Live From Eugene - It's Thursday Morning

The CADRE Symposium is now underway. The sessions are amazing. More on this in subsequent posts.

Also Eugene now has everybody who is anybody in dispute resolution in special ed. I am deeply honored that I have been asked to do two presentations. The. first one went well yesterday.

PS; this post was done on my phone! I love technology, sometimes.
Sent from my BlackBerry wireless device from U.S. Cellular

Is FAPE Under § 504 FAPE Lite?

An attempt at a discrimination graphic.Image via Wikipedia
Regular readers will remember a previous post in which I referred to special education and FAPE under § 504 as the redheaded stepchild of IDEA.  This, of course, lead to subsequent apologies to both stepchildren and redheads...

But I digress.  Most special education stakeholders tend to think of the right to FAPE under §504 as providing less protection than the right to FAPE under IDEA.  Once again, we use the same term or acronym in multiple ways. Some even accuse lawyers of intentionally employing this practice for purposes of job security.  I believe, however, that the reason is less sinister.  We're too lazy to make a new word or acronym when we have a similar one already.  The confusion and head-shaking is merely an unintended consequence.

In most cases § 504 does provide less protection that IDEA.  § 504 is a non-discrimination statute.  The federal regulations under that statute require that educational services for disabled children meet their needs as well as the needs of non-disabled children are met.34 C.F.R. §104.33.

This brings me to an argument made by Professor Mark Weber, my friend and a great friend of this blog.  Mark is one of the big idea guys in special education.  He wrote last year in an article published in the Texas Journal of Civil Liberties and Civil Rights, (Vol. 16, No. 1  Fall 2010) p.  1 - 28, that for poorer and lower achieving schools, the IDEA standard of FAPE is higher.  For the more wealthy, suburban school districts where children without disabilities do very well, perhaps the § 504 FAPE comparative standard requires even more than IDEA FAPE.

This is an intriguing argument.  It makes sense as an academic application of the legal principles.  As I have discussed with Mark, however, it is a tough argument from a public policy standpoint.  Can it really be argued, especially given the current economic climate, that rich kids with disabilities are entitled to more than their poorer counterparts?  I cannot imagine a court ever saying that out loud.  

What do you think of this argument? Is the FAPE standard under § 504 variable?

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Getting Psyched About the CADRE Symposium

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I am getting very excited about the CADRE Symposium coming next week in Eugene Oregon. If you will be nearby, please find me and say hello.

CADRE is the organization that provides technical assistance to states and others concerning dispute resolution in special education.  It is run by some great people and their conferences are without equal.There is a permanent link to the very useful CADRE website on the lefthand side of this blog.  Here is another link to their website.  I encourage you to go there often.

At the conference, I expect to have some good talks with a number of old friends as well as making a bunch of new ones.  It is a great place to learn about mediation, complaint investigation, IEP facilitation and due process hearings. Their focus is upon encouraging the resolution of disputes further downstream before they become major litigation-type headaches, but they provide great information on all options. The speakers, which includes me,  yes Eugene is on the "tour,"  are top notch.  the networking opportunities are excellent.  And as I have implied, all of the usual suspects will be there.

Next week on the blog, in honor of the CADRE Symposium, we will begin a new series on procedural safeguards under IDEA.  This will, of course, include information on dispute resolution as well as the other safeguards provided by the special education laws.  So stay tuned.
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Tool For Part C New Regulations

Toddler at Lamayuru monastery, LadakhImage by Suchana Seth via Flickr
For those of you who are concerned with infants and toddlers with disabilities, the new finally arrived Part C regulations are of interest. In a previous post, we provided links to the new regs themselves.

Our friends at the Council for Exceptional Children have developed a side-by-side chart that show the differences between the 2011 regs and the old regs.  If you were used to the old regs, this chart is a very helpful tool.  Here is a link to the chart:

From my perspective, one of the most interesting changes is the addition of a regulation allowing the hearing officer to grant an extension of the 30 day timeline upon the request of a party.  The comments to the regulations imply that extensions should only be granted in extraordinary circumstances, but this makes sense to me.

Let me know if you find this tool useful.
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Index to Special Education 101 Series

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A reader suggested that I provide an index of the series of posts on special education law 101.I agree that this is an excellent idea.Clicking on the name of a particular post in the series will bring you to the actual post.

Here goes (all posts were in calendar year 2011):

Part XIII  August  26th   Legal Representation      (Note This Post is mislabeled as Part XII)

Part XIV   September 9th  Expenses/ Attorney Fees  (Note This Post is mislabeled as Part XII)

Part XV    September 15th   Burden of Persuasion     (Note This Post is mislabeled as Part XII)
                                                                             (So what?  So I had four Part XII's!)

We hope that you enjoyed the series! 

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US DOE Proposes Changes to Regs - Seeks Comments

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The United States Department of Education has proposed two changes to the IDEA regulations.  The full text in the Federal Register is here.

The changes are to 34 C.F.R. §300.154(d) which governs the use of public insurance or benefits (including Medicaid) to pay for related services, etc.  The first change increases the amount of information that must be given to parents before making a decision to consent to the use of such benefits, including their rights under FERPA and IDEA privacy provisions.  The second change allows the school district to substitute written notice for the obtaining of consent.

The first change should give parents more information.  The second change could save a lot of money for school districts.  OSEP had previously advised school districts that they had to obtain consent each time they accessed the parent's benefits.  The documentation involved in this process can be expensive.

If you feel strongly about either change to the regulations, OSEP wants to hear from you and you should be heard.  Here is the information from the Federal Register concerning how to comment:

DATES: We must receive your comments on or before December 12, 2011. ADDRESSES: Submit your comments through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery. We will not accept comments by fax or by e-mail. Please submit your comments only one time, in order to ensure that we do not receive duplicate copies. In addition, please include the Docket ID at the top of your comments. Federal eRulemaking Portal: Go to to submit your comments electronically. Information on using, including instructions for accessing agency documents, submitting comments, and viewing the docket is available on the site under ``How To Use This Site.'' Postal Mail, Commercial Delivery, or Hand Delivery. If you mail or deliver your comments about these proposed regulations, address them to Jennifer Sheehy, U.S. Department of Education, 400 Maryland Avenue, SW., room 5103, Potomac Center Plaza, Washington, DC 20202- 2600.
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Special Education Law 101 - Part XVII Hearing Issues

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This is another in the last in a  series of posts comprising an introduction to special education law.  This series is meant to be an introduction for newbies and a refresher course for more experienced readers. 

Today's post concerns some additional unusual procedural issues in due process hearings:
   Resolution Session
IDEA provides provides that where a parent requests a due process hearing, the school district must convene a resolution session within 15 days of receipt.  The school district may not bring their lawyer unless the parent does so.  An agreement resulting from a resolution session is legally binding and enforceable in court, but either party may void such an agreement within 3 business days. The federal regulations provide that if a parent does not participate in the resolution session the district may request that the HO dismiss the complaint.
IDEA, § 615 (f)(1)(B); 34 C.F.R. § 300.510.

                                 4.        Evidence
IDEA, § 615(h)(2); 34 C.F.R. § 300.512(a)(2

                                 5.         Representation
IDEA, § 615(h)(1); 34 C.F.R. § 300.512(a)(1).

6.        Other procedures
IDEA, § 615(h)(3); 34 C.F.R. §       300.512(a)(4)&(5) and 300.512(c)(1)-(3).

B.       45 day Rule/ Deadline for Decision
The hearing officer’s decision is due within 45 days after the conclusion of the 30 day resolution period, subject to various possible adjustments and extensions if granted by the hearing officer.
34 C.F.R. § 300.511(e) and (f).
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