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Celebrate the IDEIA: A Global Perspective

September 28th, 2012

By Marion M. Walsh, Esq.

As we begin a new school year, we must all remember that the Individuals with Disabilities Education Improvement Act (“IDEIA”) is a revolutionary civil-rights statute, unparalleled in any other country or at any point in history. In re-enacting the IDEIA in 2004, Congress found that:

Disability is a natural part of the human  experience and in no way diminishes the right of individuals to  participate in or contribute to society. Improving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities.

A glimpse of other countries offers a different picture.  This past year, my daughter traveled in Kolkata, India to volunteer for Daya Dan, an orphanage for  children with disabilities run by the Missionaries of Charity.  My daughter tutored a boy who was approximately 11, who was just leaning his letters and to read, but had no formal diagnosis, no formal teaching, except the volunteers and the nuns.  She tried multi-sensory techniques, sang songs about the letters of the alphabet and helped him with writing and art projects.  He grasped a lot but became easily frustrated.  Yet he was one of the lucky ones, since he had attention, care, shelter and food. But an IEP?  Special education and related services provided all school year?  Not a chance.    By some estimates, only 2% of children with disabilities in the world attend school, with the remaining 98% excluded.

As Americans, while we are rightfully critical of much of our educational system, we should be proud of our progress.  The IDEIA findings note that, before the date of enactment of the Education for All Handicapped Children Act of 1975, school districts were not meeting the educational needs of millions of children with disabilities because, among other reasons, the children were excluded entirely from the public  school system and from being educated with their peers or  undiagnosed disabilities.  The law has been successful in helping to ensure that children with disabilities and the families of such children have access to a free appropriate public education and in improving educational results for children with disabilities.

Of course, we have a long way to go.  Because the IDEIA represents a model for the world, we have to make sure it is working.  Appreciation of the law does not mean that we should not continue to advocate for its continued improvement or settle for less than strict compliance and meaningful progress.  Clearly, the implementation of the IDEIA has many challenges, but let us not forget how fortunate we are to live in a country that protects the educational rights of every student and sets an affirmative duty on every school district in the country to identify students with disabilities and provide a free appropriate public education to each student identified.  In fall 2010, I heard former New York State Education Commissioner David Steiner speak, who described the IDEIA as a model and envy of the world and noted that no other country went to such lengths to protect the substantive and procedural rights of its most vulnerable students.  He stated that in his view, every child should have an IEP.  This is a vision worthy of contemplation.  However, given the political environment, as exemplified by the New York State tax cap and the burdens on schools in doing so, it seems unlikely that such legislative measure would pass.  Still, the IDEIA creates a model of differentiating instruction and serving all student needs. It also important to remember that the IDEIA protects every child and every parent, because, disabilities can develop or become identified at any point during a child’s educational career and every child needs a safety net.

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Trailblazers at the JCC

September 24th, 2012

Trailblazers at the JCC

By Robin Gersten, Director of Programs for Enhancing Potential, Rosenthal JCC

Locating appropriate after school options for children with special needs has always been a challenge.  Typical day care environments are very hectic and often unstructured.  Organized sports programs do not offer the high degree of support needed, nor do other classes typically developing peers partake in such as dance or martial arts.

As a social worker in a special needs preschool program prior to taking my current position, I would often hear from the parents of graduates looking for a “good fit” for their child after school.  Many had been asked to leave varied day care situation or parents found that classes being offered in the community did not meet their child’s needs.  I found myself hard pressed with regard to where to direct them.  Thus began the thought of developing an after school program to meet the complex set of needs presented by these children.  Upon assuming my present position as the director of Programs for Enhancing Potential for the Rosenthal JCC in April, my first order of business was to develop such an after school option.

Trailblazer at the JCC is a very unique after school social skills program for children with special needs.  Staffed by a certified special educator and assistant, children kindergarten-5th grade from local school districts are able to be transported to the JCC after school.  One-to-one support is available as needed. The children will participate in a variety of “organized” free play opportunities both within small groups and if appropriate, within the larger after school program.  Homework help will also be provided.  As a wrap around program, communication will be maintained with school personnel and other program providers.  Children may attend the program 2-5 days weekly and pick up is flexible, between 5:30-6:30pm.

It is exciting to be able to finally have an appropriate option for special needs children within the community and the program is already getting rave reviews.  For more information do not hesitate to contact Robin Gersten, director of Programs for Enhancing Potential at (914)741-0333 ext 28 or robin@rosenthaljcc.org . To read the full flyer from the Trailblazer Program, click here. For additional information regarding special education services or special needs trusts, visit www.specialneedsnewyork.com or www.littmankrooks.com.

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Second Circuit Rules that School Districts Cannot Use Retrospective Testimony to Rehabilitate Defective IEPs

September 21st, 2012

By Marion Walsh, Esq.

The United States Court of Appeals for the Second Circuit, in R.E. on behalf of J.E. v. New York City Department of Education, has set an important precedent for parents in tuition reimbursement cases, under the Individuals with Disabilities Education Improvement Act (“IDEIA”).  The Second Circuit ruled that in evaluating an Individualized Education Program (“IEP”) for a student with a disability, courts and administrative officers must examine an IEP prospectively as of the time of its creation. The decision clarified that courts and administrative officers must not consider retrospective testimony, from a school district on how it would have implemented the program to modify or correct deficiencies in the IEP.

Before this decision, the permissibility of retrospective testimony on IEPs represented an open question in the Second Circuit. Although the decision had mixed results for the parents and students involved, on the whole, the decision represents an important legal victory for parents.

This decision actually involved the appeals of three parents on behalf of their children with autism, in tuition reimbursement cases.   As background, under the IDEIA, parents may reject an IEP that they believe is inappropriate, place their child in an appropriate private school and then seek tuition reimbursement from the school district, under the well-known BurlingtonCarter standard.  The Second Circuit decided the appeals in tandem due to common questions of law.   In each case, the respective Impartial Hearing Officers initially granted the parents reimbursement and the New York State Review Officer (“SRO”) reversed all three cases. In each case, the SRO relied on testimony from the school district about the educational program that the student would have received if he or she had attended public school.  The parents all challenged the reliance on this “retrospective” testimony.  From the parents’ perspective, in order to make an informed decision about the IEP, they had to have sufficient information at the time of its creation.

In contrast, in the three cases, under the New York City Department of Education’s view, the court noted that a school district could create an IEP that was materially defective, cause the parents to justifiably effect a private placement, and then defeat the parents’ reimbursement claim at a Burlington Carter hearing with evidence that would essentially fix or amend the IEP and add testimony on what services would have been applied.  The court found that by requiring school districts to create appropriate IEPs at the outset, the IDEIA prevents a school district from fixing a deficient IEP after the fact.

The Second Circuit declined to adopt the strict “four corners” rule which would prohibit any testimony beyond the face of the IEP.  For example, the court noted that a school district could introduce evidence explaining how a 6:1:1 teacher ratio would operate but could not introduce evidence that modified the staffing ratio. Specifically, the court stated:

Although we decline to adapt a four corners rule, we hold that testimony regarding state-offered services may only explain or justify what is listed in the written IEP. Testimony may not support a modification that is materially different from the IEP, and thus a deficient IEP may not be effectively rehabilitated or amended after the fact through testimony regarding services that do not appear in the IEP.

The Second Circuit did note that during the Resolution process, after parents request a due process hearing, school districts do have the opportunity to amend or correct deficiencies in the IEP.  The court stated that a school district that inadvertently or in good faith omitted a required service could cure that deficiency during the resolution period once it receives a due process complaint.

Second Circuit Application of Rule to Students Involved

In deciding the three (3) cases, and applying the retrospective testimony rule, the Second Circuit reached the following results in the three cases:

In R.K., the court found that the Department had failed to provide a FAPE, as there was consensus that the student needed an ABA program and speech and language and occupational therapy.  The court found that the IEP offered no dedicated aide and no guarantee of ABA therapy.  The Second Circuit found that the SRO should not have relied on extensive testimony from the teacher who would have taught the student on the planned provision of ABA services. Because the court also found the private placement appropriate, it affirmed the judgment of the district court awarding full tuition reimbursement.

However, in R.E., the court found that the Department of Education had offered a free appropriate public education (“FAPE”) to the student because the IEP was substantively appropriate, despite its omission of a functional behavioral assessment and parent training. In that case, due to the student’s needs, the Second Circuit did not find that these violations deprived the student of a FAPE and reversed the district court award for tuition reimbursement. Similarly, in E.Z.-L, the court concluded that the Department of Education’s proposed placement was substantively appropriate. Although the Department’s testimony on parent training was inappropriate, the court held that the omission of parent training on the IEP did not alone establish the denial of FAPE, as parent training was available at the proposed placement. Thus the Court affirmed the district court ruling that the student was not denied a FAPE.

What the Decision Means for Parents

Parents in tuition reimbursement cases always face an uphill battle.  But the decision provides needed clarity on the appropriate use of retrospective testimony.   Parents of children with disabilities facing a decision on whether to remove their child from public school are entitled to rely on an IEP as written and not be blindsided at a hearing by testimony on corrections or additional services that a child would have received.   In addition, the decision should prompt parents to demand more specificity on IEPs as to what services, programs and methodology will be provided.

Of course, the Second Circuit decision leaves many open questions.  Future litigation will have to determine where courts draw the line between testimony that explains an IEP and testimony that rehabilitates a deficient IEP.  In addition, the Second Circuit’s emphasis on the importance of the resolution period to allow school districts to amend deficient IEPs is perplexing and could be prejudicial to parents, as by this period, parents would already have already unilaterally placed their child.

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Proposed Changes for Autism Spectrum Disorders in the Diagnostic and Statistical Manual (DSM) can have a Profound Impact

September 20th, 2012

Our guest blog this week is written by Lisa B. Rudley, Vice President of Private Client Services for Clark Dodge Asset Management. Lisa is responsible for Client Advisory Services and Business Development and brings over 15 years of financial investment services expertise.

By Lisa Rudley

A coalition of groups within the autism community is extremely concerned about potential impacts of the proposed criteria for Autism Spectrum Disorders (ASD) in the American Psychiatric Association’s Diagnostic and Statistical Manual (DSM) – 5th Edition. The new criteria are supposed to be finalized by December 2012 for May 2013 publication. The ramifications of a new autism definition are far reaching and could be devastating. Among other changes, the new autism criteria will eliminate Asperger Syndrome and PDD-NOS, although children with these conditions could still be diagnosed with autism if they meet the DSM-5 criteria. A child who does not present with restricted or repetitive behaviors would not meet the criteria for autism. Everything from epidemiology to services could be affected for individuals with autism. Those dealing with autism need more answers and support, not more hurdles.

Since February 2012, five studies have been published indicating the proposed DSM-5 ASD criteria will significantly reduce the number of people diagnosed with ASD compared to the current DSM-IVTR criteria:

McPartland and Volkmar – 39.4% decrease
Worley and Matson – 32.2% decrease
Matson et al. – 47.8% decrease
Gibbs et al. – 23.4% decrease
Taheri and Perry – 37% decrease

In addition, Field Trials which identified 83 children with ASD, were reported by Dr. Swedo, chair of the APA’s Workgroup on Neurodevelopmental Disorders (NDD). These trials indicated that the decrease in the number of identified ASD cases using the proposed criteria would be in the single digits, but this would be counter-balanced by the inclusion of some cases that had been missed by the DSM-IVTR. The NDD Workgroup is concerned primarily with the new criteria accurately diagnosing new cases of ASD as they present in the community and does not think that the decreases in the published studies are accurate. Currently, there is no data on adult patients using the new criteria.

Online Survey to Collect Data on New ASD Cases Using the Proposed Criteria

SafeMinds and the Holland Center want to collect and analyze much more data on the proposed criteria through an online survey to assess its impact on autism diagnosis in the community.

This survey can be used by any clinician who speaks English anywhere in the world. The data will be made available to the NDD Workgroup directly. Cases are needed urgently given the tight time frame for publication of the proposed criteria!

Please spread this information and link to any clinician who diagnoses people with autism:

www.dsm5asdsurvey.org

New York State Legislation to Protect People with Autism

Last legislative session, Assemblyman Thomas Abinanti from the 92nd District (D-Greenburgh) sponsored legislation, A9983 that will define “autism” under New York State law as the currently used criteria set out in the Diagnostic and Statistical Manual (DSM-IVTR), a definition that has been in use since 1994. Assemblyman Abinanti along with many of his assembly and senate colleagues believe that the proposed changes would significantly impact people with the diagnosis of autism today and in the future.  Also, the cost to the New York State to re-diagnose people with autism would be extremely costly when these precious resources could be used help people with autism.  The bill was very close to going to the floor of both houses for a vote and Assemblyman Abinanti is expected to reintroduce in the upcoming session starting in January, 2013.

(Some of this information was reprinted with permission from SafeMinds and the Holland Center)


Lisa B. Rudley is Vice President of Private Client Services for Clark Dodge Asset Management www.clarkdodgewealth.com.   Lisa is responsible for Client Advisory Services and Business Development and brings over 15 years of financial investment services expertise.  She earned her BA from Richard Stockton College of NJ in 1988 and received an MBA in finance with a designation in international business from Fordham University in 1995. Lisa lives in Briarcliff Manor, NY with her husband and three children. As a parent of a child diagnosed with an autism spectrum disorder, Lisa has a comprehensive understanding of the “Special Needs” community. Currently, Lisa serves on the boards of the Elizabeth Birt Center for Autism Law and Advocacy (EBCALA) www.ebcala.org and Autism Action Network (AAN) www.autismactionnetwork.org.  She is the President of the Ossining Special Education Parents Teachers Organization (SEPTO) and is the co-founder of the NAA NY Metro Westchester www.naanyc.org sub-chapter support group servicing over 600 families in the Westchester area.
Contact:  Lisa Rudley: lisarudley@yahoo.com


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The Dignity for All Students Act: A New Tool to Keep Student Safe

September 12th, 2012

by Marion M. Walsh, Esq.

Bullying can harm any student, but research shows that students with disabilities are particularly vulnerable to harassment and bullying.  Bullying can cause educational decline, anxiety, physical ailments and missed classes, among other problems. This year, a new tool and mandate exists to prevent and address student bullying and harassment.

Effective as of  July 1, 2012, the Dignity for all Students Act prohibits harassment and bullying based on race, weight, national origin, ethnic group, religion, religious practice, mental or physical disability, sexual orientation, gender identity, and sex, as well as bullying based on other characteristics.  The Act seeks to provide every public school student with a safe and supportive environment free from discrimination, intimidation, taunting, harassment, and bullying on school property, a school bus or at a school function. To implement the law, each school must appoint a Dignity Act Coordinator.    The Dignity Act also requires instruction in civility, citizenship, and character education by expanding the concepts of tolerance, respect for others and dignity to include an awareness and sensitivity in the relations of people based on the above differences. The Dignity Act further requires Boards of Education to include language addressing The Dignity Act in their Codes of Conduct and to amend their policies. New York State has developed excellent tools to help schools implement the law and to help parents understand it.
The Dignity Act requires school districts to adopt proactive, not just reactive, responses to bullying. The mandate of a supportive education environment should change the way school personnel address bullying—not as just a disciplinary measure, but as a school environment issue.  Thus, in addressing bullying, according to New York State Guidance, a school district should, for example, consider: peer support groups; corrective instruction; supportive interventions;  behavioral assessment or evaluation; behavioral management plans; school counseling and parent conferences.  In addition, New York state recommends  school­-wide  environmental remediation such as:

  • supervisory systems  which  empower school staff  with  prevention and  intervention tools to address incidents of bullying and harassment; school and community  surveys  or other strategies  for determining the conditions contributing to the relevant behavior;
  • adoption of research-­based, systemic harassment prevention programs;
  • modification of schedules;
  • adjustment in hallway traffic and other student routes of travel;
  • targeted use of monitors;
  • staff professional development;
  • parent conferences;
  • involvement of parent­-teacher organizations; and
  • peer support groups

The Dignity Act represents an important further step in protecting student rights and the prevention of bullying.   Federal courts  have already recognized the right of students with disabilities to be free from peer harassment and bullying, when a school district is deliberately indifferent and the harassment causes loss of educational opportunity.  In K.M. v. Hyde Park Central School District, 381 F.Supp.2d 343 (S.D.N.Y 2005), the United States District Court for the Southern District  recognized that school districts could face liability for peer harassment based on a student’s disability, in the same way as for peer sexual harassment.   In the K.M. case,  a 13-year-old eighth grade student,  was the victim of repeated instances of being called “stupid,” “idiot,” “retard” and other “disability-related insults” and acts of “physical aggression” and intimidation (all by other students) while in school and on the school bus.  He was physically beaten and his school books were thrown into the garbage in the cafeteria between 5-8 times.   The court held that “a school district’s deliberate indifference to pervasive, severe disability-based harassment that effectively deprived a disabled student of access to the school’s resources and opportunities would be actionable under Section 504 and Title II.”  In addition, the parent in this case filed for a hearing for tuition  reimbursement, based on the denial of a free appropriate public education, and the IDEA claim settled out of court.
Parents must know that they have powerful legal tools at their disposal. However, ideally, before bullying or harassment reaches a crisis point, school districts and parents should work together to prevent bullying and, if it occurs, stop it early.  Parents should expect teachers to closely supervise students and to address any bullying promptly.  Parents also play a crucial role in preventing bullying.  Particularly for students with disabilities who may not be able to speak for themselves about bullying or understand it, parents must be proactive and protective.  If you notice signs of withdrawal and anxiety in your child, ask your child about what is happening in school.  Work with your child’s teacher(s) to get to the root of the problem.

Here are six steps to take to be proactive to learn how to address student bullying:

1. Review your school district’s Code of Conduct to ensure that it incorporates Dignity Act provisions. Also make sure the District has policies to incorporate Dignity Act provisions. Students must receive a plain language summary at the beginning of the school year and receive training at an assembly.

2.  Learn who the school’s Dignity Act Coordinator is. Ask about the above environmental remediations to prevent bullying and address it when it occurs.

3.  If your school district’s Code of Conduct does not address the requirements of the Dignity Act, you should alert the Superintendent and the Board of Education and expect action.

4.  If your child is the victim of bullying or you believe bullying has occurred, do not delay in reporting this to your school district, even if your child denies it or asks you not to.  If you fear your child will be retaliated against, you can ask for additional supervision.   First, report to the Dignity Act Coordinator.  Document your concerns and specific incidents in writing   If the school does not address your concerns, follow up.  Be relentless.

5.  Keep a log and journal and any physical evidence of bullying.

6.  Most importantly, support your child and make sure he or she receives any needed counseling or other support and that you address the problems immediately

For more information regarding bullying, or education, please visit www.specialneedsnewyork.com or www.littmankrooks.com.

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