Legislative Issues

    US Department of Education issues policy memorandum on the importance of teaching Braille to students with visual impairments

    The U.S. Department of Education's Office of Special Education has issued guidance to States and Committees on Special Education reiterating the importance of teaching Braille to students who are blind or visually impaired.
    Click this link to download a pdf of the memorandum.

    OSEP says Impartial Hearing Officers can find violation in code of conduct

    In a recent memo, OSEP stated that hearing officers determining a student's placement in the wake of a purported disciplinary infraction may decide not only the appropriateness of the district's manifestation determination and the appropriate placement of the student, they may also consider whether the student's conduct actually amounted to a code of conduct violation.
    Click this link to read the pdf of the memo.

    Congress alters IDEA funding related to maintenance of effort

    A small change tucked inside a government spending bill this month may have big implications for special education. Lawmakers included language clarifying the penalties that states may face if they fail to adequately fund education programs for students with disabilities. The issue has become significant in recent years as states struggled financially in the recession and some sought to cut education spending. Under federal law, special education funding must be maintained or increased from one year to the next. If states fail to meet what’s known as “maintenance of effort” without obtaining a waiver from the U.S. Department of Education, they can lose out on future federal dollars. At least two states — South Carolina and Kansas — got into trouble in recent years for slashing their special education budgets without federal approval. As a result, they faced permanent reductions in their allocations from the Department of Education. Now, Congress has clarified that any penalties assessed for failing to meet maintenance of effort should only apply for the year or years that the requirement is not met. Moreover, any funds that are taken away from states for being out of compliance will not automatically return to the federal coffers, but instead can be redistributed to other states that follow the rules as bonus special education dollars.
    Click this link to read the full article.

    Parents right to an Independent Educational Evaluation at Public Expense affirmed by US Court of Appeals

    The Parents right to have an Independent Educational Evaluation (IEE) of their child with an IEP, or of their children going through the initial CSE process to get an IEP process, has been a long standing right and a key part of the "checks and balances" in the Special Education System. Because Special Education is really at its heart not unfortunately about teaching kids, but really about the law, politics, and money, it needs to have checks and balances in place (Once the legal parts are met, and an IEP is developed, it then becomes about implementing the services to teach the student.)
    In the Special Education system, a School District performs an evaluation as required by law. The evaluation says x. The parents believe that x is not accurate. They then have the right for an IEE to see if x is accurate or not. This is a vital part of the law because, unfortunately far too many times, the evaluation is not adequate or appropriate. At other times, a District may not actually complete an evaluation, but simply a record review. Without an actual evaluation, it is nearly impossible to determine whether a student has an educationally handicapping condition. This is where the checks and balances come in. A school does an evaluation, the parents disagree, and then can have an evaluation completed at no cost to see if the initial evaluation was correct.
    The Independent Education Evaluation (IEE) is conducted at public expense, meaning the School District pays for the full cost of the evaluation. There is no price limit. If a child needs to be evaluated at the Mayo Clinic and this entails a three night hotel stay, that is all included in the cost of the evaluation. If the School District feels that their evaluation was appropriate, or they feel the cost (hotel stay in this example) is not needed, they then can take the family to an Impartial Hearing to prove that their evaluation was appropriate. Generally the process of taking a family to an Impartial Hearing would cost far more than actually paying for the IEE, and would open the door to a host of other legal issues. So it is rarely done. (I am not recommending, purposely getting School District people upset by pushing the limits and pursuing excessive evaluations, the example above is meant to state what could be done, not necessarily what should be done).
    After the evaluation is completed there is a CSE meeting to review the evaluation and make any changes necessary in the child's IEP, or to help get a child classified or declassified, or whatever. Many Districts illegally attempt to put limits on the IEE process. This often comes in the form of, District Policy states that …. Almost invariably the District Policy is not in alignment with State and Federal Special Education Law (this means it would break the law). Policies such, as we will only pay x amount, or we will only pay for this type of evaluation, or we only pay for evaluation done through this agency (Strong, for example) are all illegal. These type of statements and many others, are all things my patients have been told, and they are all illegal.
    Informed Districts use the IEE process as an opportunity to provide good customer service and to try to resolve issues. They help facilitate the process for parents, even if they may actually feel that they are correct and the parents are wrong, or chasing up the wrong tree. I will give a shout out to the Greece Central School District, here, because in this particular area, they provide great customer service for their parents and make this process work for their families, their students, and the District. By doing so, they recognize that their relationship with parents is one that should be built on mutual trust, and by facilitating this process they are trying to build or reestablish that trust with their parent. Districts, such as Greece, should earn "bonus points" from parents in this area because they act in good faith to follow the law. Many Districts, however, make the mistake of trying to state that they don't have to pay for IEE, or by trying to put illegal limitations on the process. When parents find this out, they often just become angrier at the District then they were before. Ultimately a good IEE can help parents and a District come together, solve disputes and help provide the student with a Free and Appropriate Public Education (FAPE).
    In this particular case, a District again challenged the right of parents to have a District pay for an IEE. The U.S. Court of Appeals for the 11th Circuit, as expected, found that there was "no merit" to the school district's argument. In an interesting twist, if the parents had brought a case were a court found that there was no merit to the case, the District could go after the parent to pay for all of the District's attorney's fees. In this case, however, the law already states that if the parents prevail the District has to pay their and the parent's attorney fees.
    Click on this link to read about the Court Case.
    Click on this link to read the decision.
    Click on this link to download a pdf of the case.
    Click this link to go to the NY State, Special Education Handbook to read what NY State says about IEEs.

    Compensatory Education in Special Education

    In specific situations a child with an IEP may be due Compensatory Education to make up for services that were not provided or were not provided in a Free and Appropriate manner.
    Click on this link to read about a child's right to compensatory education.

    The Top Ten Special Education Supreme Court Cases

    Special Education Cases are constantly being litigated. The Supreme Court regularly rules on Education and Special Education Cases.
    Click on this link to read about the top 10 Special Education Supreme Court Cases.

    How to file a disability discrimination employment claim

    The U.S. Equal Employment Opportunity Commission provides information on how to file a charge of employment discrimination visit.
    Click this link.

    White House policies on Disability related issues

    Each month, White House staff who work on disability-related policies host a public, live-captioned conference call to keep the public better informed about important developments on many different disability issues. These calls also connect you to leaders in the federal government who work on these issues. Over the past several months, monthly conference calls have featured discussions on accessibility, employment, education, technology, emergency preparedness, transportation, health care and the federal budget.
    Click on this link to go to the White House Disability page and listen to the monthly call in.

    U.S. appears to be weakening Special Education Funding rules

    The US Department of Education appears to be ready to make it easier for Districts and States to spend less money over time on Special Education Funding. Previously School District's have been required to fund special education at a similar level as in preceding years under a "maintenance of effort." This required similar funding from year to year. In a June letter, Melody Musgrove, director of the Office of Special Education Programs at the Education Department, This would allow them to decrease their spending on Special Education services over time.
    Click on this link to read about this story.
    To access the U.S. Department of Education Office of Special Education Programs June 2011 letter, click on the this link to download a pdf file of the document.

    Department of Education Issues Guidance on Rights of Students With Disabilities When Educational Institutions Use Technology

    The U.S. Department of Education's Office for Civil Rights has issued guidance to elementary and secondary schools and institutions of higher education on the legal obligation to provide students with disabilities an equal opportunity to enjoy the benefits of technology. The guidance provides information to schools about their responsibilities under Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act.
    Click this link to go to the Department of Education webpage to read the letters.

    U.S. Warns Schools Against Checking Immigration Status

    The Federal Government has written to State Education Departments clarifying that it is illegal for Schools to seek information that might reveal the immigration status of children applying for enrollment.
    To read more click on this link.
    This clarification came in part after NY State send a memorandum to Schools in August 2010 telling Districts not to seek immigration status of new Students. This happened after the NY State Civil Liberties Union found that about 20% of NY State Districts were requiring this information.
    Click on this link to read about this earlier memordanum.

    Congress To Consider Parent Financial Burden In IDEA Cases

    Parents who challenge schools over a child's individualized education program, or IEP, are on the hook for the cost of expert witnesses in due process cases no matter if they win or lose, but a bill introduced in Congress would change that.
    Legislation introduced in the House and Senate last week would ensure that parents could recoup the cost of expert witnesses and evaluations if the family prevails in due process hearings in much the same way that attorney fees can be recovered. The bill would reverse a 2006 Supreme Court ruling that placed the burden of expert fees on parents no matter the outcome of their case.
    Expert witnesses are key in due process hearings, providing technical expertise on a child's disability and the type of assistance needed to accommodate them in the classroom, advocates say. But without the ability to recover the fees these experts charge, many families are financially prohibited from challenging decisions by their child's school district even though they are entitled to do so under the Individuals with Disabilities Education Act, or IDEA.
    "This legislation is an essential step for protecting the rights of students with disabilities and ensuring that all families, regardless of their financial resources, can advocate for and protect their children's rights through due process," Sen. Tom Harkin, D-Iowa, said in introducing the bill.
    Similar legislation has been proposed in Congress in past years, but this is the first time that such a bill has been introduced in both the House and Senate.
    Click this link to read more about the IDEA Fairness Education Act.

    Battle looms over what Health Care Law will require for people with disabilities

    The question of what is an essential benefit under the new health care law will have a far reaching impact. When Congress passed the Health Care law they mandated 10 different types of care that health insurers must cover starting in 2014. One of these categories is the requirement to cover habilitative services. This requirement could force insurers to cover everything from behavioral services for those with autism to physical and speech therapy for people with cerebral palsy or Down syndrome. Advocates are pressing regulators to require these types of services on all health insurance plans without limits. The Health Insurers are arguing that such a coverage expansion will increase costs.
    This will be an important issue for any parent with a disability, or an adult with an older parent to contact your Congress person about.
    To read a Wall Street Article about this issue click on this link.

    House votes to cut funding for Special Olympics Initiative, and other cuts

    The House voted to cut funding for a number of disability related programs including a special Olympics initiative, supportive housing, and Social Security Disability funding.
    To read more click on this link.

    House restores $557 million for special education

    The House voted on an amendment to restore the proposed $557.7 million cuts to special education.
    To read more click on this link.

    President's Budget Proposes Slight Increase in Special Education Funding

    President Obama's budget proposes a $200 million increase for Special Education Funding but proposes cutting funding for other programs for Individuals with Disabilities.
    To read more about this issue, click on this link.

    House Republicans Propose Slashing Special Education Funding

    Last week Congressional Republicans proposed slashing special education by $557.7 million for 2011 alongside other cuts.
    To read more about this issue, click on this link.

    Obama tight lighted on special education funding

    When recently asked by a NY State Board of education member about full funding for the IDEA and Special Education, President Obama is reported to have been noncommittal. With the numerous cuts being sought at the State and Federal level, it will be important to carefully watch these issues.
    Click this link to read the story.

    Federal Government Watch: Congressional hearings on SSDI expected

    It appears that a senator and two members of the House of Representatives are asking the Government Accountability Office, or GAO, to look into the rise in the number of children receiving SSI benefits for hard to define conditions like ADHD. Social Security Disability Income is a very important program in the lives of a number of my patients that enables families to pay for counseling, medication, and other related services to help their children. This will be an important issue to watch. While many people consider this a program for poor families, I have had a number of families who because of job losses and the bad economy now need additional support. So while your family may never need this support, the future is always uncertain.
    To read more click this link.

© Copyright, all rights reserved Daniel J. DeMarle, Ph.D. 2014