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Monahan & Cohen
Local
and National News:
Back to School Tips, Part II
September 2008- Vol 12 Issue 1
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From the Desk of Matt Cohen
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 Welcome to Monahan and Cohen's newsletter
dedicated to bringing you Special
Education news from both the national and local levels.
312-419-0252
fax 312-419-7428
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Our New Office
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 Our
offices are now located at
55 West Monroe, Suite 3700
We are located at the southwest
corner of Dearborn and Monroe.
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Saving the Honeymoon Before It's
Over: Early Warning Signs of Problems at School
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Every year, children and their
parents approach the start of school with a combination of anticipation,
excitement, and anxiety. We hope for a great start, good
teachers, nice kids in class, smooth sailing, but we worry that things
may not go so well. We recall the butterflies we feel each
morning, as our kids leave for school, and we quietly hold our breath,
hoping that they will have a good day, that the teachers will be skillful
and attentive and that they will do well on the next test and be treated
well by the other kids in the class. For children with
disabilities, our fears our even greater as they are more vulnerable to
the impact of poor or indifferent teachers, services that are not in
place when they should be, children or staff that are insensitive or
mean. So as the school year starts, parental radar systems
are on high alert. Here are some Early Warning Signs for parents to
be alert to that may indicate that there are problems with your child's
educational program or how it is being implemented - some may seem
humorous or absurd, but all are worth keeping track of:
1) When
your child goes to school the first day, no one knows which class he or
she is supposed to attend or what services are supposed to be
provided. The office isn't even sure of whether the child is
registered at the school. Alternatively, your child is
assigned to a class, program or teacher that is different than what the
IEP provided for or you had been told.
2) Your
child's primary teacher or case manager is unaware that your child has
disabilities or has an IEP or Section 504 plan.
3) Your
child's teachers are aware that your child has an IEP but communicate
that they don't believe your child's disability is real, are opposed to the
accommodations that the IEP requires, or are untrained in the
methodologies that the IEP requires.
4) Your
child is scheduled to receive various services at the start of the school
year, but weeks or months later, your child has not met the therapists
that are supposed to provide the service or have not been given access to
the technology or curriculum they were supposed to be
receiving.
5) The
bus doesn't show up to pick your child up, not once, but for weeks, or
when it shows up, it shows up late.
6) Your
child's homework and books appear to be at an educational level that is
way off from their ability level, whether too high or too low.
Their work isn't being modified and they are either unable to do the work
or it is far too easy.
7) Your
child is having trouble getting up in the morning, doesn't want to go to
school, and cries when the bus arrives.
8)
Within days of the start of school, staff are calling you to report that
your child is struggling, unable to keep up, having trouble behaviorally,
and that the teacher doesn't know what to do. Conversely, your
child's IEP provides for the staff to send home daily or weekly
communication books, weekly emails or similar communications.
Weeks after the start of school, these communications aren't occurring or
do not have the planned information.
9) When
you make suggestions to the staff, they tell you that they are the
experts and while they appreciate your input, you need to trust them to
do what they are trained to do and let them spend their time doing their
job.
10) Other parents
and/or their kids report that your child is being isolated, scapegoated
or otherwise mistreated.
11) Your child has
a paraprofessional working with them part or full-time and that person a)
doesn't speak English, b) has no prior training or experience with kids
with disabilities, c) is using inappropriate strategies or physical
responses to your child, or d) is spending significant time with your
child in the hall or outside the class and there doesn't seem to be any
involvement by the teachers.
Disclaimer:
The content of this list is for general informational purposes only and
should not be considered legal advice. Persons with any questions
about the law or needing further legal assistance are strongly advised to
consult an attorney knowledgable in special education law.
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Monahan and Cohen Wins Unilateral
Placement Due Process Hearing
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Matt
Cohen recently prevailed in a due process hearing against the Chicago
Public Schools on behalf of a child with ADHD and previously undiagnosed
learning disabilities. The parents sought reimbursement for a
unilateral placement of their child in a private school for children with
learning disabilities. The decision was notable because the
student was never in special education and was unilaterally placed by the
parents (with a proper 10 day written notice) before the school had
completed its evaluation and eligibility process. The
school's tardiness in responding to the parents' request for evaluation
and the child's apparent deteriorating performance, in violation of the
school's child find obligations, was a significant factor in the hearing
officer's decision. The IHO ordered the public school to pay
for the upcoming year at the private school and ordered reimbursement of
the cost of the private school from the date the parents first requested
an evaluation the prior year to the end of that school year (about 8
months) as compensatory services for the public school's failure to
timely evaluate the student and provide FAPE. A copy of
the decision is available on our publications page at
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Indiana Changes to Article 7
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Indiana Special Education: Revised
Article 7
by Courtney Stillman, J.D.
licensed to practice law in Indiana and Illinois
Indiana's
revisions to Article 7 were effective August 13, 2008. This summary
generally describes some of the most significant revisions.
Controversial
Change in Placement Rule Under Section 7-42-8 of revised Article 7, a
new IEP becomes effective unless the parent, within ten instructional
days, (1) requests a due process hearing, (2) initiates mediation, or (3)
requests and participates in a meeting facilitated by an authorized
official of the school corporation. A parent is no longer required
to consent to a change in placement or services before a new IEP is
implemented. Now the new IEP is implemented unless the parent takes
affirmative acts to stop the new IEP from becoming effective. If a
parent acts within the ten days, the school must continue to implement
the previously agreed upon IEP as "stay put."
The school must provide written notice of its proposal
or refusal to change the disability label, placement or services of a
student, describe the school's proposed or refused action, explain the
school's rationale and a description of all evaluations, reports,
procedures considered as a basis for the school's action or refusal to
act. The student's IEP may be part of the written notice. The
school may provide the written notice at the case conference meeting or
may mail the notice to the parent. The notice must be received by
the parent no later than ten business days after the date of the case
conference meeting. Upon receipt of this notice, the parent has ten
instructional days to request a hearing, mediation, or a meeting with the
relevant school official.
Note: Because the ten days runs from the date of written
notice, it will be important for parents to keep postmarked envelopes and
record dates of receipt of written notice if not provided at the case
conference. Since the student's IEP may be part of the written
notice, parents should verify that the school's documentation is intended
to be the complete written notice. Parents need to be aware that
the timelines include a mix of "business days" and
"instructional days" (a day or part of a day students are
expected to be in attendance). Parents should confirm which school
administrator(s) are considered the appropriate one(s) to facilitate a
meeting regarding disputed changes to a student's IEP. Presumably,
the challenged IEP's implementation remains stayed if a meeting or
mediation is unsuccessful and the parent must ultimately request a
hearing.
Focus on the
Whole Student Assessments and
programming follow IDEA 2004's expanded emphasis on addressing a
student's functional, adaptive and developmental needs, in addition to
academic needs. See 20 U.S.C. 1414. IEPs must include both academic
and functional goals. 511 IAC 7-42-6(f). A "transitional
IEP," that specifically addresses transition to adult life, must now
be written when the student becomes fourteen years of age or enters the
ninth grade, whichever occurs first. 511 IAC 7-43-4(h). The
definition of "transition services" is expanded to require
community experiences, development of employment, independent living
skills, and other adult living objectives in addition to instruction and
related services. 511 IAC 7-32-100. Before a student receives
a diploma or certificate of completion or ages out of special education
at age 22, the school must provide the parent or student a summary of
performance that describes the student's academic achievement and
functional performance and includes recommendations to assist the student
in meeting post secondary goals. 511 IAC 7-43-7.
Note: The Summary of Performance is an important document
to determine whether the student's goals are being met and may be a tool
to obtain compensatory services for the student if the student has not
received a FAPE.
Changes to Case
Conferences and IEPs A
parent and school may agree in writing to excuse a member's attendance at
the case conference for all or part of the meeting. See 20 U.S. C.
414(d); 511 IAC 7-42-3(h). Any member may write and submit a
written opinion as an addendum to the IEP that will be included as part of the student's
record. Changes to an IEP may be made without a case conference if
the parent and school so agree. The IEP must include services based
on peer reviewed research to the extent practicable. See 20 U.S.C.
1414(d); 511 IAC 7-42-3(h).
Note: Parents must be careful to determine that changes
made to the IEP without a meeting are accurate. The written opinion
provides an opportunity for parents to ensure that their version of the
case conference becomes a part of the student record. Further, if the parents and school agree to change the IEP
without a case conference, the parents should insist on reviewing and
having a written copy of the proposed change signed by both the parent
and the school prior to accepting the proposal.
Evaluations Evaluations must now examine what a student
can do academically, functionally, and developmentally. 511
IAC 7-32-6, 7-32-30. New timelines are established. 511 IAC
7-40-8(e). If a parent requests an evaluation, the school must
agree or refuse to evaluate within ten instructional days. An initial
evaluation must be conducted within fifty instructional days from the
date of written parental consent. Under Revised Article 7, a school
must consider re-evaluating the student every three years, but need not
re-evaluate if both the school and parent believe it is unnecessary. When
proposing or refusing a re-evaluation, the school must provide the parent
detailed written notice, including their right to request a
due process hearing to challenge the school's decision(?). 511 IAC 7-40-8. A parent is entitled to only
one independent evaluation at public expense each time the school
conducts an evaluation.
Transfer of
Rights at Age 18
When a student turns age 18, he or she makes educational decisions unless
the parent or other person has become the student's court appointed
guardian. Under new Article 7, the adult student can appoint his or
her parent as educational representative to make decisions. 511 IAC
7-43-6.
Note: The student signs an educational power of attorney
that requires the school to allow the student's parent to make
educational decisions without obtaining guardianship. However, parents should be aware that the student may revoke
this authority at any time if they disagree with what the parents are
doing.
There are many other changes to Article 7,
including changes to discipline procedures, service plans, and early
intervening services. New Article 7 can be found at www.doe.state.in.us/exceptional/speced/pdf/2008-08-06-Article7.pdf
The new Notice of Procedural Safeguards is located at www.doe.state.in.us/exceptional/speced/docs/2008-09-04-ProceduralSafeguards.pdf
Please call us with specific questions.
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Mental Health Parity Act - Call
Today!
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National Call-In Day
Wed. Sept. 10th
Urge Congress to Finalize
Mental Health Parity Legislation
On Wednesday, September 10th, join mental health advocates from across
the country and call your U.S. Representative and Senators to
urge Congress to enact legislation to end insurance discrimination
against people with mental illnesses and substance abuse disorders.
Call by using the toll-free Parity Hotline: 1-866-parity4
(1-866-727-4894).
The Parity Hotline reaches the U.S. Capitol switchboard, which can
connect callers to the offices of their members. Or, to find the names
and phone numbers
to your elected officials' offices, click here.
There are only three weeks left to pass the Parity legislation
before the current Congressional session ends.
Congress must make Parity legislation, H.R. 1424 and S. 558, a priority!
Additionally, supporters are invited to a Rally on Capitol Hill with
Representative Patrick Kennedy to highlight the importance of
finalizing Parity before Congress adjourns at the end of
September. The event will be held at 10:00 am on Wednesday, Sept.
17, on the Cannon House Office Building Terrace at the corner of Independence Avenue
and New Jersey Avenue
Southeast. The closest Metro station is
Capitol South.
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ADA Amendments Act of 2008
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S. 3406, the ADA Amendments
Act of 2008, will be moving forward in the Senate. There will be an
abbreviated September Senate session starting next week, and then
Congress will recess for the election. If the Senate bill passes,
it will move to the House, which will then pass the same bill as a
substitute. To show your support for this bill, please contact
your senator or representative by contacting them through www.thomas.gov .
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Illinois Legislative Updates
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HB 1141/SB 2042-Youth Ordered
into Residential Treatment
These bills attempt to address the complicated situation in which a child
is placed by a Juvenile Court or State agency into a therapeutic
residential program that has an educational services
component. This can affect children who are and who are not
special education eligible. The basic problem is that the school district
in which the residential facility is located ends up bearing the
financial responsibility for educating the child. There have
been 2 recent appellate court decisions on this issue as a result of
lawsuits brought against the child's district of residence (where the
parents or guardian reside) seeking reimbursement. The court
decisions have only served to complicate matters. These bills are
an attempt to resolve the matter by spelling out that the school district
of residence is responsible for the educational costs associated with
residential placement ordered by a State agency or court.
However, under HB 1141, the school district of residence is not
responsible for payment until it receives actual written notice of the
placement from the facility.
Both bills have been signed into law: SB 2042 is now P.A. 95-844,
effective August 15, 2008. HB 1141, now P.A. 95-938, is
a "trailer" to SB 2042 and by its terms also is effective
August 15, 2008.
SB 2042 sponsors: Senate, Bond(D-Grayslake); House,
Osmond(R-Antioch).
HB 1141 sponsors: House, Jefferson(D-Rockford);
House, Lightford(D-Westchester)
For further legislative updates, please go the the ARC of Illinois
at http://www.thearcofil.org .
___________________________________________________________
Illinois Autism Insurance Reform Bill
This
past spring we asked that you call your state legislators to ask for
their support for Senate Bill 1900, the autism insurance reform
bill. Since then, the wording of this bill, which requires health
insurance companies to provide coverage for autism services, has
been added to the Governor's Amendatory Veto Message to House Bill
953. This new bill will still cover diagnosis, speech, OT, PT, ABA
and other therapies addressing the medical needs of our children with
autism, but it NEEDS THE SUPPORT OF YOUR ILLINOIS STATE LEGISLATOR
TO PASS!!!
GET INVOLVED...YOU CAN HELP TODAY!!
1. Call YOUR state representative TODAY! Ask that they
support the Governor's Amendatory Veto Message to HB 953 and help our
children with Autism Spectrum Disorders receive insurance coverage for
medically necessary services. Don't know the name or phone number
of YOUR state representative? Find your legislator here!
2. Call Speaker Michael Madigan TODAY at (217) 782-5350! Ask
him to support the Governor's Amendatory Veto Message to HB 953!
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Announcing the
Monahan and Cohen IEP CHECK-UP !!
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As the start of school approaches, many parents begin to think about
their child's special education program, whether it is appropriate, and
how it will work. If you live in Illinois and Indiana and you have concerns about
your child's evaluations, eligibility, IEP or placement, we will conduct
a brief overview of your most recent documentation and provide you with a
summary of any concerns, problems or possible ways of strengthening the
IEP. Our review will require your child's IEP for the current
school year, the IEP for the preceding year, the most recent school
evaluations and any recent private evaluations that you have had
conducted for your child. Based on these documents, we will provide
you with a summary of any issues or concerns we can identify on the basis
of this limited record review. Some examples of areas we could
potentially identify would be any needs that aren't listed, evaluation
data that is omitted or inconsistent, present levels of performance that
are too vague, goals that are unmeasureable or irrelevant, or
accommodations that are omitted or not specifically specific. We may
also suggest ideas for strengthening the IEP or additional evaluations
that might be helpful.
The cost of the IEP CHECK-UP will
be a flat rate of $500, which includes the document review and the
summary. Please contact Tami Kuipers at 312-419-0252 to explain how
to get your documents to us and to schedule your IEP CHECK-UP. Currently, we can only offer this service to Illinois and Indiana
residents.
"The "IEP
Check-Up," is based on limited information and is not intended to
take the place of a formal legal consultation or of a formal evaluation
of your legal situation. Families with serious concerns
about their child's program or who are having conflicts with the
school system are advised to seek in depth legal evaluation and
consultation. When we conduct such evaluations, we
generally require far more extensive records and an in-person interview
with the family. The IEP Check-Up is not intended to take the
place of such evaluation. Monahan & Cohen may recommend
further consultation as part of our assessment of the material
provided."
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Matt Cohen recently published in an
American Academy of Pediatrics AD/HD Review, AM:STARs
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Matt
Cohen's article Educational
Rights of Children and Adolescents with Attention-Deficit/Hyperactivity
Disorder was recently published in the American Academy
of Pediatric's review AM:STARs,
ADHD/Learning Disorders in Adolescent Medicine: State of the Art Reviews,
the official publication of the AAP's section on adolescent health.
Matt's article includes a history and overview of the educational
rights of children and adolescents with AD/HD.
Topics in ADHD/Learning Disorders include:
- Attention-Deficit/Hyperactivity Disorder: A Personal
Perspective
- Attention-Deficit/Hyperactivity Disorder and
Complementary/Alternative Medicine
- Common Comorbidities Seen in Adolescents with
Attention-Deficit/Hyperactivity Disorder
- Educational Rights of Children and Adolescents with
Attention-Deficit/Hyperactivity Disorder (Matt
Cohen)
- Family Intervention for Home-Based Problems of Adolescents
with Attention-Deficit/Hyperactivity Disorder
- Medications for Adolescents with
Attention-Deficit/Hyperactivity Disorder
- Overview of Epidemiology, Clinical Features, Genetics,
Neurobiology, and Prognosis of Adolescent
Attention-Deficit/Hyperactivity Disorder
- And more!
August 2008
ADHD/Learning Disorders
American Academy of Pediatrics;
Arthur Robin, PhD; William L. Coleman, MD; and Howard Schubiner, MD
Adolescent Medicine: State of the Art Reviews: ADHD/Learning Disorders
Softcover - Volume 19, Number 2
A copy of the book can be ordered from the American Academy of Pediatrics
Bookstore:https://www.nfaap.org/netforum/eweb/DynamicPage.aspx?webcode=aapbks_productdetail&key=2c8f7277-917f-4c6e-bf31-98cab68e6179
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The Book Is Coming
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Advanced Notice! Matt Cohen
has written a book, A Guide to
Special Education Advocacy- What Parents, Clinicians and Advocates Need
to Know, due to be released at the beginning of
2009 at the cost of $28.95. A description is as follows.
"Disability law can be complex and intimidating, so how can concerned
parents use it to ensure their child with a disability receives the
education they are legally entitled to?
A Guide to Special
Education Advocacy - What Parents, Clinicians and Advocates Need to Know tells parents and professionals all they need to
know to gain better provision of special education in schools. Despite
the services and accommodations that have been provided for
students with disabilities, many children with disabilities still do not
get the services they need and are not placed in appropriate
programs or settings. Matthew Cohen's accessible guide provides an
overview of the current state of disability law in the United States and
gives a practical vision of how a parent or professional can become an
advocate to achieve a more inclusive and rewarding education for a child
with a disability. Peppered with tips on how to use the law to the
greatest effect, the book shows how even small individual efforts can
create real change.
This book gives parents,
advocates, professionals and clinicians involved in special education
advocacy invaluable insight into current special education and disability
law and how it works, highlights the attitudes, politics and
bureaucratic pressures that often interfere with appropriate services for
kids with disabilities and identifies practical ways for building
positive and effective relationships with schools where possible and for
challenging resistant schools when necessary."
In the coming months, we will begin to take advanced orders.
Please watch for further information to be added to our website www.monahan-cohen.com and in future
emails.
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Upcoming Presentations
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If you are looking for a speaker
for your next conference, parent group gathering or information night,
please contact Tami Kuipers at 312-419-0252 for Matt's availability and
rates.
Saturday, October 18, 2008
9:00-12:00
Transition Under the New IDEA 2004:
Untapped Opportunities, Unmet Responsibilities
spnosored by the Northwest Special
Education Cooperative, the Prent Mentor Project, DHS, and the Northern
Illinois Transition Planning Committee
Highland Community College,
Freeport
for information, call Sheila
Haman 815-232-0332
Friday, October 24,
2008 8:00 a.m. - 4:00 p.m.
Matt Cohen and Joe Monahan
Illinois Mental Health and the Law
Day 2008
Hilton Garden Inn Chicago
(Joe Monahan and another Monahan
and Cohen attorney will also
be presenting this program in
Schaumburg on Thursday, September 25.)
(Tuesday,
October 28, 9:45 - 10:45 and 2:00 - 3:00)
Transition
Planning Under IDEA 2004 - Giving Substance to the New Requirements
Transition:
A Bridge to the Future - Imagine the Possibilities
Illinois
Statewide Transition Conference
Peoria
Civic Center
201 SW Jefferson Avenue
Peoria, IL
For questions contact: Sue Walter
618-651-9028 or swalter@isbe.net
Response
to Intervention Procedures for Children with ADHD and LD - How Does IDEA
2004 Change the Evaluation and Eligibility Process?
(Friday, November 14, 3:30 - 5:00 p.m.)
Ask
the Expert Panel
(Saturday, November 15, 3:30 - 5:00 p.m.)
CHADD 20th
Annual Conference
2008
Special Education Administrative Law Judge and Mediator Training
Organized by the National Academy for IDEA ALJs and HOs at Seattle
University School of Law
Effective
Evaluation Reporting
Association
of Educational Therapists
location
to be determined
more
information to follow
Learning
Disability Association of Pennsylvania
more
information to follow
As information becomes available, we will post on our websites
presentations page, found at www.monahan-cohen.com.
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Donate to the MATT COHEN CHADD
MEMBERSHIP SUPPORT FUND
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 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
calling Sue Odachowski at 800-233-4050. ext. 105.
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Matt Cohen is a founding partner in the Chicago
law firm, Monahan and Cohen. 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.
55 West
Monroe Suite 3700
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Disclaimer:
The material in this enews has been prepared by Monahan & Cohen
for informational purposes only and should not be considered legal
advice. We assume no responsibility for the accruracy or timeliness
of any information provided herein. Internet subscribers and online
readers should not act upon this information without seeking professional
counsel. This information is not intended to create, and receipt of it
does not constitute, an attorney-client relationship.
We would be pleased to communicate with you via
email. However, if you communicate with us through the Web site
regarding a matter for which we do not already represent you, your
communication may not be treated as privileged and confidential. Do
not send us confidential, proprietary or other sensitive information
until you speak with one of our attorneys and receive authorization to
send that information. Monahan & Cohen is providing this enews,
the information, listings, and links contained herein only as a
convenience to you.
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