The Special Ed Advocate Newsletter
September 19, 2000

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Issue - 87

ISSN: 1538-3202

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1. New Decision from Ninth Circuit: Attorney Fees for IEP Meetings

On September 5, 2000, the U. S. Court of Appeals for the Ninth Circuit awarded attorney fees for IEP meetings to the parents of a child with autism.

In LUCHT v. MOLALLA RIVER, the parents filed a complaint with the Oregon department of education about violations of their son's rights under the IDEA. After an investigation, the state department of education found that the child's rights had been violated and ordered the school district to convene an IEP meeting and develop a new IEP for the child. Several IEP meetings were held. During some of these IEP meetings, the parents were represented by an attorney.

After these issues were resolved, the parents brought suit in federal district court, seeking to recover attorney fees incurred for the IEP meetings attended by their lawyer. The school district claimed that the IDEA prohibits payment of legal fees for IEP meetings.

In LUCHT, the Court described two ways to resolve disputes about a child's special education. Under the IDEA statute, parents can request an impartial due process hearing. Parents may also file a complaint with their state department of education (SEA). In some cases, parents may request an impartial due process hearing AND file a complaint with the state department of education.

Pursuant to federal IDEA regulations about complaint resolution, state departments of education (SEAs) are required to " . . . carry out an independent on-site investigation, give the complainant an opportunity to supply additional information about the allegations, determine whether the school district is violating the IDEA and, within 60 days of the filing of the complaint, issue a written decision containing factual findings, conclusions, and the reasons for the final decision. See 34 C.F.R. § 300.661." The SEA decision must include ways for the district to implement their decision, including "technical assistance," negotiations, and "corrective actions to achieve compliance."

You can download this new decision from the Law Library.

NOTE: The Ninth Circuit includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, and Guam.

Do you know your Circuit? Use the Wrightslaw Circuit Finder.

2. "Closing the Gap:" The National Council on Disability Needs Your Help!

On January 25, 2000, the National Council on Disability published the IDEA Compliance Report, "Back to School on Civil Rights," and found that:

* All 50 states were out of compliance with the IDEA. 
* The U. S. Department of Education does not enforce the IDEA. 
* Enforcing the law falls on the shoulders of parents. 

To enforce the law, parents must often request expensive, time-consuming due process hearings and engage in battles with school board attorneys whose fees are paid with tax dollars. The IDEA Compliance Report described the human costs of this policy:

"These findings prove very clearly that children with disabilities continue to be denied their civil rights under the federal law, IDEA. Not only have parents of children with disabilities lost the education for their children, but in many cases, due to undue stress and the time and money invested in legal battles, they have also lost their homes, jobs, and often the family structure." (link to Report below)

Now, the National Council on Disability needs YOUR help. 

NCD has drafted a "strategic action plan" called "Closing the Gap: A Ten Point Strategy for the Next Decade of Disability Civil Rights Enforcement." They asked us to provide our subscribers with their Plan and want your feedback. You can download a copy of "Closing the Gap: A Ten Point Strategy for the Next Ten Years of Disability Civil Rights Enforcement" in pdf or html format.

In pdf

In html

Please download this document and review it. Send your feedback to Kathleen Blank at NCD, 1331 F Street, NW, Suite 1050, Washington, DC 20004. Fax: 202-272-2022. Email: kblank@ncd.gov
Deadline: September 30, 2000. 

If you need a reason or two to do this, download and review the IDEA Compliance Report from the Wrightslaw site (be sure to use our "search tips" to get compliance information about your state).

Get mad - then get energized. Think about the children. Isn't it time we make the world a better place for all children? The status quo won't change unless you get involved. As the folks from NCD say, "The law is a tool, but people are the power behind change."

3. News: Pete & Pam Wright to Speak in Long Island (October 13 & 14, 2000)

On Friday, October 13 and Saturday, October 14, 2000, Pete and Pam Wright will speak at conferences sponsored by The Long Island Advocacy Center, Inc and the Nassau Coordinating Council of Special Education PTAs. Friday's session will be from a legal educational perspective. Saturday's session will focus on the needs of the parent advocate. Topics include:

* LRE/Access to general curriculum;
* how to avoid due process hearings while securing quality services;
* use of State Education Complaint Procedures;
* private sector evaluations and consultants, their use and input in the IEP process;
* case law affecting children in New York;
* legal requirements about staff and teacher training;
* eligibility, prior written notice, IEP's, procedural safeguards, private school placements.

Information about both conferences.

Conference information is also available at the Coordinating Council's site

4. News Flash: Lawsuits Filed Against Maker of Ritalin, APA, CHADD

On September 14, The Wall Street Journal published an article, "Maker of Ritalin, Psychiatric Group Sued," about lawsuits filed last week in California and New Jersey. "The lawyers who brought you suits over tobacco, guns and health maintenance organizations have a new target: Ritalin."

"Yesterday, plaintiffs lawyers filed two suits, alleging that the maker of Ritalin, the commonly prescribed attention-deficit treatment, conspired with a psychiatric group to "create" a disease, and later hyped the drug's benefits. The cases, filed in California and New Jersey, seek billions of dollars in damages, and are likely to be followed by suits on behalf of consumers in other states, the lawyers said."

A similar suit was filed in Texas a few months ago. 

According to the WSJ, the lawsuits contend that the pharmaceutical manufacturers and the American Psychiatric Association "conspired to create a broad-based definition of hyperactivity disorders in the standard medical text used by doctors" which "had the effect of boosting sales and profits" and that the companies "employed false and misleading advertising, which played down the drugs side effects, and oversold the benefits."

You may get a copy of this article by searching the Wall Street Journal siteNote: This article will only be available for  a week from the Wall Street Journal site.

Stay tuned. We'll keep subscribers posted about new developments in these important cases.


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Wrightslaw: Special Education Legal Developments and Cases 2019, by Pam and Pete Wright
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Wrightslaw: Special Education Law, 2nd Edition, by Pam and Pete Wright
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Wrightslaw: All About IEPs
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Wrightslaw: All About Tests and Assessments
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Surviving Due Process: Stephen Jeffers v. School Board
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