New Article: Evaluating a Child for Disability: The Wrong Way and the Right Way

Article on the wrong way and right way to evaluate a child for a disability is available on Special-Ism.com website at this URL:

http://special-ism.com/evaluating-a-child-for-disability-the-wrong-way-and-the-right-way/

What to Expect at an IEP/504 Meeting - Free download

You can download the seminar slides and all supporting documents for my recent seminar "What to Expect at an IEP/504 Meeting" at this webpage:

http://schoolkidslawyer.com/mda

I hope it helps!  Let me know if you have any questions or if you would like more information on this topic.

Tales from the Front - Actual (Illegal) Statements Made by School Personnel

I did a seminar recently.  My seminar was on what to expect at an IEP/504 meeting.  Here are some of the comments I heard from parents spoken to them by school districts:

"We are at our quota of eligible disabled students already.  We can't have more."

"Evaluations must be done in the summer time."

"Your child (with muscular dystrophy) is not allowed to use a wheelchair in school."

"[A disciplinary action against a child with a disability and IEP] is completely an internal school matter.  You don't need to worry about it."

[From a case manager] "I'm not sure what to do.  What do you want me to do?"

"You want a person assigned to your child (in a manual wheelchair) to ensure they get out of the school during an emergency? We don't do that."

"[A child with MD but not in a wheelchair] is not entitled to use the elevator.  She must use the stairs."  (Child falls a lot).

"Your child is depressed." (No, exhausted from fatigue by the middle of the school day.)  "She needs to be on anti-depression medication so that her grades improve."

[Child has received 50s and 60s on math tests, yet child got a "B" on her report card].

----------------------

I heard these statements with great dismay.  They are not only false, hurtful, and deceitful, they are illegal.  The law protects against all of these things, but too often parents don't know that the schools are wrong.

If you think the school is telling you incorrect things concerning services or accommodations for your disabled child, please contact a special education lawyer or advocate and ask questions.

Stop the Bullying Madness - That Means YOU, Parents!

On January 6, 2011, New Jersey Governor Chris Christie signed into law one of the toughest anti-bullying civil rights laws in the United States.  As with most laws, the creation of the law was the easy part.  The difficult part is the enforcement.  Most states have anti-bullying laws (some, like New Jersey apply to cyberbullying) but the training and implementation of those laws has been sporadic at best; ineffective at worst.

There continue to be events in which kids are committing suicide or having emotional problems because they are being bullied.  The old schoolyard bully who openly picks on a fellow student has gone by the wayside, primarily because such bullies have gotten smarter.  Now they have resorted to anonymous (or what they believe is anonymous) cyberbullying - texting or posting on social media - to intimidate other kids.

- There is the 12 year old Rebecca Sedwick who jumped off a building to her death because of incessant text bullying by her ex-boyfriend's new girlfriend and a group of girls that Rebecca thought were her friends.  Thankfully the Sheriff arrested two of the girls responsible after they boldly and stupidly remarked about their involvement in the bullying and death of Rebecca. http://www.hlntv.com/article/2013/10/16/rebecca-sedwick-cyber-bullying-arrests

- Joel Morales, a 12 year old boy from Harlem committed suicide after relentless bullying. http://nymag.com/daily/intelligencer/2012/05/harlem-boy-commits-suicide-after-harsh-bullying.html

- In Buffalo, NY, 14-year-old Jamey Rodemeyer committed suicide after being consistently bullied at school.  http://cartersville.patch.com/groups/schools/p/bullying-in-america-reaches-home

There are so many of these incidents that this blog post could go on for pages.  It is disgraceful.

But there are plenty of laws on the books supposedly to prevent this.  Here is a great page (PDF file) that summarizes the various state laws on bullying: http://www.cyberbullying.us/Bullying_and_Cyberbullying_Laws.pdf

In my opinion, however, it is not laws that will stop bullying.  It is parenting.  Parents of both bullies and victims need to pay attention to their children and their activities and spot the signs of bullying.  In many of these cases, the parents saw some of the signs, but chose to ignore them with the age-old response of "kids will be kids."  No!  Bullying is not kids being kids.  Bullying is a crime and it is hurtful.

So, parents and school personnel need to learn the signs of bullying, spot them, and do something about it.  Proactive.  I keep seeing commercials that tell kids to speak up about bullying.  Why are we putting the onus on kids who are in the most precarious of positions in the bullying scheme?  Why are we taking the pressure off of parents from being parents?  Parents of victims need to protect their children and, if need be, report it to the authorities and consider removing their child from the school environment if the school will not take action.

But my strongest admonition is for the parents of bullies.  YOU need to take responsibility and parent your kids.  This means discipline; this means controlling your child's actions; this means teaching your children that bad actions, such as bullying, have bad consequences.  It is not an excuse to say you can't control your children.  You are the adult; you are the parent.  You accepted that role the second you knew that you were going to have a child.  So you must examine your own actions, because bullies often beget bullies.  And, trust me, if I learn that one of my clients was bullied, I'm not just coming after the child who bullied my client - I'm coming after you, the parents too.

Let's wake up and stop this bullying madness.  Please.  TODAY!

If anyone has a bullying problem, please contact my office for assistance.  Phone: 267-209-0783; Web: http://schoolkidslawyer.com; Email: info@schoolkidslawyer.com.

Robert C. Thurston, Esq.

The Dangerous Use of the Word “Cure”

I’m shocked.  It takes a lot to shock me these days, but I am admittedly shocked.  My alarm has been set off by numerous recent studies into the “cause” of Autism.  I’m not alarmed purely because of the research, but rather what it may implicate and the resulting frightening thoughts of how we, as a society, would implement a “cure”.

There were studies attempting to link childhood vaccinations to Autism, but those studies were found to be faulty and in one case “an elaborate fraud”, but nevertheless absent of a link between vaccines and Autism.  See Autism Speaks Policy Statement on Vaccinations and Autism; and CNN report about the British Medical Journal’s retraction of Dr. Wakefield’sstudies as fraudulent.

Another recent study published in the August 12, 2013edition of the Journal of the American Medical Association Pediatrics linksinduced or augmented labor to Autism.  Still another report by the New York Times attempting to say that Autism and cancer were linked via a “cancer gene” was exposed as extremely unreliable.

This brings me to my concern; actually, two concerns.  The first - that because Autism is a hot topic and the rapid increase in the number of cases of Autism in the population is startling to some (disregarding the fact that proper techniques to diagnosis Autism are a recent event proving that there is not an increase in the development of Autism, but rather an increase in number of discovered incidence) the media jumps on any report that seems to find the “cause” of Autism - I can do nothing about.  What sells “news” and media is beyond my control and I can do nothing other than be exasperated.

The second concern, about which I believe I CAN do something, is what I believe is the next step that follows the discovery of the “cause” of Autism – the “cure” for Autism.  This should be a source of alarm and concern for everyone and, frankly, is a disturbing and dangerous use of the otherwise constructive term “cure”.

This dangerous use is attempting to redefine “cure” to mean “prevention” rather than its true definition.  Most dictionaries define “cure” as follows:

cure

noun

1.           a means of healing or restoring to health; remedy.

2.           a method or course of remedial treatment, as for disease.

3.           successful remedial treatment; restoration to health.

Source: Dictionary.com, http://dictionary.reference.com/browse/cure?s=t

Thus, “cure” means to “restore to health” or “remedy”.  In other words, if you have a virus or disease, the cure may be a drug or treatment that restores you to health. In a sense, chicken soup may be viewed as the cure for the common cold.  (I know several Jewish mothers who swear by that.)  This definition refers to healing people who are currently alive.

How can this be bad?

On August 14, 2013, the Autism Support Network’s Facebookpage posted this question: “Would you terminate your pregnancy if you knew your child would have autism?”  Thankfully, the responses were unanimously “no” and several people were puzzled why an “Autism support network” would even pose that question.  The members of this network are parents of children with Autism who have already been born.

The insidious and heinous implication of this question is that we, as a society, will view abortion or intra-uterus genetic alterations as a “cure” for Autism.  People are seeking to prevent Autism.  While that, too, sounds like a noble pursuit, it is extremely dangerous and Orwellian in its possibilities.  What is next? Sterilization of those who have a gene that causes Autism or those who have Autism?  Government-imposed removal of reproductive parts of people who have Autism in their family history?

I know these examples are extreme and hopefully absurd, but I do wonder how this urge to find the cause of Autism has led to tenuous research projects and where such research might lead.

I have a better idea.  Rather than spend millions (perhaps billions) of dollars on fruitless research into the cause of Autism (which is most likely genetic and not “curable” absent one of the horrific methods I describe above), redirect those funds to research into therapies or providing services for families that have living, breathing, wonderful children with Autism.  The daily lives of such families are rife with challenges and they deserve all of the help and support that we, as a society, can muster.

If you want to redefine the word “cure” when it comes to Autism, redefine it to mean “support”.

Are Special Education Advocates Performing UPL (Unauthorized Practice of Law)?

The answer to the question posed in the title is, typically, lawyerly - it depends.

First, let's discuss what is the "practice of law" and "UPL".  Virtually every licensed occupation is regulated by the State.  For example, in Pennsylvania, the Bureau of Professional and Occupational Affairs regulates almost every licensed occupation, such as accountants, nurses, barbers, funeral directors, dentists, etc.  However, lawyers are regulated exclusively by the highest court of the state - in Pennsylvania, it is the PA Supreme Court.  This regulation includes the power to define what constitutes the practice of law.  See PA. Constitution Article V, Section 10(c).

That is not as easy as it sounds. Courts don't face this issue very frequently. Generally, there are three categories of activities / services reserved to those who are admitted to the bar: (1) advising clients as to what the law is to enable them to act and pursue their affairs; (2) preparation of documents that require familiarity with legal principles an ordinary person wouldn't know (such as preparing a court document); and (3) appearing before a public tribunal, such as a court or administrative hearing.  Put another way, a person who doesn't have a license to practice law should not tell someone what the law is and advise them to act accordingly, prepare a legal document, or show up in court on behalf of anyone but him/herself.  Doing so would be the unauthorized practice of law, or "UPL".

A person can get in serious trouble for UPL.  In fact, in most states it is a crime.  In Pennsylvania, for example, it is a misdemeanor of the 3rd degree for a first time offender; misdemeanor of the 1st degree for a repeat offender.  See 42 Pa.C.S. Section 2524(a).  It may also be a violation of a state's Unfair Trade Practices and Consumer Protection Law, which would subject them to civil (money) penalties.

So how does this apply to Special Education Advocates?  Again, it depends.  A description of the typical special education law case timeline is helpful.

Briefly, the first event is that a child is diagnosed with a disability that triggers the right to have special education in school.  The next event is that a team of school personnel, physicians, and the parents decide what should be in the special education program for that child (this is called an Individualized Education Plan or "IEP").  Sometimes there is disagreement over what should be in the IEP or how the school is implementing it.  What comes next may be a due process complaint and hearing.  This is a semi-formal process where the school and the parents put on a case before a hearing officer (not always even a lawyer).  The hearing officer decides whether the services are appropriate or not.  If either the school or the parent disagrees, they can then appeal that hearing officer decision to a court.

The laws and regulations make it clear that parents are entitled to have "other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate" with them at IEP meetings.  See 20 U.S.C. Section 1414(d)(1)(B) and 34 CFR Section 300.321(a)(6).

As a result of this language in the laws, a cottage industry of advocates, mostly made up of parents of disabled children themselves who are veterans of the battles with schools over special education, has developed and flourished.

Do not misunderstand me - I think advocates are wonderful and perform great services to parents, especially since most parents of special needs kids are heavily burdened with medical and other expenses making lawyers unaffordable at almost every level.  Well-trained advocates offer objective, yet passionate assistance to parents so that they can make informed decisions without the emotions getting in the way.

However, there are limits to this participation.  The portion of the law quoted above comes under the definition of an "IEP team".  Matching that with the description above of what is the practice of law, an advocate should stick to helping a parent to prepare for and make it through the IEP meeting in an informed manner.  The advocate should be careful not to suggest a path for a parent based on an interpretation of the law - this is acting like a legal advisor and is likely UPL.  However, an advocate can certainly tell a parent, "the law states that an IEP should include . . ." or that the law requires certain procedures to be followed.

So what CAN'T an advocate do?  This is a bit easier.  In my opinion, an advocate should not prepare a due process complaint, represent a parent at a due process hearing, or draft an appeal of the hearing officer decision in a court pleading.  These are all the practice of law and if an advocate, not licensed to practice law in that state, provides one of those services, it is UPL.  Of course, there are licensed attorneys who provide advocacy services, so they are entitled to provide any and all of these services.

The reason why this is UPL may not be so obvious.  Many people might think, "I represented myself in my own divorce case, so why can't someone help me with my special ed case?"  And therein is the answer - you can represent YOURSELF in any legal proceeding (that is called acting "pro se" or for yourself), but someone else cannot represent you.  Why?  Lawyers are trained to understand, not just the law, but legal procedure.  For example, it is important in a due process complaint to make sure you plead every option available to you; failure to do so might give up a right or two or seven.  In some states, you may have a civil rights case under Section 504 or the ADA, but many advocates don't know this or even if they do, they don't know you MUST include those allegations in your due process complaint.

Two other critical examples are the Rules of Evidence and Appellate Procedure.  Most advocates don't know the rules of how documents or testimony get "into evidence" so that a judge can consider them.  Further, if you have to appeal a hearing officer decision to court, it is like an appeal and sometimes only the record that is made at the due process hearing is considered by the court (not always) and if you don't get the information in at the due process level, you might have to fight a battle at the appeal level to get it in - and you might lose.  Many well-trained advocates don't know these rules, because they aren't licensed lawyers.

To conclude, Advocates are a necessary and crucial part of the special education process.  There is no better (and more affordable) help with making sense of this maze of special education law, especially when you are simply trying to get services for your child at school, than a well-trained advocate.  However, remember that they are limited in what they can do and when it comes to advising you on a legal path or preparing your complaints or representing you at a hearing, only licensed attorneys can help you in those situations.

I love teachers! . . . (really, I do) . . .

There is a bad reputation out there for special education lawyers, advocates and parents of special education kids.  The reputation is that we hate all school teachers and those who work in the schools and we are simply out for vengeance.

I'm going to focus this post on the misrepresentation that I must hate teachers because I'm a special education lawyer.  Absolutely - 180 degrees - the opposite.  I LOVE teachers.  Let me explain why and how we all fit as perfectly aligned spokes in the wheel of special education.

Teachers have thankless jobs.  Often they aren't paid very well, but are teachers because they love kids and they love education.  Big plus in my opinion.  After all, that is what we all want; people in the field of education who love to teach kids.

Most teachers are also sensitive to the needs of disabled / special education kids.  They understand the challenges that these kids face and try their best to accommodate them so that they, too, receive a good education along with the "neuro-typical" or otherwise non-disabled kids.

Some teachers even go out of their way (bless their hearts) to go above and beyond their job requirements to help these kids.  Some even violate rules or the directions of the administrators in order to assist special ed kids.

So, often, my beef is not with the teachers.  In fact, almost never is my argument with the teachers.  My argument is with the school district who handcuffs the teacher or who misinforms the teacher as to what he/she should do for the special education child.  I have seen the school districts actually incorrectly state the law to teachers.  Whether that is intentional or not, I don't know.

Granted, there are some teachers that are not altruistic and just want their paycheck.  But like any occupation, there are a few bad apples in every bunch.  Of course the really bad ones make the news, which is unfortunate because the overwhelming majority of teachers are fantastic.  And I love them for that.  It is no different than lawyers and having to deal with the ones that make the news leaving a bad impression on people that all lawyers have heinous or monetary objectives.  Similarly, there are doctors who don't really care about their patients and may even commit fraud in order to make money.  But these bad apples do NOT represent the bunch.

Where I, as a special education lawyer, fit in to this mix is just to make sure the disabled child (and his/her parents) have a voice and to assure that school districts are meeting the requirements to provide the child with a Free Appropriate Public Education ("FAPE").  My job, as I see it, is to level the playing field.  Sometimes that simply means legally justifying or backing up what the well-intentioned teacher is already trying to do, but for whatever reason the school administration is not permitting.  Frequently, I work with and speak with teachers (the old line, 'Some of my best friends are teachers' ha ha - but it's true) as a team.  We work together to find solutions for the children.

If you walk away after reading this blog post with ANYTHING, please keep the idea that special education lawyers, advocates and parents do not hate teachers.  We love them.  We love them just as much as the disabled children we are trying to help.

So let's work together in this area of law.  Do not generate stereotypes that only serve to interfere with cooperation and progress in the field of special education law.  Our children deserve better.

Free (legal services) or not free . . . that is the question

I've had a lot of people ask me lately if I provide free legal services or if I can take their case for free.  The answers are: (1) Yes, I do pro bono (free legal) work through pro bono organizations like South Jersey Legal Services (www.lsnj.org/sjls), Volunteer Lawyers for Justice (www.vljnj.org) and local bar associations; but, (2) No, if you can afford a mechanic, HVAC repairman or doctor, you can afford a lawyer and I won't take your case for free.

Some interesting (you might think boring) statistics about lawyers that I want to share (from an ABA survey in April 2012):

1.  Of the 1.2 million lawyers in the U.S., 75% or 934,000 are in private practice (rest in gov't, corporations, legal aid, etc.)

2.  Of those, 460,000 or roughly 50% are solo attorneys

3.  Studies vary, but my estimate is that the median income of solo attorneys is about $60,000. (NOTE: I've read virtually every study on median incomes of attorneys and the articles criticizing those studies too.)

4.  Most analyses suggest that a family of 3 or 4 cannot survive on $60,000 in today's economy.  See e.g. Can a family of four survive on a middle class income in America today?

The purpose of this post is to dispel the myth that all lawyers are really rich and not working hard for their money.  Most lawyers are solo lawyers just trying to eke out a living and provide for their families.  But solos are people too, who need to pay their mortgage, bills, and feed their families.

I realize that many parents of special education children are already financially tapped to the maximum, but the good news is that under most special education laws if you win your case you get your legal fees repaid!

So, despite what jokes Jay Leno or Jimmy Kimmel are telling about lawyers and in spite of the moron lawyers who are filing stupid lawsuits (like the one against the Sandy Hook school for $100M), most lawyers are NOT rolling in the moolah and can't afford to take your case for free.  After all, do you ask your doctor to cure you for free?  Do you ask your car mechanic to fix you car for free?  When your heater is broken down in the dead of winter, do you expect the HVAC specialist to come out to your house and fix it for free?