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.

 

 

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!

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.

 

 

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.

What’s a FERPA letter?

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

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

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

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

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

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

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

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

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

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

Pass the IEP, please!

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

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

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

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

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

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

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