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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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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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Governor Amends New York Education Law to No Longer Require Additional Parent Member for CSE

August 22nd, 2012

by Marion Walsh, Esq.

On August 1, 2012, Governor Cuomo signed a Bill which amends New York Education Law 4402 to no longer require an additional parent member for Committee on Special Education (“CSE”) meetings. Before this amendment, New York law required for every CSE meeting (although not for subcommittee meetings), the participation of an additional parent member of a child with a disability residing in the school district or a neighboring school district.

The amended law provides, as with the current law on requesting a physician, that an additional parent member only must be in attendance at any CSE meeting if requested in writing by the parent (or personal in parental relation) to the student, at least 72 hours prior to each meeting.  The school district must provide the parents with written notice of their right to have an additional parent member attend any meeting of the CSE. The notice must include a statement, created by the New York State Education Department explaining the role of having the additional parent attend the meeting.

The amendment goes into effect immediately, but there will be some transition time, until the former law phases out and until the New York State Education Department amends the Part 200 Regulations and issues guidance for school districts.

Effect of New Law on Parent Rights

The Individuals with Disabilities Education Improvement Act does not require parent members as part of an IEP team.  The amended law does not impair the rights of parents, as parents still have the right to request a parent member. More frequently than not, parents waive or decline parent member participation.    However, parents need to be aware of their right to request an additional parent member and pay careful attention to the 72 hour time period.   Parents also need to understand that parent members can serve an important function.

Parents should carefully consider whether they will need a parent member.  Parent members can be helpful to lend perspective and objectivity and, if they are from the District, can offer knowledge and help about District programs.  If you’re attending an initial eligibility meeting for your child, you will be unfamiliar with the process and the associated emotions and would likely benefit from an additional parent member.   If the CSE is considering a more restrictive placement, the parent member may also help you weigh the benefits.  Also, for particularly contentious or emotional meetings, parent members can lend perspective.   Remember, the parent member does not serve as a substitute for a good advocate and is simply participating in the meeting as an additional CSE member.

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Siblings Have a Unique Role in Families with Special Needs

July 16th, 2012

When a family has a child with a special need, that child understandably needs the support of the whole family, and much of the family’s resources – time, money, and emotional strength – are devoted to caring for their loved one with special needs.  When that child has a sibling, the parents also need to consider the sibling’s unique position.

Siblings of  children with special needs develop compassion and understanding beyond their years and they learn the importance of a truly loving, caring family.  Parents also know that caring for a child with special needs takes an emotional toll, not only on themselves, but on the child’s sibling as well.

In planning for the future, an important thing for parents to consider is that the sibling or siblings of their child with special needs will likely have a role as a caregiver, probably for longer than the parents themselves.  There are steps parents can take to help make that transition as smooth as possible.

Creating a special needs trust is an important way to protect your child’s financial future, by setting aside assets for enhancing quality of life, while protecting the right to public benefits.  A sibling is an ideal co-trustee or successor trustee for a special needs trust.

If your child will need a guardian once she reaches adulthood, it is important to establish guardianship and to plan for who will be her guardian after you pass away.

Parents should also consider drafting a letter of intent.  This document spells out in detail your wishes for the care of your child after you pass away, including medical care, your child’s unique likes and dislikes, and living arrangements.  This can be of great benefit to a sibling who will be a caregiver for a person with special needs.

For assistance with questions regarding your child’s special needs visit our website at https://www.specialneedsnewyork.com/.

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The Supreme Court’s Affordable Care Act Ruling is Good for Families that have Loved Ones with Special Needs

July 5th, 2012

The U.S. Supreme Court case Florida v. Department of Health and Human Services, which challenged the constitutionality of the Patient Protection and Affordable Care Act has been covered heavily by mainstream and online media outlets. The Court heard arguments on the case in a historical three day session March 26-28, 2012.

The U.S. Supreme Court has upheld the individual mandate and most provisions of the Affordable Care Act. A federal penalty on states not cooperating with the Medicaid expansion provision of the law was deemed unconstitutional but Chief Justice John Roberts gave Congress a constitutional antidote with his opinion.

While most news outlets have focused on the political outcome of the Court’s decision, they have failed to cover the important issue of how the ruling will affect the lives of those with special needs. Had the Court overturned the law in its entirety, people caring for loved ones with special needs would have lost access to many benefits provided by the Affordable Care Act.

Prior to the Affordable Care Act, employer plans and individual health insurance policies could exclude children 19 and under with special needs as they were often determined to be “pre-existing conditions.”

Special needs children and adults will require more medical attention in their lifetime than other individuals. The law now prohibits insurance companies from setting a maximum lifetime benefit which means special needs patients cannot lose their health coverage because of too many claims or because they have exceeded a policy limit.

For more information on the Affordable Care Act, visit www.hhs.gov or www.healthcare.gov. For information on special education advocacy, special needs planning, guardianships or transition planning, visit www.littmankrooks.com or www.specialneedsnewyork.com.

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Governor Seeks to Protect People with Special Needs from Abuse

June 7th, 2012

New York Governor Andrew Cuomo has proposed legislation that would create new government offices to help prevent abuse against people with special needs.  Now, with unanimous Senate passage, the Justice Center for the Protection of People with Special Needs is one step closer to being created.  The legislation would create the offices of Inspector General and Special Prosecutor for the Protection of People with Special Needs, to investigate and prosecute reports of neglect or abuse.

“I commend the Senate for unanimously passing legislation that will help give more than one million New Yorkers with disabilities and special needs the protections and justice they deserve,” Gov. Cuomo said in a statement.  “Now both the Senate and Assembly need to work towards a final agreement so we can create the Justice Center for the Protection of People with Special Needs this year. New Yorkers who have been the victims of abuse or mistreatment cannot afford any delay in action.”

A grassroots coalition of more than 100 groups has formed to encourage passage of the legislation.  The coalition is reaching out to supporters via social media like Facebook and Twitter, as well as old-fashioned word-of-mouth, and the campaign seems poised for success.

Advocacy groups said that the legislation is needed to protect the civil rights of vulnerable people and help families know that their loved ones are protected from abuse when they are in the care of the state.

“This is a tremendous advance in weeding out, prosecuting and preventing any future NYS based human services work for those who abuse New Yorkers with disabilities,” said Harvey Rosenthal, of the New York Association of Psychiatric Rehabilitation Services, Inc. (NYAPRS).

For more information, visit our website at www.specialneedsnewyork.com.

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How Will the New Education Accountability Standards Affect My Child in New Jersey

March 14th, 2012

Ten states have been granted waivers to implement their own accountability systems rather than follow all of the No Child Left Behind (NCLB) Act’s requirements. The NCLB mandates that schools educate children to be proficient in reading and math by 2014 or face tough sanctions. The states that recently had their waivers approved include New Jersey, Massachusetts, Indiana, Minnesota, Kentucky, Florida, Georgia, Tennessee, Oklahoma, and Colorado. Other states are also working on their waivers.

The Obama Administration and the Department of Education will review a state’s application and grant a waiver if the state’s standards are higher than the NCLB mandates and can be realistically implemented. A state’s plan must still prepare students for higher education, careers, and increase achievement for low performing schools. Teacher and school administration evaluations are still critical to these plans being approved.

In New Jersey, the state’s Department of Education will launch the new accountability plan this coming September. Schools will be measured on absolute achievement of the new plan’s goals and growth. State funds will be focused on improving failing schools and those that have big achievement gaps. Students will also have greater school choice in under-performing districts. High achieving teachers will be rewarded and teachers who need help to increase their student’s results will get support.

The state’s DOE will revise its school Report Cards and publish them for public review. This will help parents and state officials identify the performance levels at a child’s school. All these efforts will emphasize effective lesson planning and teaching strategies for the student body, including students with special needs and English as a second language students.

Overview of new education accountability standards in New Jersey:

  • New accountability plan coming in September 2012
  • New Jersey schools to be graded on absolute achievement of the new plan’s goals and growth
  • State funds will improve failing schools and those with big achievement gaps
  • Students have more school choice in under-performing districts
  • High achieving teachers rewarded and those that need help to increase their student’s results will get support
  • Plans cover general student body, students with special needs, and ESL students
  • Concerned parents should contact a New Jersey special education advocate to discuss how the new plan can affect their child with special needs to ensure child’s IEP plan and supports are in place for the next school year

Parents who want to learn more about these changes and how it will affect their child should contact a special education advocate. To learn more about New York special education advocacy, visit https://www.specialneedsnewyork.com/ or http:www.littmankrooks.com/

Click here to read how you can get involved in Developmental Disabilities Awareness Month this March.

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