Special Education Law Blog

Procdeural Safeguards - The Series Returns!

2012-01-27T13:34:00.000-05:00

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A lot of the work that I do in special education concerns procedural safeguards. It is the heart of my work. In the past we have run a series that explains in our usual excruciating detail, what procedural safeguards are all about. Because of the importance of procedural safeguards to special education law, we will be running a revised and updated version of the series, beginning next week. If you would like to see something included, please let me know.

Also coming soon will be a mini-series on bullying of students with disabilities and IDEA. The issue of bullying is one of the current hot button issues in special education law. There were a few really interesting court decisions and hearing officer decisions last year, and I expect this issue to continue to see lots of activity. Let me know if you have any interest in the topic of bullying. Also please let me know about any recent bullying cases in your area- they sometime slip through the cracks.

NOTE: some subscribers report that my blog platform erroneously sent a post from October again last week. I'm sorry about that. I didn't do it. That's my story and I'm sticking to it! Please let me know if it happens again. Thanks.

McMechen: Speed Trap!

2012-01-23T19:15:00.000-05:00

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OK so here in West Virginia, we are having a natural gas rush created by the Legislature's recent approval of the removal of natural resources from the Marcellus Shale deposit. As a result of this new gas rush, I could not find a motel in Moundsville for a recent hearing. Accordingly, I had to stay in Wheeling, to the North.

Therein lies the problem, squarely in between lies McMechen. I had to pass McMechen twice each day of the three day hearing. You would think that the story would more likely involve the venue of the hearing, the former state prison in Moundsville, a place so bad that the West Virginia Supreme Court of Appeals ruled was cruel and unusual punishment.

Yet McMechen stole the headlines.I thought the speed limit was 65 mph along the highway known as Route 2. This seemed especially so in view of the many cars whizzing past me as I traveled along at a safe 55 mph.So it was to my great surprise when I was stopped by a very, very young police officer and issued a citation for traveling at 55 mph in a 50 mph zone.

So a warning to the traveler, if you must drive through the Northern panhandle of West Virginia, go slowly trough the speed trap also known as McMechen!

King Day

2012-01-16T23:47:00.000-05:00

Today we honor the memory of Dr. Martin Luther King, Jr. He was a great American, and his message still resonates today. In his later speeches, including his speech to the Memphis garbage workers just prior to his assassination, he focused increasingly on poverty and income inequality.

But he was known primarily as a strong advocate against all forms of discrimination. Disability discrimination is one of the topics that we frequently address on the pages of this blog. On this day of reflection, here are some links to previous posts on the topic of disability discrimination:

http://specialeducationlawblog.blogspot.com/2010/08/disability-discrimination-part-i.html

http://specialeducationlawblog.blogspot.com/2008/05/maybe-not-disability-discrimination.html

http://specialeducationlawblog.blogspot.com/2010/09/big-changes-to-504-do-they-affect.html

http://specialeducationlawblog.blogspot.com/2011/10/is-fape-under-504-fape-lite.html

http://specialeducationlawblog.blogspot.com/2010/06/so-misunderstood-category-of-disability.html

http://specialeducationlawblog.blogspot.com/2009/08/tribute-to-senator-edward-m-kennedy.html

DOE Sends Annual IDEA Report to Congress

2012-01-10T00:08:00.000-05:00

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Last month the United States Department of Education sent its annual report on the Individuals With Disabilities Education Act to Congress. Because of the slow movement in all things government, the report is for 2008 and most of the data is for the 2005-2006 school year. Nothin' like staying current.

The report contains a wealth of information. Here are some examples:

Among the key findings were:

In 2006, a total of 6,081,890 students ages 6 through 21 were served under IDEA, Part B. Of
these students, 5,986,644 were served in the 50 states, the District of Columbia and Bureau of
Indian Education schools. This number represented 9.1 percent of the general population ages
6 through 21
In 2006, the largest disability category among students ages 6 through 21 served under IDEA,
Part B, was specific learning disabilities (44.6 percent). The next most common disability
category was speech or language impairments (19.1 percent), followed by other health
impairments (9.9 percent), intellectual disabilities (8.6 percent) and emotional disturbance
(7.5 percent)
In 2005, 88.4 percent of full-time equivalent personnel (other than special education
teachers) who provided special education and related services for children and students ages
3 through 21 served under IDEA, Part B, were fully certified
Children and students ages 3 through 21 who were served under IDEA, Part B, under the
category of emotional disturbance had the highest rates of removal to an interim alternative
educational setting by school personnel for drug or weapon offenses (0.49 percent) and by a
hearing officer for likely injury to themselves or others (0.08 percent) in school year 2005–06, compared to children and students in all other disability categories

Other items that caught my imagination were the following: In 2006, North Dakota served 68.9% of students classified as emotional disturbance inside the regular ed class more than 80% of the time whereas Hawaii served 19.8% of students classified as emotional disturbance inside the regular ed class more than 80% of the time. (Table 33). In the same year Alabama served 7.6% of students classified as emotional disturbance in a residential facility whereas Arizona served 0.3% of students classified as emotional disturbance in a residential facility. (Table 33) In school year 2005-2006, Pennsylvania and Wisconsin 57.7% of special ed students aged 3-21 graduated with a regular diploma whereas in the same school year in Louisiana 14.0%. (Table 36) For the 2005-2006 school year the percentage of special ed kids aged 3-21 expelled or suspended for more ten or more days in the school year was 2.81% in North Carolina and 0.04% in California, (Table 39) I could go on!

You can look up these and similar statistics for your state in the report. Also the report contains a summary of research and evaluation conducted under IDEA provisions.

You can read the entire report here.

Accommodations on Standardized Tests: GAO Study Finds No Strategic Enforcement by DOJ

2012-01-03T19:51:00.000-05:00

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I'll admit that I may have a bias against standardized tests, I don't like them much.I prefer essay tests where one can expound a bit.

In any event, standardized tests are used and are generally required for admission to college and to professional schools. Most of us have taken them.

When students with disabilities take these standardized tests, they may be entitled to accommodations while taking the test. This includes both IEP requirements as well as ADA requirements.

A recent study by the federal watchdog, the Government Accountability Office, found that The Department of Justice lacks a strategic method of enforcement for its regulations concerning testing accommodations. Merely investigating individual complaints is not sufficient the study concludes.

If you deal with standardized testing, you should review this study. You can read the entire GAO study here. You can review a fact sheet here. A general statement by GAO about this study can be found here.

Happy New Year!

2012-01-01T11:38:00.000-05:00

Image via WikipediaAs the year turns, it's time for reflection and resolutions.So think back upon last year and get ready for the new one, and most importantly chew the black-eyed peas carefully.

If anybody has a good special education resolution, we'd love to hear it. Please share.

To all of our loyal and fantastic readers, Happy New Year!

Merry Christmas Everybody: Dreamin' of a White X-box; Lawyers, HOs & Reindeer!

2011-12-21T08:36:00.000-05:00

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I was giving some thought to my Christmas message. I will be spending the next ten days or so with my family, so I thought a big message would be impressive before I left. I had even thought about writing a parody challenging the increasingly commercial nature of Christmas. The possibilities were exciting...just imagine..."I'm Dreamin' of a White X-box"... This could have been fun!

I had written parodies before. Going back to high school when I penned "I've Got a Black Magic Marker" to that amazing Santana tune, "Black Magic Woman." So there was some hope. (Remember Cubs fan... delusional optimism..., etc.)

Luckily you were spared from this ordeal. A colleague wrote a parody that is way better and shared it with me. The imagery is impressive. But first the legal disclaimer: this is not my work and the opinions expressed are solely those of the author. The characters are fictional and any resemblance to any person, living or dead, is purely coincidental. No animals were harmed in the making of this post. (I could go on all day, but for additional legalese, please see the permanent disclaimer on the lefthand side of the blog!)

Here is a new version of Twas The Night Before Christmas, with a distinct special education due process hearing flavor:

Twas the night before [insert holiday of your choice],

When all through the house

Not a creature was stirring

Just a hearing officer* and a mouse.

The exhibits were hung by the chimney with care

In hopes that some insight would soon be found there.

The HO family was nestled all snug in their beds

While visions of [insert holiday symbol of your choice] danced in their heads.

And the HO in her** jammies, with draft Findings in her lap,

Knew that the pesky decision due date would preclude a nice nap.

When out on the lawn there arose such a clatter

The HO sprang from her desk chair to see what was the matter.

Away to the window, the HO flew like a flash,

Tore open the shutters and threw up the sash!

The moon on the breast of the new-fallen snow

Gave the luster of mid day to objects below.

When, what to the HO’s wondering eyes should appear,

But a miniature sleigh and eight attorneys (those dears!)

With a mind like a steel trap, so lively and quick,

The HO knew in a moment it must be a trick!

More rapid than eagles those attorneys they came

And the HO whistled, and shouted, and called them by name!

“Now Susan! Now Mary! Now Lisa ! (and other vixen)

Now William! Now James! Now Robert! (but no one named Blitzen)

To the top of the porch! To the top of the wall!

Now dash away! Dash away! Dash away all!

As dry leaves that before the wild hurricane fly,

When they meet with an obstacle, mount to the sky.

So up to the house-top the attorneys they flew,

With a sleigh full of extension requests, and legal arguments too.

And then, in a twinkling, the HO heard on the roof

The prancing and pawing of each little attorney hoof.

As the HO drew in her head, and was turning around,

Down the chimney the attorneys came with a bound.

They were dressed all in business suits, from their heads to their foot

And their clothes were all tarnished with ashes and soot.

A bundle of extension requests they had flung on their back,

And they looked like a peddler, just opening her pack.

Their eyes-how they twinkled! Their dimples, how merry!

Their cheeks were like roses, their noses like cherries!

Their droll little mouths were drawn up like a bow,

And the pallor of their faces was as white as the snow.

The remnants of an adult beverage they swished around in their teeth,

As the alcohol vapors encircled their heads like a wreathe.

Their sweet earnest faces and flat little belly,

Were covered with ashes and soot, but yet not the least bit smelly!

They were cordial and amicable, exuding great class and great wealth,

At the pinnacles of their careers, the picture of health!

A wink of an eye and a twist of a head,

Soon gave the HO to know she had nothing to dread.

The attorneys spoke not a word, but returned straight to their work,

Engaging in “consensual rescheduling”, then turning with a jerk

They struck a compelling, attorney-like pose,

Then gave a nod to the HO, and up the chimney they rose!

They sprang to their sleigh, to the team gave a whistle

And away they all flew like the down of a thistle.

But the HO heard them exclaim, ‘ere they drove out of sight,

We all want extensions, dear HOs, so for the HOs……….

A Good Night!

· *The generic use of “HO”, rather than a name, is used to protect the confidentiality of the HO.

· ** It is this Author’s preference to use the pronoun “she” or “her” rather than to engage in the cumbersome she/he, her/him dichotomy or to succumb to the traditional, sexist use of “him”.

http://specialeducationlawblog.blogspot.com/2008/12/merry-christmas.html http://specialeducationlawblog.blogspot.com/2010/12/christmas-message-true-story.html

Mediation vs Hearings: SpEd Dispute Resolution

2011-12-16T14:45:00.001-05:00

Image by TomNatt via Flickr

This week I finished a decision from a due process hearing and I conducted a mediation. Dangerous combination. This got me to thinking about dispute resolution under IDEA. I have long contended that mediation is a better way to resolve special education disputes.

A due process is increasingly like a court trial. Very adversary in nature; lots of venom. There is of course plenty of place for venom in our society. (Otherwise we wouldn't really need lawyers would we?) I'm just not sure that the education of a child is one of them. Don't get me wrong, I love doing hearings. I have been doing some type of work as a hearing examiner, hearing officer, administrative law judge as a part of my job since 1979. I train hearing officers, special ed and others; I am a certified hearing official. But this is really not about me, it is about those kiddos with disabilities.

Mediation unlike the adversary hearing offers the possibility of repairing the troubled relationship between parent and school officials. Because education demands cooperation and collaboration between parents and the schools, mediation can really be a good way to go in the long run. I have talked to parents who won a due process hearing, but still felt like they had lost. There is an emotional cost in using the hearing process, and it can be significant.

There are situations that require the hearing process, but from my vantage point, mediation is often a better road.

What do you think?

New FERPA Regulations

2011-12-10T18:44:00.000-05:00

Image by alancleaver_2000 via Flickr

The United States Department of Education has issued new and revised regulations pertaining to the Family Educational Rights and Privacy Act, better known as FERPA, on December 2, 2011.

You can read the federal Register version here. A guide to the new FERPA regs for school districts and state departments of education may be found here. A similar guide for parents and children may be found here.

One of the forces behind the changes was the reform principle that states and districts should be able to analyze school performance without FERPA rules getting in the way. Clearly I'm summarizing, but you get the idea.

Santo; Injustice; Service Dogs; Diabetes

2011-12-08T14:49:00.000-05:00

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You may have to read for a while, but this post does have something to do with kids (and adults) with disabilities.

If you read this blog regularly, you know that I have one sports addiction- I am a fan of the Chicago Cubs. The Cubs have not won the World Series since 1908. They have not even been in the World Series since 1945. It has been suggested to me that we have our own category in the DSM-IV, something along the lines of "delusional optimist." Cub fans generally learn patience, to root for the underdog, the little guy, to appreciate small victories.

So it was with great delight that I learned on Monday that Ron Santo had been elected to the National Baseball Hall of Fame. It was one of the great injustices in the history of sports that Ron Santo had been previously denied HOF status. He was the heart and soul of the Chicago Cubs. He could hit and field. Spoiler alert...if you hate sports statistics skip to the next paragraph... He was one of the best third basemen of all time. He had 2,254 hits, 342 homers and 1331 runs batted in. He got theses hits while facing pre-Expansion era pitchers, scary people like Bob Gibson and Don Drysdale. He also won five Gold Gloves as the best fielding third baseman in the national league.

After his playing career, he became one of the radio broadcasters for the Cubs. His keen insights and honest appraisals were refreshing and fun. He described the game with the same gusto with which he played the game.

It was a travesty that he had not previously been inducted. A serious injustice has now been righted, unfortunately a year after Ronnie died. But now the world is a more just place.

What many people did not know was that Santo achieved everything while having Diabetes. Santo played a major league sport at the top level while battling blood sugar problems. He became an advocate for the Juvenile Diabetes Research Fund after he stopped playing. He found corporations who would contribute every time a Cub played drew a walk or got a hit; who else could do that? He raised more than 60 Million Dollars for JDRF. He wanted people to know that you can live with, and succeed despite, having Diabetes.

After Ron Santo died, his family learned about Alert Service Dogs. Apparently there are service dogs that can warn people when their blood sugar is either high or low. As I have said here before, service dogs are truly amazing. The Santo family is now trying to get the work out about these blood sugar sensitive service dogs.

International Day of Persons With Disabilities 12/3/2011

2011-12-02T14:03:00.000-05:00

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Tomorrow, December 3rd is the 19th International Day of Persons with Disabilities which was created by the United Nations. A press release by our friends at the National Council on Disability describes the occasion more eloquently than I could. Here is their statement:

– The National Council on Disability today released the following statement on the occasion of the International Day of Persons with Disabilities, December 3, 2011:

NCD observes the 19th International Day of Disabled Persons, first recognized by the United Nations General Assembly in 1992. The theme of this year’s observance is “Together for a better world for all: Including persons with disabilities in development.”

Why is meaningful involvement by persons with disabilities in international development important? The United States invests billions of taxpayer dollars into foreign assistance programs that foster international diplomacy and development annually, aimed at improving the quality of life for people around the world. These programs develop economies, promote democracy and governance, provide humanitarian assistance, build new infrastructure, and advance and protect human rights. Given that 15 percent of the world population is made up of people with disabilities, and growing, the United States cannot effectively accomplish the goals of foreign assistance programs unless it ensures programs are accessible to and inclusive of people with disabilities.

Conservative estimates by the World Health Organization suggest more than one billion people, an estimated 15 percent of the world’s population, have a disability. 80 percent of these individuals live in developing nations. Although people with disabilities make up a large segment of the global population, they continue to face worldwide discrimination and segregation at alarming levels. Moreover, numbers are likely gravely underestimated because people with disabilities are typically shunned, hidden from public view by their families, and commonly excluded from community activities.

Exclusion from the built environment prevents use of necessary services and resources that non-disabled populations take for granted. These barriers have a negative, spiraling effect. Physical barriers also keep people with disabilities from using voting centers, polling places, courthouses, administrative agencies, schools, and embassies.

Those who aren’t hidden by families or communities of origin are often left to languish in institutions – further removing them from civic and social engagement. Conflict and poverty continue to increase the incidence rates of disability in less developed and industrialized economies alike. Already significant numbers are rising due to a variety of factors including aging, poverty, armed conflict, as well as improved data collection.

Overseas economic development will not be successful unless people with disabilities are included. If development is not inclusive, the significant numbers of people with disabilities in developing countries will hinder the very economic growth the U.S. seeks to facilitate. NCD recommends both micro-level solutions to spark income generation in coordination with large scale interventions to create the kinds of legal and regulatory structures to better serve and benefit from the contributions of people with disabilities.

As the world observes the 19th International Day of Persons with Disabilities, NCD welcomes the opportunity to focus greater attention to workable solutions to concerns faced by people with disabilities, their families and the diverse communities people live in around the globe.

About NCD: Founded in 1978, the National Council on Disability is a small, independent federal agency comprised of 15 Presidentially-appointed, Senate-confirmed Council Members and a small staff, who advise the President, Congress and other Federal agencies on disability policy, programs and services.

NAHO Conference

2011-12-01T10:57:00.000-05:00

Image by gholmes via Flickr

The conference of the National Association of Hearing officials was the final stop on the Jim Gerl 2011 tour. The conference was held in mid November at the historic La Fonda hotel in beautiful Santa Fe, New Mexico.

The meeting was a great opportunity to see old friends and to meet other hearing officers. The educational sessions were top notch and the participation by the New Mexico justice system was very helpful.

NAHO is an organization of administrative hearing officers. It includes representatives from welfare agencies, DMVs, unemployment agencies, workers comp agencies, special education agencies, retirement boards, condo associations, environmental protection agencies, the Nuclear Regulatory Commission, the Parole Commission, and everything in between. It is a good mix of people who do all sorts of hearings. The conference is a great opportunity to talk to others who do administrative hearings and to learn from what they do.

I have served on the faculty of the NAHO annual conference for the last seven years. This year I presented three sessions. The first was my favorite How to Conduct an Administrative Hearing. The second was Dealing With Difficult Lawyers and Parties. The last on was a Nuts & Bolts Approach to Due Process. My sessions were well attended and those who attended actively participated. They went well.

A subsequent post will cover some of the other sessions.

Happy Thanksgiving

2011-11-23T17:54:00.000-05:00

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To all who read the special education law blog, please have a great Thanksgiving.

It's one of my favorite holidays. First, I was born on a Thanksgiving day so the day has extra special meaning. The way my mother used to tell the story began with "it was a cold winter's night..." It gets worse from there, believe me!

Second, this holiday is about giving thanks and maybe thinking of those who are less fortunate. It's hard to argue with those noble goals. I am truly blessed and have a whole lot to be thankful for. I know that times are tough for many, but I am an optimist and I firmly believe that things will get better for our economy soon.

So count your blessings, have some Turkey and enjoy the holiday.

Is Online Education For Real? New GAO Study!

2011-11-22T18:05:00.000-05:00

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I have always wondered if online education is for real. Although I am a digital immigrant, I have been a fan of the new technologies. This blog has dragged me kicking and screaming into the twenty first century.

But my doubts about virtual education continue. How do I know that people actually attend online classes. How do I know that a particular student is taking an online quiz himself? The lawyer in me is trained to be skeptical...

Well I guess the answer is that it depends upon which online school is doing the educating! A new study has been released by the federal Government Accountability Office. With all of the gusto of a "sting" operation, the GAO sent students undercover to attend 15 online colleges. Of the 15, 8 passed with flying colors. The other 7 colleges showed mixed results.

Here is an excerpt from the summary of the report regarding academic performance:

GAO's students engaged in substandard academic performance by using one or more of the following tactics: failure to attend class, failure to submit assignments, submission of objectively incorrect assignments, submission of unresponsive assignments, and plagiarism. At 6 colleges, instructors acted in a manner consistent with school policies in this area, and in some cases attempted to contact students to provide help outside of class. One or more instructors at 2 colleges repeatedly noted that the students were submitting plagiarized work, but no action was taken to remove the student. One or more instructors at the 4 remaining colleges did not adhere to grading standards. For example, one student submitted photos of celebrities and political figures in lieu of essay question responses but still earned a passing grade.

You can read the GAO report summary here.

You can read the entire GAO study here.

As always, choose your school wisely!

Correction Re CADRE Conference Report- Hearing Officers and Special Education

2011-11-21T16:41:00.000-05:00

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I need to make a correction.

The post I issued a while back about the great sessions at the recent CADRE Conference in Eugene Oregon included a report on the fantastic update on special education law by my new friend Barbara Bateman. I got most of it right, but one quote added a word. Barb had said that special education hearing officers know very little about special education and don't seem interested in learning. I unfortunately added the word "law" after special education. Barb concedes that they know the law; they just don't really know special education.

The corrected quote makes a lot more sense than my incorrect version. As Barb had explained, the reason under general principles of administrative law, courts defer to hearing officers because administrative agencies have substantive expertise in the subject area involved. She suggests that the expertise is not apparent in special ed hearings.

Fortunately Barb reads this blog and she helped me to get this one right. Thanks Barb. What a great session at an excellent conference. Also thanks to the many readers who are interested in this topic.

Live From Santa Fe ... It's Cold

2011-11-14T16:52:00.000-05:00

The NAHO conference is under way in Santa Fe, New Mexico. It snowed here last night.

My session on how to conduct an administrative hearing went very well. There was a lot of participation. I explained my Eight Rules, and I illustrated how my powers are beyond your comprehension.

The lunch keynote was an interesting address by the Chief Justice of the New Mexico Supreme Court on the history of the territorial courts. He explained how Alternative Dispute Resolution in New Mexico has included duels with pistols and other forms of negotiation.

This is the final stop on the Jim Gerl 2011 tour! What a great year.

This post was made entirely with my phone!
Sent from my BlackBerry wireless device from U.S. Cellular

CADRE Conference Featured Excellent Sessions

2011-11-11T12:01:00.000-05:00

The recent CADRE National Symposium on Dispute Resolution in Special Education in Eugene, Oregon featured many excellent sessions. I presented at two sessions: a 90 minute breakout on training and certification requirements for hearing officers and mediators; and a three hour professional development session on the differences between the various dispute resolution options. The sessions were well attended and the participants were very involved and engaged in the sessions. Photographic evidence is provided above.

I also attended a number of fantastic sessions. As usual, the staff at CADRE found great presenters for this conference. The best and the brightest people in the field of special education dispute resolution were on hand. Of the sessions I attended, one of my favorites was an update on special ed law by my new friend Barb Bateman. Barb is a parent's lawyer and a distinguished author. She provided a thorough review of recent caselaw. Two points she made were very interesting to me.

After Barb noted the increase in the number of eligibility cases in the last few years, I asked if she thought that the number of eligibility cases reflects a back door attempt to deal with the recent bad economic conditions. Her answer was "absolutely." I have asked that question of a number of people, and I rarely get such a direct answer.

Barb also spoke about dispute resolution. She said that dispute resolution in special education at the hearing level was not very good. She discussed the administrative law principle that the large caseloads of the courts are reduced by permitting administrative hearings before agency personnel who have expertise in the subject matter. Because of the expertise in subject matter, courts generally defer to the findings of the agency hearing officer. She said that IDEA hearing officers and ALJs, though, often don't know special education law and don't seem to want to learn it. Wow! Powerful stuff.

There were many other thought-provoking and helpful sessions. Once again CADRE put on a great conference.

CADRE Conference Keynote- Mediation as Engagement Rather than Resolution

2011-11-09T16:32:00.000-05:00

I have been raving about the recent CADRE conference, and so have the other participants whom I have spoken with. It was an excellent conference for many reasons. One that I have not discussed in detail so far is the keynote sessions. As usual, CADRE recruited top-notch professionals in dispute resolution to share some wisdom at the conference. All were excellent.

My favorite though was Professor Bernie Mayer of Creighton University. He talked about enduring conflict. Any wonder why this topic might resonate with special ed folks? He made some very interesting and provocative points. He suggested that we might move away from more traditional models of conflict: resolution or transformation. Instead for enduring conflict he suggested that we shift our focus to engagement. By this he means helping people engage with difficult issues in as constructive a way as possible. (I don't know what other special education mediators think, but this kind of sounds like what we do.)

He suggested that we focus on engagement and confront avoidance. He advocates framing the issue for the long term and establishing durable patterns of communication.

He said that we need to change our narrative from prevention to anticipation, from management to support and from resolution to engagement. He suggested that we consider asking a different question: instead of- what can we do to resolve or deescalate this conflict? he suggested asking - How can we help people prepare to engage with this issue over time?

He also said something that has never occurred to me and at first was surprising. He suggested that at times our role might even be to escalate conflict. One doesn't hear mediators use such language. But as I think about the statement, it to resonates. Avoidance of some enduring issues is not good; escalation may be a much better way to go.

I'd be interested in the reactions of other mediators to these thought provoking ideas.

Finally here is definitive proof that the conference was in fact held in Eugene. This is a photo of me eating a seaweed cookie substance called smart food! Please add your own punchline here......

Big News from OSEP on Resolution Session

2011-11-04T09:07:00.000-04:00

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As we mentioned in previous posts, OSEP, a division on the U S Department of Education issued a big announcement at the CADRE conference. In the past OSEP had taken the position that local education agencies (school districts, some charter schools, etc) had to convene a resolution meeting within fifteen days of the filing of a due process complaint in every case even where the parent could not attend. Also State Education Agencies were being required to ding LEAs with findings of non-compliance whenever they did not hold such a resolution meeting.

At the big CADRE Symposium in Eugene, Oregon last week, OSEP announced a change in this policy. The new interpretation is as follows:

Although the general rule is that the LEA must convene a resolution meeting within fifteen days of the filing of a complaint by a parent, an LEA does not need to convene a resolution meeting within fifteen days of the filing where the parent says that they cannot attend the meeting. It is unreasonable to require an LEA to convene a re4solution meeting without the parent being present. The LEA must continue to make reasonable efforts throughout the thirty day resolution period to schedule a resolution meeting and the LEA must document its offers of multiple dates and times and the parents unavailability (including detailed records of telephone conversations, copies of written correspondence, and/or visits to the parents home or place of employment.)

OSEP made it clear that the general rule is that the resolution meeting will be held by the LEA within fifteen days of the filing of a due process complaint by a parent and that the situation described above is the exception. The reason for the change of interpretation is that it is that the purpose of the resolution meeting is to resolve the dispute and it is not possible to resolve the dispute without the parent present. Accordingly, it is not reasonable to require a resolution meeting when the parent cannot attend.

The formal OSEP interpretation will be included in an official Question & Answer document to be issued in the future. I received an oral go-ahead to make this information public at the CADRE conference and I double-checked the information stated above in a telephone call this week.

CADRE Conference Big Success

2011-11-01T10:37:00.000-04:00

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I have returned from the big CADRE National Symposium on Dispute resolution in Special Education in Eugene, Oregon. It was a great conference.

We will have additional posts about the conference. The keynote speakers made us think. The sessions were fantastic and it was good to see the usual suspects. Plus big news from OSEP on the requirement of the resolution session.

It was also great to meet a number of readers of this blog. Many people who regularly use the blog introduced themselves. The prize for originality goes to an attendee who asked if I was Jim Gerl, and then introduced herself by saying that she wakes up with me a few times a week. When I finished stuttering, she said that she reads her email in bed on her laptop first thing every morning. Because she takes advantage of the free email subscription to this blog, there I am. There are less stressful ways, but I always enjoy meeting our readers.

Live From Eugene - It's Thursday Morning

2011-10-27T11:03:00.001-04:00

The CADRE Symposium is now underway. The sessions are amazing. More on this in subsequent posts.

Also Eugene now has everybody who is anybody in dispute resolution in special ed. I am deeply honored that I have been asked to do two presentations. The. first one went well yesterday.

PS; this post was done on my phone! I love technology, sometimes.
Sent from my BlackBerry wireless device from U.S. Cellular

Is FAPE Under § 504 FAPE Lite?

2011-10-22T15:22:00.000-04:00

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Regular readers will remember a previous post in which I referred to special education and FAPE under § 504 as the redheaded stepchild of IDEA. This, of course, lead to subsequent apologies to both stepchildren and redheads...

But I digress. Most special education stakeholders tend to think of the right to FAPE under §504 as providing less protection than the right to FAPE under IDEA. Once again, we use the same term or acronym in multiple ways. Some even accuse lawyers of intentionally employing this practice for purposes of job security. I believe, however, that the reason is less sinister. We're too lazy to make a new word or acronym when we have a similar one already. The confusion and head-shaking is merely an unintended consequence.

In most cases § 504 does provide less protection that IDEA. § 504 is a non-discrimination statute. The federal regulations under that statute require that educational services for disabled children meet their needs as well as the needs of non-disabled children are met.34 C.F.R. §104.33.

This brings me to an argument made by Professor Mark Weber, my friend and a great friend of this blog. Mark is one of the big idea guys in special education. He wrote last year in an article published in the Texas Journal of Civil Liberties and Civil Rights, (Vol. 16, No. 1 Fall 2010) p. 1 - 28, that for poorer and lower achieving schools, the IDEA standard of FAPE is higher. For the more wealthy, suburban school districts where children without disabilities do very well, perhaps the § 504 FAPE comparative standard requires even more than IDEA FAPE.

This is an intriguing argument. It makes sense as an academic application of the legal principles. As I have discussed with Mark, however, it is a tough argument from a public policy standpoint. Can it really be argued, especially given the current economic climate, that rich kids with disabilities are entitled to more than their poorer counterparts? I cannot imagine a court ever saying that out loud.

What do you think of this argument? Is the FAPE standard under § 504 variable?

Getting Psyched About the CADRE Symposium

2011-10-20T14:50:00.000-04:00

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I am getting very excited about the CADRE Symposium coming next week in Eugene Oregon. If you will be nearby, please find me and say hello.

CADRE is the organization that provides technical assistance to states and others concerning dispute resolution in special education. It is run by some great people and their conferences are without equal.There is a permanent link to the very useful CADRE website on the lefthand side of this blog. Here is another link to their website. I encourage you to go there often.

At the conference, I expect to have some good talks with a number of old friends as well as making a bunch of new ones. It is a great place to learn about mediation, complaint investigation, IEP facilitation and due process hearings. Their focus is upon encouraging the resolution of disputes further downstream before they become major litigation-type headaches, but they provide great information on all options. The speakers, which includes me, yes Eugene is on the "tour," are top notch. the networking opportunities are excellent. And as I have implied, all of the usual suspects will be there.

Next week on the blog, in honor of the CADRE Symposium, we will begin a new series on procedural safeguards under IDEA. This will, of course, include information on dispute resolution as well as the other safeguards provided by the special education laws. So stay tuned.

Tool For Part C New Regulations

2011-10-16T10:27:00.000-04:00

Image by Suchana Seth via Flickr

For those of you who are concerned with infants and toddlers with disabilities, the new finally arrived Part C regulations are of interest. In a previous post, we provided links to the new regs themselves.

Our friends at the Council for Exceptional Children have developed a side-by-side chart that show the differences between the 2011 regs and the old regs. If you were used to the old regs, this chart is a very helpful tool. Here is a link to the chart:

http://www.cec.sped.org/Content/NavigationMenu/PolicyAdvocacy/IDEAResources/Celebrating_25_Years_of_Early_Childhood_Programs/PartCRegsSideBySideFULL.pdf

From my perspective, one of the most interesting changes is the addition of a regulation allowing the hearing officer to grant an extension of the 30 day timeline upon the request of a party. The comments to the regulations imply that extensions should only be granted in extraordinary circumstances, but this makes sense to me.

Let me know if you find this tool useful.

Index to Special Education 101 Series

2011-10-13T23:25:00.000-04:00

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A reader suggested that I provide an index of the series of posts on special education law 101.I agree that this is an excellent idea.Clicking on the name of a particular post in the series will bring you to the actual post.

Here goes (all posts were in calendar year 2011):

Part I April 21st Sources of Law

Part II May 3rd FAPE

Part III May 14th FAPE (continued)

Part IV May 26th Least Restrictive Environment

Part V June 8th Identification and Eligibility

Part VI June 24th IEP Issues

Part VII July 2nd Related Services

Part VIII July 13th Transition

Part IX July 23rd Discipline

Part X August 6th Relief: Unilateral Placements

Part XI August 13th Relief: Compensatory Education