Special Education Law Blog

IDEA Fairness Restoration Act Call Congress on May 6, 2008

It is time that we make our voices heard in C0ngress. The following pending bill is one in a series of measures to overturn ill conceived and damaging Supreme Court decisions that have harmed the rights of parents.

PLEASE CALL YOUR CONGRESSIONAL REPRESENTATIVES (202-224-3121)
ON TUESDAY, MAY 6, AND ASK THEM TO CO-SPONSOR THE IDEA FAIRNESS RESTORATION ACT, H.R. 4188.  This bill will allow parents who prevail in due process or litigation under IDEA recover their expert witness fees.  Few parents can afford the thousands of dollars needed to pay for expert testimony. 

School districts use tax dollars to employ and pay for psychologists and other paid experts at IEP meetings and hearings.  Parents have fewer resources and yet must bear a greater financial burden.  H.R. 4188 is important to help level the playing field for the nearly 7 million children with disabilities.  Introduced by Congressman Chris Van Hollen (Maryland) and Pete Sessions (Texas), it will restore Congress’ original intent and allow parents to recover their expert fees.

Over 100 disability organizations, including the Consortium of Citizens with Disabilities, Arc, Easter Seals, the Council of Parent Attorneys & Advocates, Inc., National Disability Rights Network, National Down Syndrome Society, National Down Syndrome Congress, Learning Disabilities Association, National Center for Learning Disabilities, CHADD, and others support H.R. 4188.  But we need your help to get it passed.

Call to Action - Tuesday, May 6, 2008

On Tuesday, May 6, 2008, please call your Congressional Representatives (202-224-3121) and ask them to cosponsor H.R. 4188, the IDEA Fairness Restoration Act.  Have friends and family members call.  It will only take 2-3 minutes!  Please join us for this national call-in day, May 6.

If you do not know who your Congressional Representative is, go to http://www.house.gov and put your zip code into the box in the upper left corner.   (You usually only need your five digit zip code.)  You can also use http://www.congress.org to look up Representatives and phone numbers.  PLEASE CALL YOUR REPRESENTATIVES INSTEAD OF USING EMAIL.

It helps if you ask for the Education Aide, but you can also talk to the person who answers the phone.  You can also leave a voicemail message.  Tell them you are a constituent and would like the Congressperson to co-sponsor H.R. 4188, the IDEA Fairness Restoration Act.  Congress needs to hear from as many parents, advocates, attorneys, and others as possible.

Please make a phone call on May 6, even if you've made one before.  We want Congress to hear from parents and advocates for children, and one way we can make sure they hear us is to call them.  If you can’t call on May 6, it’s okay to call afterwards.  Ask your friends and family to call, too.  Congress needs to hear from all of us!

It’s Important to Cosponsor the IDEA Fairness Restoration Act (H.R. 4188).

The IDEA Fairness Restoration Act would override the Supreme Court's decision in Arlington Central School District v. Murphy (2006) and allow parents who prevail in due process or litigation to be reimbursed for their expert witness fees. H.R. 4188 is important to level the playing field and protect the rights of the 7 million children with disabilities. 

When prevailing parents cannot recover expert costs, the playing field is neither level nor fair, and children are denied a free appropriate public education and other fundamental IDEA rights.

Hiring qualified medical, technical, and other expert witnesses can cost many thousands of dollars.  Few parents can afford this high cost, putting due process out of reach for most parents, who struggle to afford what their children with disabilities need.

School districts use tax dollars to pay for psychologists and other paid experts.  Parents have fewer resources and yet must bear a greater financial burden. Approximately 36% of children with disabilities live in families earning less than $25,000 a year; over 2/3 earn less than $50,000 a year.

Congress intended for parents to recover their expert witness fees in the Handicapped Children's Protection Act of 1986.  Allowing parents to recoup their expert fees simply restores Congress' original intent.

If due process is not affordable, the IEP process becomes even more one-sided and unfair.  School personnel control the IEP process and often vastly outnumber parents.  When the right to due process is meaningful, it helps ensure that school districts provide appropriate educations to children with disabilities.

Most parents turn to due process and litigation only as a last resort.  In 2003, the GAO reported that there were only 5 hearings per 10,000 special education students.  But when parents are forced into due process, they should be able to afford expert witnesses.

Want more detailed information? 
Download COPAA’s complete brochure on the IDEA Fairness Restoration Act and enabling parents to recover expert fees, http://www.copaa.org/pdf/MurphyBrochure.pdf
There is also a Spanish language version, http://www.copaa.org/pdf/MSSpanish.pdf
(Lea aqui en Espanol: Murphy y los derechos de los padres para recuperar el costo de los expertos: http://www.copaa.org/pdf/MSSpanish.pdf )
You can read H.R. 4188 here: http://www.copaa.org/news/IRFAct.html
You can read letters from over 100 disability organizations supporting H.R. 4188 here:
http://www.copaa.org/news/organizations.html

For more information about H.R. 4188 and this alert, please contact Bob Berlow and Jess Butler of COPAA at protectidea@copaa.org  Together, we can make the difference and restore a balanced playing field for children with disabilities.

Action Needed on December 3, 2007 For IDEA Fairness Restoration Act

The following is a bulletin from the National Down Syndrome Congress calling for concerted public action on December 3, 2007 to push this bill into becoming law.

IDEA Fairness Restoration Act
Take Action!

Contact Your U.S. Representatives on Monday December 3, 2007!

From the National Down Syndrome Society and National Down Syndrome Congress
November 30, 2007
Action Needed
As we recently reported to you in an information bulletin, the IDEA Fairness Restoration Act (H.R. 4188) was introduced in the House of Representatives on Tuesday, November 13, 2007 by Congressman Chris Van Hollen and Congressman Pete Sessions that would allow prevailing (winning party) parents to recoup expert fees and related costs in proceedings under the Individuals with Disabilities Education Act. Additional background information is provided below.

In order to get this bill moving through Congress the first step is to get as many co-sponsors from both parties as possible. On Monday December 3, 2007, NDSS and NDSC urge you to contact your Representative with the following message about the IDEA Fairness Restoration Act (H.R. 4188):

Please co-sponsor the IDEA Fairness Restoration Act (HR 4188). It will level the playing field for parents who must advocate for a free, appropriate education for their child.

If you wish to call your Representative, you can find out the name and phone number at http://www.ndss.org/index.php?option=com_wrapper&Itemid=174.

If you wish to send an email, go to: http://capwiz.com/ndss/issues/alert/?alertid=10597931. You will have a sample email available (that you can edit to meet your needs). The email will be sent to the correct Representative based on your home address.

Additional Background Information

In 1986 Congress included language in the IDEA Conference Report (an explanation that accompanies a new law that is not explicitly included in the legislation) that allowed attorney's fees to be awarded to parents or guardians, including "reasonable expenses and fees of expert witnesses and the reasonable costs of any test or evaluation which is found to be necessary for the preparation of the parent or guardian's case.''
The Supreme Court in Arlington Central School District v. Murphy (2006) held that courts could no longer award expert fees and other related costs since this intent wasn't explicit in the statute.
The IDEA Fairness Restoration Act mirrors the text of the Conference Report almost exactly to fulfill Congress's intent.
This bill will not cause a rush of litigation. Parents only initiate due process proceedings and litigation as a last resort. However, in order to even the playing field, this option must be one that parents are financially able to exercise.
Expert testimony and expensive evaluations are generally necessary in IDEA proceedings in order for parents to prove their case. Unless they can be reimbursed for expert fees and related costs, most parents will not financially be in a position to advocate for their children's educational rights should these proceedings become necessary.
This bill provides that parents can be reimbursed for expert fees and related costs only if they are prevailing parties.
If you have questions or comments about this action alert, contact Ricki Sabia at rsabia@ndss.org or Susan Goodman at SusanG1961@aol.com.

If you or others you know would like to be added to the NDSS mailing list, send name(s) and email address to advocacy@ndss.org

National Down Syndrome Society
666 Broadway, New York, NY 10012
Phone: (800) 221-4602; Fax: (212) 979-2873
Web site: http://www.ndss.org

NDSS National Policy Center
8650 Georgia Avenue
Silver Spring, MD 20910
Phone: (800) 743-5657 Fax (301) 563-6896
e-mail: advocacy@ndss.org

Good Examples of Parent Input Statements

I have written in the past as to the importance of parent input statements. A friend has sent me examples that have proven to be especially useful for her children, that can serve as a model for future advocacy. These statements are clear, concise and present the child in real terms. The statements offer guidance and insight to a receptive school team.

I can not emphasize strongly enough how important it is to document concerns, present arguments in writing and conserve time at meetings; parent input statements serve all these functions.

Download dear_teacher.doc
Download parent_attachment_sophia.doc

Time to Reverse Shaffer and Arlington Central: IDEA Fairness Restoration Act

COPAA, one of the leading legal advocacy organization that focuses on special education rights is organizing letter writing parties and a campaign generally to overturn the Supreme Court's decisions in Shaffer (burden of proof on parents in due process) and Arlington Central (no expert's fees to parents even when they prevail in due process). Both of these decisions can be overturned with Congressional action to amend IDEIA to expressly shift the burden of proof back to the schools and to allow recovery of expert's fees to prevailing parents. Congressional action will depend upon parents, grandparents, friends, relatives and others who care about these issues to write, fax and place calls to their Senators and Congresspersons. The following is an open letter from COPAA regarding the need for everyone to contact Congress to support the IDEA Fairness Restoration Act. Download idea_fairness_restoration_act_final.pdf which has just been introduced in Congress. This bill would overturn the Arlington Central decision and again allow for recovery of expert's fees when parents prevail in a due process case.

Lessons Learned From the Blog at the 2 Year Anniversary

Amazingly what started as a lark 2 years ago has grown to the point where there have been close to 200,000 page views averaging about 250 per day and nearly 600 comments from so many wonderful readers of the blog. The numbers do not tell much but there are deeper lessons:

1. People need, crave and love humor; an especial thanks in this department goes out to my wife, Lori Miller Fox, who is far and away funnier than I can ever hope to be. Laughter is the balm for the profound pain that so many of us experience each day;
2. Too many school people (by no means all) can not laugh at themselves and are incredibly sensitive to rebuke even if expressly not directed at them. The amount of hrrmphing over the years has been remarkable.
3.  Parents need and have a right to plain spoken guidance and in many cases will use that information to pierce the veil of misinformation and get a FAPE for their child;
4. There is an ongoing need to uncover the persistant myths of special education: cases are brought to due process at the hands of money hungry unscrupulous attorneys; special education is draining the education system; school people are above reproach and never hit, lie, cheat, perjure or steal; to provide a FAPE would bankrupt the system (when so often there are cheap readily available answers and remedies which only require an attitude  adjustment;
5. The golden rules (among others) have been and remain: be creative, stay focused, look for the win-win answer at all costs, and document crucial facts

So what is the focus in the future:

• Bring out issues essential to the community of students with special needs in the upcoming elections;
• Fight for legislation to overturn unfortunate rulings in Arlington Central and Shaffer;
• Advocate for more job training, transition programming and constructive alternatives to break the cycle of special education class leading to drop out or convict status;
• Resist all efforts to carve out exemptions to NCLB which will insure our children are left behind;
• My personal dream-to organize a million wheelchair march/roll on the mall in Washington D.C. to demand our rights as citizens and human beings without any resort to cliches or demoralizing pity.

Keep reading; I will keep writing; keep the faith that effective advocacy is the only path to a meaningful future for so many wonderful students/loved ones; the only zero tolerance is for hateful narrow-minded bigoted people wherever they may be.

Affirmations for Father's Day-Post #5

Being a Father of a child with special needs (in this case a child with CP) is a life-defining event. The following are some affirmations that I have found helpful to do my best through the years:

1. The role of the Father, although not as well defined, as that of the mother, is central;
2. Stability and constancy in your child's life give direction to move forward in a positive manner;
3. School people respond differently and are more apt to hear the Mother when the Father or other significant male is present;
4. More than success in work, becoming an effective advocate for your child sustains self esteem and self worth over time;
5. It is incredibly hard to define, strategize and implement effective advocacy without another invested adult on behalf of the child. While that does not have to be the other parent, when applicable, the Father should make every effort to step up and play this role.
6. Although the fight often can be hard, the rewards are incredible.
7. Working for myself has allowed me the schedule to do what I need to for my son. If working for yourself is an option, consider it seriously as it will allow you to make most of fatherhood.

Helping Parents and Others Get Through to Another Day- Post #4

Although this site specializes in resources for families in California, the Autism Law site should be a starting point for a parent or legal professional beginning a case for a child with autism. It is comprehensive in its scope both on the law and related resources.

The PACER Center which is clearinghouse of information on topics related to all disabilities including autism, it has a great article on preventing the dangers of household chemicals related to the development of special needs, including autism.

One of the most awesome bloggers on all things special education and special needs is Terri Mauro. She publishes several different blogs which can be accessed from her "personal" blog Mamatude. How she has the time to raise two children with special needs and consistently publish quality blog material is beyond me. All of her blogs are worthwhile reading for their humor, humanity and resources.

A friend of mine publishes the blog Raising Romulus and Remus. Again, while her twin boys from Russia do not have autism, her predicaments, and the day to day tumult that Lydia describes with much fun and aplomb is worth the read, if for no other reason than it will help you get through to another day. Most parents of children with autism and other special needs will be able to relate to her daily trials.

Liz Ditz of the blog I Speak of Dreams has a wide ranging scope and always seems to zero in on the most crucial parts of important articles and arguments. She has one of the most comprehensive blogrolls I have ever seen, and is always worthwhile reading.

Peggy Lou Morgan writes with incredible pathos about her day to day work with her son, who has autism. She spares no details without becoming maudlin. A parent will never feel that they are the only ones going through things after spending time reading Peggy's accounts of the good and bad times raising a complex child.

A personal favorite of mine is Ryn Tales about the adventures of raising a 27 week preemie with CP. I have to admit that I immediately connected with her site because my son was also a 27 week preemie and has CP. She writes well and does not pull any punches when it comes to the concerns a parent has about the day to day of raising a child with physical challenges. She also brings out a lot of great resources in her postings.

Labelling Parents to Hamstring Advocacy-Post #3

Too often parents with special needs get as many labels as their children, and many of these labels are not very flattering at all. These labels are intended to put parents back in their box and to stifle future efforts at advocacy. There has been some recent discussion that in some states it has become common practice to call Child Protective Services to intimidate parents from exercising effective advocacy. One parent recently even told me of death threats and harassing phone calls to warn her off of advocating. Really amazing stuff, when you consider that parents are exercising their legal rights to advocate on behalf of their children; the most natural role for a parent to take.

One of the most pernicious labels that I have seen liberally thrown around is Munchausen by proxy. Essentially the argument goes like this: parent (Mother) has "issues" and invents disabilities to garner attention for herself, and advantages in school for her child that special education can bring. This devastating label can stop even the strongest parent in their tracks. Unfortunately, parents need to prepare for this possibility especially when the presenting concern is not readily apparent in school, so therefore, it must be made-up or worse. Advocacy in this area of the law can be a rough business and parents need to come prepared not only for the labels to be applied to their children but to them as well.

Special Education and Related Blawgs Post #2

The best known resource, although not a blawg is Wrightslaw.com. The amount of energy and time that Pete and Pam Wright and their staff put into this massive site is incredible. Despite the fact this site has been around for many years, some parents are not familiar with this site which should be the starting point for any parental research project in the area of special education advocacy; this site will provide access to case law, understanding educational methodologies and evaluations, just to name a few.

One of my personal favorites in the strictly blawg category is the Disability Law Blog. This site is hosted by a law professor from Washington University (my undergraduate alma mater) Law School, and it shows. The articles are thoughtful, useful and not just designed for attorneys. The postings are incredibly timely and have commentary that help put the topic into perspective and context.

The blawg that inspired me to start my own blawg is Fapepage. Although the postings are not daily (as has been my bane recently as well), the author comes up with some gems of case law and is always a worthwhile read for topical information that sometimes gets overlooked else where. Sandy Hausler is also a very nice person and has generously shared much information with me.

Dorene Philpot, who recently moved from Indiana to Texas, which is a loss for families in Indiana, has a wonderful website that is chock full of resources and some selected humor as well. It is a good site to check out especially for guidance and case law in the 7th Circuit.

Another site to look to for statutory and regulatory references and many special education resources, especially for those in New Jersey is from Sussan and Greenwald. This site is well organized and updated frequently with case law both state (N.J.) and Federal. I particularly like the autism study they have linked at their site. There is a solidness about this site that inspires confidence that the information is accurate and not over done.

Any parent or special education professional that consulted any or all of these sites in addition to this site would be well armed for advocacy on behalf of a child with special needs.

Where Has All the Outrage Gone ?

I am so often left shaking my head when I finish reading a due process or court decision that completely missed the boat. Hearing officers and judges go through gyrations to justify the school's actions and omissions while children with special needs have been denied even a semblance of an education. Many of the cases that go to hearing and to court spotlight the really ugly failings of the special education system in this country. I am left wondering for a framework and a context to understand why all the hand wringing and intellectual distortions to support the basic fact that the school district has failed the child. It is difficult for many to see the school as a big part of the problem and it is far easier to blame the child.

Well finally, a recent piece from Dan Rodricks of the Baltimore Sun, has helped me come to some understanding of why society does not rise up and demand more of the special education system, denouncing:  unemployment rates for the disabled that are close to 50%, dropout rates among high schoolers with special needs that hover around 33%, that our jails are overcrowded with adults (and children) who are the outcasts of the system, and the masses of children who matriculate through the system and receive no instruction or no effective instruction in reading and other core subjects. The following article deserves to be read and re-read and discussed widely. [Thank you to Sue Keller for sending it to me.]