Special Education Law Blog

Nominate Somebody Special for the JoLeta Reynolds Award

2009-12-07T11:45:00.000-05:00

Do you know a special educator or administrator who does a great job? If so, you should consider nominating her or him for the JoLeta Reynolds Award. JoLeta was a policy analyst for the federal Department of Education. She essentially rewrote IDEA in 1997, and she had a big impact upon the 2006 regs. She is also one of my favorite people, and she has generously helped my special education consulting career in countless ways.

In her honor, an award has been established. You can nominate people for the award here. All nominations must be received by January 18, 2010.

My nominee for this award won last year. Dee Ann Wilson runs the mediation and due process hearing systems in Iowa and she is a pioneer in the facilitated IEP movement.. She also has a JoLeta sized heart when it comes to kids with disabilities. I have been lucky enough to work with her. Congratulations again Dee Ann. I can't wait to learn who will win this year.

If you know a great special education hero, nominate her for this award.

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Big Interview Next Week: I'm Really Excited

2009-12-04T14:59:00.014-05:00

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OK, I'm officially excited. I get to interview Dr. Alexa Posny, the Assistant Secretary of Education for Special Education and Rehabilitative Services, for this blog next week. This is a big deal! And you made it possible by reading and subscribing to the special education law blog. Thanks guys.

Although I probably have more questions than I can use in the allotted time, I still welcome your ideas and thoughts about the interview. One cannot be too prepared can one? Please keep sending me your input and suggestions.

For some more background on the new Assistant Secretary who was formerly the Kansas Education Commissioner, I have included a couple new links. Here is the official biography of Alexa Posny. Here is a newspaper piece on the new Secretary by the Topeka Capital Journal.

My plan is to run the interview over a number of posts in the blog. It may take a while to get the posts together and published, but they will be here. So stay tuned for more.

Social Networks Gone Wrong: Bullying on Facebook

2009-12-02T10:39:00.001-05:00

Image by Ivan Walsh via Flickr

In a terrifying development, some middle school children in California organized a series of attacks on redheaded students at their school. Their organizing tool was Facebook. This is an example of the dark side of the social networking networks. Here is a news story from the Ventura County Star.

Now I know that redheads are not children with disabilities, but this was an example of bullying against a group of students. And as we have discussed in previous posts, bullying against kids with disabilities has caused numerous legal problems for school districts. So I find this topic to be relevant to this blog.

Apparently, the students misunderstood some episode of the television show South Park as a call for violence against "gingers." This speaks to the lack of intelligence, as well as the cruelty, of the students involved. But this illustrates the potential problems involved with the otherwise valuable social networking sites. I am a big advocate of the powers of Facebook and these other sites to spread information. Indeed, I am the administrator of the Facebook special education law group, and many related groups with links on the lefthand side of the blog.

But when people have bad motivations, these sites can be dangerous. I am aware of the legal pitfalls and the strong policy against censorship, but I think that these sites may need to police themselves to prevent these incidents in the future. What are your thoughts?

New Poll - What Would You Change About IDEA

2009-11-30T08:56:00.001-05:00

As many of you know, I am collecting your ideas for changes to the Individuals with Disabilities Education Act when it comes up for reauthorization by the Congress. To further celebrate this quest we have launched a new poll as to this question. As always, our polls are not meant to be scientific in nature. But they are fun, and they give us an idea of what our readers are thinking, so please exercise your opportunity to vote! The poll appears on the lefthand side of the blog.

Now you may notice that the topic of this post definitely relates to my upcoming interview of Dr. Alexa Posny, the new Assistant secretary of Education. Unfortunately though the poll will not finish before the interview so I won't be able to utilize the results at the big interview.

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I have whittled down your suggestions concerning changes to IDEA to the most popular ten. Here are the choices:
- Raise the Bar for FAPE
- Give Expert Witness Fees to Prevailing Parents
- Expand Role/Mission of OSEP
- Restrict Comp Ed/Reimbursement as Remedies
- Place Burden of Persuasion on School Districts
- Increase Transition Rights
- Allow Arbitration and More Mediation
- Assess Children with Disabilities at Instructional Levels for AYP
- Expand and Encourage Response to Intervention
- Regulate Seclusion/Restraints

There have been other suggestions and possibilities, these were just the top ten. Other frequent suggestions have included: Make the resolution session meetings confidential; clarify the educational rights of non-custodial parents; prohibit parents from representing themselves in federal court; allow systemic or class action style due process complaints; adopt the principals recommendation for a standard of care for each disability category; require IEP implementation to be material before constituting a violation of the law; and throw out the whole system and start again.

Please tell me what other changes you would like to see. IDEA will eventually be reauthorized - lets get our list together. Given our high level of credibility, I feel that we are being listened to by those who will be making the changes.

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Happy Thanksgiving

2009-11-25T21:06:00.001-05:00

Please have a happy Thanksgiving. This is a time to count our blessings and to be thankful. It is one of my favorite holidays. As you may have noticed, I'm taking some time off from the blog this week to spend time with my family.

In the meantime, please keep thinking of ideas for my upcoming interview with Alexa Posny.

And enjoy the turkey.
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Breaking News: I Get to Interview the Assistant Secretary of Education Dr. Alexa Posny

2009-11-23T10:37:00.000-05:00

I am very pleased and honored to announce that I have been selected to interview the Assistant Secretary of Education for Special Education and Rehabilitative Services, Dr. Alexa Posny. My interview with the new OSERS Secretary in a couple weeks was made possible because of your support. The credibility of this blog is greatly enhanced by our large number of subscribers and the activity and participation by the members of the related special ed law groups on Facebook and the other social networking sites that we have created and nurtured. So thanks for supporting the blog. Please keep reading.

I already have more questions than time for the interview will permit, but I need your help. I'd like to include some questions from readers. So what would you ask the Secretary?

This interview is a big honor and a fantastic opportunity for me and for us. Thanks again for helping to make it possible.

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More on Standards of Care for Disability Categories- a Responsible Opposing Viewpoint

2009-11-18T13:53:00.008-05:00

We have some great readers. Hers is just one example: I ran a post a few days back on the recommendations for changes to IDEA by the National Association of Secondary School Principals. You can view that post here. They had some good ideas, I felt, but I took them to task on the idea of standards of care for each disability category. I still believe that I am correct, but I received an email suggesting that there is another side. The response was very thoughtful and well-reasoned, so I thought I would share it with you. As the comment shows, there may be more merit to the principals idea than I thought or at least they may have an argument. Here is the comment:

"Just a thought about your recent blog, I agree that standards of care for individual disability categories could defeat the individualized requirement of developing IEPs. It runs the risk of furthering categorizing kids into this disability or that, when we know that for most children, they do not necessarily fit into neat boxes.

However, I have long thought that the whole process of what is FAPE for my child to be extremely lacking in transparency. There is no consumer focused source of information that parents can access to know what are the best practices that my child's school should be using for my child's situation. ... I always give the example of what if their child was diagnosed with a medical issue that needed some type of intervention like surgery. The doctor is required to give me a full accounting of the condition, recommended interventions, risks and benefits of each intervention, reasons why an intervention is being recommended and access to a second opinion. Then, there are many reliable web resources to research the skills and previous mistakes an individual Dr. or hospital has made and information about the medical issue and treatment.

Contrast that with parents experience in the IEP process. A school generally tells a parent what they are going to provide, that they know best what to provide, they do not give information about other possible strategies and there is no evaluation available about the school's competency other than AYP data. Can you imagine a parent letting a surgeon take their child off to the operating room with as little information and such a weak informed consent process?

Creating standards of care might benefit schools by saying this is all you need to do and then you are off the hook. However, it could also raise the competency level of staff by saying this is approach is evidence-based and has been shown to work and you can give parents more to go on than just we think this is the right approach.

The down side is that we will get too tied to evidence-based practices and forget that education is not a science but also an art. Each human is different and responds with their own constellation of humanness to different strategies. Maybe standards of care could be established without becoming bureaucratic boxes. That might be just too much for such an industrial age system. I don't know."

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So what do you think?

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Charter Schools & Special Education: Part II

2009-11-16T14:23:00.000-05:00

This is the second in a series of posts on charter schools inspired by the excellent, recent law review article by my friend professor Mark Weber. You can read the first post in this series here. Professor Weber's article may be found here.

The number of charter schools is clearly on the upswing. In fourteen communities mo

Image by gothamschools via Flickr

re than one-fifth of all public school students attend a charter school. In three major urban areas, more than 30% of all public school kiddos are in charter schools: Detroit (32%); Washington DC (36%) and New Orleans leads the league with 57%. You can read all of the current statistics here .

For those of you who like research, there has been some research on charter schools, and of course a few controversies. This link will take you to a study by Caroline Hoxby and others about New York City's charter schools. This link will take you to a review critical of the methodology used in the Hoxby study. This link will take you to the national study by CREDO at Stanford University released in June which finds that the
the achievement levels at charter schools is about the same as that of students who do not attend charters. Are charter schools better than other schools?

Because it appears that charter schools are likely to be the next big thing, Professor Weber's article takes on added importance. One of the important principles that his article identifies involves procedural safeguards. If a special education student attends a non-private charter school, he and his parents are still entitled to all the procedural safeguards established by IDEA. This issue is near and dear to my heart inasmuch as I am a mediator and hearing officer and a consultant to states on dispute resolution systems. Procedural safeguards are an important part of the special education law, and how they are enforced in the charter school setting may make for some new law.

One difficult issue will involve who is the defendant. For the most part, IDEA places the responsibility upon local educational agencies (LEAs) to provide a free and appropriate public education to a child with a disability. This can become tricky with charter schools because sometimes they are themselves the LEA and sometimes the local school district is the LEA. So the charter school or the school district, or possibly both, can be the ones getting sued and providing the relief. Of course, if the charter school is a private school, procedural safeguards only come into play under limited circumstances (involving proportionate share and child find/evaluation), but that is way beyond the scope of today's topic.

So as with all changes, the legal knots will undoubtedly follow. Any ideas on other problems with these issues?

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Service Dog Wins Lawsuit; Illinois Court Rules

2009-11-14T11:40:00.007-05:00

A court in Douglas County, Illinois has ruled that Kaleb Drew, a first grader with autism can have his service dog attend classes with him. The final injunction was issued by the trial court last week. Here is the news story from radio station WGIL. Thanks to alert Facebook special education law group member Julie Kelley for the heads up.

Image via Wikipedia

This should not be confused with the case in the Illinois appellate court. There the circuit court of Monroe county, Illinois issued an injunction permitting Carter Kalbfliesch to have his service dog with him in class. The appellate court affirmed. Here is a news story by Metro East News.

remember my prediction: service dogs are becoming a hot button issue in special education law. Please continue to keep me posted on these news items.

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Changes to IDEA - Principals Weigh In; What Changes Would You Make?

2009-11-12T14:54:00.001-05:00

It is time to begin thinking about what changes you would like to see in the special education laws. IDEA will be reauthorized soon. I know that Congress has been busy with a lot of other stuff, but it is eventually going to come up. In our great democracy, the laws should reflect the input of the people. Too often though, the special interests, who are organized and who have political action groups and paid lobbyists and big time financial contributions, are the only ones communicating with members of Congress and the Administration regarding changes they would like to see in the law. I'd like to change that pattern.

The readers of this blog are a diverse group of special education stakeholders. They include: special education teachers, regular education teachers, students who will become teachers, parents of kiddos with disabilities, special education directors, hearing officers, school administrators, advocacy group members, lawyers for school districts, lawyers for parents, children with disabilities, adults with disabilities, law professors, law students, related service providers (like school psychologists and speech/language pathologists), paraprofessionals (like aides), professors of special education, employees of the technical assistance network, feds (like OSEP staff), state education staff, mediators, ALJs, staff of policy makers, school district personnel, and policy wonks. (NOTE: every time I try to list the types of readers, I unfortunately forget some. I'm sorry if I omitted you; please let remind me if I did.)

My thought is that now that we have a large number of subscribers (thanks for that) and legions of folks joining the related social networking groups, we ought to compile our own list of changes we want to suggest for IDEA and present them to the Administration and the congressional committees. So what changes would you like to see? If you could make any changes in the special education laws, what would they be?

One group is already in high gear. On November 3, 2009, The National Association of Secondary School Principals issued their list of recommendations for changes to the main special education law, IDEA. You can read their entire report here. They recommend some good changes including assessing children with disabilities for AYP/NCLB purposes at their instructional level rather than at their grade level, earlier transition planning, expanded professional development, assistance with teacher recruitment and fully funding IDEA. One of their suggestions, though, troubles me some. The principals organization suggests that standards of care be developed for each disability category recognized under IDEA. This suggestion seems to imply that there should be a standard autism program or a standard hearing impairment program. The cate

Keyser's 1898 Bas Relief For State Nor..." style="border: medium none ; display: block;" width="180" height="240">Image by takomabibelot via Flickr

gory of disability under IDEA is only legally relevant for purposes of the eligibility determination. Once a student is eligible, the only question is what are the child's educational needs. That is the function of the IEP. See eg, 34 C.F.R. § 300.320. Indeed, IEP stands for individualized education program. To have standardized programs would defeat one of the key policies and themes underlying the Act.

So what changes would you make? I'm making a list!

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The Price of Justice: Backdoor Effects of the Recession on Special Education

2009-11-09T10:22:00.009-05:00

Maybe I wasn't looking in the right place. I was expecting that the severe downturn in the economy would cause a movement to permit school districts to argue that expense or cost should be a defense in special education cases. I even ran a poll in this blog to that effect. The result was a resounding no. But as many readers have suggested, perhaps the effects of the recession have been more subtle. Maybe they are silently creeping into the decision making process in ways that are difficult to observe, let alone quantify. Subtlety isn't really my thing, but I think that these effects are likely present.

I have just discovered another insidious effect of the bad economy. It involves a state due process system. I admit that I have a bias here. (By the way check out the new disclosure on the lefthand side of the blog!) As many of you know, I am a hearing officer and I train hearing officers. I don't think this invalidates my opinion, but disclosure is good.

The due process hearing system is extremely important. It is at the heart of the system of procedural safeguards established by IDEA to protect the rights of children with a disability. The importance of procedural safeguards has been recognized by the U. S. Supreme Court in Shaffer v. Weast 546 U.S. 49, 126 S.Ct. 528, 44 IDELR 150 (2005) as the mechanism that levels the playing field in view of the information advantages enjoyed by a school district.

Indeed, there is almost always no other trial in a special education dispute. The decision of a hearing officer is appealable to court (or in some states to a second tier review officer). The doctrine of exhaustion of administrative remedies, however, requires that for almost all special ed disputes, the matter must first be heard by a hearing officer, and that the final administrative decision determines the matter in the absence of an appeal.

As readers of this blog know, we have done many previous posts on the hearing system. (These are available through the search bar on the lefthand side of the blog.) Every state system is different. Two states have a three person panel conduct the hearing. Many states require that hearing officers be lawyers; some do not. Some states contract with hearing officers. Some use the ALJs of the central panel. Some have a special section of the ALJ panel for special education cases. The vast majority of stats provide high quality training for their hearing officers; some states are not so diligent in this regard. (Remember again my bias here.) The 2004 amendments to IDEA require new levels of competence and training for hearing officers. Apparently, Congress was concerned about the due process hearing system.

I just learned of a big economic effect upon the due process hearing system in the state of California. The due process hearings there are heard by Administrative Law Judges on the central panel. They have a good bunch of people. I was one of the trainers at their annual training last March, and I have met some of them at other conferences and meetings. But the California economy is in big trouble. State employees have been required to have the state budget balanced on their backs. This includes the special education ALJs.

Specifically the special education ALJs are furloughed (that's HR talk for laid off) the first three Fridays of the month. That's a 13.9% pay cut. This despite a work load. that remains t

Image by Getty Images via Daylife

he same I find this type of red tape bureaucratic nonsense to be offensive. Does the California government think that these changes do not affect the quality of justice? Do they care?

I understand that times are tough, but how can these "furloughs" be justified. The ALJs have to be highly trained in special education law and in the nuts and bolts of running an administrative hearing. It ain't easy; I've been there. Won't these drastic actions affect the quality of the California due process system? If the procedural safeguards like due process hearings are at the heart of the balance between school districts and parents, how can this cheapness serve any important public policy. As they say during the hearing, I OBJECT.

Poll Results In; We're Back in First Place

2009-11-07T10:29:00.006-05:00

As a part of the fun component of the special education law blog, we run a poll on the lefthand side of the blog. These are not scientific endeavors, and we do not pretend that the results resemble science in any way. Nonetheless, we think that they are fun. The most recent poll just ended. The question was: Given the recession, should cost/money be a defense in special education cases? Here are the results:

43 (62%) No, money is no excuse
17 (25%) Yes, school districts don't have money
7 (10%) Maybe, tough question

Image via Wikipedia

2 ( 3%) I'm too poor to answer
0 ( 0%) No opinion

Thanks for voting. Pretty lopsided results. Case closed. (That's a joke, as readers of this blog know, no case is ever closed in special education law!)

In other breaking news, this blog is back in first place in the best education blog category for the 2009 Bloggers Choice Awards. The contest is very close, please vote for this blog. We were lucky enough to finish in first place in the best education blog category last year, and it would further boost our credibility if we can repeat. You will have to sign up and respond to an email, but we really appreciate your support. If you would like to vote for this blog, you can click on the Bloggers Choice Awards button on the left hand side of the blog or else follow this link. There are a bunch of other interesting blogs to check out on the Bloggers Choice Awards website, and they are organized by category.

Remember that you can now read this blog on your mobile phone. Of course, you miss all the polls and links and resources and really cool pictures of me, but you do get the posts. Just bookmark this website: http://www.xfruits.com/jimgerl/?id=79913

Don't forget to check out all of the other resources on the lefthand side of the blog. There are lots of links to other websites and blogs with a wealth of information about special ed and special ed law. For example, you can follow the news by reading the headlines of the smartbrief issued every weekday by the Council for Exceptional Children. (This is an example of a blog widget or blidget) You can also see what's happening in the education blog world by clicking on the blognetnews button. There are also links to the exciting special education law groups we have created on the social networking sites Facebook, Ning, LinkedIn and Plaxo.

Finally, if you haven't already done so, please take one of the free subscriptions to this blog that are available on the lefthand side of the blog. Numbers help achieve credibility in the blogosphere. We have a lot of great subscribers, but we always welcome more. Please spread the word. There are three ways to subscibe: by email (you have to respond to an email to activate it); through an RSS feed to an aggregator or reader (like Google Reader or Bloglines or Netvibes, etc); or if you have a blog or website, through a blidget (a blog widget that shows this blog's posts an/or headlines right inside your blog or website). Thanks you for reading.

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Teach Your Teachers Well: New Hot Topic -Teacher Education

2009-11-05T17:50:00.000-05:00

I know that a number of the readers of this blog are professors who teach future teachers. I know a bunch of them, and they are really good at what they do. They are enthusiastic and dedicated to their students and those children whom their students will be teaching. But the way we train teachers is suddenly in the news- big time. I suspect that the following comments don't pertain so much to the institutions where my friends work, but a national debate has begun and we need to discuss it here.

Secretary of Education Arne Duncan recently unleashed a firestorm when he suggested that the overall quality of teacher preparation programs in America is 'mediocre." Citing studies that over 60% of new teachers feel unprepared and his own discussions with teachers who feel that they did not receive enough practical classroom training and that they were not ready for behavior issues and dealing with poor children, Duncan stated his case. He called for revolutionary change in our methods of teacher preparation and stated that one million new teachers will be neede

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d in the next five years. Here is the New York Times story on Duncan's speech.

In a recent New York Times op-ed piece, Susan Engel, director of the teaching program at Williams College, took this point a step further. Here is the article. She suggests that teachers should be trained much like surgeons; working side by side with a very skilled mentor, getting plenty of feedback and taking on more and more responsibility as they improve as a teacher. She also suggests that student teachers and their mentors review videotapes of themselves in action to help them improve. She argues that student teachers should continue to study the subject that they will be teaching as well as education techniques; she strongly emphasizes the need for more training on the developmental needs of children. Finally she argues that school districts should be given the resources to hire new teachers in groups of seven to help develop more camaraderie.

These are some intriguing thoughts. I really like the surgeon-method idea. Teachers are important. Special education teachers are included within this group of important people. I think that one could easily make an argument that teachers, of general or special ed, are at least as important to our society and its future as surgeons. But if we train them like surgeons, shouldn't we also pay them like surgeons?

Also making recommendations for changes in teacher preparation and recruitment, as well as radical changes in teacher pay and evaluation methods, is the report issued Tuesday by the think tank called the Strategic Management of Human Capital. Scrolling down this link will lead you to the full report. I understand that the teacher unions fell that the committee that prepared their report ignored their input.

One of the problems that I have with the whole No Child Left Behind analysis is that it seems to blame the entire education problem on bad teachers. There are bad teachers; as a public school system product, I can say without equivocation that there are bad teachers. But really, there have always also been plenty of great teachers. I have a hard time believing that some bad teachers are the only thing wrong with the education system. Also the merit pay concept sounds like a good idea, but only if the evaluation system can be designed fairly- so that it truly identifies good teachers and not just the principal's pet or the popular kid!

What are your ideas on this topic? Do we need to make changes in the teacher preparation system? Are there other reasons that the education system is having problems?

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Charter Schools & Special Education: A New Article by Professor Weber Part I

2009-11-03T09:05:00.000-05:00

Have you ever wondered about how the special education laws apply to students in a charter school? We tend to think of charter schools as things existing outside of the educational system. Some tell me that they are a curse; others say that they are a panacea. I suspect that the jury is still out.

Image via Wikipedia

Back to the question of special education and the charter school, this is an area that gets people worked up sometimes. I'm going to cite an excellent law review article that might answer all your questions:

Weber, Mark C., Special Education from the (Damp) Ground Up: Children with Disabilities in a Charter School-Dependent Educational System (October 12, 2009). Loyola Journal of Public Interest Law, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1487667
You can get the article if you open an account on the SSRN here.

Now I have to admit that I have a bias here. (Hearing Officers always disclose their various potential biases. At least those hearing officers that I have trained do so!) Mark Weber is my friend. He is also one of the people who think about special education law issues, and I always enjoy reading his work.

Professor Weber goes into great detail in the article, and we will just scratch the surface here. I'm going to talk a little about charter schools in New Orleans in this post and a little about procedural safeguards in the next post, but I highly recommend that you read the whole article when you get a chance. It covers a lot of important issues.

New Orleans endured a great tragedy in 2005- Hurricane Katrina. The devastation and hardship was overwhelming. The response of the government was questionable. We all remember "Brownie;" don't we?

But one issue that has been less talked about is that Hurricane Katrina wiped out the New Orleans school system, or almost all of it. According to Professor Weber's article charter schools have been a key in the rebuilding of the school system. 49 charter schools now serve over one-half of the student population in New Orleans. That's a lot of charter school kids. The Recovery School District operates schools and oversees most of the charter schools.

Professor Weber argues that children with disabilities have largely been an afterthought in the rebuilding of the school system in new Orleans. He also discusses recent allegations that charter schools in New Orleans have steered away children with disabilities. If these allegations are true, the number of legal problems for the charter schools has risen dramatically. If charter schools are a part of the solution for education, clearly they must be able to educate children with disabilities as well as any other children.

So what is your opinion, are charter schools an effective option for children with disabilities? Are they improving our educational system? What principles should apply? What do you think?

Last Day to Vote on Our Poll; Tech Update

2009-10-31T09:31:00.003-04:00

This is the last day to vote on our poll. The current question is In this tough economy, should cost/expense be a defense in a special education case. No leads Yes 43 to 17 with 7 maybes and 2 too poor to vote. This is not a scientific poll. Nonetheless, be sure to make your voice heard. Vote today before the polls close.

The tech news is good. The most recent blog post was done by cellphone, and it was flawless. You can listen to my enunciation by clicking of the link to Jott. Unfortunately the corresponding Twitter mini-post got mangled. It was supposed to say "Musings of a special ed mediator. See Special Education Law Blog." Somehow musings became "uses" and law became "wall." But hey, as the public defender in My Cousin Vinny says, "I'm gettin' better!"

The post a few days back was done exclusively by email, and it was perfect. So both mobile options are working. This is great for me because I travel a lot.

Finally, the new mobile version of the blog is very successful. A number of readers have bookmarked the mobile website http://www.xfruits.com/jimgerl/?id=79913
on their web enabled mobile phones. They then can read the posts on their phones. They still need to subscribe, and that allows them to see the graphics and polls and links an

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d other resources that are not available on the scaled down version of the mobile website.

Our number of subscribers is at an all time high. Thank you and please keep spreading the word. The popularity of the blog helps our credibility in the blogosphere. Please keep reading.

The related special ed law groups on Facebook, Ning, LinkedIn and Plaxo continue to generate great discussions and interesting wall posts. The links to these groups are on the left hand side of the blog. Check them out when you get a chance.

Thanks again for reading this blog. I am very pleased that we can provide information, provoke thought, discuss policy choices and make resources available to all of the stakeholders who read the blog.

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Mediation feels better....

2009-10-29T15:31:00.001-04:00

Mediation feels better. I don't know about the participants but being a Mediator feels better than being a hearing officer.
listen

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California Court Rules that Private Insurer Must Pay for Autism Therapy

2009-10-28T10:20:00.003-04:00

A Los Angeles trial court has issued a preliminary ruling that private insurance companies must pay for applied behavioral analysis treatments for children with autism. The Court found that a memo by a state agency permitting denials of coverage for such treatments was an in valid form of regulation that conflicts with a state law requiring insurers to cover mental and emotional health problems equally to physical problems. Here is the news article from the L. A. Times.

It should be noted that this is just a preliminary ruling. As long time readers of this blog know, legal disputes are never over until they're over. (I couldn't resist quoting Yogi Berra with the World Series on the horizon. Next year it will be the Cubs; do you know how many years I have been saying that?) The case has not yet been decided. There is much more yet to come.

If the preliminary ruling stands however, this could be an important decision. It

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also may impact special education law. Many parents have attempted to have their school systems provide or reimburse for ABA treatments. These have sometimes been successful, but often get stuck in the methodology category. Since the Rowley decision, courts have held that methodology choices are the province of professional educators. Where a district program denied FAPE, however, some hearing officers and courts have ordered ABA programs. If insurance companies must pay for ABA treatments or programs, (and as I said above, we are a long way from that being "the law.") there may be fewer attempts to look to school districts to pay for such services.

What do you think about this?

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Correction: 12.1% of Americans Have a Disability

2009-10-27T15:27:00.000-04:00

The most recent post incorrectly states that 21.1% of Americans have a disability. That is a typo (or else proof of my arithmetic challenge. The correct number is 12.1%. Please follow the link for more details. I'm sorry for the confusion.

Thanks to alert reader Dick for bringing this to my attention.

By the way, this post was done remotely by email. Viva technology!
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Disability Statistics: All in One Place

2009-10-26T20:49:00.000-04:00

People often ask me about statistics. Sometimes even in combination with a lawyer joke.

If you're like me, it is hard to keep numbers at your fingertips. Don't get me wrong, I loved mathematics; I even took calculus. I just hate arithmetic (the actual adding, dividing, or otherwise dealing with numbers.) Hence my reluctance to even attempt quoting statistics.

But statistics are important in the disability arena, and I have discovered an important resource that provides a wealth of disability related statistics. An agency with a brutal name provides a great service. The agency is the Rehabilitation Research & Training Center on Disability Statistics & Demographics, or to its friends - Stats-RRC. Here is their website.

They publish an annual report with a wealth of information. The Annual disability Statistics Compendium - 2009 is a gold mine. The 160 page report has all kinds of statistics on the prevalence of disabilities, and the education and employment of persons with disabilities. You can download or read the entire report here.

Here are some stats to whet your appetite: 21.1% of Americans have a disability of some sort. The state with the lowest percentage of people with a disability is Utah with 8.9%. The highest is West Virginia with 19%.

As of the Fall of 2007, of the total of 49 Million students aged 6-17 in the United States, about 5.6 Million, or about 11.4%, receive special education services under IDEA. Of the 5.9 Million students aged 6 to 21 who receive special education services under IDEA, about 4.7 Million, or 79.8 %, spend at least 40% of their day in the regular education classroom. (As with most other categories in the report, there are breakdowns for these stats by state.)

By type of disability, the 5.9 Million students aged 6 to 21 receiving special education under IDEA, the breakdown by eligibility category is as follows:

2.6 Million specific learning disability 43.3%
1.1 Million speech/language impairment 19.2%
624,000 other health impairment 10.6%
487,000 mental retardation 8.3%
438,000 emotional disturbance 7.4%
257,000 autism 4.3%
131,000 multiple disabilities 2.2%
88,000 developmental delay 1.5%
71,000 hearing impairment 1.2%
60,000 orthopedic impairment 1.0%
26,000 visual impairment 0.4%
24,000 traumatic brain injury 0.4%
1,300 deaf/blindness 0.02%

There is a lot more detail in the charts and statistics contained in the report. I highly recommend it to everybody interested in special education.

Breaking News: You Can Now Read This Blog On Your Mobile Phone

2009-10-24T10:00:00.001-04:00

I love my Blackberry. I'll bet that many of you also don't remember how life was possible before the advent of the mobile telephone. I was slow to arrive into the information revolution, but I'm there now! One serious problem is that you don't get a good view of some websites on a Blackberry or other web-enabled mobile phones. Only the sites that have a mobile version, ie one readable with a phone, are easy to read and use. The full version of the special education law blog is difficult to read on a phone. But guess what?

In my ongoing quest to make the best uses of technology, this blog now has a

Image by johnmuk via Flickr

mobile version which you can read on your cellphone. Just put this website into your mobile browser and bookmark it (I'm talking like I know the lingo; please ignore any incorrect word choices):
http://www.xfruits.com/jimgerl/?id=79913

The new mobile website doesn't have all the cool graphics and the links, polls and widgets. of the full version of the blog. It does, however, have a list with links to all of the last twenty posts. I have tried it out and the posts are very easy to read.

There is also a new link to the mobile version of the special education law blog on the lefthand side of the blog, but it should be easier if you load the website into your cellphone. Let me know how it works.

So for those who cannot get enough of this blog, you can read my posts while stuck in an airport or during a boring meeting. (Hey not during my presentations or speeches, ok?). Also please continue to subscribe; we need your support through the free subscriptions to maintain or blogosphere street cred. (Once again forgive my abuse of the language.)

But remember, as exciting as this development is, please do not read this blog or anything else on your phone while driving an automobile or any place else that may not be appropriate. Thanks and please keep reading.

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Big New Decision by 5th Circuit: Part I - Educational Progress & FAPE

2009-10-21T16:32:00.003-04:00

Most special education hearing officer and court opinions are pretty boring. They cite ROWLEY, the seminal supreme court decision, pay homage to the FAPE requirement and apply boilerplate from previous decisions. But every once in a while, there is a case with some new analysis. Special ed law junkies, like myself, love these reasoned decisions that seem to break new ground. Sometimes the new approaches of a court will not "have legs;" they die on the vine. Other such decisions are embraced by other hearing officers and courts around the country and become a new trend or hot button issue.

That is the true beauty of our legal system. A court applies some new logic or announces a new rule. Then professors and litigants either love it or hate it and they battle it out in other places As hearing officers and later other courts accept or reject the groundbreaking opinion, a rule gets straightened out. But as special education law lovers know all too well; there is no finality here. After the "rule" is established, Congress reauthorizes the statute and perhaps changes the rule. Then the feds ,as I love to call the Department of Education, adopt regulations. Then the states adopt regs. The cycle never really ends, and I don't think that's bad unless you abhor ambiguity. (Show of hands here, how many remember the "F-Scale?")

So the Fifth Circuit Court of Appeals has turned out two big new special education decisions in less than a month. In the next installment in this series, we'll deal with the decision involving reimbursement for unilateral placements: residential vs. educational. Today we'll discuss Houston Independent School District v. V. P. 53 IDELR 1 (5th Cir. 09/09/09). You can view the opinion here.

The court first reiterated the Fifth Circuit's four part test for whether an IEP provides FAPE:
"We have set out four factors that serve as "indicators of whether an IEP is reasonably calculated to provide a meaningful educational benefit under the IDEA," and these factors are whether "(1) the program is individualized on the basis of the student's assessment and performance; (2) the program is administered in the least restrictive environment; (3) the services are provided in a coordinated and collaborative manner by the key 'stakeholders'; and (4) positive academic and non-academic benefits are demonstrated."

NOTE: I strongly disagree that the second factor is a component of the FAPE analysis. I believe that LRE is a placement issue unrelated to the services issue underlying FAPE. I believe that FAPE is a separate and independent requirement of IDEA. That is not at issue in this case, but as my lawyer friends like to say, I am preserving my record for a fight for another day!

Back to the VP decision, the court focused upon the fourth factor in its FAPE analysis. The unusual thing about this decision is that the teacher testified that she thought the student had made academic progress not because of his IEP but rather because of modifications implemented by the teacher that were not submitted to or approved by the IEP team. The school district argued that the student had made academic progress and that was the end of the debate; case over, they win. The Fifth Circuit said not so fast. The student made academic progress in spite of not because of the district's IEP. Accordingly, this is not FAPE as defined by IDEA. Parents win.

This is somewhat related to the issue of whether a court or hearing officer may consider evidence of academic progress after an IEP is written or whether the only question was whether an IEP was reasonably calculated to achieve academic benefit at the time it was written. I once thought that that would also be a hot button issue, but itseemed that it never "had legs!"

This case is a big deal. Look for lots of discussion on this point. Other hearing officers and courts outside of the Fifth Circuit may disagree. This case is only the law for the Fifth Circuit, which includes Texas, Louisiana and Mississippi. Courts and hearing officers from other states can consider the reasoning of the VP decision and accept or reject. By the way here is a nice map of the states covered by each federal circuit court of appeals.

So I am again predicting that this case is going to be a trend or hot button issue in special education law. What do you think? Please let me know if you hear of academic progress not tied to the IEP being rejected, or accepted, in other jurisdictions. I like to keep track of these things. I'm anxious to hear your reactions. Thanks in advance.

Cure for Autism?

2009-10-20T16:47:00.004-04:00

I was listening to the radio while driving through Washington, DC today. One of the stations was having a series of listener support drives. One speaker was named Gary Null. He was offering a number of items as premiums in exchange for pledges from listeners. If it was not public radio, it sure sounded like it.

He talked a lot about immune system boosters and free radicals. One of the listener premiums available to listeners who pledged a contribution was a Berry/Fruit concoction that was supposedly good for one's immune system. He also referred to the staff of the FDA as "skunks", and argued that the FDA was under the control of the pharmaceutical industry. He urged listeners to vote against all congressional incumbents.

But what caught my attention was his remarks concerning autism. He claimed to have a protocol that he could recommend that would cure autism. He gave some examples of kids he has worked with who now have no symptoms associated with autism related disorders.

The connection with our topic here is a bit thin, I'll admit it. But there are a lot of decisions in special education cases in the last few years concerning methodology, especially in cases involving autism. Even though the law is pretty clear that school districts can upursue various methodologies so long as they provide FAPE to the student. So most of these cases don't go very far, but I'm thinking that if this Mr. Null claims to have a cure, we will likely see a bunch of cases involving his system.

What do you think? Is there a cure for autism? If so, will or should that affect the legal obligations of school districts? I predict some arguments on these points.

Breaking News: Facebook Special ed Law Group Now has 600 members

2009-10-16T15:06:00.004-04:00

Welcome to the blogosphere. As regular readers know, I'm still getting used to it although the uses of the internet for information sharing are almost limitless. I appreciate the need to try to utilize the new developments in technology to help people. That was the goal of this blog from the beginning. We have spread mostly understandable information about special education law and made known resources that are available to stakeholders. Our growing and large number of subscribers (from all sectors of special education stakeholders) shows that the plan is working

The Special Education Law Blog also seeks to use social networking tools as additional resources. We have also had great success in this regard. The lefthand side of the blog lists our mini-posts, also called tweets. The lefthand side also lists links to the Ning, Plaxo, LinkedIn and Twitter groups. By far the most successful of the groups, however, is the Facebook Special Education Law Group. I'm pleased to announce that the Facebook group has just gone over the 600 member mark. That's a big group. The discussions are pretty lively, and the opinions are strong. There is also a wall and a place to list other non-commercial resources. If you are involved in special education, please join the group. We'd be happy to have you. And to the group members, congratulations on passing another milestone.

Image via Wikipedia

It all started right here of course, and I really appreciate our readers. Please take one of the free subscriptions (available as email, RSS feed or a widget for your own blog or website) , if you haven't done so. Numbers drive credibility in the blogosphere, and we are quickly becoming a big fish. (I'm not sure I've ever quite used those words before, but I like the sound of it!)

Thanks again everybody.

Service Dogs Part IX- Illinois A. G. Weighs In

2009-10-14T11:20:00.000-04:00

We have discussed the Illinois service dog case previously in this blog. I am fascinated by these types of cases and I believe that they are a hot button issue in current special education law. For example here is a link to a recent service dog case from New York state recently reported in the Adjunct Law Prof Blog. (Thanks to Professor Mitchell Rubinstein for the article and the heads up.)

The Monroe County Illinois Circuit (1st level) Judge granted the parents of 5 year old Carter Kalbfeisch, who has autism, an injunction requiring the school district to permit him to bring his service dog with him to school. The school district has appealed the decision claiming that other children are allergic to dogs.

The newest development in this case is that Illinois Attorney General has weighed in on the issue. The AG has filed a motion to intervene on behalf of the parents. She argues that the outcome of the appellate decision could affect other students with disabilities who use service animals.

Here is a news article from the Mt. Vernon Register- News.

Please keep me posted if you know of other service dog cases around the country. Thanks for all your support.

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Senate Confirms Alexa Posny as Assistant Secretary of OSERS

2009-10-12T18:00:00.000-04:00

On October 5, 2009, the U. S. senate confirmed Alexa Posny as Assistant Secretary of education for the the Office of Special Education and Rehabilitative Services. This portion of the Department has jurisdiction over special education and vocational rehabilitation, among other things. Here is a link to the OSERS website.

Image by vassego via Flickr

Alexa Posny is currently the Commissioner of the Kansas Department of Education. She has formerly served as Director of the federal Office of Special Education Programs and as the state Special Education for Kansas. Here is an article from the Topeka Capitol Journal. Here is another biography of the Assistant Secretary.

I have seen her speak and she is a very effective and witty communicator. Good luck to the new Assistant Secretary from the special education law blog. I have already sent a written request for an interview.