Charles P Fox Law Offices

Special Education Law and Guardianship

Law Offices of Charles P. Fox
355 W. Dundee, Suite 209
Buffalo Grove, IL 60089
Phone: 847-205-9897

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Special Education Law and Advocacy

Experienced Special Education Attorneys

Lessons from Overseas for Programming for Adults with Disabilities

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The father of a child represented by this firm forwarded information about a very special kibbutz in Israel.  As you may know, an Israeli kibbutz is an agricultural communal settlement whose residents collectively live and work together.  The kibbutz this client forwarded information on is called Kishorit, and it is unique because it is designed to meet the needs of adults with developmental disabilities. 

 In the United States, parents agonize over finding appropriate placements for their adult children in the community which will enable them to function as independently and productively as possible.  Kishorit is different, even among the kibbutz movement.  Its 140 residents are expected to engage fully in the kibbutz community.  Almost 97% of the residents are employed, either through the micro-enterprises run by the kibbutz, or in nearby communities.  Staff and volunteers eat, work, and socialize with the residents. 

 Despite the unique program offered at Kishorit, Israel is behind the United States in its efforts to meet the needs of the disabled.  Dr. Joav Merrick, the medical director of the Division of Mental Retardation of the Ministry of Social Affairs and chairman and medical director of Israel’s National Institute of Child Health and Human Development, immigrated to Israel some 20 years ago.  Upon his arrival in Israel, he was shocked to find 5-year-old children with Down’s syndrome effectively warehoused in neonatal hospitals—abandoned at birth by their parents with no other placement options available.  It’s been an uphill battle since then to get Israeli’s to change their attitudes toward the disabled. 

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ACLU files suit in Michigan

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The Michigan ACLU has taken the unprecedented step of filing a class action lawsuit in July against the Highland Park School District, the state of Michigan, and other governmental entities for failing to teach the students in the Highland Park School District how to read.  Kary Moss, executive director of the Michigan ACLU, said “This is not a pro or anti-charter case. . . This is not a pro or anti-teacher case.  This is not a pro or anti-emergency manager case. This case, simply put, is about the right of children to read, a right guaranteed under the constitution and laws of this state.” 

 The ACLU has carefully jockeyed to buttress its argument that the right to read is a civil right for the students in Michigan. Although the ACLU acknowledges that state courts have not recognized education as a fundamental right granted by the Constitution, the ACLU points out that the Supreme Court has referred to education as “not merely some governmental benefit which is indistinguishable from other forms of social welfare legislation.”   Additionally, the Michigan Supreme Court has declared that “education is perhaps the most important function of state and local governments,” and the Michigan Constitution “imposes an obligation” on the state to offer a free public elementary and high school education. 

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Retaliation Against Parents for Advocating: An Emerging Trend

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Retaliation against parents for advocating on behalf of their special needs children with their school district is an unpleasant topic.  No one really knows how often retaliation occurs, but clearly it has happened frequently enough for parental advocacy to be protected by Federal statute.  Not only do Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA) protect the disabled against discrimination, they also protect those acting on their behalf to ensure the rights of the disabled.  Specifically, Section 504, which references Title VI of the Civil Rights Act of 1964, states that recipients of Federal funds, which would include school districts, “shall not intimidate, threaten, coerce or discriminate against any individual for the purpose of interfering with any right or privilege secured by the Act, or because the individual has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this part.”

Retaliation can be defined as “using official resources to ‘punish’ parents,” and it can take a wide range of forms from refusing to respond to emails or return phone calls, not allowing parents to view records, or continually canceling school meetings and conferences.  But sometimes the retaliation can be more sinister.  Anecdotally the internet is filled with stories of parents who claim their school districts have reported them to child protective services, filed truancy charges against them, or had restraining orders imposed on them, all as the result of their advocacy on behalf of their children. 

 

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Food Allergies in School, How to Deal

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In 2008, the Centers for Disease Control (CDC) estimated that almost 3 million children, or 1 in 25, had food allergy.  More recently in 2011, the CDC estimated that up to 6 million children, or one in 13 children, had food allergies. Practically speaking, this means that about two children in every classroom have food allergies. Additionally, almost 40% of children with allergies have had severe reactions, and nearly 30% are allergic to multiple foods.  Clearly, food allergies are becoming an increasingly serious problem for our nation’s children.

Recognizing the gravity of this problem, state legislatures are promulgating new laws to enable school staff to respond more rapidly to life-threatening anaphylactic reactions.  Current legislation has allowed schools to store and administer medication; namely, EpiPens, to students having allergic reactions provided a doctor’s prescription is on file.  Additionally, most states allow students to self-carry and self-administer EpiPens in the event of a reaction.  This protocol is problematic, however, in the event that a child forgets his or her medication, school personnel are either unavailable or unable to access the locked medication, or the reaction is occurring in a student with an undiagnosed allergy, which unhappily occurs frequently.  In fact, up to a quarter of severe allergic reactions occur in persons not previously diagnosed with food allergy, and up to 25% of first time reactions to peanuts or tree nuts have occurred in school settings.  Across the country, children have died while school staff waited helplessly for paramedics after calling 911.  In response, Illinois passed legislation last summer that allows schools to stock pile EpiPens, and, in an emergency, permits school nurses or other trained staff to administer medication to students with previously undiagnosed allergies who are experiencing life-threatening allergic reactions. Similar legislation is pending in five different states and in the federal government as well. 

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Low Enrollment of Students with Disabilities in Charter Schools

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The Government Accountability Office (GAO) recently released a report indicating that Federal intervention is needed to ensure that students with disabilities have access to their right to a Free Appropriate Public Education in the charter school setting. Charter Schools must adhere to Federal law, including the IDEA. However,  the report indicates that fewer students with disabilities enrolled in public charter schools (8.2%) than enrolled in traditional public schools (11.2%). Compared to traditional public schools, charter schools enrolled a lower percentage of students with intellectual disabilities (0.84% compared to 0.45%).

We have seen this problem in our office with the influx of charters being granted by strapped school districts. Unfortunately some charter schools misrepresent their ability to program for students with disabilities and some students are losing a year plus of a FAPE because they are not being appropriately supported in the charter school setting. The situation can also be confused further because every state has different laws as to who is the LEA (local education agency). When school districts get sued for the failure to provide a FAPE in a charter school, the finger pointing can often begin. The Department of Education said in response to the report that it would issue new guidance to charter schools on their obligations to serve all students. 

Lack of Consideration of Inclusive Preschools a Persistent Issue

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Despite the fact that there has been much litigation with parents prevailing on the issue of inclusive preschools and much guidance from the Department of Education, this issue continues to be very prevalent. Schools persist in their lack of understanding that simply offering an self-contained early chldhood placement does not discharge their LRE obligations. More than 700,000 preschool children in this country, or 6.4% of the preschool population, have been identified as having special needs.  And research has made it clear that many of these children will benefit from inclusive preschool placements where they can learn with and from their non-disabled peers.  Four reviews of the literature undertaken since 1980 indicate that children with special needs placed in inclusive settings make at least as much progress on standardized measures of cognitive, language, motor, and social development as children in self-contained special education settings. According to researchers, inclusive placements afford preschool children with special needs learning opportunities that they will not have in a non-inclusive setting.  In addition, some researchers feel that placement in non-special education settings is simply the right and ethical thing to do for these children and their families.

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Maintenance of Effort Maintained

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Advocacy groups and special education students won a recent victory this April when the Department of Education’s Office of Special Education Programs rescinded its instructions to school districts from last June that would have effectively allowed school districts to make permanent reductions in their spending on special education. School districts, however, are not happy as they want flexibility to cut and reallocate funds from special education  budgets.

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Incarcerated Youth with Disabilities

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It is extremely difficult for youth who have been living in correctional facilities to return to their communities, families, schools, and employment.  Because the youth are very likely to be returning to the very same environments into which they got into trouble in the first place (e.g., poverty, chaotic schools, substance abuse issues, or dysfunctional families), their rate of recidivism is extremely high.  According a new report from Project Forum released last December, approximately 55% of youth return to detention facilities or prisons within 12 months of their release. And that number is even higher for youth with disabilities.  As one researcher commented, “the most difficult part of many youths’ experience in the juvenile justice system is not being confined, but returning home.”

How many youth are incarcerated in our country, and what disabilities do they have?  In 2007, more than 87,000 youths were held in juvenile correctional facilities; an additional 3,650 were in state prisons.  Of these numbers, youth with disabilities are overrepresented.  One study showed that whereas only 9% of youth in our nation’s schools are eligible for special education services, an estimated 37% of youth in the juvenile justice system receive services under IDEA. Some reports suggest that the number of incarcerated youths with special needs in fact ranges from 30 to 70% of the population.  Of incarcerated youth, between 65% and 90% could be diagnosed with at least one mental health disorder.  Additionally, it is estimated that approximately 10% of incarcerated youth have learning disabilities, 50% have emotional disorders, 12% have intellectual disabilities, and as many as 50% have AD/HD. 

These youthful offenders have likely been served poorly by their home schools.  They have also likely been served poorly through the educational programs offered by the juvenile justice system.  Even though incarcerated, students who receive special education services are still entitled to FAPE (free and appropriate public education).  But the provision of FAPE can be problematic for youthful offenders. Incarcerated youth can be moved frequently, IEPs and educational records (if they are even obtained from home schools) do not always follow the offenders, families are minimally involved with educational planning, and some of the disciplinary procedures used for offenders are unhelpful to them educationally.  This is regrettable, because we know that youths who progress academically while incarcerated will have lower recidivism rates.

Despite the glum numbers, we know youth with disabilities who are engaged in work or school during the first three months of their release are 3.2 times less likely to return to custody and 2.5 times more likely to remain working or enrolled in school 12 months after leaving the correctional facility. These youth can successfully be returned to society. Thus, it is imperative that good transition programs are developed for these youth to ensure successful outcomes for them. 

To that end, Project Forum conducted a review of programs in four states (Arizona, Georgia, Hawaii, and Oregon) that offer what are considered “best practices” in their reentry programs for incarcerated youths. Historically, re-entry programs for youth tend to be fragmented, and too many offenders fall between the proverbial cracks of the system.  One of the main problems is that youth leaving correctional facilities are aging out of child-oriented social programs and being funneled into adult-oriented services.  Many of these adult programs are developmentally inappropriate for youthful offenders, who can be left floundering.

 To address these gaps in service, each state identified by Project Forum offered comprehensive, multi-disciplinary wrap-around programs to ensure that the needs of youth are met upon release.  Key to each of the programs is the use of a transition coordinator, who establishes relationships with the youths before their release, ensures that community-based services are set in the community upon release, and then continues to follow the youth once they are back in the community. In addition, each state is addressing the educational, employment, social and behavioral, substance abuse, housing, and transportation needs of recently released youth. 

 It is not inevitable that incarcerated youth will return to detention facilities, but the odds are stacked against them.  But as demonstrated by the Project Forum report, youth can be successfully transitioned back into their communities. However, it will take a lot of effort on the part of the juvenile justice system, communities, and social services agencies as well as the released youths and their families to succeed.

 

Bullying: The Sad Reality

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Back in 2010, Education Secretary Arne Duncan convened a “bullying summit” in which he characterized bullying as a “gateway to hate,” which when left unchecked, could escalate into further violence and abuse.  The Department of Education was announcing a shift in its approach to this issue by reframing bullying as a civil rights issue in which the federal government would take a more proactive role in investigating, enforcing, and monitoring compliance of school districts. To that end, the Office of Civil Rights expanded its data collection and for the first time gathered data on bullying related to racial, sexual, or disability harassment.  The OCR recently released data on the 2009-2010 school year.  The data, which were gathered from 85% of the nation’s schools, or 7000 school districts, revealed some surprising results.  Of the 20 largest school districts in the country, 14, including the public school systems of New York City and Los Angeles, had absolutely no reports of bullying or harassment. 

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