Judge Sotomayor and Special Education

Nobody really knows how a justice being appointed to the U. S. Supreme Court will rule on cases before the court. Retiring Justice David Souter is perhaps the best example of that rule. Appointed by Republican President George H. W. Bush, he turned out to be quite moderate rather than the conservative many thought he would be. Special education cases do not really lend themselves to the liberal/conservative analysis. For example, Justice Scalia and Justice Ginsburg voted the same way on the Murphy decision. Suggested new slogan for us: "Special Education- bringing people together!"

President Obama has nominated Judge Sonia Sotomayor for the vacancy on the court. Here is a news article. The special education community is wondering how she will rule on special education cases. Although crystal ball gazing has is notoriously dangerous and hopelessly unreliable, it may be instructive to take a look at how Judge Sotomayor has ruled on special education cases in the past. I have found about fourteen decisions, and from them I have selected two interesting examples:

The first is the famous Frank G case, Bd of Educ, Hyde Park v. Frank G. 48 IDELR 239, 459 F.3rd 356 (2d Cir. 7/27/6), cert den 128 US (official reporter) 436 (U.S. 10/15/7). Judge Sotomayor ruled with the Second Circuit panel that the parents of a child with a disability may receive reimbursement after a denial of FAPE by the school district even if the child has never received special education in the public school system. The Supremes decided by a 4 to 4 vote not to accept this case for review. Here is a copy of the decision. This decision is seen as pro-parent.

The second decision is Mr L ex rel M v. Sloan 45 IDELR 207, 449 F3rd 405 (2d Cir (5/18/6). In this case Judge Sotomayor voted to deny attorney's fees to parents who had settled the case below. Applying Supreme Court precedent in the Buckhannon decision, Judge Sotomayor and the second circuit ruled that the parents were not prevailing parties under the law. Here is a description of the case on the SCOTUS blog. This decision is seen as pro-district.

It will be interesting to see how Justice Sotomayor rules on our cases on the Supreme Court. What do you think? How will she rule on special education cases?

Speaking of the Supremes, the pending case should be decided soon. Please take the opportunity to vote on our poll. The poll is not even close to being scientific, but it is still fun. "For the parents" still leads "for the district" by a margin of 25 to 20. Three readers have recused themselves for a conflict of interest. Time is running out. Cast your vote today.

The Magical Mystery (er, ... IDEA Remides) Tour

In July of this year, I am embarking on what I call my IDEA Remedies Tour. Granted it lacks the charisma of the "Magical Mystery Tour," but what can ya do? I was thinking of having T-shirts printed with the "Jim Gerl IDEA Remedies Tour" emblazoned upon the front. The back of the shirt could have the names and locations of the concerts, er... I mean the presentations! Unfortunately, there probably isn't much of a market though.

But seriously, I will be giving presentations on the two major remedies available if the parents/student win an IDEA due process hearing. On July 8th, I'll be presenting on Compensatory Education at the Seattle University School of Law's Eighth Academy for IDEA Administrative Law Judges and Hearing Officers in Seattle, Washington. On July 22nd, I'll be speaking on the Remedy of Reimbursement for Unilateral Placements at the 16th Annual Education Law Conference in Portland, Maine, sponsored by the University of Southern Maine and the University of Maine School of Law.

You can learn more about the Seattle Academy through this link. You may register for the conference here. It is designed primarily for due process hearing officers or those who administer IDEA dispute resolution systems.

You can learn more about the Portland, Maine Education Law Conference through this link. You can register for the conference here. This is a more general education law conference

Both conferences do a great job. As many readers know, I love the networking opportunities that these types of conferences provide. I have made many friends at similar conferences, and they help me with my work all the time. If you are planning on attending either conference, please let me know. I always enjoy meeting and talking with the many interesting readers of this blog. (NOTE: Just before the last conference I attended, I had problems with one of my email accounts and I missed out on the chance to meet a couple of readers. I have already apologized to them and I repeat it here. If I don't get back to you, please find me at the conference and demand a cup of coffee!)

By the end of the IDEA Remedies Tour, I should know everything there is to know about special education remedies. Well at least until the Supreme Court resolves the pending case. Oh yeah, then there is reauthorization. OK, so I forgot for a minute that special ed law is "new" law. Anybody who claims to know everything about it- probably doesn't!

This Blog is Safe

This blog is safe.

Well, we had an interesting holiday weekend. An alert reader told me that the website had been listed by Mozilla Firefox as potentially a problem. I investigated, and I found that Google had flagged some outdated utility software I had placed on the website. Apparently, it contained some outdated code that the Google algorithm found suspicious. I removed the software, and submitted the matter to Google for review.

The Google technicians promptly reviewed the matter and by yesterday, the blog again received their seal of approval. I want to thank the Google tech support people. They will probably never see this post, but they were very patient with this digital immigrant and my various phobias. The blog is definitely safe, and meets all of their standards.

I am sorry if this caused any readers any inconvenience. I'm very proud of the wide variety of special education stakeholders who read this blog. Your intelligent and sometimes passionate comments and emails help me to think through my own positions on special education law and the policies underlying it. Please keep reading, subscribing, commenting and emailing!

Restraints and Their Abuse: Federal or State Question?

The recent posts on the widespread misuse of restraints across the country has caused a spirited debate. Many of the readers of this blog are outraged at the murder and torture of public school students, most of them with disabilities. The Chairman of the congressional Education Committee is also outraged. He said that the abusive examples of restraints heard by the committee constituted punishment "... that is way out of bounds of what I believe are the social norms of this society..."

The U. S. House Education Committee is considering changes to federal laws to prevent future abuses. Here is a news report.

Arne Duncan, the Secretary of Education, has taken a different approach. He has called on the state departments of education to develop plans before school begins in fall to regulate the abuse of restraints. Here is another news account. This brings up the old debate concerning which education issues are the province of the states and which should be regulated by the federal government. Each side has its adherents. What do the readers of this blog think?

If the feds do get involved, there could be a number of areas affected. One is reporting of incidents across state boundaries. One example at the hearing involved a teacher who restrained a student in Texas resulting in his death. After her Texas certificate was revoked, she reportedly received a teaching job in Virginia.

A second area would relate to training. Most teachers tell me that restraints and seclusion are necessary tools, but that they constitute a last resort and that any person who uses them must be properly trained in the techniques. I suspect that training will be a key component of future regulation in this area.

Another likely development is the further encouragement and development of positive behavior supports and interventions. As I understand them, these methods seek to affect bad behaviors by addressing the causes of the behavior and by positively reinforcing good behavior. The congressional Committee hearing this week included testimony about a successful PBS program in place in Illinois. IDEA mentions behavior as a factor in developing IEPs, but only gets into PBS and behavior intervention plans if discipline of a student with a disability is invoked. This might be an area where the federal special education law will be changed.

GAO Report and Congressional Hearing on Restraints and Seclusion

The GAO has issued a sixty-two page report concerning the allegations of abusive use of restraints and seclusion. You can read the whole report here. There is also a one page summary available here. The widespread nature of the abuse of these techniques and the high incidence of injury and death of children with disabilities is very, very disturbing! This is a tough report to read, but the topic is obviously important.

The U. S. House of Representatives Committee on Education and Labor held a hearing on the issue today. Here is the Committee's report on the issue. Representative Miller, the Chairman of the committee, referred to the testimony at the hearing and the GAO report as "very sad, very tragic," and he suggested that legislation might be needed to correct the widespread problem. Here is a news account. Here is a television news account.

I have heard from some educators that restraints are necessary sometimes to protect children with disabilities or other people, but most argue that such techniques should be used only as a last resort. I believe that training concerning these techniques and at least some limitations upon the more deadly methods will now be mandated by federal law. How do you folks feel about this topic?

Restraints/Seclusion to be Topic Of Congressional Hearing Tuesday

The Education Committee of the House of Representatives will convene a hearing tomorrow, Tuesday May 19th, at 10:00 am to "examine abusive and deadly uses of seclusion and restraint in U.S. schools." Seclusion and restraint are physical interventions used by teachers and other school staff to prevent students from hurting themselves or others.

The hearing will held at Room 2715 of the Rayburn House Office Building in Washington, DC. Further details are available at the committee's website.

The hearings are in response to the National Disability Rights Network report released in January of their study on restraint and seclusion of school children, many with disabilities. The report chronicles a number of instances where children were injured or even killed by these techniques. It is an interesting and bone-chilling document. Here is a link.

For a previous post on this blog about the NDRN report follow this link.

Technology Update; Mediation Post &CRS Reports

The post yesterday was made through my cellphone because I was on the road. You can see that I am getting better at utilizing the voice recognition software. Although "special ed" became "special ad," that's not too bad. If you would like to hear my voice and determine whether I actually said "ad," click on the listen button. How cool is technology?

The Facebook special education law group now has 332 members and is a great place to discover resources and information. You can visit the site and join if you want through this link. The Ning special education law group also is growing and has some interesting discussions. Check it out here.

The lefthand side of the blog has all kinds of links and information that you might find useful. My twitters mini-posts appear there. There are also numerous links to websites that I use a lot, and there is always some type of poll, although we make no claim of scientific or other accuracy. The current question is how would you rule on the pending special ed case if you were on the supreme court? For the parents is leading for the district 23 to 17, with three readers pulling a Justice Kennedy and recusing themselves. Make your voice heard; cast your vote.

The lefthand side of the blog also has a place where you can take advantage of our free subscriptions. You can choose among subscriptions directly to your email inbox or subscriptions through an RSS reader, or if you have a website, you can add a pretty cool widget to your site that displays my most current posts. Please subscribe; the numbers help. There is also a search bar on the lefthand side that allows you to search this blog for previous discussion topics; the search feature is very useful.

Finally to follow up on my posts on the Congressional Research Service, a few of you have pointed out correctly that the reports are available for a fee. This is correct. When I questioned whether they should be available to the taxpayers, I meant without charge. The way I view it, we have already paid for these reports as taxpayers. Transparency should be free!

Mediation. Is it the...

Mediation. Is it the way to go for special ad disputes?
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Why Aren't Congressional Research Service Reports Available to the Public?

I mentioned in my last post the report by the Congressional Research Service that analyzes the key case decisions under IDEA since the 2004 reauthorization and suggests areas that Congress might want to tweak in the next reauthorization. I listed the areas that the CRS delineated in that post.

Several of you have inquired regarding how you can read the report. The problem is that I have learned that reports by the Congressional Research Service are not public documents. This is complete nonsense. One would think that taxpayer funded studies might well belong to the taxpayers. But I have learned that this is quite a controversy. One must purchase a subscription in order to read the reports.

Really? I would understand if we were talking about military strategy or troop movements, but how is special education law and policy fairly considered to be classified information. Transparency really is a good thing! I have read news accounts that for a while one member of Congress was posting all CRS reports on his website, but it became overwhelming and he stopped providing this service.

Any way, if you have a subscription or can track it down, the title of the report is "The Individuals with Disabilities Education Act (IDEA): Supreme Court and Selected Lower Court Decisions" and I believe that the report number is R40521 (although it may be 7-5700?).

IDEA Reauthorization: Congressional Research Service Report

A recent report by the Congressional Research Service provides a good summary of the major caselaw under IDEA since the 2004 reauthorization. I found this report through the excellent NSBA Legal Clips service, and there appears to be some controversy as to whether reports by the Congressional Research Service should be available to the public. But such issues are too big for us here.

The report gives an excellent summary of many of the key recent cases. It also provides a list of many of the issues raised by the caselaw that Congress is likely to consider. On its short list are the following:

• What amount of educational progress is required to meet FAPE standards?

• What educational benefits are required to be put in an individualized education
program (IEP)?

• What use of seclusion and restraints is allowed (if any) under IDEA?

• Are all settlement agreements enforceable in federal court or only those reached through dispute resolution or mediation?

• Is information disclosed in a resolution session confidential?

• What are the rights of a noncustodial parent of a child with a disability?

• Does the Supreme Court’s decision in Schaffer v. Weast correctly allocate the
burden of proof in IDEA cases?

• Are compensatory educational services required for the same amount of time that
the appropriate services were withheld?

• Does the Supreme Court’s decision in Arlington Central School District v. Murphy correctly deny reimbursement for expert witness fees?

• Does there need to be more detailed guidance on systemic compliance
complaints?

As you may recall from a previous post, I am planning to collect feedback from you regarding reauthorization issues and join them with my own list. Then I hope to present the whole bunch to Congress when they begin to consider the topic again. Many topics on the CRS list resemble topics that previously appeared on my list. How does the CRS list compare to yours? What else would you have them think about changing?

Happy Birthday: 2 Years Old

Today is the second anniversary of the launching of this blog. Thanks to all of you who read the blog and utilize its resources. The number of people who have taken advantage of the free subscriptions is at an all time high. Our goal is to provide information and resources about special education law. This is also a good place for discussions about where the law can be improved and about the policy implications of various approaches to special education as they are required or encouraged by legal developments. Thanks for your participation.

From time to time, we get requests to discuss pending problems involving actual kids. As the disclaimer indicates, however, I am a mediator and hearing officer so I never give legal advice or discuss actual cases. I am a neutral and I need to keep it that way. It is proper, however, for people with questions to post a comment on the blog looking for thoughts from other readers. Our readers are pretty good about sharing resources and information. I appreciate the understanding of those who ask questions that I cannot answer because of my independence and impartiality requirements.

Special education law is new law, and much has happened in the last two years. Thanks for coming along for the ride. Happy birthday to you, and please keep reading!

Facebook Group at 300 Members

The Facebook special education law group now has over 300 members. I am amazed at how quickly the group is growing. It is an interesting place where all kinds of people who are interested in special education law meet and discuss topics of common interest. It is a good mix of stakeholders, parents, lawyers, teachers, mediators, hearing officers, related service providers, students of special education, school district officials, advocacy group representatives, students of law, state staff, professors of law and education, consultants and advocates, and others who care about children with disabilities. Please join us if you are interested in this ever-changing and fascinating field of law. You can visit the group here.

The number of subscribers to this blog is also growing rapidly. Subscriptions are free and you can get them on the lefthand side of the blog. Thank you and please keep subscribing. There is power in numbers in the blogosphere, and I appreciate your support.

The other special education law groups are also pretty active. These groups include the Ning Group and the Twitter Group. If you utilize these tools, please join us there as well. You can also follow my tweets on Twitter or on the lefthand side of the blog. I'm still learning about these technological marvels, but I hope I never stop learning!

The poll on the left hand side of the blog continues to receive votes. The question is: how would you vote on the case now before the Supreme Court. For the parents has jumped out to a 22 to 15 lead. Who are these folks who are recusing themselves? Remember to vote so that your voice will be heard.

DHHS Proposes New Rule Ending Moratorium on Medicaid Reimbursement

Many of you were concerned about the temporary rule proposed in December 2007 that would have prohibited school districts from seeking reimbursement from Medicaid for various services to school children. For you I have some good news.

The federal Department of Health and Human Services published a regulation in the Federal Register today that would permanently rescind the policy. You can view the proposed new regulation at this link.

If you would are concerned about the proposed rule or the previous rule, please file a comment The deadline for comments is 5:00 pm on June 1, 2009. Comments should refer to file code CMS–2287–P. Faxed comments will not be accepted. You may comment by Electronically. You may submit electronic comments on this regulation to http://www.regulations.gov. You may also comment by regular mail. You may mail written comments to the following address ONLY: Centers for Medicare &Medicaid Services, Department of Health and Human Services, Attention: CMS–2287–P2, P.O. Box 8010, Baltimore, MD 21244–8010. Also you may comment by express or overnight mail at the following address ONLY: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS–2287–P2, Mail Stop C4–26–05, 7500 Security Boulevard, Baltimore, MD 21244–1850.

Oral Argument Before Supreme Court: Hearing Officer Authority - Part I

Oral arguments were held last week for the case pending before the United States Supreme Court. Many of the arguments from the Tom F case resurfaced. If you want to read and review the oral argument, see this link.

My concern is about the knuckle ball that came out of the school district's reply brief. The district contends that the statutory provision in question- which provides that a child must attend public school first before the parents may seek reimbursement for a unilateral placement- authorizes both hearing officers and courts to award reimbursement. Otherwise, the district contends, only courts and not hearing officers can award such relief.

This is news to me. I think that this is a very creative argument, but if the supremes accept this reasoning, many problems will follow.

In a future post, I will discuss my reasoning. For now, here are some of the interesting arguments:
District Lawyer:
The only provision in IDEA that gives hearing officers the authority to award tuition reimbursement is 1412(a)(10)(C)(ii). So if the statute doesn't work -- the statute doesn't work, and the Secretary's interpretation of 1415(i)(2)(B)(iii) is implausible because it accords to hearing officers the authority that it doesn't have... (TR p 21, 1. 16-22)

JUSTICE GINSBURG: But procedurally we -- we know that there is a provision addressed to a court for equitable relief. The question was put before: Where does the hearing officer get the authority to order tuition reimbursement? Because the statute on which you rely for the court speaks only to the court's authority.
MR. SALMONS: Thank you, Your Honor. I am happy to answer that question. But Petitioner makes this a centerpiece of their reply brief and I think they just misread the statute. And again, keep in mind that these amendments in 1997 were written against a backdrop of this longstanding statute and this Court's interpretations of it. The most direct place where the statute provides hearing officers the authority to hear address reimbursement claims and to award reimbursement ... is 1415(b)(6). This has always been in the statute and it states that the parents must be provided an opportunity to present complaints 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."
That is -- again, that has always been understood to include the right to seek reimbursement before the hearing officer. And this Court in Burlington cited legislative history from the 1975 Act that noted that hearing officers could award reimbursement and address such claims in concluding that it was part of the appropriate relief that courts ought to be able to have under 1415. (TR p. 38, l. 17 - p. 39 l.22)

JUSTICE GINSBURG: But procedurally we -- we know that there is a provision addressed to a court for equitable relief. The question was put before: Where does the hearing officer get the authority to order tuition reimbursement? Because the statute on which you rely for the court speaks only to the court's authority.
MR. SALMONS: Thank you, Your Honor. I am happy to answer that question. But Petitioner makes this a centerpiece of their reply brief and I think they just misread the statute. And again, keep in mind that these amendments in 1997 were written against a backdrop of this longstanding statute and this Court's interpretations of it. The most direct place where the statute provides hearing officers the authority to hear address reimbursement claims and to award reimbursement -- and this is on page 9 of the addendum in the blue brief -- is 1415(b)(6). This has always been in the statute and it states that the parents must be provided an opportunity to present complaints 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."
That is -- again, that has always been understood to include the right to seek reimbursement before the hearing officer. And this Court in Burlington cited legislative history from the 1975 Act that noted that hearing officers could award reimbursement and address such claims in concluding that it was part of the appropriate relief that courts ought to be able to have under 1415. (TR p. 41 l. 9 - p. 42 l. 5)

JUSTICE SCALIA: Well, you agree they go, as we say, in pari passu -- ... -- that -- that whatever the hearing officer can do, the court can do.
MR. SALMONS: I think generally --
JUSTICE SCALIA: -- and whatever he can't do, the court can't do.
MR. SALMONS: I think they ought to be read together, yes, Your Honor. But I think they ought to be read to provide for the authority to provide tuition reimbursement. (TR p43 l. 6-18)

JUSTICE GINSBURG: Does the -- does the department have a regulation that says the hearing officer may order the private school -- the parents to be reimbursed for private school tuition? Because it's not in the statute.
MR. MILLER: (Reg section) 300.148(b) says that disagreements between the parents and a public agency regarding the availability of a program appropriate for the child and the question of financial reimbursement are subject to the due process hearing procedures. So yes, that regulation gives hearing officers the authority to award reimbursement, as indeed the hearing officer had done Burlington. Burlington was the case... (TR p. 51 l. 13 - p. 52 l. 3)

Dee Ann Wilson Wins JoLeta Reynolds Award

As you can see from the last two posts, I still have to master the voice recognition software. But these innovations allow me to post by cellphone from remote locations like Las Vegas. I have to learn to speak more clearly, as you will see if you click on the links and listen to my voice.

But lost in my voice recognition problem was the fact that Dee Ann Wilson, who does many things as an employee of the Iowa Department of Education, won the JoLeta Reynolds Award for state level employees this year. I nominated Dee Ann for the award for her innovations in the field of dispute resolution. She set up a mediation system before it was required by IDEA. More importantly, she got people to buy into the system. It is widely used.

Also she devised a facilitation system for disputes even before they become disputes. Her system is used as a national model, and it helps keep the focus on the child. Again, her system is copied by states trying to avoid due process hearings and the financial and emotional costs that come with them.

Most importantly, Dee Ann Wilson has a good heart. She always remembers that we are trying to help children with disabilities; something we all would do well to remember. This came through big time in her acceptance speech. Congratulations to my friend, Dee Ann.