Special Education is a Hostage Crisis – Claudia McCulloch, Ph.D. [Guest Blog Post]


Dedication:

I dedicate this article to a truly inspiring child advocate and professor, the late Irwin Hyman, Ed.D., who fostered my education throughout my time at Temple University.

He was a man of brilliance, boundless energy, and intense devotion to the well-being of children. He had a vision of change and helped his students to become part of it.


The bureaucracy has won. The kids have lost. The game is over. Turn off the lights. Lock the doors.

It has been a brutal and grueling road to this conclusion, but I am certain of it. The kids are always going to lose. Always. Over the course of twenty-three years and more than 1,200 assessments, most ending up in an individualized education plan, mediation or hearing, I’ve watched, first-hand, the unapologetically incompetent special education system “at work.” Not only is it incompetent, but thieving and vicious.

I’ve worked with kids from many school districts, states, and yes, even countries, and the story never, ever changes. Never. Of course, I’m painting every district with the same brush. Does your district have another story?

While I recognize that many people are working diligently and ethically to help these children, they do so at their own peril. A school psychologist dared to agree with my assessment and she was fired. Good for her. She went into private practice. She couldn’t take it anymore, either. Such was my path.

Multiple times administrators told me what I could and could not say. Administrators! They had no credentials or training to influence my work, but for the sake of the bureaucracy, they tried to control me and the rest of us. Intimidation, threats of “write ups” and transfers, lunch duty — whatever it took to wield the bat of authority.

Bureaucracies really are living, breathing beings. And they act like it. All living things seek to stay alive and perpetuate themselves.

Once I realized how the “game was played,” I walked parents to their cars after IEP meetings and gave each of them packets of the information I could not give them in front of the team. Bless them. None of them ever ratted me out. Finally, I could not reconcile the immorality and lack of ethics, so I quit. I started a private practice where I could gather as much data as I needed to make appropriate recommendations based on that data. My attitude was — and is — “Get out of my way. This kid needs help.”

I thought that would be enough, but it isn’t. The deck is stacked against the families.

First, school districts use taxpayer dollars to fight you.

That’s right. The money you pay in taxes is used against you, while you are struggling to sell property or get a second or third job to afford an attorney. It’s a war of attrition. They can and will outspend you. They can and will wear you down to protect the “mother ship” of the bureaucracy.

Consider the Solana School District in San Diego that spent $1,000,000 in a 7-year battle against parents of a 4-year-old with autism.[1] All these parents wanted was for their child to be included in a general education setting. The district was trying to avoid paying $6,100 in tuition for a private school. Go ahead. Read it again. That’s where your tax dollars are going.

Understand that some punk who just robbed a 7-11 and waived a .45 in the face of a terrified clerk gets an attorney to protect his rights and yes, yet again, you foot the bill. All in the name of justice.

Who helps parents who assert their child’s rights to a Free and Appropriate Education? If the family had limited resources, the best I could do was refer them to a competent advocate when there was no attorney who worked on contingency.

When the family was from another state or region, I referred them to the Council of Parent Attorneys and Advocates (COPAA). I gave them resources such as Pete Wright’s website.

After all of the work we did, if I couldn’t find resources they could afford, what would be the value of that work? I used a metaphor to bring home the truth. You’re having chest pains. You have a history of cardiac problems. You go to the ER where the doctor tells you that you’re having a heart attack and walks away. “Good luck,” she says. And you stand there, perplexed. “Aren’t you supposed to help me?” Silence…

It’s the same question I ask myself time after time. Aren’t they supposed to be helping? Oh sure, on the surface, it looks that way because there is just so much paper generated on behalf of your child and everyone looks so busy. Yet, when you challenge them because your child is not making progress, their attitude changes dramatically. It’s the “How dare you question our authority” stance. And then, when you throw in an “outsider” like me, it’s on.

Second, the assessments are, in my experience, useless.

It’s not that the school psychologists don’t want to or don’t know how to do more, it’s that they’re allowed to do only what they are told and, unfortunately, don’t have the proper tools. They are frustrated beyond belief, overworked beyond all reason, and operate from a position that is intolerable. They know what is going on with the students, but can’t help. They’re put in a position where they must “identify with the aggressor” (a.k.a., administration).

Stockholm syndrome might be more familiar to you than the phrase “identify with the aggressor.” If you comply with those who can hurt you, you’re less likely to get hurt. Remember Patty Hearst? This woman’s behavior brought the concept of “identification with the aggressor” to our attention. To the public, it made sense and helped us understand the reasons that abused women didn’t report or testify against their abusers. It explained the alignment with the hostage-taker.

I’ve reviewed several thousand assessments conducted by school district personnel from all over the United States. Here’s what I’ve seen:

Using outdated tests and outdated scoring software. This likely means your child is being compared to kids who were in school long before your child was born. Your kids are not being compared to those with whom they’ll be competing for a chair in college or a job.

Global scores are reported. Those with learning disabilities frequently have highly inconsistent performances both on tests and in the classroom setting. Frustrating for everyone. One day they can do it, the next, they can’t. Why?

If global scores are reported, you have no idea if that score is correct because you don’t have access to the scores that make up that overall score. For example, the overall score is average and that makes you a happy Momma. But, what you don’t know is that one score is really, really high and the important scores are really, really low and it comes out average. What you don’t know can hurt your child because you then go on to operate under inaccurate beliefs about your child’s reading ability.

 Lies by omission. Lies by commission are outright lies and lies by omission are distortions of the truth because not all of the information was offered.

A limited kind and amount of information is shared. I can usually tell when students are doing poorly because age and grade equivalences are not provided (if they are available from the test maker). Age and grade equivalences do not provide the most reliable picture of a student’s performance; standard scores are more reliable. However, age and grade equivalences are more meaningful to parents. What do parents know about a score of eighty-five or even a percentile rank of fifteen? But, if they see that their ninth grader is reading at a fourth grade level, the situation heats up.

There is little-to-no interpretation. When districts conduct assessments and write reports, there is little meaningful interpretation. That means that the results are rarely “connected” to the classroom performance in a way that makes sense to parents. Their reports are a sterile listing of standard scores and percentile ranks and a general, qualitative description (average, above average, below average) of the student’s performance. Parents rarely understand the issues their children are experiencing in the classroom.

In my practice, I write my reports for parents. They’re a subtest-by-subtest analysis with a great many observations that add to the understanding of “what” their child looked like when they were working. I want them to see their child through my eyes when working through tasks. They are frequently several hundred pages long, especially since I include all previous assessments, report cards, standardized testing, IEPs, addendum — all of it.

Discrepancies are not explained. How is it the case that student’s achievement scores are higher than their intelligence/learning potential scores? How can you spend what you don’t have? Whereas higher achievement scores can be the result of effective intervention, their classroom performance does not reflect their reading, math, or written language achievement.

The school environment is not conducive to valid results. So, when the bell rings and everyone’s going out to play, how can a kid, who is being tested, concentrate? If a student is worried about missing history because she’s already behind or her latest crush sits next to her in that class, how can testing compete with those feelings and thoughts? It can’t, plain and simple. Unlike the school setting, my environment is controllable. Because I test kids on the weekends, I can meet when they want to meet. There are no phones ringing, no herds of kids moving through the halls, no loud voices, no interruptions.

There’s little-to-no opportunity to establish rapport. I was a school psychologist. I knew that I had about ten minutes to establish some type of non-threatening relationship with a child before I asked them to work. This time limit was not particularly conducive to successful results.

In private practice, I could spend as much time as I wanted chatting and getting to know kids, making them hot chocolate or playing games when they were anxious.

 They were in charge of the environment. If they needed to stand, they stood. If they needed to reach out to someone for support, they did. For complex assessments and kids who have been seriously wounded by their educational experiences, sometimes it took twenty-five sessions. Sessions lasted no more than ninety minutes because kids just couldn’t maintain effective attention and motivation for longer, as the research shows. Some of my kids could manage only twenty minutes due to attentional or emotional/behavioral challenges.

Districts really do base their conclusions on one test. Despite protests to the contrary, it is my professional opinion that districts base their conclusions on one test or one test plus a subtest of another measure. This is not “best practice.”

School districts consistently fail to identify all areas of suspected disability. They don’t have the tests to measure what they suspect. Psychologists don’t have the tools they need to explore suspicions developed during their assessments. Many school psychologists have training that is focused only on the types of assessments that are conducted in schools and are not educated in the wide array of disabilities that they’ll encounter. When I sit in an IEP meeting and ask the psychologists about metacognitive and metamemory strategies that the student used, I get blank stares.

Short/brief forms of tests are administered. Only portions of tests are administered to achieve the desired scores. The shorter the test, the less reliable it is. Test reliability means that the test will yield the same results over and over. Consider the Wechsler Intelligence Scale for Children-5th Edition. It is necessary to administer only seven of the sixteen subtests in order to achieve the Full Scale IQ. The Full Scale IQ seems to be the only information that school districts find meaningful. In my opinion, a tremendous amount of critical information is lost if the remaining nine subtests are omitted. Test publishing houses need to stop being complicit in the inadequacies of school districts by making it easier to conduct a cursory evaluation.

School districts’ assessments are inadequate. School districts conduct what I call “eligibility” assessments, and we private clinicians conduct “diagnostic” assessments. In an “eligibility” assessment, only enough data is gathered to determine if your child is eligible for a program. Usually, “foundational” skills are measured and there is little-to-no “functional focus.”

It’s one thing to have solid sight word vocabulary, but that skill, in no way, is guaranteed to manifest into reading comprehension.

 Many of my tests are “functional” in nature. Not only do I measure sight word, word attack and word knowledge, but I measure how quickly a student can read, retain, understand, and answer comprehension questions. Why have basic skills if you can’t make them functional?

 If you’re the most talented pianist known to mankind and never play, then, what is the value of your gift? Functional skills. Skills kids can use to succeed in the classroom. That’s where the action is.

 It’s my experience that school districts across the country are nearly at a loss when it comes to evaluating autism and emotional distress. They have cursory training and experience in evaluating these aspects of the human experience.

For your reference, my assessment plan for elementary students with learning disabilities is offered at the end of this article.

Third, the Individualized Education Plan meeting does not generate a blueprint for learning.

Why is that? Well, the school psychologist has limited information, the team is required to write goals at grade level, and the whole plan is, in no way, individualized. It can’t be because education isn’t individualized.

The process is destined for failure. Everyone might be working hard with the best of intentions, but they are shoveling sand against the tide. Have you heard that definition of insanity that says you do the same thing over and over and expect a different result? That’s where we are. We just look busy, that’s it. We got here because we just won’t open our eyes and see that we’re failing and we’ll keep on failing because…

It’s an US versus THEM mentality. School districts put up huge walls. Unless they are forced to, they don’t call on other professionals in the community for help. Why? Because they’ll have to pay for the services.

When I was able to convince Nancy Bell of Lindamood-Bell Learning Processes to put a clinic in our community, the next time the local newspaper came out, there was the superintendent proudly announcing, “If Dr. McCulloch thinks our school district is paying for these services, she’s wrong.” Well, sixteen years later, they’ve written plenty of checks to parents to reimburse them for Lindamood-Bell services, but they can still contend they’ve never paid Lindamood-Bell. Seriously? Yeah, let’s just play with these kids’ lives for the sake of the bureaucracy.

 Districts do their best to minimize the extensive results I provide. “No, no, we can’t look at that!” They oftentimes completely ignore my results. What is a parent to think?

 One interesting dynamic is how they frequently reference “the team” as if it is a groupthink. Well, it is. But, the “team” seems to be defined as the people who work for the school and since there are usually more on their side of the table than on the parents’ side of the table, I’ve asked parents to bring grandparents, aunts and uncles, pastors, anybody who can fill the seats. Of course, you have to give the district twenty-four-hour notice as to who is coming. It sure does shake things up!

They don’t ask us. I can practically guarantee that if a school district called on any of my colleagues and asked for our help, we would be right there, doing everything we can to make the situation come out right for the kid. The problem here is that our focus is the kid and not perpetuating the bureaucracy. We are ethically bound to consider the best interests of our clients at all times. We have no allegiances to bureaucracy.

We’re not taking into account a kid’s developmental history. A long and difficult labor and delivery can lead to ADHD, autism and language processing disorders. If the kid was colicky and didn’t achieve independent sleep within the expected time frame, they might end up being diagnosed with ADHD. If they were slow to achieve language milestones or had multiple ear infections, they’re vulnerable to language disorders.

Once a kid qualifies for language services, they need to be tracked. I’m talking about language development, not speech problems such as articulation disorders. Just because a kid has achieved their goals does not mean that language disorders are gone. They will absolutely reappear. Trust me. I’ve seen it over and over. Surprise! Qualify for language processing deficits in third grade, and dismissed in fourth grade? By sixth grade, you’re drowning. Your language development progresses slowly, but the pace of the curriculum is running away from you.

We don’t understand that the more subtle aspects of learning can make or break a kid. Processing speed matters. Ever see the “I Love Lucy” episode where she and Ethel get a job at the candy factory? Their job was to wrap each piece as it moved along a conveyor belt. They’re toddling along, having fun, doing their job. Along comes their supervisor, sees, that they “got it down” and speeds up the conveyor. Lucy and Ethel couldn’t keep up and started stuffing candy into their hats, bras and pockets.

If a kid has a sluggish cognitive tempo, there’s not a lot to be done about it. Kids with slow processing speed simply cannot keep up. They can’t keep up with the pace of classroom instruction, the homework assignments and tests. It’s tremendous stress on them.

 A Ford just can’t keep up with a Ferrari. These kids will always have a large “fix and finish file.”

Learn about the massive impact of Attention-Deficit/Hyperactivity Disorder. It’s not just about paying attention. The “downstream” effects of ADHD are memory and speed of processing along with other executive functioning skills. Evaluate these areas to determine if they are hiding underneath the ADHD.

Learn about the widespread consequences of being on the autistic spectrum. It’s not just about social development. It’s about tolerating the environment from a sensory standpoint. It’s about struggling to develop higher order thinking skills. How many school psychologists know the role of mirror neurons in the daily functioning of students on the spectrum?

We’re not being realistic about what we can actually accomplish. Is it realistic to think that when a ninth grader is reading at a fourth grade level that a classroom support system can actually remediate that student? No, it isn’t. We just can’t give kids with disabilities the attention, the time, or the expertise they need to overcome their challenges.

It’s the budget or the kid. And, the winner is, the budget! It’s that basic.

We don’t consider the long-term consequences of a child who does not learn. You’re foolish if you think that you are insulated from the damage wreaked by a kid who never learned how to read.

Let me paint a picture for you. I testified in a fair hearing of a kid who was massively dyslexic and the district failed him. It was clear cut. But, mother had moved him all over in an attempt to get him educated and she lied about her address. Game over. Kid loses.

 Later, I encountered one of the attorneys involved in the case. At the beginning of an IEP meeting, an attorney was boasting about his newborn daughter. The pictures were, of course, adorable. After the IEP meeting was over, he loudly, and in a nasty, provocative tone said, “Hey, no hard feelings about XXXX.” I lost it.

 I told him, “You think you did well? You dumped another poor, black kid out onto the street with no hope of ever getting a job. In sixteen years, what’s to keep him from putting a gun to your new baby girl’s head and taking her car?” He came over the table after me and had to be restrained. The truth hurts, doesn’t it?

We’re not paying enough attention to the gifted kids. We make a dangerous assumption that “they’ll always do okay.” They don’t. Working with the prison population taught me that many a bright kid goes astray when they’re not challenged. Just because they’re smart, doesn’t mean they’ll be successful. They need to be taught how to channel their gifts into success. We need to invest in the creative and innovative kids in our schools.

School districts won’t admit that they don’t know what to do to help a kid. This one is self-explanatory, isn’t it?

What do we do now that we have this huge bureaucracy with its entrenched personnel and “unhealthy” organizational moral code? I have some ideas:

We have to start at both ends. We need to put vocational/trade training programs into place immediately for those high schoolers who are struggling academically and who see themselves with a future in a trade. We’ll always need plumbers, electricians, mechanics and builders.

At the kindergarten/preschool end, having parents complete a basic developmental history that hits the “high points” of a child’s beginning will help determine if they are vulnerable for disabilities. By second grade, every child should have been assessed to get baseline data.

Each school should be characterized by the following:

1. Every classroom has a maximum of twenty students with a full-time, fully credentialed teacher, and full-time aide with at least some teacher training. It’s likely we won’t need special education or even non-public schools if we reshape how we deliver services.

2. Teachers with specialized training should have unlimited opportunity to conduct remediation for those students who need it. After all, if they don’t have the basic skills to access the curriculum, are students going to benefit from being in the classroom?

3. Community and school-based resources should be available, freely, to teachers, counselors, school psychologists, and nurses. They should not have to get permission to speak with experts.

4. Each school psychologist should have no more than two elementary schools or one middle school or one high school. May I tell you that my first year in a local school district, I had seven schools, including a middle school and a high school? The younger the kids, the more attention they need. It’s about prevention versus intervention. Intervention is very expensive and not just in dollars. Give the psychologist a fighting chance to make a difference.

5. Each school psychologist should have easy access to the kinds of test instruments they want to use. They should have access to the test publishers’ catalogs to learn about the kinds of tests that are available. I bought a test and was using it at a public school when I was the psychologist. I was called in and “written up” for using the test because, as the special education director told me, “If we find a problem, we have to do something about it.” Well, golly gee, isn’t that the POINT?

6. School psychologists should have an actual office away from the busy-ness of the rest of the school to conduct testing. It should be a comfortable atmosphere that is not cold, hard, and scary. Kids should want to go there.

I like the idea of assessment centers that are open on the weekends. Students could have a choice as to when and where they are evaluated in order to achieve valid results.

7. Experts should be brought into the schools to offer in-service about various disabilities and conditions in order to help teachers and others find the best ways to support children with special needs.

8. Twice a month, the team involved in evaluating, teaching and tracking a child’s progress needs to be given unencumbered time to sit together and focus on this one child.

9. Schools should not close at three and over the weekends, extended holidays and summers. We are losing out on a valuable resource in our communities. They should be open after school for trade education, literacy and enrichment (learning another language or English), help with homework, parent education and social opportunities. See the article “What to do about Baltimore” (4-30-15) at drclaudia.net.

10. Schools need to draw on the resources around them for those institutions (if available) that offer training from the following: teacher, speech and language, occupational therapists and those seeking to work with the pediatric population in terms of mental, social and behavioral health. Also, schools should draw on the senior population to provide a wealth of helpful partners in the classroom.

Earlier, I spoke about the “thieving and vicious” nature of school districts when it comes to special education kids and their families. I believe that I have covered the “thieving” part extensively. Let me add a bit about the “vicious” part. These are my personal experiences. I observed them myself. I was involved in them.

> After I opened my practice, I had my first IEP meeting at a local school. The district failed to conduct a language evaluation even though they had a signed assessment plan. After the meeting, the school psychologist asked to speak to me. We went to his office and he told me that if I “didn’t play ball with the district” that he’d see to it that I was “run out of town.”

> A new special education director was hired at a school district. She called me at home to tell me that she was hired to “put me out of business.” I was so excited. I responded that I hoped her district would do such a great job that, I would have no families coming to me from them.

> Families were told that I did not have a license to practice.

> Families were also told that the district would not work with them if I conducted an evaluation.

> In an act of frustration and an attempt at intimidation, I suspect, a school district attorney threw her glasses and a book at me in a meeting.

> A psychologist hired by the district to conduct an assessment told me, in front of the IEP team, which included the parents, that I was “too stupid to understand his results.” Funny enough, neither did the school district’s attorney. The case was settled.

> Teachers were told not to complete rating scales and feedback forms that I asked them to complete. This was a violation of the parents’ right to fully participate in their child’s assessment because I was their proxy for this element of the evaluation.

> Observations were “suddenly cancelled” for no reason once I arrived at the school.

> During a fair hearing, the school district’s attorney swore at me while I was testifying. He also threw my report at me and exclaimed, “I know why you write such big reports. You’re trying to protect yourself from a lawsuit.” I quickly responded, “Well, if I wanted to do a half-baked job (not exactly the phrase I used), I’d be a school psychologist for your district!” And, the wars go on…

> Districts refused to allow me to observe.

> Shortly before I closed my practice, a guidance counselor explained to me that she shredded the rating scales that the teacher had already completed. Her explanation was that the scales were not appropriate for the teacher to complete. In actuality, the rating scales were the teachers’ versions and were designed for teachers. They destroyed my professional property.

> One of mother’s I represented, who was a mild-mannered and very patient woman, was threatened with a restraining order if she kept trying to schedule meetings with her child’s teacher.

> Another mother who I represented, who was extremely active as a volunteer in her child’s classroom, was apparently advocating “too much” and was not invited to the volunteer luncheon at the end of the school year. There were a variety of similar rebukes to her and some right in front of me.

> When I took off work for two months to study for an exam, several of my colleagues called me to see if I “was doing better.” I learned some of the startling rumors that were being spread by school district personnel regarding my absence. It was no surprise since, from time-to-time, throughout my 23 years in private practice, rumors were spread about my husband and also my son. I learned about these rumors from my families and colleagues.

It was clear to me that school districts’ terrorism extended to anyone who might threaten their existence.

My father would say to us kids, “Don’t just stand there, do something!” He was right. Looking at the fact that we are experiencing astronomical levels of teacher burnout, we have to do a lot of things differently. At this point, we’re losing 40%-50% of teachers in their first years of teaching. Kids are dropping out in record numbers and these are the statistics you don’t hear about because data isn’t being collected.

NOBODY is asking those who work in the field about solutions. It’s all about the “upper crust,” the “elite,” the “insiders” and let’s face it, they must not know much because look at the shape we are in.

We have a multitude of organizations that are “supposed” to be helping kids, but they, too, are bureaucracies who do not provide direct support. They seem to be in the fundraising and research business. Again, self-perpetuating and self-serving.

I say it’s time we have a Parent’s March. Heaven knows, we’ve got enough evidence to support our concerns. We will continue to have more drug use, more riots, more mass casualty shootings, more murder, more unwanted pregnancies, more prisoners and prisons, more wasted potential, more stress, more health issues and less life satisfaction if we do nothing. If we are not bold and committed, it will be “business as usual” and the bureaucracy is saved once again.

America has great music; however, with our current educational system, not everybody gets a chance to dance.

Let’s get this revolution started.

Assessment Plan for Elementary Students Suspected of Learning Disabilities

Intelligence

Wechsler Intelligence Scale for Children-5th Edition (WISC-5)

Leiter International Performance Scale-3rd Edition

Achievement

Woodcock-Johnson III Diagnostic Reading Battery

Gray Oral Reading Tests-5th Edition

Gray Silent Reading Tests

Tests of Reading Comprehension Test-4th Edition

Key Math-III Diagnostic Inventory

Test of Written Language-4th Edition

Woodcock-Johnson Tests of Achievement-4th Edition

Reading subtests:

Reading Recall

Mathematics subtests:

Calculation

Number Matrices

Written Language subtests:

Spelling

Writing Samples

Editing

Spelling of Sounds

Academic Knowledge:

Science

Social Studies

Humanities

Processing

Test of Memory and Learning-2nd Edition

Rey Complex Figure and Recognition Trial

Conners Rating Scales-3rd Edition/Long Form completed by

teachers, parents and student, if appropriate

Woodcock-Johnson Tests of Achievement-4th Edition/Form A

Fluency subtests:

Sentence Reading Fluency

Word Reading Fluency

Math Facts Fluency

Sentence Writing Fluency

Behavior Rating Inventory of Executive Functioning-2nd Edition completed by parents, teachers and student, if appropriate

Social-Emotional Functioning[2]

Behavior Assessment System for Children-3nd Edition completed by parents, teachers and students, if appropriate

Clinical Interview

Additional Data

“Blind” classroom observations in structured and unstructured settings

Developmental History

Review of Records

Intake Interview

Feedback with student; feedback with parents

If I suspect language processing disorders, I will also administer a Test of Listening Comprehension-2nd Edition and if autism is suspected, I administer the Test of Problem-Solving-3rd Edition, the Vineland Adaptive Behavior Scales-2nd Edition (Parent Interview Edition), Social Responsiveness Scale-2nd as well as the Autism Diagnostic Observation Schedule-2nd Edition.

I also have individual tests that measure auditory and visual processing and a wide variety of timed tests, which help me to determine a student’s ability to produce work in a reasonable time frame.

Understand that I have $35,000 worth of test materials and scoring software from which I can choose and I have the luxury of administering as many tests as I feel are necessary to pursue any clinical hypotheses. Luxury, indeed.


Reprinted from

WHITTIER JOURNAL OF CHILD AND FAMILY ADVOCACY [Vol. 16:1]

Dr. Claudia McCulloch


About Dr. Claudia:

My initial inspiration to become a psychologist who evaluated children, teens and young adults with exceptionalities came when I started teaching in a small Montessori school that accepted kids who were rejected by public schools because they had Down Syndrome, ADHD and dyslexia.  It was 1975 and I had no idea what my ultimate professional goal was, but I knew it would unfold and I would know it when I saw it.

 I went on to earn a Master’s Degree in Guidance and Counseling.  Well, that was part of the goal, but that degree got me one step closer when I began working with emotionally disturbed children in a housing project in Philadelphia.  In that setting, the goal was clarified.  I met a woman, Sybil Masters, who conducted evaluations on my students and she came back to me with such amazing information.  She was a school psychologist.

 I was accepted into the School Psychology doctoral program at Temple University where I first earned a Master’s Degree and then, the Ph.D.  I worked in schools as a school psychologist.  When the politics, incompetence, downright fraud, intimidation of parents, teachers and school psychologists, was too much to bear, I knew I couldn’t go on in that position, especially when I was told to lie about test results because “we have too many kids in special education”.

 I went into private practice where my only goal was to determine exactly what was going on with kids, craft a plan to remediate the problems and then, to take the fight to the school districts (and others) to outline where they failed to evaluate all areas of suspected disability and to provide FAPE (Free and Appropriate Public Education). 

 For 25 years, I fought all of the fights and now, I host a 3-hour weekday talk radio show answering your questions about your children’s education, development and behavior as well as questions about your own lives and the people who impact you including your friends, neighbors, co-workers and boss.

 Find me at DrClaudia.net.  The show is live streamed on Facebook every weekday from 11 to 2 Central time.  Check out the Parenting Pointers which are 60-second features and the several thousand blog posts!

 † Claudia Rodgers McCulloch, Ph.D. Licensed Psychologist, Licensed Educational Psychologist. Current host of “The Dr. Claudia Show-All Things Family” radio show. She can be reached at drclaudiamcculloch@gmail.com.

Facebook page: https://www.facebook.com/DrClaudiaMcCulloch/


[1] Ashly McGlone, Special Ed Case Costs Approach $1M, THE SAN DIEGO UNION TRIBUNE (August 12, 2014), http://www.sandiegouniontribune.com/news/watchdog/sdut-solana-beachspecial-ed-case-legal-fees-2014aug12-htmlstory.html

[2] cursorily assessed if there are no concerns.

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.

 

Public Schools Have Made Your Child the Enemy and You, the Taxpayer, Are Funding Their Battle – Part II (A Case Study)

An Open Letter to the Williamson County (TN) School Board and Williamson County (TN) Commission from a Concerned Parent . . .

[Reprinted with permission.  Names withheld to protect the identity of the child.]

 

Dear County Commissioners and School Board Members,

I am writing regarding a resolution that both the Williamson County School Board and the County Commission are being asked to approve. The resolution includes amending the 2017-2018 general purchase school budget so that $575,000 can be used for legal fees for special education due process cases The resolution is attached. I am asking the School Board and the County Commission to ask two important questions before voting on this resolution:

1) How many special education due process cases is this $575,000 in legal fees being used for?

2) What was the total amount of money that these parents were asking Williamson County Schools to pay in their due process claim(s)?

If the $575,000 in legal fees surpasses the amount that Williamson County Schools was asked to pay the parents in the first place, as a taxpayer, I encourage you to ask district leaders additional questions.

I am a parent of one of the current special education due process cases against Williamson County Schools and because of this know information that you may not be aware of. Over the years of raising four children there have been times where one of them was struggling but wasn’t ready to talk about it. In some of those instances I remember encouraging them to share with me and telling them that I can’t help what I don’t know. I too believe that people who are elected to serve the community can’t help what they don’t know and it is with that in mind that I write to you today.

In the last five years Williamson County Schools used $570,000 of the taxpayer’s money to pay The Law Office of Melinda Jacobs to fight special education due process cases. As a taxpayer, I am alarmed at the amount of money I see Williamson County Schools spending in our one small claim. I believe that Williamson County Schools is easily on their way to spend more in legal fees with The Law Office of Melinda Jacobs and their expert witnesses to fight our claim prior to the first day of trial than the amount of money I am asking to be reimbursed. My claim is only for the special education services I paid for and not a penny more. Here are just a few of many examples that make me concerned about how tax dollars are being spent.

There is a large amount of taxpayer money being spent on unnecessary depositions. The Law Office of Melinda Jacobs is spending more days doing depositions than the total number of days allotted for our entire trial. They are deposing at least 21 of our people and are flying to New York, California and Missouri to depose providers that only spent a few hours with my child. Some of the people they are deposing didn’t even provide services during the time period of this due process claim so are irrelevant to the case.

There is a large amount of taxpayer money being spent on unnecessary expert witnesses. Williamson County Schools hired two expert witnesses which will likely cost the taxpayers tens of thousands of dollars. They hired David Rostetter to observe my son in his private school in April of 2018 even though our case is for the 2015/2016 and 2016/2017 school years. If Mike Looney and Carol Hendlmyer expect you to approve this they should have to explain to you how an observation in April of 2018 is relevant and necessary especially when there were already reports from a Williamson County School psychologist and a Williamson County School special education teacher who observed my child in this private school when developing the 2015/2016 IEP.

I encourage you to ask Mike Looney and Carol Hendlmyer how much money Williamson County Schools have paid their expert David Rostetter in the past and how much they anticipate paying him in our case and compare that figure alone to the amount of our claim. I think you will find it alarming. In addition, you might want to ask if there are any concerns with David Rostetter’s ability to conduct an observation being that he has been legally blind since the age of 12.

There is a large amount of taxpayer money being spent on other unnecessary attorney fees. Williamson County Schools paid for THREE attorneys from The Law Office of Melinda Jacobs as well as several school employees to go to a mediation for our case when they had zero intentions of settling the case that day. Did the taxpayers really need to pay for three lawyers and several Williamson County School employees that day when they already knew that they were not going to even attempt to settle the case

In addition, I would encourage the School Board or the County Commission to speak to Melinda Jacobs or another attorney special education attorney about the merits of the special education due process cases before approving this money.

In closing, over the last five years Williamson County Schools used $570,000 of taxpayer’s money (126 pages of invoices) to pay The Law Office of Melinda Jacobs to fight special education due process cases. More money may have been paid to other law firms as well. Now, they are asking you, us, for $575,000 more.

Last month Williamson County taxpayers, 8,155 of them, voted for a sales tax increase to fund Williamson County Schools. I would have to think that a large number of them would not have voted the way they did if they were aware of the amount of money that is being wasted on special education due process legal fees. Mike Looney and Carol Hendlmyer have not been good stewards of taxpayer dollars in regards to these legal fees and your oversight is needed to avoid the mistakes that other districts have made. Take a look at the actions of another Tennessee county in the Deal v Hamilton County TN Bd of Ed (6th Cir 2004) where the district spent $2.3 million to fight and lose a special education due process case that they could have settled for $150,000:

http://www.chattanoogan.com/2005/3/14/63675/Atlanta-Law-Firm-Charges-To-County.aspx

At one point, Melinda Jacobs, the attorney Williamson County Schools is using against us, worked for The Weatherly Law Firm who was the law firm for the school district in this case. David Rostetter, the expert witness Williamson County Schools is using against us was one of the expert witnesses in this case and was paid $74,632.47 for his testimony. Melinda Jacobs who has practiced in Knoxville since 1999 opened up a second location here in Franklin on August 15, 2016.

How much more of Williamson County taxpayer’s money is she expecting to make this second location worth her while? Would her other clients pay to put her up in expensive hotels like the Franklin Marriott as Williamson County Schools does? Again, your oversight is needed.

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 access to 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!

Audio Recording IEP Meetings – Is It Allowed?

Having an audio recording of what happens in an IEP meeting is powerful evidence, especially when school districts deny what was said or fail to put a service in writing into the IEP.   For example, an audio recording can prove or disprove what was actually discussed during the meeting, whether the parents were given proper opportunity to participate, and what decisions or objections were made.   For those reasons, parents often wonder if they are permitted to record an IEP meeting.

So, can you do it?

Federal Law

There is no federal law prohibiting a parent or school official from recording IEP meetings.  IDEA and the other special education laws are silent on that specific issue.

However, IDEA does say a few things that are relevant to the discussion:

  • Parents are critical members of the IEP team
  • Parental participation in IEP meetings is vital and if a school blocks such participation, it is a denial of FAPE
  • Parents have the legal right to understand the IEP and, if necessary, have it explained to them

Audio recording an IEP Meeting, when the IEP Team is aware and consents to it, is not a violation of federal privacy law.

So that means you can do it, right? Not so fast.

The U.S. Department of Education (USDOE) Office of Special Education Programs (OSEP) has issued a letter opinion and Policy Memorandum on this subject in June 4, 2003 (PDF file).  The bottom line of the analysis is that it is a local policy issue and depends on several factors.

When a federal law is silent on an issue, the individual states can decide or legislate on the issue.

State Privacy Laws

The next hurdle to overcome is what state law says on privacy and audio recordings.  Each state has its own laws regarding the consent required to audio record events, even if they are ‘public’ events.

Some states are known as ‘dual consent’, which means both parties must know about and agree to the recording.  Some states are ‘single consent’ which means that only one of the interested parties (usually the parent who wishes to record the IEP meeting) has to agree to it.

While not exhaustive of every state’s law, the Digital Media Law Project collected links to some state’s laws on this issue.  This site is not being kept up to date, so make sure you check your own state’s law on recording or consult with a local attorney.

School District Policies

It is therefore left to the State Educational Agency (SEA) or Local Educational Agency (LEA) to determine the policy on audio recording these sessions.

The SEA or LEA (local school district) may issue a policy requiring, prohibiting, limiting or in any other way regulating audio recording of IEP Meetings.  If the public agency has a policy that prohibits or limits the use of recording devices at IEP meetings, the policy must have exceptions necessary to protect parental rights, such as the ability to understand the IEP or the IEP process. Any such policy on tape recording IEP meetings must be uniformly applied.

Protecting Access to Recordings

Any recording of an IEP meeting maintained by a public agency is an “education record,” within the meaning of the Family Educational Rights and Privacy Act (FERPA)[1] and would be obtainable by the parents through a written request.  It would also be subject to the protections of FERPA prohibiting its release to anyone not authorized under that law.

So what do you do?

Parents wishing to use audio or video recording devices at IEP meetings should consult state laws or local school policies for further guidance or consult with a local education attorney.

——————–

[1] 20 USC §§1232g and 1232h; Regulations 34 CFR §99.1 et seq.

Ethics Rules You Might Not Know . . .

I think many, too many, lawyers have forgotten what the ethics rules (“Rules of Professional Conduct”) really say. I encourage every lawyer (especially school district counsel) to go back and read their ethics rules (each state has their own, based on the ABA’s Model Rules of Professional Conduct) periodically. This will help them understand that the role of lawyer is not just to make money.

Here are some ethics rules you might not have known, excerpted from the Preamble to the Model Rules of Professional Conduct:

• A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.

• A lawyer who commits fraud in the conduct of a business is subject to discipline for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

• In all professional functions a lawyer should be competent, prompt and diligent. A lawyer should maintain communication with a client concerning the representation.

• A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials.

• As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession.

• In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.

• A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance.

• A lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession’s ideals of public service.

• These principles include the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.

• The legal profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar.

• Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system. The Rules of Professional Conduct, when properly applied, serve to define that relationship.

Excerpted from ABA Model Rules of Professional Conduct

My favorite of these is that “A lawyer is also guided by personal conscience”; in other words, lawyers should not be guided simply by the pursuit of money, but rather should be guided by a set of morals. I think this is the one that lawyers most often forget. That being an attorney is not just a job; what makes it a “profession” is that we act as professionals and use good, sound, moral judgment in using our license to practice law in any capacity.

Please always keep this in mind.

How School Districts Have Forgotten What Their Job Is

I filed a brief in a special education case recently opposing a motion to dismiss the case. Want to share the Introduction as it spells out my view of how school districts (and their insurance companies) are treating kids with disabilities:

What is getting lost in the legal gymnastics of the pending motions to dismiss is that this case is about the education of a young disabled child, D.M., who was abused by the public school system and staff with whom he and his parents entrusted his education and safety. Yet, no Defendant in this case wants to accept responsibility or be held accountable for the tragic harm done to D.M., a little boy with Autism and other co-morbidities. Children with Autism are more susceptible to abuse and bullying, particularly in the public school environment.

Although not expressly stated in the Constitution, our highest Court has recognized that education is a fundamental right. See, e.g., Brown v. Board of Education, 347 U.S. 483 (1954) (“In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.”) Furthermore, through the Equal Protection Clause and other federal legislation, education of disabled children is also protected as a fundamental right and goal of our society. See, e.g., Board of Education v. Rowley, 458 U.S. 176, 179-84, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982).

Apparently, the Defendants in this case must feel that physically restraining and abusing a disabled child; emotionally and psychologically abusing that same disabled child; and exposing that disabled child to an unsafe, hostile education environment through the efforts of purported ‘experts’ on the Child Study Team by placing D.M. in a classroom with unqualified and dangerous personnel is perfectly acceptable by the standards of 2011-12. One must reach this conclusion by the exhibition of the extensive and ultimately futile efforts of the Defendants to dismiss this action.


Tales from the Front – Actual (Illegal) Statements Made by School Personnel

I did a seminar recently. My seminar was on what to expect at an IEP/504 meeting. Here are some of the comments I heard from parents spoken to them by school districts:

“We are at our quota of eligible disabled students already. We can’t have more.”

“Evaluations must be done in the summer time.”

“Your child (with muscular dystrophy) is not allowed to use a wheelchair in school.”

“[A disciplinary action against a child with a disability and IEP] is completely an internal school matter. You don’t need to worry about it.”

[From a case manager] “I’m not sure what to do. What do you want me to do?”

“You want a person assigned to your child (in a manual wheelchair) to ensure they get out of the school during an emergency? We don’t do that.”

“[A child with MD but not in a wheelchair] is not entitled to use the elevator. She must use the stairs.” (Child falls a lot).

“Your child is depressed.” (No, exhausted from fatigue by the middle of the school day.) “She needs to be on anti-depression medication so that her grades improve.”

[Child has received 50s and 60s on math tests, yet child got a “B” on her report card].
———————-

I heard these statements with great dismay. They are not only false, hurtful, and deceitful, they are illegal. The law protects against all of these things, but too often parents don’t know that the schools are wrong.

If you think the school is telling you incorrect things concerning services or accommodations for your disabled child, please contact a special education lawyer or advocate and ask questions.


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.