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October 27, 2006


andrew cuddy

On May 11, 2007 the due process hearing of Jeffrey and Sandee Winkelman, on behalf of their son with autism, ended the evidentiary phase. This hearing addressed the special education issues of their son Jacob for the 2006-2007 school year. The Winkelmans have been in litigation with the Parma City School District for a number of years regarding the free, appropriate public education which the Individuals with Disabilities Education Act requires their son to receive. The Winkelmans are involved in a lengthy court battle with the PCSD over whether a parent has a right to proceed pro se (for themselves without an attorney) in matters of the IDEA (the law addressing special education). The decision in that matter should be rendered within the next month by the U.S. Supreme Court.
In the current due process hearing, the Winkelmans are represented by attorney Andrew Cuddy, of Auburn, New York. Cuddy was admitted pro hac vice (for this particular matter) under the sponsorship of Michael J. Goldberg, a Cleveland Criminal Defense attorney, who represented the Winkelmans for the 2004-05 and 2005-06 school years. Michael welcomed the help from Cuddy and sponsored him so that he could practice law in Ohio on behalf of the Winkelman family. Cuddy is an experienced special education attorney that has recently published The Special Education Battlefield: A Guide to the Due Process Hearings and Other Tools of Effective Advocacy (available at www.andrewcuddybooks.com).
The current due process hearing is addressing the Winkelman’s claim for reimbursement for a private school placement of their son at the Monarch School, a state approved school designed to meet the educational needs of students with autism. PCSD claims that the school is not appropriate, and that the parents are not entitled to reimbursement. PCSD further maintains that its in-district program is appropriate to meet Jacob’s needs, despite the Districts failing special education programs according to Ohio Department of Education records.
The hearing lasted eleven days. During the hearing the Winkelmans presented testimony of three individuals that were qualified as experts by the hearing officer who testified that the PCSD program would cause irreparable harm and injury to the student. The District only presented the testimony of their staff to support the District position that the PCSD program would “allow for educational benefit.” “I believe the District staff was pressured to misrepresent information to the hearing officer, and am investigating this matter further so that it can be brought to the attention of the appropriate authorities if warranted,” said Cuddy.
Cuddy stated, “The position of the District is outrageous. Experts and the child’s physicians are telling the District that their program will cause irreparable harm to the student. For the District to insist the student attend this program is evidence of their complete disregard for the student’s well-being.” Cuddy has launched an investigation into the budgetary issues of the District, as he suspects that IDEA money that is designated for special education programming is being funneled to the School District’s attorneys. “There is no other explanation I can imagine for a District spending $1,000,000 dollars defending a program that all the experts involved in the case conclude will injure the child. If we follow the money, I believe we will find the individual for this decision-making,” Cuddy said.
When asked of his opinion regarding the case, Cuddy expressed confidence. “The burden of proof in these due process hearings is upon the parents. We presented multiple experts with advanced degrees supporting the parents’ position. Every service provider familiar with the child supported the parents’ position with their reports and testimony. The District’s defense in this matter was based on the opinions of their own staff, which certainly appeared ‘coached’ as each witness testified about hours of preparation spent with multiple school district attorneys.” Cuddy further stated, “The only way that I can imagine the hearing officer ruling against the parents is if the corruption in the District goes beyond the District and to the level of the hearing officers and the Ohio Department of Education.”
As an attorney from New York, Cuddy expressed surprise about the programs that were described by the PCSD staff. The classrooms, which were continually referred to as “units” by the PCSD staff, offered little educational instruction to the students. In the morning hours, the special education teacher only spent 15 minutes of time with each student. The remainder of the morning the student only received the attention of a classroom aide, a person unqualified to provide instruction. A similar routine was established in the afternoon, allowing for minimal time with a certified teacher. “Districts are not allowed to ‘warehouse’ special education in this manner. These children are entitled to teaching services equivalent to a regular education student. That is not happening in Parma. I am surprised that other parents are not up in arms. There was also evidence in the hearing that the Parma staff is using mechanical restraints in the classroom to control behavior of students with autism. This rises to the level of criminal conduct, in my mind, as the state’s own regulations prohibit mechanical restraints for this purpose,” Cuddy said.
The hearing also focused on the School Report Card of the Ohio Department of Education. “Parma did not pass. The District’s action plan to address their failures in special education, and complained of inadequate funds to properly train staff. It was clear during this hearing that the staff members are not properly trained, and that there are funding issues.” The two classrooms addressed in the hearing both exceeded the state limit of eight students. Cuddy is continuing to investigate the funding issues. “It seems very clear from the District’s records that money intended to pay for special education programming is being used to pay attorneys to fight providing appropriate special education programming. This is contrary to what the law allows, as it is a violation of law to use special education money to pay attorneys. This practice negatively impacts of the provision of special education services to all the students in the District.”
A decision from the impartial hearing officer, Harry Taich, Esq., is due on June 28, 2007.

If you have questions regarding this press release, please contact Andrew K. Cuddy, Esq.

(716) 868-9103
[email protected]

andrew cuddy

The Winkelman family is still locked in a legal battle with their school district over the needs of their child. The due process hearing for the 2006/07 school year just concluded, and the hearing officer's decision is pending - due on 6/28. The parents had three experts testify that the District's recommendation would cause irreparable harm and regression to the child. The Parma Central School District's program was nothing more than a warehouse, where little education goes on at all.

Andrew Cuddy
Attorney for the Winkelmans

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