The Wrightslaw Way

11:04 am  Wrightslaw

Using IDEA’s State Administrative Complaint Provisions to Create Systemic Change

Jim Comstock-Galagan, Executive Director of the Southern Disability Law Center (SDLC)

Check your state DOE website for forms for due process.  You can use these forms – you don’t HAVE to use the forms. Same for state complaints. Each state has to have written state complaint procedures – for filing and resolving complaints. State complaint process is much broader than due process procedures.

Complaint copy must be sent to LEA as well.

34 CFR 300.151-153

The scope of state complaint issues.

Like Due Process hearings, State Complaints can be used to resolve any matter related to the identification,
 evaluation, or
 educational placement of a child with a disability.

• Behavior (ED issues, discipline, suspensions, restrictive environments, lack of progress, flawed or no FBAs or BIPs, MDR)
• Placement (LRE)
• Involuntary removal (no paperwork available)
• Transition services

OSEP letters and guidance indicate you can initiate systemic complaints as well a substantive (FAPE) complaints.

OSEP memo pages 15-33. Portions dealing with systemic complaints Questions B6 – 9, pages 18-20. http://www.wrightslaw.com/idea/osep/osep.2013.0723.b.statecomplaints.pdf

• Who can file
• Respondents
• Timelines
• Requirement for investigations (relevant information, additional info, mediation
• On-site investigations
• Decisions
• Limitations
• Remedies (individual corrective action, systemic corrective action, compensatory education, monetary reimbursement, future provision of services)
• Strengthening and Proving your complaint (OCR complaints)
• Appeals

If in due process can’t file state complaint on same issue.

Some SEA State Complaint Procedures still illegally limit complaints to procedural violations and require substantive violations to be redressed via Due Process Complaints

Southern Poverty Law Center  http://www.splcenter.org

case docket

9:07 am  Wrightslaw

Legal Claims and Remedies

Bill Hurd, partner in the Richmond office of Troutman Sanders who leads the firm’s Appellate Team.

IDEA requires the school system to provide:

“An opportunity for any party to present a complaint…with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child…”

Section 1415(a)(6)(A)

Case discussions:

• The case of the (allegedly) perjured principal.
• The case of the prosecuted parent.
• The case of the french fry fracas.
• The case of the treacherous trespasser.
• The case of the galloping guideline.

How to win cases

IDEA provides parents something quite unique in the law. The right to an individualized program and the right to contest any aspect of the school system’s treatment of a child.

• Eligibility
• Deficiencies in the IEP
• Compensatory Education
• Placement
• Notice to the School
• Timelines
• Stay Put
• Burden of Proof
• Monetary Claims
• Access to Records

HH v. Moffett & Chesterfield School Bd (4th 2009) – Special ed teacher and a assistant restrained child in her wheelchair for hours during the school day while they ignored her, verbally abused her, and schemed to deprive her of educational services. In an unpublished decision, the Court held that their conduct “violated H.H.’s clearly established right to freedom from undue restraint under the Fourteenth Amendment, and Appellants are therefore not entitled to qualified immunity as a matter of law.”

3:28 pm  Wrightslaw

Current Case Law Review by Circuit

Sonja Kerr, Senior Attorney the Public Interest Law Center of Philadelphia and the Law Center’s Director of Disabilities Rights.

Parent Participation

D.B. v  Gloucester Township (3d Cir. July 2012)

1:49 pm  Wrightslaw

Alternative Dispute Resolution Under IDEA 2004

Jim Comstock-Galagan, Executive Director of the Southern Disability Law Center (SDLC)

OSEP Letter Dispute Resolution

http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/index.html

OSEP Memo and Q & A on Dispute Resolution, July 23, 2013
MS Word (411KB) | PDF (436KB)

Wrightslaw has broken the OSEP memo down into the specific components as smaller files.

Mediation

• Mediation Requirements
• Confidentiality and costs
• Timelines
• When parties reach an agreement
• When parties choose not to use mediation

To enforce mediation agreement you cannot go to due process, but can file a state complaint.

Due Process Complaints

20 U.S.C. 1415(b)(7)

• What must be included
• Proposed resolution of problem
• Timelines

 Resolution Sessions

• Timelines
• Review period
• Enforceable agreements

12:14 pm  Wrightslaw

Drafting Due Process Claims / State Complaints

Pete Wright

Due process request letter – first step.

What controls the outcome of a complaint? Facts or law?

Neither.  Pete explains what does.

Only one thing controls outcome – whether the HO/ALJ wants to rule in your favor.

Prepare for the ultimate event, a due process hearing – a battle of expert witnesses. Assume you will lose and your case will go up on appeal to federal court. Prepare parents for slow process without a quick fix.

Persuasion – your focus, your theme, simple and easy to understand.

First step for parents – organizing the file. Check the Wrightslaw you tube channel.

http://www.youtube.com/watch?v=Spjccoj4Ow0

Have parents organize the file, write letters, keep a paper trail. Empower parents rather than do for them.

• “The paternalist attitude of professionals is what holds parents back.”
• “The biggest handicap of persons with disabilities are the expectations of others.”

Source: Harry Gewanter, MD 7/31/2013

Perceptions and first impressions are critical. Attempt to be proactive rather than be on the defense.

Your real goal is to avoid due process.  You do this by “preparing for due process.”

Start by creating a paper trail of documentation of everything. Your letters will tell a story and create visual imagery. Use the Letter to the Stranger format.

Be persuasive not blaming.

11:00 am  Wrightslaw

Preparing for Hearings and Trials

Sonja Kerr, Senior Attorney the Public Interest Law Center of Philadelphia and the Law Center’s Director of Disabilities Rights.

Pat Howey, Indiana Advocate at Special Education Consulting

This training is about the important part advocates play in due process.

• Attending with parents who are going pro se
• Assisting attorneys
• Helping parents plan and prepare

Prepare. Plan on going to due process. Develop your strategy.

Assume every case will go to hearing.

Assume every case will be appealed.

Assume every case will end up at the US Supreme Court.

Know the Rules of Adverse Assumptions

Read and re-read

• the law
• case law
• law review articles
• the case facts
• the entire child’s file

Discussion of inter-relationship between special education, juvenile justice system, behavior, self-medication (substance abuse).

Tips for advocates: initial consultations, what to tell parents, using legal element charts, informing parents of pitfalls.

Advocate responsibilities at the pre-attorney stage… and the attorney stage.

Post-Winkelman: the good, the bad, the ugly.

9:08 am  Wrightslaw

Attorneys Evidence Strategies Panel 

Pete Wright

Bill Reichhardt

Sonja Kerr

Kayla Bowyer

Jim Comstock-Galagan

Short presentations by five attorneys, followed by Q & A.

No notes will be published from this session.

3:27 pm  Wrightslaw

IEP Strategies

Patty Roberts, Angela Ciolfi, Emily Suski

Case studies – class problem solving

Issues:

• Present Levels in the IEP (strengths, needs, goals)
• Meaningful Participation in the IEP meeting / recording meetings
• Related Services / Agreeing to what’s offered- or not? (changing OT from direct services to consult)

1:51 pm  Wrightslaw

Strategies for Working with Schools

Angela Ciolfi, legal director of JustChildren, a program of the Legal Aid Justice Center, and

Emily Suski, Assistant Clinical Professor at Georgia State University College of Law

Top Ten Strategies for Getting Meaningful Outcomes without Getting Mean

What would you do to get more meaningful outcomes?

You need to know: the child, the client, the law!

Who does the school attorney represent? Who can a parent bring to the IEP meeting?

Know how to write “The Letter to the Stranger.”

http://www.wrightslaw.com/advoc/articles/Letter_to_Stranger.html

Prepare, prepare, prepare. Assemble all of your documentation. Review forms prior to the meeting. If possible, resolve basic issues with the school before the meeting (rather than using time during the meeting.)

Be realistic and open-minded.  Ask lots of questions! Ask for research. Write things down to frame the issues – send your letter describing what happened in the meeting asking for a response as to agreement with the issues. (You own PWN of sorts).

Avoid litigation.

1:05 pm  Wrightslaw

ADA case against NYS Board if Law Examiners

Dr. Marilyn Bartlett joins us for lunch from Austria via Skype to tell us-

in Her Own Words: Bartlett v. The New York Board of Law Examiners

Marilyn Bartlett, a person who has dyslexia, sued the NY Board of Law Examiners for refusing to provide reasonable accommodations on the bar examination.

What is the Bartlett case? Learn more about Marilyn Bartlett and this case.

12:12 pm  Wrightslaw

Section 504 and the ADA

Kayla Bower, Director of the Oklahoma Disability Law Center

“I am in love with 504.”

Key difference in 504 and IDEA.  No money for school districts (just general funding) under 504.

Requirement to exhaust remedies.

504 these days. ADA and 504 protections parallel. New ADAAA requirements.

OCR Letter 1/19/12 – know and be sure the school knows. Use your highlighter to mark the “jewels” in this letter (share a copy with the school.)

covers many (maybe most?) disabilities. refer to non-exhaustive list stated in letter

Shifting the inquiry in education away from disability. A very broad shape of protections, rejected the burdens imposed by previous court cases.

Also protected is “regarded” as having a disability.

**Read Rowley! Know the case law and regulations about FAPE provisions in 504 and eligibility.

OCR Letter 1/25/13

Medical Perspectives on Section 504 and Eligibility

Dr. Harry Gewanter, pediatrician and pediatric rheumatologist.

US DOE FAQs about 504.

Section 504 does require that school districts provide FAPE.  The new listings for major life activities is extensive. If you have a problem that is getting in your way in some fashion, you are potentially eligible.

Now much easier to meet the language and the guidance.

You don’t have to be affected at the moment.  Just because you are doing well now, doesn’t mean condition has gone away.  Schools have used this excuse forever. Anyone with a chronic condition would benefit from a 504 plan in place, even though they are doing well at the moment.

Accommodations can be across the board. Behavioral, physical, organizational, educational, social, vocational.

Medical Diagnosis Sources:  ICD 10, DSM 5

504 accommodations can provide a safety net for many students.

If something is predictable it is potentially preventable. These workarounds for prevention can go into a 504 plan. Not just a “health plan” but a Section 504 plan that has legal standing.

Dr. Gewanter provided samples of letters physicians can use to assist parents:

•  request letters for a Child Study
• 504 support letters

10:57 am  Wrightslaw

Making the Case for Eligibility

Patty Roberts, Director of Clinical Programs and Supervisor of the PELE Special Education Advocacy Clinic at William and Mary.

Child find duty. School’s responsibility.

Response to Intervention RTI. Tension with the child find obligation.

OSEP memo and RTI and IDEA obligation.

Common RTI issues.

• parental consent
• review of existing data
• requirements for evals
• timelines
• private evaluations, IEEs, written requests, PWN

DSM-5: Changes to note.

Eligibility Meeting- requirements.

Educational diagnosis v medical diagnosis.

Suggestions for more effective involvement in eligibility decisions.

• look at old records
• organize info based on eligibility criteria
• consider possibility of 504 accommodations
• ask for district guidelines
• put everything in written

Eligibility denied – now what?

•  Need to request FBA?
• Work directly with individual teachers

Congress left to states the definition of learning disability.  Varies widely across states.

9:03 am  Wrightslaw

Strategies for Working with Parents

Indiana Advocate Pat Howey

Special education advocacy is what you do – it is not who you are.

Rule #1 – You can’t fix everything. Rule #2 - You can’t change rule #1.

What to do and what to avoid. Tactics, tips, and techniques for advocates. Important issues.

• screening clients
• identifying problems
• basics of working though client problems
• turning down clients
• letters of agreement
• ethical dilemmas
• terminating clients
• parent report / agenda-strengths, challenges, needs, goals & objectives
• content of the IEP…
• accommodations and modifications
• corporal punishment in schools
• school emergency plans
• Transition

How to prepare for the IEP meeting. Basic advocacy tips.

Review the Dephi Technique. Facilitated IEPs.

3:26 pm  Wrightslaw

1:39 pm  Wrightslaw

Discipline of Children with Special Needs

Bill Reichhardt, Attorney

Procedural protections for children who have yet to be found eligible.

When the school is deemed to have knowledge of a child’s disability.

Review of:

• Short and long term suspensions
• Ten day rule
• Removals that act as placement changes
• Repeated, cumulative, consecutive
• Continuation of services
• Expulsions
• In school suspensions

Manifestation Determination Review

MDR – Required legal process done by the IEP Team. If a manifestation, the disciplinary suspension must end and the behavior must be addressed through the IEP process.

Preparing for the MDR – tactics from the trenches.

FBA / Development of a BIP / modification of the BIP

Discussion of special circumstances when MDR is not required.

When the behavior is not a manifestation the student is subject to the same discipline as others without a disability (but services continue).

Exclusion prevention discussion.

11:55 am  Wrightslaw

Experts as Fellow Advocates / Witnesses -

10:54 am  Wrightslaw

Behavior Issues in Schools

Emily Suski, Assistant Clinical Professor at Georgia State University College of Law

Joe Tulman, Director the University of the District of Columbia David A. Clarke School of Law’s (UDC-DCSL) Juvenile and Special Education Law Clinic.

Child Find and RTI.  RTI can be done simultaneously but cannot delay an evaluation. 34 CFR 300.304-300.311. OSEP Opinion 11-7, Jan 21, 2011

Behavioral issues and special education eligibility – provision of FAPE. Adverse impart on educational performance: tie the behavioral issues to the disability. Advocates job to get everyone on the same track.

Disability categories – you need to know both federal and your state categories.

Eligibility and good grades and adverse impact.

Behavioral Issues and Section 504 – entitles students to accommodations. If you suspect a disability, you must evaluate. 504 plan – advantages / disadvantages.

Behavioral Issues and the IEP

• Present Levels / Needs and goals must be aligned per IDEA
• IEP goals / Progress
• Related Services
• Parent training in the IEP

 Functional Behavior Assessments and BIPs

Supposed to determine the “cause” of the behavior – not all FBAs are “good” ones. Very little guidance about contents FBAs in the regulations.

Review of bullying and special education – the bully and/or the victim with an IEP.

Jeffrey Breit  joins the ISEA Class of 2013 for sessions today.

Jeffrey Breit, 2008-2009 St. George Tucker Adjunct Professor of Law and partner at Breit, Drescher, & Imprevento.

Jeffrey provided the impetus to create the PELE Special Education Advocacy Clinic at William and Mary.

9:08 am  Wrightslaw

Psychometrics 101 by Beth Heller, Ph.D., LCP, NCSP,

Virginia Commonwealth University

Why do we measure?

Scales of Measurement and terminology.

• mean
• median
• mode
• Measures of central tendency
• skewed distribution
• dispersion
• range
• variance
• standard deviation
• raw scores
• standard scores
• conversion of scores
• percentiles
• age/grade equivalents
• scatter
• ……

Key Concepts:

• Standard Error of Measurement (SEM)
• Confidence Interval
• Statistical Significance
• Validity
• Reliability
• Test Reviews
• Regression v failure to progress

How to request test information?  What to request?

Graphing and charting scores.

Classwork / practice examples.

Check PAR website – Bell curve diagrams

http://www4.parinc.com/Products/Product.aspx?ProductID=PAR_TOOLKIT

http://parincblog.wordpress.com/2010/07/16/par-assessment-toolkit-web-version-now-available/

4:00 pm  Wrightslaw

Kayla Bower, Director of the Oklahoma Disability Law Center presents a CLE session on Ethics.

What to be aware of – the unauthorized practice of law for advocates. Issues, concerns, pitfalls.

What kind of ethics rules are there? Could possibly model the National Federation of Paralegal Associations model code.

Other sources of guidance on ethics codes:

•  American Bar Association
•  National Association of Legal Assistants
•  American Association for Paralegal Education
•  Proposed Model for Special Education Advocates Ethics Code

Find the advocacy agency/attorney in your state at www.ndrn.org.

Consider:

• level of competence
• level of personal and professional integrity/standard of conduct
• provision of pro bono services
• preservation of confidential information/confidential privilege
• conflicts of interest

Assignment: Review the leading case in your state re the unauthorized practice of law. Know the case law in your state. Learn the statute/case law/specifics of confidential privilege in your state.

Discussion of the IRAC method: Issues / Rule / Application-analysis / Conclusion

1:52 pm  Wrightslaw

Case Analysis with Pat Howey, Indiana Advocate

Winkelman v Parma City: Case Analysis from the IEP Table to the U.S. Supreme Court

“I’m an advocate, why do I need to know about case law?”

“I am a law student/new lawyer/lawyer new to special education.  I already know how to analyze case law. Why do I need to review this again?” Pat explains.

A basic understanding of case analysis will make advocates more effective is assisting and advising parents who must proceed pro se.

Under IDEA, parents have separate rights, independent of the rights of their child, and parents may pursue IDEA claims on their own behalf.

Pat reviews:

• Legal terminology
• Administrative law
• Difference in circuits
• Good law v “bad” law
• Burden of Proof

Briefing the case…

Legal Elements Chart: Legal Elements/Source/Facts/Proof

Winkelman – Who won? What does it mean? What were the costs?

Pro se parents cannot recover their own fees and costs. Subject to monetary sanctions?

After Winkelman.  What advocates need to know when parents are unable to see the forest for the trees.

1:10 pm  Wrightslaw

Watching the video-

Lives Worth Living traces the disability rights community as they secured equal civil rights for all people with disabilities. Thanks to their efforts, tens of millions of people’s lives have been changed.

The story features Fred Fay, who suffered a spinal cord injury at age 17 in 1961, and simply refused to be relegated to life’s sidelines just because he couldn’t walk. He fought tirelessly for decades for equal rights, access, and opportunity for the disabled, including advocating for programs allowing the disabled to live independently. (Fred died August 20, 2011; the film is dedicated to him.)

http://www.pbs.org/independentlens/lives-worth-living/

10:58 am  Wrightslaw

History and Relevant Law

Pete Wright begins a review of the history -

• 1954 Brown v. Board of Education
• 1965 Elementary and Secondary Education Act (ESEA)
• PARC and Mills
• 1973 Section 504 of the Rehabilitation Act
• 1974 FERPA
• 1975 Public Law 94-142
• 1982 Bd of Ed v Rowley
• 1985 Burlington
• 1987 McKinney-Vento Homeless Assistance Act
• 1988 Honig v. Doe
• 1990 ADA
• 1993 Florence County School District IV v Shannon Carter
• 1997 President Clinton’s state of the Union preceding NCLB
• 1999 Cedar Rapids v Garret F
• 2001 NLCB
• 2005 Schaffer v Weast
• 2006 Arlington v Murphy
• 2007 Winkelman v Parma City
• 2009 Forest Grove v TA

and the Law – IDEA 2004.

9:54 am  Wrightslaw

You NEVER forget what it feels like NOT to be included!

Jim Comstock-Galagan from the Southern Disability Law Center speaks on inclusion.

“One of my brothers wanted to be the Pope. One a doctor.  My sister an astronaut.  I wanted to be a doctor.”

Jim tells his story.  What happens when his mother is told, because he is “handicapped,” he cannot attend school with his brothers.  He must attend the crippled children’s school across town.  As his mother says “no way!”  Jim wonders “what does ‘crippled’ mean?

The crippled children’s school was not a placement, it was a sentence! The principal explained that Jim had no rights to attend.

You NEVER forget what it feels like NOT to be included!

Jim tells his story and his family’s story. “I am here today because my family sacrificed to fight for my rights and to see that I was included.”

We are far more alike than we are different.

Inclusion matters to everyone. Segregation matters to everyone.

Jim shares an inspiring story from Mississippi about a family’s fight to have their daughter included.

Equal rights is what the law embodies. Inclusion matters!

We complete an exercise in “What it feels like to be excluded / included.”

It is unfortunate that our schools lack empathy. It is our job to bring empathy to schools. Help schools put the issue in the perspective of your client.

The law is an extremely effective tool, but it should not be your only one.

You need to understand what exclusion means to you, how it hurts you. You need to help others understand how exclusion hurts.

Kids are human.  Exclusion hurts.  Inclusion matters!

9:19 am  Wrightslaw

Patty Roberts, Director of the PELE Special Education Advocacy Clinic opens ISEA 2013.

Davison Douglas, Dean of the William and Mary Law School welcomes ISEA Class of 2013.

Dean Douglas salutes the class for the work they do in special education advocacy.  This class comes from across the US and Puerto Rico.  He emphasizes the importance of the Institute and the Institute’s importance to William and Mary.

Kayla Bower, Director of the Oklahoma Disability Law Center gives an overview of ethics in special education advocacy.

A most important “first”  - this class is in the middle of what began years ago at this university – the concept of “citizen lawyers”. Kayla challenged the class to make ethical decisions in their advocacy. Kayla discusses how your values impact your advocacy and truth in advocacy.