logo In a decision issued on May 21, 2007, the United States Supreme Court ruled that a parent has the right to represent themselves in court, without the assistance of an attorney, in appealing an adverse special education due process decision. Winkelman v. Parma City School District, 550 U.S.____, No. 05-983, (2007). The Court's decision overrules the decision of the Sixth Circuit Court of Appeals and a number of other Circuits, which had previously held that while parents could represent themselves, as well as their child, in due process hearings, they could not represent the child's interests in an appeal to court. These prior rulings were based on the circuit courts' view that the right to a free appropriate public education belongs only to the child and that the general (common law) rule that non-lawyer parents cannot represent their minor children applies to IDEA cases as well. As a result of the Winkelman decision, parents may now be permitted to represent their child's interests in litigating special education cases on a pro se basis. In other words, as in a due process hearing, the parents can represent the child in a court hearing or appeal by themselves. It is worth noting, however, that while it is far preferable that the Court ruled in the parents favor, the hurdles for parents to successfully litigate a case in court, even with competent counsel, are substantial. Without the benefit of counsel, the chances of success are even more limited. While this case is an important moral victory for parents, and creates an option for some parents that is important in giving them access to the justice system, the difficulties of facing and prevailing against well-financed, experienced school lawyers is still daunting.

In the long run, the solution for parents to have equal access to the courts is not the Winkelman decision. Rather, it is the provision of adequate funding for low and no-cost legal services organizations to provide representation to those who can't afford it, such as legal aid and the protection and advocacy agencies, to have Congress overturn the Arlington decision, which precludes reimbursement of expert witness fees for prevailing parents in these disputes (even at the due process level), making it very hard to prove the schools have denied FAPE, and to have Congress overturn the 2001 Buckhannon Supreme Court decision, which effectively precluded parents from recovering attorneys' fees for successful mediations and settlements. Buckhannon essentially put parents in the untenable position of accepting settlements at the mediation stage, but without the ability to recover attorneys' fees (sometimes making settlement worthless because of the cost of representation), or reject an otherwise desirable settlement and gamble on prevailing at hearing, as winning in an adversarial proceeding is the only way to recover fees. Thus, while Winkelman is welcome news, it is only a small step, unlikely to be used by most families. It does NOT provide the broad solution to inadequate access to representation that is desperately required. To read the Winkelman decision, click at the following web link: http://www.supremecourtus.gov/opinions/06pdf/05-983.pdf .

New 9^th Circuit Decision Increases Risk That RTI will Result in Delayed or Refusal of Eligibility for Children Suspected of Having Learning Disabilities

A new decision from the 9^th Circuit Court of Appeals, Hood v. Encinitas Union School District, 47 IDELR 213 (9^th Cir. 2007), raises new concerns that children suspected by school districts of having learning disabilities and referred prior to evaluation for "Response to Intervention" services in regular education do not qualify for special education if they make sufficient progress to meet '"the basic floor of opportunity," originally recognized in the landmark Supreme Court Case of Hendrick Hudson School District v. Rowley, 458 U.S. 176 (1982). The Rowley decision did not address eligibility, but rather what services a child already determined eligible for special education was entitled to receive consistent with the child's right to a free appropriate public education. The Rowley court held that the child was not entitled to the best education, but rather one that was based on an IEP developed consistent with IDEA procedures and that was reasonably calculated to allow the child to receive some educational benefit. Notably, many courts have subsequently interpreted the FAPE standard to require that the child receive "meaningful" educational benefit.

However, given the new Congressional provision allowing schools to refer a child suspected of having a learning disability for "research based intervention" in regular education, prior to determining whether to evaluate them for LD, let alone make them eligible, this new decision arguably will make it even harder for children with LD to qualify. The decision was based on the assertion that the child was making progress, given that she was receiving average or above average grades and did well on achievement tests. The case was decided based on the law prior to passage of IDEA 2004 or the issuance of the IDEA 2006 regulations, so was not predicated on the new RTI language, but gives fuel to the argument that if a child is generally performing well in regular education, they are not eligible for special education, even if they have apparent discrete problems in a particular area of learning. In contrast to the court's conclusion, the new IDEA regulations provide that "Each state must ensure that FAPE is available to any individual child with a disability who needs special education and related services, even though the child has not failed a class or been retained in a course or grade, and is advancing from grade to grade." 34 CFR 300.101(c)(1). It is unclear if consideration of this language would have altered the court's conclusion, but it does make clear that IDEA 2004 required that consideration be given to the child's overall functioning, rather than just passing grades or adequate achievement test scores.

Texas Court Recognizes that the State May be Responsible When a Local School District Fails to Provide FAPE

The IDEA has long held that the state education agency responsible for the implementation of IDEA in their state has ultimate responsibility for assuring that all children identified as eligible for special education are provided FAPE by their local school district. The law has historically specifically indicated that where FAPE is not provided by the local district, the state may be held responsible for providing services to insure FAPE and may seek reimbursement from the local district after the fact. However, this provision of federal law has almost never been used, nor tested in court. In an important decision from Texas, a federal district court held that The Texas Education Agency would have to defend the failure to provide FAPE to a child diagnosed with ADHD and Irlen's Syndrome, along with the local school district. T.B., b/n/f Debbra B., vs. Bryan Independent School District and Shirley Neeley, Commissioner of the Texas Education Agency, 47 IDELR 224 (N.D. Tex., 2007). This decision is powerful in confirming the ultimate responsibility of the state education agency in ensuring FAPE for all students. The court writes: "Due to the TEA's responsibility as the agency in charge of the IDEA in Texas, the plaintiff may trace any harm in not receiving a FAPE directly to the TEA." This decision, while recognizing a responsibility that has been long standing, creates new possibilities for enforcement of the rights of children and suggests that plaintiffs seeking FAPE should more aggressively pursue the state as a co-defendant in such actions.

Test Lawsuit Seeking Damages Alleging Autism Caused by Vaccine Proceeding To Trial

The first case seeking damages based on the allegation that a child's autism was caused by the MMR vaccine is going to trial on June 11 before a special tribunal of the U.S. Court of Federal Claims. The case, Cedillo vs. Secretary of Health and Human Services, will be the first trial to address whether the administration of the MMR vaccine and/or the presence of mercury in the vaccine, caused Michelle Cedillo's autism. More than 5,000 of these cases are currently pending. If the case is successful, it will likely lead to a huge increase in claims and create the potential for financial recovery for families with children with autism that will allow them to more adequately obtain and provide services for their children. The US government denies there is a link between the vaccine and autism. For more information, see www.law.com/jsp/article.jsp?id=1180947929140

Virginia Tech, Columbine and Zero Tolerance - Shifting from Punitive Reaction to Prevention, Early Intervention and Positive Action - Thoughts on Systemic and Individual Action to Promote Positive and Preventative Responses to Promote Safer Behavior and Safer Schools

Since the horrible mass murder at Virginia Tech a few weeks ago, our society has been forced to once again confront the presence of random extreme violence directed at completely innocent victims. Like Columbine and other mass killings, we are especially shocked by these awful events when they are directed at students, whether young or older. And we are particularly shocked when they occur at schools, which should be safe havens for those attending them - places of learning, of community, of peace, of personal growth, places of safety. Mass school killings fly in the face of what school communities should represent, so they may impact us even more profoundly than when murders occur in other situations.

As one with children who are now or have attended public schools and been a part of college communities, I want my children to be safe. I want all children to be safe. I want them to be able to focus on learning, on growing, on experiencing the joys of childhood in a healthy and safe environment, without fear of random deadly violence. So, like all of us, I am appalled by these events, mourn for those who are the victims, and saddened that to a lesser degree we all become victims, as these events ultimately have an effect on the climate and environment of all schools and create a climate of fear in our communities.

In reaction to these tragedies, we must respond thoughtfully, constructively and in a manner that advances the safety of our students, while simultaneously making it more likely that we can prevent or reduce the frequency of such events occurring in the future. Many schools, eager to prevent such horrors from occurring within their programs, have reacted by adopting stringent Zero Tolerance Policies, by installing metal detectors, by making it easier to search student lockers, by initiating aggressive disciplinary policies that make it more likely that students will be expelled, not only for their actions, but their thoughts, their drawings, their jokes. Many schools have responded with harsh punishment to students who have been found with drawings, doodling, or even creative writing assignments that have violent themes. An Illinois school district recently expelled a student, who was also arrested, for excessively violent content in a school essay he wrote. Young children are being suspended, expelled and/or prosecuted for bringing look alike weapons to school or even real weapons, but weapons whose danger they don't comprehend.

Children with disabilities are especially vulnerable to such punitive measures, because they are vulnerable to being set up to carry, trade, or hide weapons or drugs by other students. Conversely, they may bring weapons to school because they are being harassed or bullied because of their disabilities and lack the ability to seek help or protect themselves. They, too, are being subject to harsh discipline despite the circumstances in which they became involved with weapons.

To be clear, I believe schools need to be safe. I believe in stringent security. I believe that students who commit serious crimes should be subject to prosecution, if they have the requisite intent to commit the crimes. At the same time, I do not believe these steps are either sufficient or effective to get to the root of the problem of violence in schools (and in our society). Moreover, in many instances, lock-step draconian zero tolerance policies end up severely punishing many children for actions which do not warrant the extreme punishment they receive, take into account the circumstances of the offense, or the child's ability to understand or control their behavior, nor contribute to positive behavioral change.

System Change

We need the schools to do a better job of teaching staff to identify risk factors for mental illness and for violence. We need to provide more mental health diagnostic and treatment services within and in collaboration with the schools. We need to focus more training and resources on mental health early diagnosis and intervention by having screening systems that alert us to children who are at risk. We need to provide better coordination and support to families so that they also can get access to community based mental health services for those children who are in trouble or at risk for violence. We need to have available more rapid and effective intervention for children who do get into serious trouble and/or commit acts of violence, rather than focusing predominantly on punishment or exclusion. Expulsion only transfers the problem to the community. It does not help to solve whatever problems led the child to commit the acts for which they are in trouble. We need better coordination between schools, mental health providers and the justice system to divert kids to treatment when they are beginning to get into trouble.

We need schools which promote social development, problem solving, and citizenship and that teach children with deficits in these areas, rather than ship them off to "alternative schools," where they are warehoused, but not helped. We need to engage the families throughout these situations, so that they are involved, supported, and supportive. And we need to engage the community, so that the community supports systems of effective diagnosis and treatment, rather than focusing on punishment or retributive justice. There are many demands on schools, perhaps unreasonable demands, and often unfunded demands. But exclusion does not solve these problems. We must provide the schools with the funding, the staff, the training and the mandate to provide social and emotional support for children and families at risk. For now, the schools are set up to fail, as are the children struggling with mental health issues. WE CAN ONLY SOLVE THIS PROBLEM as a society, by providing systemic improvement in how we address the problem. WE CAN ONLY SOLVE THE PROBLEM BY PROMOTING TREATMENT, NOT PRISONS, WHETHER THEY ARE RUN BY THE CORRECTIONAL SYSTEM OR THE EDUCATIONAL SYSTEM. Please encourage your school boards, your state legislators, and your federal legislators, to support efforts to promote school-based Positive Behavior Intervention Systems, to promote increased funding for community based mental health services, to support Mental Health Parity in insurance coverage, to promote interagency cooperation between educational and mental health systems, and to promote early screening, diagnosis and treatment for children at risk for mental health problems and/or violence.

What Parents and Educators Can Do to Help Promote Positive Behavior and Protect Children with and without Disabilities from Inappropriate and Excessive Discipline

1) Educators and parents need to be trained to recognize the early warning signs of school failure and of the presence of emotional or behavioral disorders. Sudden displays of aggression, non-compliance, depression or withdrawal, dramatic drops in academic performance, involvement with drugs or involvement with negative peer groups may be indicators of underlying emotional problems which should trigger evaluation and, where indicated, treatment and behavioral intervention.

2) When such problems are suspected, the person seeking help should always request evaluation in writing, keeping a copy of the request and obtaining a receipt confirming that the request was received by the special education administrator.

3) Where a school is not responding to a child's perceived emotional or behavioral problems, parents should seek out evaluation and treatment from community based mental health providers, whether public or private. Information about outside evaluations and treatment should generally be shared with the schools, along with requests that the schools collaborate in providing supports to the child. (Note that parents must make individual decisions about whether to share such sensitive information, but that it is less likely the schools will respond to requests for help if such information is not made available, nor will they be able to coordinate services as effectively without that information.)

4) Even children who are neither in special education nor covered by a Section 504 plan can get assistance from school staff in dealing with acute crises or long-standing but less severe problems. Non-identified children can receive support from school counselors, school social workers and supportive teachers. Similarly, school staff who perceive a child to be at risk or in trouble can encourage parents to seek help from community based mental health providers, in addition to what ever interventions the school is offering.

5) Positive behavioral interventions should be promoted, even if informal, in all areas where the child is having difficulties. Again, this can occur even if the child is not covered by an IEP or 504 plan. However, if a child is displaying severe, continuing or escalating difficulties, it is important that they be referred for evaluation.

6) If a child is determined to be eligible for an IEP or Section 504 plan, regardless of the label that is assigned, the plan should describe in detail the various ways the child's disability may impact the child's behavior, including the ability to understand and follow school rules, the ability to understand staff directions, the ability to understand and engage in appropriate social behavior or understand the verbal and non-verbal communications and behaviors of others, the ability to control one's own behavior, and other disability related symptoms that may contribute to problem behavior. Even a child's excessive sensitivity to noise or to unstructured situations should be documented, so if a problem develops, there is already a record that these environmental factors may have contributed to or caused a problem behavior.

7) For children with behavioral issues, the IEP or 504 plan should include goals and strategies to help teach the child appropriate behavior, coping strategies, and means of dealing with the problems that put them at risk for inappropriate behavior, such as social skills training, anger management training, problem solving strategies, and means to self-advocate to avoid situations that may trigger problem behavior.

8) Similarly, these plans should provide a menu of interventions to address the child's needs, individualized to the child, but including things such as:

a) individual and/or group counseling;

b)provision of an adult mentor or advocate within the school;

c) procedures for the child to seek a quiet or safe place to deescalate or calm down;

d) positive reward systems for demonstrating appropriate behavior;

e) peer buddies to assist and support the child;

f) use of alternative environments or schedules to minimize problems based on unstructured situations, such as allowing a child to pass in the halls five minutes early to avoid the chaos of passing period, if this is when they have trouble, or allowing the child to have lunch in a class room if the cafeteria is too noisy or rowdy;

g) frequent communication between home and school to identify and address positive and negative events that may impact behavior;

h) use of coordinated positive behavioral programs between home and school;

i) exempting the child from minor rules that do not involve safety, but which may trigger academic and behavioral consequences, such as a child being suspended for being late to class when they have organizational or time management deficits;

j) providing a child with extra breaks for quiet time or exercise, depending on their needs, in order to help them to stay on task and focused;

k) developing in advance intervention strategies for when the child is in crisis that allow for a more coordinated and planned response that takes into account the child's particular issues. For example, some children respond well to strong staff direction, while others respond more to strategies geared to deescalating. Some students are tactilely defensive and generally shouldn't be touched unless they are seriously out of control and posing a danger to themselves or others. Some students have trouble processing verbal direction and should be given extra time to respond to staff directives, etc.

9) Make sure that all behavioral problems and the resulting interventions are documented and that parents are immediately informed of any problems. If problems are escalating or existing plans aren't working, convene an emergency meeting to figure out why the problem is occurring and consider more effective strategies for addressing it.

10) Use functional behavioral analysis, behavior plans and behavior consultants to assist in analyzing the problem and developing effective solutions. Recognize that a plan's lack of success may be due to a) an inadequate plan, b) ineffective implementation, or c) changed circumstances that require a new approach, rather than that the child is intractable, untreatable or must be put in a more restrictive setting.

Illinois Passes Legislation Extending Special Education Services through the 21^st year.

logo Under the special education system, children with disabilities have historically been eligible for special education services until they graduated from high school or reached 21, which ever came first. For those students lucky enough to turn 21 during the school year, they were allowed to finish out that school year. Under new legislation in Illinois, awaiting the Governor's signature, students with disabilities who do not graduate at the end of their senior year due to the continuing need for special education services will be eligible for services until the day before their 22^nd birthday. This extension of services is a result of the recent passage of Illinois House Bill is 817/Senate Bill 397.

Illinois Legislature Also Passes New Provision allowing Students Over 18 to Provide Delegation of Authority to Parents

SB 396/HB 816 has passed both the Illinois House and Senate. The new provision provides for students who have turned 18, do not require guardianship, but may need assistance from their parents in making decisions, to provide a delegation of authority to the parents to participate in the IEP process and make decisions on the child's behalf. The student retains the right to retract the delegation of authority at any time. The bill is pending signature by the Governor.

ISBE_Reintroduces State Special Education Regulations

ISBE has reintroduced the new Illinois Special Education Regulations, Section 23 Illinois Administrative Code, 226. The new proposal has many of the same problems with the proposal previously rejected by the Illinois Joint Commission on Administrative Regulations. Of greater concern, the ISBE is proposing that the schools be required to implement new programs for "Response to Intervention" to address the needs of children who may have learning disabilities in regular education. Of greatest concern, the proposed regulations provide for schools to address class size based on private negotiations with the local teachers' unions. This proposal has the effect of giving power to the unions over special education class size. This has the effect of shifting policy making from the legislature and allowing for individual districts to decide on class size for children with disabilities, rather than based on a state-wide policy based on input from the public and an open legislative process.

Matt Cohen Upcoming Presentations

August 24-25, 2007

University of Tennessee Law School, Knoxville

IDEA Overview

September 20, 2007 8:30 - 10:00 a.m.
Expanding the Marketplace for Rehabilitation Service:Opportunities, Networks, and Resources: IDEA Transition Requirements
Sponsored by the Illinois Association of Rehabilitation Professionals
Harper College Conference Center, Palatine

September 27-28, 2007

IDEA Panel

Illinois Alliance of Administrators of Special Education Fall Conference

Tinley Park Convention Center

October 11, 2007 7:00 - 9:00 p.m.

IDEA Rights

Suburban Access

925 175^th Street

Homewood, IL 60430

October 24, 2007

Lorman NVLD Conference

November 7-10, 2007

CHADD National Conference
1. From Then to Now: Special Education Regulations (with Joleta Reynolds)

2. Accommodations in Testing and Higher Education (panel)

3. Bringing ADHD out of the Closet - The Emotional, Cultural and Political Barriers to Adult Diagnosis and Their Impact on the Individual (with Norma Echavarria, M.D.)

Hyatt Regency Crystal City

2799 Jefferson Davis Highway

Arlington, VA 22202

www.chadd.org

February 27 - March 1, 2008

LDA National Conference
1. Intensive Workshop on New LD Criteria

2. The Expanding FAPE Standard and Its Impact on Kids with LD

Chicago, IL

www.ldaamerica.org

March 6 - 9, 2008

COPAA National Conference
Attorney Training

Anaheim, CA

www.copaa.com

Donate to the MATT COHEN CHADD MEMBERSHIP SUPPORT FUND

The CHADD Matt Cohen Membership Support Fund is running dry. The fund is used to provide free memberships to persons interested in joining CHADD, the premier advocacy organization for children and adults with AD/HD and their families. The fund also provides financial support to assist families to attend CHADD's annual conference, which is held in the fall of every year at different cities around the US. To make a donation to the Matt Cohen Membership Support Fund, please send your check, payable to CHADD, with a note on the note line of the check and an accompanying note indicating you are making a specific donation to the Matt Cohen Support Fund, to CHADD, CHADD National Office; 8181 Professional Place - Suite 150, Landover, MD 20785. You can also make a donation by phone, by callingSue Odachowski at 800-233-4050. ext. 105.

Matthew Cohen is a founding partner in the Chicago law firm, Monahan and Cohen. Currently admitted to practice in both Illinois and Indiana, his practice is concentrated in representation of children and families in special education and discipline disputes with public schools. He also has extensive experience in mental health and confidentiality law.

If you have any questions, please call his assistant, Tami Kuipers, at 312-419-0252.

Sincerely,

Matthew Cohen
Monahan & Cohen

225 West Washington, Suite 2300

Chicago, IL 60606

312-419-0252