10 Special Ed “Back To School” Readiness Questions

Published on August 30, 2010 by Jennifer Laviano

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It’s “back to school” time!  While many of my clients receive Extended School Year (ESY) services over the summer, I have learned over the years in my special education law practice that, regardless of whether your child receives ESY services, a number of things can occur over a summer that might impact his or her special education needs.  Those changes may well call into the question the appropriateness of his or her special education program for the regular school year.  Since a child’s IEP is typically developed at the end of the prior school year, it is very important that you review and revisit the question of its appropriateness in the Fall.

Significant changes in a child’s performance, behavior, or diagnosis might necessitate revisions to the IEP, or might even demonstrate the need for one if none presently exists.

Following is a list of 10 questions which you should ask yourself right around the beginning of the new school year.   Significant progress or regression might require a change in the program, or at minimum a revision of the annual goals.  It is your right as a parent to ask that an IEP Team Meeting be convened, even if it is not time for your child’s Annual Review.

If the answer to any of these questions is “yes,” it is probably a good time to ask for an IEP Meeting to review your child’s new program and placement:

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1.  Have you obtained or received any new evaluations of your child over the summer?

2.  Have you obtained or received any new diagnoses of your child over the summer?

3.  Did your child make significant progress over the summer?

4.  Did your child regress over the summer academically, behaviorally, or functionally?

5.  Were there any important changes to your child’s medications over the summer?

6.  Is your child about to turn 16?  If so, double check the IEP to make sure that his or her IEP includes proper Transition Services and goals.

7.  Is your child about to reach the age of majority?  If so, has anybody from the public schools discussed the Transfer of Rights with him or her?  If you don’t believe your child is capable of making his or her own educational decisions after the Transfer of Rights has occurred, it is time to take the appropriate and necessary legal action to secure legal decision-making authority for him or her.

8.  Did the IEP Team which met at the end of the prior school year recommend any testing, reviews, or follow-up in the Fall?  If so, it’s time to get that meeting on the books now.

9.  Are there any unexpected changes to your child’s program or school that were unknown to you at the prior IEP meeting?

10.  Did new concerns, behaviors or issues develop in your child over the summer which were not discussed at the end of the year IEP Meeting?

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Just as you get ready with new clothes and supplies, so too should you be considering whether you are “special education ready” for the new year.

Unfortunately, I have seen so many cases where year after year is lost because matters “slipped through the cracks” or because it took longer than necessary for the IEP Team to get together to review updated information.  If you are diligent about considering these issues early into the school year, every year, you are far more likely to have positive results.

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Phoebe Prince, Bullying, Disabilities, and the Eggshell Skull

Published on August 10, 2010 by Jennifer Laviano

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There is a theory in the law known as the “eggshell skull principle”, which, in essence, means that a person who commits a wrongful act takes their victim as they find them.  For example, Person A hits Person  B over the head with a baseball bat.  Of course it’s an assault, but you’d also assume that it would cause serious injury to hit someone over the head with a baseball bat.  But what if the same scenario existed, but instead of Person A assaulting Person B with a wooden bat, they use a plastic baseball bat?  It’s an assault nonetheless.  Now, add another fact:  the victim has an “eggshell skull,” and what could be a minor injury to the average person will, in this person’s case, actually result in serious injury or death.  Whose fault is it?  The law generally presumes that, in the case of the Eggshell Skull, the victim should not be penalized for being especially vulnerable; rather, it should fall upon the wrongdoer to accept the consequences of his or her wrongful actions, EVEN IF they were not necessarily predictable.  It’s a lesson most of us study in law school.

You take your victims as you find them.

And so why on earth am I giving this information to the vast majority of my readers who will never go to law school?

Because I found myself swearing at the TV again recently, and this time, it was because of a very public case that has served to open our eyes to the issue of bullying, the tragic Phoebe Prince case.  When the news of Phoebe’s suicide and the subsequent arrests of her classmates who are accused of bullying her surfaced, I had the mixed emotions that I imagine many of us who deal with “bullying” on a regular basis had.  I was sad and outraged that another young life should be lost to something I genuinely believe is preventable by responsible parents and school districts, and simultaneously grateful for any national attention that could be garnered on this very important subject.

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Indeed, I even noticed a distinct shift in the seriousness with which school district attorneys were taking my special education clients’ allegations of bullying in the immediate aftermath of Phoebe’s very public suicide.

But then, I was working out on my stationary bike the other morning while indulging a guilty pleasure…watching the Today Show.  Suddenly the teasers came for the upcoming segment…”new revelations on the Phoebe Prince tragedy,” it read, or something like it.  The segment turned out to be an interview discussing the “shocking news” that Phoebe was, in fact, suffering from mental illness PRIOR TO being bullied by the kids at her new school, and had allegedly been hospitalized previously due to psychiatric issues.  It would be hard to interpret either the lead-in to the interview or the actual interview with the reporter who “uncovered” this information as anything other than this:

“WHEW!…so THIS is the TRUE reason this girl committed suicide…NOT because she was being bullied, but because she was mentally unstable!”

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If it’s possible to have a stationary bike accident, then I came damn close.

I do not know enough about Phoebe’s educational history to know whether she was evaluated for an emotional disability, and if she had one, whether it adversely impacted her education such that she should have been given an IEP under the IDEA.   However, I do know that at least a few of the alleged facts that have come out (she was hospitalized for swallowing a bunch of pills previously, left her prior school and community in order to have a “fresh start” at a new school, and was reportedly “checking in” with the school nurse and another counselor at the public school on a regular basis due to her history) are a few “red flags” for at least convening an IEP Team Meeting.  When a kid is struggling this much emotionally, it would seem that a psychiatric evaluation would be the pedagogically sound next step.

Sadly, the message the media seems to be sending based on the latest information is this:   “she was emotionally fragile, and therefore the kids who bullied her are not responsible for how she reacted.”

Folks, that Phoebe may have had an emotional disability does not make the fact of her suicide less reprehensible; it makes it more reprehensible.

I’ve explained the eggshell skull principle which seriously undercuts the argument that she is the one at fault, but let me add one more.  I’ll call it the “common human decency principle.”  How about this as a set of rules:  “when a kid is behaving as if they’re not thinking clearly, and is obviously in need of psychological help, we DON’T bully them.  We also don’t blame it on them when they behave as a person who is not thinking clearly.”

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How about that?

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The Calm Before The Storm

Published on June 29, 2010 by Jennifer Laviano

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I feel a little guilty for having neglected my blog most of this month, but the volume of IEP meetings, mediation, and Due Process Hearing commitments has prohibited me from writing much other than responses to Motions to Dismiss, 10 day notice letters, and a whole lot of nasty grams!

The month of June has left me exhausted, but not lacking in material.

As I’ve said before, the economy has created all sorts of new challenges for those of us who practice special education law here in Connecticut and throughout the country.  What were already big fights have gotten bigger, and it seems that more cases are headed for litigation than ever before.  How this will save money is a mystery to me, but that’s another conversation.

However, knowing that a case is headed to a special education Due Process Hearing can be a little liberating in a way, at least in terms of how the IEP Team meeting rolls.

Serenity

When I get involved in a case, I really do try to do everything possible to resolve the dispute amicably, utilizing all available opportunities under the law, and even trying new ones still.  But once all of those chances have been given to a school system to settle the case the nice way, and it hasn’t proven successful, I gear up for the fight.

I know, you’re wondering when I’m going to get to the liberating part.

When a special education Due Process Hearing has been filed, and the parents and the school district have already documented their respective positions in a formal piece of litigation, this does not mean that the requirement to hold IEP meetings is suspended.  In fact, school districts still should meet their obligations to hold them at least annually.  Therefore, we are sometimes attending Annual Review IEP meetings at this time of the year in the awkward situation of knowing precisely why the other side is in extreme disagreement with us about what constitutes an appropriate program for the child with special education needs.  Usually, Parents walk into their child’s IEP meetings with some sense of suspense, not quite sure what will be offered.

It’s hard to appear surprised by what the school district will offer at an IEP meeting, when the week before they outlined the program they think is appropriate to an Impartial Hearing Officer!

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As in:  “really, the fact that we have a Hearing pending in which we allege that you failed to identify my child’s need for occupational therapy has NOTHING TO DO with your refusal to offer it today?  Huh.”

So, in the midst of all of these unpredictable, contentious IEP meetings that I attend at the end of the school year, there are those handful of meetings which are eerily predictable, serene, and precise, because the parties are already embroiled in litigation, and therefore, know exactly what the other side will or will not do.

I call these meetings the “Calm Before the Storm IEP Meetings.”

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It’s hard to know who leaves these meetings more confounded:  the Parents or the school team.  But in my experience as a special education attorney here in Connecticut, when a Calm Before the Storm IEP Meeting is occurring, there are primarily two people speaking:  the Special Education Director, and the Parents’ lawyer.  The Board’s attorney is usually writing the Director notes.  And nobody else says a word.

While they can be a little unsettling, these Calm Before the Storm IEP Meetings are sometimes also cathartic for Parents.  And this is where the liberation comes in.  After years of playing nice, and diplomatically choosing just which people to compliment when, and where it’s okay to push-back; after years of kindly pointing out how little progress the Parents are seeing in comparison with the blossoming of the child that is being reported by the school team; after years of hoping that their input and concerns and insight might be taken seriously, the Parents are finally able to just be openly candid about how they feel.

Which is that they totally, completely, and officially disagree!

And yes, that can feel pretty darn good.  At least until the Hearing.

Storm Ahead

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The “Dream” Program

Published on May 29, 2010 by Jennifer Laviano

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So, I already have a page of Ridiculous Comments made by school district personnel, and their lawyers.  But lately, I’ve decided that my clients have some doozies also…so I’ve created this page:   Truly Funny, Sad, Insightful, or Outrageous Quotes From Parents.

My clients inspire me.  They really do.  I can not imagine how they manage to simultaneously care for their child’s (or sometimes children’s) special needs AND take on their school districts in a legal battle.  In addition to inspiring me, they also inform me, surprise me, and yes, frustrate me.  This is all part of being a Parents’ special education attorney.

As I often do on my blog, I will modify some of the information on this page when it’s necessary to protect the identity or interests of the child or parents.  Not all of these quotes will necessarily put the parents in the best light; however, when that’s the case, I hope to provide information as to how the situation could be rectified.

Many of these statements are ones that have stayed with me for years.  Some are very new comments I’ve heard from parents.  These quotes are from clients, prospective clients, and parents of children with disabilities I meet in Connecticut and throughout the country whom I will never represent.  I hope you will find them as interesting as I have…and if you have a great one to share, please email me or post a comment!

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The Dream Program

Whenever I am trying to assess whether I want to take on a case in my Connecticut special education law practice, I conduct what I call an “intake interview” of the parent or guardian.  In that interview, I have a number of standard questions I ask…and one of them is this:  “what program is the school district offering?”

This question is usually posed after I’ve already heard the background of whatever dispute has led the parents to call me, after I’ve been privy to a detailed description of how and why the child with disabilities is struggling.  By this point in the discussion, I’ve already heard the parents explain how the student needs more, isn’t learning, is falling apart, and how the parents and many other people are recommending something very specific to intervene.

I’ve been doing this a long time, and sadly, it takes a lot to surprise me.  And while I am one of those people who can find humor in almost anything, there are really few people who can make me laugh out loud.  So you can imagine my delight one day, when I asked a mother the standard question “what program is the school district offering?”, and this was her reply:

“It’s this really great, imaginary program.”

I laughed out loud!  I am still laughing!  And if you’re the parent of a child with disabilities who has been on the receiving end of such proposed imaginary programs, you’re laughing too!

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Really.  Enough said.

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Connecticut Enacts Important Autism Legislation

Published on May 6, 2010 by Jennifer Laviano

Connecticut State Quarter

Another late night at the Capitol last night, showing support for the passage of HB 5425.  Around midnight, just before the legislative session ended, the Senate voted by consent (unanimously) to pass HB 5425.  Yes, this is the same bill that previously included very concerning language regarding Connecticut’s Burden of Proof in special education due process hearings.  However, thankfully, that language did not make it into the version of the bill which the Education Committee presented to the House.  So, the bill as voted upon by the Senate last night, and presumably signed into law by the Governor in the next couple of weeks, thankfully leaves the burden of proof untouched.

What’s more, this new piece of legislation offers much needed protection to students with autism spectrum disorders, to make sure that people who are providing ABA (applied behavior analysis) services to them through their IEPs are actually credentialed to do so.

Document

The specific language of Section 2 of HB 5425 to which I refer reads as follows:

Sec. 2. (NEW) (Effective July 1, 2010) (a) On and after July 1, 2012, a local or regional board of education that is responsible for providing special education and related services to a child, pursuant to section 10-76a of the general statutes, shall provide applied behavior analysis services to any such child with autism spectrum disorder if the individualized education plan or plan pursuant to Section 504 of the Rehabilitation Act of 1973 requires such services. (1) Such services shall be provided by a person who is, subject to the provisions of subsection (b) of this section, (A) licensed by the Department of Public Health or certified by the Department of Education and such services are within the scope of practice of such license or certificate, or (B) certified by the Behavior Analyst Certification Board as a behavior analyst or assistant behavior analyst, provided such assistant behavior analyst is working under the supervision of a certified behavior analyst. (2) A teacher or paraprofessional may implement the individualized education plan or plan pursuant to Section 504 of the Rehabilitation Act of 1973 providing for such applied behavior analysis services, provided such teacher or paraprofessional is under the supervision of a person described in subdivision (1) of this subsection. For purposes of this section, “applied behavior analysis” means the design, implementation and evaluation of environmental modifications, using behavioral stimuli and consequences, including the use of direct observation, measurement and functional analysis of the relationship between the environment and behavior, to produce socially significant improvement in human behavior.

(b) If the Commissioner of Education determines that there are insufficient certified or licensed personnel available to provide applied behavior analysis services in accordance with the provisions of subsection (a) of this section, the commissioner may authorize the provision of such services by persons who: (1) Hold a bachelor’s degree in a related field; (2) have completed (A) a minimum of nine credit hours of coursework from a course sequence approved by the Behavior Analyst Certification Board, or (B) coursework that meets the eligibility requirement to sit for the board certified behavior analyst examination; and (3) are supervised by a board certified behavior analyst.

(c) Nothing in this section shall be construed to require the inclusion of applied behavior analysis services in an individualized education plan or plan pursuant to Section 504 of the Rehabilitation Act of 1973.

For years now, I have been frustrated when I discover upon a little investigation that what the school district is telling my clients is an “ABA program” is, in fact, not.  Since so many schools know that parents of children with autism are requesting ABA services, far too many have just started calling the behavioral support they’re already providing ABA, even when there is no Board Certified Behavior Analyst (BCBA) remotely connected to the program.

Many of these faux ABA programs fall into the realm of “just because you say it, doesn’t make it so.”

(There is a corollary of the “faux ABA” approach, by the way, which is when a BCBA actually IS connected to the program, but the school district only authorizes their involvement on a very occasional, limited basis…like say twice a year for a half an hour to consult for 15 students.  I call this “diet ABA,” because it’s so watered down.)

Failing to have legitimately trained staff providing applied behavior analysis services is problematic for any number of reasons.

For example, if the Parents and the school are trying to ascertain whether ABA is an appropriate intervention for the student, it would be useful to know if the kid is, well, you know…actually getting it.  We also don’t want kids with disabilities to be  missing valuable intervention time while unreliable methods are being used.  And of course, there is the risk that school districts will spend much-needed resources on people who are claiming to have skills that they don’t.

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All of these factors came into play in an outrageous situation which is part of what became the impetus for the legislation passed last night.  A woman held herself out as qualified to provide ABA services to school districts, and she was written into several children’s IEPs to do so.  It appears she had absolutely no credentials, and had even fabricated degrees.  It further appears that the school districts in question did little to check into her background, even though she was paid over a hundred thousand dollars by one school district alone.  Nice.  She currently has a number of criminal charges pending against her.

Many of the children with autism who received services from this imposter are or were non-verbal.  They couldn’t tell their parents when something was wrong.  How very scary.

The Parents involved in that matter did more than just get angry; they got motivated and organized, and they sought to change the law so that this wouldn’t happen again.  Along with the extraordinary stewardship and vision of Suzanne Letso of the Connecticut Center for Child Development, the strong support of Connecticut’s Attorney General, and the ultimate commitment and hard work of many state Senators and Representatives, they got it done.  Good for them!  Special mention must go to Sen. Gaffey, Rep. Fleischmann, Sen. Duff, Rep. Lyddy, Rep. Abercrombie, and Sen. Crisco.  Having spent many hours in Hartford attending Committee hearings and other sessions, their tireless patience and interest has my genuine respect.

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Now, before all the spin starts and school administrators try to scare people about what this law means, let me be clear:  nothing in this new legislation requires that ABA services must be included in a child’s IEP.  It only says that, if the child’s IEP team decides they are necessary, they are to be provided by people with credentials.

Heck, we require that massage therapists have documented credentials; why not people  providing ABA to our most vulnerable children?

Now that we have this legislation passed, I guess the next step will be to make sure that school districts comply with it.   That and hoping that from now on, perhaps schools will be doing background checks on anyone who works with kids.  But that’s a different post.

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“But Quentin Tarantino is VERY Successful!”

Published on April 25, 2010 by Jennifer Laviano

As a parents’ special education attorney in Connecticut, I hear outrageous statements that parents are told by their school districts on an almost daily basis.  But, sometimes, I am told something that passes the realm of outrageous, and crosses into ridiculous.

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Such statements mislead or misrepresent the school’s legal obligations, and always in a way that benefits the school district.

After hearing so many of them, I decided to add a separate category to my blog just for this purpose, where I will post these ridiculous comments and explain why it likely violates IDEA.  Hopefully, if you’ve heard similar things from your district, next time around you will know better!

Today’s Ridiculous Comment

The comments I am getting from school district personnel at IEP meetings this year just keep getting more and more outrageous.  If the future of a child’s education didn’t turn on many of them, it would almost be funny.  Case in point:

Recently, I was attending a meeting on behalf of a client of mine who has a serious emotional disturbance.   Sadly, it’s a case not dissimilar from many I’ve handled in my Connecticut special education law practice.  The student is currently placed at a therapeutic school, and the parents are seeking reimbursement.   The kid’s history includes suicidal and homicidal thoughts, and a number of hospitalizations.

As is more common than not, the school district is underplaying the seriousness of the student’s emotional disability, in a transparent effort to avoid the financial responsibility of the residential placement.

So, here we are, with the school district’s special education teacher reporting on her recent observation of the student.  She is all excited about how my client is interested in film-making.  “It’s just great that she’s found an interest in something like that,” she gushes, “she told me she recently finished a short film!”

The child’s mother asks whether the special education teacher has actually ever WATCHED any of her daughter’s films.  The teacher said she had not.  “I wish you had,” the mother indicated, “because they’re very disturbing.  They are extremely, extremely violent.   They are really gory, like Quentin Tarantino kind of gory.  We’ve actually been working with the private school on this a lot.”

And here’s where the ridiculous comment comes in.

The special education director practically leaps over the table and says:  “but Quentin Tarantino is VERY SUCCESSFUL!  I mean, it sounds like a GREAT THING that she’s so interested in this!  Why would you want to stifle that?  In fact, I think this is something we should be putting into the IEP as part of her Transition Services.”

AAAAAAAAAAAAAAAAAHHHHHHHHHHHHHHHHHHHHHHHHHHH!!!!!!!!!

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It was all I could do to keep the parents in their seats.  “Yes, we understand how successful Quentin Tarantino is, but I think you’re missing the point,” I said.  “If she was just a kid interested in horror flicks, I assure you, we wouldn’t be here today.  It’s the fact that she’s a student with an emotional disability whose preoccupations with death are part of what necessitate her having to live away from home because she can’t be educated otherwise that’s the problem!”

Just because a student has a particular interest does NOT mean that we need to incorporate it into the IEP!  Some interests are not healthy or productive.

Look, I’m all for finding a student’s strengths, and capitalizing on them.  That’s part of what IEP teams are supposed to do.  But when administrators are so desperate to avoid financial responsibility for a therapeutic placement that they make a very disturbing hobby sound like appropriate vocational services, then trust me, we have far bigger problems than who’s paying for the placement.

Is it July yet?

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On Giftedness, Disability, and Public Perceptions

Published on April 20, 2010 by Jennifer Laviano

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So, I have been following the new series Parenthood with interest.  Yes, I loved the movie, and I like enough of the cast members to have tuned in.  But I started to commit to watching it weekly when I saw they were incorporating a story line about a family grappling with their child’s diagnosis of Asperger’s Syndrome.

I’ve had mixed feelings about how that’s been done, but generally, I think they’ve done a pretty decent job covering it.  If nothing else, they’ve shown how all encompassing facing such a diagnosis can be for the parents, and even the extended family.  Of course, I’ve found myself yelling at the TV a few times, also…especially when we are continually reminded how the parents are privately funding the necessary therapies and evaluations for their child, instead of, oh, I don’t know…HAVING THE SCHOOL DISTRICT MEET THEIR OBLIGATIONS TO IDENTIFY HIM AND PROVIDE SERVICES!!!

But I digress.

Tonight I was watching again, and this week a cousin of the child with Asperger’s is acting out in school.  In case you don’t watch it, here’s what happened.  The kid’s parents were called in by the teacher to discuss the concerns, and the parents went home and discussed the issue with their daughter.  The issue surrounded her fixation with a rubber band ball, and so her mother reached out to the sister-in-law whose son was just diagnosed.  The sister-in-law gives her the name of their doctor and offers to help in any way she needs.  (Again, where the heck is the school district in any of this????  Okay, it’s TV, but seriously!)

So, the parents take the little girl for an evaluation, which, again true to reality, is done in about fifteen minutes (no trying to get in for an appointment weeks in advance in TVLand) and the parents nervously come in for the findings.  Meanwhile, in the background, the parents of the cousin with Asperger’s have been, in a refreshingly honest discussion with each other, secretly longing to have other family members who can relate to their experiences raising their son, while feeling really guilty about longing for it.

Anyway, the office visit with “the doctor” basically results in a finding that the girl is gifted, and a hypothesis is given that it is likely her boredom in school that is leading to her misbehavior.  The parents are relieved, and more…they’re clearly thrilled with this news!  Moreover, they feel conflicted about how to break the news to the parents of the cousin who has Asperger’s.

I was starting to get irritated around this point.

Then, a few days later, at a birthday party for yet another cousin (hey, it’s a big family), the parents break the news to the other parents that the problem was giftedness all along.  The reaction of the parents of the cousin with Asperger’s is gracious and kind publicly, but privately the resentment is kind of clear.  I actually really loved that part of it…the honesty of siblings, their love and conflicts with one another, and the dynamics they have in dealing with one another’s children, and their “issues.”

I will also say that I think it’s great that a mainstream, prime-time Network TV show is tacking issues of disability head-on.  And I suppose I shouldn’t get greedy about it.

BUT…

I feel I have to make these points, because my children and husband were sleeping when I yelled this all at the TV, and at least I know some of you are reading this!

First…the implication seemed to be that the choices available were EITHER that the child had a disability, OR, she was gifted.  No possible consideration that it could be both!!  This upsets me on about a dozen levels, not the least of which is that it’s insulting to individuals with disabilities (as in “he isn’t special ed, he’s really smart!”), AND that this common mis-perception means that many kids who happen to be gifted and who also have disabilities are being shut out of necessary services.

Next, and importantly, raising a child at either end of the “bell curve” is not easy.

If you spend any time talking to parents of children who are gifted, you’ll soon discover that it’s not necessarily the great news you’d expect it to be.  Our schools are designed for the middle of that bell curve, and finding success within that system if you fall outside of the “norm” is a challenge, no matter what.  Plus, the legal protections available to children who are gifted, but who do not have a disability, are not nearly as comprehensive as other protections we have.

So the upshot…I really like the show, but if they’re going to take on the very tough task of exploring the nuances of raising children with special needs, I would REALLY appreciate it if they tried to avoid some of the stereotypes.  And “people with disabilities are not gifted” is one that has been around far, far too long.

Oh, and again…you know that school districts are required to evaluate and identify kids, right?

Sorry, I had to throw that in.

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First They Ignore You…

Published on April 17, 2010 by Jennifer Laviano

One of the most frustrating aspects of my job as a parents’ side special education attorney is trying to help my clients regain trust in the system.  Sometimes, this is nearly impossible.

As I’ve said before, by the time a parent of a child with special education needs has made the difficult decision to hire a lawyer to represent them in their disagreements with their school system, they are usually pretty burned.

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Very often, my involvement in a case results in the school district providing the services, evaluations, or program that the parent wants.  Many of my clients’ natural reaction is “why did it have to take me hiring a lawyer to get them to see it?,” and they’re right.

Yet, I still try to get the parents to see that it matters less how we got the district to “yes” than that we did, in fact, get them there.

Knowing, as I do, that in most cases the family will still have many more years ahead of them to try to plan special education programs with the same people that they are currently quite angry with, I really work hard to repair the relationship, when it’s reasonable.  I blog about this a lot too, asking parents to pick their battles, and to see the forest for the trees.

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So, given how much of my time is spent talking parents off the ceiling, few things piss me off more than when all of that hard work goes out the window because some nasty administrator decides to get spiteful in the middle of all of these precarious negotiations and affirm every evil thing that the parents had suspected about them!

Here in Connecticut, IEP season is in full swing, and since I attend about half a dozen Annual Review IEP meetings per week from now until the end of June, I’m rather used to finding myself more irritated than usual with the game playing that some special education administrators employ this time of year.

But regardless of that, it never ceases to amaze me how some of these Directors just can’t help themselves!

Just when I have a family ready to work cooperatively with them again, after years of having their rights ignored, their input overlooked, and their child’s program undervalued, it’s these (thankfully few) truly mean-spirited administrators who have to say or do something so horrible that I leave the room remembering one of my dad’s favorite sayings….

“Just because you’re paranoid, doesn’t mean they’re not all out to get you.”

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The truly power-hungry have a really twisted view of the world, wherein they are 100% right all of the time, and anyone who challenges them must not only be wrong, but attacked.  The irony is that, in my experience, these are the ones who secretly want the parents to sue them, because they relish the idea of battling with anyone who has the audacity to question them.

So as I drive home, I start thinking about one of my favorite quotes, by Gandhi:

“First they ignore you, then they laugh at you, then they fight you, then you win.”

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IDEA Hearings: A Hearing Officer’s View

Published on April 6, 2010 by Jennifer Laviano

I have known of BJ Ebenstein for years, but only recently did I have the honor of getting to chat with her about the important legal issues that impact children with special education needs.  Since I have found in my Connecticut special education law practice that most parents have no idea what information is, and is not, relevant to a potential special education Impartial Hearing Officer, I was thrilled when BJ agreed to be interviewed on this subject for my blog.  I am sure you will agree with me that her answers are both frank and informative.  It is my hope that having a glimpse into the perspective of a fact-finder in IDEA Due Process Hearings might inform both parents and practitioners alike.

Barbara J. Ebenstein, Esq. is a parent and an attorney with law offices in Scarsdale, New York.  Her practice focuses on the representation of parents in special education and related matters. Barbara is an adjunct associate professor at New York University where she teaches the graduate course in Education Law.  Barbara served as a member of the Disability Policy Committee of the presidential campaign of Barack Obama, and she served as one of the surrogates speaking on disability issues on behalf of the campaign.  Barbara also serves as an impartial hearing officer in New York City and Long Island, and as a Vocational Rehabilitation hearing officer.

Barbara has extensive experience conducting CLE for attorneys and workshops for parents, advocates, school personnel, and other professionals from Hawaii to New Hampshire.  She served as the lead instructor for the New York pilot site of the SEAT Project (Special Education Advocacy Training) and she serves as an attorney skills trainer for the Council of Parent Attorneys and Advocates (COPAA).  Barbara has authored articles on special education law from the parents’ perspective for numerous national publications.  Barbara served as Chair of the Council of Parent Attorneys and Advocates (COPAA) from 2005 to 2006.

Barbara J. Ebenstein holds a J.D. from Pace University Law School, a M.A. in Education from Teachers College of Columbia University, and a B.A. cum laude from Boston University

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Laviano: As a Hearing Officer, is it useful to you to hear the background of a parent’s relationship with the school district? If so, how far back to you want to go?

Ebenstein:  No. Generally, the parent’s relationship with the school district has little relevance to the legal issues before me. I know that parents and school district personnel often want to vent in the hearing. Some hearing officers let them vent to clear the air. But I find it more helpful to limit that kind of emotional and irrelevant testimony to focus the parties on the real legal issues between them..

Laviano:  Are there things that you hear parents say when testifying or presenting their case that make you either especially favorable to, or particularly critical of, their position?

Ebenstein:

Favorable information:

Parental cooperation

  • The parents permitted the district to evaluate their child
  • The parents gave the district full information about the problem, the child’s disability or medical condition, or the issue;
  • The parents gave the district an opportunity to resolve the issue early by being willing to attend a resolution session, PPT meeting, or other meeting
  • Parents provide proper medical treatment for their child

Non-favorable information:

  • Home issues, other than homework, that consume the hearing
  • Anger, assigning a personal motive to school personnel who have none;
  • Focus on the process or winning more than on the child and the child’s education
  • Parents who make the case about them
  • Parents who pursue a “non-case” that will make bad case law for others

Laviano:  What are the most important things you want to know about a child in order to decide what constitutes FAPE for them?

Ebenstein: I want to know not just the child’s areas of deficit, but also the child’s strengths and interests. I want to know the child’s school performance, including academic, social, behavioral, and other factors. I also like to know what already has been successfully tried with this child, and what already has been unsuccessfully tried with this child.

Laviano:  How do cases differ when parents proceed pro se? (on their own, without an attorney)

Ebenstein:  A case brought by pro se parents is completely different from a case brought by parents who are represented by experienced special education counsel. Impartial hearings have become more “legal” in nature over the last few years. They require a great deal of knowledge of a number of ever-evolving federal and state statutes, regulations, and case law. Pro se parents do not have the legal skills to present a coherent and cohesive case, organize proper evidence, cross-examine witnesses, and write a legal brief. Many parents who proceed pro se not only lose a case that they should have won, but they also establish bad case law that will hurt other families in the future. Parents have the right to proceed pro se, but I do not recommend it.

Laviano: What do you see as the most important development in special education law over the time you’ve been a Hearing Officer?

Ebenstein: The most important recent development in special education law has been the training of parents. Years ago, parents were overwhelmed and confused at IEP meetings. They had no idea about their rights or the educational needs of their children. Parents now join disability-related support groups, attend special education law workshops, and hire advocates and attorneys to advise them when necessary. Parents have become the main enforcers of special education law.

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Even a Broken Clock…

Published on March 25, 2010 by Jennifer Laviano

Broken Time

One of the hardest things about being a parents’ special education attorney is that there are times where you realize that the success or failure of the child’s case may depend on how capable the parent is at testifying.  That’s a tough pill to swallow.

But every once in a while, you have a moment where the parent is such a compelling witness, that you can’t help but smile when you see it dawn on the school’s attorney that the witness is winning the battle.

Several years ago, I had a special education Due Process Hearing which was one of those unfortunate cases where the relationship between the parents and the school district became extremely acrimonious.  The mother, who was incredibly insightful about her child’s disabilities and educational needs, was on the stand for days.  There wasn’t a thing she could say that didn’t generate hours of cross-examination by the school district’s very aggressive attorney.

At one point, at the end of a very long day of cross-examination, the mother casually noted in her testimony that a particular medical test had been suggested by one of the child’s private therapists.

She was asked if she’d ever had the test performed, to which she honestly answered she had not.  This led to nearly an hour of questioning by the Board attorney, all of which was designed to imply that this “failure to follow up” was alleged “evidence” of the mother’s inadequate parenting.  It was much ado about nothing, since there really could be no doubt that this particular mother was quite dedicated to her child.  Plus, nobody in the school had ever once asked about this test, or suggested that it be done, prior to the Hearing.  But the questions did make the mother feel awful.

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The day ended, and since cross-examination was not over, another Hearing date was agreed upon for a few weeks out.

Now, once your client is under cross-examination, it’s unethical for you, as a lawyer, to discuss their testimony with them.  This is an obligation I take very seriously, and my client knew it.  So she did not run by me her decision…which was to quickly get this one little medical test done before the next Hearing date.

So, here we are a few weeks later at the next Hearing session, and we pick up on cross-examination of the mother.  The Board’s attorney starts by reminding her where we were when we last left off in her testimony, and refers back to the medical test in question.

It went something like this:

“And you agree with me that you never had that test done, right?”

“No,” the mother says.

“No?”  the Board attorney asks.

“It has been done,” the mother says.

Well, this leads to fifteen minutes of “remember when you were here last and you said,” and “do I need to remind you of your testimony,” and “you testified when we were here last that you had never had that test done, was that not accurate?” until finally, the mother drops the bomb:  “yes, that was accurate as of the time you asked me the question at the last Hearing.  It is no longer accurate.”

“Are you saying you have had this test done since you were here last?”

“Yes,” the mother said.

“Why?” the school’s attorney asked.

“Because it was suggested that it was a problem that it hadn’t been done,” she replied.

“By whom was it suggested it was a problem that it hadn’t been done?” the lawyer asked.

“Well…by you,” the mother said.

By this point I’m on the verge of laughing out loud.

The Board’s attorney couldn’t leave it alone:  “are you saying, ma’am, that you got this test done because I asked you about it on cross-examination?”

To which the mother said:  “Yes.  I’ll take help for my son from wherever I can get it, even from you.”

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We won almost all of the Issues in the case.  And as it turned out, the medical tests did reveal some information which proved useful in planning for the student.

Hey, even a broken  clock is right twice a day.

You just never know from what source good ideas might come!

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