Connecticut’s Burden of Proof, Redux

Published on March 6, 2010 by Jennifer Laviano

Here we go again.

Last Spring, I wrote about how parents of children with special education needs in Connecticut, as well as their advocates and attorneys, organized to successfully oppose efforts by school districts to switch the Burden of Proof in Special Education Due Process Hearings from the school district, who has the burden now, to the party who initiates the hearing…which is, in almost all cases, the Parents.  That post ended with the following comment:

“Luckily, this latest effort by school districts to alter the Burden of Proof was unsuccessful, but those of us who care about the opportunity for parents to access their rights will likely need to remain vigilant on this issue, as I doubt it’s going anywhere for long.”

Well, it didn’t even take a full year.

This Monday, March 8, 2010, many of us will be back in the Legislative Office Building in Hartford, once again, for a Public Hearing on this same issue.  If the school districts are successful in changing the Burden of Proof in this legislation, they will be be making a process that is already so very difficult for parents that much harder, and upending a State practice that has been in effect for over a decade.

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Taking on a school district in a special education Due Process Hearing is an incredibly difficult task, even when parents are represented by experienced counsel, and have the means to hire experts to testify on their behalf!  The parents who fall into that category, however, are by far the minority.

Most parents can’t afford lawyers or experts.

Such parents are already facing an uphill battle, as their school district has special education teachers, school psychologists, occupational therapists, speech pathologists, physical therapists, social workers, regular education teachers, and administrators, all on their payroll, all of whom can testify on the school district’s behalf.  And remember, all of the education records and most of the evidence is within the possession and control of the school district.  Doesn’t it make sense that the Burden of Proof would fall properly on the school district, whose obligation it is to offer a Free and Appropriate Public Education?

The information as to how you can voice your opinion on H.B. 5425 follows, including how to write your legislators if you can’t be present.  The portion of the bill which affects the Burden of Proof in Due Process Hearings is found in section 3.  

The Education Committee will hold a public hearing on Monday, March 8, 2010 at 3: 30 P. M. in Room 1E of the LOB. Please email a PDF copy of your written testimony to chris.calabrese@cga.ct.gov by 10: 00 A. M. on the date of the hearing and include the word “TESTIMONY” in the subject line. Written testimony will be accepted in Room 3100 of the LOB until 12: 00 P. M. on the date of the hearing. Please submit 50 copies. Written testimony submitted after 12: 00 P. M. will not be distributed in hard copy form. Sign-up for the hearing will begin at 12: 00 P. M. in the First Floor Atrium of the LOB, will be conducted by lottery, and will conclude at 1: 00 P. M. The first hour of the hearing is reserved for Elected Officials. Speakers will be limited to 3 minutes of testimony. Unofficial sign-up sheets have no standing with the Committee. All testimony will be available at http://www.cga.ct.gov/ed/.

If you care about the rights of children with disabilities, it would be best if you could be there Monday afternoon to express yourself and let your voice be heard, and join me in opposing Section 3 of H.B. 5425!

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The Day After Graduation

Published on February 24, 2010 by Jennifer Laviano

One of the greatest things I’ve discovered since starting this blog is that there are so many lawyers and law students interested in practicing special education law who are thirsty for knowledge about how to get started.  I had the distinct pleasure of being contacted by Attorney Matthew Stoloff last year as he was about to launch his practice.  He shared with me his intent to focus in this area of the law, and in my communications with him, it became instantly clear to me that Matt would be a welcome addition to the community of Parent’s attorneys.  I am honored to introduce him to you as this month’s guest blogger.

Attorney Stoloff is passionate, smart, and dedicated to the rights of children with disabilities, and I am confident that he has a very bright legal career in front of him.  In particular, I love that he chose Transition Services as the focus of his guest post; it is a subject about which I feel we can’t pay enough attention.

Attorney Stoloff is a disability rights attorney in New Jersey.  His legal interests include special education, disability discrimination matters, and civil rights issues. Feel free to visit his website and blog

The Day After Graduation

by Matthew Stoloff, Esq.

Graduation Cap

Life is short. At one moment, a child is learning to walk or talk. In the next moment, the child is about to graduate from high school. Because time flies so quickly, graduation occurs much sooner than parents expect.

Unfortunately, many children with disabilities, particularly those with neurological and cognitive impairments, are not ready to graduate this year because they have not mastered basic life skills. Doubly unfortunate is the fact that hundreds, if not tens of thousands, of mentally impaired children have graduated from school without having mastered basic life skills.

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What are basic life skills? These are tasks that many of us take for granted: making the bed, dusting the furniture, cooking, cleaning, using the microwave, using the dishwasher, using the washer and dryer. It also means knowing personal hygiene, recognizing signs, developing time management, counting money, going to the grocery store, purchasing goods, and effectively communicating with strangers. In addition to living independently (or semi-independently), basic life skills also include knowledge of how to find and keep a job, as well as interacting with co-workers and customers or clients. Other basic life skills are provided here.

Some of you might be thinking: “Schools have no responsibility to teach children any of these things. Parents should be teaching their children this stuff.”

I agree that parents should teach their children life skills. However, schools have just as much responsibility to teach children life skills. In fact, the Individuals with Disabilities in Education Act (IDEA) not only recognizes the need to teach children with disabilities life skills, but requires it! (If you enjoy reading statutes and regulations, you can start here.)

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To be an effective advocate for children with disabilities who are a few years away from entering into adulthood, every parent, school, advocate, and special education attorney should be be familiar with the law and regulations related to transition planning. Equally important to familiarity with the law and regulations is the ability to answer such as questions as:

· What can the child do now?

· What are the child’s interests?

· What should the child be able to do by the time graduation rolls around?

· What are the child’s strengths?

· What are the child’s weaknesses?

· Should we spend any time addressing the child’s weaknesses?

· How can we improve on the child’s strengths?

· How can we help the child learn to live independently or semi-independently?

· How can we help the child make decisions for him- or herself?

· How can we improve the child’s social skills?

· What jobs would be suitable for this child?

· How can we help the child find and keep a job?

Compass Concept
No effective transition/life skills program can be developed without knowing the answers to many of these questions. However, once parents and teachers can answer these questions, they can start drafting a “Transition Planning” component into the Individualized Education Plan (”IEP”). To see specific, concrete examples of how the Transition Planning component can be drafted into the IEP, see the IEP Transition Checklist.

There is no “age requirement” to start developing a Transition Planning component in the IEP. It is really dependent upon the individual child. The law says that the Transition Planning component should be drafted when the child is no later than 16 years old. However, it would not be unusual to start the Transition Planning component at a younger age.

To learn more about Transition Planning and how to incorporate a life skills curriculum into an IEP, see Transition Planning for Students; Transition to Adulthood; and Teaching Students Who Are Low-Functioning: Who Are They and What Should We Teach? For specific, concrete lessons and ideas about developing a life skills curriculum and evaluating life skills performance, I highly recommend perusing The Lesson Plan Library hosted at the National Secondary Transition Technical Assistance Center (NSTTAC).

In Parenting Children with Learning Disabilities, parents are encouraged to think beyond school success: do whatever is necessary to help children with disabilities succeed in life…. All kids grow up fast, whether they have a disability or not. The time to think about life after school is now, not later.

It’s never to early to think about what happens the day after graduation.

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A Simple Question, Well Placed

Published on February 18, 2010 by Jennifer Laviano

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Whenever I am asked to present to public school educators or special education administrators on the subject of the rights of children with disabilities, I try to remind them that, in every profession, continuing education should be embraced and appreciated.  This is because I have found so many problems when teachers feel threatened by a parent’s request to bring in outside expertise in their child’s disability.

In fact, many of the Connecticut special education disputes in which I’ve been involved have been exacerbated by a special educator becoming defensive when new information is brought to the team.

So, in an ongoing effort to demonstrate that ALL professionals should be open to learning, I thought I’d share a little “eureka” moment I had recently, which will allow me to be a better special education attorney.

Whenever parents bring a lawyer to an IEP Team Meeting, there is a natural tendency on the part of the educators working with the child to become overly effusive about how well the kid is doing.  In the past I’ve written about The Sudden Blossoming of the Represented Child.  While, sadly, this is often done in a way that misrepresents actual progress, I also realize that for many teachers, their training and nature tells them that they should be trying to reassure the parents that everything will be okay.

Still, it can be very frustrating for me to sit in these meetings.  After having been given a laundry list of very serious concerns that the parents have, to have to listen to team member after team member go on and on about how great things are can be tough.  Sometimes, it even involves visuals, like “and here’s this BEAUTIFUL drawing he just did yesterday!” or “he wrote this whole paragraph by himself!”  Other times, it’s just anecdotal, as in “oh, last week he said the cutest thing!”  and “did we tell you about the way he greeted the Principal in the hallway the other day COMPLETELY UNPROMPTED!?”

It gets a little annoying, and the cynic in me can’t help but wonder when they’re going to start waving their lighters in the air as they let me know about the Nobel Prize the child just won.

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As I was sitting through just such an IEP Team meeting recently, a really basic question seemed like the only way to cut through.  And it worked.  So, here’s the tip:  when your child’s IEP Team is giving you the pep rally, listen patiently.  Then, when they’re done, just ask this simple question:  “and what are your concerns about him?”

I think you’ll be amazed at the responses you get.  They might say “we don’t have any” (which might prompt a follow-up question on your part of “are you saying you don’t believe he needs an IEP any more?”), but more likely, they’ll just start talking.  And talking.

At which point you should be listening.  And taking notes.

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Paging Dr. Freud

Published on February 15, 2010 by Jennifer Laviano

Girls can do anything!

I guess I was due for a rant.

First, I get a vile comment on the blog that likened Asperger’s Disorder to a fad, and further blamed a number of disabilities on poor parenting.  Thankfully, you, my loyal readers, jumped on board and shamed this yahoo with your reasoned replies.  I have yet to learn more about what motivated the comment, nor even what led him or her to be reading my blog.  Let’s just say, it seems to me that this person has issues.

Still, it is always heartbreaking to hear statements that realize your worst fears about what some people think about individuals with disabilities.

Next, I read a letter from a board attorney on a case of mine, documenting the school district’s “concern” that my client, who is placed in a private special education school at public expense, is “not being given the opportunity to interact with peers.”  Translation:  the school district is laying the groundwork to try to stop paying for the private school.

Granted, I was already doing a slow burn over the comment on my blog, but this statement just hits a nerve with me.

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The reference made by the school’s lawyer was to the LRE provision of the IDEA, which mandates that, to the maximum extent appropriate, children with disabilities should be educated “with children who are not disabled.”  IEP teams are required to regularly document and justify any removal of students with special needs from the regular education environment.

Inclusion of kids with disabilities in the “mainstream” is one of the main goals of the IDEA, and in fact is at the core of its historical underpinnings.

However, for some students at some points in their life, the IDEA contemplates that a more restrictive environment might be required, as in the case of my client, who is in what is called a “self-contained” program.  This means that all of the students who attend this school have disabilities, and in this case, severe developmental disabilities.  Self-contained programs can exist within the public schools as well, although this one happens to be a private program.

Which gets me back to the comment by opposing counsel, that the school would like to see the child “interact with peers.”  What was meant was “non-disabled peers,” but that is not what was said.  What was said was “the opportunity to interact with peers.”   The child DOES interact with peers; it’s just that he interacts with peers who happen to also have disabilities.  You don’t have to be a Freudian to see the subtext in this omission.

Since when do schoolmates with IEPs not count?  Students with disabilities ARE peers!

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The more I stewed over this, the more I came to realize how connected the two comments were:  the nasty (and ignorant) response on my blog, and this reply from someone who should know better.  At the core, they betray what I believe is one of the biggest obstacles to progress in the disability rights movement, which is a basic absence of concern for people who have special needs by most people who have no personal experience with it.

Years ago, I came to the realization that there are two types of people when it comes to special education rights:  those who understand what “there but for the Grace of God go I” means, and those who don’t.

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Recently, I was speaking to a group of law students about special education law.  One of the students started to ask why we, as a society, should be spending “all of this money” on kids with disabilities and especially special education litigation, when “many more” students might go without.  I responded that, as far as I am concerned, free football versus a child learning to speak was no contest.  Being a smart law student, he countered with examples of much more important things than football, like books.  Fair point.  So, I explained how most of the cases that become very expensive do so because the school district failed to follow the law to begin with, and then proceeded to give about a half a dozen examples of cases I’ve litigated which could have been resolved initially for a fraction of what it ultimately cost the school system.

What I didn’t say is that I’ve had this exact debate for many years with a number of friends from high school, college, law school, and beyond.

Several of whose children I now represent.

There but for the Grace of God…

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What NOT to Wear to Your Due Process Hearing

Published on February 10, 2010 by Jennifer Laviano

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Many of my clients will ask me what to wear to their child’s special education Due Process Hearing.  As a matter of law, it should be entirely irrelevant to the proceedings what the parents of children with disabilities are wearing.  Impartial Hearing Officers are not saying “I found in favor of the school district because I detested the mother’s hand-bag.”

But parents need to understand that these decision-makers are human beings, and as such, they will form opinions and draw conclusions based, in part, on their perceptions, if only on a subconscious level.

For example, if a school district is trying to suggest that the father never follows through on anything, is disorganized and disheveled (part of the “blame game” approach), that argument is harder to reconcile if he appears at the hearings as neatly groomed and well-presented.  Do I think this is fair?  Of course not!

In a perfect world, what a child requires by way of special education services is what maters, regardless of the “present-ability” of his or her parents.

But in the real world, you need to be sure you aren’t sending unintended messages through your attire.  So, what do you wear to your child’s special education Due Process Hearing?  I’ve decided it’s easier to describe what NOT to wear.  So, here are the top three “don’ts”:

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1.  Jeans

This is a formal proceeding involving a Hearing Officer or Administrative Law Judge, a court reporter, and sometimes attorneys for one or both sides of the dispute.  Jeans might put you at ease, but they will not send the Impartial Hearing Officer the message that you are taking the process seriously, nor even that you respect him or her.  Ditto for shorts, regardless of the weather.  I would not recommend going too far in the opposite direction either, as in a three-piece-suit.  “Business casual” is a good way to go for men and women.

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2.  Your most expensive jewelry

Sigh.  Okay, here is the reality:  if you are in Due Process with your district, chances are you are arguing over additional special education and related services, or even private placement.  Those things will cost your school district money, which is, frankly, probably why they are fighting you over providing them.  You, as the parent, are now asking an Impartial Hearing Officer to order your school district to spend more public funds on your child.  Whether your child requires those services, as a matter of law, has nothing to do with your income, or lack thereof.  That being said, it probably will not go unnoticed if you show up bedazzled.  The Hearing Officer might think “oh, well, these parents can afford it themselves even if I don’t order it, the kid will be okay.”  Or worse “why are these affluent parents trying to bilk much-needed funds from their school district when they obviously don’t need it?!”

Look, I understand that your earrings might be cubics, or the fur coat may be faux, or the BMW you drive into the Hearing parking lot might be a loaner…but for purposes of the Hearing, leave the bling at home.

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3.  A chip on your shoulder

By the time a parent has reached the point where they have filed a Due Process Hearing under the IDEA, chances are they have been through the ringer, and then some.  If you are in this position, you probably have a dozen or more outrageous stories to share about how duplicitous, negligent, or even downright mean your school district has been towards you and/or your child.  I get it.  But in a Hearing, the fact-finder is supposed to make an impartial judgment based on the evidence.  They don’t want to hear or see unbridled passion from either side.  They want facts.

Further, one of the standard defense tactics school districts employ is to try to characterize the parents as unreasonably demanding and unable to be pleased.  You play right into that hand when the Hearing Officer sees the scowling face of an irate parent sitting next to her at the very moment that  the school district is describing how much they’ve done to try to please you, to no avail.  Take a deep breath, and remember that you are there, presumably, because you believe the facts and law are on your side.

Trust in the truth, but remember that impressions matter.

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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.

Typing Court Transcript

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.”

Filed Under Current Affairs Tags: , , , , , , , , ,

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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Filed Under Occasional Rants Tags: , , , , , , , ,

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.

Filed Under Tips for Parents Tags: , , , , , , , , , , ,