The Role of Poverty in Education - Revisited

Graph showing SAT scores in relation to family...Image via Wikipedia
I have said here before that my main problem with the education reform movement is that it  largely ignores the role of poverty upon a child's ability to learn. Even if we eliminated every bad teacher, and I concede that there are some bad teachers- I had a few myself!, children from poor families will still do worse on standardized tests than rich kids.  

Others have gone into more detail on this topic.  Poor kids come to school hungry and often scared. They are not read to by their parents and they don't have a lot of models for how to study. They have ready access to drugs, gangs and violence as the most apparent solution to problems.  They come to bat with more than two strikes.  

The best way to improve our schools would clearly be to eliminate- or at least to reduce- poverty.  We would no longer be # 18 or # 34 on the lists of national school systems. 

I was reminded of this issue last week when a poor black woman from Ohio was convicted of a felony for sending her kids to a richer school system.  The Judge sentenced her to jail time to make an example out of her.  You cannot put your poor kids in a rich school system.  Great! We cannot catch  Osama Bin Laden, but we sure got that Kelley Williams-Bolar! Here is a news article on her sentencing.

I'm not sure how this is a special education issue exactly, but I imagine that reducing poverty would help all education- special and otherwise.  Aren't we too great of a nation to allow our kids to have so little of a chance at getting an education?  

Am I wrong?  What do you think?
Enhanced by Zemanta

Procedural Safeguards The Series - Part XIII

LawyerImage via WikipediaThis is the final installment in a multi-part series on procedural safeguards under the federal special education law, the Individuals With Disabilities Education Act. I work a lot in this area, so it is near and dear to my heart. Despite the importance of procedural safeguards. however, many issues in this area are misunderstood. I hope that all of the different types of special education stakeholders who read this blog find the information in this series helpful. Be sure to tell me what you thought about the series.

Attorneys’ Fees

IDEA’04 changed the section on attorneys’ fees to provide that a school district or SEA may now recover their attorneys’ fees from the parent’s attorney who files a complaint that is frivolous, unreasonable, or without foundation or who continues to litigate after the litigation clearly becomes frivolous, unreasonable, or without foundation. Section 615 (i)(3)(B)(i)(II). Also, the statute now provides that a school district or SEA may now recover their attorneys’ fees from the parent or the parent’s attorney where the claim was presented for an improper purpose, such as to harass, to cause unnecessary delay or to needlessly increase the cost of litigation. Section 615 (i)(3)(B)(i)(III). The standard for an award against a parent’s attorney or a parent is very high, and it is unlikely that many awards of attorneys’ fees will be made against parent’s attorneys, and especially against parents without attorneys. These new provisions, however, may cause counsel who represent parents to decline borderline cases. There could also be awards in those rare cases in which parents clearly abuse the system. OSEP declined to clarify the standard for an award of attorney’s fees against a parent stating that judicial interpretations would likely vary on a case-by-case basis and should be left to the discretion of the court. 34 CFR Section 300.517(c)(2)(ii); 71 Fed. Register No. 156 at page 46708 (August 14, 2006).

The provision permitting an award of attorneys’ fees to parents who prevail in a due process or court proceeding remains unchanged in IDEA’04. The regulations provide that attorney’s fees may not be awarded for attending IEP team meetings, except where they are convened as a result of judicial action, an administrative proceeding, or in the discretion of the state, for a mediation. 71 Fed. Register No. 156 at pages 46708-09 (August 14, 2006).

ADDITIONAL RESOURCES: OSEP has also published a Question and Answer document, Questions and Answers On Procedural Safeguards and Due Process Procedures For Parents and Children With Disabilities (OSEP Revised June 2009). The Q & A document is available at the OSEP IDEA website:

In addition, NICHY, also known as the National Dissemination Center for Children with Disabilities, has issued a series of training module on procedural safeguards. The training modules are available online here.


Enhanced by Zemanta

Science Report Card for Nation - Not So Good!

Science icon from Nuvola icon theme for KDE 3.x.Image via Wikipedia
The results of the National Assessment of Educational Progress (NAEP) for science for 2009 have been released.  The results are not very encouraging.Thirty-four percent of fourth-graders, 30 percent of eighth-graders, and 21 percent of twelfth-graders performed at or above the proficient level.  Seventy-two percent of fourth-graders, 63 percent of eighth-graders, and 60 percent of twelfth-graders performed at or above the basic level.  One percent of fourth-graders, 2 percent of eighth-graders, and 1 percent of twelfth-graders performed at the advanced level.  You can read a summary of the report here.  You can peruse the entire report here.

The results were even worse for children with disabilities.  To establish the baseline for future science assessments, the overall average score for each grade was set at 150 on a 0 to 300 scale.   For example, Table 11 shows that the average score for forth graders with disabilities was 129 while the average score for forth graders without disabilities was  151.   And Table 17 shows that  the average score for eighth graders with disabilities was 122 while the average score for eighth graders without disabilities was  152.

What does all this mean?
Enhanced by Zemanta

Can There Be a Middle Ground on the FAPE Standard?

Chevrolet Tahoe Police packageImage via Wikipedia
One of the main guarantees of the special education law, IDEA, is that a child with a disability is entitled to a free and appropriate public education, or "FAPE."  

IDEA is overdue for reauthorization, which includes the opportunity to amend the law.  In the seminal special education ruling, the U. S. Supreme Court in Bd. of Educ, etc. v. Rowley, 458 U.S. 178, 102 S. Ct. 3034, 553 IDELR 656 (1982)  established a two-part test for determining whether a school district has provided a free and appropriate public education to a student with a disability.  There must be a determination as to whether the schools have complied with the procedural safeguards as set forth in IDEA and an analysis of whether the Individualized Educational Plan (or  "IEP") is reasonably calculated to enable a child to receive some educational benefit.  A school district is not required to maximize the potential of a student or guarantee his success. 

School district lawyers generally say that the standard means that the child is entitled to a serviceable Chevy, not a Cadillac.

That was in 1982.  Since then many commentators, and one U.S. District  Court, have questioned whether the bar for FAPE should be higher.  

Unfortunately, though, most of the debate has been whether the standard should be "some benefit" or potential-maximizing. There has been no middle ground.  Sometimes compromise can be a good thing, or at least that's what Henry Clay said.  

So can there be a compromise on FAPE.  Can we create a standard that is more than some benefit, yet not as high as potential maximizing? So it would be not a starter Chevy or the top of the line Caddy, lets say a Chevy Tahoe

What do you think is there a middle ground?  Let me know.

By the way, I continue to be interested in your suggestions for changing IDEA.  Remember I am collecting them.  Thanks.

Enhanced by Zemanta

Procedural Safeguards The Series - Part XII

Federal Way Public Schools #155Image by Atomic Taco via FlickrThis is the twelfth installment in a multi-part series on procedural safeguards under the federal special education law, the Individuals With Disabilities Education Act. I work a lot in this area, so it is near and dear to my heart. Despite the importance of procedural safeguards. however, many issues in this area are misunderstood. I hope that all of the different types of special education stakeholders who read this blog find the information in this series helpful. Be sure to tell me what you think about the series.

Procedural Violations

Section 615 (f)(3)(E) provides that the decision of the hearing officer must be on substantive grounds. Moreover, this section also provides that in matters alleging a procedural violation, a hearing officer may only find a denial of FAPE if the procedural inadequacies impede FAPE; or significantly impede the parents’ opportunity to participate; or cause a deprivation of educational benefits. Many courts had already read the old IDEA to the same effect. For example, see, D. L. ex. rel. J. L. v. Unified Sch. Dist. 42 IDELR 139 (Tenth Cir. 2004); M. L. v. Federal Way Sch. Dist. 39 IDELR 236 (Ninth Cir. 2003); and Gadsby v. Grasmick 25 IDELR 621 (Fourth Cir. 1997). These rulings are now codified in the statute.

During the hearing in cases alleging a procedural violation, the hearing officer will have to carefully rule on evidentiary objections to ensure that evidence connecting the procedural violation to one of the specified grounds is forthcoming. In cases in which a party is not represented by counsel, the matter is complicated by the hearing officer’s duty to make a complete record. In such cases, the hearing officer will likely ask a number of questions of the unrepresented party to determine the result of the alleged procedural violations or the effect of said procedural violations upon FAPE, the opportunity of the parents to participate in the process, or the deprivation of educational benefit.

OSEP has clarified that the requirement that a hearing officer base his decision on substantive grounds applies only to cases alleging denial of FAPE; a hearing officer still has jurisdiction over LRE cases and other matters alleging issues involving identification, evaluation and placement. 71 Fed. Register No. 156 at pages 46705-06 (August 14, 2006). The new amendment does not affect these types of cases.

Enhanced by Zemanta

My Powers Are Beyond Your Comprehension - A Belated Footnote

Stephen Thompson - Lego Judge DreddImage by LostCarPark via Flickr

As you know from previous posts, I have an expansive view of the powers of the administrative hearing officer. Although other give us little respect, I believe that our work is closer to that of spies, or symphony conductors or maybe paratroopers.  We are an interesting and talented group.  Our powers are broad.  Indeed, my powers are beyond your comprehension.

As I read through he special education law cases, every year however, I come across an example or two of some strange strategic decisions by my fellow HOs.  Here is an example of some unusual choices by a hearing officer in a special education case.  NOTE: it pays to read the footnotes- the following is the entire text of footnote 3 by the court in Milay ex rel YRM v. Surry Sch Dept   54 IDELR 191, n. 3 (D. ME 04/21/2010). Would you have handled it differently?

3The Court is disquieted about a number of aspects of the hearing officer's handling of this case. One example suffices. On January 8, 2008, the hearing officer held a pre-hearing conference and scheduled the hearing for January 22, 23, 25, 28, and 29 at the offices of the Department of Health and Human Services in Ellsworth. Admin. Record at H196 (Admin. Rec.). Following the setting of the hearing, Ms. Millay began to complain about the hearing dates on numerous grounds, ranging from child care problems to a lack of preparation time. Id. at H211, 227. She requested that a new hearing officer be assigned, a request that was denied. Id. at H216-17.
Perhaps, Ms. Millay's persistent objections to the scheduled hearing dates explain what happened next. On Monday, January 21, 2008, Ms. Millay wrote Maine Department of Education (DOE) and said that she had been to the doctor and had been ordered to rest for two days at a minimum with an illness "that could become very serious." Id. at H240. The hearing officer may have concluded that Ms. Millay was feigning illness to obtain a continuance, and as the hearing had been scheduled for some time and multiple witnesses had been subpoenaed, the hearing officer wrote Ms. Millay on January 21, 2008, asking her to fax him a copy of her doctor's order by 4 p.m. that afternoon. Id. at H253. The hearing officer emailed her again at 3:30, noting that he had received no response and asking again for a physician's order. On January 21, 2008, the hearing officer issued a scheduling order: "Having received no response to the e-mail messages sent earlier today, tomorrow's hearing will be held as currently scheduled and will begin at 9 AM in the offices of the Maine Department of Health and Human Services in Ellsworth, Maine." Id. at H266.
The next document is a letter dated January 22, 2008, which was hand-delivered to Ms. Millay on Wednesday, January 23, indicating that he had not heard from her and she had failed to appear at the scheduled hearing. He notified her that he was cancelling the hearing for January 22 and 23, but would proceed at 9:00 a.m. on Friday, January 25. Id. at H268, 269. On January 24, 2008, the hearing officer issued another scheduling order, noting that Ms Millay had requested a continuance for medical reasons, that she had not supplied a doctor's note, and that Surry objected to a continuance. Id. at H276. The hearing officer wrote that if Ms. Millay does not appear, he would "explore ways to provide [Ms. Millay] with an opportunity to both cross examine the school's witnesses and present her own witnesses, should she choose to participate in this proceeding." Id. He ordered her to produce signed written documentation from her doctor supporting her assertions that she was 'ordered to rest' and therefore could not attend the hearings scheduled for January 22, 23 and 25, 2009." Id.
By letter dated January 25, 2008, Ms. Millay wrote the Maine DOE, enclosing copies of her physician's notes. Id. at H278-29. She said she had returned from her appointment at 5:30 too late to mail the doctor's notes. Id. One doctor's note confirmed that she was suffering from "a febrile illness," that she had been advised to rest "for the next 48 h," and that she "may be contagious." Id. at H279. Another doctor's note dated January 24, 2008, said that the doctor recommended that Ms. Millay remain at home "for 48-72 hrs to recover from an acute illness." Id.
The hearing officer issued another scheduling memorandum on Sunday January 27, 2008, confirming that Ms. Millay failed to appear at the January 25, 2008 hearing, that it had gone on without her, and that Ms. Millay had not complied with the hearing officer's request for medical documentation. Id. at H280. He threatened to dismiss her case with prejudice. Id. Ms. Millay wrote to the hearing officer on Monday January 28, 2008 that she had "complied with your demand in every way possible: by email, telephone calls that you have not answered, and notes that I have sent (it was not possible to deliver a doctor's note to you in regard to my attendance on Friday after my second visit to the doctor, since it took place Thursday evening, but the note was mailed on Friday)." Id. at H283.
Ms. Millay wrote another letter on Tuesday, January 29, 2008, saying that she had not been able to respond earlier because she was "far too sick to copy and mail [the doctor's note] at the time I received it, due to high fever and symptoms of a quite serious nature." Id. at H284. This time she enclosed a third doctor's note dated January 29, 2008:
To Whom It May Concern
I evaluated and treated Mrs. Millay today for an ongoing viral upper respiratory illness and acute bronchitis. She had been seen by providers in my office now on three occasions due to the persistence and severity of her symptoms. It does appear that she is now suffering from acute bronchitis. She should not be over exerting herself, and her symptoms would preclude any productive participation in any formal meetings or committees.
I have informed Mrs. Millay that her condition will likely take between two and four weeks for resolution, and I would not recommend scheduling any meetings earlier than 2 weeks from today.
Id. at H286. On January 30, 2008, Ms. Millay emailed the hearing officer, objecting to the fact that three days of hearings had been held without her, pointing out that even though the witnesses might be available for later cross-examination, she would have objected to one expert witness' testimony in its entirety. Id. at H288.
On January 31, 2008, the hearing officer, having received the requested medical documentation, conceded that Surry, "has presented its case in chief and has rested." He acknowledged that "[t]he student's mother has not attended any of the hearing days held to date, because of illness. The hearing officer has, as of today, January 31, been provided with written medical documentation for all of those absences." Id. at H290. He granted a continuance to allow Ms. Millay to recover from her acute bronchitis and ordered a transcript of the hearing to date for her review. Id.
The Court realizes this series of events was unusual. In view of Ms. Millay's repeated attempts to continue the scheduled hearing, the hearing officer was within his rights to be skeptical and to demand medical documentation. The record does not clarify why there was such a long gap in communication between January 21, 2008, when Ms. Millay first notified the hearing officer of her illness and January 30, 2008, when the hearing officer finally received medical documentation. Ms. Millay is not blameless. During this interval, she managed to make it to medical appointments in Blue Hill, and presumably she could have appeared at the scheduled hearing with the medical notes and appealed for a continuance. As she in fact had acute bronchitis, her sick appearance should itself have been convincing. She also failed to respond promptly to the increasingly urgent email notices and orders. Finally, it is true that Ms. Millay tends to insist on punctiliousness when it comes to Surry, but to excuse her own failures as the result of self-representation. Ms. Millay has demonstrated an unquestioned tenacity in pressing YRM's legal rights, and it would seem uncharacteristic of her not to even appear at the due process hearing involving her child. Nevertheless, when Ms. Millay failed to appear at the hearing, the hearing officer allowed Surry to present its entire case over a three day period without the student being represented at all.
What is troubling is there is no suggestion that, other than sending emails, anyone attempted to personally contact Ms. Millay during this interval. This is rural coastal Maine; Surry, where Ms. Millay lives, abuts Ellsworth, where the hearing was held, and she must live just a few miles away. Instead of emailing demands and orders, it would seem that someone (other than the hearing officer) could have called or visited Ms. Millay to see if she was indeed ill. Instead, the hearing officer assumed that she was misrepresenting her medical condition and ordered the hearing to proceed with only the school represented by counsel in attendance.
A hearing officer has the undoubted right to control the scheduling of an IDEA hearing. At the same time, the First Circuit has characterized the hearing as a "due process hearing." Rose v. Yeaw, 214 F.3d 206, 209 n.1 (1st Cir. 2000). It is a statutory right with constitutional implications. Under the IDEA, the parties are accorded "the right to present evidence and to confront, cross-examine, and compel the attendance of witnesses; the right to be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities; the right to a written, or at the option of the parents, electronic verbatim record of such hearing; and the right to a written or, at the option of the parents, electronic findings of fact and decisions." Id. (citing 20 U.S.C. § 1415(h)). The IDEA was enacted "to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of free appropriate public education by such agencies." Id. at 209 (citing 20 U.S.C. § 1415(a)). In light of the significant rights at stake, even though the DOE, Surry, and their witnesses would have been significantly inconvenienced and even though the hearing officer continued the hearing for a couple of days, a sensible solution should have involved determining whether Ms. Millay was in fact as ill as she claimed, and if she was not, imposing a carefully devised sanction.
The history of this case confirms that Ms. Millay's pro se status complicates and occasionally frustrates the proceedings, and communication has been less than ideal. Typically, a hearing officer could promptly establish whether an attorney or represented party seeking a continuance was truly ill, and, in representing her child, Ms. Millay must be held to the same standards as an attorney. At the same time, the right to a FAPE rests not with the pro se parent, but with the child, and in sanctioning the parent, the presiding officer should strive not to penalize the student. The sanction here turned out to be extreme. As Ms. Millay was pro se, her illness and absence had the effect of making the interests of one side of the controversy wholly unrepresented during Surry's entire case-in-chief.
In the circumstances of this case, where the dispute between Surry and YRM has extended over many years, has involved multiple hearings, appeals, and court decisions, has proven intractable, and occasionally even bitter, for the hearing officer to hold three days of due process hearings with only one side present, knowing that Ms. Millay claimed that a serious illness prevented her attendance, borders on an abuse of discretion and runs counter to fundamental concepts of due process.

Enhanced by Zemanta

Procedural Safeguards The series - Part XI

Gavel & StrykerImage by KeithBurtis via FlickrThis is the eleventh installment in a multi-part series on procedural safeguards under the federal special education law, the Individuals With Disabilities Education Act. I work a lot in this area, so it is near and dear to my heart. Despite the importance of procedural safeguards. however, many issues in this area are misunderstood. I hope that all of the different types of special education stakeholders who read this blog find the information in this series helpful. Be sure to tell me what you think about the series.

Due Process Hearings

A due process hearing resembles a court trial. Increasingly, parties are represented by lawyers. Opening statements are made. Testimony is provided by parents, teachers, related service providers, administrators, and many others- often by expert witnesses. Although the formal rules of evidence are generally not applied, exhibits, or documentary evidence, are offered and admitted. The tone is increasingly adversarial. Either closing arguments are made or written briefs are submitted. Hearing officer decisions are generally lengthy and legalistic in tone. The decision of the hearing officer may be appealed to one or more courts.

Parents and local education agencies may file a due process complaint for any matter related to the identification, evaluation, educational placement or the provision of a free and appropriate public education to a child with a disability. IDEA §§ 615(f);615(b)(6).

IDEA imposes a two-year statute of limitations on due process complaints. Unless state law imposes a contrary limitations period, a party must request a due process hearing within two years of the date that the party knew or reasonably should have known about the alleged action that forms the basis of the complaint. § 615 (f)(3)(C). The statute of limitations recognizes two exceptions – cases in which the parent was prevented from requesting the hearing due either to specific misrepresentations by the LEA that it had resolved the problem or to the LEA’s withholding of information that the IDEA requires it to provide. § 615 (f)(3)(D). OSEP has clarified that a state may adopt a statute of limitations either shorter or longer than two years by statute or regulation, but not by common law, subject to the notification provisions of IDEA. 71 Fed. Register No. 156 at pages 46696-97 (August 14, 2006). It is the province of the hearing officer to determine whether a specific complaint has been filed within the statute of limitations and whether an amended complaint relates to a previous complaint. 71 Fed. Register No. 156 at pages 46698 (August 14, 2006).

In addition to the requirement that a hearing officer not have a personal or professional interest that would conflict with objectivity, three more qualifications for due process hearing officers were added in 2004. The following new qualities are required in a hearing officer: 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. § 615 (f)(3)(A)(ii)-(iv). The changes in the qualifications for hearing officers are significant. The fact that the Congress amended this section signals at least some concern about hearing officers. SEA personnel who train and select hearing officers need to be mindful of these changes to the law. Those who train hearing officers should be people with experience in conducting due process hearings and in writing decisions thereafter. New hearing officers should be able to cite prior experience concerning these qualifications. OSEP has noted that pursuant to its general supervisory responsibility, each SEA must ensure that its hearing officers are sufficiently trained to meet the new qualifications established by IDEA. 71 Fed. Register No. 156 at page 46705 (August 14, 2006).

IDEA provides that the party requesting the due process hearing “…shall not be allowed to raise issues at the due process hearing that were not raised in the (due process hearing) notice…,” unless the other party agrees. § 615 (f)(3)(B). see, 34 CFR §300.511(d); 71 Fed. Register No. 156 at pages 46705 -06 (August 14, 2006). However, note that IDEA § 615 (o) provides that nothing in § 615 “… shall be construed to preclude a parent from filing a separate due process complaint on an issue separate from a due process complaint already filed.”

OSEP noted that states have considerable latitude in developing procedural rules for due process hearings and that determinations upon procedural matters not specifically addressed by IDEA are within the sound discretion of the hearing officer so long as the parties’ right to a timely hearing is not denied. 71 Fed. Register No. 156 at page 46704 (August 14, 2006). Other items left to the discretion of the hearing officer include the following: decisions concerning appropriate expert witness testimony. 71 Fed. Register No. 156 at page 46691 (August 14, 2006); ruling upon compliance with timelines and the statute of limitations. 71 Fed. Register No. 156 at page 46705 (August 14, 2006); determining when dismissals are appropriate. 71 Fed. Register No. 156 at page 46699 (August 14, 2006); whether the non-complaining party may raise other issues at the hearing that were not raised in the due process complaint. 71 Fed. Register No. 156 at page 46706 (August 14, 2006); the meaning of the word “misrepresentation” for purposes of the exception to the statute of limitations for filing a due process complaint. 71 Fed. Register No. 156 at page 46706 (August 14, 2006); and providing proper latitude for pro se parties. 71 Fed. Register No. 156 at page 46699 (August 14, 2006).

Concerning the five business day rule for disclosure of evidence prior to a due process hearing, OSEP commented that nothing prevents parties from agreeing to a shorter period of time. 71 Fed. Register No. 156 at page 46706 (August 14, 2006).

As to the location and time of due process hearings, OSEP resisted the suggestion that they be conducted in a “mutually convenient” time and place, fearing that the large number of participants to a hearing would necessitate long delays if mutually convenient times and locations were required. The regulations retain the requirement that hearings be conducted at a time and place that is reasonably convenient to the parents and student. 34 CFR § 300.515(d); 71 Fed. Register No. 156 at page 46707 (August 14, 2006).

Representation by Non-Attorneys in Due Process Hearings

Changes to the federal IDEA regulations effective on December 31, 2008 made an important change to the policy interpretation by OSEP regarding the representation of parties (primarily parents) by non-lawyers in due process hearings. Prior to the change, it had been the long-standing interpretation of OSEP that a non-lawyer could represent parents at a due process hearing in much the same way that a lawyer could represent a party. After certain lower courts declared such a practice to be a violation of “unauthorized practice” statutes, OSEP changed 34 C.F.R. Section 300.512 (a)(1) to specify that whether a party has the right to be represented by a non-lawyer at a due process hearing shall be determined by state law.

Some commenters, including this author, asked OSEP to clarify whether it was sufficient for a state by rule or regulation to specify that parties could be represented by non-lawyers or whether the ability of a lay advocate to represent parents is instead controlled by state law regarding the unauthorized practice of law. OSEP’s “response” was as follows:

Discussion: Whether an SEA may have a State regulation or procedural rule permitting non-attorney advocates to represent parties at due process hearings or whether that issue is controlled by State attorney practice laws is determined by State law. If State law is silent on the question of whether non-attorney advocates can represent parties in due process hearings, there is no prohibition under the Act or its implementing regulations on nonattorney advocates assuming a representational role in due process hearings. 73 Fed Register No. 231 at page 73018 (12/1/2008)

Here is the OSEP Topic Brief on Due Process Hearings:

 Here is the OSEP Questions and Answers On Procedural Safeguards and Due Process Procedures For Parents and Children With Disabilities:

Enhanced by Zemanta

Curse the Canadian Internet Pharmacy

Boycott of foreign clothesImage via Wikipedia
OK.  I hate the Canadian Internet Pharmacy!

Not like the South Park general anti-Canadian sentiment.  Rather I have a situation where my entire address book has once again been hacked.  Everybody there got sleazy E.D. medication solicitations from this internet pharmacy in Canada.  I'm sorry for the trouble; the email was not from me.  Still I apologize to all who received this garbage. I'm sorry.

The Internet Pharmacy of Canada has got me seriously ticked off.  They have to be stopped.  A polite society cannot tolerate such nonsense.  At first, I thought maybe an old fashioned pitchforks and torches town meeting was called for.  Another thought involved a not so polite invitation for them to take their talents to South Beach.  

But upon further review, the decision on the field was reversed.  Instead the only way they are going to learn to leave my address book alone is a boycott. These repulsive hacks must learn that you cannot profit from hacking my address book and peddling their products to the stakeholders who love special education law.  Buy nothing from the Canadian internet pharmacy!  Viva Le Boycott!

What do you think?  Who is with me?
Enhanced by Zemanta

Procedural Safeguards The Series - Part X

Dispute Resolution building at UNM.Image via Wikipedia
This is the tenth installment in a multi-part series on procedural safeguards under the federal special education law, the Individuals With Disabilities Education Act. I work a lot in this area, so it is near and dear to my heart. Despite the importance of procedural safeguards. however, many issues in this area are misunderstood. I hope that all of the different types of special education stakeholders who read this blog find the information in this series helpful. Be sure to tell me what you think about the series.

Resolution Session Meetings

A mandatory resolution session was added to the special education dispute resolution process in 2004. IDEA § 615 (f)(1)(B). Within 15 days of receipt of a due process hearing complaint from a parent, the school district must convene a meeting with the parents, a representative of the LEA with “decision making authority,” and relevant member(s) of the IEP team who have “specific knowledge of the facts identified in the complaint.” The purpose of the resolution session is to permit the parents to discuss their complaint and the underlying facts and to provide the LEA the opportunity to resolve the complaint. The LEA may not bring their lawyer unless the parent has a lawyer. The parties may avoid the resolution session only by waiving the meeting in writing or by participating in mediation. § 615(f)(1)(B)(i). If the LEA has not resolved the complaint to the satisfaction of the parents within 30 days after receipt of the complaint, the hearing may occur and “all applicable timelines for a due process hearing” shall commence. § 615(f)(1)(B)(ii). If the resolution session results in a written settlement agreement, the agreement is legally binding and enforceable in court, except that if either party suffers from “buyer’s remorse,” they may void the agreement within three business days after it is executed. § 615(f)(1)(B)(iii) and (iv).

Attorneys who represent parents are barred from seeking attorney’s fees and costs if they decide to participate in the resolution session. § 615 (i)(3)(D)(ii)and(iii).

Unless one of the exceptions apply, the 45 day deadline for the hearing officer decision begins after the resolution period ends. 34 C.F.R. §300.510(b)(2).

Unlike the mediation provisions of the Act, which contain a specific guarantee of confidentiality for any discussions during a mediation session, §615 (e)(2)(G), there is no confidentiality protection for discussions that take place during a resolution session. OSEP specifically rejected the request of several commenters on the proposed 2006 federal regulations to clarify whether discussions at resolution meetings are confidential because the Act is silent regarding confidentiality. 71 Fed. Register No. 156 at page 46704 (8/14/06). OSEP went on to say that although the parties could negotiate a confidentiality agreement as a part of their written resolution agreement, a state could not require the parties to a resolution meeting to keep the discussions confidential. 71 Fed. Register No. 156 at page 46704 (8/14/06)(emphasis not in original).

The federal regulations provide that where a parent does not participate in the resolution meeting, the timelines for both the resolution process and the hearing will be delayed. 34 C.F.R. § 300.510(b)(3). To avoid the potential perpetual stay-put problem caused by the proposed regulations, the final federal regulations added a provision that if the LEA is unable to obtain the participation of the parent after reasonable efforts (which now must be documented in the same manner as IEP Team meeting participation), the LEA may, at the conclusion of the 30 day period, request that the hearing officer dismiss the due process complaint. 34 C.F.R. § 300.510(b)(4).

34 C.F.R. § 300.510(b)(5), that provides that where an LEA fails to schedule the resolution meeting within fifteen days, or the LEA delays the due process hearing by scheduling the resolution session at times or places that are inconvenient for the parent, or the LEA otherwise fails to participate in good faith in the resolution process, the parent may seek the intervention of the hearing officer to begin the due process hearing. 71 Fed. Register No. 156 at page 46702 (8/14/06). Although OSEP stated that it believes that such occurrences would be very rare, it agreed with commenters that parents should be able to request that the hearing officer begin the hearing process timelines in such cases. 71 Fed. Register No. 156 at page 46702 (8/14/06).

Although the resolution meeting includes “relevant” members of the IEP Team, it is clear that the resolution meting is not an IEP Team meeting. The purpose of the resolution meeting is for parents to discuss their complaint and the underlying facts and for the LEA to have an opportunity to resolve the dispute. § 615(f)(1)(B)(i)(IV); 71 Fed. Register No. 156 at page 46701 (8/14/06). In response to a commenter who questioned whether a resolution meeting agreement supersedes decisions made by the IEP Team, OSEP stated that nothing in the Act or regulations requires an IEP Team to reconvene following a resolution agreement that includes IEP-related matters. 71 Fed. Register No. 156 at page 46703 (8/14/06).

The purpose underlying the resolution meeting is described in a portion of the conference committee report that discusses the resolution session states that these changes address “unscrupulous lawyers and an overly complex system” that has “led to an abundance of costly and unnecessary lawsuits.” The conference report goes on to explain that the resolution sessions are needed because “...(t)oo often, schools are unaware of parental complaints and concerns until an official complaint is filed and the legal process is already underway.” H.R. 1350 Conference Report, (November 17, 2004).

Here is an analysis by CADRE of Resolution Meetings- State Supports and Practices.

Here is a 2006 presentation by me concerning the resolution session at a CADRE National Conference.

Enhanced by Zemanta