Thursday, July 26, 2012
Wrightslaw is live blogging all week. We hope you will join us for Day 4 from the Institute of Special Education Advocacy (ISEA).
Agenda for Today
- Panel: Evidence Strategies by Parent Attorneys
- Experts as Fellow Advocates
- Preparing a Case for Due Process / Trial
- Using Evaluations, Tests and Measurements as Evidence
- Strategies for Working with Parents
3:44 pm Wrightslaw
Strategies for Working with Parents by Pat Howey, Advocate from Indiana
Pat Howey is an active advocate for families who have children with disabilities. She specializes in dispute resolution. Pat is a member of the Wrightslaw Speakers Bureau. She is also a charter member and former member of the Board of the Council of Parent Attorneys and Advocates.
“Learn to develop a language of persuasion, rather than a language of positional combat.”
~ Brice Palmer, Master Advocate, Vermont
Rules for Working with Parents
Burning the candle at both ends makes such a bright light!
Special education advocacy is what you do. It is not what you are.
- Rule No. 1. You cannot fix everything.
- Rule No. 2. You can’t change Rule No. 1.
- Rule No. 3. Your client’s emergency is NOT your emergency.
- Rule No. 4. Recharge your batteries often.
- Rule No. 5. Establish regular business hours.
The pleasures and perils of a home office:
- You are always at work
- Answering machines
- Voice Mail
- Websites and blogs
The Advocate’s IEP
- How many hours do you have to devote? Full time/part time?
- Where are you now?
- What are your strengths and challenges?
- Set business goals and objectives. Base your goals and objectives on your identified Present Levels.
- Reassess your goals frequently and change them as needed.
Screening Clients: First Phone Call
- Who else have you talked to?
- Who referred you?
- Are you already working with an attorney or advocate?
- What do you want me to help you with?
Identifying problem clients
- Attila the Mom
- The Mom from Hell
- “I have filed twelve complaints this year and now I’ve filed for a hearing.”
- The parent who wants you to do everything for him/her.
- The client who wants to do something “right now!”
Turning down clients
- Do not say “you do not have a case.”
- Do not say “you have a case.”
- Do say, “Just because I cannot help you right now does not mean you do not have a good case.”
- Provide a referral list of attorneys and advocates.
Working with Parents: Basics
- Do not promise to fix everything
- Do not promise to find an attorney.
- Do not pour gasoline on an existing fire.
- Maybe YOU are the one who can prevent or stop a wildfire!
- Promise only what you know you can deliver.
- Promise little and always deliver more than you promise – John Karolzak
Letters of agreement
- What to do with
- Advocate notes
- Client notes
When should you terminate a client? Sooner rather than later.
When should you involve an attorney? Sooner rather than later.
- Practice and Conduct
- Ambulance chasing
- Use Bar Association Codes of Conduct
- What advocates can do for clients
- What advocates cannot do for clients
- Know your State’s UPL laws
- Unpaid does not not mean unprofessional
- Unpaid does not mean you cannot be sued
Time & Money
- Free v. paid services
- Puppies and kittens
- Armchair advocacy
- Making parents accountable
- Use technology: Skype, digital tape recording
Allow Parents to Help, Work on their Case
- Organize the file
- Develop a Chronological history
- Write a Parent Report or Agenda
You will teach parents
- Stock sentences to say at IEP meetings
- Repeat, verify, explain ONCE
- Refer to the Report/Agenda/Checklist
- The problem may NOT be that they do not understand; the answer may be “No.”
- To identify when the answer is “no.”
- When the answer is, “No,” stop explaining
- To not beat a dead horse
- To move on
- To tell the team that you will note your objection in the written opinion
- To keep a “score card”
Teach parents three Key Phrases: I understand. I disagree. I will put it in my written opinion. Repeat this at least three times (Rule of Threes)
Teach Parents …
- How to deal with intimidation.
- Do not get angry.
- Do not react.
- Consider being passive.
- Do not make eye contact.
- Wait out the situation.
- Use apologies wisely.
1:48 pm Wrightslaw
Show Me the Data! Using Evaluations, Tests and Measures as Evidence by Mark Kamleiter Esq.
Mark Kamleiter represents children with disabilities in due process and in Federal Court, advocating for an appropriate education in public school systems.
Evaluations are central to educational advocacy and in due process litigation.
Evaluations provide the scientific evidence needed to establish the existence and nature of educational disabilities. Periodic evaluations establish baselines and measure progress or lack of progress. Evaluations are the tools and language of the experts who will testify in due process and civil litigation.
Special education advocates and attorneys need to be familiar with the statutes and regulations about the identification and qualification of a child as a “child with disabilities.”
“Failure to Identify” is a common issue in special education litigation. If the district fails to identify a child with a disability, the district may have to provide compensatory education or reimbursement for a private placement. However, this assumes that the parents gave appropriate notice that meets legal requirements.
Requesting an Evaluation: Put it in Writing
If a parent, teacher, or other person suspects that a child may have a disability and makes a written request for an evaluation, the district has an obligation to perform the appropriate evaluations within a specific time frame that differs from state to state.
If the parent wants an evaluation, they need to submit a written statement that they suspect the child has a disability and are requesting an evaluation. This request evokes the district’s positive obligation to evaluate the child for a disability.
Parents should submit their request in writing to the school. They should say that they believe their child may have a disability and are requesting an evaluation. This request evokes the district’s positive obligation to evaluate the child for a disability.
Because schools often ignore parental requests, the parent, advocate or parent attorney will need to be proactive to ensure that the school completes evaluations. All communications with the school need to be in writing.
Put Suspicions in Writing
If you suspect that a child may have a disability, describe your concerns to support your request for an appropriate evaluation. State that this letter is your consent for evaluation. If the school has a “Consent for Evaluation” form, ask the school to send it immediately. The timeline for performing an evaluation does not begin until the school receives the parental consent for evaluation.
Child Find Obligation
The IDEA includes a “child find” obligation that requires school districts to locate, identify, and evaluate children who are suspected of having a disability. Teachers often miss the children who have learning disabilities, ADHD, and even autism.
Before a child can be eligible for special education and related services as a “child with a disability,” the school district “must conduct a full and individual evaluation…”
Timeline for Evaluations
Under IDEA, the school district has sixty (60) days from the date the parent signs consent to conduct the evaluation unless the state has a different timeline. You need to get a copy of your state special education regulations to determine the timeline in your state.
1:45 pm Wrightslaw
Marilyn Bartlett, a person who has dyslexia, sued the NY Board of Law Examiners for refusing to provide reasonable accommodations on the bar examination.
Pete Wright said: “In the Bartlett case, Judge Sonja Sotomayor wrote the best description of learning disabilities that I’ve ever read in a legal decision. She got it!”
What is the Bartlett case? Learn more about Marilyn Bartlett and this case.
12:19 pm Wrightslaw
Tips on Preparing a Case for Due Process / Trial with Mark Kamleiter Esq. and Pat Howey, advocate
Mark Kamleiter represents children with disabilities in due process and in Federal Court, advocating for an appropriate education in public school systems. Mark also serves as a director on several organizations including the board of the Council of Parent Attorneys and Advocates, Inc. (COPAA) and is a frequent speaker on issues related to the education of children with disabilities.
Pat Howey has been involved in special education advocacy since 1985. She is an active advocate for families who have children with disabilities and specializes in dispute resolution. Pat is a member of the Wrightslaw Speakers Bureau and a charter member and former member of the Board of the Council of Parent Attorneys and Advocates.
This training is NOT about teaching advocates how to represent parents in due process!
Advocates can play important roles in hearings:
- Attending with parents who are pro se
- Attending with or assisting lawyers
- Helping parents prepare
- Attending resolution meetings, mediation, settlement meetings
In a minority of states, advocates may conduct a hearing as “Qualified Representatives.” Lay advocate Lilly Rangel-Diaz of Florida has a win rate higher than some attorneys. She is generally aided by an attorney.
This training is NOT a comprehensive training for attorneys on how to prepare for hearings.
- Team up with an experienced attorney
- Sit second chair during at least one hearing
- Find a hearing that is open to the public and observe
- The Council of Parent Attorneys and Advocates has intensive trainings
- Check for Special Education parent attorney organizations
You should assume that:
- Every case will go to hearing
- Every case will be appealed
- Every case will end up at the U.S. Supreme Court
- Of course, this won’t happen but you should prepare as if it will
- The Rule of Adverse Assumptions
Read the law, over and over again. The law is like a flowing river, it is not static.
Each new case will have different facts and different issues. Each time you reread the law, you will learn something new.
You should read the child’s entire file in chronological order, that includes …
- Medical records
- Educational records
- Outside services
- Psychological evals and services
- OT/PT, APE, etc.
- Include daily progress notes
The advocate needs to understand the interrelationships between …
- Special Education
- Juvenile Justice System
- Over-representation of minorities in special education
- Untreated mental Illness and behavior problems
- Self-medicating (drugs and alcohol)
At the initial consultation, advocates need to do several things:
- Tell parents you are not an attorney
- Give parents a list of attorneys
- Be honest! Tell your level of training, experience, education, etc.
- Have a written fee agreement
- Follow up the consult with a letter
- Do not call your fee a “retainer” (Pat calls it a “letter of agreement”)
- Tell parents exactly what you can do
- Help them understand their rights
- Direct them to legal resources
- Explain that you can help them change the future, you cannot fix the past
As an advocate, you need to tell parents that you cannot …
- Recover fees
- Represent/not represent at hearing
- Give legal advice
- Unring a bell
Tell parents that advocates and attorneys cannot …
- Get someone fired
- Get an apology
Advocates Wear Many Hats …
- Encourage parents to consult an attorney to learn the legal elements of their case
- Inform parents of the pitfalls of
- Going pro se
- Using an advocate v. using an attorney
- Advocate v. Attorney – BAD!
- Advocate AND Attorney – GREAT
At the pre-attorney stage, you …
- Protect the case for potential attorney intervention
- Find an attorney to advise you
- Communicate with the attorney before advising the client about any critical matters
As an advocate, you need to keep in mind …
- You are not an attorney
- You do not know everything you need to know
- You CAN be sued in many states
Advocates look for solutions to problem that do not require going to a hearing. You should …
- Inform the parents of pitfalls of going to hearing
- No one really wins
- Costs: Emotional, Psychological, Monetary
- School relationship
When parents do have an attorney, advocates need to work with, not against the attorney. It is NOT your responsibility to tell the parent that their attorney is inexperienced or incompetent.
11:26 am Wrightslaw
Working with Experts with Bill Reichhardt, Esq. and Harry Gewanter, MD
William B. Reichhardt (Bill) is the principal in the firm of William B. Reichhardt & Associates in Fairfax, Virginia. His primary practice areas include juvenile law, criminal defense, school law, special education, mental health issues and family law. He is the 2010 recipient of the Lewis F. Powell Jr. Pro Bono Award bestowed by the Virginia State Bar in recognition of his efforts to provide and support legal advocacy for children.
Dr. Harry Gewanteris a pediatrician and pediatric rheumatologist who has practiced in Richmond, Virginia for almost 3 decades. Over the years, his practice has evolved into primarily caring for children and youth with disabilities and special health care needs. Since three of his four children had IEP’s, he lived through the many challenges parents and children with disabilities or chronic health problems face within the public school system. These experiences have resulted in a desire to help other families undergo fewer difficulties than those of his children and family.
Mr Reichhardt and Dr. Gewanter discuss issues related to experts in different field, when you need experts, how to use information from experts.
Question: When do you need experts?
- Due Process
Take a typical eligibility case of child with ADHD who is making passing grades. School says not eligible for services because he makes passing grades.
Doctors get 99% of their information from parents and especially from children. We encourage doctors to ask questions about how the child is functioning at school and in the community, and to learn educator language – that is much different from medical language.
Have the parents go the state DOE website, get the eligibility form. On the form is information that tells you what the team is looking for – the doctor needs to describe the disability & diagnosis in educational terms. That’s the operative language.
There are neurological conditions that manifest in children that are not easy to describe. If a child has neurological condition, unlikely to be in typical school evaluation. The child needs a neuro-psych evaluation.
There are ways to describe or operationalize the impact of a disability on a child’s ability to function in different areas. What are the child’s deficits? How do these problems affect child’s ability to function in school? What does the child need to deal with the problem in school? I get the family to make a list, bring it to me, we talk about it.
Part of advocacy is objective, correct analysis of the evidence. This is very very important as we talk about using experts.
“In appeals, we up the ante. How about using expert?. You need to know the school’s experts.”
“When people bring in psychological evaluations, they should provide useful information. If things are left out, what are they?”
Think of a meeting with experts as a problem solving session.
“In a typical case, the question is not whether the child has ADHD. Usually, the school, parents and doctor are in agreement. The real question is whether the disability affect the child’s ability to access education and make meaningful educational progress.”
As an advocate, think of your role as defining expectations as problem solving sessions.
Now assume we have experts involved and talking to school people. You cannot resolve a diagnostic dispute unless you frame the question correctly. We are not in complete agreement but are making progress. What do we agree on? We all agree on the data showing that Johnny is distractible. We can stipulate that he shows distractibility in the educational environment. There may be other areas where we agree and can stipulate.
Is there a diagnostic disconnect? Use your experts to deal with the diagnostic disagreement. We need help to resolve this issue. Will school agree to an IEE to resolve these questions?
Due Process is litigation. Parents are at a disadvantage in due process? Absolutely.
In using experts, have to identify the experts. Experts have to render clear opinion on the issue. Make the decision-maker want to rule in your favor.