Resource Update

Occasionally I run a post updating some of the resources that are available through this blog for people with special education issues. The resource items are found on the left-hand side of the blog. The most important thing is to subscribe to the blog. In the internet world, there is credibility in numbers, so please spread the word. We now have a large number of subscribers and that makes it easier to be taken seriously. Maybe if enough people subscribe, the next candidates for president will answer our inquires. There are three ways to subscribe and all are absolutely free. One is to receive our posts by email. The second way involves obtaining our posts through an RSS reader or aggregator. The third method only works if you have a blog or website. If so, you can embed a special ed law blog widget (or blidget= blog widget) directly in your own blog or website. A big thanks to all subscribers.

My Twitter mini-posts or "tweets" also appear on the left-hand side of the blog. A number of people also follow us on Twitter.

The section entitled Helpful Links includes direct links to several federal government sites, including IDEA.gov, that includes a searchable data base with the federal statute and regul as well as ationsOSEP guidance documents. Other links include the NICHCY information clearinghouse and the CADRE website for special ed dispute resolution. If you use Facebook, there is a link to the Facebook special education law group. Among the other social network special ed law groups linked there are the Ning group and the LinkedIn group. These groups offer additional resources and very active discussion groups.

Under the Heading Other Education Blogs are links to some really good education blogs that I read and enjoy. I am very selective in adding links to this blog. I believe that the ones listed are of very high quality and usefulness.

There are also registration links to conferences that I recommend. There follows a blidget carrying the headlines of the Daily Smart Brief by the Council for Exceptional Children. (This is an example of one type of blog widget.) A link to the daily education news and blogs carried in Blognetnews follows.

The Archive for this blog and the blog search tool are handy when you may be looking for information on special education law. Just type in a word or phrase and you will get results of posts that may have mentioned the key word or phrase. This is a nice research tool.

The "Important Please Read" disclaimer is very, very important. I am an impartial. I work as a hearing officer or mediator, and as a consultant for states and a conference speaker. I never represent parents/students or school districts. For the same reasons, I avoid cause invitations and social network groups that appear to advocate for one side or the other. I think that my impartiality adds credibility to this blog as well as to my work.

In addition to my impartiality, and for important legal reasons, I can never give legal advice or discuss actual situations or personally identifiable information. I often suggest that readers make a comment or join one of the group discussions. Although I cannot give advice, other readers or group members may well have suggestions. With the large number of diverse groups of stakeholders who subscribe to and read this blog, help may be a comment away. Almost all readers who have contacted me understand these reasons for my not giving advice, and I thank them for their understanding.

After some information about me and some photos of me being a hearing officer, are our periodic polls. These are fun exercises but they are not scientific polls or anything approaching that level of sophistication or measurement. But they do show intensity on some issues as well as the diversity of our readership. The current poll question is: Given the recession, should cost/money be a defense in special education cases. Please exercise your right to vote.

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CORRECTION: The Bad Economy and the Law

As some alert readers have pointed out. My recent post on the bad economy and the law contained a serious typographical error. I left out the word "not." Yes, that is a very bad error.

In my discussion of the decision by the United States Supreme Court in Cedar Rapids Community Sch. Dist. v. Garret F. 119 S.Ct. 992, 29 IDELR 966 (1999) I mistakenly said that the cost of services could be a defense to a violation of IDEA. In fact the ruling of the high court was just the opposite. The supremes emphatically rejected the argument that cost could be a defense.

I apologize for the error. I hope that my proofreading error has not caused any inconvenience.

I remain interested in your opinions concerning expense or cost as a possible defense to an IDEA violation. Also I'd really like to hear about any cases in which cost is raised as a defense or where you suspect that cost is a factor in the decision-making.

• Image by wallyg via Flickr

  
  

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Expedited Due Process Hearings in Discipline Cases

As many of you know, some due process hearings must be expedited, Specifically, in cases involving a change of placement of a child with a disability for disciplinary reasons, a request for due process hearing must be an expedited hearing. IDEA Section 615(k)(4). In other words, the hearing must begin within twenty school days of the complaint being filed. If there is no intervening summer vacation or hunting season (local color joke - insert your local version here), or snow days, that can be very fast indeed.

In its recently updated Questions & Answers Document on Dispute Resolution, the Office of Special Education Programs of the federal Department of Education, the agency that covers special education adds some new wrinkles on this matter. Most of the Q & A document is the same as the previous Q & A on Dispute Resolution, but there are two developments concerning discipline. Concerning expedited hearings, OSEP opines that the parties cannot agree to extend the deadline for an expedited hearing. This surprises me a little. The other development is OSEP's opinion that a school district can go directly to court for a safety injunction in a discipline case without first exhausting administrative remedies in a due process hearing. It will be interesting to see if courts give deference to OSEP's opinion on the issue of exhaustion. Under principles of administrative law, a court must give deference to OSEP's guidance but they are not required to afford such guidance precedential value.

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Before this recent development, some of the states I work with wondered how the IDEA'04 requirement that there be a resolution meeting figured into the scheduling of an expedited hearing. See 34 C.F.R. Section 300.532(c)(3). So I wrote to the OSEP. OSEP confirmed my reading: the resolution period of fifteen calendar days runs concurrently with the twenty school days within which the hearing must be scheduled. Letter to Gerl 51 IDELR 166 (OSEP 5/1/8). So a hearing officer must schedule the hearing after the fifteen calendar day resolution period and before the twenty school day deadline. This is complicated by the fact that the parties must disclose their hearing evidence at least five business days before the hearing. Try working that out on a calendar and then work in the calendars of two lawyers and the parties. Fun stuff.

Note that this is the only place in IDEA where all three kinds of days (calendar days= the default type unless otherwise specified; school days and business days) converge. Why not make it extremely confusing ? Why not derf days or personal hygiene days or pirate days? Seriously though why so many different kinds of days?

My presentation in special...

My presentation in special education law this morning went very well i enjoyed the participation at the conference. listen

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The Bad Economy and the Law: Should Cost/Money Be a Defense in a Special Ed Case?

Could cost become a hot button issue? An article recently caught my eye about the ongoing litigation in Wisconsin concerning the finding that the school districts there , and eventually the state Department of Education, have run afoul of IDEA by violating its child find provisions. The article claims that the Milwaukee school district is appealing a federal court ruling in part because compliance with the order would be too expensive. Here is the article.

Now I know that the intricacies of the law are very difficult for reporters to grasp, and that sometimes news articles garble the law part of the story. However, in general, monetary cost does not constitute a defense to a violation of the special education law. The U. S. Supreme Court emphatically declared in its decision in Cedar Rapids Community Sch. Dist. v. Garret F. 119 S.Ct. 992, 29 IDELR 966 (1999) that the cost of services could be a defense to a violation of IDEA. See recently Washoe County NV Sch Dist 51 IDELR 52 (OCR 2008) (Note this decision holds that cost is not a defense to a section 504 violation.) The only exceptions are cases where the cost of compliance do not impact FAPE, such as where more than one program is appropriate or where a district has a center for low incidence populations. I have also seen expense mentioned by the courts in some least restrictive environment decisions but I do not recall expense ever being the deciding factor.

This issue could become more important as the recession continues. The extra money from the stimulus package helps, but at a special ed law conference two weeks ago a speaker quoted the special ed director of a large urban school district as saying "this is going to get ugly." Cash strapped school districts may be tempted to avoid expensive solutions. I expect that the number of due process hearings where cost or expense is an issue will rise. Be on the lookout for money issues. Please let me know if you see similar cases where you live and work.

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Reimbursement Session in Maine Went well

 

The second stop of my IDEA Remedies Tour occurred in Portland, Maine yesterday.  The session went well.  I always enjoy lots of participation.

The recent TA decision by the Supreme Court was a big topic of course.  The participants were very involved, and I learned a lot.

My session giving an update on special ed law comes during the CLE presentations on Thursday

I am the Walrus (...er, IDEA Remedies) Tour Continues

My IDEA Remedies Tour continues next week in Portland, Maine. I will be addressing the Remedy of Reimbursement for a Unilateral Placement. I'll also be doing a continuing legal education session on a special ed law update. The 6th annual Education Law Conference will feature excellent sessions on all aspects of law and the schools. The Wingspread group will also have meetings and sessions there; it tries to make legal education and other types of education more inclusive. You can review the conference website here.

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There is still time to register for the conference which is sponsored by the University of Southern Maine and the university of Maine Law School. Here is a registration link.

I had a great time last week on the first leg of the tour. I spoke on the remedy of Compensatory Education for special ed law violations at the Seattle University Academy for IDEA Hearing Officers and ALJs. I met a bunch of great people and got to spend some time with some old friends. The networking at these conferences is as valuable as the educational sessions. If you can, you should go.

Breaking News: Facebook Group Now has Over 400 Members

Breaking News: the Facebook Special Education Law Group now has over 400 members. Congratulations! The group is an excellent place for special education law people to meet and exchange discussions and suggest resources to each other. Check it out here. A lot of interesting and dedicated members make the group a fantastic resource. I encourage you to take a look and join us if you like it.

Those who use Twitter might be interested in the Twitter Special Education Law Group. You can find it here. You can also follow my "tweets" on the left-hand side of this blog.

Other special education law groups are available for those who use LinkedIn, and Ning. These social networking groups all have their own flavor and style, but they all include great people and very interesting discussions. There are also links to all of these groups on the left-hand side of the blog.

Many of you have noticed some of my technical innovations. I especially enjoy experimenting with blog posts through email and through my cellphone. The slightly garbled posts on July eighth illustrate my ongoing struggles with the voice recognition software. {Insert joke her regarding a mixed Chicago-West Virginia accent.} It is exciting though to be able to post from conferences and other restrictive locations.

Please also check out the free subscriptions on the left-hand side of the blog. There are three ways to subscribe. You can receive the posts by email. You can get the posts in an RSS reader. If you have a blog or website, you can also create a widget to insert the posts into your own site. Thanks to all who subscribe.

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Alexa Posny Nominated as Secretary of OSERS

President Obama nominated Alexa Posny last week to serve as Assistant Secretary of Education for Special Education and Rehabilitative Services. Here is the official press release.

OSERS is the subdivision of the federal Department of Education that deals with both special education and vocational rehabilitation for adults. Here is a link to the OSERS website.

Alexa Posny is currently the Commissioner of the Kansas Department of Education. She has formerly served as Director of the federal Office of Special Education Programs and as the state Special Education for Kansas. Here is another biography of the nominee.

I have seen her speak and she is a very effective and witty communicator. Good luck to the nominee from the special education law blog.

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New OSEP Guidance: Discipline for SpEd Students

This kind of got lost in the buzz over the new Supreme Court decision, but the federal Office of Special Education Programs recently published new guidance concerning discipline of students with disabilities. Discipline has always been an important area and it was one of the key reasons that the federal special ed law was created in the first place. Expulsion and long term suspensions were among the mechanisms used to prevent children with disabilities from attending public school. As a result, the predecessor of IDEA contained specific protections against disciplinary changes of placement for special ed students.

Unfortunately, the field of discipline gives many teachers, parents, administrators, principals, and regulators stomach aches. The discipline rules have become fairly complex. When understood in context, however, they are not so hard to apply.

The new OSEP guidance includes OSEP's take on whether disciplinary rules apply when the parent revokes consent for services tat had been being received; that home instruction cannot be the sole IAES option; and clarification regarding the behavior requirements. You can review the new policy guidance here.

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DHHS Medicaid Reimbursement Regulations Rescinded

Last Monday, Kathleen Sebeilus, Secretary of the federal Department of Health and Human Services announced that the Obama administration would repeal three and delay enforcement by a year of controversial regulations. The regulations would have limited the ability of school districts to receive reimbursement from Medicaid for school-based services, transportatio

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n and case management. The regulations had been the subject of a Congressional moratorium, but the moratorium was scheduled to expire on July 1, 2009. This action by DHHS eliminates the effect of the regulations.

I know that many readers were interested in these regs. Here is the explanation of the changes by the Council for Exceptional Children. Here is a medical news article.

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Excellent session on...

Excellent session on the so decision writing it conference this morning. listen

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Write session on decision...

Write session on decision writing at conference this morning.
listen

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Independence Day

Tomorrow is Independence Day. The Fourth of July is a big holiday for our country, and these days we really need a big holiday. I have always loved this day; what other country believes in an inalienable right to pursue happiness! Independence Day is also a time to reflect on the concept of independence.

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For people with disabilities, independence is an important goal. Congress has stated that encouraging independent living for people with disabilities is the policy of the United States government. IDEA, Section 601(c). Indeed, one of the purposes of special education is to prepare children with disabilities for independent living. IDEA, Section 601(d)(1)(A).

Before passage of the EHA, the predecessor of the IDEA, in 1975, education of children with disabilities, who were then called "handicapped," was iffy at best. According to the legislative history of the EHA, which is quoted in the seminal Rowley decision by the Supreme Court, millions of children with disabilities were then either totally excluded from school or were warehoused until they were old enough to drop out. Bd. of Education v. Rowley 478 us 176, 191, 103 LRP 31848 (1982). At the time, it was estimated that of the eight million children who required special education, only about 3.9 million were receiving an appropriate education. Bd. of Education v. Rowley, 478 US 176, 191, 103 LRP 31848 (1982).

These numbers are shocking. 1975 was not long ago. Yet we have made real progress since then. Special education may have its detractors, but it is now widely accepted. Very few children with disabilities are now excluded from school. Some still do not receive an appropriate education, but there are now remedies available when that happens. We have come a long way!

One other important indicator of independence is very encouraging. In the 2008 presidential election over 14.7 million people with disabilities cast a vote. This is a record number and more than 3.8 million more people with disabilities voted last year than in 2000. Here is a blog post about this excellent story.

I realize that we are not finished. I do not advocate the display of a banner reading "mission accomplished." But as we look forward on this Independence Day to how we can do a better job of educating children with disabilities, let us also look back for a moment and congratulate ourselves on the excellent progress we have made in what in public policy terms is a very short time.

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Happy Independence Day.

New Supreme Court Decision- Part IV (Hearing Officer Authority)

Those of you who follow this blog know that I was concerned about the school district's argument that hearing officers lacked authority to grant reimbursement. I had never heard this argument made before. NOTE: I have a bias here, I am a due process hearing officer for a growing number of states and I train hearing officers across the country. A few commentators have dismissed this issue as a "nonstarter," but at least three justices asked questions concerning the argument at the oral argument. Maybe others gave this argument little attention, but believe me, hearing officers were taking it seriously.

As my preliminary analysis noted the supremes specifically noted at page 17 of the slip opinion that both hearing officers and courts have the authority to grant reimbursement for un

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unilateral placements in proper circumstances. The Court explained its reasoning in footnote 11 on page 13 of the majority opinion.

Specifically, the Court ruled that the district's argument concerning hearing authority ignores the Burlington decision. The high court stated that the Burlington decision interpreted IDEA "... to authorize hearing officers as well as courts to award reimbursement notwithstanding ...(Section 615's) silence with regard to haring officers." n. 11, Slip Op at p. 13. The opinion goes on to state that by amending IDEA without altering the text of the section, Congress implicitly adopted the Supreme Court's construction of the statute regarding hearing officer authority to award reimbursement.

Forest Grove Sch Dist v TA 557 U.S. ____, 109 LRP 36046 (6/22/2009) is an important decision for hearing officers to cite in their decisions. It is clear that this decision reiterates the ruling of Burlington that hearing officers ,like courts, have broad equitable discretion to award an appropriate remedy where there has been a violation of IDEA.

here are some additional resources: First, a couple editorials applauding the ruling: St. Louis Dispatch and Boston Globe. The SCOTUS blog resource page concerning this case includes analysis, briefs by the parties, amicus briefs and a transcript of the oral argument at the high court. A law review article written before the decision discusses some policy concerns can be found here. This link has three perspectives on the ruling.

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