The Dangerous Use of the Word “Cure”

I’m shocked. It takes a lot to shock me these days, but I am admittedly shocked. My alarm has been set off by numerous recent studies into the “cause” of Autism. I’m not alarmed purely because of the research, but rather what it may implicate and the resulting frightening thoughts of how we, as a society, would implement a “cure”.

There were studies attempting to link childhood vaccinations to Autism, but those studies were found to be faulty and in one case “an elaborate fraud”, but nevertheless absent of a link between vaccines and Autism.  See Autism Speaks Policy Statement on Vaccinations and Autism; and CNN report about the British Medical Journal’s retraction of Dr. Wakefield’sstudies as fraudulent.

Another recent study published in the August 12, 2013edition of the Journal of the American Medical Association Pediatrics links induced or augmented labor to Autism.  Still another report by the New York Times attempting to say that Autism and cancer were linked via a “cancer gene” was exposed as extremely unreliable.

This brings me to my concern; actually, two concerns.

The first – that because Autism is a hot topic and the rapid increase in the number of cases of Autism in the population is startling to some (disregarding the fact that proper techniques to diagnosis Autism are a recent event proving that there is not an increase in the development of Autism, but rather an increase in number of discovered incidence) the media jumps on any report that seems to find the “cause” of Autism – I can do nothing about.  What sells “news” and media is beyond my control and I can do nothing other than be exasperated.

The second concern, about which I believe I CAN do something, is what I believe is the next step that follows the discovery of the “cause” of Autism – the “cure” for Autism.  This should be a source of alarm and concern for everyone and, frankly, is a disturbing and dangerous use of the otherwise constructive term “cure”.This dangerous use is attempting to redefine “cure” to mean “prevention” rather than its true definition.

Most dictionaries define “cure” as follows:

cure: n. 1. a means of healing or restoring to health; remedy. 2. a method or course of remedial treatment, as for disease. 3. successful remedial treatment; restoration to health.

Source: Dictionary.com, http://dictionary.reference.com/browse/cure?s=t

Thus, “cure” means to “restore to health” or “remedy”.  In other words, if you have a virus or disease, the cure may be a drug or treatment that restores you to health. In a sense, chicken soup may be viewed as the cure for the common cold.  (I know several Jewish mothers who swear by that.)  This definition refers to healing people who are currently alive.

How can this be bad?

On August 14, 2013, the Autism Support Network’s Facebook page posted this question: “Would you terminate your pregnancy if you knew your child would have autism?”  Thankfully, the responses were unanimously “no” and several people were puzzled why an “Autism support network” would even pose that question.  The members of this network are parents of children with Autism who have already been born.

The insidious and heinous implication of this question is that we, as a society, will view abortion or intra-uterus genetic alterations as a “cure” for Autism.  People are seeking to prevent Autism.  While that, too, sounds like a noble pursuit, it is extremely dangerous and Orwellian in its possibilities.  What is next? Sterilization of those who have a gene that causes Autism or those who have Autism?  Government-imposed removal of reproductive parts of people who have Autism in their family history?

I know these examples are extreme and hopefully absurd, but I do wonder how this urge to find the cause of Autism has led to tenuous research projects and where such research might lead.

I have a better idea.  Rather than spend millions (perhaps billions) of dollars on fruitless research into the cause of Autism (which is most likely genetic and not “curable” absent one of the horrific methods I describe above), redirect those funds to research into therapies or providing services for families that have living, breathing, wonderful children with Autism.  The daily lives of such families are rife with challenges and they deserve all of the help and support that we, as a society, can muster.

If you want to redefine the word “cure” when it comes to Autism, redefine it to mean “support”.


Are Special Education Advocates Performing UPL (Unauthorized Practice of Law)?

The answer to the question posed in the title is, typically, lawyerly – it depends.

What is the “practice of law”? “Unauthorized practice of law (UPL)”?

First, let’s discuss what is the “practice of law” and “UPL”.  Virtually every licensed occupation is regulated by the State.  For example, in Pennsylvania, the Bureau of Professional and Occupational Affairs regulates almost every licensed occupation, such as accountants, nurses, barbers, funeral directors, dentists, etc.  However, lawyers are regulated exclusively by the highest court of the state – in Pennsylvania, it is the PA Supreme Court.  This regulation includes the power to define what constitutes the practice of law.  See PA. Constitution Article V, Section 10(c).

That is not as easy as it sounds. Courts don’t face this issue very frequently. Generally, there are three categories of activities / services reserved to those who are admitted to the bar: (1) advising clients as to what the law is to enable them to act and pursue their affairs; (2) preparation of documents that require familiarity with legal principles an ordinary person wouldn’t know (such as preparing a court document); and (3) appearing before a public tribunal, such as a court or administrative hearing.  Put another way, a person who doesn’t have a license to practice law should not tell someone what the law is and advise them to act accordingly, prepare a legal document, or show up in court on behalf of anyone but him/herself.  Doing so would be the unauthorized practice of law, or “UPL”.

A person can get in serious trouble for UPL.  In fact, in most states it is a crime.  In Pennsylvania, for example, it is a misdemeanor of the 3rd degree for a first time offender; misdemeanor of the 1st degree for a repeat offender.  See 42 Pa.C.S. Section 2524(a).  It may also be a violation of a state’s Unfair Trade Practices and Consumer Protection Law, which would subject them to civil (money) penalties.

Special Ed Advocates and UPL

So how does this apply to Special Education Advocates?  Again, it depends.  A description of the typical special education law case timeline is helpful.

Briefly, the first event is that a child is diagnosed with a disability that triggers the right to have special education in school.  The next event is that a team of school personnel, physicians, and the parents decide what should be in the special education program for that child (this is called an Individualized Education Plan or “IEP”).  Sometimes there is disagreement over what should be in the IEP or how the school is implementing it.  What comes next may be a due process complaint and hearing.  This is a semi-formal process where the school and the parents put on a case before a hearing officer (not always even a lawyer).  The hearing officer decides whether the services are appropriate or not.  If either the school or the parent disagrees, they can then appeal that hearing officer decision to a court.

The laws and regulations make it clear that parents are entitled to have “other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate” with them at IEP meetings.  See 20 U.S.C. §1414(d)(1)(B) and 34 CFR §300.321(a)(6).

As a result of this language in the laws, a cottage industry of advocates, mostly made up of parents of disabled children themselves who are veterans of the battles with schools over special education, has developed and flourished.

Do not misunderstand me – I think advocates are wonderful and perform great services to parents, especially since most parents of special needs kids are heavily burdened with medical and other expenses making lawyers unaffordable at almost every level.  Well-trained advocates offer objective, yet passionate assistance to parents so that they can make informed decisions without the emotions getting in the way.

However, there are limits to this participation.  The portion of the law quoted above comes under the definition of an “IEP team”.  Matching that with the description above of what is the practice of law, an advocate should stick to helping a parent to prepare for and make it through the IEP meeting in an informed manner.  The advocate should be careful not to suggest a path for a parent based on an interpretation of the law – this is acting like a legal advisor and is likely UPL.  However, an advocate can certainly tell a parent, “the law states that an IEP should include . . .” or that the law requires certain procedures to be followed.

So what CAN’T an advocate do?  This depends a great deal on state law.  While some states permit advocates to act as lawyers in due process hearings, most states still do not.  To be safe, an advocate should not prepare a due process complaint, represent a parent at a due process hearing, or draft an appeal of the hearing officer decision in a court pleading.  These are all the practice of law and if an advocate, not licensed to practice law in that state, provides one of those services, it is UPL.  Of course, there are licensed attorneys who provide advocacy services, so they are entitled to provide any and all of these services.

Why is UPL a bad thing?

The reason why the above-described tasks are UPL may not be so obvious.  Many people might think, “I represented myself in my own divorce case, so why can’t someone help me with my special ed case?”  And therein is the answer – you can represent YOURSELF in any legal proceeding (that is called acting “pro se” or for yourself), but someone else cannot represent you.  Why?  Lawyers are trained to understand, not just the law, but legal procedure.  For example, it is important in a due process complaint to make sure you plead every option available to you; failure to do so might give up a right or two or seven.  In some states, you may have a civil rights case under Section 504 or the ADA, but many advocates don’t know this or even if they do, they don’t know you MUST include those allegations in your due process complaint.

Two other critical examples are the Rules of Evidence and Appellate Procedure.  Most advocates don’t know the rules of how documents or testimony get “into evidence” so that a judge can consider them.  Further, if you have to appeal an administrative decision to court, it is like an appeal and sometimes only the record that is made at the due process hearing is considered by the court and if you don’t get the information in at the due process level, you might have to fight a battle at the appeal level to get it in – and you might lose.  Many well-trained advocates don’t know these rules because they aren’t licensed lawyers.

To conclude, Advocates are a necessary and crucial part of the special education process.  There is no better (and more affordable) help with making sense of this maze of special education law, especially when you are simply trying to get services for your child at school, than a well-trained advocate.  However, remember that they are limited in what they can do and when it comes to advising you on a legal path or preparing your complaints or representing you at a hearing, only licensed attorneys can help you in those situations.


Recommended reading: “Guidelines for Choosing an Advocate” from COPAA.

 

I love teachers! . . . (really, I do!)

There is a bad reputation out there for special education lawyers, advocates and parents of special education kids.  The reputation is that we hate all school teachers and those who work in the schools and we are simply out for vengeance.

I’m going to focus this post on the misrepresentation that I must hate teachers because I’m a special education lawyer.  Absolutely – 180 degrees – the opposite.  I LOVE teachers.  Let me explain why and how we all fit as perfectly aligned spokes in the wheel of special education.

Teachers have thankless jobs.  Often they aren’t paid very well, but are teachers because they love kids and they love education.  Big plus in my opinion.  After all, that is what we all want; people in the field of education who love to teach kids.

Most teachers are also sensitive to the needs of disabled / special education kids.  They understand the challenges that these kids face and try their best to accommodate them so that they, too, receive a good education along with the “neuro-typical” or otherwise non-disabled kids.

Some teachers even go out of their way (bless their hearts) to go above and beyond their job requirements to help these kids.  Some even violate rules or the directions of the administrators in order to assist special ed kids.

So, often, my beef is not with the teachers.  In fact, almost never is my argument with the teachers.  My argument is with the school district who handcuffs the teacher or who misinforms the teacher as to what he/she should do for the special education child.  I have seen the school districts actually incorrectly state the law to teachers.  Whether that is intentional or not, I don’t know.

Granted, there are some teachers that are not altruistic and just want their paycheck.  But like any occupation, there are a few bad apples in every bunch.  Of course the really bad ones make the news, which is unfortunate because the overwhelming majority of teachers are fantastic.  And I love them for that.  It is no different than lawyers and having to deal with the ones that make the news leaving a bad impression on people that all lawyers have heinous or monetary objectives.  Similarly, there are doctors who don’t really care about their patients and may even commit fraud in order to make money.  But these bad apples do NOT represent the bunch.

Where I, as a special education lawyer, fit in to this mix is just to make sure the disabled child (and his/her parents) have a voice and to assure that school districts are meeting the requirements to provide the child with a Free Appropriate Public Education (“FAPE”).  My job, as I see it, is to level the playing field.  Sometimes that simply means legally justifying or backing up what the well-intentioned teacher is already trying to do, but for whatever reason the school administration is not permitting.  Frequently, I work with and speak with teachers (the old line, ‘Some of my best friends are teachers’ ha ha – but it’s true) as a team.  We work together to find solutions for the children.

If you walk away after reading this blog post with ANYTHING, please keep the idea that special education lawyers, advocates and parents do not hate teachers.  We love them.  We love them just as much as the disabled children we are trying to help.

So let’s work together in this area of law.  Do not generate stereotypes that only serve to interfere with cooperation and progress in the field of special education law.  Our children deserve better.


Free (legal services) or not free . . . that is the question

I’ve had a lot of people ask me lately if I provide free legal services or if I can take their case for free.  The answers are: (1) Yes, I do pro bono (free legal) work through South Jersey Legal Services (www.lsnj.org/sjls);  and (2) No, if you can afford a mechanic, HVAC repairman or doctor, you can afford a lawyer and I won’t take your case for free.

Some interesting (you might think boring) statistics about lawyers that I want to share (from an ABA survey in April 2012):

1.  Of the 1.2 million lawyers in the U.S., 75% or 934,000 are in private practice (rest in gov’t, corporations, legal aid, etc.)

2.  Of those, 460,000 or roughly 50% are solo attorneys

3.  Studies vary, but my estimate is that the median income of solo attorneys is about $60,000. (NOTE: I’ve read virtually every study on median incomes of attorneys and the articles criticizing those studies too.)

4.  Most analyses suggest that a family of 3 or 4 cannot survive on $60,000 in today’s economy.  See e.g. Can a family of four survive on a middle class income in America today?

The purpose of this post is to dispel the myth that all lawyers are really rich and not working hard for their money.  Most lawyers are solo lawyers just trying to eke out a living and provide for their families.  But solos are people too, who need to pay their mortgage, bills, and feed their families.

I realize that many parents of special education children are already financially tapped to the maximum, but the good news is that under most special education laws if you win your case you get your legal fees repaid!

So, despite what jokes Jimmy Fallon or Jimmy Kimmel are telling about lawyers and in spite of the moron lawyers who are filing stupid lawsuits (like the one against the Sandy Hook school for $100M), most lawyers are NOT rolling in the moolah and can’t afford to take your case for free.  After all, do you ask your doctor to cure you for free?  Do you ask your car mechanic to fix you car for free?  When your heater is broken down in the dead of winter, do you expect the HVAC specialist to come out to your house and fix it for free?


A Huge Problem in Special Education: Teacher Unions

There have been many recent, well-publicized incidents of teachers and school staff doing horrible things to kids – and not just any kids, special needs kids.  Here are just a few examples:

This is just a representative sample of hundreds, perhaps thousands, of incidents of abuse of special needs kids.

Unfortunately, the teachers are rarely fired in these cases and in some of them not even removed from the classroom in which the abuses take place.  You probably wonder WHY?

The answer is sadly simple: teachers’ unions and their contracts.  Most unions have negotiated contracts with the school districts requiring a thorough investigation (which the unions usually control) before any disciplinary action can be taken against an accused teacher.  The basic principle behind this is a good one: you don’t want to fire good teachers who are being falsely accused.  The unfortunate reality behind this is that bad teachers are protected and the investigations are suspect.

In many cases, the schools (working with the unions) try to cover up these events because of the negative publicity and the potential loss of funding.  Saying that developing evidence to prove these events (beyond a reasonable doubt, which is the criminal standard) is difficult is a huge understatement.  School personnel and school district administrations are more adept at cover ups than those involved with Watergate.  After all, whose word are you going to believe?  The teacher or principal who denies the incident or the special needs kid who probably can’t even express what really happened because of the trauma or their social skills (many children with Autism are unable to explain a traumatic event to a parent or anyone else).

In fact, this is why there is a huge battle raging on across the country between parents of special needs kids and schools as to whether to permit audio and/or video recording equipment in special education classrooms.

  • Maine family fighting to allow audio recordings of school day for child with autism

     Even when there is overwhelming evidence of the abuses (sometimes surreptitiously obtained because there was no other option), the schools will shortshrift the investigation (or something more heinous, like destroy the evidence) and transfer the offending teacher or staff member to another school in the district.  All to prevent a huge legal battle with the union.

I won’t get too political here and discuss whether unions are useful in ANY industry, but they are a huge problem in properly dealing with abuses by teachers and staff in the education industry.  Tragically, many parents don’t have the resources to push the issue (attorneys are expensive and the legal system is not set up well for non-lawyers to understand how the battle works – I’m working on a solution to this) and therefore the unions “win”.

Until we as a society realize that we need to put our children – especially our children with special needs – FIRST, these abuses will continue and the unions will continue to protect the bad teachers and the ones who abuse the system or their students.  Unions are not there to protect the good teachers and the highly qualified ones, because they don’t need protecting; they do their jobs expertly and with care and compassion.  The teachers who don’t do their jobs well or who don’t treat their students with care and compassion and who violate the children’s rights are the ones who should not be protected and should not only lose their jobs, but be placed into a system that alerts future potential school employers as to prior violations (if you want to call this “blackballing”, so be it), and potentially face criminal charges.

 


What’s a FERPA letter?

For those of you who are new to education law or are in a battle with your school district to make sure your disabled student is getting a “Free Appropriate Public Education”, you may have heard the term “FERPA” or been told to send a “FERPA letter“.  And you’re probably wondering “What the heck is a FERPA letter?” but are too proud / afraid / embarrassed to ask.  Well, now you’ll know!

FERPA is an acronym standing for the “Family Educational Rights and Privacy Act” [a U.S. federal law located at 20 U.S.C. §§1232g and 1232h and with regulations located at 34 C.F.R. §99.1 et seq.]

Now, that doesn’t tell you much, but it is a VERY powerful law.  The most important part of this law is that you, as a parent of a minor student (regardless of whether the child is disabled or not; the law applies to EVERY student), are entitled to see and make copies of EVERY document that is in your child’s educational records file.  This means, any document that is generated about your child as a student in your school district MUST be made available to you to review and copy.

  • If a teacher writes a note about your child, you get to see it.
  • If they test your child, you get to see the test, the results of the test, and the testing methodology.
  • If they evaluate your child, you get to see the evaluation, the credentials of the person who did the evaluation, the results, and the methodology.
  • If a disciplinary report is made about your child, you get to see the report, the investigation (if any), and any notes made (including those by witnesses, etc.)

In other words, every scrap of paper that has something on it about your child, you get to see it.  There are some limitations, but not many.

As a lawyer, I have sample FERPA letters that I use in nearly every case.  Because it is critical to know what is in your child’s file.  Here are some tips if you do this on your own (but I do recommend that you at least consult with an attorney who knows this law and its limitations and, more importantly, how the school’s try to circumvent the law or misinterpret the law):

  • Do NOT write on the original documents or your copy of the document.  Why? If you need this document later in a legal battle, you need to preserve it exactly as how they have it (otherwise, they can say you altered the document to your benefit)
  • Make sure you ask for EVERYTHING.  You may not know what “everything” is (another reason to consult a lawyer), but when in doubt, ask for it anyway.  The worst they can do is say no (and they may be flat out wrong, which gives you a reason to contest them later).
  • They can charge you for copies, but the charge must be reasonable.  And they can’t block you because it is too expensive or takes too much time to copy.  If you need more than one visit to review or copy everything, make as many visits as possible.

Download your very own FREE form FERPA letter from our website here.

(This is federal law, so it doesn’t matter where you are located to discuss this with me).

There is a lot more to know about FERPA letters and other documentation of your child’s school experience in our book SchoolKidsLawyer’s Step-By-Step Guide to Special Education Law.

The Law on Independent Educational Evaluations (IEEs)

Evaluations of your disabled child are critical to your child’s success in school and life.  If done properly, they can provide insights into services, therapies and accommodations that your child needs to access a “free appropriate public education” or FAPE.  But if not done properly, it can prevent your child from ever getting a proper education and destroy his/her future.

The PLAAFP

If your child is eligible for an IEP, his/her IEP must accurately reflect a child’s “present levels of academic achievement and functional performance” or PLAAFP.  20 U.S.C. §1414(d)(3); Schaffer v. Weast, 546 U.S. 49, 53, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005) (“Each IEP must include an assessment of the child’s current educational performance, must articulate measurable educational goals, and must specify the nature of the special services that the school will provide.”)  An IEP must address all of the student’s needs, which should be detailed in the PLAAFP part of the IEP.

How to make sure the PLAAFP is accurate

The only way a PLAAFP is accurate (and then the goals are appropriate) in an IEP is to make sure the evaluations of your child are valid and accurate.

The main body of IDEA 2004 enables schools to perform evaluations of children with disabilities.  See 20 U.S.C. §1414.  That section talks about initial evaluations and reevaluations and how they are performed and used by school district personnel in making special education decisions, like IEPs.

What if the school’s evaluations are not accurate or finding what you or your child’s doctor suspect?

If a school’s assessments are not matching what you have observed or your child’s outside medical personnel are documenting, you may need to get independent evaluations of your child.  But that is expensive, especially if your insurance doesn’t cover them.

Perhaps one of the more important sections of IDEA is found in the federal regulations.  34 C.F.R. §300.502 is the regulation for Independent Educational Evaluations or “IEEs”.  Here are the most critical portions:

  • “The parents of a child with a disability have the right under this part to obtain an independent educational evaluation of the child” subject to some rules.
  • “A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the [school] . . . .”
  • “If a parent requests an [IEE] at public expense, the [school] MUST, without unnecessary delay, either (i) File a due process complaint . . . or (ii) Ensure that an [IEE] is provided at public expense unless the [school] demonstrates in a [due process hearing] that the evaluation obtained by the parent did not meet agency criteria.”

The most important parts of this are that (a) the parents have a RIGHT to request an IEE if they disagree with the school’s evaluation; (b) the IEE must be at public [the school district’s] expense; (c) the school district has ONLY two options – to enable the IEE or to challenge it via a due process hearing.  Very simple.

The school district’s delay tactics

But, the school districts want to try to make this more difficult.  How?  They delay, delay, delay in responding to a request for an IEE.  They believe this is defensible because of the clause “without unnecessary delay.”  The school district will argue that a few days, a few weeks, even a few months is not unnecessary delay.  The courts have not really dealt with this issue decisively yet.  I think it is a very fair counterargument by the parents that a few days is OK, but a few weeks or longer is not OK.  After all, the further an IEE is delayed, the further a revised or improved IEP is delayed, and thus the further the child’s FAPE is delayed.

Do NOT allow a school district to linger on your request for an IEE.  If you have valid reasons to request an IEE, keep sending reminders to the school of your request.  If they delay too long, contact a special education lawyer or file a due process complaint on your own on this ground.

If you wish to demand an IEE for your child, download our FREE special education forms packet which includes a letter IEE demand.


Pass the IEP, please!

You remember at the dinner table (perhaps most notably the Thanksgiving Dinner table) when you would ask someone to pass something along?  Maybe it was the stuffing bowl; maybe it was the cranberry sauce; maybe it was the dinner rolls; or maybe it was the fruit cake (OK, I know it wasn’t the fruit cake because no one asked to have that passed, unless it was to pass it along to the waste basket).

The point is, you wanted to make sure everyone at the table had equal and full access to every part of the meal.  Wouldn’t you have felt left out if you didn’t get any mashed potatoes? or Pumpkin Pie?  or [insert your favorite part of the meal here]?  Of course you would.

The same principle applies to your child’s IEP.  You want to make sure each and every teacher and school staff member that may encounter your child has equal and full access to your child’s IEP.

Failure to do so might result in one teacher violating the IEP unknowingly or not knowing how to respond to a certain situation.  For example, if the gym teacher doesn’t know that Tina isn’t supposed to be required to participate in group sports and the gym teacher makes her the pitcher in softball, Tina may have a complete meltdown or other reaction that triggers her disability.  Then Tina may have to miss her remaining classes for the day, all because the gym teacher didn’t even know Tina had an IEP and wouldn’t have assigned her to that task had she known.

As a parent, do not assume the school has circulated your child’s IEP to all of the contact points.  You need to handle this yourself.  Whether that means sending an electronic copy to each contact person by email or even walking a hard copy in to every person, you need to assure that this is done.  You need to consider every potential aspect of your child’s day: special education teachers; general education teachers; “specials” teachers (art, music, gym, computer lab, etc.); school nurse; school guidance counselor; director of special education; vice principal; principal; even the janitor, if that person interacts with your child.  So what if they’ve already received it?  A duplicate is not going to harm them (and an electronic duplicate doesn’t harm the environment).

This is not a silly concept.  If your child is experiencing some aspect of his/her disability, let’s say it is epileptic attacks, and a teacher encounters your child not knowing what is going on, they may make an incorrect and potentially dangerous decision.  A simple thing like providing these personnel with the IEP at least will clue that person into the fact that someone in special education or the medical staff need to be alerted to the situation.

So, much like the salt and pepper on the dinner table, make sure you pass the IEP to everyone at your child’s school to avoid any misunderstandings and help your child succeed in the system – even if they never have need of the IEP (like the salt).


Special Education law is not about revenge

Many clients come to me with vindication on their minds.  They feel they have been wronged and want to inflict pain on whomever did the wrong.  They want revenge.  This is especially true in the field of special education law.  They want to “get back” at the school district that they felt is interfering with their child’s education; or, the school district wants to show the parents their place, which is not to interfere with how they are handling the disabled children in their programs and that, somehow inherently, they know better than the parents.

However, that is not what the law is about.  The following is a longer version of what I tell any client that comes to me with a revengeful goal.

The law, especially the civil law of which special education law is a subpart, is not about revenge or vindication.  If that is the sole goal of pursuing legal assistance, two things are true for me: (a) I won’t take the case; and (b) the client will never feel satisfied.  More on these two results in a minute.

But, first, the response I get to this principle is “Well, what’s the point then?”

The answer to this is very simple: The purpose of civil law (and especially special education law) is to put the wronged person back into the same position they would have been had there been no wrong.

Let’s examine this with a simple hypothetical: Imagine a neighbor was trimming her hedges and she accidentally cut off a limb on a tree in your yard.  You had grown that tree from a sapling.  The tree doesn’t die, but does suffer a bit in growth.  You have to spend a lot of time and effort to protect the tree and make sure it lives.  You are really mad at your neighbor (probably, there is some other cause of that anger and this merely exacerbated it).  You want your neighbor to go to jail.  You come into my office seeking legal help.

Aside from me giving you a shorter version lecture on this topic, what will the law do?

First, the law will NOT put your neighbor in jail.  Jail is only for criminal actions and this is not a crime.  It was an accident, for which the civil law is designed.  We will discuss the nature of the civil wrong – it is trespass (unlawful encroachment onto your property without permission causing a harm).

Second, I will try to ascertain why you are so angry (if it is caused by something other than the tree) and what the true costs (we lawyers call this “damages”) the harm to your tree incurred.  For example, you spent money to protect the tree; the tree survives; and there may be some sentimental value to the tree to you.

Third, I will discuss what is the goal of the case.  What would put you back in the position you were had your neighbor not accidentally cut off your tree limb?  This might be an apology; it might be some money to reimburse you for the costs incurred; or it might be for the neighbor to pay to have a new tree planted in your yard.

But you want to sue and get them back for what they did.

At this point, I will politely thank you for coming to my office and advise you that I don’t take cases for revenge.  Maybe you will say, OK, I don’t want revenge, I just want some repayment here.  Then we have a conversation on how to go about achieving the goal.

Now, this is the most important part of this post.  Achieving the goal is RARELY if EVER reached by litigation, by suing someone.  Adopting a “bully” attitude NEVER achieves the goal.  Remember that old saying your mom used to say, “You catch more flies with honey than with vinegar?”  (We won’t discuss why you want to catch flies in the first instance, but you get the point).

There are many ways to achieve the goal without a big fight.

These principles ARE and SHOULD BE applied in the special education arena.  If your disabled child is not receiving services that provide them with an equal opportunity at a “free appropriate public education” (FAPE), then we need to have a discussion on how to achieve that goal.  Resolution may be as simple as explaining to you your rights as a parent and your child’s rights and how the process works.  It may also be as simple as being an active, yet collaborative, participant in an IEP meeting or an eligibility meeting or in the evaluation process.

Occasionally, clients come to me after working with an advocate.  Some advocates (certainly not all or even most, but some) either provoke the revenge mentality or make it worse with the clients.  While I understand the reasons behind this (often advocates are parents of disabled students who have had to fight their way through the system on behalf of their own child with little knowledge of special education law and with some resistance from the school districts), it does not justify it.  Some advocates misdirect their anger from their own experience towards the client’s school district.  This causes a lot of misperception and sometimes legal inaccuracy about the client’s situation, and consequentially creates a negative atmosphere in which to create a solution.

Representing parents in a special education matter must be handled in a calm, objective atmosphere with the goal of a collaborative solution that truly helps the child.  Bitter fights over minor procedural mistakes do not necessarily help the child.  Certainly, a battle purely on “principle” is not a reasonable strategy because it ignores the needs of the child.

Part of this calm, objective atmosphere is the realization of two key facts: (1) the parents are often panicked or in grave fear for their child’s future; and (2) most school district special education personnel really want to do the best thing for the child.  [Thank you to my colleague Katie Kelly www.katiekellylaw.com for expertly enunciating these two salient issues to me.]

Most people, including those on the school district side, do not go into education (or special education, for that matter) without the bests interests of children in mind.  Extremely few school district personnel are vindictive about a special education situation.  Thus, parents should likewise not be vindictive.  It makes resolution that much harder (and expensive, if you are paying a professional, such as an advocate or attorney).

So, if you arrive in my office or contact me with a special education issue, I will represent your rights zealously and with passion.  I will try to reach the best possible solution to your disabled child’s educational problem.  I will NOT seek revenge or a bitter fight with the school district, but I will fight with fervor if I encounter the rare obstinate administration.

If you keep these thoughts fresh, in the end, you will be much more satisfied with the result and with the legal process.

Now I will sit and wait for the anticipated onslaught of hate mail . . . LOL

 


What Everyone Should Know About Special Education Funding

There has been a rush to judgment lately, by those without disabled children and those without children at all, that the increase in costs for special education is the fault of the parents of disabled children demanding too many services for their children.  Aside from the natural anger towards the attitude that disabled children don’t deserve an equal opportunity at education, I believe that there is a lot of misinformation and confusion on how special education is actually funded and what causes the costs to exceed school budgets.  Hopefully this brief blog post will clear up the misunderstanding and expose the realities about special education funding.

Where do schools get the funds for special education?

While there is some variation from state to state, most states get some of their funding through state and/or property taxes.  However, that is not the source of the majority of funding.  Believe it or not, a majority of the funding comes from the federal government (good ol’ Uncle Sam) through the U.S. Department of Education.  From the mandate of IDEA (Individuals with Disabilities Education Act) and other federal legislation, the federal government must provide funding to states that set up programs for special education of disabled students.

So, even though some of your local taxes do go to help local disabled children, it is a very small part because those taxes are actually part of the general education fund.  Only a portion of that is broken away for special education (if any at all).

And, yes, I agree, it is still “your tax money” that goes to the IRS that ultimately funds special education and the USDOE, but that is where we get to whether the money is wisely distributed, spent or not.

How are state funds distributed for special education?

The federal laws that fund special education on the state level require that states set up special education programming in the schools.  If the states comply, they get funds.  If they don’t, they don’t get funds.  Thus, there is a HUGE motivation for states to set up such educational programs and (to my knowledge) all of them have complied (even D.C., the US Virgin Islands, Puerto Rico, etc.)

It gets tricky on how the states distribute that money once received from the feds.  Some states distribute it evenly across their school districts, regardless of whether there are even special needs students in those districts.  Some states distribute the money based on population models.  Some states distribute it based on economic models, where the lower income districts get more money.  None of these methods accurately track the proportion of disabled students in each district.

Pennsylvania recently passed legislation which will distribute these funds proportionately based on the number of special education students in each district.  In other words, the funds will be “tied” to the special needs kids in each district.  This is a much more accurate and targeted use of those funds and should be modeled by other states.

How do schools spend the special education funds?

Once the states distribute the funds to the school districts, it gets even trickier on how those funds are spent.  Theoretically, those funds should only be spent on special education services and equipment.  They are targeted to support the special education kids in those schools.  Unfortunately, this is not always how it works in reality.

Some schools and school districts have been caught taking special education funds and putting them into the general education fund.  Big deal, you ask?  Well, think of it this way.  The schools that do this spend the money on extracurricular activities (for example, new football uniforms or equipment) when they should be paying for teaching aides, occupational therapy, physical disability modifications, etc.  Essentially, special ed kids are missing out on their education so the cheerleaders can have new pom poms.

Now, I don’t mean to sound crass and I do appreciate extracurricular activities, but take a closer look at that word – extracurricular.  Emphasize the “extra” part.  That means it is something beyond the basic curriculum.  Perhaps those activities should be privately funded, but certainly should not come out of the special education funds that have been hijacked into the general education fund.

Still, there is a far worse culprit for how special education funds are wasted.

Why is special education always causing the schools to go over budget?

AHA!  The answer to this is definitely NOT parents of disabled children seeking services for their kids.  In fact, if schools appropriately provided services to disabled children without unreasonable hesitation, the federal funds for special education might never be used up in a given academic year.  WHOA, TJ, this is not what we’ve been told.  I repeat, AHA!

Unfortunately, school districts have developed a mentality that is counter-intuitive to educating disabled children.  They view the request for special services to be an annoyance and meddling in their budgets.  They do everything they can do create a negative PR campaign about how special education is destroying their budgets and they can’t afford all these special services.

BALONEY! (or Bologna, as its properly spelled)

School district administrators, who rarely understand the federal mandate to provide an equal education opportunity to disabled children (i.e. THE LAW), make every effort to block special education services.  They hire attorneys who bill at astronomical hourly rates to fight these special education services.   These attorneys are not only making a mint off of representing school districts, they are providing training on how to fight special education battles.

Take a guess the source of funds to pay the school district attorneys?  Yep, that’s right, the federal special education funds.  And if that runs out, they take from the general education funds.  Thus, logically . . . wait for it . . . YOUR TAX DOLLARS pay for the school districts and their attorneys to fight against providing special education to disabled children.  YOUR TAX DOLLARS are making school district attorneys very wealthy.  VERY wealthy indeed.

Is that really how you want your tax dollars spent?  Wouldn’t it be smarter to spend the money on actual special education and not have any more tax hikes or complaints that special education is causing school budgets to explode?

I think so.  What do you think?