Education Law Advocates, P.C.

November, 2008

Education Law Advocates, P.C.
Education Attorneys

Feature Article: How to Get What Your Child Needs at School Without Going to Due Process (Part II)

Last month, we talked about ways to get what your child needs at school without going to "Due Process," which includes advice from Dr. Linda Valentini, a Special Education Due Process Hearing Officer who has presided over more than 1500 special education disputes in Pennsylvania. If you would like to read that article, click below: http://archive.constantcontact.com/fs072/1101825286624/archive/1102278150429.html

We return to this important topic again this month. We recently attended a meeting sponsored by the Office of Dispute Resolution that brought together school board members, special education directors, principals, a few parents and parent advocates, and other "stakeholders" in the special education system in southeastern Pennsylvania. The purpose of the meeting was to discuss ways to resolve disputes between parents and school districts without incurring the time, expense, contentiousness and other difficulties associated with Due Process.

A Method for Resolving Conflicts Informally

Frequent readers of this newsletter know that we favor informal resolutions of disputes with the school district so long as the child's needs for services under the law are satisfied. You've probably heard the expression in real estate that the three most important factors in determining the value of a house are "location, location and location." Well, as one of the parents emphasized at the meeting, and from our perspective as special education lawyers representing parents and children, the three most important factors in determining what services are needed at school are "the child, the child, and the child." Federal and state special education law supports this approach as well.

Of course, we know that other factors lurk beneath the surface. Most school districts have tight budgets, for example. You may know that the federal law requiring states to provide special education students with a "free appropriate public education" only partially funds the mandated services. But, under the law, a school district cannot use a lack of funds as a legal excuse for failing to provide the services to which a qualified special education student is entitled. "We can't afford it" is not a legally acceptable excuse for not providing a needed service.

Focusing on the Facts, Interests and Underlying Concerns

For us the key questions typically include the following: What services does the child need in order to obtain the "free appropriate public education" to which the child is legally entitled? How will the child benefit from the service? How will the service make a difference in the child's adjustment and skills? What facts support the need for the requested service?

If you believe that your child needs three hours of speech therapy per week, for example, on what facts do you rely? Has the child been evaluated by a speech therapist? Do you agree with the results? Are the three hours per week necessary in order for the child to make reasonable progress in achieving the specific goals of the speech therapy? What are those specific goals? How will the three hours of speech therapy help your child develop needed skills? What problems or effects on your child have you observed as a result of her lack of progress in this area? How can you tell if she is or isn't making progress? These kinds of issues probably will need to be dealt with if the case goes to Due Process to obtain additional speech therapy. So why wait? Deal with those underlying needs and concerns early on, and you may be able to resolve the issue without going further.

Just as we believe that "facts win cases," we believe that you can use facts in your discussions with your "fellow members" of the IEP team to support your requests for services. Sometimes, you may need to have an independent expert document the need in a way that you can't do on your own. But, in our view, no matter what stage of the process is at hand, the focus should be on the facts, concerns and "interests" underlying your request and why your child needs and will benefit from the services you seek.

Minimizing "Distractions" in the Negotiating Process

This focus on the child also can help reduce "distractions" that can interfere with reaching a good resolution for the child. Anger and frustration are understandable emotions in these disputes, but don't let them lead you astray. Did the principal or special ed teacher say something that hurt your feelings or made you mad? It happens. Just as parents sometimes say things they may regret later. But, often, on both "sides," there can be "too much heat and not enough light." Don't let anger and emotion interfere with what you need to achieve for your child.

We know it can be difficult, of course, but try to keep your focus on what your child needs and why he needs it, supporting your arguments with facts. That will help keep your focus where it belongs - on your child - and help avoid a situation that spirals out of control. Sometimes, of course, a lawyer is essential to resolve a dispute. But we believe that in many cases parents can get what their child needs without us ... if they keep their "eye on the ball."  Your child is "the ball."

Upcoming Conflict Resolution Training for Parents and Others

The Office of Dispute Resolution is developing training on informal conflict resolution for parents, school district personnel, and others involved in special education. This group training will emphasizeways to identify the needs and concerns of each person and find alternatives and solutions that satisfy those needs, while attempting to preserve the relationship between the parent and school. We support this kind of training. Will this approach solve every problem? Of course not! But we think it's a good place to start, in most cases.

No specifics on how, when and where the training will be offered were released at the meeting we attended. We will keep you posted as the training program is developed. If you think you might be interested in this kind of dispute resolution training, just let us know. We can direct you to additional sources of information.

Want to get a head start on effective negotiations? We highly recommend two books: Getting to Yes: Negotiating Agreement Without Giving In by Fisher and Ury; and Getting Past No by William Ury (available at www.amazon.com for as little as $5.00). We all "negotiate" all the time, such as when we negotiate with our 17-year-old about his Friday night curfew. You can become a better negotiator! The better you become, the greater your chances of getting what your child needs at school - without going to Due Process.

Questions?  Comments?  Contact us anytime.

"CASSP" Services for Children with Emotional, Behavioral and Mental Health Problems

As a parent of a special needs child, you know how challenging it can be to obtain the services your child needs. For some children, the services they need can be supplied through the school system. For other children, help may be available through other agencies. But it can seem like a bewildering maze of agencies and resources.  So it's worthwhile to learn a little more about it.

If your child has severe emotional, behavioral or mental health problems, you should kinow about "CASSP" - the "Child and Adolescent Service System Program." It provides a coordinated system of care for children with mental illness, emotional disturbance, behavior problems, or serious social skills problems. Mental health services for such children and adolescents can include services in the home, family therapy, "partial hospitalization," (where a child or adolescent participates in a hospital-based mental health evaluation program during the day), inpatient (psychiatric) hospitalization, and long-term residential treatment. A core principle of the CASSP process is to provide services for the child in the least restrictive environment that will meet the needs of the child and family.

Many parents obtain "wrap-around" services for their child through the CASSP process. Wrap-around services are designed to help children improve their adjustment in the home, school and community in order to help avoid a placement in a more restrictive setting. Wrap-around services can include the assignment of a one-on-one aide ("Therapeutic Staff Support" or "TSS") at school, as well as a trained therapist to work with the child and parents in the home.

If you believe your child may need these services, how do you get started? The process typically begins with a phone call to an intake specialist at a designated agency in your county to schedule an appointment. The process may include an evaluation by a psychiatrist to determine whether there is a "medical necessity" for services. When all necessary information has been obtained, the intake specialist will then present that information to a clinical team that will determine what level of care is required. The intake specialist typically will then refer the family to a choice of programs and providers. Most children qualify for a medical assistance card, regardless of their parents' income, which triggers payment for needed services through state medical assistance funds.

Want more information? Here is contact information for CASSP coordinators in near-by counties. If your county isn't listed here, call any community mental health agency in your county to get started.

BERKS CO: SHEILA BRESSLER                    BUCKS CO: BARBARA MILLER
610-478-3271 x6584                               215.442.0760
sbressler@countyofberks.com bjmiller@co.bucks.pa.us

CHESTER CO: GINA BUCKMAN                    DELAWARE CO: SHANNON THOMAS
610.344.6265                                         610.713.2479
gbuckman@chesco.org thomass@co.delaware.pa.us
LANCASTER CO: CHRISTINE KUHN              MONTGOMERY CO: CLAUDINE PECHEREK
717.735.8950                                         610.278.3642
kuhnc@co.lancaster.pa.us cpechere@montcopa.org
PHILADELPHIA CO: DEBORAH FERRELL

Quick Tip: "Podcasts" - A Useful Resource for Some Parents of Special Needs Kids

The more you know about your child's special needs and the special education process, the more effective you can be in obtaining services at school (and elsewhere) that can help make a difference in your child's life. But there is so much information about there! Libraries and bookstores are full of information on your child's condition, IEP's, evaluations, the law, and the special education process. And information comes in other forms, such as seminars or meetings with other parents whose children have a similar challenge. It can seem overwhelming!  So it is important to know where to find information from sources that work for you.   That brings us to an increasingly popular method of disseminating information in "digital" form. "Podcasts" are digital "broadcasts" of information on a ever-growing range of topicsdistributed over the Internet to personal computers. They can be produced by a major network or a mom of an autistic child sitting in her basement. As an example, NBC's "Meet the Press" program is available as a video or audio podcast. Interested viewers can subscribe to that podcast, which will automatically be transmitted as a video or audio file to their computers every Sunday. They can then watch or listen to the show on their computer whenever they want. They also can transfer the file to a portable device, such as an mp3 player or iPod to take with them or to listen to in the car. That's one of the neat things about podcasts: you can listen using a portable device while you are doing something else, like raking the leaves or driving home from work.

Of particular interest to us are podcasts touching on topics of importance to the special needs community. Parents of a child with autism will find many podcasts available, with titles such as "Autism Radio" or "FAQ Autism." Podcasts on ADHD include "Talking ADHD," and "ADHD Moms." A podcast on learning disabilities that we have found interesting is entitled simply "LD Podcast."

How can you access podcasts? We use iTunes ( www.itunes.com) because we like the easy-to-use format, but there are many other sources of podcasts. If you download iTunes 8, for example, you can then do a "power search" for podcasts under topics of interest, check them out, and subscribe to any you like. Or if you just want information on podcasts, here's a good place to start: http://www.apple.com/itunes/whatson/podcasts. You also can Google "Podcasts Getting Started" for more information on how podcasts work and where to find them.

Are podcasts for everyone? Probably not. Keep in mind that almost anyone can do a podcast. Some information you hear may be correct; some information may be incorrect. But then that's true to a certain degree for information on  TV and in books as well. And sometimes the "production values" of the podcasts are high; sometimes they are not. So some "trial-and-error" likely will be required to find the podcasts that are right for you. But podcasts represent another potential resource in this high-tech world of ours that some parents of special needs kids may find to be worthwhile - and maybe even enjoyable!

Four Quick Facts on "Due Process" in Pennsylvania

Here are four "quick facts" you may not know about "Due Process" cases in Pennsylvania (based on information produced by the Office of Dispute Resolution):

Quick Fact No. 1:  Most Due Process requests in Pennsylvania "settle" (are resolved) before the first day of hearing. In Fiscal Year (FY) 2007, for example, 77% of the Due Process requests settled before the first day of hearing. In FY 2008, over 90% of Due Process requests settled before a decision was made by a due process hearing officer.

Quick Fact No. 2 : Due Process requests in Pennsylvania have declined since their (recent) high in FY 2005, (which ended on June 30, 2005), when they exceeded 1,000. That number was roughly in line with the Due Process requests filed in the two preceding years. On July 1, 2005, the new Individuals with Disabilities Education Act ("IDEA 2004") took effect. In the fiscal year that followed, Due Process requests declined by over 20% to 760. In FY 2007 the number moved a little higher to 776 and in FY 2008, it reached 822. More than half of the Due Process requests in FY 2008 were filed in five counties: Philadelphia; Montgomery; Delaware; Bucks; and Chester County, an area representing about a third of the state's population. (See below).

Quick Fact No. 3: The number of Due Process hearings varies dramatically by state.In FY 2007, for example, when 776 Due Process requests were filed in Pennsylvania, only 189 were filed in Florida, a state with a 50% larger  population than our own. By comparison, the due process requests filed in some other large states in FY 2007 were as follows: New York (5,990); California (2,516); Illinois (366); and Texas (329).

Quick Fact No. 4:  The Office of Dispute Resolution maintains statistics showing how many requests for Due Process and mediation were filed by year in each school district.  In Philadelphia and the surrounding counties, the total number of Due Process requests filed in FY 2008 were as follows:  Philadelphia County (includes charter schools) (144); Delaware County (67); Chester County (60); Montgomery County (98); Bucks County (64); Berks County (52) and Lancaster/Lebanon counties (18).  Within counties, the school districts most often sued in a Due Process action during FY 2008 are as follows: Delaware County: Haverford Township S.D. (23);  Chester County: Downingtown S.D. (11); Montgomery County: North Penn S.D. (19); Bucks County: Council Rock S.D. (13).

Want to check out your own school district? Click on the following link:   http://odr.pattan.net/regulationsresources/Statistics.aspx. The information is organized by Intermediate Unit. Scroll down until you find your school district.  Mediations are also listed for each school district. The statistics show the number of requests filed for each district, the number "closed," and the number that remain active. For each closed case, the statistics note how it was resolved, such as by withdrawal, settlement or hearing officer ("HO") decision.

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Education Law Advocates, P.C. skillfully represents parents and their special needs children in southeastern and central Pennsylvania, including West Chester, Lower Merion, Coatesville, Paoli, Downingtown and Upper Darby, and throughout the Philadelphia metro area, including Chester County, Montgomery County, Delaware County, Bucks County, Philadelphia, Lancaster County and Berks County.

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