Special Education Law Blog

New Federal Regulations Expected Soon

Any day now the new IDEA 2004 Federal Regulations are expected to be released from the Office of Management and Budget (OMB). The regulations are then set to go back to the Department of Education. If the regulations are then finally approved, they will be released in time for the start of the school year. Past experience suggests that nothing works exactly as expected but realistically the new regulations will be available in the first part of the school year.

The more interesting part will come with the mad flurry of analysis and quarrels over the meaning of the regulations. A lot of the "definitional" meaning of the statute may be fleshed out in the regulations. However, many parts of IDEIA left very little room for agency discretion so the regulations should track closely with the statute. Stay tuned for more analysis once the regulations are made public.

Autism-Mercury Science Rejected

There has been a recent case where the science linking between mercury and autism has been thoroughly rejected. The author of the article seems to be on a mission to discredit any and all evidence of a mercury-autism linkage.

Winkleman Case To Determine Whether Parents Can Represent Claims In Court

The U.S. Supreme Court has another case relating to IDEA pending on its docket, Winkelman v. Parma School District from Ohio.  The underlying case from the Court of Appeals for the 6th Circuit is reported at Download Winkelman_v. Parma School District.pdf . In this very brief decision, the Federal Appeals Court held that IDEA does not permit parents to represent their children's rights in court. Parents apparently are smart  and capable enough to handle the rigors of representation at IEP meetings, mediation, resolution sessions and even at due process, but court is out of bounds according to the Winkleman court.  The Supreme Court is considering the parents petition to appeal the case to resolve a split in the Federal Courts of Appeal, as the 1st Circuit Court of Appeals based in Maine ruled the opposite way to Winkleman.  If the appeal is granted the case would be argued during the next term of the court.

Autism-Mercury Case On Track for Federal Court Trial

There has been much debate with charges and counter-charges over the linkage between autism and mercury (thimerosal) that was used as a preservative in various vaccines given to children.  Up until now the cases have been routed to the special Federal Court of Claims under the 1986  National Childhood Vaccine Injury Act. This court has been dubbed the "vaccine court" and it issues decisions without a jury on a no-fault basis, and many believe that the awards are lower than would be awarded in court in a case tried before a jury. 

In March 2006, the Court of Appeals for the 5th Circuit based in New Orleans issued a ground-breaking decision in the case Holder v. Abbott Labs. [ Download Holder_v. Abbott Labs.pdf ]. This case for the first time opens the doors of federal court to jury trials to hear parents' cases alleging that mercury/thimerosal caused their child's autism.