Upcoming Events:

Learning Disabilities Assocoation of America (LDA) Conference presentation by Ellen Callegary
Saturday, February 20, 2010 from 1:00 PM to 4:00 PM, Special Event C, "Navigating the Special Education Legal Process,"

at the Baltimore Marriott Waterfront
700 Aliceanna Street
Baltimore, MD 21202
410-385-3000
Registration $50 PDF Flyer
To register, visit LDA Conference registration

Presentation Details: This seminar, specifically designed for parents, will discuss the top ten common mistakes parents make when navigating the special education process and present ways to avoid making them. Specific information about IDEA regarding learning disabilities and some pitfalls regarding Response to Intervention will be discussed. Parents will learn about United States Supreme Court's recent IDEA decisions and what they mean for families and educators. Finally information about procedural safeguards, prior written notice, mediation, resolution sessions and due process will be presented.

Autism Society of America (Montgomery County Maryland) General Meeting presentation by Ellen Callegary
Thursday, February 25, 2010 at 7:00 PM PDF Flyer, "Guardianship and Health Decisions for Adults with Disabilities"
at The Arc Montgomery County, Bachman Room, 11600 Nebel Street, Rockville, MD 20852 (*Call 301-652-3912 after 4 p.m. that day to check on MCPS' closure policy in case of inclement weather*)

Presentation Details: Ellen's presentation will help families of adults with disabilities and adults with disabilities know what their options are with respect to health care decision making. Participants will learn about when it may be appropriate to pursue guardianship for their adult child. They will learn about the legal requirements that must be met in order for a court to grant a guardianship and how to work with health care providers to document the individual's needs. Participants will also learn about the alternatives to guardianship such as advance health care directives, advance directives for mental health services, powers of attorney and surrogate decision making.

Articles by and full presentation schedule for Wayne Steedman may be located by clicking on www.wrightslaw.com

"Special Education Law and Advocacy Training" on March 27, 2010 at Grand Rapids, MI Wrights Law March 2010 Schedule

Publications:

From the Journal of Health Care Law & Policy Volume 5, 2002 

The IDEA's Promise Unfulfilled: A Second Look at Special Education & Related Services for Children with Mental Health Needs After Garret F. Ellen A. Callegary

File available for viewing or download as:  

From the Maryland Bar Journal March/April 2000 Volume XXXIII Number 2        

      Prior to 1975, "more than one-half of the children with disabilities in the United States did not receive appropriate educational services that would enable such children to have full equality of opportunity," and "1,000,000 of the children with disabilities in the United States were excluded entirely from the public school system." 20 U.S.C. § 1401(b)(2)(B) and (C) (1997). In response to this crisis, Congress began providing states with funds to educate children with disabilities in 1966.  In 1970, Congress passed the Education of the Handicapped Act, and in 1975, Congress passed the Education for All Handicapped Children Act, which mandated specific procedural rights and individualized, appropriate public education for all children with disabilities.

Today, the Individuals with Disabilities Education Act (IDEA) and corresponding state laws give all children with disabilities that affect their ability to learn the right to a "free, appropriate public education" (FAPE), defined as:

special education and related services that...have been provided at public expense, without charge; and ... are provided in conformity with the individualized education program required [by IDEA]. 20 U.S.C. §1402(8).  Each child receiving special education has the right to a program that has been designed  specifically for his or her individual needs.  

Congress has declared IDEA "a very successful law," noting that:

The number of children with developmental disabilities in state institutions has declined by close to 90 percent.  The number of young adults with disabilities enrolled in postsecondary education has tripled, and the unemployment rate for individuals with disabilities in their twenties is almost half that of their older counterparts.

1997 US.C.C.A.N. 78.  However, much work remains to be done.  Almost twice as many students with disabilities drop out as compared to students without disabilities.  IDEA was re-authorized with significant changes in June 1997 and amendments to the Code of Federal Regulations became effective May 1999. 34 C.F.R. Part 300.  Maryland revised its special education laws to conform to IDEA during the 1998 legislative session and new state regulations became effective on July 1, 1999.  Md.  Educ.  Code §§8-401-8-417; COMAR 13A.05.01.

IDEA: An Overview

IDEA requires that children with disabilities be educated in the least restrictive environment" (LRE) that meets their needs.  This means that: 

To the maximum extent appropriate, children with disabilities ... are educated with children who are not disabled, and ... removal ... from the regular educational environment occurs only when the ... disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 20 U.S.C. §1412(a)(5).  The 1997 amendments emphasize this requirement. 

IDEA provides for special education for children ages 3 through 21, and also for early intervention services to infants and toddlers under age 3. Beginning at age 14, transition services must be provided to enable the child to be employed after leaving the special education system and to move into the adult disability service system if needed. 20 U.S.C. §1414 (d)(1)(A)(vii).  After age 21, persons with disabilities may be eligible to receive services from a variety of local, state and federal agencies including the state Developmental Disabilities Administration and the Division of Rehabilitation Services.
      Some children have disabilities that are obvious long before the child enters school, such as hearing, vision, or orthopedic impairments.  Other disabilities, such as learning disabilities, may only become apparent when a child enters school.  Regardless of the type of disability, the process of identifying the child's needs and obtaining services is the same.
      Screening.  Either a parent or a teacher suspects that a child requires special education services, and makes a referral to the schools Individual Education Program (IEP) team.  The IEP team includes the parents, the child (when appropriate), various school personnel who understand both regular and special education and at least one individual who can interpret the instructional implications of evaluation results.  At the discretion of the parent or school, other individuals may be involved who have knowledge or special expertise regarding the child. 20 U.S.C. §1414(d)(1)(B). 
      Evaluation.  If the IEP team suspects that the child needs special education services, the parent is asked to give permission for the child to be evaluated by appropriate school personnel, such as a speech pathologist, psychologist, educator, and physical or occupational therapist.  Parents can also obtain evaluations privately and submit them to the IEP team, which can agree to accept the private evaluations in addition to or in place of those provided by the school system.
     Determination.  After the evaluations are completed, the IEP team considers whether the child qualifies for special education.  IDEA defines a "child with a disability" as one who has one or more disabilities, such as mental retardation, speech or language impairments, visual impairments, emotional disturbance, or specific learning disabilities, and who "by reason thereof, needs special education and related services." 20 U.S.C. §1402(3).  The child is eligible for special education if her disability affects her ability to learn, such that an individualized program is required in order for her to benefit from her education.
     The Plan.  If the child is eligible, the IEP team uses information from the evaluations and parents to develop the actual Individualized Education Program (IEP) for the child, which lists specific educational goals and objectives and the services that will be provided, such as special education instruction, speech therapy, a small class, or any other service the team determines the child needs.
     Placement.  The team must now determine where the IEP will be implemented.  The "least restrictive environment" (LRE) requirement of IDEA demands that the team first consider whether the child's needs can be met in a regular classroom in her home school.  If this is not possible, the team must next consider whether the child's needs can be met either in a special classroom in the home school, or by adding additional services to the regular classroom.
     If the home school is not appropriate, the team must consider whether another public school can meet the child's needs.  If there is no appropriate public school, and if additional personnel and services cannot be added in a timely manner to make the school appropriate, the team must consider placing the child in a private ("nonpublic") school.  If the team determines that a non-public school is needed, the school district is responsible for paying the tuition and providing transportation. 

The Supreme Court's Rowley Decision 

   IDEA states that "[i]mproving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities." 20 U.S.C. §1401 (b)(1).  One might therefore assume that a free, appropriate public education ("FAPE") is one that enables a child with a disability to achieve these goals.  However, the Supreme Court has held that the Education For All Handicapped Children Act (IDEA's predecessor statute), which was in effect at the time of the Court's decision in 1982, does not require states to help children with disabilities reach their full potential.  Board of Education v. Rowley, 458 U.S. 176 (1982).  The Court found that if a school system has followed the legally required procedures to develop an IEP, and that IEP is "reasonably calculated to enable the child to receive educational benefit," then the school system has fulfilled its duty to the child.
      However, the Court made clear that "we do not hold ... that every handicapped child who is advancing from grade to grade in a regular public school system is automatically receiving a 'free appropriate public education.' " 458 U.S. 176 (1982).  The level of "educational benefits" required by Rowley has been hotly disputed in Maryland and throughout the nation.  See Fritschle v. Andes, 45 F. Supp.2d 500 (D.  Md. 1999).  With the 1997 amendments' greater emphasis on measurable progress, the legal debate is expected to continue.
     The U.S. Supreme Court has most recently articulated just how far states have to go in order to enable children with disabilities to attend public school with their peers in the case of Cedar Rapids Community Sch.  Dist. v. Garret F. by Charles F., 119 S. Ct. 992 (1999) (hereinafter Garret F.). The Court found that: 

Garret F. is a friendly, creative, and intelligent young man.  When Garret was four years old, his spinal column was severed in a motorcycle accident.  Though paralyzed from the neck down, his mental capacities were unaffected ... Garret ... attends regular classes in a typical school program, and his academic performance has been a success. 

Id. Because of his disabilities, Garret needs one-on-one care available at all times to assist with catheterization, the maintenance of his ventilator and other needs.  Id. n.3. After providing these services at their own expense for some years, Garret's family asked the school system to provide them during the school day.  The school system refused.
     IDEA requires school districts to provide supportive services that "may be required to assist a child with a disability to benefit from special education." 20 U.S.C. §1401(a)(17).  There is an exception to this rule for "medical services," which the Court had previously defined as services that must be performed by a physician.  There was no evidence that the services Garret needed could only be provided by a physician.
     The Court rejected the school system's argument that the extent and cost of the care should be taken into consideration.  The Court stated that "Congress intended 'to open the door of public education' to all qualified children and 'require[d] participating States to educate handicapped children with non-handicapped children whenever possible."' Id., quoting Rowley, 458 U.S. at 192,202.  Therefore, the school system was required to help guarantee that Garret was integrated into public school, regardless of the cost. 

Rights of Parents and Students 

When IDEA was re-authorized in 1997, Congress found that: 

over 20 years of research and experience has demonstrated that the education of children with disabilities can be made more effective by... strengthening the role of parents and ensuring that families ... have meaningful opportunities to participate in the education of their children. 

   20 U.S.C. §1401(b)(5).  The parents are equal members of the IEP team, along with the school's education and related service professionals.  Parents also have the right to invite other people with special knowledge or expertise about the child to become members of the IEP team. 20 U.S.C. §1414(d)(1)(B).  Parents have the right to examine all their child's records, participate in all meetings and obtain independent evaluations of their child. 20 U.S.C. §1415(b)(1).
     The re-authorized IDEA mandates that parents of a child in special education be given information about the child's progress at least as often as parents of a non-disabled child are given such information. 20 U.S.C. §1414(d)(1)(A)(viii).  
     With the 1997 amendments, IDEA gives explicit guidance regarding discipline for students with disabilities for the first time.  Discipline of students with disabilities has long been a controversial subject, and Congress attempted to resolve some of the conflicts between courts by writing discipline provisions into the law.  Children who bring drugs or weapons to school were of particular concern.  The statutory provisions regarding school discipline for students with disabilities are complex, with many required procedures such as meetings and hearings that must take place within specific time lines.  See 20 U.S.C. §1415(k).  The new provisions have not ended the debates, and the courts and the United States Office of Special Education Programs (OSEP) continue to review these issues.  See, eg., Jensen v. Reeves, 45 F. Supp. 2d 1265 (D.  Utah 1999).
     The re-authorized IDEA requires that if a student's behavior is impeding her learning or that of others, the IEP team must consider positive interventions to address the behavior.  When these actions fail, IDEA mandates that children with disabilities be treated the same as children without disabilities with regard to suspension and expulsion, except that children with disabilities are entitled to receive FAPE during lengthy suspensions or expulsions. 20 U.S.C. §1415(k).  In addition, if the IEP team determines that the child's behavior is a "manifestation" of the disability; the suspension or expulsion is expunged from the child's record.  However, the child can still be removed from the school if it is not an appropriate placement for the child.
     Many of the court decisions dealing with special education have to do with unilateral placements: that is, situations in which the parents do not believe their child is being educated appropriately in public school, place the child in a private school at their own expense, and then ask the local Board of Education for tuition reimbursement.
     IDEA does not require a public school system to pay for a unilateral placement if the system offered the child FAPE.  However, a court or a hearing officer may require such payment if the school system "had not made a free appropriate public education available to the child in a timely manner." 20 U.S.C. §1412(a)(10)(C).  This provision codifies the decision of the U.S. Supreme Court in Burlington School Committee v. Massachusetts Dept. of Education, 105 S. Ct. 1996 (1985). 
     The Court found that a school system can be ordered to pay for a non-public placement while a case is pending, although the parents may be ordered to reimburse the school system if a court later determines that the placement offered by the school system is appropriate.  IDEA also states that: 

during the pendency of any [administrative hearing or court] proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current  educational placement of such child. 

20 U.S.C. §1415(j).  The Burlington Court found that this requirement, called "stay put," is binding only on the school system: that is, the school system cannot move the child during the pendency of a hearing or appeal brought pursuant to IDEA, but the parent can move the child to a non-public placement and the court may order the school system to pay the tuition while proceedings are pending.

The Burlington parents placed their child in a non-public school that had been approved by the state as a special education facility.  In Florence County Sch.  Dist.  Four v. Carter, 114 S. Ct. 361 (1993), the U.S. Supreme Court held that the State cannot limit unilateral placements to state-approved facilities, if another facility chosen by the parents is appropriate for the child.  After the school district proposed an inappropriate IEP, Shannon Carter's parents placed her in a private school that specialized in teaching students with learning disabilities but had not been approved by the state as a special education facility.

The District Court found that the school was providing Shannon with an appropriate education.  The Court of Appeals for the Fourth Circuit affirmed, holding that 

IDEA's state approval requirement applies only when a child is placed in a private school by public school officials." 11 4 S. Ct. 361.  The Court also found that even if a school does not meet state education standards, parents can be reimbursed if the education provided is appropriate. 

The federal district court in Maryland has followed Carter and held that parents could receive tuition reimbursement for a school that is not a special education facility.  Gerstmyer v. Howard County Public Schools, 850 F. Supp. 361 (D.  Md. 1994).  In his kindergarten year, Alex Gerstmyer attended public school in the morning and a Montessori school (at parents' expense) in the afternoon.  In late April, Alex's  mother expressed concern about his progress to the public school teacher and was advised not to worry.
     After making several requests for Alex to be tested, Mrs. Gerstmyer was told that due to budgetary constraints, the school system would not be able to test Alex until the following October.  She then took Alex to a private psychologist, who found that he was intellectually gifted but had a specific learning disability, dyslexia.  Mrs. Gerstmyer shared this information with the public school at the beginning of August.  Alex's struggles with school are recounted in detail in the District Court's opinion.  After one day at school, Alex did not want to return to school and referred to himself as "stupid." See 850 F. Supp. 361.
     After several delays, the school proposed an IEP, which was "not at all tailored to Alex's special needs." Id. The Gerstmyers then removed Alex from public school and enrolled him in the Montessori school.  His attitude and behavior changed almost immediately, and he made progress in reading.  The District Court found that in light of Carter, reimbursement was appropriate although the Montessori school was not a state-approved special education school.  Id. 

The Role of the Attorney

Parents who disagree with the school system's decisions about their children's education may request a due process hearing, which in Maryland is conducted by an Administrative Law Judge.  A school system can also request a hearing if a parent refuses to give permission for a child to be evaluated.  Hearing decisions can be appealed either to federal court or to state circuit court, although the vast majority of appeals are to federal court.  The obvious role of attorneys in special education is to represent parents and school districts at such proceedings.  What is less obvious is that an attorney can help the child with a disability and her parents obtain appropriate services without a hearing or court proceeding being required.
     IDEA provides that "at the discretion of the parent or agency, other individuals who have knowledge or special expertise regarding the child" can be included as members of the IEP team. 20 U.S.C. §141(d)(1)(B).  The 1997 amendments added the clause "who have knowledge or special expertise regarding the child." In the past, this provision has been interpreted to mean that both the school district and the parents can invite their attorneys to be part of the team.  However, the intent both of the revised IDEA and of the new federal regulations appears to discourage attorneys from attending IEP team meetings.
     Since 1986 IDEA has given courts authority to award attorney's fees to parents who prevail at administrative hearings or in court.  See 20 U.S.C. §1415(i)(3).  Prior to the 1997 amendments, parents could request attorney's fees for the attendance of their lawyer at an IEP team meeting, but the new IDEA explicitly forbids this.  The unfortunate consequences is that parents may now be more inclined to request a hearing rather than trying to resolve a dispute at an IEP team meeting.  The Notice of Interpretation attached to the new federal regulations also discourages the participation of attorneys in IEP team meetings.
   The presence of the agency's attorney could contribute to a potentially adversarial atmosphere at the meeting.  The same is true with regard to the presence of an attorney accompanying the parents at the IEP meeting... [This] would not necessarily be in the best interests of the child.  Therefore, the attendance of attorneys at IEP team meetings should be strongly discouraged.
   34 C.F.R. Part 300, Appendix A, response to question 29.  Regardless of the opinion expressed by the drafters of the federal regulations, the authors' experience indicates that the presence of an attorney at an IEP team meeting can be in the best interest of the child, the family, and the school system.