We're Three Years Old Next Week: How Should We Celebrate?

OK I have had a tough week. I have had two long hearings and I'm out of gas. Plus I'm off to Orlando for a conference on Saturday. I'll admit it. So this post will be quick and to the point.

Next week this blog celebrates its third birthday.

How do you think we should celebrate?

Digest of Education Statistics 2009 - More Fun with Numbers

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The National Center for Education Statistics has released the 2009 edition of its Digest of Education Statistics. If you are interested in education and you enjoy numbers, this is the real deal. You can read the entire 732 page document here.

Here are some observations:
Of all special education students out of high school up to six years, 35.6% are living independently; 63.2% are currently employed; and 57% have received some postsecondary education. (Table 390).

In school year 2007-2008, 6.6 Million students aged 3 to 21 were in special education, which amounts to 13.4% of the student population. Table 52 includes this information as well as the stats for each school year from 1990-1991 to 2007-2008. Also Table 52 includes the numbers for each state.

In the fall of 2007, 15.4% of special ed students spent more than 60% of their time in the regular education classroom; 22.4% spent between 15 and 60%, and another 56.8% spent part of their day in regular education but less than 21%. (Table 51)

Table 110 has information about exiting special education. Table 166 has data regarding the compulsory attendance ages for all students and special education by state. Table 231 has stats concerning the distribution of post-secondary students by disability status and other characteristics.

There is a lot more. Many of the stats are broken down by state and many other variables. These are just some of the interesting numbers. I encourage you to review the report yourself. Despite my protests, numbers can be fun. Please tell me if you find any interesting numbers.

CADRE Report: Post Script No. 2 and Tech Update

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In one of the posts this blog recently ran on the CADRE report showing the numbers of special education law disputes (mediations, state complaints, resolution sessions, due process complaints) by state, I made a comment which I need to clarify.

I talked about scooping the mainstream education news outlets. I did not mean this comment to sound disrespectful of the reporters who work for those publications. Many of them read this blog, Most of them have cited this blog in their publications and have listed this blog as a resource for their readers. These folks work hard, are almost all underpaid and are my friends. More important, they do a great job. If my comments were offensive to them, I'm sorry.

The mission of this blog is to keep people informed. That may sometimes result in an exclusive interview or a "scoop," but that is not the goal. This blog is only one of the many excellent resources available to parents, special ed teachers, lawyers for both sides, related service providers, advocates, paraprofessionals, regular education teachers, principals, special ed directors, disciplinarians, members of advocacy groups, professors of both education and law, future teachers, law students, and other stakeholders or special education law junkies.

One of the ways we try to keep you informed involves helping you find many of the other available resources by linking to them on the left-hand side of the blog. One is the Facebook special education law group; please check it out. This group now has over 760 members. There are always interesting discussions going on the wall. One discussion now ongoing involves a question I have posed as a part of my research for a presentation this summer concerning the role of non-attorney advocates in IEP team meetings. What can they do and what can they not do? If you have any views on the issue, please lave a note there or comment here on this blog.

Other resources on the lefthand side of the blog include special education law groups in other social networks: Ning, LinkedIn, Plaxo, and Twitter. There are also links to the a searchable site with the statute and regs and other links that will lead you to everything you always wanted to know about special education law, but were afraid to ask. There are also links to other sources of education law and a search bar just for this blog. (The search bar is a good way to find previous posts on a topic you are interested in.)

Also while on the lefthand side of the blog, please take advantage of one of the free subscriptions to this blog. You can subscribe by email, and get an RSS feed for an aggregator or feed reader, and you can also get a blidget (or blog widget) so you can get our posts as a widget on your own blog or website. If you have not already taken a free subscription, please do so. The numbers help our growing credibility.

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Justice Stevens and Special Education Law - Part II

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Justice John Paul Stevens has announced his retirement from the United States Supreme Court. Although originally considered a moderate by most, he has drifted to the liberal wing as the court added more and more very conservative justices. In addition to being a loyal fan of the Chicago Cubs, Justice Stevens left his mark on special education law.

Last week we reviewed his opinions in the big ten decisions by the Supremes in this area of the law. We also discussed in detail, the opinion he authored in Forest Grove v. TA. This week we will take a look at the other major opinion in this area authored by Justice Stevens.

In the case of Cedar Rapids Community School Dist v. Garret F 526U.S. 66, 119 S.Ct 992, 29 IDELR 966 (3/3/1999), Justice Stevens wrote the opinion for the seven justices who formed the majority. Near the beginning of the opinion, Justice Stevens notes that the student "... is a friendly, creative and intelligent young man." It was refreshing to see this emphasis upon the student whose education is being litigated.

The main issue in the case was whether the school district was required to provide urinary bladder catheterization, suctioning of a tracheotomy and various monitoring functions for the student. IDEA, the federal special education law requires a school district to provide as related services to students with a disability those related services that are necessary for the student to receive a free and appropriate education. There is an exception for "medical services" and the district argued that the exception applied. Justice Stevens reaffirmed the "bright line" test from the previous Tatro decision, holding that the medical services exception only applies to services that must be performed by a physician. Accordingly, the opinion requires the district to provide the related services at issue.

More important, in my opinion, is the manner in which Justice Stevens handled the school district's argument that the expense of the services should be a defense. The majority opinion squarely rejects the argument that the cost of providing services can be a defense in special education cases. This ruling has importance way beyond the facts of the particular case. I believe that this portion of the decision is Justice Stevens' true legacy concerning the body of law involving special education.

Note the President is a known fan of the dreaded Chicago White Sox. I fear that the chances of another Cubs fan being appointed to the Supreme Court are indeed very slim!

Special Ed Hearing Officer Qualifications - Part V

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Last week we took a look at a sample of a bunch of recent court decisions that have reviewed the due process hearing system of various states. The trend is clearly an increase in the number of such lawsuits. This week we will examine what makes a good due process hearing system.

As I have mentioned in each post in this series, please note that I have a number of potential biases here. First, I am a hearing officer and/or a mediator for four states. Second, I do a lot of special ed law consulting for states. Third, I have conducted hearing officer trainings at national conferences, at regional trainings and for a number of individual states. I have trained hearing officers from every state. I have definite opinions here and my business interests could color my thinking. Although I do not believe that these interests affect my opinions, please keep this disclosure in mind.

Hearing systems vary considerably. Many states have a two tiered system in which the first hearing is before a hearing officer, but before his decision may be appealed to court, the aggrieved party must first appeal to a state review officer. In one-tier states, the hearing officer's decision is the final administrative decision and may be appealed to court. IDEA § 615(g); 34 CFR §§ 300.511(b), 300.514. The trend is clearly toward one-tier systems. See, the recent excellent study commissioned by the Massachusetts SEA.

One of the other main differences among the various state due process hearing systems is whether hearing officers are required to be lawyers. The trend here is clearly toward lawyers as hearing officers. There are still a number of states that hire special ed professors and former district administrators, etc as hearing officers. Many of these non-lawyers are excellent hearing officers. But most states I am familiar with now use only lawyers as hearing officers. Because of the new requirement that hearing officers be familiar with special education laws, regulations, and court decisions, whether or not they are lawyers, the state department of education is required as a part of its general supervisory responsibility to adequately train hearing officers so that they can properly conduct hearings and write good decisions. See Analysis of Comments, 71 Fed. Reg. No. 156 at page 46705 (OSEP 8/14/2006). Given the flurry of lawsuits against state departments of education, as well as the fact that OSEP monitors have lately been very interested in hearing officer training, states should all be in the process of reviewing their hearing officer training programs. Do the hearing officer trainings provide a proper update on the law? Do the trainings give the hearing officers the skills they need to be able to properly run a hearing? Do the trainings enable the hearing officers to write a high quality decision? Are the trainings frequent enough to ensure that the hearing officers meet and continue to meet the qualifications established by IDEA?

What are your thoughts on hearing officer qualifications?

Breaking News: This blog has been named as one of the Top 50 Special Education Blogs. We appreciate the honor. Here is the list.

I'm Going to Really Miss JoLeta Reynolds

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JoLeta Reynolds died last Friday at her home in Rock Island, Tennessee. She was a Senior Policy Advisor for the Office of Special Education Programs of the U. S. Department of Education. She was only 67, and she had been fighting cancer for seven years. Here is an obituary.

This is a quote from a post I did about the JoLeta Reynolds Award, which is named after her, on July 13, 2007:
"JoLeta Reynolds is one of the best people on the planet. Many folks who work in special education know her well. She is a senior policy advisor for OSEP. She was instrumental in the re authorizations of IDEA, wrote the federal regulations after the 1977 reauthorization of IDEA and she was key in the writing of the new (2004 reauthorization) regs. She helps everybody who has a question. Many times she has helped me personally understand the nuances of the regs; she is very patient and supportive of me. She has persevered through obstacles that would stop many of us in our tracks. She is great!"

I would often call JoLeta when I had a question about the regs. A couple times, I
played back messages from her that began in that kind voice, "Jim I don't think you're reading that regulation correctly." She would tell me when I got it wrong, but she never made me feel bad about it. She was always supportive of me.

The entire Special Education Law community has lost an amazing resource and a dear friend. This is a sad day.

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Justice Stevens and Special Education Law - Part I

Justice John Paul Stevens has announced his retirement from the U. S. Supreme Court. He joined the High Court in December 1975, having been appointed by President Gerald Ford. He replaced the flamboyant Justice Douglas on the court. Although originally considered a moderate, Justice Stevens is now considered a member of the Court's liberal wing as the court has drifted far to the right.

More importantly, Justice Stevens is a big fan of the Chicago Cubs. (NOTE for newer readers- I have only one sports addiction: I am a Cubs fan)

The question for us is how did Justice Stevens rule on special education cases. Decisions involving special education do not follow the liberal vs. conservative analysis. Special ed has fans of all parts of the political spectrum - although this wide base of support still has not resulted in full funding, has it?

Justice Stevens has a very strong record on special education cases. Of the ten big Supreme court decisions, he wrote two. In the other cases, he voted with the majority in Rowley (FAPE); Burlington and Carter (reimbursement for unilateral placements); Honig v. Doe (discipline & stay put); Shaffer v. Weast (burden of persuasion) and Winkleman (representation). He concurred and dissented in Tatro (related services) because he did not think it was necessary to reach the attorney's fees issue to decide the case. Finally, he joined Justice Breyer's dissent in Murphy (expert witness fees) based upon the legislative history of IDEA.

We will look at one of the decisions that he authored this week and the other next week. The most recent decision by the Supremes in the special education law field was Forest Grove v. TA 129 S.Ct. 2484, 52 IDELR 151(6/22/2009). In that much-discussed case, Justice Stevens wrote for a six justice majority. He concluded that a student need not be deemed eligible and receive special ed before his parents are eligible for reimbursement for a unilateral placement.

In the opinion, the court first reviewed its decisions in Burlington and Carter and renewed their holdings that where a school district denies FAPE and a parent's private placement is appropriate and the equities so permit, a court has broad equitable authority to award appropriate relief including reimbursement for private placements. It is interesting that both Burlington and Carter were unanimous decisions by the high court.

The issue then was whether the 1997 amendments required a different result in this case. The Supreme Court rejected the school district's reading of the statutory provision. The Court found that Section 612(a)(10)(C) did not prohibit reimbursement in other circumstances but rather just permits it in the common circumstance where a child is receiving special education in public school. In one of my favorite quotes in an opinion, Justice Stevens finds that these statutory provisions were "elucidative rather than exhaustive." Slip Op at p. 11. (Justice Souter's dissent has some fun with this phrase noting that "When a mother tells a boy that he may go out and play after his homework is done, he knows what she means.")

Justice Stevens' opinion goes on to note that the 1997 amendments do not impliedly repeal the Burlington and Carter decisions. The opinion notes that it would take more than Congress' failure to comment on previous decisions by the Supreme Court to effect a repeal by implication, which is a doctrine that is not highly favored in the law.

The court then notes that the school district position is inconsistent with the remedial purpose of IDEA and the 1997 amendments thereto. The strong purpose of providing children with a disability with a free and appropriate public education was paramount in the reasoning of the court in Burlington, Carter and this case.

In perhaps the strongest statement in the majority opinion, the Court states that immunizing a school district's refusal to find a child eligible "... no matter how compelling the child's need... would produce a rule bordering on the irrational." The court noted the anomalous result of the school district's position in that it would permit reimbursement where a district offered inadequate services but would leave parents without the remedy in the more egregious situation in which a district unreasonably denies a child access to such services altogether. In rejecting the availability of procedural safeguards provided by IDEA other than reimbursement as an alternative, the court once again noted that the "review process is ponderous."

Finally the majority rejected arguments concerning the spending clause and financial burden. The Court noted that school districts have been on notice concerning the remedy of reimbursement at least since the Burlington decision. The argument that the result would encourage less cooperation and more expense was rejected as unfounded because reimbursement is only permitted where the district violates IDEA, the parents' placement is appropriate and the equities do not favor denial or reduction of the reimbursement.

Special Ed Hearing Officer Qualifications - Part IV

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Last week we discussed how the new qualifications for special education hearing officers pertain to the education and training of hearing officers. This week I'm going to look at a sample of a bunch of recent court decisions that have looked at the due process hearing system.

As I have mentioned in each post in this series, please note that I have a number of potential biases here. First, I am a hearing officer and/or a mediator for four states. Second, I do a lot of special ed law consulting for states. Third, I have conducted hearing officer trainings at national conferences, at regional trainings and for a number of individual states. I have trained hearing officers from every state. I have definite opinions here and my business interests could color my thinking. Although I do not believe that these interests affect my opinions, please keep this disclosure in mind.

The cases below show that state departments of education are often winding up in court because of concerns about their due process systems. While most states have escaped adverse consequences - other than the costs of litigation- the large numbers of cases definitely signals a trend.

Here are some of the key decisions handed down in calendar year 2009 involving state education hearing systems and related decisions:

Keene v. Zelman 53 IDELR 5 (6th Cir. 7/29/9) (unpublished) Parents brought a class action against Ohio SEA alleging illegal policies including improper HO training. Also alleged was that HOs were told to do nothing for the first 30 days and bill no more than one hour during that time. Sixth Circuit approved settlement that included an agreement to retrain HOs and an award of $81,000 vs SEA; Quatroche v. East Lynne Bd of Educ 604 F.Supp.2d 96, 53 IDELR 96 (D. Conn. 3/31/9) If allegation had been that an SEA system of HO training affected a number of dp hearings, parent would state claim for a systemic violation. Here the allegation was only one dp complaint, therefore no systemic violation; Chavez ex rel Chavez v. Bd of Educ of Tularosa Municip Schs 52 IDELR 229 (D.NM 2/24/9) SEA denied FAPE to student but parents not prevailing party; Emma L v. Eastin 52 IDELR 43 (N.D. Calif 2/24/9) Where LEA did miserable job of providing FAPE, and SEA is ultimately responsible for FAPE, court held SEA to an enhanced role; Delaware Valley Sch Dist v PW by James & Patricia W 52 IDELR 192 (M.D. Penna 5/5/9) Although parents may sue SEA for LEAs failure to provide FAPE, the LEA may not sue the SEA for indemnification and contribution under IDEA; DW v. Delaware Valley Sch Dist 109 LRP 80026 (M.D. Penna 12/29/9) Complaint alleging that SEA failed to properly monitor or supervise the LEA with respect to the provision of FAPE to a student stated a cause of action against the SEA; Stengle v. Office of Dispute Resolution 109 LRP 24455 (M.D. Penna 4/27/9) SEA did not violate First Amendment by cancelling contract of HO who who wrote articles about issues pending before her as HO; CG v. Commonwealth of Penna, Dept of Educ 53 IDELR 150 (M.D. Penna 9/29/9) Dist court certified a class action re the manner that SEA distributes IDEA funds; King v. Pioneer Regional Educ Service Agency 53 IDELR 196 (Georgia Ct App 11/5/9) State appeals court ruled that SEA’s general supervisory responsibilities under IDEA do not include being subject to tort-like damages; Independent Sch Dist No. 12 v Minnesota Dept of Educ 767 N.W.2d 748, 52 IDELR 265 (Minn Ct App 6/23/9)

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Timelines in Special Ed Hearings

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One question about special ed hearings that I get a lot is: when is the hearing officer decision to be issued? There is much confusion surrounding this, thanks in large part to some very confusing federal regulations. The timelines are not contained in IDEA, the statute. They exist only in the regulations promulgated by the Office of Special Education Programs, a division of the federal Department of Education. As always knowing where the bodies are... er, where to look is the key.

The general rule is that the decision by the hearing officer is due 45 days after the end of the thirty day resolution period. 34 C.F.R. §§ 300.510(b)(2), 300.515. Sounds easy, right? Just count 75 days from the filing of the complaint and you know the deadline. But no, why make it easy?

The federal regulations provide the following three exceptions where the 45 day timeline begins the day after one of three events: 1) the parties agree in writing to waive the resolution period; 2) after beginning mediation or the resolution meeting, the parties agree in writing that they cannot agree; and 3) the parties agree in writing to continue mediating after the 30 day period but later, one party withdraws from the mediation process. 34 C.F.R. § 300.510(c).

The third exception is particularly bizarre. It would seem to give the parties the option of mediating forever without triggering the deadline unless one party withdraws. The hearing officer would have little ability to manage the case under this scenario. All three options wreak havoc upon the calendars of hearing officers, lawyers for both sides and the parties.

The other major point to note is that the deadline for the hearing officer decision can be extended by the hearing officer upon a motion by one of the parties. 34 C.F.R. § 300.515(c). OSEP often seems to forget that this provision exists when it monitors state education agencies. It should be remembered by hearing officers that fairness often requires that a continuance be granted. The spirit of the timelines would militate in favor of short continuances, but surely they are sometimes necessary to ensure that all parties have an adequate opportunity to fairly present their evidence.

Next week we will take a look at how the timelines apply in expedited hearings involving disciplinary changes of placement. Spolier alert: the rules as to timelines are completely different! Welcome to the unsettling area of special education law.

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CADRE Report On the Number of Special Ed Cases: Post Script

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I know. You're probably thinking, oh no, not more fun with numbers. But I must...

Last week we provided our readers with an exclusive scoop on the CADRE report. Well, it wasn't exclusive, CADRE had already released the document publicly. We just got there before the other education "press." Our goal at the special education law blog is to provide you with useful information on a timely basis. Sometimes these scoops cause some hard feelings, but we try to get stories while they are newsworthy. We often do not run the stories first because we have no paid staff or other mainstream news resources. When we do, it is quite an accomplishment.

Concerning the CADRE report, there has been a revision of the Part B tables which may be reviewed here. With this revision, you now have the current data.

A few observations from some readers who have more experience with data than I have. First, particularly given the big change of adding the resolution session in the 2004 statute, we have two years of one kind of data and three years of another kind. It is, therefore, difficult to make serious analysis or conclusions regarding the data. For those who know how to crunch numbers, this is not much time or much of a sample.

Another major caveat, as many of us in the trenches have observed, one family can file multiple state complaints, requests for mediation and due process complaints. This is the only area of the law that I am aware of where a party can exercise all four dispute resolution options for the same dispute. Also, there can be multiple disputes. For purposes of illustration, a previous study published in 2004 found that 35% of due process complaints in a one year period were filed by 16% of the students. Especially in the smaller states, a few active parents can account for a big change in the data.

Even with these caveats, you should check out the numbers of filings in your state. Is your state in the top ten? Are you in a low volume state? How about the complaints per 10,000 special ed kids?

OK so we again had some fun with numbers. To paraphrase Zapata, those who fail to study the numbers are bound to repeat the past numbers!

Special Education Hearing Officer Qualifications - Part III

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Last week we discussed the new qualifications for special education hearing officers. This week, I'm going to talk about how the new qualifications pertain to the education and training of hearing officers.

As I have mentioned in each post in this series, please note that I have a number of potential biases here. First, I am a hearing officer and/or a mediator for four states. Second, I do a lot of special ed law consulting for states. Third, I have conducted hearing officer trainings at national conferences, at regional trainings and for a number of individual states. I have trained hearing officers from every state. I have definite opinions here and my business interests could color my thinking. Although I do not believe that these interests affect my opinions, please keep this disclosure in mind.

The changes in the qualifications for hearing officers are significant. The fact that the Congress changed this section of the law signals that it has at least some concern about the quality of hearing officers.

In the most recent post in this series I described the qualifications for hearing officers added by the 2004 reauthorization of IDEA: the knowledge and ability to conduct hearings in accordance with standard legal practice; the knowledge and ability to write decisions in accordance with standard legal practice; knowledge of and ability to understand special education law.

State education agencies who train and hire hearing officers should be mindful of these changes. Those who train hearing officers should be people who have experience in conducting due process hearings and in writing decisions thereafter to be sure that the state's hearing officers are taught how to do so in accordance with standard legal practice. This new practical component is at least as important as an update on the law. New hearing officers should be able to cite prior experience in using these skills. OSEP has noted that pursuant to its general supervisory responsibility, each State Education Agency must ensure that its hearing officers are sufficiently trained to meet the new qualifications enumerated in IDEA. 71 Fed. Register No. 156 at page 46705 (August 14, 2006.)

In addition, I have heard from a number of states that OSEP monitoring visits are now focusing upon hearing officer training. State Education Agencies are being asked to explain and justify their trainings. They are also being asked to produce training agendas and the qualifications of trainers. All states should take a look at how they train their hearing officers and ask whether improvements might be needed.

Next week we will look at some of the many recent cases where state hearing systems have been sued by various stakeholders. We will also examine whether lawyers make better hearing officers.

In your experience, what has been the quality of the due process hearing officers you have encountered?

What Should be Changed in IDEA: Poll Still Too Close to Call

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What would you change about the Individuals with Disabilities Education Act? Special education law is a lot like the weather in Chicago, it changes frequently. In fact I have frequently commented on these pages about the "cycle" of special ed law. The statute was enacted, followed by federal regulations, followed by state regs, followed by hearing officer decisions followed by court decisions, (both trial and appellate court opinions)(we even have ten by the Supremes). Then the statute, IDEA, is reauthorized and changed and the whole cycle repeats until we are pretty comfortable with the law, then the process repeats itself again. As I have said before, if certainty or red letter, hornbook law is your thing, you may not like special ed law. (There must be a Jeff Foxworthy joke in there somewhere, but I can't quite think of it!)

Reauthorization of IDEA is again overdue, but with Congress having other stuff on its plate, it may still take a while. But now is the time to start getting ready. Be prepared to let your senators and congressmen know how you feel about changes to this law when the issue becomes ripe. The organized interest groups are already making their positions known. I plan to share what you mention on this blog with the Congress, so please let me know what you think.

In addition, our ongoing poll reflects this question. I have identified ten of the issues frequently mentioned as areas of IDEA that should be changed. Interestingly only five vote separate the top five categories ( the range is 35 to 30 votes). The other five categories are lagging behind, but it is still anybody's game. Be sure to vote; register your opinion; exercise the franchise. Note these polls are not scientific or anything resembling science. They do sometimes reflect the strong feelings of readers but the samples are not random and the results don't necessarily show the support for these proposals in the country. That said, we have lots of subscribers and readers and, as our exclusive interview with Secretary Posny shows, we do have some street cred!

While voting on the poll on the lefthand side of the blog, be sure to check out the other permanent features there. Under Helpful Links, there are links to the popular special ed law groups on the various social networks: Facebook, Twitter, Ning, LinkedIn, and Plaxo. In the same section there are links to a searchable IDEA statute and federal regs; an info clearinghouse, the dispute resolution(CADRE) site, and the OSERS website. There is also a list of other blogs I read and sources for other news in the education realm. Most importantly, you can subscribe to the blog by any of three methods. You can receive the posts by email directly to your inbox. Or you can subscribe to our RSS feed and receive the posts in an aggregator or reader. Finally you can also get a widget (or blidget = blog widget) that you can place on your own blog or website. Whichever means you choose, please subscribe. Numbers are important in the blogosphere.