Don’t go to a heart surgeon for a broken arm . . .

If you fell and broke your arm, would you go to a heart surgeon?  Of course not.  You would go to an orthopedic doctor who could determine whether you need a cast, sling, surgery, etc.

The same principle applies in law.  If someone has sued you for cutting down the tree on their property, you wouldn’t hire a tax attorney to represent you.  Similarly, if you have a special education law issue, you shouldn’t hire an attorney who focuses on wills.

Perhaps people don’t realize that lawyers focus their practices on certain areas.  We do this so we can become ‘experts’ in those areas.  The days of the ‘general practice’ lawyer who handles any and every legal problem are long gone.

However, hiring the wrong lawyer is exactly what happened in the case Z.Z. v. Pittsburgh Public School Dist. (PA Commonwealth Ct., Nov. 30, 2016).  The Pittsburgh, PA firm that represented parents, Steele Schneider, consists of primarily employment law and business law attorneys.  While they do list special education law as one of their practice areas, I don’t believe they are members of COPAA (special education advocates and attorneys organization) or any other special education law group nor have I heard of them before this case (and I practice a fair amount of special education law in Pennsylvania).

I believe the Z.Z. case was correctly decided by the court in favor of the school district and against the parents.  I also believe the reason for that is the parents (and perhaps also their attorneys) were overzealous in this case and jumped the gun, specifically seeking legal remedies through Due Process before even completing the IEP process.  The Hearing Officer found (and confirmed by the Commonwealth Court) that the IEP process had not even been completed and parents had not fully cooperated with the process before filing for the lawsuit, thus the school district had not violated IDEA.  Good special education lawyers would have counseled the parents against filing a lawsuit until the IEP process was completed and, if the case was already filed, would have advised the clients not to pursue it further.

There is an ethics rule that states that an attorney should withdraw from representing a client if “the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.” PA Rule of Professional Conduct 1.16(b)(4).  I’m also concerned that the lawyers involved in the Z.Z. case had the wrong motive for representing the parents.  (I’ll leave that up to your imagination as to what that motive might be.)

Unfortunately, a similar thing occurred in the case Batchelor v. Rose Tree Media School Dist., (3rd Cir. 2014).  In that federal court appeal, Frank Schwartz, Esq., a commercial / employment law litigator from the firm Lamm Rubenstone LLC, created horrible special education law for parents.  That case ruled that parents have to exhaust every legal remedy against a school before a hearing officer prior to going to court, even including anti-discrimination laws like Section 504 and the Americans with Disabilities Act (ADA) which say you can go directly to court.  How did this happen? Simply, Schwartz based his argument using an old version of the law that was no longer applicable (specifically, relating to exhaustion.)  This is much less likely to happen if the clients had selected an attorney that focused his/her practice on special education law (or Schwartz had referred the case out to a special education lawyer).

Thus, my conclusion is that lawyers who don’t truly practice in special education law on a regular basis should not take these cases because they end up creating bad precedent for parents and children with disabilities.  These cases also harm the public’s perception of special education lawyers and advocates.  This frustrates attorneys whose true motive is to assist these clients.  My advice to special education clients is do your research and make sure your attorney focuses his/her practice on special education law.

 

What documents should be in your child’s special education binder?

If you are a parent of a special education student or advocating for one, do yourself a favor and . . .

PRINT OUT THIS ARTICLE (or at least the plan below).

Not only will this article save you time and lots of money, it will help you understand how best to help your child with a disability.

When clients contact me, most are armed with a box (or seven) of documents about their child’s special education.  It is wonderful that they are documenting their child’s path and what the school district is doing (or not doing) for their child.  It should be the mantra of every parent of a child with a disability: DOCUMENT EVERYTHING!

But . . .

Usually, the documents clients provide me are overkill and disorganized.  Inside the box(es) is a pile of papers, often not in order. I doubt highly that a client wants me to bill them at $375.00/hour to go through those papers to organize them and figure out what I need.  Thus, before you meet with a lawyer or advocate, you should organize your child’s special education documents first.  You should do this even if you are advocating for your own child.

Here is a plan to explain which documents you need, which documents you don’t need, and how to organize them.

THE PLAN

1. Get a 2″ 3-ring binder with dividers.  Label the dividers as follows: MEDICAL, FAMILY BACKGROUND, EVALUATIONS, IEPs / 504 PLANS, and SCHOOL DOCS.

2. Under MEDICAL, include any papers from the original diagnosis of your child.  Also include any changes to that diagnosis (e.g. ADHD -> Autism Spectrum Disorder).  Also include a list of any major medical events, such as surgeries, hospital in-patient stays, broken bones, major or chronic illnesses, and allergies (don’t forget dental events, such as tonsillectomies, baby teeth extractions, etc.)  As best you can, document the dates and locations of these medical events, as well as treatments received.  Finally, if there are any related medical or psychological disorders in the immediate family, note those here as well (e.g. grandfather diagnosed with Alzheimer’s, uncle diagnosed with ADHD, etc.)  Finally, in the front of this section, place a list of all current physicians and medical providers seen by your child – primary care physician, occupational therapist, physical therapist, psychiatrist, psychologist, speech therapist, etc.  Make sure you have their name, the service they provide, and contact information (phone number, email address, website).

3. In the FAMILY BACKGROUND section, include notes of milestones in your child’s development (e.g. date first crawled, date first walked, date first spoke, first spoken words, etc.), especially any noted delays in such development.  Also provide a narrative of your family makeup and any major changes, such as number of living grandparents, parents, child’s siblings, aunts, uncles, etc.  It is critical to be honest about family events, such as divorces or separations, geographic relocations, domestic violence, financial or other stress, etc.  Place in this section other matters of importance in your family culture, such as religious beliefs, school history including any changes in school, ethnic celebrations, etc.  If you are in a divorced family, you should include anything that changes the name of the child and also any court order regarding physical custody, visitation, and especially legal custody or who has the right to make educational decisions for the child.

4. Do not include every evaluation of the child ever performed.  In EVALUATIONS, place only the most recent evaluations of the child.  These evaluations should be no more than 3 years old.  If the evaluations occurred more than 3 years ago, do not include them.  Thus, if this section is empty, one of the things you will be requesting is a new comprehensive educational evaluation of your child.

5. Like EVALUATIONS, within the IEPs/504 PLANS section do not include every IEP or 504 Plan since your child’s birth.  (That’s supposed to be humorous.)  My recommendation is to only include the current approved IEP or 504 Plan and all approved ones going back two school years.  You should only include a draft IEP or 504 Plan if it is related to the current approved IEP or 504 Plan (to show how the school changed or omitted certain information) or it is a current proposed IEP or 504 Plan with which you disagree.  Old drafts should be discarded because approved IEPs and 504 Plans overrule those drafts. Thus, this section should be at a maximum, 3-5 documents, especially since these are typically very long documents (you may consider only including pages from prior plans or drafts that conflict with the one currently at issue.)

6. The SCHOOL DOCS section is the trickiest of all.  My rule of thumb is when in doubt, include it.  First, if you haven’t done so already, send a FERPA request to the school for your child’s records.  (Click on the link to the left to read more about FERPA requests.)  At the beginning of this section, provide a list of all contact points at the school with names, phone numbers and email addresses of the superintendent, principal, assistant principal, all teachers that see your child, all service providers that see your child, all persons involved in lunch and/or playground monitoring, and any other person that your child may encounter in school.  Also include anyone on the IEP Team (Child Study Team) that is not included in the prior list, such as school psychologist.  [Why do this? First, it will assist your attorney or advocate into knowing who the players are.  Second, it will show the IEP Team that you are more than prepared when you show up at an IEP Team meeting with the list.  Can you imagine the fear on the faces of the IEP Team members when they see their names and contact information on a list in your notebook? Make sure you turn to that page in your binder when you first sit down.]  You should include here results from your child’s standardized tests, report cards, any disciplinary reports, absent/tardy reports, progress reports (triggered by the current IEP or otherwise), and any other key documents that discuss your child’s current levels of academic achievement and functioning in the school environment (sometimes emails from teachers or among teachers and administrators provide the true story).

Your binder may be huge, but volume is not the problem.  Disorganization is the problem which the binder resolves.  You, your attorney, or your advocate will appreciate this effort.  And, as stated previously, it will help zero in on the real issues your child with a disability is facing in the school environment.

[This article and other helpful tips for your child’s IEP are in our FREE report 5 Easy Steps for a Successful IEP MeetingDownload your copy here.]

For more on this and related topics, consider purchasing the book SchoolKidsLawyer’s Step-By-Step Guide to Special Education Law: Workbook for Parents, Advocates and Lawyers available now from Amazon.com or direct from SchoolKidsLawyer.com.

Guest Blog Post: Managing Classroom Behavior For Success – Antonia Guccione, M.S., M.A.

Any teacher will tell you that managing classroom behavior is critical to surviving the first days and weeks of the school year. But how? The Individuals with Disabilities Education Act (IDEA) 2009 provides guidelines of procedures that must be adhered to when disciplining students with Special Needs. Teachers have the legislation to guide them, but do they have a toolkit of strategies to help them manage classroom behavior in a supportive, non-confrontational way?

Get in the Game

Without specific training related to the modification of behaviors of children with special needs, it is no wonder that teacher turnover in the first five years in the classroom is so high. According to NPR. org, schools that do a better job of coping with behavioral issues have significantly better teacher retention rates. So, it is well worth the school’s time and effort to educate not only students, but also teachers in this significant area of professional development.

The good news is that there are a number of very simple techniques that, if applied correctly, can yield positive outcomes for both students and teachers. The bad news is that school districts must be committed to teaching them, but often are not. Many of these techniques have been adapted from work originally presented by Fritz Redl and David Wineman in their book titled Controls from Within: Techniques for the Treatment of the Aggressive Child. These techniques address how to interact with children and avoid confrontational, no-win situations. In the work done by Redl and Wineman, threats and punishments were never used, even with considerably challenging students.

In the Beginning

Long before a student and teacher are in a “no-win” situation that results in disciplinary action, there are things that can be done to create a “win-win” situation. Relationship building is key. People, in general, do things relationally with and for one another. A simple smile can break multiple barriers and set the stage for interventions aimed at establishing positive, caring, teacher-student relationships. One such intervention is called “hypodermic affection”. This is an infusion of affection aimed at breaking through a barrier laden with fear or distrust. When a teacher exudes affection and positive energy, it can go a long way to encouraging a positive reaction from the student.

“Hurdle Help” is another such technique. In this intervention, a student is helped over his barrier to learning and participating with a hint or a strategy. As such, students are helped over their “hurdle” and can participate in the learning and the lesson.

No Words Needed

Non–verbal interventions, such as proximity and touch control, let the student know that the teacher is close at hand if support is needed. On the other hand, planned ignoring can protect a student’s ego if he or she needs a little more time to process a request. To the untrained eye, it may look like a teacher is ignoring the student, but this is in fact a very specific move on the part of the teacher. Often, especially with young children, the purpose of misbehavior can be to gain attention…planned ignoring removes the audience.

Change is a Good Thing

Sometimes it is necessary to “restructure” an activity and redirect a student; change it up a bit! If a student is totally lost on one particular task, find a way to alter the task. For example, if the student is coming up blank for the assigned writing prompt, allow a different subject choice. If other students see this as “unfair”, shine the light on differences among all of the students in the class. If this rule is applied equally to everyone, the trust in the room will grow, as will the respect for one another.

A Little Help Goes a Long Way

Prompting and fading is another intervention that can allow for a non-threatening solution to an otherwise crisis situation, or “showdown”, between a teacher and a student. Prompts can be full physical, partial physical, modeling, gesturing, or positional. If using this intervention, it’s important to proceed from the least to the most invasive prompting and should include a plan for prompt fading to be implemented as soon as possible. Fading means that over time, and as a student masters a skill, prompting will not be needed at all.

Plan Ahead for Success

Equipped with techniques to avoid confrontations, lessons can proceed! Providing a structured learning environment means that a teacher thinks carefully not only about the lesson to be taught, but how it will be introduced, instructed, and practiced for mastery. Have an interesting “do-now” on the board that introduces the aim of the lesson right from the start will motivate cooperation and participation. An interesting little known fact can kick off a lively discussion in any classroom, regardless of the level of the students. Since students learn by doing, elements of activity should be built in to the learning process for optimal gain.

Big Ticket Item – Cooperative Planning

Classroom rules are a necessity for structure and order. It is best if the teacher and student create them together and agree upon them as a unit. Utmost attention should be given that no one is left out of the equation. Inclusion is not just the law; it is the right thing to do. If we can play, shop, and live together in neighborhoods outside of school, why should students be separated in school? A master teacher knows how to differentiate a lesson’s aim, activities, and assessment. Students learn to accept differences and practice social skills important for the world outside the classroom doors when inclusive education is infused within schools.

It’s a Cultural Thing

Practicing these simple techniques can improve the climate and culture of each teacher’s classroom, and by extension, the climate and culture of our schools.

This article originally appears in The Autism Notebook Magazine, Aug./Sep. 2016, South Florida Edition, p. 7.  Online edition can be viewed for free at:

http://virtualpublications.soloprinting.com/publication/?i=328613

THANK YOU FOR OUR GUEST BLOGGER:

Antonia Guccione, MA; MS is a consultant, educator, and writer. As an educator, she has forty years’ experience designing and chronicling model programs for students with a diverse set of Special Needs

SchoolKidsLawyer.com truly appreciates this.

 

Press Release: NEW BOOK ON SPECIAL EDUCATION LAW PUBLISHED

Amazin Blue Press LLC is pleased to announce publication of its new title:

SchoolKidsLawyer’s Step-By-Step Guide to Special Education Law: Workbook for Parents, Advocates and Lawyers

by Robert C. Thurston, Esq.

cover04

This 266 page book is a user-friendly guide to assist families of children with disabilities, complete with forms, helpful tips, and links.

According to the 2010 U.S. Census, about 2.8 million school-aged children have a disability.  In 2014, the Centers for Disease Control (CDC) identified 1 in 68 children in the U.S. as being on the Autism Spectrum.  Yet, most of these children are not getting equal access to education and most of their families don’t even know they have legal rights available.

This book not only makes special education more accessible to students with disabilities, but also explains in non-legal terms how to enforce their legal rights within the public school systems.  The guide is applicable to all 50 U.S. states, D.C., Puerto Rico, and U.S. territories.

About the Author: Rob Thurston is a well-respected attorney that focuses his law practice on special education law.  He has published numerous articles and lectures widely on the subject.  He has two sons, the older of which has Autism and is a major inspiration for writing this book.

# # #

For more information about the book, go to http://schoolkidslawyer.com/book or contact Robert C Thurston, Esq., via email at rthurston@schoolkidslawyer.com.

Aggravation in trying to access student records

As you may know if you have been reading my 2 Things: Special Education Law Tips Newsletter, there are laws which grant access rights to parents of their student’s educational records.  This is especially true when the student is a child with a disability.  Such rights are granted by the Family Educational Rights and Privacy Act (FERPA) and its regulations (20 U.S.C. §§1232g and 1232h and 34 C.F.R. §99.1 et seq.), by the Individuals with Disabilities Education Act (IDEA) and its regulations (20 U.S.C. §1415(b)(1)), and usually also by state laws and regulations (for example, in New Jersey it is the Special Education Code N.J.A.C. 6A:14-2.9).

But schools and their lawyers put up roadblocks to parents trying to review their child’s file.  First, often they do not even inform the parents that they have the right to review those records, even though the law says they must tell the parents of such right.  See 34 C.F.R. §99.7(a).  Second, schools and/or their attorneys play games with the definition of “education records” so as to block parents from seeing ALL of their child’s file, even though “education records” is clearly defined by the laws.  See 34 C.F.R. §99.3 Education Records.  That definition has very few exceptions, so essentially everything “maintained by an educational agency or institution or by a party acting for the agency or institution” that is “directly related to a student” must be produced to the parent.  34 C.F.R. §99.3 Education Records.

There are some other delay tactics that schools will play, but from my perspective the most aggravating one is that the schools and/or their counsel take the position that I, as the attorney for the parent(s), may not review the records; that it must be done by the parents themselves.  This is an inaccurate statement of the law and purely meant to obstruct this right.  Most state laws permit the access and review of the records by a “designated representative” of the parent, e.g. the parent’s attorney.  See e.g. N.J.A.C. 6A:14-2.9(b).  I can understand the precaution if a neighbor wants to review the records, in which case a school should make sure that such neighbor has the consent of the parent.  But when an attorney has already represented in writing that he/she is counsel for the parent, he/she is, by the nature of being an attorney-at-law, the legal designated representative of the parent.

This is the type of nonsense that needs to STOP in special education cases.  This is a source of my anger at the legal profession because it reeks of a lawyer trying to rack up fees instead of having his/her client obey the law.  It is no wonder that parents are so frustrated and annoyed by schools anymore, because it just seems like schools would prefer to play a litigation game rather than do the right thing for a child’s education.  IMHO, of course.

School District Lawyer Tactics May Violate Ethics Rules

I am an attorney who represents children with disabilities and their families in special education matters. I am also a member of the Council of Parent Attorneys and Advocates (“COPAA”, www.copaa.org), a national organization of special education lawyers and advocates with the same client base.  Recently, my colleagues and I have witnessed a substantial uptick in very aggressive opposition by school districts and their counsel to our clients’ exercise of their legal rights, namely trying to ensure access to a public education for children with disabilities.

I believe that such opposition by school district lawyers may be in conflict with attorney ethics rules.

Applicable Ethics Rules

Most state organizations that regulate lawyers have adopted the Model Rules of Professional Conduct (ethics rules, hereinafter abbreviated as “RPC”) or a similar version.  The RPC guide the conduct of lawyers in their practice and representation of clients.  “The Rules of Professional Conduct are rules of reason.”  RPC, Preamble, ¶14.

Lawyers are public citizens.  “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.”  RPC, Preamble, ¶6. “A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others.”  RPC, Preamble, ¶5.  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. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.”

RPC, Preamble, ¶6.

Finally, a lawyer’s conduct should not be guided only by the rules, but also by basic morals.  “Many of a lawyer’s professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers.”  RPC, Preamble, ¶7.

These sections of the RPC mandate that lawyers improve access to the legal system, particularly by those members of our society who may face obstacles in obtaining such access, e.g. those with disabilities.

Statistics of School-Aged Children With Disabilities

According to the 2010 U.S. Census, off the 53.9 million school-aged children  (ages 5 to 17),  about 2.8 million (or 5.2%) were  reported to have a disability.  A study performed by the National Institutes of Health (NIH) revealed that “out-of-pocket expenditures, particularly those for medical costs, for example, are higher among families with children with a special health care need.” That study further found that costs “average $30,500 a year per family with a disabled child.” Several other studies conducted by the Social Security Administration and the American Psychological Association indicate that families that have a child with a disability have a greater economic hardship than those families that don’t.

The obvious conclusion is that a family with a child with a disability has fewer financial resources to enforce its legal rights.

The Purpose of Special Education Law

The main law in special education is the Individuals with Disabilities Education Act, 20 USC §1400 et seq. (“IDEA”).  When passing this law, the U.S. Congress made the following findings:

  • “Disability is a natural part of the human experience and in no way diminishes the right of individuals to participate in or contribute to society.  Improving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities.”  20 USC §1400(c)(1)
  • “the education of children with disabilities can be made more effective by . . . strengthening the role and responsibility of parents and ensuring that families of such children have meaningful opportunities to participate in the education of their children at school and at home” 20 USC §1400(c)(5)(B)
  • “Parents and schools should be given expanded opportunities to resolve their disagreements in positive and constructive ways.”  20 USC §1400(c)(8)

Congress went on to state that the purpose of IDEA is:

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.

20 USC §1400(d)(1).

IDEA establishes ‘procedural safeguards’, which are designed to protect the legal rights of children with disabilities and their families.  “Any State educational agency, State agency, or local educational agency that receives assistance under [IDEA] shall establish and maintain procedures in accordance with this section to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education by such agencies.”  20 USC §1415(a).

Those procedural safeguards include “an opportunity for any party to present a complaint with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child,” 20 USC §1415(b)(6), and a method for filing a lawsuit to enforce those rights, i.e. a “due process complaint.” 20 USC §1415(b)(7).  Indeed, recognizing that enforcing legal rights is often a cost-prohibitive venture for families, Congress ensured that such families may be reimbursed for attorney’s fees and costs incurred if they prevail in a lawsuit.  20 USC §1415(i)(3)(B)(i)(I).

Therefore, IDEA enables a child with a disability and his/her parents to enforce their legal rights and improves their access to the legal system.

How Aggressive Opposition Conflicts With Ethics Rules

I do believe that school districts are entitled to legal representation and to defend against frivolous claims.  Indeed, IDEA guarantees these rights.  See, e.g. 20 USC §§1415(i)(3)(B)(i)(II) and (III).

However, some school district counsel have employed what we in the litigation field refer to as “scorched Earth tactics.”  This means that they will do anything to win their case even at the expense of a party’s legitimate rights.  Examples of this conduct include: (1) filing a motion to dismiss a due process complaint (which is not provided for in IDEA or most administrative codes); (2) filing other motions that are expensive to contest; (3) making what was intended to be an informal process a very expensive, formal proceeding for the families; and (4) generally being very caustic to parents’ counsel.

In other words, the school district attorneys that employ these tactics are trying to make access to the legal system more difficult and more expensive for families of children with a disability.  I believe that this is in direct and express conflict with the ethics rules cited earlier.  It also seems counter to basic human morality (“personal conscience”).

I would respectfully request that counsel stop these tactics and work in a more collaborative manner in order to comply with the express purpose of Congress in special education cases.  After all, these cases involve children with disabilities who are some of the most vulnerable in our society.

 

Is your hearing officer competent?

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

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

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

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

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

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

Top Ten Special Ed Law Tips

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

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

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

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

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

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

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

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

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

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

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

I hope these are helpful.  If you need more tips beyond these 10, consider getting our book “Schoolkidslawyer’s Step-By-Step Guide to Special Education Law” which also includes forms and an explanation of the entire special education process for you.

And always, you can contact me for a consultation at 856-335-5291 or info@schoolkidslawyer.com.

 

Is special education instruction by a paraprofessional legal?

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

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

Here is my analysis and answer:

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

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

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

They must also be appropriately TRAINED and SUPERVISED.

What does “trained” mean?

All special education teachers must be HIGHLY QUALIFIED.

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

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

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

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

What does “supervised” mean?

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

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

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

Conclusion

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

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

 

 

How Does a Diagnosis of Disability Affect My Child’s Eligibility For Special Education?

Many parents are aware of their child’s diagnosis (or the symptoms of the diagnosis), but perhaps have never formally received a diagnosis for their child from a physician. Why is a diagnosis important? A child must have a diagnosis that fits within 13 categories of disability in order for that child to be eligible for special education services.

I’ve created a handy chart that links a diagnosis to the category under the Individuals with Disabilities Education Act (IDEA) which is the first step in determining eligibility for special education.

You can download the chart here:

IDEA Disability Categories

Please also feel free to share this information with parents of kids with disabilities.