Owner: Special Education Law Blog URL:http://specialeducationlawblog.blogspot.com/ Join Date: Wed, 22 Aug 2007 21:46:54 -0500 Rating:0 Site Description: A fresh look at special education law. Jim Gerl is a frequent speaker on special ed law topics. He has presented at many national and regional conferences, given interviews in various publications and he has consulted with a number of state education agen Site statistics:Click here
Beware the Resolution Session- Part I 2007-08-21 13:31:00 A brand new mandatory resolution session is added to the due process hearing process by IDEA’04. Section 615 (f)(1)(B). Within 15 days of receipt of a parent request for a due process hearing, the LEA 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 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. Section 615(f)(1)(B)(ii). ). If the parent/student’s lawyer does attend the resolution meeting, he will not be awarded attorney’s fees for his attendance if the parent is the prevailing party. Section 615(i)(3)(D)(iii). 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 ap Read more:Beware
, Resolution
Thanks Utah! 2007-08-21 13:20:00 I recently had the pleasure of getting to spend a chunk of time in beautiful Ogden and Salt Lake City, Utah. I presented at the annual Utah Special Education Law Institute, and I conducted a training for hearing officers, mediators and facilitators for the state Office of Education. I also did some work on a pending due process in Utah in which I am serving as the hearing officer. I want to thank the folks from the USOE who took such good care of me. The conference was very high quality and enjoyable. The training went well. Thanks
to all.By the way, the bloggers choice award voting is going very well. Last time I checked, this blog was No. 10 for best educational blog and No. 11 for best business blog. Please give us your vote today by registering at http://www.bloggerschoiceawards.com/ and then following up their email with your vote.
The "M" word Resurfaces 2007-08-13 15:43:00 IDEA’04 imposes a new requirement that the special education and related services and supplementary aids and services to be provided to the child under an IEP must be based on “peer-reviewed research to the extent practicable.” Section 614 (d)(1)(A)(i)(IV). This change raises a number of questions and potential problems. The new phrase is not defined anywhere in the law. The phrase “peer-reviewed research” may have one meaning in academic communities, but lawyers will argue over what it means in the context of special education. In its analysis of comments to the new federal regulations, OSEP declined to define the phrase “peer-reviewed research.” 71 Fed. Reg. No. 156, at page 46664 (8/14/06). The phrase “to the extent practicable” is an odd choice for statutory language; it is rare for the Congress to impose a requirement, but qualify the requirement with what may be a built in excuse for noncompliance. OSEP also declined to define the phrase “to the ext
Bullying- New Hot Button Issue 2007-07-24 21:52:00 Bullying is the hottest of hot button issues in special education law.Generally the claim of the parent is that the student cannot receive the benefit of his IEP if he is being bullied. Bullying is a growing problem that is starting in earlier grades and lasting longer. (San Diego Tribune, 7/9/07). Courts and hearing officers are beginning to hold that disability-based harassment may result in a denial of FAPE. In Shore Regional High Sch Bd. of Educ v. P.S. 41 IDELR 234, 381 F.3d 194, (3d Cir. 8/30/04), the Third Circuit held that the school district’s failure to stop bullying may constitute a denial of FAPE. Bullies constantly called the student names, threw rocks and hit him with a padlock. Despite repeated complaints, the bullying continued and the student eventually attempted suicide. See also, Preschooler II v. Clark County Sch Bd of Trustees 47 IDELR 151, 479 F.3d 1175 (9th Cir. 3/21/7); Stringer v. St. James R-1 Sch. Dist. 45 IDELR 179, 466 F.3d 799 (8th Cir. 5/3/6); Scru
We've Won a Blog of the Day Award! 2007-07-18 09:54:00 We are pleased to announce that we have won a Blog of the Day Award
for July 15, 2007. We understand that it was a Serendipity Sunday Award. We are now proudly displaying the Blog of the Day brag badge. Thanks for the award. Here is the Blog of the Day link http://blogofthedayawards.blogspot.com/Please remember that we are still in the running for best education blog and best business blog for the blogger's choice awards. We are getting votes for these awards. If you'd like to vote, you need to register at this site http://www.bloggerschoiceawards.com/Thanks for your support. Also remember that you can vote on the new poll feature on the bottom left portion of this blog. Lotsa voting going on.
NEW Internet Poll: Is the due process system fair? 2007-07-17 14:41:00 We now have the capability to add an occasional poll to this blog.The first poll is about the state due process systems. Do you think that the hearing system is fair? Please register your opinion on the poll found near the bottom left-hand side of this blog.We are not pretending that this is a "scientific poll," but we suspect that the results will be interested. Let us know how you like this new feature. Read more:Internet
JoLeta Reynolds Award 2007-07-13 11:44:00 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 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!A couple years ago, LRP, the company that publishes special ed decisions, started the JoLeta Reynolds award. If you know somebody who works for state, federal or local education agencies who has had an awesome impact upon the lives of children with disabilities, consider nominating them for the award. Here is a link: http://www.lrpinstitute.com/joleta.htmlBeing nominated for this prestigious award is a great Read more:Award
We're Nominated for Blog Awards 2007-07-07 12:16:00 I am honored to report that this blog has been nominated for a blogger's choice award in the categories of best education blog and best business blog. If you want to cast us a vote, or if you like lotsa blogs, look at this website:http://www.bloggerschoiceawards.com/Thanks and keep on bloggin'. Read more:Awards
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Interviews 2007-06-30 14:48:00 I enjoy being interviewed on special education law topics. Some of my friends have asked for links to a few of these interviews.The following relate to the Winkleman decision by the Supreme Court:http://www.edweek.org/ew/articles/2007/06/06/39scotus.h26.html?tmp=1732161608http://www.specialedconnection.com/LrpSecStoryTool/index2.jsp?contentId=3771762&query=(({GERL}))&chunknum=1&topic=Main&listnum=0&offset=6Supreme Court watchers will be watching the direction that the Roberts Court will take in special education cases. They are definitely interested in the topic. Read more:Interviews
Are State Complaints Authorized by IDEA 2007-06-21 10:08:00 I've been researching state complaint procedures. I was surprised to learn that the Individuals With Disabilities Act does not create state complaints. They are apparently a creature of the federal regulations.I'm amazed that somebody hasn't challenged the state complaint system. Special Education, unlike most other areas of law, offers the parties multiple dispute resolution mechanisms for the same dispute. For example a parent could file a state complaint. If unsatisfied with the result, the parent could request mediation. If still unsatisfied the parent could file a due process complaint, which now includes the resolution meeting procedure. This is before any appeal.Given the fact that the statute has been reauthorized and amended in the 20 some years since the state complaint system has been around, yet it still doesn't officially sanction the state complaint procedures, I'm surprised that some disgruntled party has not taken on the very existence of the complaint syste Read more:State
A Blog, by Any Other Name, Is Not as Sweet 2007-06-04 11:13:00 In telling some of my friends about this blog, I've had a realization. The use of blogs is age sensitive. Most people my age are uncomfortable with blogs. Many have never read a blog at all. Some do not know what a blog is. Some of my younger friends, on the other hand, are addicted bloggers. A few discovered this blog on their own. All of them are comfortable with the idea of blogging. A number have blogs of their own.So bear in mind that I'm being very brave in this blogging effort, and keep in touch. Read more:Sweet
Good Interview 2007-05-31 15:27:00 I was interviewed by Education Week yesterday concerning the Winkleman decision. Apparently the word is out that I like to talk about this stuff! It was a good interview. I was reminded of how much I enjoyed watching the oral arguments at the Supreme Court in Winkleman. Truly, democracy in action.The writer asked one question that surprised me. He thought that because I do a lot of work for state departments of education, my orientation would be pro district. I told him that as a long time hearing officer and mediator, I view myself as impartial. (By the way, I hate the word "neutral." It has the same connotations as neutron, or worse, neutered. Many of my mediator friends never call themselves "neutral" because they find the people have a bad reaction.) I find that the state ed departments, at least those I work with, really try to be fair to parents as well as school districts. I wonder if others share this perception?
Will Winkleman bring more IDEA lawsuits? 2007-05-30 09:34:00 Since the Supreme Court decision in Winkleman, many have predicted a big increase in special ed lawsuits. The holding of Winkleman was that parents may appear in federal court to represent their children and themselves without a lawyer. I'm not sure that this ruling will be a catalyst for a large upswing in new filings. Parents already had the right to bring the administrative, or "due process," hearing without a lawyer. The Supreme Court decision applies only to appeals in federal court. Also, it is difficult enough to navigate the federal court procedures for lawyers. I don't think that many unrepresented parents will be able to be successful. On the other hand, many parent advocates seem to be psyched up by a "win" in the Supreme Court. The last two decisions by the Supremes were largely seen as anti-parent by these groups.
This is my new blog, welcome.
In this space, we w... 2007-05-09 21:11:00 This is my new blog, welcome.In this space, we will be discussing special education law topics.To break the ice, let's discuss the viability of the Rowley decision in the NCLB IDEA'04 era. Most lawyers I've talked to think that the Rowley standard is the closest thing to hornbook law that we have in special education. Rowley basically establishes the standard for the free and appropriate education required by the IDEA. An IEP must have been developed with appropriate opportunity for participation by the parents and the IEP must be reasonably calculated to provide educational opportunity for the child with a disability.One federal court in Washington state has rejected the Rowley standard. The Court held that Rowley was decided under the former EHA, the predecessor of the IDEA, and that the new standard should look to provide equal opportunity for kids with disabilities. The Court ruled that Rowley set the bar too low.What are your thoughts?
House Leaders Draft Proposed Changes for Reauthoritization of No Child Left Behind 2007-08-29 11:37:00 The leadership of the House
of Representatives has issued a memorandum outlining changes to be incorporated in the No Child Left Behind tentatively agreed to by the leaders of both parties. Please note that his document is only a draft. You can review the memorandum at http://edlabor.house.gov/bills/MillerMcKeonNCLBDiscussionDraft
Summary.pdfAmong the many highlights are the following: permitting states to use growth models in calculating Adequate Yearly Progress; adoption of a maximum "n" size; funding to develop alternate assessments; permitting special education students who exit to continue to be counted in that subgroup for up to three years; maintaining the one percent cap (students with the most severe cognitive disabilities taking the alternate assessment) and two percent cap (students with disabilities taking modified assessments based on modified standards), but allowing certain districts with a high number of students with disabilities to obtain a wavier permitting up to a Read more:Leaders
Ontario Canada: Comparative Special Education Law 2007-08-27 10:03:00 I have a couple of friends who work for the Ontario
Ministry of Education
. Canada
has no national special education law; each province may adopt their own regulations.Because of my background, I was most interested in dispute resolution mechanisms. In Ontario there is a special education Appeals Board, but school districts are not obliged to implement their decisions. Instead, most special education disputes are contested in the Ontario Human Rights Commission. A denial of FAPE essentially constitutes unlawful discrimination on the basis of handicap under the law there. There is also a major lawsuit pending involving preschool children with autism alleging handicap and age discrimination as well as violations of the Charter of Rights and Freedoms. For more information, see www.edu.gov.on.ca and www.ohrc.caThis system is very different than our due process hearing (with embedded resolution session) system that we have adopted in the United States. I think that it is beneficial to Read more:Special
New Stuff 2007-08-27 09:54:00 I admit that I am new to blogging and that I am only gradually becoming hi-tech. (Oddly people who still say high-tech are predominantly low-tech!) Nonetheless, I have included some new bells and whistles on the blog. Please note that on the left side, there are now a number of buttons where you can vote that you like this blog. Those buttons can also lead you to other interesting blogs. Also, you can search this blog if you want to quickly find one of the archived posts or comments. If you would like to receive our posts by email or by rss feed, you can also subscribe using the links on the bottom of the left-hand column of the blog. Maybe next we will try music and videos- the challenge will be finding music or video relating to special education law!
U. S. Supreme Court to Hear Another Special Education Case 2007-09-24 20:15:00 The U. S. SupremeCourt
will hear oral arguments in yet another special education case on opening day of the new term, October 1st- the first Monday in October. The case is BOARD OF EDUCATION OF CITY OF NEW YORK V. TOM F., Docket No. 06-637 .The issue presented is whether the parents of a child with a disability who has never received special education from a public school district may receive reimbursement for a unilateral placement of the child in a private school after denial of FAPE by the public school district. The case is an appeal from the decision of the US Circuit Court of Appeals for the Second Circuit holding that such reimbursement was an appropriate remedy, 106 LRP 48499 (2d Cir. August, 2006).The Solicitor General, acting for the Justice Department, has filed a brief on behalf of the parent/student. Numerous groups have filed amicus briefs on behalf of both parties. Among the amicus briefs for the school district were those filed by the National School Boards Association Read more:Special
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Thanks For Your Blogger's Choice Award Votes 2007-09-24 20:00:00 I thank the many of you who have voted for this blog as best education blog and best business blog for the blogger's choice awards. We are now tenth and tied for tenth in these two categories for these prestigious awards.If you'd like to vote for this blog please register at http://www.bloggerschoiceawards.com/They'll send you an email and you can then vote.While you are there, you'll also find a number of other categories full of interesting blogs. Read more:Thanks
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Beware the Resolution Session- Part II 2007-09-11 20:20:00 In a previous post, I described the new requirement of a resolution session where a parent files a due process hearing complaint and the anticipated problems in the area of the apparent lack of confidentiality. This post discusses some other odd angles of the new resolution session.Interestingly the “buyer’s remorse” provision that provides the parties with three days to void a settlement agreement that results from a resolution session has no counterpart in the section concerning mediation. A situation will likely arise in which a party who has voided, or attempted to void, a mediation agreement within three days after it is signed by calling it a “resolution session agreement.” OSEP, the Office of Special Education Programs- the part of the federal Department of Education that oversees special education, refused to enact a regulation requested by commenters that would require parents to be notified orally and in writing that either party has the right to void a resoluti Read more:Beware
, Resolution
Special Education Law 101 - Part I 2007-09-05 14:19:00 A recent comment asked what "FAPE" and "IEP" mean. This is a good question. At a recent conference a success story former special education student told the group, "You all speak in alphabet soup." It is a tough habit to break, but the criticism is valid. As a result I decided to post a series of Special
Ed Law 101 articles to give those outside the SpEd (special education) circle a better chance of understanding what we mean. Special Ed Law 101- Part IThe primary source of special education law is the federal Individuals with Disabilities Education
Act, 20 U.S.C. Section 1400, et. seq., hereafter sometimes referred to as “IDEA.” (NOTE: many people refer to the sections of the act as beginning with section 600. Thus “Section 615” would be found at 20 U.S.C. Section 1415, etc.) The regulations promulgated by the United States Department of Education to implement the IDEA are found at 34 C.F.R. Part 300. The basic requirement of the IDEA Read more:Special Education
Bullying- New Hot Button Issue 2007-09-03 14:15:00 (In response to a request, I am repeating this post which originally appeared on July 24, 2007.)Bullying is the hottest of hot button issues in special education law.Generally the claim of the parent is that the student cannot receive the benefit of his IEP if he is being bullied. Bullying is a growing problem that is starting in earlier grades and lasting longer. (San Diego Tribune, 7/9/07). Courts and hearing officers are beginning to hold that disability-based harassment may result in a denial of FAPE. In Shore Regional High Sch Bd. of Educ v. P.S. 41 IDELR 234, 381 F.3d 194, (3d Cir. 8/30/04), the Third Circuit held that the school district’s failure to stop bullying may constitute a denial of FAPE. Bullies constantly called the student names, threw rocks and hit him with a padlock. Despite repeated complaints, the bullying continued and the student eventually attempted suicide. See also, Preschooler II v. Clark County Sch Bd of Trustees 47 IDELR 151, 479 F.3d 1175 (9th Cir. 3/21
New Supreme Court Decision 2007-10-11 09:45:00 The U. S. SupremeCourt
yesterday in Board of Education of the City of New York v. Tom F. affirmed the decision on the Second Circuit Court of Appeals upholding the ruling that a parent of a student with a disability may seek reimbursement for a unilateral placement in a private school even though the student never received special education services from the public schools. The per curiam decision of the court was based upon the Court being equally divided, 4 to 4, with Justice Kennedy having recused himself. A copy of the one page decision may be found at http://www.supremecourtus.gov/opinions/07pdf/06-637.pdfPer curiam decisions are decisions issued in the name of the Court rather than under the names of specific justices. In the past, per curiams were used for non-controversial and often unanimous matters. They generally can be cited as precedent and are considered good law, but the tie prevents this decision from being precedential. NOTE: The nature of per curiam decisions may hav
Special Education Law 101- Part II 2007-10-10 11:16:00 As explained in a previous post, I have decided to post a series of Special
Ed Law 101 articles to give those outside the SpEd (special education) circle a better chance of understanding what we mean and to get more people hooked on this ever-growing field.Special Ed Law 101- Part IIThe Requirement of LRE (least restrictive environment)In addition to the requirement of FAPE, which was discussed in a previous post, the IDEA also requires that to the “…maximum extent appropriate, children with disabilities … are educated with children who are not disabled, and special classes, separate schooling or other removal of children with disabilities from the regular education environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. IDEA, Section 612(a)(5). See, 34 C.F.R. Sections 300.114 to 300.119. This is known as "LRE."The Supreme Cour Read more:Education
, Special Education
Oral Arguments at the U. S. Supreme Court 2007-10-02 10:24:00 I was able to attend the oral argument at the U. S. SupremeCourt
yesterday in the IDEA case of Board of Education of City of New York v. Tom F., Case No. 06-637. Despite my many years practicing law, I am always awestruck when I enter that Courtroom. The highest court in the land does an impressive job of creating a special atmosphere.When the oral argument began, Justice Kennedy left the Courtroom. Apparently he recused himself from the case and will not take part in the decision. The most active questioners were Justices Alito, Scalia and Chief Justice Roberts. Souter and Ginsburg asked a few questions, and Bryer, Stevens only asked about one area each. Thomas said nothing, although at one point he and Bryer had a very polite private conversation for few moments. I was more surprised by their civility than anything.The thrust of the questions from Alito, Scalia and Roberts to the school district attorney concerned what purpose could be served by reading the statute to mean t Read more:Supreme Court
Supreme Court Decides Not to Decide 2007-10-16 12:19:00 Yesterday the U. S. SupremeCourt
denied certiorari in the case of BD. OF ED., HYDE PARK V. FRANK G., ET UX., Case No. 06-580. Denying cert means that the Court has declined to review the decision of the Circuit Court of Appeals. The Second Circuit decision involved was very similar to the Tom F. case which recently resulted in an anticlimactic 4 to 4 tie. The same issue was presented: whether the parents of a child with a disability who has never received special education from a public school district may receive reimbursement for a unilateral placement of the child in a private school after denial of FAPE by the public school district.Interestingly, Justice Kennedy once again recused himself (ie, he took no part in the decision to deny cert.) I'm wondering whether he had done some legal work for the school districts involved. Maybe he has a grandchild with a disability? If anybody has another theory, please let me know. The mystery of the recusal of the swingman lives!We Read more:Supreme Court
New Supreme Court Decision 2007-10-11 09:45:00 The U. S. SupremeCourt
yesterday in Board of Education of the City of New York v. Tom F. affirmed the decision on the Second Circuit Court of Appeals upholding the ruling that a parent of a student with a disability may seek reimbursement for a unilateral placement in a private school even though the student never received special education services from the public schools. The per curiam decision of the court was based upon the Court being equally divided, 4 to 4, with Justice Kennedy having recused himself. A copy of the one page decision may be found at http://www.supremecourtus.gov/opinions/07pdf/06-637.pdfPer curiam decisions are decisions issued in the name of the Court rather than under the names of specific justices. In the past, per curiams were used for non-controversial and often unanimous matters. They generally can be cited as precedent and are considered good law, but the tie prevents this decision from being precedential. NOTE: The nature of per curiam decisions may hav
Special Education Law 101- Part II 2007-10-10 11:16:00 As explained in a previous post, I have decided to post a series of Special
Ed Law 101 articles to give those outside the SpEd (special education) circle a better chance of understanding what we mean and to get more people hooked on this ever-growing field.Special Ed Law 101- Part IIThe Requirement of LRE (least restrictive environment)In addition to the requirement of FAPE, which was discussed in a previous post, the IDEA also requires that to the “…maximum extent appropriate, children with disabilities … are educated with children who are not disabled, and special classes, separate schooling or other removal of children with disabilities from the regular education environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. IDEA, Section 612(a)(5). See, 34 C.F.R. Sections 300.114 to 300.119. This is known as "LRE."The Supreme Cour Read more:Education
, Special Education
Oral Arguments at the U. S. Supreme Court 2007-10-02 10:24:00 I was able to attend the oral argument at the U. S. SupremeCourt
yesterday in the IDEA case of Board of Education of City of New York v. Tom F., Case No. 06-637. Despite my many years practicing law, I am always awestruck when I enter that Courtroom. The highest court in the land does an impressive job of creating a special atmosphere.When the oral argument began, Justice Kennedy left the Courtroom. Apparently he recused himself from the case and will not take part in the decision. The most active questioners were Justices Alito, Scalia and Chief Justice Roberts. Souter and Ginsburg asked a few questions, and Bryer, Stevens only asked about one area each. Thomas said nothing, although at one point he and Bryer had a very polite private conversation for few moments. I was more surprised by their civility than anything.The thrust of the questions from Alito, Scalia and Roberts to the school district attorney concerned what purpose could be served by reading the statute to mean t Read more:Supreme Court
U. S. Supreme Court to Hear Another Special Education Case 2007-09-24 20:15:00 The U. S. SupremeCourt
will hear oral arguments in yet another special education case on opening day of the new term, October 1st- the first Monday in October. The case is BOARD OF EDUCATION OF CITY OF NEW YORK V. TOM F., Docket No. 06-637 .The issue presented is whether the parents of a child with a disability who has never received special education from a public school district may receive reimbursement for a unilateral placement of the child in a private school after denial of FAPE by the public school district. The case is an appeal from the decision of the US Circuit Court of Appeals for the Second Circuit holding that such reimbursement was an appropriate remedy, 106 LRP 48499 (2d Cir. August, 2006).The Solicitor General, acting for the Justice Department, has filed a brief on behalf of the parent/student. Numerous groups have filed amicus briefs on behalf of both parties. Among the amicus briefs for the school district were those filed by the National School Boards Association Read more:Special
, Supreme Court
, Education
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