You Be the Judge Part I - The "Answer"

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OK we have had many excellent emails and comments regarding you be the judge.  Frankly, I am convinced that the readers of this blog belong on the federal judiciary more than the current occupants of that bench.  We might be better served.

Concerning the answer given by the court, remember first of all that special education law is closer to metaphysics than it is to contract law.  Right answers are not to be found.  Ambiguity rules the day. 

The facts from this hypo were from the case of Thompson R2-J Sch Dist v. Luke P by Jeff & Julie P  540 F.3d 1143 (Tenth Cir. 8/29/2008).  There the court ruled that so long as the student made academic progress at school, the school district was not responsible for the student generalizing his skills to other environments under the Rowley FAPE standard.  

Here is the entire opinion.

So what do you think of the court opinion?  What do you think of the series you be the judge?

 We value your feedback.

Related articles

• You Be The Judge - Part I (specialeducationlawblog.blogspot.com)
• Big Changes to §504: Do They Affect Special Education - Part IV (specialeducationlawblog.blogspot.com)
• History of FAPE (brighthub.com)
• Free and Appropriate Education? (leftbrainrightbrain.co.uk)

Lead Poisoning & Special Ed - Revisited

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I recently ran a post about the outrageously high level of lead poisoning in the children in the Detroit public school system. I'm still alarmed. How are we pumping these kids so full of lead.

A couple of astute readers brought up the connection that lead poisoning is at least one cause of autism or autism symptoms in young children. The connection with special education law becomes somewhat clearer.

Here , for example, is a study published in 2005 that further develops the link between lead poisoning and autism. The results are frightening.

Anybody interested in waging a campaign to detoxify our kids? This is apparently a very serious issue. What are the levels of lead poisoning in the children in your community? Do you know?

I also wonder if the poverty issue is separate from or a part of this issue. Do poor kids eat and breathe more lead?

This is 2010. Can't we find a way to keep lead away from our kids? What are your thoughts?

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Is Special Ed Too Litigious or Not Litigious Enough?

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The number of due process hearings in special ed disputes has increased nationwide over the last two decades. This link is to a pennlive.com article discussing the topic. The article quotes Professor Perry Zirkel for some of the reasons for the increase, including the recognition of autism and ADHD as disabilities for purposes of eligibility.

I have great respect for Professor Zirkel and I generally agree with him. One area where we differ, though is whether the special ed hearing system is overlegalized, as he contends. I contend that in the ten busiest jurisdictions, the system probably is overlegalized. In other places, especially in rural or isolated areas of the country, however, I think that the system is underlegalized. I am active in ACRES, the rural special education organization, and many of their members agree with me on this point. There are many places where parents, and sometimes even school districts, cannot find a lawyer familiar with special ed law. As the article above suggests, the income of the parents may be the best indicator of whether they can assert their rights under the procedural safeguards.

I don't think that increasing the number of due process hearings is a goal, but if the problem is that there are parts of the country where legal representation is unavailable, that is not healthy. Similarly, if there are people not assessing procedural safeguards because they are not wealthy, maybe we should design a new and different system.

What has been your experience? What do you think?

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California Court Rules that Private Insurer Must Pay for Autism Therapy

A Los Angeles trial court has issued a preliminary ruling that private insurance companies must pay for applied behavioral analysis treatments for children with autism. The Court found that a memo by a state agency permitting denials of coverage for such treatments was an in valid form of regulation that conflicts with a state law requiring insurers to cover mental and emotional health problems equally to physical problems. Here is the news article from the L. A. Times.

It should be noted that this is just a preliminary ruling. As long time readers of this blog know, legal disputes are never over until they're over. (I couldn't resist quoting Yogi Berra with the World Series on the horizon. Next year it will be the Cubs; do you know how many years I have been saying that?) The case has not yet been decided. There is much more yet to come.

If the preliminary ruling stands however, this could be an important decision. It

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also may impact special education law. Many parents have attempted to have their school systems provide or reimburse for ABA treatments. These have sometimes been successful, but often get stuck in the methodology category. Since the Rowley decision, courts have held that methodology choices are the province of professional educators. Where a district program denied FAPE, however, some hearing officers and courts have ordered ABA programs. If insurance companies must pay for ABA treatments or programs, (and as I said above, we are a long way from that being "the law.") there may be fewer attempts to look to school districts to pay for such services.

What do you think about this?

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Cure for Autism?

I was listening to the radio while driving through Washington, DC today. One of the stations was having a series of listener support drives. One speaker was named Gary Null. He was offering a number of items as premiums in exchange for pledges from listeners. If it was not public radio, it sure sounded like it.

He talked a lot about immune system boosters and free radicals. One of the listener premiums available to listeners who pledged a contribution was a Berry/Fruit concoction that was supposedly good for one's immune system. He also referred to the staff of the FDA as "skunks", and argued that the FDA was under the control of the pharmaceutical industry. He urged listeners to vote against all congressional incumbents.

But what caught my attention was his remarks concerning autism. He claimed to have a protocol that he could recommend that would cure autism. He gave some examples of kids he has worked with who now have no symptoms associated with autism related disorders.

The connection with our topic here is a bit thin, I'll admit it. But there are a lot of decisions in special education cases in the last few years concerning methodology, especially in cases involving autism. Even though the law is pretty clear that school districts can upursue various methodologies so long as they provide FAPE to the student. So most of these cases don't go very far, but I'm thinking that if this Mr. Null claims to have a cure, we will likely see a bunch of cases involving his system.

What do you think? Is there a cure for autism? If so, will or should that affect the legal obligations of school districts? I predict some arguments on these points.

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