April 19, 2017
SCHOOL CHOICE FOR CHILDREN WITH DISABILITIES
There has been a lot of discussion recently around the issue of school choice in Ohio. At present, there is a proposal pending in the Ohio Senate Education Committee (Sen. Bill 85) to create additional vouchers for non-disabled students to attend private schools of their choice. There is not expected to be any impact of this proposed program on the availability of school vouchers for students with disabilities. As to the impact it will have more globally, we cannot say, though there is concern that the exodus of students from public schools would result in greater segregation for students with disabilities who may not have all of the same options.
Ohio currently has two voucher programs serving students with disabilities-the Autism Scholarship program and the Jon Peterson Scholarship program. The Autism Scholarship program allows parents of students with an IDEA classification of Autism to receive up to $27,000 per year to pay for private services by an approved provider(s). The Peterson Scholarship allows for varying amounts depending on the child’s eligibility category under the IDEA. The information about qualifying and application is available on the Ohio Department of Education’s website.
Articles published recently in the New York Times and elsewhere have highlighted the ups and downs of vouchers. Regardless of where you stand on school choice, parents need to be aware of the consequences of their decision to obtain a voucher for their child. In Ohio, parents who use either one of the scholarship programs agree to give up their child’s right to receive a free appropriate public education from their local school district. That means that if you are unhappy with the choice you made regarding the private voucher provider you are using, you will have no recourse to proceed against your school district as you would if your child were in public school. The purpose of the scholarship programs was to allow parents a choice of programs in exchange for which they have given up the right to FAPE.
What about your rights vis-á-vis the voucher school? What rights do parents have to proceed against those schools in the event they violate the child’s rights?
First, parents should always be careful to read the contract they enter into with the private school. That document will govern much of the relationship between the parents and school. Make sure you understand the policies regarding admission, classroom placement, service provision, contract renewal and discipline. Schools receiving voucher funds (and even those that are not) may still be required to comply with the Americans with Disabilities Act, which would require them to make reasonable accommodations for a student with disabilities. So if your child is in a private school, and the school fails to renew your child for the coming year based on his or her disability, you may have a claim against them in the event the school has failed to make reasonable accommodation.
Autism Scholarship students, at least until Ohio changes the law, may have a third party action against a voucher program in the event the program fails to provide a free appropriate public education. That is because at present, the law requires autism voucher schools to comply with all the laws governing the education of children with disabilities, including the IDEA. That provision of the law is under consideration and will likely be removed. This provision is not present in the Jon Peterson Scholarship law.
What if your child is abused or gets injured as the result of someone’s behavior at school? You can sue a private school as well as the individuals who work there, for negligence. This type of action is not afforded to students who attend public school where simple negligence cannot be alleged against either the school district or its staff. Again, however, the contract you sign with the school may limit your rights so be sure to check it carefully.
What if your child is excluded from the private school? Again, many private schools must make reasonable accommodation for students with disabilities. However, a private school need not make substantive changes to its program to make it suitable for your child, so a voucher program can choose the students they believe are best suited to their program. Even if they accept voucher money, they do not have to admit your child with a disability if your child does not meet the admission requirements of their school.
What about a civil rights action for discrimination against a private voucher program? Voucher programs cannot discriminate against students on the basis of race, color or nationality. They may, under certain circumstances, restrict students by gender and religion. Most private schools receive some federal funding, and that is certainly true of voucher programs for students with disabilities.
If your child is the victim of bullying by another student or students, you may have an action against the school for failing to protect them. However, most of the time those matters are better handled by the Office for Civil Rights (“OCR”) rather than in an action against the school. So long as the school receives some federal funding, the OCR may receive complaints about it. Those complaints can be filed online without assistance from a lawyer.
The school choice programs in Ohio have afforded parents many more options than they otherwise might have had. Remember though, that parents need to be educated consumers. Not all programs are created equal and some are better than others. Not every program is designed to meet every need. There is not a lot of accountability in Ohio regarding the quality of individual programs, so do your homework to make sure your scholarship dollars are well spent.
June 5, 2017
WHAT IS A DUE PROCESS HEARING?
Most parents are aware that when they have a dispute with their school district, they have various ways in which they can pursue a remedy on behalf of their child. One of those is to file a due process request. Due process in the special education context is an administrative proceeding that begins by filing a complaint with your superintendent. This complaint generally requests a hearing before an impartial hearing officer appointed by the Ohio Department of Education (“ODE”). Hearing officers in Ohio are attorneys who have specialized knowledge in matters relating to special education law. They are not employees of the State.
A due process complaint is basically a lawsuit against your school district; it is just not filed in a court (at least initially). Such complaints must contain specific information in order to be deemed “sufficient.” You can check the requirements for a complaint here. (http://education.ohio.gov/getattachment/Topics/Special-Education/Dispute-Resolution/Due-Process-Complaint-and-Request-for-Due-Process-Hearing-2-28-17.pdf.aspx) . The school district has 15 calendar days from the date of the hearing request to convene a resolution session with the parent to address the issues raised in the due process complaint. Resolution sessions are similar to IEP meetings as far as who should attend. There are no third party mediators or hearing officers at a resolutions session. Parties may also request mediation which is an informal means of dispute resolution facilitated by a third person appointed by ODE. Mediation is voluntary and must be agreed to by both sides. Parties may have resolution or mediation or both, but if the school district demands a resolution session, the parents must attend or they cannot proceed to a hearing. Mediators do not make decisions for either party. Their role is to broker an agreement that will be acceptable to both sides.
If the parties reach agreement at resolution or mediation, a written agreement must be entered into and signed by both parties. The due process case will then be dismissed. If no agreement is reached, the hearing officer appointed to the case will set hearing dates. The due date for a decision by a hearing officer is no more than 75 days from the date the due process is filed. Either side can request an extension of the decision date, which is a common practice in this area of the law simply because the timelines are so restrictive.
At least five business days prior to the start of the hearing, the parties will have a disclosure conference where they must disclose all the documents they intend to present at the hearing, and provide the hearing officer and the other side with a witness and exhibit list. Due process hearings are frequently held on nonconsecutive days and sometimes occur over a period of several months to accommodate the parties’ schedules. The length of a hearing depends on the complexity of the issues, (and the verbosity of those presenting the evidence). Hearings are just like trials you may see on T.V.- each side can compel the attendance of witnesses through a subpoena issued by the hearing officer, and there is examination and cross examination of witnesses, evidentiary objections, etc. Most hearing officers require a legal brief from each side after the hearing to argue the relevant law and show how it applies to the facts that came into evidence at the hearing. While it is not necessary to have a lawyer representing you at a hearing, most parents would be smart to consider retaining one as the complexity of these proceedings makes it difficult for most parents to navigate. The special education laws permit parents who prevail at a hearing to recoup their reasonable attorneys’ fees from the school district.
The hearing is transcribed by a court reporter and each side will receive a copy. The district must pay for the parents’ copy of the hearing transcript. After briefs are filed with the hearing officer, the hearing officer will issue a written decision within the time frames allowed or agreed to by the parties. Either side may appeal a hearing officer’s decision to a second tier administrative hearing officer within 45 days of the decision. Sometimes each side will prevail on some issues but not others so it is possible for both sides to appeal. The second tier in Ohio consists of a state level review officer who receives the record of the case, generally has the parties brief the issues remaining, and issues a decision within 30 days. Again, extensions are often requested. These second tier hearing officers may request a brief but usually do not allow additional evidence in the record beyond what was already admitted at the hearing. Once the state level review officer has issued a written decision, either side may seek review in federal or state court.
The decision to seek a due process hearing is not one that should be made lightly. Due process hearings are very labor intensive and time consuming. Preparation is key, particularly since Ohio does not permit any depositions or other pre-hearing discovery. You will not know what is going to come out in evidence until you are in the hearing. Many parents feel as though they want their day in court. But litigation is expensive, and is to be avoided unless there is no other option for the student. Some attorneys, including those in this office, will take some cases without payment, but the ability to do that will depend on the strength of the case, anticipated cost of experts and time available. Most attorneys charge a flat rate and will agree to try and collect the remainder of their fees if they prevail.
Finally, parents who pursue due process need to know that if they or their attorney files a claim that is found to be frivolous or filed for an improper purpose, the school district can seek fees against them and their lawyer. Generally, it is very difficult for districts to obtain fees under this provision as the evidence necessary to prove that a claim was frivolous is quite high, as it should be. But this provision should give parents pause about pursuing claims on their own.
When deciding whether to file a due process, ask the attorney about their track record. How many hearings have they had? How many were successful? How much will it cost? How long will it take? And most important, is what the student will be getting worth the time and expense of fighting
JULY 25, 2017
DO I ABSOLUTELY, POSITIVELY HAVE TO HAVE A LAWYER?
This is a question we often have to address with folks who call us. And the majority of the time, the answer to that question is "no," a lawyer is not absolutely necessary. When parents are unhappy with their child's program, and most particularly where the trust in the school district has eroded, calling a lawyer can be a knee jerk reaction. For many, that response seems warranted because they believe the school district is no longer listening to them, and that the presence of an attorney will make them sit up and take notice. Certainly, the presence of a lawyer changes the dynamic of discussions with a school district. IEP meetings become more formal, and generally the school district will have its lawyer present for those meetings as well.
But having a lawyer may not always be the best option. Aside from the expense of hiring an attorney, there are other things to consider. One of those is looking at the issues parents are having. If, for example, the principal concern is that the parents feel overwhelmed, and are unable to articulate their concerns to the team either because the laws are too difficult to navigate, or because anxiety gets in the way, parents should consider using a lay advocate to assist. Lay advocates are common in Ohio and there are many who are skilled in assisting parents to understand what their rights are and how to advocate. Lay advocates often attend meetings and speak for parents who may be unable in that situation to adequately identify the specifics of their concerns.
When choosing a lay advocate, be sure and inquire as to the person's experience, and ask about their fees. Different advocates have different approaches so be sure the one you choose shares your style of communicating. If you want to be cooperative, and you go into a meeting with someone who has an aggressive or combative attitude, that person may not be the right one for you. Anyone who does lay advocacy should have insurance, and should look and act in a professional manner. Lay advocates are not lawyers, and under Ohio law, they are not permitted to advise you as to your legal rights. That is a rather fuzzy line in special education, but be aware that when you sign something, whether it is an IEP or a mediation agreement, that is a legal document and only an attorney can advise you as to how it will impact your – or your child’s - rights. Lay advocates should be attuned to when they themselves have reached a point where a lawyer is necessary to assist the parents.
Even when parents are in dispute with the district, lay advocates can assist in the filing of a complaint to the Ohio Department of Education. Many lay advocates have extensive experience in filing complaints, and that is one way to resolve disputes in a reasonably efficient and inexpensive manner. But be cautious if you engage in mediation. At mediation, parents are asked to enter into legally binding settlement agreements and many include clauses that release legal rights. You should not do that without consulting a lawyer. Most school districts who draft mediation agreements will include a general release of liability, and parents may not understand what they are giving up, or what they are getting in return. Often when we see mediation agreements signed without an attorney, the problems are too late to fix.
Some disputes, though, do require a lawyer, but only a lawyer can tell you that for sure. Generally when a parent is going to file a due process, they are better off to have an attorney. A lay advocate in Ohio is not permitted to appear at a due process and represent a parent at a hearing, though they can certainly attend and assist. Due process hearings are essentially bench trials, and most parents will significantly increase their chances of prevailing if they have an attorney. Additionally, parents face the possibility of having to pay the legal fees of the school district if the district prevails at the hearing and the claims brought in a due process request were for an improper purpose. Attorneys will advise you as to your potential liability for fees under those conditions.
Other considerations include what to do when the school has brought in their attorney. Many lay advocates are comfortable appearing at meetings where the district's attorney is present. Others are not. Parents need to decide where their comfort level is, and whether they feel the need for their own counsel.
In the end, parents are often left to determine whether they are better off spending their money on their child, or better off spending it on a lawyer. Generally speaking, the answer will usually be the former. For parents who cannot afford a lawyer, many of us in Ohio will, and have, represented parents without expectation of payment unless the parent prevails and fees can be recovered from the school district. Finally, some cases have components that go beyond the special education issues and may impact the child's, or the parents', civil rights. While parents do not need an attorney to file a complaint with the Office for Civil Rights, filing a complaint in federal court in a civil rights action will require a lawyer.
Most lawyers in Ohio work cooperatively with lay advocates, parent mentors and others. Don't hesitate to call an attorney if unsure about whether one is necessary. Any good parent attorney will provide you with an assessment of the matter that will reveal the best, and most cost effective, way to proceed.
August 24, 2017
WHEN YOUR DISABLED CHILD IS BULLIED
With the start of the school year, parents always face new issues. A new school year can bring new teachers, new students, new staff, new schedule, etc. But whether your child is 5 or 15, bullying is something that continues to be a significant issue for kids with disabilities (as well as for kids without).
What is bullying? Bullying is any verbal or physical harassment of a student for any reason. From the legal standpoint, bullying can become actionable when it is severe, pervasive or objectively offensive. But a parent or child need not show that bullying is a result of disability. It is not relevant at the school level what the reason for the bullying may be. It is relevant if it is happening to your child. Bullying can be subtle and some impressionable students may not even be aware they are victims.
What should you do if your child is bullied? First and foremost, you must talk to your child, and make sure your child knows how important it is to talk to you. Most kids who are bullied do not speak to their parents about it for fear it will only make the situation worse. Parents need to look for changes in their child's behavior, including reluctance to go to school, depression, or other anti-social behavior. If the child has communication impairments, parents may need to go to the school to observe the classroom in order to determine what is going on. Teachers often miss bullying behaviors as children who bully develop strategies for engaging in bad behavior when the teacher is out of sight or earshot.
Parents must document to the school each and every instance of the bullying. If the child is afraid or is experiencing severe anxiety, parents need to call an immediate IEP meeting. Bullying implicates a child's right to receive a free appropriate public education. If a student is afraid or anxious he or she cannot benefit from their FAPE. Accordingly, it is the responsibility of the IEP team to address the issue of what the school district can do to assure the child receives the benefits of his education. That might require schedule changes either for the victim or the bullies. Accommodations or modifications to the child's program should be documented in the IEP. Some students may require an escort or other aide at certain periods of the day.
If bullying continues, parents have other options. If bullying is physical, a police report should be filed. If necessary the child can seek a protective order from the juvenile court. Such an order would require the bullies to stay away from the student including at school. A letter can be sent to the parents of the bullies notifying them of their potential liabilities, including for damages.
As a last resort, students may need to be removed from the environment and either placed elsewhere or at home. There is no benefit to making a child go to school where bullying is occurring. Unfortunately, while most schools have anti-bullying programs in place, there is little hard evidence that such programs work. In fact, some studies have shown that bullies learn from these programs how to hide their bad behavior which can actually make the situation worse.
Parents of children with disabilities have other options as well. Bullying on the basis of disability is a civil rights violation and parents can file a complaint with the Office of Civil Rights. The complaint form is online and you do not need a lawyer to complete it. The ability to bring a civil rights lawsuit against a school district for bullying is more difficult. At that point, it would be imperative to show, in a discrimination claim, that the bullying was on the basis of disability in order for the case to be viable. Even then, there are other requirements that must be met in order to establish liability of a public entity for acts of a third party (where the bullying is peer on peer). There may be other claims as well, so if you are not sure, seek the help of a lawyer.
For parents who have sent their children to private school or scholarship provider, the ability to challenge the school in those situations may depend on the terms of your tuition agreement.
Bullying continues to be a problem in our schools. Anyone who tells you otherwise is whitewashing. Bullying occurs in schools regardless of whether they are in affluent or poorer school districts, and it impacts children with a variety of disabilities. Don't let this happen to your child. If you suspect there is a problem, there probably has been one for some time.
STUDENTS WITH DISABILITIES IN JUVENILE COURT FOR BEHAVIOR ISSUES
Back in March, we discussed what to do if your student with a disability ends up in juvenile court for attendance issues. Unfortunately this is all too common. However, even more common are those circumstances where students end up in juvenile court for behaviors that occur at school, or at a school related event (e.g., football game, bus transport, field trip). Where a student's behavior is related to his/her disability, the consequences for the behavior become a special education issue.
Here's a real life example: Student is an international adoptee. She was born with fetal alcohol syndrome, and suffered abuse and neglect for most of the first years of her life. She has chronic PTSD, together with medical issues related to her early years. Student was not adopted until age 10. After starting school in the U.S., student was placed on an IEP but no behavior goals were included. Over the first three years in school, Student's behavior gradually escalated, but school district never took any action to address behaviors clearly related to her disability. School district decides it cannot deal with Student, so it arranges to send Student to a County program for students with behavioral needs. At the time Student starts school, no IEP or ETR has been sent to County program. No information about Student's profound trauma needs was communicated to teachers, though parents had warned administrators that Student could not be restrained or placed into seclusion room due to past history of abuse, which included having been locked in a closet. On third day of the new program, Student is noncompliant and is told she will be restrained and placed into seclusion room. Student warns teachers not to put their hands on her, but they pay no attention and she punches them and injures one. Student is arrested and charged with several felony offenses.
This situation is extremely common, and it should be obvious to any thinking person that this situation is not the fault of the Student. Unfortunately, that is not always the case. So what can a parent do?
The best approach under these circumstances is to immediately file a request for a due process hearing detailing why the school district's failures ultimately resulted in the behavior that brought the child to the juvenile court. Not every case involving a student with a disability can be handled this way. However, if the behavior occurs at school or at a school function, the first place to look is at the child's IEP. If the student was regularly having behavior issues that went unaddressed, then seeking relief in a due process hearing is likely to get the best result.
I generally advise the school district and the prosecutor that the situation presents an educational issue, not a criminal one, as it was the District's responsibility to take some action to prevent the Student from escalating. In almost all of the cases, the prosecutor's office has agreed to drop the charges, including in the case described above. Educating those who practice in juvenile court is essential to assuring that students with disabilities are not punished for behaviors over which they may have little or no control, and particularly where the situation could have been averted if the school district had not violated the child's right to receive FAPE.
In most of these situations, school district personnel appear front and center in the juvenile court to assure that the child is prosecuted. I have never heard of a school district, which is not a party to the criminal proceeding, being ordered to show up at an arraignment, but yet there they are. Filing a due process, and in some circumstances, a civil rights action, holds the district accountable for its failures, while educating court personnel regarding the special education issues presented by the facts.
In most cases, the Student will need an attorney for the criminal proceeding, as well as for the educational one. Again, many public defenders and other criminal defense attorneys have little knowledge or understanding of special education laws, or about particular disabilities and how they impact students' behaviors. They too require education by the parents and the student's advocates.
Finally, creating an IEP for the student that appropriately addresses the behavior issues goes a long way toward convincing prosecutors and judges that the matter is better off handled by the district and parents than through resources available through the Court. Judges like to know that there is a plan in place to assist the Student so that the Student will not end up in the Court again.
The juvenile courts are not meant to be a shield behind which school districts may hide when they have failed in their obligations under the laws that govern the education of children with disabilities. If your child has been denied FAPE, and is involved with the juvenile court as a result, you should take action immediately to assure that your child is not punished for having a disability. Juvenile detention is generally a poor place to educate a child whose disability includes challenging behaviors.