The Dark Side Of Special Education

These two stories, which recently appeared on opposite sides of the same page in the New York Times, show what one might call the dark side of special education.  The first details a preschool provider's billing fraud to steal millions of dollars from the city's special education funds:  

http://www.nytimes.com/2013/03/19/nyregion/audit-says-special-education-provider-illegally-diverted-government-funds.html

The second, an editorial, discusses the insensitivity of local law enforcement officials in dealing with a man with Down Syndrome in a manner that ultimately led to the man's death following a scuffle:  

http://www.nytimes.com/2013/03/19/opinion/ethan-saylors-death-and-a-cry-for-down-syndrome-understanding.html

Both kinds of stories are all too common.  It seems like we read about this kind of thing every other day.  What's it going to take to achieve better oversight and more effectively raise awareness?      

The Curious Incident Of The Dog In The Night-Time

The Curious Incident Of The Dog In The Night-Time, an amazing novel by Mark Haddon which (believe it or not) influenced my venture into special education law, is now being performed at the Apollo Theater in London's West End.  The New York Times featured a write-up about it:

http://theater.nytimes.com/2013/03/14/theater/reviews/curious-incident-of-the-dog-in-the-night-time-in-london.html?emc=tnt&tntemail0=y&_r=0&pagewanted=all

If you can't make it to London to see the show you might want to check out the book:

http://www.amazon.com/The-Curious-Incident-Dog-Night-Time/dp/1400032717/ref=sr_1_1?ie=UTF8&qid=1363573666&sr=8-1&keywords=curious+incident+of+the+dog+in+the+nighttime

M.W. v. New York City Department Of Education

Oral arguments in the case of M.W. v. New York City Department of Education were heard by the U.S. Court of Appeals for the Second Circuit yesterday, exactly nine months to the day since the U.S. District Court for the Eastern District of New York (EDNY) ruled in the school district's favor. 

Interestingly, this case began with an IHO determination in favor of the parents.  This case concerns a child with autism, Tourette's, and ADHD whose parents were initially awarded tuition reimbursement for the Luria Academy of Brooklyn (a private placement), funding for the services of therapists and a paraprofessional, and reimbursement for transportation costs.  The IHO determined, in part, that:

• the parent had not been given the opportunity to meaningfully participate in the decision making process,
• the decisions of the IEP had been predetermined,
• the IEP team did not adequately consider the negative impact of the large size of the recommended classroom, and 
• other substantive inadequacies existed such as the failure to conduct/recommend a functional behavior assessment, a twelve-month school year, and parent training and counseling.  

The SRO's decision acknowledged that a number of the district's actions violated federal law but nevertheless concluded that those violations were not sufficient to rise to the level of a denial of FAPE.  Some conclusions reached by the SRO left a question mark, such as the conclusion that a Functional Behavior Assessment (FBA) was not necessary, even though an FBA can be critical in helping a person to understand a child's problematic behaviors and formulate an effective BIP.  The EDNY affirmed the decision of the SRO and dismissed the parents' appeal.  The Second Circuit will have a stab at it next. 

2013 COPAA Conference

For those of you who are not familiar, the Council of Parent Attorneys and Advocates (COPAA) is a national organization composed of parents, parent attorneys, and parent advocates whose mission is to protect the rights of children with disabilities (http://www.copaa.org).  This past week I attended COPAA's annual conference which took place in Albuquerque, New Mexico.  As always, the conference included a panoply of workshops, lectures, and brainstorming sessions.  Some of the highlights included:

• A fantastic presentation by Amy Langerman, Esq. about behavior management
• A session with Brian Reichow, PhD., BCBA-D, about the implications of the new DSM-5, especially for individuals with autism
• An interactive litigation strategies session headed by Jon Zimring, Esq.
• A special education finance session with Sonja Kerr, Esq.  
• A session presented by Andy Feinstein, Esq. and Caroline Heller, Esq. about the meaning of "free appropriate public education" 
• A brainstorming session for 2013 policy considerations 

The conference also covered developments in recent case law and current trends in special education.

The 2014 conference is slated for March 7-10 in Baltimore, Maryland.           

A.S. v. New York CIty Department Of Education

Oral arguments were heard last week at the Second Circuit in the matter of the appeal of A.S. v. New York City Department of Education.  The appeal concerned a number of issues including: (1) parental involvement in the placement process and a parent's right to be notified about a proposed school placement; (2) the issue of methodology and who should determine what methodology a child will receive; and (3) the role of deference to the SRO, especially where the SRO has reversed a thorough, well-reasoned decision by an IHO.       

In this case, the Department of Education (DOE) provided notice to the parents regarding one school placement and then defended a different school placement at the impartial hearing.  The IHO ultimately ruled in favor of the parents after determining that the DOE had not met its burden of proving that the child would have progressed as a result of the program and placement that the DOE had recommended.  (It appears that the DOE's placement would have employed a TEACCH methodology, whose effectiveness for this child was not supported by the record.)

Oral arguments for this case were lengthy, at least compared to other cases that were heard that morning.  The case of R.E. v. New York City Department of Education, a recent decision from the Second Circuit, played a prominent role in the discussions.  The parties argued about issues of transparency in the special education process, a parent's reliance interest with respect to a recommended placement, the extent to which the individual acting as district representative at a child's IEP meeting must be familiar with "alternate resources" (other than public school programs) that can meet a child's needs, the issue of educational methodology and the role of a 1:1 paraprofessional, and the burden of proof in IDEA cases.

It is noteworthy that when asked why the Court should defer to the SRO rather than the IHO, the attorney for the school district did not have an answer.