December, 2008

From the Legal Desk:  The Statute of Limitations under IDEA 2004:  What Every Parent Should Know

We believe parents generally should try to get the services their special needs child requires at school through informal means.  Sometimes, you can get what your child needs on your own.  Other times, a non-attorney education advocate can help.  At still other times, you may need an education attorney.  The goal in most cases should be to obtain needed services in the quickest, cheapest, most efficient way possible.

While you are working with the IEP team or others at school to reach an informal agreement, however, remember that the clock is ticking.  First, if your child needs services she isn't getting, that can't be good for her progress, development, attitude, behavior or happiness.  If your child isn't reading as he should because of a reading disability, for example, you should obtain the reading assistance he needs without delay.  That's because the gap widens as time goes on between poor readers, who read less and less, and good readers, who read more and more.  It's called "the Matthew effect."  (www.wrightslaw.com/info/test.matthew.effect.htm).  It's important to get the help your child needs when it can do the most good.  It's much easier to teach a learning disabled child to read at age 8, for example, than at age 18.

Know, too, that the passage of time can deprive you of important legal rights.  The law favors litigating disputes while key events are still relatively "fresh," potential witnesses are still available, memories are still fairly clear, and before relevant documents have been lost or destroyed.  So, for example, in Pennsylvania if you are injured when your car is rear-ended by an Exxon truck, you generally will have only two years in which to sue Exxon under the "statute of limitations" for "personal injury" actions.  If you wait two years and a day, in most cases you're out of luck. So while we encourage parents to work cooperatively with the school, we don't mean that you should wait forever for the right result.  Your child is too important.  If you don't get results through informal means within a reasonable time, it's time to try something else.

The two-year statute of limitations under IDEA 2004

This brings us to the two-year statute of limitations under "IDEA 2004" - the key federal law protecting special education students.

As a general rule, a parent cannot recover for a violation of the Act that the parent "knew or should have known" about, if the violation occurred more than two years before the parent filed a due process complaint.  (34 C.F.R. Section 300.507(a)(2): http://idea.ed.gov/explore/view/p/%2Croot%2Cregs%2C300%2CE%2C300%252E507%2C.

Under the statute, a court may refuse to enforce the two-year rule if the school district (1) specifically misrepresented to the parent that it had resolved the problem that the parent later raised in the due process complaint, or (2) withheld information from the parent that it was required by law to provide (such as the written "procedural safeguards" specifying the parent's legal rights that the district is required to provide to parents).  (Section 300.511(f): http://idea.ed.gov/explore/view/p/%2Croot%2Cregs%2C300%2CE%2C300%252E511%2C.  These exceptions to the two-year statute of limitations should always be considered, but bringing your case within one of these exceptions can be difficult.  Therefore, we urge parents to take timely action in filing for due process to avoid the "statute of limitations defense," whenever possible.

"It is a difference of opinion that makes horse races."  (Mark Twain)

Be aware that legal disputes can arise over what the words of a particular statute "mean" and how that statute should apply to a particular set of facts.  The law sometimes is a little like a horse race.  It can be hard to predict the outcome.  So it is with IDEA 2004.

A difference of opinion now has arisen among federal courts in our jurisdiction over what Congress intended when it included the two-year statute of limitations in IDEA 2004.  Did it intend that the two-year statute would apply "retroactively?"  If so, a parent who filed a due process complaint after July 1, 2005, when the new IDEA 2004 law became effective, would be subject to the two-year limitations period described above, and any claims against the school district that arose more than two years before that time would be barred.  Or did Congress intend that the two-year statute would apply prospectively only?  If that is correct, then a parent who filed a due process complaint on 12/01/08 would be entitled to recover for violations by the school district that occurred between 12/01/06 and 12/01/08 (the two-year period specified in the statute) but also be allowed to recover for violations that occurred prior to July 1, 2005, before the two-year federal limitations period took effect.  That is so because before July 1, 2005, there was effectively no statute of limitations governing special education claims decided inthe federal courts in Pennsylvania under the IDEA statute that was then in effect.    Confused?  You're not alone.  This year, four federal courts in the Eastern District of Pennsylvania have ruled on this issue.  Two federal judges ruled  that the two-year statute of limitations in IDEA 2004 applies prospectively only ((Laura P. v. Haverford Sch. Dist., No. 07 Civ. 5395, 2008 WL 5000461 (Nov. 21, 2008) and Tereance D. v. Sch. Dist. of Phila., 570 F.Supp.2d 739 (August 5, 2008)).  Two federal judges ruled that it applies retroactively.  ((Evan H., ex rel. Kosta H. v. Unionville-Chadds Ford Sch. Dist.,  No. 07 Civ. 4990, 2008 WL 4791634 (Nov. 4, 2008) and P.P. ex rel. Michael P. v. West Chester Area Sch. Dist., 557 F.Supp.2d 648 (May 29, 2008)).  So it's a 2-2 tie at present!  Stay tuned.  If one of these cases is appealed to the United States Court of Appeals for the Third Circuit (the highest federal court governing Pennsylvania, New Jersey and Delaware), that court may tell us how the two-year statute of limitations in IDEA 2004 is to be applied.

Until this legal issue is resolved, any due process complaint a parent files in Pennsylvania should include a claim for school district violations of the law, if any, that occurred before July 1, 2005, in our opinion .

So What's the "Bottom Line?"

Be aware that a two-year statute of limitations exists under IDEA 2004 that could cause you and your child to lose important legal rights.  Keep this in mind when you are trying to informally obtain the services your special needs child requires.  The clock is ticking!  Determining how the statute of limitations applies to your case may require careful analysis.  It would be safer to check with an education attorney, if you have any doubts or questions about it.   Questions?  Comments?  Contact us anytime. 

Do You Need a Non-Attorney, Education Advocate?

Although parents often can obtain the services their child needs at school through their own efforts, they may sometimes need a helping hand from someone who "knows the ropes." One option is to bring in a non-attorney, education advocate.  An education advocate can help you get organized, get ready for an IEP meeting or other school meeting, attend the meeting with you, and follow up as needed.  In some cases, if they think you need an education attorney, they will discuss that with you.  Think of it this way.  If you were about to begin a hike of many miles through unfamiliar terrain, would it be helpful to have someone who had traveled that path many times before, who could help guide you through it and keep you from getting lost?

We sometimes receive phone calls from parents who don't need an education attorney now, or don't want to incur the cost of an attorney now, but need some one-to-one guidance from a knowledgeable person. In those cases, we may recommend a non-attorney education advocate and, for this purpose, we list education advocates in eastern and central Pennsylvania at our website (http://www.educationlawadvocates.com//People-Links.shtml).  As shown, some of those advocates charge a fee; some are employed by organizations that do not charge a fee.  Some of the advocates are moms of special needs kids themselves, who learned to advocate for their own children and now work to help other parents negotiate the special education "maze."

Although we feel fortunate to know and work with many education advocates, we do not know everyone on that list.  So if you need an advocate, we encourage you to call more than one in your area and ask questions that will allow you to make an informed decision about whether a particular advocate is a good fit for what you need.

Pat Howey's 10 Tips for Education Advocates

Pat Howey is a well-known, non-attorney, education advocate from Indiana, who works with parents, writes and does advocacy training in association with Pete and Pam Wright of Wrightslaw, one of our favorite "national" websites.  (www.wrightslaw.com).  We like Pat's article in the 12/02/08 issue of the Special Education Advocate, the free Wrightslaw newsletter, entitled "10 Tips for Good Advocates," so we are passing it along to you here.  (We encourage you to subscribe to it at http://www.wrightslaw.com/nltr/08/nl.1202.htm, where you will also find Pat's article).

As you read through Pat's tips, keep two things in mind.  First, in our view Pat's approach generally will lead to better results.  We aren't saying it's the only approach or that a different approach may not be necessary sometimes.  We're just saying that we think her approach, if followed, will lead to better results in most cases.  If you are considering bringing on an education advocate, we encourage you to find out from them in advance what kind of approach they use in their practice.  Second, although Pat's "tips" are directed primarily at people who work as education advocates, remember that you as a parent are an advocate, too.  We think you as a parent could benefit in most cases from following her approach as well.

So here are Pat's "10 tips for Good Advocates":

1. Good advocates facilitate the IEP process.

Advocates must set an example for the entire IEP Team. They must be a role model of behavior for the parent. Challenging school experts, demeaning school staff, or being inconsiderate or impolite, will not advance the child's cause. Your goal is to get better school services for the child. Good advocates ask questions and make valuable suggestions to advocate for a child. It is okay to disagree. It is not okay to put down or verbally attack someone.

2. Good advocates know the child and understand the disability.

Do your homework before you attempt to advocate for the child. Research the child's disability. Be ready with ideas about instructional methods that are research-based and peer-reviewed. Meet the child and the family in the home environment. Put off making recommendations until you fully understand how the child's disability affects his or her life and education.

3. Good advocates try to reduce existing barriers between the parent and the school.

Your goal is to bring the school and the parent closer to agreement. Good advocates explain to parents that negotiation is part of the IEP Team process - and a part of life! Pouring gasoline on a fire ensures that everyone gets burned and does not improve the child's lot.

4. Good advocates are willing to admit mistakes and to apologize.

No one is perfect. We all make mistakes. Good advocates are not afraid to say they are sorry when they make a mistake. They may even write a note to everyone involved, apologizing and asking for forgiveness.

5. Good advocates hone their listening skills to a fine edge.

You must learn to listen to everything that others say. Sometimes, what others do not say is most important. If you are not listening, you may not hear what others say and what they do not say. Good advocates repeat and paraphrase what they have heard to avoid misunderstandings. They ask others to verify that they understood correctly. Good advocates ask follow-up questions. They do not interrupt even when they are faced with rudeness and discourtesy.

6. Good advocates learn the art of negotiation.

Remember the old saying, "You catch more flies with honey than you do with vinegar?" Learning to negotiate is not a sign of weakness or that the parent's position is not valid. Negotiation is an art that good advocates polish to a fine finish. Successful negotiations allow everyone to come out of the IEP Team Meeting feeling like winners. Brice Palmer, noted advocate from Vermont, says it best: "Good advocates learn to develop a language of persuasion rather than a language of positional combat."

7. Good advocates understand special and general education law and the interrelationship between these and other laws.

The law is not a static entity. It changes every day through court decisions and other types of clarifications. Good advocates review special education law often. They know that answers to frequently asked special education questions may be found in other unrelated laws. For example, Department of Agriculture regulations address special dietary requirements for children. A State's Department of Health regulations may address classroom size, lighting, and window light. General education law may provide insight into class size and case load issues. The U.S. Justice Department provides guidance on bullying and harassment. Good advocates understand that school policies often omit the special needs of students with disabilities. School emergency plans may not address the needs of children in wheelchairs or children who are deaf or blind. Good advocates learn to research many different laws.

8. Good advocates know that understanding the law is different from quoting the law.

Good advocates know the law but they understand that it is often ineffective and counterproductive to quote it. Pete Wright once said, "[A] parent should never quote law, even if they are an atty, it simply polarizes relationships, instead seek "help" in better understanding something best left to rocket scientists and lawyers. -- Pete Wright Deltaville, VA USA - Tuesday, March 02, 1999 at 20:55:35 (EST).

9. Good advocates understand the importance of ethical behavior in their practice.

There is no Code of Ethics or Professional Responsibility for special education advocates. Advocates have nothing to look to for guidance and there is no governing body to oversee their practice. There are no penalties for advocates who act unprofessionally or unethically. This does not suggest that advocates should disregard ethics and engage in irresponsible behavior. Good advocates understand that the professional respect of the IEP Team is a key to successfully assisting parents achieve an appropriate education for their child.

10. Good advocates treat others the way they would like to be treated.

No one likes surprises. Members of IEP Teams do not respect or trust advocates who drop bombshells. Taking the team by surprise is likely to backfire, especially if the team "captain" is a gatekeeper or is determined to be the one who runs the show. Making the IEP Team Meeting a war of wits does not benefit the child nor does it facilitate the process for the parents.

Got a question about advocacy?  Give us a call or email us.  We would be glad to help. 

A Short History of Special Education Law - and the Parent as the "Missing Link."

Years ago, in the 1960's, the schools' job was primarily to "teach" and to prepare "typical" kids for college or employment.  No-one had heard of "ADHD" then.  Only a few had heard of "autism."  Far less was known then about "specific learning disabilities" and the advanced methods of reading remediation.  Children who were thought to be a little "slower" than their peers were placed in special education programs, which sometimes included training in "auto mechanics" or other vocational training, as well as remedial assistance in reading and math.  Millions of children with more severe problems, including disciplinary problems, were sometimes deemed "uneducable," and excluded from school entirely.

The Sherriff Comes to Town!

The passage of the "Education for All Handicapped Children Act" in 1975 required public schools accepting federal funds to provide students with mental or physical disabilities with a "free appropriate public education" (a "FAPE").  Schools were required to identify and evaluate disablied children and design an educational plan based on their unique needs that was reasonably calculated to allow them to make meaningful progress in school from year to year.  The new law recognized the key role to be played by parents in shaping the programs for their special needs kids at school.  Therefore, it required parent participation in the evaluation and planning process.  It required schools to notify parents before evaluating a child or changing an IEP, and to advise them of their legal rights.  It included procedures for deteriming whether serious disciplinary incidents were caused by the child's disability.  It empowered parents to challenge a school's decisions respecting their child, either informally or through formal methods, such as mediation or filing a "due process" action using the state's administrative agency procedures.  It gave parents the right to appeal adverse decisions affecting their special needs child to state or federal court.  It provided for an award of "compensatory education" if a school district failed to provide a disabled child with the "appropriate" education that the law required.  In some cases, a school district could be required to pay a disabled child's tuition at a private school that could meet the child's needs.       In sum, the new federal law required public schools to take on a much broader mission to find and assist children with special needs.  Over the years, the basic structure set out in the original Education for All Handicapped Children Act of 1975 has remained in place, despite changes in the law.  The current law, known as the Individuals with Disabilities Education Act of 2004," covers children as young as three and young adults up to age 21, so long as they have not graduated.  Federal and state law work together to protect the rights of special needs kids and their parents.  So-called "gifted" children now have rights, too, under state law in Pennsylvania.  The federal and state special education laws are based on a very simple principle, which Congress stated as follows:

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.  Improvidng 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 selt-sufficiency for individiauls with disabilities.

20 U.S.C. Section 1401(c)(1)

(http://idea.ed.gov/explore/view/p/%2Croot%2Cstatute%2CI%2CA%2C601%2C).

The End of the "Little Red Schoolhouse"

So it's not just your grandmother's "little red school house" anymore.  Now,  schools have the legal duty to find, evaluate, and assist disabled children to benefit from an education and training.  This includes providing "specialized instruction" and "related services" to special education students, such as psychological evaluation, occupational, speech and physical therapy, and social skills training, where necessary, as well as the more traditional educational instruction and remediation.  At the IEP table, you now may find a psychologist, a therapist, or a "transition" specialist, as well as a special ed teacher and a "regular ed" teacher.  Or sometimes you may find an "education advocate" or lawyers for the parents and the school district at that table.  That is because disabled children now have a legally enforceable right to a free appropriate public education that they did not have many years ago.While the schools (and courts) have been adjusting to this vastly expanded role, there also has been an explosion in the number of children diagnosed with "special needs' that qualify them for "special education" or other special treatment by the schools.  Similarly, new and expanded theories and methods for educating and treating children with particular disabilities are being developed, such as the TEACCH and Lovass methods for treating autism or the "multi-sensory" language training programs, such as Orton-Gillingham and the Wilson Reading methods.  There also is an increased emphasis on "research-based" approaches, "response to intervention," and more accurate and "scientific" ways of monitoring and recording the results of education and treatment.  And while the schools' role has been expanding, the funding for these services has not kept pace.With all of the laws and changes, and the schools' vastly expanded role, is it any wonder that the system's parts do not always mesh as they should?  And that you as a parent may sometimes feel confused and overwhelmed?  For some parents, entering the school building for an IEP meeting can seem a little like traveling to a strange country late at night.  Many "tribes" occupy that country.  There's the "special education" teacher tribe, the "school administrator" tribe, and the "regular ed" teacher tribe.  The school psychologist, occupational therapist, speech therapist, physical therapist, and personal care attendant ("PCA") all come from different tribes.  There are still other tribes comprised of outside tutors, therapists, psychologists and psychiatrists.  There is even the "lawyer" tribe, who sometimes speaks a strange language known as "legalese" and refer to laws that only they seem to understand.Many of these "tribe members" have lived in this place for a long time.  They are familiar with its customs, even if they cannot always understand each other.  You see, they studied different things in college.  They may each view your child through a separate "window," based on their education, training, experience, life history, and assigned role in the educational system.  Sometimes, they may see your whole child through their "window"; sometimes, they may see only the part closest to their window.  Sometimes, they may think they "see" your child, but it's really a different child they see or a composite of many children that they mistake for your child.  Most of the teachers and others at school do the best they can under challenging circumstances, in our view.  But there are lots of moving parts in this system.  It doesn't always work as we want it to.  And sometimes, it is not easy to figure out what programs would provide a child with what she needs.  Experts may disagree about not only the kind of programming a child needs, but also about the nature of his disability.

The Parent as the "Missing Link."

The one constant as you and your child move through what may sometimes seem like a strange "land" from year to year and grade to grade is . . . you!  That is why the law encourages your active participation in the process.  Teachers, administrators, treaters and other "professionals" may come and go, but you as the parent are the "missing link" who provides continuity and information to the school team from year to year.  You ultimately must take the responsibility for getting clear on what your child needs and ensuring that your child gets those services.  Unless you understand and participate in the process at school, you cannot fulfill that role.It is not easy, of course.  As a member of the "parent" tribe, you may not  always be completely welcomed by the "school" tribes who inhabit the school building.  They have their own customs, rituals and ways of doing things.  In some cases, they may resist you and your new ideas for how to help your child.  Of course, they may also have important knowledge and ideas about your child, which may be different from your own.  In our view, you should listen carefully to what they have to say.  But, in the end, you as the parent must decide whether your special needs child is getting what she needs.Don't be overwhelmed!  You will never know "everything."  No-one can.  But focus on the "fundamentals."  Try to understand how the system works.  Prepare for school meetings.  Follow-up.  Document important communications with the school in a quick email.  Read and learn about your child's disability.   Review and understand your child's school evaluation and IEP.  If you need help in understanding those documents, get it.  Learn about available resources that can help you become a more effective advocate for your child.  Be proactive, persistent and polite.  Focus on getting clear on what your child needs and how to get it.  Monitor the results so you can know whether an approach is working or not.  Stay involved.  It's not easy - but it will be worth it!  

Quick Tip:  Using Annotated Forms to Better Understand the IEP and Other Key Documents

Key activities in special education are recorded through the use of forms.  The "IEP" ("Individualized Education Program") is one such form.  Two others you will see regularly as the parent of a special needs child are the NOREP ("Notice of Recommended Educational Placement"), and the Evaluation Report (or Reevaluation Report).  

Virtually all parents find the forms to be confusing, especially in the beginning.  But you can understand them, and it is important for you to learn what information they should contain in order to be better able to determine if the school district is doing what it should be doing for your child.  As they say, "knowledge is power."

A good way to start is by reading through the "annotated" form published by "PaTTAN" (the "Pennsylvania Training and Technical Assistance Network"), which is designed to help you understand the form.  So let's say you have an IEP meeting coming up, where you will receive a draft copy of your third-grader's new IEP.  Why not check out what should be in that IEP before the meeting?

Here's what you do.  Go to www.pattan.net, click on "Special Education Forms," then "School Age Annotated Forms," then scroll down to the "Individualized Education Program (IEP) (Annotated) School Age" form, and click on "View Resource Online."  Voila!  Up pops the IEP form that your school district is likely to use, along with detailed comments designed to help you understand the information that should be included in each section and the kinds of questions the IEP team should consider as you develop the IEP (and remember that you as a parent are an IEP team member, too!).

But be forewarned!  Some "annotations" are very detailed.  Don't be overwhelmed!  Take one step at a time.  Just focus initially on the parts of the form of greatest interest.  You don't have to read and understand all of it at once!  Our advice:  spend ten or fifteen minutes looking at it the first time, then put it aside and come back to it the following day.

Like some parents we know, you might want to print out the annotated form and take it with you to the IEP meeting.  That way you can refer to it as the team discusses each section of your child's IEP.  Doing this also sends a strong signal to the team that you are prepared and on your toes.

Final Tip : While you are at the PaTTAN annotated forms site, take a look around at the other forms and resources that are available.  We think it's a great resource!

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