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?

A Huge Problem in Special Education: Teachers' Unions

There have been many recent, well-publicized incidents of teachers and school staff doing horrible things to kids - and not just any kids, special needs kids.  Here are just a few examples:

• In Cherry Hill, NJ, a dad of a special needs child wired his kid for sound and audio recorded verbal abuse by the teachers and aides in a special education classroom

• A 14 year old special needs girl was being bullied by her teachers in Ohio

• An Orange County, CA teacher was accused of abusing his special ed students

This is just a representative sample of hundreds, perhaps thousands, of incidents of abuse of special needs kids.

Unfortunately, the teachers are rarely fired in these cases and in some of them not even removed from the classroom in which the abuses take place.  You probably wonder WHY?

The answer is sadly simple: teachers' unions and their contracts.  Most unions have negotiated contracts with the school districts requiring a thorough investigation (which the unions usually control) before any disciplinary action can be taken against an accused teacher.  The basic principle behind this is a good one: you don't want to fire good teachers who are being falsely accused.  The unfortunate reality behind this is that bad teachers are protected and the investigations are suspect.

In many cases, the schools (working with the unions) try to cover up these events because of the negative publicity and the potential loss of funding.  Saying that developing evidence to prove these events (beyond a reasonable doubt, which is the criminal standard) is difficult is a huge understatement.  School personnel and school district administrations are more adept at cover ups than those involved with Watergate.  After all, whose word are you going to believe?  The teacher or principal who denies the incident or the special needs kid who probably can't even express what really happened because of the trauma or their social skills (many children with Autism are unable to explain a traumatic event to a parent or anyone else).

In fact, this is why there is a huge battle raging on across the country between parents of special needs kids and schools as to whether to permit audio and/or video recording equipment in special education classrooms.

• Maine family fighting to allow audio recordings of school day for child with autism
  

Even when there is overwhelming evidence of the abuses (sometimes surreptitiously obtained because there was no other option), the schools will shortshrift the investigation (or something more heinous, like destroy the evidence) and transfer the offending teacher or staff member to another school in the district.  All to prevent a huge legal battle with the union.

I won't get too political here and discuss whether unions are useful in ANY industry, but they are a huge problem in properly dealing with abuses by teachers and staff in the education industry.  Tragically, many parents don't have the resources to push the issue (attorneys are expensive and the legal system is not set up well for non-lawyers to understand how the battle works - I'm working on a solution to this) and therefore the unions "win".

Until we as a society realize that we need to put our children - especially our children with special needs - FIRST, these abuses will continue and the unions will continue to protect the bad teachers and the ones who abuse the system or their students.  Unions are not there to protect the good teachers and the highly qualified ones, because they don't need protecting; they do their jobs expertly and with care and compassion.  The teachers who don't do their jobs well or who don't treat their students with care and compassion and who violate the children's rights are the ones who should not be protected and should not only lose their jobs, but be placed into a system that alerts future potential school employers as to prior violations (if you want to call this "blackballing", so be it), and potentially face criminal charges.

Questions about Special Education Law Please . . .

I am in the process of putting together a Special Education Law workbook for parents, advocates and lawyers.  It is intended to be a useful resource to guide you through the process of getting a "free appropriate public education" for your child (or client) with a disability.  It will have forms, discussions, explanations of the law, practical tips, and links to further resources.

The workbook will be in a logical order of the special education process, so you can turn immediately to the chapter that is most useful to you or in the part of the process that you find yourself.  It will also be easy to read and "user friendly" unlike other similar books.  The goal is to have a hard copy version to ship out as well as an electronic version which can be downloaded or sold with the hard copy version.

You can help!  If you have a question that you want answered or think it might be a topic that is useful to many people, please submit that question to me via email at info@schoolkidslawyer.com.  Please note that by submitting any question, you release all rights to me to use that question or a modified version of it in the book.

I also hope to have a free downloadable chapter and some forms on my website soon.

I hope to have the full workbook finished and ready for publication and purchase within the next few months (or sooner).  It will be available for pre-purchase very soon!

Also, if you have any feedback or other suggestions regarding the book, please send them to the same email address listed above.

Thank you and I look forward to providing this resource to you all!

TJ

What's a FERPA letter?

For those of you who are new to education law or are in a battle with your school district to make sure your disabled student is getting a "Free Appropriate Public Education", you may have heard the term "FERPA" or been told to send a "FERPA letter".  And you're probably wondering "What the heck is a FERPA letter?" but are too proud / afraid / embarrassed to ask.  Well, now you'll know!

FERPA is an acronym standing for the "Family Educational Rights and Privacy Act" [a U.S. federal law located at 20 U.S.C. §§1232g and 1232h and with regulations located at

34 C.F.R. §99.1 et seq.]

Now, that doesn't tell you much, but it is a VERY powerful law.  The most important part of this law is that you, as a parent of a minor student (regardless of whether the child is disabled or not; the law applies to EVERY student), are entitled to see and make copies of EVERY document that is in your child's educational records file.  This means, any document that is generated about your child as a student in your school district MUST be made available to you to review and copy.

• If a teacher writes a note about your child, you get to see it.
• If they test your child, you get to see the test, the results of the test, and the testing methodology.
• If they evaluate your child, you get to see the evaluation, the credentials of the person who did the evaluation, the results, and the methodology.
• If a disciplinary report is made about your child, you get to see the report, the investigation (if any), and any notes made (including those by witnesses, etc.)

In other words, every scrap of paper that has something on it about your child, you get to see it.  There are some limitations, but not many.

As a lawyer, I have sample FERPA letters that I use in nearly every case.  Because it is critical to know what is in your child's file.  Here are some tips if you do this on your own (but I do recommend that you at least consult with an attorney who knows this law and its limitations and, more importantly, how the school's try to circumvent the law or misinterpret the law):

• Do NOT write on the original documents or your copy of the document.  Why? If you need this document later in a legal battle, you need to preserve it exactly as how they have it (otherwise, they can say you altered the document to your benefit)
• Make sure you ask for EVERYTHING.  You may not know what "everything" is (another reason to consult a lawyer), but when in doubt, ask for it anyway.  The worst they can do is say no (and they may be flat out wrong, which gives you a reason to contest them later).
• They can charge you for copies, but the charge must be reasonable.  And they can't block you because it is too expensive or takes too much time to copy.  If you need more than one visit to review or copy everything, make as many visits as possible.

If you are interested in a sample FERPA letter or want a consultation on how to conduct a FERPA review, please contact me at schoolkidslawyer.com.  (This is federal law, so it doesn't matter where you are located to discuss this with me).