Supreme Court is deciding FAPE case

The supreme Court is in the process of deciding an important FAPE case, wherein they are examining the standard that must be met by schools to be determined that they are providing a free and appropriate education to a child with disabilities.  The courts have struggled with this since the first edition of IDEA was passed in 1975.  They are gone from “more than de minimis  (trivial)” to “a threshold of education.”  This has been a disgraceful standard, when schools are proclaiming “An Excellent Education for All.”  That’s “for all,” except children with disabilities, who only have to receive some mysterious “threshold of education.”

This is the issue of the case before the supreme court, the Endrew F. v. Douglas County case.  While the justices are not likely to agree to the arguments of the parents’ attorneys, that FAPE requires, they seem favorable to a much stronger FAPE definition than is presently current in many federal court jurisdictions in the country.  The parents are arguing for a standard, which holds that the student should receive “a program that is “reasonably calculated to provide” him with educational opportunities that are “substantially equal” to those offered to other students.”  It appears likely that the court will go with something like the government’s proposed language, that the child deserves “a program ‘aimed at significant educational progress in light of the child’s circumstances.’”

My analysis has been strongly informed by the following blog article.

 
Provided by:  SCOTUSblog Case Updates
 
Date: January 11, 2017 at 6:12:47 PM EST
To: <Laurenpeterson11@gmail.com>
Subject: Case Update: Endrew F. v. Douglas County School District
Reply-To: SCOTUSblog Case Updates <caseupdates@scotusblog.com>
 
Case Update: Endrew F. v. Douglas County School District
 
Argument analysis: Justices grapple with proper standard for measuring educational benefits for children with disabilities
At today’s oral argument in the case of a Colorado student with autism, one thing seemed relatively clear: The justices were dissatisfied with the U.S. Court of Appeals for the 10th Circuit’s ruling that school districts can satisfy federal education law as long as they offer a student with a disability an educational program that provides him or her with a benefit that is more than merely de minimis, or non-trivial. It was less clear exactly what standard (if any) the justices might substitute for the “more than merely de minimis” standard, but a standard “with bite” – as Justices Ruth Bader Ginsburg and Elena Kagan put it – would be a welcome development for children with disabilities and their parents.
 
Jeffrey Fisher argued on behalf of the child, known in the litigation as Drew, and his parents, who withdrew their son from public school and enrolled him in a private school after his individualized education program (IEP) proposed goals for fifth grade that closely resembled goals for earlier years. Fisher told the justices that the federal Individuals with Disabilities Education Act required the school district to offer Drew a program that is “reasonably calculated to provide” him with educational opportunities that are “substantially equal” to those offered to other students. Such a standard, Fisher assured the justices, follows directly from the text of the IDEA.
 
Jeffrey L. Fisher for petitioners
Jeffrey L. Fisher for petitioners (Art Lien)
But despite Fisher’s efforts to focus the justices on the text of the statute, they remained skeptical. Justice Anthony Kennedy expressed concern about what new costs Fisher’s proposed standard might impose on school districts, by requiring them to provide additional services, while Justice Stephen Breyer worried aloud about the propriety of the justices – who, he suggested, “don’t know much about” education – creating a standard that could then be interpreted differently by “judges and lawyers and people” all over the country.
 
Chief Justice John Roberts flagged a different potential problem, echoed by Kagan: How would Fisher’s proposed standard work for students who, because of their disabilities, may not be able to follow the general educational curriculum? Suggesting that there is some “flexibility” in the IDEA, Fisher advanced a slightly different version of his proposed standard: A student’s IEP should generally “be tailored to achieve a general educational curriculum at grade level”; if that is not possible, the IEP should use alternative benchmarks that are “the highest possible achievable by the student.”
 
Fisher’s modifications to his proposed standard brought it even closer to the one advanced by the federal government, which filed a brief supporting Drew and his family. Irv Gornstein, who argued today for the United States, emphasized that the IDEA requires a program that is “aimed at significant educational progress in light of the child’s circumstances.”
 
Irving Gornstein, Counselor to the Solicitor General
Irv Gornstein, Counselor to the Solicitor General (Art Lien)
Justice Sonia Sotomayor seemed to summarize the dilemma facing the court neatly, telling Gornstein that “I do think the” IDEA “provides enough to set a clear standard.” But the problem, she continued, is trying to come up with the right words, which will “be less confusing to everyone.” Roberts also pressed Gornstein on this point, telling him that “maybe you have a lot of different adjectives to describe the standard,” but “there’s really nothing concrete there” for courts to review.
 
Gornstein sought to reassure the justices that the steps that the government’s standard would require are “just what most school boards are already doing.” And although he acknowledged the justices’ concerns that a more stringent standard would entangle the courts in educational decisions, he countered that “the response to that is not to adopt a barely more than de minimis standard.”
 
Gornstein’s point seemed to resonate with the justices, who pressed attorney Neal Katyal – arguing for the school district – on his efforts to equate the requirement that the IEP provide “some benefit” with the “more than merely de minimis” standard that he was advocating. Roberts pointedly told Katyal that the “some benefit” requirement was “problematic for you” because the court’s cases specifically indicate that the IEP must provide “enough benefit to keep track with grade progress.” “And if that’s what the standard is,” Roberts continued, “that’s certainly more than de minimis.”
 
Neal K. Katyal for respondent
Neal K. Katyal for respondent (Art Lien)
Breyer seemed to agree with Roberts. Even if the phrase “some benefit” is “ambiguous,” he posited, the IDEA has been amended. When you look at the requirements for an IEP, he observed, “you do see in at least two and maybe more places that the IEP is designed” to allow the child to “make progress in the general education.” The combination of “some benefit” and “make progress,” he concluded, results in a more stringent standard than “more than merely de minimis,” much along the lines of what the federal government has proposed.
 
Katyal appeared to get a little more traction from his repeated reminders that the “more than merely de minimis” standard has been in place, and has worked, for many years, without the courts actually applying “some really low standard.” To require a new standard now, he suggested, would “invite massive amounts of litigation” that would create a “huge morass” for “federal generalist courts.” But some justices were still dubious about the provenance of the “more than merely de minimis” standard, hinting that the standard has no basis in the court’s precedent and was (as Ginsburg put it) instead “invented” – which could make it easier for the justices to replace it with a more stringent standard (like the government’s) that they regard as based on the text of the IDEA.
 
Today’s argument ended with the justices on the horns of a dilemma, as they so often are. Despite excellent advocacy from all three lawyers, there is no clear and easy answer. But they seemed sufficiently unhappy with the “more than merely de minimis” standard that they are likely to strike it down. The standard proposed by the federal government – which would require the school district to offer a program “aimed at significant educational progress in light of the child’s circumstances” – seems to be the most likely replacement, both because the justices regard it as most consistent with existing law and because it comes from the Department of Education, which – as Breyer noted – has expertise in issues related to education and the IDEA. And even if it’s not the standard that Drew and his family are advocating, they would no doubt nonetheless regard it as a significant victory. A decision in the case is expected by summer.
 
View Case

Can a student with a Reading disability have test read aloud?

One of SELA’s advocates posed this question to me.  The advocate, Debbie Campbell, is a practicing Speech Language Pathologist, and very knowledgeable about reading issues.  Often she has to advocate for children with reading disabilities.  She asked me when Florida was going to get to the place that New York has arrived at in allowing the full reading of tests to children with disabilities.

See https://m.facebook.com/story.php?story_fbid=10207956684411192&id=1119845507

Essentially, the above link announces a new educational policy in the State of New York, allowing the testing accommodation of reading the full test to a child with disabilities.  This was a change from an earlier policy where only the directions could be read to the student.

Well the simple answer to Debbie’s question is that it is already possible to have such a reading accommodation for Florida’s students with a reading disability or other difficulty with fluent reading.  This means that a student may have the entire test read to him/her including directions and questions.  It would (in my opinion) be disability discrimination to require a student to read accurately and fluently in order to answer a geography question on Brazil.  We want to test the student’s knowledge, not their ability to read.

In order to access this accommodation it must be placed on the student’s IEP or Section 504 Plan.  School’s are not necessarily going to suggest this accommodation, because it would mean one-on-one testing (so as to not disturb other test-takers) and this is time-consuming and thus expensive.  Still, if the student has difficulty with reading, the student has a right to this accommodation and parents should insist upon this accommodation.

There is an exception to the above general accommodation right.  It does NOT apply to tests, which are, in fact, reading tests.  In other words, if the test is evaluating a student’s reading ability then logically it would be inappropriate to read the test to the student.

The New York policy suggests a new idea, which could remove the requirement of one-to-one testing.  The test could be read aloud through technology.  Today, rather simple and easily acquired, inexpensive technology will read almost any text in a clear, natural voice.  With earphones the student can manage the technology him/herself, reading and if necessary, rereading the test questions.  The technology can even read back the student’s answer.  All of this could be done in a classroom with other students, without disrupting the test-taking by others.

Reading difficulties should not be an obstacle to a student’s academic success.

 

Can RtI delay parent requested evaluations

This is a frequently asked question.  Very often schools will refuse to do evaluations requested by a parent on the grounds that they must first complete the RtI process.  Can schools do this?  Why or why not.

Schools may honestly misunderstand the law in relation to this question.  The Florida Administrative Rules governing special education do require school districts to engage in and complete evidence-based, multi-tiered interventions (RtI) BEFORE proceeding to more standardized educational evaluations.  (See Florida Administrative Code 6A-6.0331 (d)).  In other words, before a district can decide it wants to do evaluations, the district is obligated to complete RtI.

If one reads on, however, the same code section states that if parents request the evaluation, then the school district must gain parental consent within thirty (30) days and then proceed to conducting the evaluations.  In such circumstances it is not required that RtI be conducted first.

(See Florida Administrative Code 6A-6.0331 (d)2)

  1. “The evaluation was initiated at parent request and the activities described in subsection (1) of this rule will be completed concurrently with the evaluation but prior to the determination of the student’s eligibility for special education and related services; or”

The above rule (translated) means that when the parent initiates the request for an initial evaluation, RtI should be “completed concurrently with the evaluation.”  This means that the evaluation and RtI must both be completed within sixty (60) days of the parental consent, but before a “determination of the student’s eligibility ….”  This is a considerably shorter time than if the school does its RtI first and then does the evaluation only after RtI is concluded.  This is particularly true when schools routinely do not respect the sixty (60) day rule for completing RtI.

Did you know this rule?  Has this been helpful?  Let me know your thoughts.

Remember:

  1. Put your request for evaluation in writing.
  2. Be precise about the evaluations you are requesting
  3. Ask to be allowed to sign the consent form immediately.  The law gives the school district’s thirty (30) days to obtain the parental consent, but they are not obligated to take thirty days.  Insist on signing immediately.

Can private evaluators be denied school and classroom evaluations?

When parents seek a private evaluation for their child for use in educational planning, the evaluator will often desire to observe the child in his/her educational setting.  While most schools are completely open to an appropriately scheduled, unintrusive  school observation by a qualified private evaluator, some schools refuse to allow such evaluations.  Thus, the question:  Can private evaluators be denied school and classroom evaluations?

I first posed this question on the Facebook page of Special Education Law and Advocacy and the several replies I received were impressive.  Clearly individuals have faced this issue and have done some research.  While the courts and OCR have waivered a little over this question, I am firmly convinced that such observations cannot be denied.  I have had the opportunity to litigate this issue in a Florida due process hearing against Manatee County.

The Final Order in the due process case, L.H. vs. Manatee County School Board, was 46 pages long, so obviously I cannot provide all of that discussion here.  Below I present some of the reasoning of the Administrative Law Judge (ALJ).

  1. Parents have the right to obtain private educational evaluations for their children with disabilities.  34 C.F.R. 502(c) and FL Admin. Code R. 6A-6.03311 (7)(i)

2. Both Federal and State law require private evaluators to meet the same criteria in conducting their evaluations as the school evaluators must do.  34 C.F.R. 502(e) and FL Admin. Code R. 6A-6.03311 (7)(d). In the Letter to Wessel, 16 IDELR 735 (OSEP 1990) OSEP held that where a public school evaluator is required or permitted to conduct and educational observation as part of its evaluation, then the private evaluator must be permitted to do the same.

3.The School Board relied up the  Letter to Mamas, 42 IDELR 10 (OSEP 2004), which held that local school policy could control access to the school relative to outside evaluators.  It failed, however to mention the language in Mamas, which said:

“If parents invoke their right to an independent educational evaluation … and the evaluation requires observing the child in the educational placement, the evaluator may need to be provided access to the placement.”

4. The ALJ noted that the both the Federal law and the Florida rules require observations, particularly when the issue of a potential specific learning disability is the subject of the evaluation.

5. Following the logic above, the ALJ found that the school district must allow the evaluator to conduct school-based observations.

 

Advocating for Paraprofessional Support 

Obtaining paraprofessional support for children with disabilities is one of the most difficult and trying issues advocates have to deal with.  The costs of such services, as well as possibly genuine concern about the child’s independence may cause schools to have a natural resistance to approving additional paraprofessional help for children.  Some districts require that paraprofessional services be approved by some district committee or administrator outside of the IEP process (see last paragraph).

This article has been drafted to help parents understand the appropriate role of an educational paraprofessional and to better comprehend the process of obtaining paraprofessional support where it is needed.

It is educational support you want – not a paraprofessional:  In the past, during easier financial times for school districts, it was not too difficult to request and obtain one-on-one paraprofessional support for a student who needs it.  Schools routinely wrote one-on-one services onto to IEPs.  Then as money became much tighter many districts began to refuse to place paraprofessional support on the IEP.  Even where they agree in general terms to put a paraprofessional in the classroom, districts tend to refer to “support to the teacher” rather than to the student.  This has caused parents to panic, fearing that their children would not receive their necessary support.

In order to receive direct paraprofessional support today, parents and advocates must approach the issue from a more indirect, but fundamentally educational perspective.  The law requires schools to provide appropriate “supplementary aids and services,” which are necessary for the child to be successful in the “least restrictive environment.” 20 U.S.C. §1412 A (5); 34 C.F.R. § 300.550 to § 300.556.   This means that today the focus of the parent’s request needs to be more on the actual precise educational “supplementary aids and services” or supports that the child requires for successful education, rather than upon the individual who will provide the supports.  Unless the parent or advocate clearly establishes within the IEP the exact nature and extent of the educational supports needed by the child, it is unlikely that they will be successful in obtaining the paraprofessional support sought.

Below I have listed some of the possible educational “supplementary aids and services” that a child might require.  You may think of other supports your child needs.  Some of those listed here may not be appropriate for your child, but they are representative of the needs of many children requiring paraprofessional support.    When I write to the school district or sit in an IEP meeting, I focus entirely on the child’s specific support needs.  This is usually an effective way of signaling that additional educational resources (paraprofessional) must be provided to the child.   Notice the emphasis in the following list upon identifying the frequency, proximity, duration that the support is needed.  (Before trying to use this list, it is important to review each of the suggestions for appropriateness for the specific student).

Educational Supports:  Educationally, the student will require close proximity support and attention.  Some of his/her educational support needs include, but are not limited to:

  1. Frequent, positive reinforcement throughout all activities. This reinforcement needs to be implemented on a very frequent reinforcement schedule (every ___ minutes/secs.) for successful transitions, initiation of tasks, attention and focus on tasks, and completion of tasks.  This will need to be coordinated with his behavior intervention plan (if appropriate).  (I would insist upon having an actually reinforcement schedule and requiring data collection).
  2. Visual prompts and aids. The student requires the creation of and the constant and continual use of visual aids to learning and understanding.  These are an essential part of his learning and functioning processes.  This includes not only a daily visual schedule, but also visual guides for his various tasks throughout the school day and across all settings.  Such guides and aids need to be kept up to date and should be created for each day’s tasks and functions.
  3. Prompts:  The student requires continual and constant prompts and cues.  He is very easily distracted and if ever left to his own, he may immediately “zone out” or busy himself with self-stimulation or other non-productive behaviors. Excessive down-time is educationally harmful for this child.  (I would require data collection on the use of prompts, indicating what type of prompts (visual, verbal, physical) and the frequency of the prompts).
  4. Checking for comprehension:  As the student begins each task someone will check for comprehension and provide redirection as needed. This checking should be repeated several times during the course of the task completion.
  5. Toileting (only if appropriate): The student requires individual attention to help him developing his personal daily help skills and toileting. This requires use of visual guides, schedules, verbal and physical prompts and reinforcement.  I would require data collection on the prompting and success.
  6. Communication: Although the student is verbal he/she requires constant and continual facilitation and prompting relative to his communication.  This is needed to help him channel his communication toward more productive and socially acceptable ways of expressing himself.  He needs active, planned and unplanned facilitation to help him communicate with and interact appropriately with his peers. He needs help with pragmatic language (checking for understanding, explanation of meaning). This needs to be across all settings.  Again, data collection is key.  We need to know how often he is being facilitated in his communications with peers and some information on the prompting being used.
  7. Social/Behavioral: The student requires direct planned and unplanned facilitation in interacting effectively with other students.  Again this facilitation needs to take place frequently and continually across all settings.  He needs the daily and regular presentation of social stories to help him understand social situations and interactions.  These stories will help him understand classroom expectations and to distinguish between appropriate and inappropriate behaviors. We need data collection as to the daily interactions, prompts, etc.
  8. Intense Instruction: Despite his intelligence, the student learns best with high intensity, sequential, behaviorally reinforced instruction, through discrete trials, based on the principles of ABA.  Nathan needs to receive at least ___ hours of this intensive instruction each day. Data collection needed.

You will note that I do not presume to dictate who shall provide the services, but instead stress what must be done to support the child, how often (frequency) the supports must be given, and whether the support must be in proximity.  These services may be provided by the teacher, a classroom paraprofessional, or a one-on-one paraprofessional.  The key is that they be provided every regularly, consistently and at every point of need.

Sometimes IEP teams will say that they can provide these supports, without adding a paraprofessional to the class.  The reality is that no teacher, even with the help of a general classroom paraprofessional could adequately accomplish the list supports provided above.  Insisting upon data collection and review of the data is a good way to verify the actual provision of services.  If there are real questions as to whether these supports are necessary or as to whether the supports are actually being provided, I find it wise to send in an educational consultant to do classroom observations.  Although parents worry that the school will put on “a dog and pony show” for the consultant (which they will), the truth is that it will usually be pretty obvious to a trained observer if the staff are doing things they do not usually do.

The Question of Independence:   Invariably the educators on the IEP team will argue that they do not want to provide one-on-one support for a student because it is important that the child become independent.  This position can be infuriating for parents, who want more than anything for their child to be independent and who resent the school’s self-righteous posturing.  I have listed below some ways to deal with the “independence” argument.

  1. First make a clear statement that you want your child to become independent and to eventually not require the educational supports which are presently essential.  This helps position you as the advocate or parent on the side of working toward independence for the child.
  1. Present an evaluation (from the recommended private evaluation) of the child’s present level of “dependence” upon educational supports.  This evaluation may need to be acquired through an independent or private educational evaluation.  It needs to be precise relative to the exact supports needed by the child, including information about the frequency, intensity, and the proximity of the supports.  Make every attempt to be accurate in this assessment.  Remember that the school is correct in their position that to over support a child is to handicap and reduce the independence of the child.  The key is to provide just enough support to allow the child to be successful, but not so much as to further handicap the child. This is where I often use the “learning to ride a bike or swim” analogy.  Training wheels for a learner bike or a kick board for learning swimming are appropriate supports and when they are no longer needed we fade them away.  On the other hand we do not throw children who cannot swim into the deep end of the pool in order to make them independent swimmers.
  1. Consider placement issues.  It is ironic that sometimes the only way to obtain the supports the child needs is to move the child from self-contained, supported classrooms.  Most school districts consider self-contained, supported (having a paraprofessional assigned to the teacher) classrooms to be adequately supported and thus in many cases they absolutely refuse to increase the levels of support in the classroom.  Too often, the reality is that such V.E., Autistic, or other specialized classrooms do not provide sufficient individual supports for students.  These classrooms often manage the students through the presentation of low expectations, low demands, and allowing excessive “down-time.”   One can argue very well that, in fact, these classrooms make the students dependent on the educational delivery model and make them ill-equipped to function in general society.  Sometimes the only way to obtain the proximity, high-level support some children require is when those children are mainstreamed out of the school’s self-contained units.
  1. Insist upon appropriate and trained support.  Children with disabilities do not need a paraprofessional to continually hover over them, excessively prompting them.  They need well trained individuals who have learned appropriate prompting techniques and who are careful to bring their support to the child only at the child’s carefully determined point of need.  Knowledgeable experts should design the prompting techniques and should continually monitor the delivery of support services.  All prompting and educational supports need to be designed to be scientifically and carefully faded over time.

From the above, you can see that just getting some paraprofessional time with your child is not sufficient.  A poorly trained paraprofessional could actually harm you child’s progress toward independence.  This is why the common school practice of “covering” the child with various individuals, who happen to be in the classroom at different times, cannot work.  Responsible and professional support of a child with disabilities requires child-specific training in appropriate prompting, data collection, social facilitation, language facilitation and academic coaching.  The issue is not so much how many different individuals are used to support the child, but the level of training, knowledge of the child’s support needs, and coordination of the effort.

Getting the support into the IEP:  When IEP teams agree to reference to a paraprofessional on an IEP, they will almost always place the reference in the “supports to the teacher” portion of the IEP.  Their logic is that the teacher is the person directly responsible for delivering education to the child.  The teacher may use the paraprofessional in the educational delivery, but the paraprofessional is for assisting the teacher – not the child.

This are just word games as far as I am concerned.  I have no problem with how the school describes the paraprofessional support it is going to provide, as long as the child is guaranteed very clear and specific support on his/her IEP.  The fact is that just checking a box or writing in paraprofessional support on an IEP does not guarantee the sophisticated kind of support many children need.  For this reason I feel that it is important to insist that somewhere on the IEP the IEP team agrees that the child needs a defined list of supports (similar to the list I have provided above), which list clearly specifies the supports in terms of frequency, intensity and proximity.

When I say this defined list of supports needs to be on the IEP, this can be done in a number of different ways.  Most IEP forms do not provide a place for precise and detailed information about the “supplemental aids and services” a child may need in order to succeed in the least restrictive environment.  The accommodations checklists generally provided do not present either the detail or the full substance of what is needed.  In addition, many schools suffer from “formitis:”  a bureaucratic malady, which paralyzes all ability to do anything that is not on “THE FORM.”

Actually, the IEP may include by reference an agreed to, detailed, listing of the specific supports that the child will receive, including prompting, social and language facilitation, reinforcement, behavioral supports, etc.  Alternatively, this information may be put on an IEP conference form.  While I have heard uninformed school administrators claim that if something is not on the IEP Form, it is not on the IEP, this is simply not true.  Conference notes or an agreed list of services should be referenced on the IEP form and made part of the IEP.  I recently won a due process case where the judge (ALJ) was very upset because the school had failed to implement items which it had agreed to on a conference form.

Finally, it is improper for IEP teams to defer to any other committee or administrator on the question of paraprofessional support.  If an IEP team refuses to make the “need” determination, claiming they are required to defer to another committee or administrator, I would ask them to put that policy in writing.  If the IEP team persists in refusing to make the determination, then I would ask for an “Informed Notice of Refusal.”

Mark S. Kamleiter, Esquire (727) 323-2555

 

Choosing the right attorney

In my previous blog, I wrote about how to know when you need an attorney to handle problems or issues related to special education.  I would add that one might even consult with an attorney, as one would with an educational consultant, not because there is a known problem, but just to access the  expertise and guidance of a professional who is experienced and knowledgeable about special education.  In this blog I would like to discuss with you how one may go about choosing the right attorney.

The first challenge is finding an attorney in your area or who is willing to work in your area even if she/he is not in your immediate locale.  One of the best ways to locate an attorney is always by word of mouth.  When a friend recommends an attorney, you not only locate the attorney, you get a recommendation and if you ask questions you can gain a lot of information about the attorney and the way he/she functions.  The truth is, however, that you may not know anyone who has used a special education law attorney.  What do you do then?

When I am trying to find an attorney or advocate in another state so that I can make a referral, I go to http://www.copaa.org .  The Council of Parent Attorneys and Advocates (COPAA) is a fantastic national organization for parents, advocates, and attorneys who advocate for children with disabilities in public school.  (Disclosure:  I have been a member and board member for this organization for years)  If you go to their website and look around you will discover a function called an “attorney finder.”  If you enter the name of your state, you will get a list of attorneys and advocates, who do special education law.  There are also some attorney referral organizations such as Avvo, which will help you find an attorney.

Some states, like Florida, will have an organization like COPAA, but is founded to support attorneys in that particular state.  In Florida, we have the “Florida Association of Special Educations Attorneys.”  This is an informal association for attorneys in Florida, practicing special education.  The association has a Facebook page, which can be found by putting the name in your Facebook search box or simply going to the following link:  https://www.facebook.com/Florida-Association-of-Special-Education-Attorneys-195577053816539/?fref=ts .  This Facebook page has a list of Florida Attorneys who practice special education law in Florida.

Of course one can use the old stay-by, “Google.” Just put in “special education attorney, Florida” (or whatever state you are in).  I recently tried this out and firm, Special Education Law and Advocacy was the sixth entry from the top.  The other five were Florida’s P & A, Disability Rights and the Florida Department of Education. I did not look further down the list, but I assume that one would find the other Florida spedlaw attorneys.  Even with all the above information, one may not have a selection among possible attorneys.  Some regions or countries have no attorneys who know special education law.  In such cases, one would have to seek a firm that is willing to cover a region or even the entire state.

So far I have only discussed how to FIND an attorney.  This leaves the question, if you are fortunate enough to have a choice of attorneys, how do you chose the attorney who is the best for your situation?  In such case, I think there are several criteria to look at, including experience in special education law and knowledge relative to the education of children with disabilities.  If there is a possibility of litigation, how many cases has the attorney tried?  The Bar does not want attorneys giving percentages of win/loss, but it is fair to ask about cases the attorney has won and about cases the attorney has lost.  Consider some of the other factors:

  1. Does the attorney know the “players” in the school district and how successful is he in working with these individuals?  Clients often ask how I manage to resolve their issues so quickly and I often respond that I can do it because I know who to speak with in the district.  It is often who you know in the district, that allows resolution.
  2. Does the attorney seem to be a problem-solver and an apt negotiator?  Litigation is rarely a good solution for resolution of special education problems.  It is almost, always better to reach a negotiated resolution and for that you need someone who is capable of problem-solving in collaboration with the school.
  3. Can he/she think “out-of-the-box?”  Many school problems cannot be resolved by a head to head confrontation.  The attorney who can find unique solutions is going to help you resolve your issues.
  4. Does her/his personality suit your own and do you trust the attorney?  Sometimes the client is so hurt and betrayed that they do not even really trust me to do the right thing.  Client/Attorney relationships must be based upon trust.
  5. Is the attorney an experienced and successful litigator.  While I do not see litigation as the best solution in most cases, it is essential that the attorney be a capable litigator for those time where litigation is the only solution.  Ironically a reputation as a good litigator, is often the factor that allows an attorney to find resolution, without litigation.
  6. Is the attorney “aggressive” enough for you.  Sometimes clients come to me and they want me to be angry and aggressive – but – that is not the way I function.  That client would not be happy with me.  Other clients want someone who is professional and firm, but who can work through to resolution, without offending or fighting with the school.

Finally, one must consider the COST or the fee rate for the attorney.  I have been doing this work successfully for over twenty years and I am Board Certified in Education Law.  For that reason, my fees are probably higher than a younger, less experienced attorney.  There are some cases that require my expertise and influence, but other matters may easily be handled by an attorney with less experience.  The trick is to retain an attorney who can adequately handle your matter, obviously with the least cost.  This is why at SELA we try to have advocates and lower cost attorneys available.  This allows us to match the advocate or attorney to the task to be done.

I hope this helps those looking for an attorney for special education issues.  I you have questions or comments, please do not hesitate to join the conversation.  You have my best wishes for an effective resolution to whatever problems or issues you may have.

Mark S. Kamleiter, Esquire

 

 

 

When do you need an attorney?

Thanks to Christopher Duncan.  He has suggested a first topic for our Blog, “Conversations on Special Education Law and Politics.”  He asked two questions really.  The first was, how does one know when he/she requires the services of a special education attorney?  The second, may be every bit as important, “What do you do, if you need an attorney, but cannot afford one?

These are important questions and I am aware that many people anguish over the first question before they ever call my office.  I start my answer by saying that parents should not need to resort to a special education attorney.  The public schools should be dedicated to providing first class, best practice education to children with disabilities.  When there are flaws in the provision of these service, the public schools should be the first to act to correct the flaws.  Those are the “shoulds” and if these things would actually happen, parents would not need to seek the help of an attorney.  But far too often they do not happen. Furthermore, school districts have in the past been very oppositional and even adversarial  to parental advocacy.  That was very much the special educational environment when I first began my special education practice.

In fact, I had no intention of practicing special education law, when I left teaching and my work as a behavior specialist to open a law practice in Florida.  But parents soon learned that I knew education law and they began to come to me out of desperation.  Soon this educational practice, because the need was so great, pushed aside all the other types of law I was practicing.  Now this work is all I do.  Today, this great need keeps three SELA (Special Education Law and Advocacy) attorneys and five educational advocates very busy.

But the question remains, how does one know its time to call or contact an attorney?  First, let me advise that it is never a good idea to call an attorney in anger.  Now, it is okay be have righteous anger because of the way your child has been treated or has not been cared for, but do not let that be your driving force in calling an attorney.  In fact, I would say that far too often I have seen parents allow their anger to so overwhelm their efforts, that their own child loses as a consequence.

The decision to seek out an attorney should be a calm, rationale decision.  Answer these questions: (1) Does the school or school district show any willingness to collaborate and work with you?  (2) Are they honest with you and are they willing to explain your child’s educational rights to you? (3)  After a period of effort are you making any progress to ameliorating your child’s situation?  (4)  Is your child in any danger in his/her present educational environment (emotionally, socially, physically)?  (5)  Is the school being unnecessarily or unreasonably punitive in its treatment of your child?  (6) Do you understand your child’s educational needs and if not, do you trust the school to properly inform you?  In the same vein, does the school have a clue as to what your child requires educationally?

I could suggest many more reasons to seek help, but I think the point is made that your child’s education and emotional well-being is so important that if any of the above are applicable to your situation you need help.  That does not necessarily mean that an attorney is required.  I have the greatest respect for the many educational advocates in Florida and they can very often help a parent meet many of the above listed challenges.  In fact, we have incorporated this concept in SELA.  Most of our clients opt for using a mix of legal and educational advocate services available in SELA.  With our attorneys actively involved in these cases, alongside our educational advocates, our clients have the benefit of accessing legal counsel and influence as needed, with much of the work being done by educational advocates.  This model of services allows us to serve more families and helps families keep the costs down.

Finally, if you find the “right” attorney, you do not need to worry about escalating problems at school.  An experienced educational attorney or advocate should be able to firmly press for what your child needs, without being offensive or antagonistic.

In other blogs, I will address the question of how to select the right attorney or advocate and also what to do if you do not have the finances to afford an attorney.