Special Education

U. S. Supreme Court Affirms New York Board of Ed. v. Tom F

On October 9, 2007, an equally divided Supreme Court affirmed without opinion a parent friendly decision of the United States Court of Appeals for the Second Circuit (Connecticut, New York and Vermont), New York Board of Ed. v. Tom F.  In Tom F., the federal appeals court had ordered reimbursement to parents who had unilaterally placed their child with learning disabilities in a private school, even though the child had never attended nor received special education services from a public school.

Tom F. was intertwined with another Second Circuit case, Frank G. v. Hyde Park Central School District, where the lower court had ordered tuition reimbursement for a private school child who had not previously received special education services from his school district.  Rejecting the school district’s argument that the parents first had to try the school district’s program, the lower court stated that such a rule would lead to “absurd results” because it would “prevent children who are provided with inadequate IEPs from receiving a free appropriate public education if their disabilities were detected before they reached school age.”   The court stated “a ‘first bite’ at failure is not required by the IDEA.”  A few days after the U. S. Supreme Court affirmed Tom F., it refused review of Frank G.

Frank G. and Tom F.  are important cases because they reject the view held by some that the current regulations under the Individuals with Disabilities Education Act (IDEA) limit the parental right to recover  private tuition costs for a child not provided FAPE from his school district to children who previously attended and received special education services from the public school.  Taken together, these cases will be persuasive in the Sixth Circuit (Ohio, Michigan, Kentucky and Tennessee), but since Tom F. was decided without opinion by an equally divided Supreme Court, it is technically binding only in the Second Circuit.

Due Process Sufficiency Case, Keene v. Zelman, Settled.

Hickman and Lowder has settled Keene v. Zelman, a class action lawsuit filed in federal court in Columbus, Ohio, against the Ohio Department of Education (ODE) that changed ODE’s standards and procedures for evaluating sufficiency of due process complaints.  ODE has agreed that:

1. The Individuals with Disabilities Education Act (“IDEA”) does not require a due process complaint to be as detailed as a complaint filed in a court of law;

2. The purpose of requiring a sufficient due process complaint is to ensure that the other party will have an awareness and understanding of the issues the complaint is based upon;

3. Due process complaints should be evaluated under the standards of Schaeffer v. Weast, 126 S. Ct. 528 (2005), and Escambia County Board of Education v. Benton, 406 F. Supp. 2d 1248 (S.D. Ala 2005), cases which set forth rules that are favorable to parents;

4. Ohio hearing officers will  be instructed that the standard for reviewing the sufficiency of a due process request is a minimal pleading standard and is lower than the requirements for complaints in court;

5. Due process complaints that are determined insufficient under these standards will not be automatically dismissed as in the past.  Instead it will be up to the hearing officer assigned to hear the case to allow an amendment.  Where complaints are amended, the amendment relates back to the date of initial filing of the original due process complaint.

Parents filing their own due process complaints should complete each section of the due process form that ODE has published, taking care to provide enough detail so that the school district will understand what they are concerned about and what they want.

For a PDF file copy of the Settlement Agreement click here.

U. S. Supreme Court Grants a Victory to Parents

The Individuals with Disabilities Education Act (IDEA) grants parents enforceable rights, which include not only procedural and financial claims, but also their child’s right to receive a free appropriate public education (FAPE).  So ruled the United States Supreme Court in Winkelman v. Parma City School District, Case No. 05-983, in a decision dated May 21, 2007.  The Supreme Court overruled an earlier decision of the Sixth Circuit Court of Appeals, which had held that substantive rights under IDEA, in particular the right to receive FAPE,  belonged only to the child, and not to the parent.  Because of this, the lower appellate court had refused to allow parents to represent their children in federal court, considering this to be unauthorized practice of law unless the parent was an attorney.

With the Supreme Court’s decision in Winkelman, the Supreme Court has clearly established that parents can represent themselves in all IDEA cases and at all levels.   Of equal significance is the Supreme Court’s clear recognition that parents have a legal interest in the appropriate education and upbringing of their children, as well as a special, personal role in fulfilling “our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities.” This is the main purpose of IDEA, set forth at 20 U. S. C. §1400(c)(1).  In light of the Supreme Court’s endorsement of their role as primary enforcers of IDEA, Parents should feel encouraged to continue advocacy for their disabled children in all settings and try to obtain appropriate services before federal court intervention is necessary.

For a copy of the decision, click the link below:

http://www.supremecourtus.gov/opinions/06pdf/05-983.pdf  

Current and Upcoming Events

Past Events

~ Franklin Hickman spoke at Special Education Services 7th Annual Special Education Law Forum in February 2008.

~ Frank Hickman presented a talk on special education and related law in October 2007 on behalf of the Tuscarawas Area Kid Network.

~ Judith Saltzman and Frank Hickman conducted a day long training for Applewood Centers Inc. entitled “Special Education Under the New IDEA Regulations: What Mental Health Care providers need to Know About Evaluation, IEPs and Discipline.  This training, conducted on April 23, 2007, was designed to assist professionals providing community and school based services to better understand IDEA’s requirements in order to achieve better outcomes for children with disabilities.

~ Judith Saltzman served as chair of the Cleveland Metropolitan Bar Association’s recent seminar entitled “Children With Disabilities: Legal Issues for Parents and Practitioners.”  This day-long seminar, held on  April 16, 2007, included presentations on special education; Medicaid waivers; estate planning for families of children with disabilities; family law issues; and juvenile court issues.

~ In March 2007, as in past years, Frank Hickman led an intensive attorney training on representing parents at due process hearings.  The training was conducted at the 9th annual National  Conference of the  Council of Parents, Attorneys and Advocates (COPAA), held in Baltimore Maryland.  This attorney training program has been and continues to be one of COPAA’s most popular training session.

~ Frank Hickman was a presenter at a day long seminar on November 13, 2006. The topic was “Students with Emotional Disturbances: Identification, Treatment and Discipline” and co-presenters were Vanessa Jensen, Psy.D. and Katherine Nordal, Ph.D.

~Judith Saltzman made two October presentations for parents and advocates regarding the new IDEA regulations published in September 2006.  Her talk, entitled “No Cause for Alarm: Special Education Under the New IDEA Regulations” was offered on the West Side of Cleveland on Monday, October 23, 2006 and on the East Side of Cleveland on Monday, October 30, 2006 at the Mayfield Village Civic Center.  Both talks were sponsored by the Cuyahoga Special Education Regional Resource Center (Cuyahoga SERRC).

~ Judith Saltzman spoke to the Autism Society of Greater Cleveland on September 6, 2006 at 6:30 P.M. at St. Basil’s Church parish center, 8700 Brecksville Road, Brecksville, Ohio. The topic was “Negotiating IEPs After the New IDEA Regulations.”