Palsy or Muscular Dystrophy or is an amputee, the disability is likely obvious.  (I prefer not to automatically assume it is.)  However, many disorders like Autism, ADHD, Generalized Anxiety Disorder, Dyslexia, Cystic Fibrosis, Sensory or Auditory Processing Disorder, Krohn’s Disease, Depression, and others are what I call “hidden” disorders because they are often not obvious just observing a child.  This is another reason that only licensed physicians who understand what tests need to be performed in order to make the proper diagnosis should do so.  I’ve heard teachers and school administrators (people who should know better) say, “But [he/she] looks normal!”  What an awful comment about a child with a disability. Frankly, I can’t understand why school personnel even question this.  For example, I have diabetes – a neurological disease.  Looking at me, you would not know this.  I do long charity bicycle rides of 70+ miles.  Most people would say, “He seems fine.”  While that may be the outward appearance, does it mean that I don’t have diabetes or that the disease does not affect me? It is wrong to deny that. The huge problem with this is that when services are denied because the school does not observe the disorder, the child’s disorder may have devastating effects.  Children with Autism may have meltdowns; children with ADHD may be distracted in classes; children with Auditory Processing Disorder may become disoriented or frightened; children with Krohn’s Disease may become exhausted; etc.  Once this occurs, access to education is impeded.  This is exactly what IDEA, 504, ADA, and other laws are designed to prevent. 3. Schools may respond that they don’t witness how the disability impacts the education, but they also don’t see the aftermath when the child arrives home. While it is true that under IDEA and 504, there are two parts to the question: (a) does the child have a diagnosis that fits them within an eligibility category? and (b) does the child need special education and related services or accommodations because of the disability?  20 U.S.C. 1401(3)(A); 29 U.S.C. 794. However, children have amazing capacity to overcome their disabilities.  In colloqual terms, they can “hold it together” during school hours, but then come home and “let it all out”.  Children know home is their “safe space” and if anxiety, frustration, fear, depression, anger, or similar emotions build up during the school day because the disability is not being recognized by the school, the parents must bear the brunt of those released emotions in the home. In fact, the U.S. Department of Education issued a guidance letter that states “IDEA and the regulations clearly establish that the determination about whether a child is a child with a disability is not limited to information about the child’s academic performance.”  USDOE Guidance, Letter to Clarke (2007).  That means behavior should also be considered – whether in school or in the home, because remember a parent is a critical member of the IEP team.  20 U.S.C. 1414(d)(1)(B)(i). Conclusion Schools should not reject a child’s diagnosis made by a licensed physician because (1) it is unlikely that an IEP team member is a physician; (2) just because they can’t “see” the disability doesn’t mean it’s not there; and (3) they need to consider all effects of the disability, including behaviors at home triggered by the failure to address the issues at school. If a school rescinds services to your child under an IEP or takes away the IEP because they don’t believe your child has a disability, contact a special education lawyer ASAP.  

Why Special Education Due Process Cases Are NOT Full-Blown Lawsuits

School board attorneys have managed to turn special education due process hearings into all-out, scorched Earth lawsuits, as if it was Microsoft vs. IBM.  In fact, they have convinced administrative hearing officers and judges that this is the way it should be.

But Due Process cases are not supposed to be full-blown litigation.  Here are 5 reasons why:

1. Timing.  Most civil lawsuits take more than a year to go to trial; in some states they can take up to 5 years before they go to trial.  This is why IDEA law requires cases to take no more than 75 days from complaint to decision20 U.S.C. §1415(f) (30 days resolution period + 45 days for hearing officer to issue a decision); see also 34 C.F.R. §300.515.  If a special education problem lingers too long, a child is missing out on his/her education.  Can you imagine if a case lasted 5 years?  The child would go from 3rd grade to 8th grade with no help.  Congress never intended this to happen.

2. Discovery. Civil litigation follows the Rules of Civil Procedure, which include discovery (getting documents, asking questions through interrogatories or depositions, and inspections of places).  By contrast, “discovery” in Due Process cases is informal.  In fact, the  hearing is the opportunity to get discovery, not before.  See 20 U.S.C. §1415(h); 34 C.F.R. §300.512.

3. Relief.  If you file a civil suit against someone in a court of law, you are seeking money.  Microsoft wants $10 billion from IBM.  In a special education case, you want your student with a disability to get a Free Appropriate Public Education.  In other words, you want the school to start teaching and being fair to your child.  See 20 U.S.C. §1415(i)(2)(C)(iii) (“shall grant such relief as the court determines is appropriate”); 34 C.F.R. §300.516(c)(3).  [Most courts have interpreted this provision to include an administrative hearing officer.]

4. Executive Branch. Civil lawsuits are conducted in courts of law – that means, the judicial branch of government.  See, e.g., Article III, U.S. Constitution.  Due process cases are conducted by an administrative hearing officer appointed by your state’s Department of Education.  20 U.S.C. §1415(f)(3)(A); 34 C.F.R. §300.511(c).  They are executive branch officers; not a court of law.

5. Fairness.  When two parties battle it out in a civil lawsuit, we presume there is a balance of power between them.  Justice is determined by the evidence.  In special education cases, Congress acknowledged that the parents are at a legal disadvantage20 U.S.C. §1400(d)(1)(b) (“The purposes of IDEA are . . . to ensure that the rights of children with disabilities and parents of such children are protected”); 34 C.F.R. §300.1(b).  Most parents are not lawyers, don’t have any legal training, nor have the financial resources like school districts and state governments.  IDEA attempts to level the playing field.

Conclusion

If the lawyer for the school district involved in your special education dispute is trying to turn your case into Microsoft vs. IBM, fight back against their tactics and let the hearing officer know that due process  hearings are not supposed to be all-out litigation war.

If you need the assistance of an attorney who will push back against these school district counsel tactics, then contact SchoolKidsLawyer.com.

 

Relentless – A Michigan Man

I’m going to tell you something about myself, but first I’m going to tell you a story.  You’ll wonder for a paragraph or two where this is going, but stick with me.  You will learn why this post is on my special education law blog.

What is a “Michigan Man”?

There are many articles and blog posts and other sources that try to explain this undefinable quality.   In “What Does It Mean To Be a ‘Michigan Man’?”, author John U. Bacon (a frequent writer about things Michigan, including the football team), admitted that “ultimately, to define it, I have to resort to Supreme Court Justice Potter Stewart’s description of pornography: ‘I know it when I see it.’”

He’s right.  And you have to be a Michigan Man to understand why he’s right.  First, you need a deep association with the University of Michigan (no, not that silly green and white agriculture college in East Lansing, but the Maize and Blue Wolverines of Ann Arbor).  [Note: I hate when after telling people where I graduated, they say “Oh, yeh, Michigan State.” Grrrrr.]

Not this!

Second, you need a passion about doing good work.  That passion requires hard work, sound ethics, and a focus unmatched by competitors.  This quality could be no better demonstrated than in the Amazon Show “All or Nothing: The Michigan Wolverines”.  [Outstanding television if you haven’t seen it yet.]

You strive to be a champion in everything you do, but you are not arrogant or presumptuous in that effort.  Perhaps, most importantly, you must be RELENTLESS.  Opponents always want to take you down and if you let your guard down for a moment, they will defeat you.  [Much like Michigan’s loss to Division II Appalachian State in 2007.]

You must be relentless to be a Michigan Man.

What Has This Got To Do With My Law Practice?

I am a very proud 1984 graduate from the University of Michigan’s College of Literature, Science & the Arts.  I received a Bachelor of Arts degree with a double major and a double minor.  I guess even in my undergraduate studies I was eager.

I don’t pretend to satisfy all of the qualities of a Michigan Man, but I will admit that is my goal.  That is where the practice of law, especially in the area of special education, comes into play.

I am relentless – in my search for justice; in representation of my clients; and in enforcing special education legal rights.

To my clients: Know that I will be relentless on behalf of you and your child with a disability.  If a school district is not meeting the requirements of the law, I will fight to change that so they come into compliance.

To my adversaries: Know that I will be relentless against your tactics.  I have been in litigation for nearly all of my 30 years of practice.  I have witnessed every strategy and method by opponents to try to get clients to back down.  [Some lawyers call this a “Scorched Earth” approach, because the lawyer will try anything – including burning everything – in order to get a favorable result.]  It won’t work with me.  I won’t give up.

Why?

Because I’m relentless.  Because I strive to be a Michigan Man.

 

 

Put Communications Between Teachers and Parents in the IEP

A new tactic being used by schools against parents of children with disabilities is to require / funnel all communications with the school through one person, usually the case manager.  We’ve seen numerous questions by parents if this is illegal or whether parents can request two-way communication be listed as an accommodation in the IEP.

Yes it is, yes it can and it should be.

But you won’t find the requirement in IDEA.  You’ll find it in ESSA.  Read on.

Not in IDEA

IDEA does not have a requirement or regulation that says that there should be ongoing communication between teachers and parents of children with disabilities.  Probably because Congress felt that such communication was basic common sense and they wouldn’t need to actually write it into a law.

What IS in IDEA is the following:

IDEA guarantees parents and their child with a disability numerous legal rights identified as “Procedural Safeguards”.  See 20 U.S.C. §1415; 34 C.F.R. §§300.500-520.  The U.S. Supreme Court has held that it is not only the child with the disability that has legal rights under IDEA, but the parents are also entitled to assert legal rights on their own behalf under IDEA.  Winkelman v. Parma City School Dist., 550 U.S. 516, 127 S.Ct. 1994, 1996 (2007).

One of the key Procedural Safeguards is “an opportunity for the parents of a child with a disability . . . to participate in meetings with respect to the identification, evaluation, and educational placement of the child.”  20 U.S.C. §1415(b)(1); 34 C.F.R. §300.501(b)(1) (emphasis added.)  The parents of a child with a disability are mandatory members of the IEP Team.  20 U.S.C. §1414(d)(1)(B)(i); 34 C.F.R. §300.321(a)(1).  Indeed, “the concerns of the parents for enhancing the education of their child” is critical in developing the child’s IEP.  20 U.S.C. §1414(d)(3)(A)(ii); 34 C.F.R. §300.324(a)(1)(ii); see also Honig v. Doe, 484 U.S. 305 (1988); Schaffer v. Weast, 546 U.S. 49, 53, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005) (Parents play “a significant role” in the development of each child’s IEP.)

Parental participation in an IEP meeting is so vital, it is set forth twice in the IDEA regulations.  34 C.F.R. §§300.322(a), (c) and (d) (emphasis added); 34 C.F.R. §300.501(b)(1).

But that is all concerning parental participation in the development of an IEP.  These provisions don’t discuss the daily, ongoing communication with the school.

Now, we look at ESSA . . .

ESSA

In 2017, Congress passed and President Trump signed the Every Student Succeeds Act, 20 U.S.C. §6301 et seq. (2017) (“ESSA”).  This was an amendment of the prior No Child Left Behind Act (“NCLB”).

The ESSA guarantees parents of a child with a disability to participate “in regular, two-way, and meaningful communication involving student academic learning and other school activities” and “play an integral role in assisting their child’s learning.” To accomplish that goal, parents are “encouraged to be actively involved in their child’s education at school . . . [and carry] out of other activities, such as those described in section 1116.” 20 U.S.C. §7801(39) (emphasis added.)

The activities referenced in “section 1116” state that parents may engage in to participate in their child’s education include, inter alia, ongoing communications between teachers and parents and classroom observation. 20 U.S.C. §6318(d) (emphasis added.)

Put Two-Way Ongoing Communication in Your Child’s IEP

Thus, since Congress deemed this so important that they wrote it into law, it is important enough to make it part of your child’s IEP.  Show them the law quoted above.  (Maybe even print out this article and bring it to the IEP meeting.)  Tell them that you want this accommodation written into the IEP, especially if the school is trying to deny this right of access.

I’m quite sure that even teachers would welcome such ongoing dialogue.  The key is not to abuse this right – don’t contact the teachers several times every day.  Be reasonable as teachers have other students and their parents to meet this obligation.  But, if you do so reasonably, there is no legal basis for a school to block such regular and common sense communication.

It’s no longer just common sense – it’s now the law.

 

Bullying and the Gebser Letter

You probably know what bullying is. You may not know what a Gebser Letter is or what it does. Sit down, grab your cup of coffee and read on.

The Effects of Bullying

First things first. It is now widely accepted as fact that children with disabilities are more likely to be bullied than their neurotypical and able-bodied peers.  About 20% more likely, to be precise.  A study was performed by Chad Rose of the University of Missouri College of Education and Nicholas Gage of the University of Florida examining 6,500 students from K-12 during the years 2011-13.  Although the study did not include online bullying (which has now become more pervasive through social media), it found that students with disabilities were bullied more than other kids particularly in grades 3 through high school graduation.

More about the study can be found in this excellent article “Disabled children more likely to be bullied during school years, study says” by HealthDay News.  There is even more helpful information on the statistics on bullying and harassment of students with disabilities at the National Bullying Prevention Center’s website.

It is also now widely accepted that bullying negatively affects a student’s ability to learn.  It directly impacts that student’s education.  The U.S. Department of Education’s official blog published an article called “Keeping Students With Disabilities Safe from Bullying” that highlighted a 2013 Guidance Letter on bullying.  A year later, the USDOE’s Office of Civil Rights issued an even stronger Guidance on how schools should handle bullying.

What is a Gebser Letter?

In 1998, the U.S. Supreme Court issued its opinion in a case titled Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), in which Justice Sandra Day O’Connor wrote the opinion for a divided court.  The Court decided that under Title IX, you cannot sue a school district for damages for bullying or harassment unless you have notified a school official who has the ability to take corrective measures on the district’s behalf of the misconduct and the school district is “deliberately indifferent” to the notice.

Out of that case came the very simple concept of preparing a letter – a so-called Gebser Letter – to provide the proper notice to the school.  The only question was whether the school then acts with deliberate indifference to the conduct.

This case emphasizes our constant mantra in special education law – If it ain’t in writing, it never happened. Document everything!

We strongly urge you to consult with a lawyer on the proper format and language of a Gebser Letter and/or if your child has a disability and is the victim of bullying.  We have provided a form Gebser Letter in our packet of special education legal forms, which are FREE to download, but remember that these forms do not constitute legal advice and are not a replacement for consultation with a lawyer in your state.  But the letter could get the ball rolling for your child and you.

Free Special Ed Legal Forms on SchoolKidsLawyer.com.

You can also have a 30 minute consultation with us for $100 to discuss your child’s case.

 

Public Schools Have Made Your Child the Enemy and You, the Taxpayer, Are Funding Their Battle

You pay federal taxes.  You have schools in your town.  Those schools have special education programs.  If you’re reading this blog, you’re probably a parent of a child with special needs.

Well, guess what?  If you have a dispute with your school about your child’s IEP or otherwise not meeting your child’s special education needs, YOU are paying for the school to fight against you and your child.

Guess what else? Even if you don’t have a child with special needs or don’t even have a child in the school district, YOU are still paying to have the school fight against the child with a disability and his/her family.

Yes, you heard that right.  YOU are paying to fight against children with disabilities in your community – maybe your own child.

Let me explain this in greater detail and why the system should change.

Federal Funding For Schools

The federal law known as the Individuals with Disabilities Education Act, 20 U.S.C. §§1400 et seq. or “IDEA” protects students with disabilities and guarantees they receive an appopriate education from their local schools.  This is accomplished and enforced through a federal funding mechanism within IDEA.  If a state receives federal funding for its schools, it must provide special education and related services to children with disabilities in its public schools.  20 U.S.C. § 1412.

In other words, some of the federal taxes you pay goes to fund special education and related services for students with disabilities.  You probably don’t object to ensuring a wheelchair-bound child can access the school via ramps or a child with diabetes having access to the school nurse to administer insulin shots.  You also likely don’t object to a chid with a learning disability receiving extra help in the classroom so they can achieve with their non-disabled peers.

YOU don’t object . . . but the schools are.

Where Does the Funding Go?

Those federal funds for special education – your tax dollars – are supposed to be used to assess if children have disabilities and evaluate their needs, prepare Individualized Education Programs or “IEPs” with special education adn related services to meet those needs, and decide the best location to provide those services for the child.  20 U.S.C. §1414.  Just as non-disabled children can get their education at their local public school for free, the goal of IDEA is to provide the same for children with disabilities, called a Free Appropriate Public Education or “FAPE”.  20 U.S.C. §1401(9).

Still sounds pretty reasonable, right?

How Does A School Make Sure It Provides a FAPE?

Schools are supposed to ensure a child with a disability provides a FAPE via two main mechanisms: (1) assembling an IEP team; and (2) ensuring that the rights of the child are protected and the parents are active participants in enforcement of those rights.  Tax dollars pay for schools to assemble an IEP team, which consists of the child’s parents (and the child if appropriate) and several key school personnel, to discuss how best to provide FAPE for the child with a disability.  20 U.S.C. §1414(d)(1).  States and schools must also put procedures in place to secure the legal rights of the child with a disability and his/her parents.  20 U.S.C. §1415.

This is where the system usually breaks down.  Because the parents and the school staff don’t alawys agree on how the IEP is developed or what services are provided to the child with a disability.  Thereby, a dispute arises.

How IDEA Addresses Special Education Disputes – The Problem

IDEA provides mechanisms to address these special education disputes between parents and schools.  If a school wants to do something with which the parents don’t agree or if the school doesn’t want to do something the parents have suggested, the school can issue a Prior Written Notice or “PWN”.  20 U.S.C. §1415(b)(3) and (c)(1).  Parents can review their child’s education records kept by the school as a check on whether the school is providing a FAPE.  20 U.S.C. §1415(b)(1).

There are other “Procedural Safeguards” in IDEA, but none that causes as many problem as a party’s right to file a complaint challenging the “identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child” a/k/a a “Due Process Complaint.”  20 U.S.C. §1415(b)(6) and (f).

Why is this a problem?  Well, anytime lawyers get involved, there’s a problem, right? [He says half-jokingly, half-seriously.]  Each party to a Due Process case has “the right to be accompanied and advised by counsel.”  20 U.S.C. §1415(h)(1).

Still not a bad thing until you realize who is paying the school district’s lawyer’s bill.  The answer is . . . you probably guessed it . . . YOU ARE!

Paying For The School District’s Lawyer

That’s correct.  Whether attorney’s fees are paid directly by the school district’s Board of Education or through insurance (which is purchased using school budget money), the source of the money paid to the lawyers fight against your child with a disability is tax dollars.  YOUR tax dollars.

Schools are misdirecting funds intended to provide education to children with disabilities by spending it on legal bills or insurance to fight special education cases.

So what does that mean?  It means YOU, the taxpayer, are paying for the attorney sitting across the table from you and representing the school district.  The harder the school district lawyer fights, the more YOU are paying him/her.  The school district never has the incentive to resolve the dispute because they’re not truly paying the bill.

Now, I don’t know if you have ever been in a lawsuit before, but if you have, you know what a financial burden it is to pay a lawyer.  You have the incentive to get it over as quickly as possible because, in all likelihood, you are not Bank of America (or Citibank or Goldman Sachs or some other big bank).  But if you didn’t have to pay for your lawyer, you’d fight to the ends of the Earth, right?  That’s how the school district views it.

Not What IDEA Was Designed To Do

IDEA was not set up to favor the school districts.  In fact, IDEA was designed by Congress to “level the playing field” so that parents had a stronger role in the education of their child with a disability.  Specifically, Congress stated: “The purposes of [IDEA] are to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; to ensure that the rights of children with disabilities and parents of such children are protected; and to assist States, localities, educational service agencies, and Federal agencies to provide for the education of all children with disabilities” among other goals.  20 U.S.C. §1400(d)(1).

IDEA was meant to improve collaboration and cooperation between schools and parents to help children with disabilities receive better education.  Certainly, Congress did not intend for states and schools to use federal funds to wage bitter lawsuit wars against parents and their children with disabilities.

But that is what it has become.  Ask any of my colleagues at COPAA.

So What Can You Do About It? – TAKE ACTION!

If you are like me and fed up with this system of injustice and abuse of taxpayer money, you can take action.  What school districts and their attorneys don’t want you to know is that because the source of funds paying the lawyer fees is public tax money, they MUST disclose such payments to the public who are paying those taxes.

In other words, if you live in a school district that is waging a special education war against a child with a disability, you have the RIGHT to know how much the school is paying its lawyers.

How do you find this out?  You make a Freedom of Information Act or “FOIA” request (or your state’s version of FOIA; for example, in New Jersey it is called the Open Public Records Act or OPRA).

Each state has a website for FOIA requests (I’ve listed a few below as examples) and usually a form to fill out.  On the form ask to see “All fees and costs paid to lawyers by XYZ Schooll District for special education disputes or legal disputes under IDEA for the last 5 years” or something similar.  Prepare for a fight, but you have the lawful right to that information as long as you live in XYZ School District.

New Jersey OPRA Records Request Website and Form

Florida Public Records Act Website and Forms

Texas Open Records Requests Website and Forms

Pennsylvania Open Records Request Website and Forms

For those not listed here, Google “[Your state] FOIA request” and look for an official state website URL.

Go get ’em!

Websites for Parents of Twice Exceptional (2e) Kids