Special Education Law Blog

NY Court Rules Parents Entitled to Retroactive Payment of Tuition

School district's have a nearly infinite ability to argue for the most strained construction of the law. The make these arguments because given the conservative nature of the judiciary they may just meet with a positive reception to their strained arguments. Moreover, the the old legal adage applies that "if the law is your side your pound the law, if the facts are on your side you pound the facts, and if neither are on your side you pound the table." In the case A. ex.rel.D.A. v. N.Y. Department of Education, 2011 U.S. District. Lexis 9475 (S.D.N.Y.2/1/11), the parents won their claim for a private  unilateral placement for their child. The child was enrolled for some period of time, the parents had not paid the past tuition but it was due and owing to the private school.  The school district argued that the court could not order reimbursement for past tuition because that remedy only applied when the parents had the ability to pay tuition and in fact had paid.

The court rejected the school district's argument finding no support for in IDEIA for this position. It applied the well established statutory principle, that permits the court to fashion a necessary remedy to provide the student with a FAPE. It further concluded that there was nothing in the law that limited the court's ability to order retroactive reimbursement where the parents had proven their case and the fairness of the evidence weighed in favor of ordering the reimbursement. The fact that the law in no way created a limitation on the right of the court to fashion a remedy, in no way deterred the school district from making such a baseless argument.

As a practical matter, a contrary ruling would have meant that only parents with greater resources are entitled to receive a full measure of FAPE. In addition, if the retroactive payment was denied, the child could have been kicked out of the private school making the victory totally hollow. Moreover, if the parents had to pay back the retroactive tuition their entitlement to a FREE appropriate public education would hardly be free at all.  Here is one case to celebrate that the court actually applied the law to the facts with a healthy measure of common sense and reached the correct conclusion. Congratulations to the family for winning and sustaining the fight especially in the face of such arguments!

 

List of Transition Assessments to Share with School

School personnel claim to have expertise in all things educational. When it comes to transition assessments, too often the attitude is "what is that" or just do career cruising. Career crusing may be part of the process but it should not be the whole process.

Here is a good list, albeit not comprehensive, of transition assessment to fill that void in the conversation with school personnel when they ask parents "what kind of transition assessment do you have in mind?" Download 4933_0001

Transition Amendment Bill A Step Up for Students

Congressman Gregg Harper is the only member of Congress with a child with Fragile X. He is putting his life experience to good use in his proposed amendment to the transition provisions of IDEIA. He has proposed a bill that contains a significant set of amendments to the transition sections of IDEIA, which would greatly bolster the rights of students to have more robust transition planning. (see copy of the bill by clicking on the pdf Download 4926_0001). This bill proposes to reduce the age that transition planning begins to 14 from the federal level of 16 in the current IDEIA (in Illinois it is 14.5 years of age). It calls for the development of objectives as part of the transition plan and that the IEP should contain:

"a strategy to address the needs of the child related to academic and school-based prepatory experiences, work and career readiness, youth development and leadership..."

Sounds very good to me expecially compared to the often non-plans that I see every day in my office that are generic and missing in any real specifics. We need strategies and we need enhanced definitions and delineation of transition needs that this bill provides. I hope Rep. Harper will be able to shepard this bill through as things heat up in the reauthorization processs.

Death of Child in School Leads to Possible Liability

Imposing money damages on schools for violations of IDEA rights and other violations is far from easy. Parents are often dismayed to learn that very blatant and egregious violations of their rights will not support an action for damages.  Failing to provide services, prompt evaluation or implementation of the IEP are all bad, and can result in a hearing officer ordering compensatory education and reimbursement to the parents for relevant out of pocket expenses, but not damages. To reach the level where a court will allow a case for monetary damages to go forward the facts must be  "shocking to the conscience."

A tragic recent case from Detroit Michigan unfortunately helps illustrate what facts are shocking to the conscience. (See Shinn v. Detroit Public Schools, 09-13799, February 2, 2011 Download 4924_0001) A paraprofessional working with a student with CP and a seizure disorder berated the child, caused her to fall and have a seizure.  A witness stated that as the paraprofessional pushed the child she yelled "you know I don't like you." The child died a few days later following the incident.

Usually there are no witnesses who are willing to step up and testify, and the facts of these cases are not so lopsided. Too often there is an element of "he/she had it coming" when a student is injured at the hands of a staff member.  Cases where the court allows the case to go ahead are infrequent, albeit the number of students being injured in school unfortunately is not.

House Restores Funding Cuts for Special Education for Now

The House voted to restore the $557 million cuts for special education funding. It is not time to celebrate quite yet. First, the budget bills are far from final and there may yet be cuts before this process is over. Second, as CEC, a lobby group for educational issues, stated; "it amounts to robbing Peter to pay Paul. That’s because under the [funding] amendment, the funds restored to special education will be taken from other [general] education programs."  Taking money out of general education funding will have a negative effect on students with special needs when they are in general education settings. President Obama's budget proposal contemplates modest increases in education funding. I will keep you posted on the budget battles as this unfolds so we can keep up the pressure on Congress.

 

Local School Districts Already Facing Big Cuts

The GOP recently proposed a $500 million cut from special education when local school districts are contemplating and about to approve stiff cuts in funding and services.  Fortunately President Obama has come out for more spending for special education. Big cuts are being proposed at the state level as well. Of course, in times of crisis, the first line of attack is to blame the special education students for causing ruination to the overall state educational budgets. The issues is systemic and not caused by the needed funding for the special education. 

Virtual Law Office to Allow Parents Access to Legal Representation

I am proud to announce that today I have launched the first virtual law office that represents parents of special needs in the area of special education law and guardianship! (This virtual law office will be in addition to my bricks and mortar office in Northbrook, Illinois.) The access point for my virtual law office is my website foxspecialedlaw.com.

Just a few months ago I read about a new concept in the practice of law--Virtual Law Office ("VLO").  As I looked into VLO, I realized that this new way to practice would allow my office to more effectively represent parents nearby, and provide access to those families who are outside of more urban centers who otherwise have not had access to legal services at all. The concept is to offer full service, and more limited representation (the new term is "unbundled services") but still effective legal services (e.g. counseling prior to a meeting, reviewing letters and input statements). I have had numerous encounters with parents where I have given them some critical advice on the phone or reviewed a document that has changed the course of an upcoming meeting in favor of the parent. 

Tell Congress to Oppose Bill which Cuts Half a Billion Dollars in Special Education Funding

This is a critical time to step up make your voice heard. Congress and especially the Tea Party members think the way to balance the budget is to make drastic cuts to special education. If you have never called or written Congress before this is the time to do it. Below is an urgent appeal from CEC with the salient points.

New Report on STDs and Teens

A recent report finds that  many students who claim to be abstinent from sexual activity are testing positive for STDs. The conclusion is that doctors need to do more than just take the teen patients word on their sexual activity and more outreach needs to take place.  While the report focuses on teenaged students generally, it further highlights students with special needs, who are especially vulnerable for a variety of reasons.  For many students that I represent there are particular issues of impulsive behaviors, lower self-esteem making them vulnerable to peer pressure, and lack of a meaningful curriculum that applies to them.

I was recently at an IEP meeting where the teacher actually modified the curriculum and adopted curriculum for her self contained class of students providing a diagnostic report at the end of the unit.  The teacher is young and enthusiastic about teaching, but most importantly she had the support of her special education director and superintendent. Without this leadership she would not have had the leeway to take such an innovative approach to her teaching.  Hopefully this new report will put even more emphasis on appropriate teaching to keep all students safe, and especially those who are the most vulnerable, students with special needs.

Illegal Holds, Restraint and Seclusion by Nicole T. Jorwic

Here is a message to school personnel "take your hands off the students!" I was recently at a school for a meeting for one of my clients. The meeting had gone well and I was exiting the building ready to get back to the office, when I was stopped in my tracks. I saw a young and small elementary student, who appeared to be a student with special needs, being "lead" by staff with his arms held behind his back. I also heard the offending staff saying to him "come on it's time to use the bathroom."

Seeing this sight caused my blood to boil, this student was much smaller then the staff that was manhandling him, and he was obviously in distress. I immediately said something to the staff, asking why they had their hands on the student, she retorted "who are you?" and I answered "a lawyer." The mention of the "lawyer" word (which I invoke sparingly), at least in the immediate instant, got the staff to unhand the student. I quickly explained that I was trained in the techniques that I assumed she was attempting to use and that the hold she was using was not one of the approved holds, but before she could answer I saw another, even smaller student being pulled even harder by the arm to go to the bus. At this point I was feeling like if I didn't get out of this school someone was going to have to restrain me! I calmly walked over to the new offending staff member and had a similar exchange.