Special Education Law Blog
A special education legal resource discussing case law, news, practical advocacy advice, and developments in state and federal laws, statutes and regulations. Postings include insight and sometimes humor from Charles P. Fox, a Chicago, Illinois attorney who is also a parent of child with special needs, and other guest authors.
The following is an action alert from COPAA: On Monday, the U.S. Senate will begin debate its bill, the Better Care Reconciliation Act, to replace the Affordable Care Act. The bill is being touted as better than the House bill but in terms of how it fundamentally alters Medicaid it is much worse. The Senate bill makes historic changes in how states are reimbursed for Medicaid and would place a per capita cap on the federal match. The shift to a per capita cap creates incentives for both federal and state governments to alter definitions and eligibility criteria for Medicaid including how they would define persons qualifying with a disability. This will place millions of children and people with disabilities at risk of not qualifying for any coverage. The change will force states to balance their budgets with much less federal Medicaid funding over time forcing cuts to Medicaid across the board. This bill threatens access and support to services for tens of millions of families including those who rely on Medicaid services for their children at school. Also, districts use Medicaid to pay for school nurses, counselors, psychologists and other trained professionals that help all children. These positions and the services […]
The following is a reproduced statement as to the critical need to save Medicaid from Trumpcare. The American Health Care Act (AHCA) jeopardizes healthcare for the nation’s most vulnerable children: students with disabilities and students in poverty. Specifically, the AHCA reneges on Medicaid’s 50+ year commitment to provide America’s children with access to vital healthcare services that ensure they have adequate educational opportunities and can contribute to society by imposing a per-capita cap and shifting current and future costs to taxpayers in every state and Congressional district. While children currently comprise almost half of all Medicaid beneficiaries, less than one in five dollars is spent by Medicaid on children. Accordingly, a per-capita cap, even one that is based on different groups of beneficiaries, will disproportionally harm children’s access to care, including services received at school.
The U.S. Supreme Court just issued a huge victory for parents in resetting the Rowley standard for the first time in more than 30 years. See decision–http://www.scotusblog.com/case-files/cases/endrew-f-v-douglas-county-school-district/. The Court ruled that schools to "meet its substantive obligation under the Individuals with Disabilities Education Act, a school must offer an "individualized education program" reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." While full parameters of this ruling will be played out over years, this decision soundly rejects the minimal standard that the school district argued and raises the standard for an education for students with special needs. Stay tuned as there is certainly more analysis that will be forthcoming.
The U.S. Department of Education in January 2017, just released a very comprehensive guide to transition services. Download Postsecondary-transition-guide-2017-3. Transition planning is one of the most vital functions of having an IEP for all students. An IEP is not an ends in itself, it is a means to an ends–called adult life. Too often schools take a very narrow and parochial view of their responsibilities to transitioning students. Trips to the grocery store several times a week and preparing meals the remainder of the week are too often the beginning and end of transition programming. I firmly believe that students need to master functional schools, but it cannot be one size fits most, and there has to be more content if a student is going to make a meaningful transition to adult life. Parents need to read this guide prior to their next transition meeting and bring it to the meeting to move the discussion towards outcomes and programs that the school will never offer, without significant advocacy from a parent, advocate or attorney. This guide will provide both the legal and conceptual framework needed to solidly ground those arguments. Good luck and keep advocating.
The U.S. Supreme Court just issued a victorious ruling for parents in Fry v. Napoleon Download Fry decision that will open up avenues of judicial enforcement of rights without the need for taking cases through due process first, and then seeking redress in court, provided that the issues presented are not redressable under IDEA. The Court specifically held:"[e]xhaustion of the IDEA’s administrative procedures is unnecessary where the gravamen of the plaintiff’s suit is something other than the denial of the IDEA’s core guarantee of a FAPE." Frequently parents in my office are seeking to bring a separate action in court for denial of 504 rights to access or discrimination under ADA, but are deterred given the need to first have an expensive adjudication in an IDEA due process proceeding. This decision gives the parents another significant litigation avenue to either pursue a hearing or possible settlement. The full scope and ramifications of this decisions will be unfolded as lower courts flesh out this decision but it is a happy day for parents; and goodness knows we could use some good news.
Here is an urgent action alert from COPAA to save ESSA from repeal. ACT NOW – before February 17, 2017! Tell the Senate to vote NO on Resolution to Rollback ESSA Accountability Regulations this week! ISSUE: Congress passed the Every Student Succeeds Act (ESSA) with broad bipartisan support in late 2015. Implementation is not yet underway as states were given time to develop their plans. Unfortunately, last week, the U.S. House of Representatives voted to overturn important regulations made final in late 2016 that assure state accountability systems under the ESSA include key components advocated for by COPAA. If the Senate also votes to overturn the regulations and that bill is signed by President Trump, states will then only be held to ESSA’s statutory language which could result in reduced accountability for all students, including students with disabilities. Senators need to hear from you now! Below is a full explanation of the importance of ESSA.
Judge Gorsuch has served for the last 10 years on the United States Court of Appeals for the 10th Circuit. In this capacity, Judge Gorsuch has heard several cases related to special education and disability, which has enabled those who have analyzed both his concurring and issued opinions to determine how he might rule on such cases should he serve on the Supreme Court. A review of his decisions over this decade-long period shows that Judge Gorsuch overwhelmingly tends to uphold administrative rulings favoring school districts. As pointed out by Pete Wright, however, in some instances Judge Gorsuch has ruled in favor of students. Overall he is no friend to students with special needs. How Judge Gorsuch has ruled on previous disability and special education cases is of critical importance. Fortunately, it is not likely he will be able to participate in the 2 pending cases before the Court. The first case currently pending is Fry v Napoleon, which asks if the exhaustion element applies to a 504 claim regarding the use of service animals. The other case, which is even more seminal, is Endrew F. v. Douglas County School District that is likely to result in clarification and possibly […]
Betsy DeVos, a unqualified and terribly dangerous person for public education and special education even more so, cannot become the next Secretary of Education. Keep in mind once the damage is done it will be very hard and likely impossible to undo the damage. If public schools are drained of funding and the US DOE is defanged of enforcement authority, students with special needs and all students will suffer. As always, wealthier districts will ride out the storm, but all but the most affluent districts will be terribly effected. We need to take a stand for the education of our children. She has shown a near total lack of preparation for this job or understanding of special education law. If enough people stand up, we stand a reasonable chance of defeating this candidate. Let's put the Indivisible Guide to work and make sure a fatal blow is not dealt to public education.
It is difficult enough for young children to be faced with a significant speech impairment like stuttering. As discussed in this blog, the effects of stuttering are often co-morbid with other learning issues. Most children who develop a stutter in their pre-school years fortunately outgrow it. The National Institute on Deafness and Other Communication Disorders states that some 3 million Americans stutter. Stuttering usually develops between the ages of 2 and 6 while language skills are rapidly developing and a child’s linguistic, motor, and emotional capacities are lagging (the so-called Demands and Capacity Model). As a result, approximately 5 to 10% of children will stutter at some point in their lives. The American Speech-Language-Hearing Association reports reports of remission rates vary from 6.3% all the way up to 80%. (The large disparity may reflect the manner in which data was collected.) Boys are affected 2 to 3 times as frequently as girls. Some data that suggest that African American children may stutter more frequently than whites. For those persons whose fluency does not resolve, stuttering can interfere with school, employment, and social milieus and lead to frustration, embarrassment, or anxiety. The worst cases can result in the creation of self-doubt […]