, J.D. Special Ed Law & Advocacy Strategies

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REED MARTIN, J.D.

SPECIAL EDUCATION LAW & ADVOCACY STRATEGIES

Your Special Education Resource Center

http://www.reedmartin.com

March 1, 2004

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GOING FOR PRIVATE SERVICES

, J.D.

Taken from 's manual: Is Your Child Getting Everything They Are Entitled to Under the '99 Regulations, '97 IDEA Amendments, Section 504, ADA and FERPA

Have you been thinking about "going private" and how you can get reimbursed for private services for your child?

The IDEA amendments require at 20 U.S.C. 1412(a)(10)© some new rules for parents that want to place their child in a private facility and send the bill to the school district.

The parent can win that placement in a hearing, but if they make the placement themselves they need to argue that the public school offering was not appropriate -- that there was not a proper IEP. See Burlington vs. St. Dept. of Educ., 471 U.S. 359 (1985) in which the Supreme Court said, at page 371, that the public school must reimburse the parents for "expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP."

The IDEA requirements now add that the parent should bring the issue up at an IDEA IEP meeting and, if the parents are so dissatisfied that they are going to go private, the parents should state so at that time.

Or, if the parents decide after the meeting, they should give notice to the school 10 days prior to starting the expense of the private placement.

But for reimbursement from the school, the parent must claim and show that the public school cannot, or will not, provide an "appropriate education."

www.reedmartin.com/privateservices.htm

New Audio Workshop in the POWER Member Community

Once a child or teen is diagnosed with Autism or Asperger's does the school know how to accommodate such a student? What are some of the problems and how do we deal with them?

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Public School Does Not Have To Reimburse Parent For Private Placement Where The Placement Is For Confinement, Not For Education

The U. S. Court of Appeals for the Seventh Circuit decided a difficult case on January 12, 200l. The facts in Dale M. v. Board of Education of Bradley-Bourbonnais High School District are so unique that they might apply to very few other situations.

However, the ruling might be misunderstood by many parents and schools so we need to know about this case. In law schools we hear the slogan "bad facts make bad law." This may be one example.

Dale became a student in the district at age 14 in 1993. He was a serious disciplinary problem, disrupted classes and was truant. The next year the school put him in a "therapeutic day school" which the school operated. When he attended, he behaved himself, did the work and got good grades. But he only attended about 5 days per month. He drank alcohol to excess, used marijuana and cocaine and other illegal drugs. He was also charged with burglarizing a residence and theft of a car. He had been hospitalized for depression and when he was released he refused to return to school and was instructed at home.

View the complete article:

www.reedmartin.com/confinementnoteducation.htm

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Greenland School District v. Amy N. and N. February 23, 2004

PARENTS WILL LOSE REIMBURSEMENT FOR PRIVATE SCHOOL PLACEMENTS IF THEY DO NOT CAREFULLY FOLLOW THE RULES

, J.D.

The U.S. Court of Appeals for the First Circuit, ruled February 23, 2004 in a textbook decision regarding a parent’s request for reimbursement for a private school placement, Greenland School District v. Amy N. and N.

The daughter started First Grade in public school and her First Grade teacher noticed distractibility. ’s parents took her to a private psychiatrist who diagnosed ADHD and suggested several practical steps to be taken in the classroom. Those steps were followed by teachers in the First through Fourth Grades.

’s Mother was a special education teacher and spent considerable time with homework. ’s academic performance earned mostly A’s and B’s and in two standardized tests she scored in the “average to above-average range.”

At no time did her parents suggest that she be evaluated for special education services. In the summer after Fourth Grade the parents unilaterally enrolled in a private school which does not focus on special education students. In February of that year, the private school requested that ’s parents withdraw her. The parents placed her in another private school, this time for students with a learning disability, and contacted the special education coordinator for the public school requesting an evaluation.

A meeting was held 2 weeks later, with 8 public school personnel, and a series of tests were scheduled. After receiving the test results, another meeting was held to determine whether there was eligibility for special education services. The school personnel, noting that had ADHD and an anxiety disorder, decided that those conditions did not adversely affect her educational performance. The parents replied by letter that they disagreed and pursued an evaluation with another psychiatrist who diagnosed Asperger’s Syndrome. The public school team coded her as “Other Health Impaired.”

View the complete article:

http://www.reedmartin.com/parentslosereimbursement.htm

Greenland School District v. Amy N. and N. http://www.reedmartin.com/greenlandschooldistvamyn.htm

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No Child With A Disability Left Behind Workshop

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After School Private Day Care Under The ADA

, J.D.

How many parents have problems finding appropriate private extended day care for their children, or finding other supports in their community? An important decision on this issue was rendered in a Federal District Court in Ohio on January 3, 2001.

We often feature on this site cases in which a private school had learned how to deal successfully with a child and the public school refused to implement the program. In this case, the opposite is true.

In Burriola v. Greater Toledo YMCA, the parent contracted for day care with the Y for her 8 year old son with autism. Jordan would spend two and one half hours each afternoon at the day care, or all day when school was cancelled or over the summer break.

View the complete article:

http://www.reedmartin.com/afterschoolandada.htm

Private School Articles and Resources

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PLACING YOUR CHILD IN A PRIVATE SCHOOL

AND SENDING THE BILL TO THE PUBLIC SCHOOL

HOW EASY, OR HOW HARD, IS IT?

, J.D.

Berger v. Medina City School District

Sixth Circuit Court of Appeals

October 29, 2003

We constantly interact with parents who feel they could finally get their child with a disability what they need in school if only they could put them in a private school. Smaller class sizes. More responsive administrators. Possibly teachers with better knowledge and experience with their child’s specific disability. A longer school year. No more endless fights about methodology with a public school staff that does not seem to care about their individual child.

But the parents cannot afford it. Are there legal arguments that would allow the parents to make a private placement and send the bill to the public school?

View the complete article:

http://www.reedmartin.com/privateschoolpubliccost.htm

From www.ourchildleftbehind.com

The League of Special Education Voters (www.SpEdVoters.org) inconjunction with Our Children Left Behind(www.ourchildrenleftbehind.com) is concerned with pending legislation in the U.S. Senate, legislation that will hurt students with disabilities. Please review the following and then go and sign our petition at:Our plan is to deliver a hardcopy of the petition to the Senate late in March. Questions and comments should be emailed toSpEdVoters@....

Please forward this message widely. Thank you, and our children thank you.

To: U.S. Senate

http://www.petitiononline.com/nos1248/petition.html

In late March, 2004, the U.S. Senate will vote on the Individuals with Disabilities Education Act (IDEA) Reauthorization, Senate bill S. 1248. This bill eliminates many important provisions contained in current law (IDEA ’97), provisions upon which students with disabilities have relied in obtaining a Free Appropriate Public Education. If passed, S. 1248 will condemn students with disabilities to struggle against the same segregation, neglect, and abuse they faced 30 years ago. We must NOT allow this to happen! We, the undersigned, agree that it is crucial that S. 1248 contain all of the following provisions: Short-term objectives: IEPs must contain short-term objectives/benchmarks in order to determine whether students have made progress in both academic and non-academic areas. Relying on yearly standardized testing is neither appropriate nor adequate. Behavioral analysis and intervention plans: Schools must use functional behavior analyses (FBAs), behavior intervention plans (BIPs), and manifestation determinations before unilaterally removing a student from the classroom due to behavior caused by his/her disability (with exceptions for dangerousness or drugs/weapons). "Stay put": Students must "stay put" in their current education settings (subject to exceptions for dangerousness or drugs/weapons) while proceedings (manifestation determination, parent/guardian appeal, etc.) are pending. Students are innocent until proven guilty, and should be treat accordingly. Reasonable statute of limitations: Parents/Guardians typically are willing to work with their school for years, trying to resolve issues, before finally giving up and filing for due process. They must not be penalized for working with their schools in good faith. Placing a short statute of limitations on IDEA claims will put pressure on families to rush into expensive legal proceedings, to the detriment of both children and schools – parents must have at least 5 years within which to initiate due process. No attorney fee caps: The law must not allow states to set caps on the amount recoverable by a successful parent/guardian litigant in due process or court. Due process must be accessible to all parents/guardians, not just the rich who can afford to hire an attorney with their own money. Current studies show that parents are not filing frivolous suits. On the contrary, instead of providing services, many school districts are spending much more on litigation than the requested services would have cost. No additional mandatory pre-due process meetings: Typically, due process is a parent's/guardian's last resort. They have had countless meetings with the school, making little or no progress. Families must not be further burdened with extra meetings. Enforcement: The Department of Education must enforce the statute. Currently, the lack of accountability has led to a lack of compliance by State and Local Educational Agencies. In the long run, the cost of not providing children with special needs an appropriate education is much greater than the cost of providing needed services. We therefore demand that the Senate vote NO to S. 1248 if it does not contain ALL of the above, in order to protect children with special needs. Sincerely,

The Undersigned

http://www.petitiononline.com/nos1248/petition.html

© 2004. All Rights Reserved.

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