On Science, Pseudoscience, and the Mega-millions Lottery

Published on January 31, 2010 by Jennifer Laviano

The first time I met Dr. Peter Gerhardt, he was giving a presentation in New York City which was focused on the needs of older students with autism spectrum disorders (ASD).  The workshop encompassed everything from teaching students appropriate bathroom “etiquette” to how and when to discuss sex.  I was thoroughly impressed!  He managed to tackle a very difficult subject with humor, creativity and honesty, and in a way that was completely respectful to individuals with ASD and their families, and their teachers.  If you ever have the opportunity to hear Dr. Gerhardt speak, I suggest you take it!

Since then, I have been honored to get to know Dr. Gerhardt as a colleague and a friend.  The most recent version of the IDEA requires that students with disabilities be provided special education and related services which actually have scientific validity as to their effectiveness.  Given how many thoroughly unproven and haphazard “treatments” and interventions continue to be employed in our schools, however, I felt that Dr. Gerhardt, as President of the Organization for Autism Research, would be a perfect choice to kick off SpecialEdJustice’s monthly guest post.  His article follows.

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On Science, Pseudoscience, and the Mega-millions Lottery

by Peter Gerhardt, Ed.D.

First, I need to disclose something… on a weekly basis I buy two or three “Mega-Millions” lottery tickets. I do this despite the fact that I fully realize my chances of winning are, effectively, none, zero, zip, nada, zilch. I understand statistics and probability theory and that the only realistic outcome of my behavior is that I will lose two or three dollars every week. Yet, I still buy tickets. Why? Because, like the ads tell me, “I gotta be in it, to win it.”

While my odds of winning when I buy a ticket are pretty much zero, my odds of winning when I don’t buy a ticket are absolute zero. And this small perception of difference allows me to accept a statistically impos­sible outcome (my winning mega-millions) to explain away the fact that, on a weekly basis, I donate up to three dollars to the state of Maryland with no possible, realistic expectation of a return.

Now you know the truth. In this case, the testimonials of the winners (pseudoscience) carry more weight for me than my understanding of probability (actual science).

It seems that my behavior, at times, is shaped not by the science I know, but by the outcomes I desire. For families of learners with autism spectrum disorders, the same can often hold true.

A father of a young man with autism I know once explained to me that the reason he had tried so many alternative therapies was the “what if” factor. “Maybe those other therapies didn’t work,” he explained, “But what if this new one does?” What if? For him, the greatest risk was in not trying something that might help his son achieve any number of desirable outcomes. Those desirable outcomes (e.g., language, independence, social competence, friends, absence of challenging behavior, diagnostic reversal, and happiness) are formidable motiva­tors which may shape behavior away from embracing science, with its effortful and often plodding pace, and toward an acceptance of pseudoscience which promises greater results than science with, usually, significantly less effort. As noted by Tavis (2003), “Pseudoscience is particularly attractive because [it], by definition, promises certainty, whereas science gives us probability and doubt. Pseudoscience is popular because it confirms what we believe; science is unpopular because it makes us question what we believe,” (p. xv-xvi).

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Pseudoscience, then, in behavioral terms, would appear to offer up some pretty powerful reinforcers for its acceptance.

So if I understand this phenomenon, and even acknowledge its impact on my own behavior, why do I continue to argue in support of the slow pace of science and against the, admittedly attractive, “quick fixes” often offered by pseudoscience? The answer is simple: It is because I do understand the phenomenon and can acknowledge its impact on my own behavior that science and the scientific method, need to be championed. The competing reinforcers are powerful, yes, but to do otherwise, I am sorry to say, is a poor use of valuable, effective and, often, scarce resources.

On a weekly basis I put my three dollars to poor use. True, but the downside is pretty minimal. Divert­ing our attention from effective interventions however, is a regrettable use of the learner’s time, a good teacher’s abilities, scarce fiscal resources, the talents and training of speech pathologists, behavior analysts, and any number of related support personnel and, of course, the energy and enthusiasm that families will need to meet their children’s needs across, in many cases, a lifetime of challenges and possibilities.

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We should not be willing to waste any of these resources. The downside here, it seems, is pretty significant.

This brings us to the research mission of the Organization for Autism Resarch: raise money, fund research, change lives. OAR has raised millions of dollars in applied research to benefit learners with ASD and their families. That is pretty significant by any measure. But now comes a challenge: the application of research to change lives.

If good research is to compete (yes, compete) with the promises and testimonials of pseudosci­ence, it needs to be able to be translated into practice both easily and effectively.

Yes, there continues to be a need to educate consumers (family members, professionals, etc.) about how to access and assess good research, and best evaluate potential interventions. However, there is also a need for members of the research community to make every effort to ensure that their research is accessible (e.g., readable, practical, relevant, etc.) to those who are the intended beneficiaries. If we fail to meet this challenge, researchers will continue to congratulate each other on their elegant designs and important outcomes, and the reinforcers associated with adopting pseu­doscience will remain a powerful force within the autism community. Good research is only part of the goal. Good research that translates into practice and has the potential to improve lives: that is the true goal.

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Embracing science in autism treatment is not about accepting less. It is, in fact, about demanding more.

The use of evidenced-based interventions is not about ignoring the complex diversity that is the spectrum. It is, instead, about respecting each individual as worthy of our best efforts, which means the provision of instruction, assessment, intervention, services, and supports that science has shown to be the most effective.

References

Tavis, C. (2003). The widening scientist-practitioner gap: A view from the bridge. S.O. Lilienfeld, S.J. Lynn, and J.M. Lohr (Eds), Science and Pseudoscience in Clinical Psychology, (pp ix-xviii). New York: The Guilford Press

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Should I Tape Record the IEP Meeting?

Published on January 24, 2010 by Jennifer Laviano

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In my special education law practice in Connecticut, parents ask me all the time about tape recording their child’s IEP Team meetings.   Like most things, there are benefits and detriments to doing so, and I have heard parents’ attorneys and advocates come down on both sides of the question.  Some record each and every IEP meeting they attend with a client, and have very compelling reasons for doing so, as outlined in this excellent analysis on Wrightslaw.  Others feel it creates a far too adversarial tone and never record IEP Team Meetings.  Still others, like myself, suggest recording the meeting under certain circumstances, but not others.

There are two key questions:  can you record the IEP Meeting, and if so, should you?

In Connecticut, we have two court rulings in favor of a parent’s right to tape record IEP Team Meetings (one case where English was not the parent’s native language, and another where the parent required the tape as an accommodation for her own disability; both decisions are cited in this letter on the permissibility of recording IEP Team Meetings from the United States Department of Education’s OSEP), and so I never hear districts claim that it is not permitted here.

However, there are some places where the tape recording of IEP meetings is not generally allowed.

There is no federal guarantee to be able to record IEP Meetings, but as the OSEP letters clarify, even where a State has a policy limiting or prohibiting it, there must be exceptions provided if recording the meeting is necessary to ensure that the parent understands the IEP process or to “implement other parental rights.”  If you are receiving any resistance to recording your child’s IEP Team Meetings, ask for a written copy of their policy; in my experience, most of the time it either doesn’t exist, or doesn’t say quite what you’re being told it says.

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NEVER, EVER record an IEP Team meeting without telling the people in the meeting!

To begin with, in many States it is illegal to record someone without their knowledge, and you could be subject to civil or even criminal penalties for doing so.  You could get yourself in real trouble, and the recording will then probably not be of any use to you anyway.  And even if you don’t live in a State where recording someone in this fashion is illegal, I would guess that most hearing officers and judges would regard a parent who deceptively recorded the meeting with a great deal of suspicion.  Finally, and as importantly, if your school district finds out you did it, you will have seriously damaged any hope of a trustful relationship going forward, probably permanently.

Once you figure out whether you are permitted to record the meeting in your school district, you need to decide if it’s a good idea to do so.

There are a number of things to consider when making this decision.  In my practice, if the parents have usually recorded their meetings prior to my involvement, I suggest they continue to do so when I go with them.  If they haven’t, then I make a judgment based on my experiences with the school district in question, their counsel, and the unique circumstances of the case.  There are simply some districts or cases where an official record of the meeting is essential.  Sometimes, however, people speak more freely when they are not being taped, and that can help you.  It all depends on the case, and if you have your own attorney or advocate working with you, you should probably defer to his or her judgment on this, which will likely be based on an assessment of the situation in your own locale.

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If you do decide to record the IEP meeting, how should you go about it?

In my office, if we are going to record, we give the district notice whenever possible so that they may also record the meeting if they choose.  It is important to remember that, when the school district records the meeting, whether the parents are recording or not, the recording becomes part of the student’s educational records, and therefore the parent would have a right to inspect or review it.  Try to have the most reliable and quality equipment you can afford, with one caveat:  it always makes me uncomfortable when my client has a fancy, expensive little high-tech gadget and the school district drags out their large tape recorder that looks like a VCR…especially if the dispute is over very expensive services.

Many people feel defensive when they know they are being recorded.

Your relationship with your child’s school should determine the tone with which you begin recording.  If you have a good relationship, I’ve found it will diffuse some of the tension if the parents make a comment like “these meetings go by so quickly with so much information, this really helps me to be able to break it all down later,” or if only one parent is in attendance they can note that the recording will keep the other parent informed.  Of course, if you are in an active dispute with your district, it might not be so cordial, in which case simply make a statement like “I am going to begin recording now.”   In any event, it is essential that the very beginning of the recording begin with an introduction of all of the people in the room so they can later be identified.

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Can you use the recording later in a Due Process Hearing?

As with the introduction of any evidence, there are certain legal standards which need to be met in order to enter into “the record” a recording or a transcript of the recording, and this is no different.  When we do record the meeting, I have it transcribed by the court reporting service who has a contract with the State of Connecticut for our special education Due Process Hearings, which I’ve found makes it hard for school districts to challenge the quality and reliability of the transcription.

If recording IEP Team Meetings is permitted where you live, you need to decide whether the need for an accurate account of what happened at the meeting is worth the potential for offending some of the team.

The fact is that some people will take this move as aggressive, whether it’s intended to be or not.  Sometimes, that is exactly the message you want to send; but if it’s not you need to be careful about how you present it.  If your decision is to record the meeting, be sure that you remember that this is a knife that cuts both ways, and you don’t want to say anything at the meeting that you would later regret if it were played back to you.

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It’s a New Year, So Sue Me

Published on January 6, 2010 by Jennifer Laviano

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Getting school systems to either fund additional special education services, or to reimburse parents who pay for necessary services themselves, has always been an uphill battle.  The reasons are numerous, but money is without question at the top of the list.  That’s nothing new.  However, over the years, most reasonable school district lawyers, and special education directors, have come to realize the practical realities of hashing out legal disputes, as opposed to settling the case with the parents.

Often, the expense to both the school system and the parents to litigate the case will exceed the cost of the requested service or evaluation.

It simply doesn’t make any sense for either side to take those risks when an amicable resolution can usually be reached, which typically involves both parties making some compromises.  For my part, I spend a great deal of time working with my clients to help them learn to pick their battles, and to see the “big picture” instead of focusing on minor issues that are ultimately of little consequence.

Don’t get me wrong…there have always been, and there always will be, those cases that just can’t be settled.

Sometimes the principle involved outweighs financial considerations.  Other times the placement or services requested are expensive enough that it’s worth the risk to both the parents and the district to “roll the dice” on a Due Process Hearing.  And, sadly, there are those situations where the emotional investment of one or both parties is so strong that rational decisions are not being made…which is a nice way of saying that the parents and special education administrator hate each other so much that they can’t see anything other than each other’s head on a platter.

Such intractable situations make up the vast minority of cases, in my experience.  Of the hundreds of special education cases I’ve handled over the years, it’s fair to say that most disputes can be, and are, resolved without full litigation.

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But something is changing lately, and it should trouble anyone concerned about the rights of children with disabilities in our public schools.

Most attorneys who practice special education law on behalf of families use several formal opportunities (like Mediation) and informal ones (like discussions with the school board’s lawyer) to try to resolve a case, often before even filing for a Due Process Hearing.  Personally, my view has typically been this:  if a case is likely to be settled, let’s do that before either side has spent a ton of money on attorneys’ fees.

Once a party has spent a lot of money on their lawyer, it’s that much harder to focus on the disputed services, and with good reason.

Parents reasonably question why they are being offered the very IEP they have been requesting for some time, only because now they have a lawyer in the room.  It doesn’t seem fair, and it’s not.  Since it takes a good deal of time, and therefore money, to draft the Due Process Hearing complaint for filing, my perspective has usually been that it is more productive to try to settle the case before initiating the Hearing.  So, unless there is very pressing need to file first (which of course does happen), my practice of trying to “make nice” one last time before litigating has been an approach that has worked since I first started practicing.

However, in this New Year, I am seriously thinking about changing it.

This is because recently, and more and more often, I’ve seen an utter lack of genuine, good faith negotiation on the school districts’ part.  This has happened to clients of mine in completely different parts of the State, with a wide array of school districts, and with different law firms who represent them.  At this point, I think it’s fair to call it a trend.  Some of the ”offers” we’ve been getting have been so ridiculous that they border on laughable.

Can you repeat that please?

It’s not just that some cases haven’t settled that troubles me; that happens.  It’s the attitude.

The mood I’m encountering “out there” in IEP Meetings and Mediation is becoming increasingly hostile.  Hey look, it’s never been a love-fest.  I don’t know a lot of special education directors who are terribly happy to see me in any event; it’s an adversarial process and there’s a level of frustration, resentment, and even disdain that has always existed when parents are represented.  It’s not how I am treated that has changed; its how my clients’ concerns are roundly dismissed with two words:  “the economy.”

Anyone who is paying attention is obviously aware that the still sluggish economy is coloring the decision-making of any entity that has a budget.  It’s very hard to go in to a district arguing for additional services when dozens of educators’ positions have recently been eliminated.   I get it.  But I can’t help but feel that many administrators are using the poor economy as if it’s a “get out of jail free” card for failing to comply with IDEA.

The current financial climate seems to have pushed us into a special education backlash.

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Resentment on the part of some educators towards parents of children with special needs who have had the audacity to exercise their civil rights has been building for some time.  I talk to enough teachers, and hear enough “office chat” while waiting for meetings in the halls of our public schools, to know that.  The system creates a dynamic whereby parents end up being the functional enforcers of the IDEA…and more than a few administrators are sick of having to be so careful about how they handle special education students, and their parents.  They are sick of the paperwork, sick of the tricky procedural safeguards which many see as “mere technicalities,” and sick of being second-guessed by people like, well, people like me.  They have wanted to tell us all to pound sand for years, and now the poor economy is giving them a handy excuse.

If I thought for one minute that this approach was actually saving school districts money, it might feel less discriminatory.  But it doesn’t.

It might also feel less retaliatory if I were receiving resistance from districts only on those marginal, “judgment call” kinds of cases.  But even on cases which are clear, where the school district should genuinely be grateful that they have the opportunity to resolve the case, rather than have to answer for what they’ve done, or failed to do, we’re getting “nuisance value” offers.

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The message being sent by many special education administrators is that they’d rather be ordered to provide the service than do it voluntarily.

They are practically screaming:  “Take it or leave it.  You don’t like it?  So sue me!”

To that I say:  “be careful what you wish for.”

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Side Effects May Include Dry-Mouth

Published on December 27, 2009 by Jennifer Laviano

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Am I the only one who yearns for the days before drug companies had ads on television?  Remember, back when, if your doctor thought you needed a medication, she would prescribe it?  Today, you are practically begged to self-diagnose, and only then ask your doctor “if it’s right for you.”  Serious psychiatric conditions are reduced to cartoon characters, which is only trumped by the odd discovery that, apparently, the world’s greatest aphrodisiac is a bathtub on a beach.

While I find most of these advertisements irritating, I do rather enjoy listening to the muted, quickly-read list of potential side-effects, especially when the medication being peddled is to treat something relatively minor…as in “we can reduce your toenail fungus by 80%, but it might cost you your liver.”

Okay, so what does any of this have to do with special education law and advocacy?

I’m getting there.  I have always faced the “we can’t afford it” argument from school districts when the parents have hired counsel and are trying to resolve their disputes.  But lately, it has reached a fevered pitch.  Virtually any discussion or meeting with a school these days, or with their counsel, includes the following phrase “with the economy as it is…”  When I hear administrators complain about the costs associated with reimbursing parents for disputed services, I can’t help but think that, just like those medication side-effects, the remedy ends up being so much more risky and costly than the original problem.  And why?

Because, ultimately, if the school system had just COMPLIED WITH THE LAW TO BEGIN WITH, they wouldn’t be in a position to have to reimburse parents!

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In the many years that I have been practicing special education law in Connecticut, I can tell you that in the vast majority of cases, disputes could have been avoided years before the parents brought in a lawyer.  And the kicker is that the blueprint for doing so is right there in the IDEA.  When parents call me, it’s usually because there is either a crisis, or something close to it.  Yet, in probably 8 out of 10 cases, when I read the file, I can point to several points in the student’s education where basic compliance with the IDEA would most likely have resulted in earlier evaluation, and therefore intervention.  Instead of doing that, however, the administration has sat back and hoped the “problem” would just go away.  When it doesn’t (and it usually doesn’t), the situation has become urgent…and therefore much, much more expensive.

Astoundingly, some school systems have been willing to spend millions…that’s right MILLIONS of dollars in legal fees battling one family, rather than putting that money towards much needed special education services!

So, leaving aside that providing meaningful educational opportunities to children with special education needs is a matter of Civil Rights; leaving aside that it is mandated by IDEA; leaving aside that our priorities as a society surely must include providing necessary skills to our must vulnerable kids; even leaving aside the fact that doing so is the right thing to do…ultimately, compliance with the special education laws is the fiscally sound thing to do.

Next time you are at a cocktail party, and someone complains about the costs associated with special education services, ask them how costly they think a lifetime of government dependence will be.

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You’re Not Invited

Published on December 15, 2009 by Jennifer Laviano

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How is it that, in disputes between parents and school districts, whenever an IEP Team Member starts to align their recommendations with the parents’ position, they suddenly stop getting invited to that child’s IEP Meetings?  In my Connecticut special education law practice, I see this all the time.

Example 1:  the parents believe that their child has a reading disability, and have been asking the school to test her for dyslexia.  The regular education teacher attends the meeting, and states that he has noticed that the child is seriously struggling in his classroom with written material.  The next time the IEP Team meets, guess who is invited to participate as the regular education teacher?  Mrs. Smith, who teaches math.

Example 2:  the student has been diagnosed with an autism spectrum disorder by a private evaluator, at the parents’ expense.  The school district does not agree with said diagnosis.  At the IEP Team meeting, the speech pathologist indicates that she is concerned with the child’s pragmatic language and ability to appropriately interact with peers, based on an observation she made of the student in his classroom.  The next time the IEP Team meets, the speech pathologist from the other elementary school is invited, instead of her.

Example 3:  a teenager with Bipolar Disorder has been spiraling out of control for months.  The parents usually get a phone call around lunch time, asking them to pick their son up.  For many weeks, he has been going to his morning classes without incident, but by mid-day he becomes agitated to the point where the school can not handle his behavior.  A question has been posed to the IEP team as to whether this student requires an IEP based on an Emotional Disturbance.  Which teacher is invited to attend the IEP meeting?  The one who teaches first period.

Example 4:   after many years of disagreement as to whether Occupational Therapy services are required, the parents finally request an Independent Educational Evaluation at public expense in the area of OT.  The outside OT recommends 1 hour per week of direct OT services in a written evaluation report which was distributed to the parents and district weeks before the IEP meeting.  Instead of inviting the independent OT to the IEP meeting to discuss her findings, the school invites their own OT; the one who never thought the child required OT to begin with.

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So, here’s what you need to know:  as a parent, you have the right to invite whomever you believe is necessary to your child’s IEP meeting.

The IDEA states plainly that, in addition to the required school staff, the IEP Team should include…

at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related service personnel as appropriate…”  20 USC 1414 (emphasis supplied)

This means that parents have the discretion to invite any person they believe has special expertise regarding their child to the IEP meeting.

If you get the IEP Team Meeting Notice or Invitation from your school district, and individuals who you believe should be invited are NOT, then you have the right to ask that they be included.  I suggest you make that request in writing.   It’s a tougher case when it’s an outside, private evaluator who has not been invited, as those individuals typically charge for their time, and if the parents invite them they are likely to be billed for it.  However, even in those cases, I recommend that the parent request that the evaluator be invited by the district, at district expense, to share their findings.

Bottom line:  pay as much attention to who the school isn’t asking to attend the IEP Team Meeting, as you pay to who is invited.

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It Really Is About the Child

Published on December 13, 2009 by Jennifer Laviano

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I was pleasantly surprised to receive an email this week, informing me that my blog was listed in the Top 50 Blogs for Special Education Teachers.  I’m sure you can figure out why I was pleased…but perhaps you’re wondering why I was so surprised.

To start with, my blog is fairly new, so I was incredibly honored to have my blog selected under the category of Special Education Law alongside veterans in the field, like Wrightslaw.  But even more than that, I really didn’t think that my blog would be a natural recommendation for special education teachers to read, since, well…let’s face it, I often have some not so nice things to say about some special educators.

Sure, I try very hard to emphasize how important it is to remember that most of the professionals who choose to work with children with disabilities are doing the right thing, and I regularly remind parents to keep perspective, that there is good on both sides of the fence, and that many teachers are put into very difficult positions by administrators.  However, I think it’s fair to say that, given my position as an attorney who represents children with special needs, I typically volley more criticism than praise at special education teachers.

Yet, when I shared my surprise with colleagues, I got some really enlightening comments…especially from special education teachers who read my blog regularly.  One such teacher indicated that he views my posts as examples of “what not to do,” and another told me that she feels empowered by the information which she gets.  What I learned was that many special educators consider my perspective valuable, even when they disagree with it.  Most know that there are “bad apples” among them…just as any professional who is honest would acknowledge about their profession, and they understand that while parents and educators can disagree, it really is about the child.

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But none of this compared to thrill of the communication I had from one teacher who read my post about the teacher who recently won a legal battle with her school district for retaliating against her when she complained about how children with disabilities were treated.   She told me that reading that she has the right to be free from discrimination by her bosses if she advocates for her students has allowed her to feel like she can possibly speak up at IEP meetings.

All of this put me in a pretty hopeful and positive mood, which is a far cry from my initial thought about why my blog had been selected, which was precisely this:  “keep your friends close, and your enemies closer.”

It turns out knowledge is power, for adults as well as kids!  And that, my friends, is its own reward.

Filed Under Current Affairs

Knock It Off!

Published on December 3, 2009 by Jennifer Laviano

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I’ve previously discussed ways in which school districts can try to drive a wedge between teenagers and their parents in a manner which benefits the school.  But I have been seeing so much more of this lately, and in much worse ways, that I felt the issue needed revisiting.  Just in the last few months, I have learned of some outrageous examples of school districts trying to undermine a parents authority with students, including “your parents want to put you in special ed” and “did you know your father wants to send you to a private school?”

If “well, your parents want us to…” is the beginning of any sentence delivered to a child with disabilities by a teacher or administrator, trouble is on the horizon unless the parents have actually authorized this conversation.

What is the common thread in these comments?  Well, it seems to be that the parents are advocating for more support or services on their child’s behalf, and the school is trying to avoid providing it.  What better way to do that than to plant the seeds of disagreement in the child himself, so that he can go home and fight with his parents about how he doesn’t need it?  This is especially effective when dealing with older students, who are usually sensitive to anything that might make them appear “different.”

Educators who decide to utilize this strategy make me want to cry.  It so saddens me that these adults must, at least on some level, share the very worst preconceptions about individuals with disabilities, because they exploit all of the fears and perceived stigma associated with special education.

Most of the time, though, my sadness passes, and then the outrage and anger set in.  That’s about the time that I send a letter to the school district’s attorney, reminding them how much such behavior smacks of retaliation.

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This behavior has to stop.  Few things could be more harmful than undermining a parent’s respectability with their own child…especially if that child is already vulnerable and struggling.  Moreover, does not the school recognize how dangerous it is to send a message to its students that there are some adults in authority whose rules they should follow, and others whose rules are optional?  That’s just not going to end well for anyone.

Until a student reaches the age of majority, educational decision-making lies with the parents, and they are authorized by the IDEA to act on their child’s behalf until the transfer of rights.

Any discussions with students about what the adults in his or her life might be arguing over in this regard should be handled with the knowledge, involvement, and agreement of the parents.  Otherwise, it will be hard to interpret attempts to erode the parent/child relationship in order to avoid having to fund additional services as anything other than coercion.

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The Autism File Magazine Publishes Article on Bullying

Published on November 27, 2009 by Jennifer Laviano

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Enforcing Mediation Agreements

Published on November 23, 2009 by Jennifer Laviano

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We’ve covered whether to attend a Mediation.  There are benefits and risks, but generally it is a forum which I recommend, where appropriate.

But what happens if you’ve already attended one, reached a Mediation Agreement, and the school district isn’t honoring it?

Unfortunately, in my special education law practice, I am regularly contacted by parents of children with disabilities who have previously resolved some or all aspects of their disputes with their school districts, but who are now finding that the school is not complying with the terms of the Agreement.  Many of these parents feel extremely disappointed and betrayed, having tried to re-establish trust with their child’s educators, only to have been met with broken promises.

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The good news is that, in 2004 when the IDEA was last reauthorized by Congress, the Statute was changed to provide for the automatic enforceability of settlement agreements reached at Mediation.

IDEA 2004 provides that, if a resolution of a complaint is reached

through the mediation process, the parties shall execute a legally binding agreement that sets forth such resolution that — (i) states that all discussions that occurred during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearings or civil proceeding; (ii) is signed by both the parent and a representative of the agency who has the authority to bind the agency; and (iii) is enforceable in any State court of competent jurisdiction or in a district court of the United States.”  20 USC 1415 (emphasis supplied)

This means that, if you enter into a written agreement at a Mediation with your school system, and they fail to do what they agreed to, you can go straight to court.

The usual requirement of “exhausting administrative remedies” through a Due Process Hearing applies to the presentation of any complaint regarding the evaluation, identification, or provision of special education and related services to a child.  But the IDEA 2004 required that resolution of those complaints through Mediation Agreements should be legally binding in and of themselves, directly in Court.

How important is this change?

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Well, since IDEA 2004 went into effect, I’ve had to threaten districts with going to Court to have Mediation Agreements enforced, but I have not had to file in Court to enforce one.  Not one!  The straightforward language of the statute alone typically results in compliance.

Now, the hard part is getting a good Written Agreement in the first place!

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“They Should Tell You This is Part of The Job!”

Published on November 16, 2009 by Jennifer Laviano

Ethnic Young Woman is Wishing for Something

Several years ago, I was cross-examining a teacher in a Due Process Hearing.  It was a pretty hotly contested case, and we were several days into testimony.  The student (my client) had severe dyslexia, which had been identified fairly early into her education.  Unfortunately, the interventions provided by the school district had been pretty ineffective.  When I was hired, she had reached middle school, was still not reading fluently, and she was simply not equipped to handle the largely mainstream program the school district had recommended.

All of the credible evidence in the case, including even the school district’s own testing, demonstrated that the child required a far more intensive program than was being offered.

By the time the special education teacher had been called to testify, the writing was pretty much on the wall.  I believe even the school district’s attorney knew that the case was not going their way.  For this reason, if no other, I really almost felt badly for the teacher, who was being given the impossible task of resurrecting a pretty horrible case on the school district’s behalf.

Even worse for her, this was a new teacher.  She wasn’t tenured, and she didn’t have a lot of experience.

Obviously, this didn’t help the school district’s case, since it was evident from the record that the student’s special education needs were great.  In fact, the district had tried to explain the student’s well-documented lack of progress by focusing on how severe her dyslexia was.  But this only invited the question:  “why would a school district assign one of its most challenged and complicated students to a brand new teacher?”  Having the newbie teacher take the stand only underscored the fact that the program was inappropriate.

Of course, the teacher hadn’t assigned HERSELF to the case; that was the decision of the administration.

And yet, who was the person the school district called to the “hot seat” to testify?  The special education director, who’d made this horrible decision?  No.  The Board’s attorney presented instead the new teacher, who had virtually no experience actually teaching kids with disabilities, let alone having to defend herself in a legal proceeding about it.

Not long into my cross-examination, it became quite clear that she knew very little about my client, or dyslexia for that matter.

Tired business person with headache in work

And then she started to cry.  Now, despite my passion for the rights of kids with special needs, and my sometimes tough demeanor, I really don’t enjoy making people cry.  Especially nice, wide-eyed new teachers who think they’ve taken on the greatest job in the world because they are going to shape our future.  If I’m going to make someone cry on the stand, I’d much prefer it be a seasoned, lying, mean-spirited administrator.  That I don’t mind.  But a brand-spanking-new teacher who was given zero support to educate a student with complex needs?  Not so much.

The crying itself was awkward for all, but it certainly wasn’t the first (or last) time I’d made a witness cry.  What was really memorable was what the teacher said after she was done crying.

“They should tell  you this is part of the job,” she said.  “They should tell you when you go to school to become a teacher that being a witness in Hearings like this is part of the job!”

And you know what?  She was right.  100% right!  Colleges and universities SHOULD tell teachers that knowing the rights of kids with disabilities is part of the job.  It should be part of their training to become a public school teacher.  For teachers who went to school before knowing the school district’s legal obligations to children with disabilities was necessary to perform the job, the school should be providing them ongoing training.  Further, responsible Board attorneys should be providing “in-service” training to special and regular educators as part of their representation, instead of simply coming in after mistakes have already been made.

It is rarely the teachers who actually work with kids with disabilities who make the decisions about what they will be provided.

But they may have to defend those decisions anyway.

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