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.

Who is on the IEP Team?

Perhaps one of the most confusing parts of special education law for parents (and some schools) is who is on the IEP team.  There are both “mandatory” members of the IEP team as well as “permissive” members.  IDEA makes this very clear.

Mandatory Members of the IEP Team

There are five (5) mandatory members of the IEP team set forth in IDEA.  They are (in order as the statute lists them):

  1. The parent(s);
  2. At least one regular education teacher who interacts with the child in a general education setting;
  3. At least one special education teacher or provider who interacts with the child;
  4. A representative of the school district (“local educational agency”) who meets certain requirements (see below); and
  5. “an individual who can interpret the instructional implications of evaluation results” (who may be also #2-4).

20 U.S.C. §1414(d)(1)(B); 34 C.F.R. §300.321(a).

Before moving on to the permissive members, let me clarify some things about the mandatory members.  The word “and” is underlined above, because that means ALL five are required.  If Congress meant that only 3 or 4 of those persons were necessary, they would have used the term “or”.  Remember Conjunction Junction from School Kids Rock?

The Parent(s)

At least one parent must be present at an IEP meeting. If there are two parents, both are not required to be there – one can act for both.  But, notice the parent(s) are listed first.

One of the key Procedural Safeguards is “an opportunity for the parents of a child with a disability . . . to participate in meetings with respect to the identification, evaluation, and educational placement of the child.” 20 U.S.C. §1415(b)(1); 34 C.F.R. §300.501(b)(1) . The parents of a child with a disability are mandatory members of the IEP Team. 20 U.S.C. §1414(d)(1)(B)(i); 34 C.F.R. §300.321(a)(1) (emphasis added.)

Indeed, “the concerns of the parents for enhancing the education of their child” is critical in developing the child’s IEP. 20 U.S.C. §1414(d)(3)(A)(ii); 34 C.F.R. §300.324(a)(1)(ii); see also Honig v. Doe, 484 U.S. 305 (1988); Schaffer v. Weast, 546 U.S. 49, 53, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005) (Parents play “a significant role” in the development of each child’s IEP.)

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

The LEA Representative

The representative of the school district can’t be just anyone.  Often the school will send a case manager or principal or other administration staff member as the representative, but such person might not meet the requirements of IDEA.

The LEA representative must be:

  • qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities;
  • knowledgeable about the general education curriculum; and
  • knowledgeable about the availability of resources of the local educational agency (school district).

20 U.S.C. §1414(d)(1)(B)(iv); 34 C.F.R. §300.321(a)(4).

In other words, this person must have supervisory capabilities over special education curriculum and services, know the general education curriculum, and know the services available as well as placement options within the district.  If the person the school district sends to the IEP meeting is constantly having to check with someone else about whether the school district can provide such services, the wrong person is in the meeting.

The Evaluation Interpreter

While the fifth mandatory member is only stated as “an individual who can interpret the instructional implications of evaluation results”, IDEA is no more specific and doesn’t define who this is.

Typically, this person is the school psychologist because that person’s role is to translate evaluation reports into special education and services to be provided to meet the needs of the child.  Most parents don’t know how to interpret evaluation reports.  Heck, even some highly skilled teachers don’t know how either.

Make sure someone is in the meeting who can put testing results into actions and services for your child.

Permissive Members of the IEP Team

IDEA allows other persons to be on the IEP Team.  Specifically,

  • “at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate”
  • “whenever appropriate, the child with a disability.”

These are “permissive” members because they are not required to be there and are only there if the other IEP team members think it is appropriate or necessary.

The first of these options has been interpreted to include “education advocates” for parents; social workers or therapists contracted by the school district; or, anyone else who might have valuable input into the formation of an IEP.  There is no restriction on the number of these individuals so long as they have the requisite knowledge about the child or services and it doesn’t bog down development of the IEP.

The second option is at the discretion of the parent(s).  Whether you bring your child to an IEP meeting is up to you and most agree that the child should only attend if (a) he/she is emotionally capable of hearing about areas where the boy or girl is struggling; and (b) he/she has valuable input to offer, such as when or where he/she is having difficulties (e.g. “I struggle in math class because of the classroom noise.”)

Is it a properly assembled IEP meeting?

The most important lesson of this article is for both parents and school districts to understand when an IEP meeting is properly constituted.  As stated above, all of the mandatory members must be present [especially the parent(s)].  Without all of the mandatory members present, the proposed IEP may either be improperly designed (because not all of the necessary input was received) or not implemented (because the district does not have the necessary resources) or both.  If there are no permissive members, the meeting can still go forward.

Parents have the motivation to make sure that an IEP meeting is properly assembled so their child receives a FAPE.  School districts have the motivation to ensure that the IEP cannot be challenged on these grounds.  All of this is intended to benefit the child with a disability.

So, if the law is followed on the IEP team, it is a win-win-win.

 

 

 

Relentless – A Michigan Man

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

What is a “Michigan Man”?

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

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

Not this!

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

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

You must be relentless to be a Michigan Man.

What Has This Got To Do With My Law Practice?

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

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

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

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

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

Why?

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

 

 

Put Communications Between Teachers and Parents in the IEP

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

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

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

Not in IDEA

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

What IS in IDEA is the following:

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

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

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

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

Now, we look at ESSA . . .

ESSA

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

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

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

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

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

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

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

 

Bullying and the Gebser Letter

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

The Effects of Bullying

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

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

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

What is a Gebser Letter?

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

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

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

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

Free Special Ed Legal Forms on SchoolKidsLawyer.com.

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

 

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

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

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

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

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

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

Federal Funding For Schools

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

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

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

Where Does the Funding Go?

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

Still sounds pretty reasonable, right?

How Does A School Make Sure It Provides a FAPE?

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

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

How IDEA Addresses Special Education Disputes – The Problem

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

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

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

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

Paying For The School District’s Lawyer

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

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

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

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

Not What IDEA Was Designed To Do

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

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

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

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

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

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

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

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

New Jersey OPRA Records Request Website and Form

Florida Public Records Act Website and Forms

Texas Open Records Requests Website and Forms

Pennsylvania Open Records Request Website and Forms

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

Go get ’em!

Websites for Parents of Twice Exceptional (2e) Kids

 

 

 

 

 

 

 

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.

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

Transportation is a Mandatory “Related Service” for Special Ed Kids That Need It

Under IDEA, transportation is a “related service” that must be provided to kids with an IEP.1  Transportation must also be provided to infants and toddlers as part of Early Intervention Services.2

Transportation includes travel between home and school; between schools (if the child attends more than one campus); travel within and around school buildings (if that is a challenge); and specialized equipment like ramps, lifts, or adapted buses if required to transport the child with a disability.3

What kind of transportation will be provided to my child? This depends entirely on what your child’s needs are. If your child has Sensory Processing Disorder, he/she may not be able to ride the regular large bus to school. If your child is in a wheelchair or has other physical impairments, he/she might require a specially-adapted vehicle. Alternatively, you as the parent may be reimbursed by the district if you provide the transportation agreed to by the IEP team.

Transportation needs should be discussed during an IEP meeting or 504 planning meeting. If the school district needs to send the child with a disability outside the school for services or places the child in an ‘out of district’ program or private school, the school district must also provide transportation to those services or program.

Learn more about how school buses and transportation for your child with a disability fits into planning for your child’s education and IEP in our book SchoolKidsLawyer’s Step-By-Step Guide to Special Education Law.


1. 20 U.S.C. §1401(26)(A); 34 C.F.R. §300.34(a).
2. 20 U.S.C. §1432(4)(E)(xiv); 34 C.F.R. §300.34(a).
3. 34 C.F.R. §300.34(c)(16).

 

 

New special ed case involving charter schools and attorney’s fees

The U.S. Court of Appeals for the Third Circuit handed down an excellent decision on October 11, 2017 for parents of children with disabilities.  In the case of H.E., et al.  v. Walter D Palmer Leadership Learning Partners Charter School, et al., the Court held and reaffirmed its prior ruling that “success on a claim for procedural relief can constitute a victory ‘on the merits’ that confers ‘prevailing party’ status” allowing the parents an award of attorney’s fees.

Parents had children with disabilities enrolled at Walter D Palmer Leadership Learning Partners Charter School.  The parents had alleged that the charter school was not providing a Free Appropriate Public Education (FAPE) to their children.  The parents entered into a settlement agreement with the charter school whereby the school was to provide the children with compensatory education and contribute towards the parents’ attorney’s fees, but before the school could deliver on the agreement, it closed in 2014.

The parents filed a Due Process complaint against both the charter school and the Pennsylvania Department of Education (PADOE), alleging that PADOE as the state agency was responsible to make good on the charter school’s agreement.  However, the administrative hearing officer dismissed the parents’ case and held that the parents could not go after PADOE and had to get their relief through the charter school’s settlement claims process.

Parents filed an appeal in the federal district court seeking reversal of the administrative hearing officer’s decision plus attorney’s fees and costs for having the fight the battle.  The federal court vacated the hearing officer’s decision and sent the case back to the hearing officer on the issue of compensatory education, but denied the parents’ claim for attorney’s fees because it was a victory on purely procedural matters, not a substantive claim, and therefor they were not “prevailing parties”.

The federal appeals court reversed the federal district court on that basis and said that parents were indeed prevailing parties and entitled to reimbursement of their attorney’s fees and costs.

Thankfully courts are beginning to recognize that these battles are difficult and expensive for parents to bear and their statutory right to be reimbursed for the costs and fees paid to fight these cases when they win should be honored.  It is a re-balancing of the playing field.

The full decision can be downloaded from the Third Circuit Court of Appeal’s website here.  (It is a PDF file)