IDEA 2004 has brought many changes to special education law. School districts have used the new provision which allows attorneys’ fees shifting to parents in the event the due process is frivolous, abusive or brought for an improper purpose, to intimidate and chill due process filings. While this provision is new to IDEA, it tracks existing law from the Federal Code of Civil Procedure and other statutes. This body of law demonstrates that courts are reluctant to shift fees as a sanction and then only after the petitioning party (e.g. school district) has overcome significant hurdles.
New Medical Treatment May Be On the Way for Learning Disabilities
New human drug trials that may pave the way to treat the underlying biochemistry of learning disabilities are currently underway. The drug trials involve use of a familiar class of drugs known as statins, which up to now have been widely used for treatment of high cholesterol. As reported in the Los Angeles Times, the trials originate from researchers at UCLA.
The technical details of the research appear in the November issue of Current Biology.
The current hypothesis is that statin drugs will remedy the effects of a genetic defect that has been associated with learning disabilities. In experimental models using the drug, it has shown signs of improving the following: poor attention spans, difficulties carrying out tasks involving spatial abilities, and problems learning new tasks.
This news has the potential to significantly change the current medical treatment for learning disabilities. While some parents may be willing to immediately embrace this potential new medical regime, others may be more cautious and skeptical. Fortunately, IDEA 2004 has a new provision that prohibits schools from requiring parents to engage in drug treatment as a condition of attending school, being evaluated, or receiving services. (See the .pdf version of 20 U.S.C. sec. 1412(25), also referred to as section 612(25).) Parents should not allow schools to bully them into drug treatments. Drug treatments should be pursued only when you are ready, and in accordance with the advice of a physician (as to the safety and effectiveness of the treatment for your child) and under his/her supervision.
U.S. Supreme Court Considers An IDEA Case for Appeal on Expert’s Fees and Rejects Two Other IDEA Cases
The U.S. Supreme Court has requested that the Solicitor General’s Office for the United States submit briefs regarding the merits of a case that is pending appeal. The case is Arlington Central School District Board of Education v. Murphy (No.05-18). The Murphy case presents the question as to whether expert’s fees are recoverable under IDEA. This question has been answered in the negative in the T.D. v. La Grange Sch. Dist. case in the 7th Circuit and in Illinois. If Murphy were to be accepted for appeal and decided favorably for the parents’ side, it would effectively reverse the decision in T.D.
The Rights of Children with Disabilities Enrolled By Their Parents in Private School
Numerous parents who unilaterally enrolled their children in private schools (including religious schools) have raised many questions regarding their children’s rights under the new IDEA. In response, I have drafted the following summary of recent Federal guidance on this subject. This summary is general in nature and is not meant to provide specific legal advice. This posting addresses only the changes to the provisions of IDEA 2004 that took effect on July 1, 2005 regarding children with disabilities who are enrolled by their parents in private schools. The relevant IDEA provisions can be found at 20 U.S.C. § 1412 (10)(a). This posting does not address a related set of issues regarding when a parent unilaterally places a child and then claims the offered program in school was not a FAPE. That situation is subject to its own set of requirements, including notice to the school, which is a critical prerequisite not discussed here.
ISBE Seeking Input on State Performance Plan for Special Education
The Illinois State Board of Education (ISBE) Department of Special Education Services is currently seeking input on the State Performance Plan, which is due to the U.S. Department of Education on December 2, 2005.
The Individuals with Disabilities Education Improvement Act of 2004, signed on December 3, 2004, became PL 108-446. In accordance with 20 U.S.C. 1416(b)(1), not later than one year after the date of enactment of the Individuals with Disabilities Education Improvement Act of 2004, each State must have in place a performance plan that evaluates the State’s efforts to implement the requirements and purposes of Part B and describe how the State will improve such implementation. This plan is called the Part B State Performance Plan (Part B SPP). In accordance with 20 U.S.C. 1416(b)(2)(C)(ii) the State shall report annually to the public on the performance of each local educational agency located in the State on the targets in the State’s performance plan.
The draft of Illinois’ State Performance Plan may be viewed by clicking here . At this time, Illinois’ SPP includes the required monitoring priority areas as well as their corresponding indicators and measurements. Proposed improvement activities, timelines and resources specific to Illinois have also been included. ISBE is seeking stakeholder input in the development of state-level improvement activities and measurable and rigorous targets.
Individuals with comments or questions may email sppinput@isbe.net to provide input. The web-link and e-mail address will be available from October 21, 2005 through November 15, 2005.
Information On IDEA 2004
The new law has brought many changes that will take years to sort out. There are points that will not be satisfactory to parents in areas such as manifestation determinations for disciplinary matters, and school districts have already expressed displeasure with the requirements for personnel to become “highly qualified.” The changes in the law are significant and important. However, of equal importance is that good solid advocacy—asking questions, getting evaluations, being prepared, and documenting in writing issues and concerns, to state a few–remains constant and paramount. Click the link below to read the main topics in IDEA 2004 that I believe parents need to know immediately:
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