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Connecticut Special Education Law Blog

Don't let the education system leave your child behind

If you have a child with special needs, it can be tough to determine what school is most appropriate for his or her talents, gifts and learning limitations. The ultimate goal of any parent is to ensure that his or her child gets the best education possible, and doesn't get left behind. You should challenge the child, yes, but not so deeply that educational progress is impossible.

That said, if you're like most parents of special needs kids, you're looking at a lot of options and you're probably feeling a little overwhelmed. What's the most appropriate education opportunity for your child?

Second Circuit Eliminates School Board Exclusive Control Over Methodology

IMG_1102-e1484328172885-225x300.jpgWe won a major victory on January 10th in the Second Circuit Court of Appeals in the case of A.M. v. NYC Department of Education. Attorney Andrew Feinstein argued the case as a friend of the court on behalf of COPAA.

Ever since the Supreme Court wrote, in Rowley, that methodology is generally in the discretion of the school, school officials have argued that parents have no say in the educational methods used to educate their children with disabilities. The federal regulations said otherwise.

Petition Filed with CT State Department of Education RE Access to IEE and Observation


Access to an independent educational evaluation (IEE) and observation in school are central to a parent's ability to meaningfully participate in their child's school program. Further, an accurate evaluation is the cornerstone to the IDEA, ensuring that the Student's functional and academic deficits are identified, and setting the stage for appropriate goals and objectives and appropriate special education and related services. The procedural safeguards, contained in 20 U.S.C. 1415(B)(1), guarantee parents the right to obtain an IEE at public expense. Connecticut school districts have created highly restrictive policies that serve to frustrate a parent's ability to obtain an IEE. This is a serious abrogation of the rights of all parents. For parents of low income, these policies serve to deny their children the right to a free appropriate public education.

Please Sign Petition Regarding IEE and Observation Criteria

 Dear Connecticut Constituent: Please sign this petition asking the Connecticut State Department of Education to amend the special education regulations regarding acceptable IEE criteria and observation criteria: https://goo.gl/forms/br5ZPATHggDQtlWu2   Access to an IEE and observation in school are central to a parent's ability to advocate for a child's needs in school. An accurate evaluation/assessment is the cornerstone to a special education student's program.  If the parent disagrees with an evaluation obtained by their school district, federal law gives a parent the right to seek an independent educational evaluation (IEE) paid for by the school district.  Across Connecticut school districts are creating unreasonable criteria that limits a parent's ability to obtain an IEE. Similarly, Connecticut school districts are creating unreasonable observation policies that limit a parent's ability to observe and understand their child's program in school. These policies also impact a parent's ability to have an outside expert evaluate their child's school program. Thank you for signing this petition to support reasonable access to an IEE and classroom observation: https://goo.gl/forms/br5ZPATHggDQtlWu2 -The Feinstein Education Law Group

Does Meaningful vs. Some Matter?

Today the U.S. Supreme Court granted review in Endrew F. v. Douglas County School District RE-1 a case about the level of education benefit a special education student must receive for a school district to provide an appropriate education under federal special education law.
Under federal law, the Individuals with Disabilities Education Improvement Act (IDEA), children with disabilities are entitled to a Free Appropriate Public Education (FAPE).  Back in 1982 the U.S. Supreme Court held in Rowley that a student's individualized education program (IEP) must be "reasonably calculated to enable the child to receive educational benefits." The Court elaborated that the education a child receives must confer "some educational benefit" and that the benefit must be sufficient to provide each child with "access" to education that is "meaningful." Post Rowley federal appeals courts have been divided over how much benefit a child must receive under his or her IEP in order to receive FAPE.  Is it "some" educational benefit or is it "meaningful" educational benefit?  Whereas at least six circuits adopt versions of the "some" benefit, two circuits apply the other standard that may require a greater degree of educational benefit, a "meaningful" benefit.  The U.S. Supreme Court will now hear argument and possibly resolve the split of authority. Last year in Endrew F. the 10th Circuit ruled a Colorado child with autism and ADHD received FAPE because the public school IEP provided "some educational benefit".   The 10th Circuit court denied the parents request for reimbursement at a private school.  The 10th Circuit also acknowledged that several other federal courts of appeals have adopted a higher standard that requires an IEP to result in a "meaningful educational benefit" however the in their appeal to the U.S. Supreme Court argued that when discussing that it was a close case, the 10th Circuit did not address whether parents would prevail under the "higher standard" adopted by other circuits. When you start analyzing the rabbit hole of educational benefit it is hard to distinguish between "some educational benefit" vs. "meaningful educational benefit".  Does one term create a higher standard? How do we define the difference?  How do we make it operational? Rather than dance around the issue of some vs. meaningful, perhaps we ought to focus on the required elements of IDEA:
  1. Evaluation drives statement of needs.
  2. The statement of needs drives the drafting of goals and objectives, which should be challenging yet attainable.
  3. The goals and objectives drives services.  The services need to address the goals which need to meet the needs.
  4. If the goals prove too easy or too hard, the district has the obligation to change those goals.
If school districts were held responsible for following this process with integrity, the whole issue of the level of educational benefit recedes into the woodwork. Endrew F. will likely to be argued sometime early next year in front of the U.S. Supreme Court.

Education Ruling: OK To Shut Out Disabled Kids?

 By Andrew FeinsteinFeatured in the Hartford Courant on September 10, 2016Judge Thomas Moukawsher issued a monumental ruling Wednesday in the case of Connecticut Coalition for Justice in Education Funding v. Rell, finding that Connecticut's system of funding education is irrational and unconstitutional. As to his basic findings, Judge Moukawsher is to be applauded.The excellent decision came, however, containing a very dark poison. Judge Moukawsher proposed that certain children with severe disabilities be denied a public education. He says, "The call is not about whether certain profoundly disabled children are entitled to a 'free appropriate public education.' It is about whether schools can decide in an education plan for a covered child that the child has a minimal or no chance for education, and therefore the school should not make expensive, extensive, and ultimately pro-forma efforts." He claims, inaccurately, that "no case holds otherwise, and this means that extensive services are not always required."This triage proposal is at odds with what the litigants argued in the case and diametrically opposed to federal civil rights law. The judge proposes discriminating against the severely disabled. Yet, discrimination based on the severity of disability violates the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. Judge Ellen Bree Burns addressed this issue head-on in Messier v. Southbury Training School. Federal ADA regulations provide that a public entity, such as a school board, may not provide different benefits or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others unless such action is necessary to provide qualified individuals with disabilities with benefits or services that are as effective as those provided to others.Judge Burns wrote that courts have repeatedly held that the Americans with Disabilities Act and Section 504 of the Rehabilitation Act prohibit discrimination based on the severity of disability. Specifically, she held that the state violated the ADA by failing to provide profoundly or severely disabled individuals with the same array of services as those provided to other less handicapped individuals, thereby discriminating solely on the degree of disability.Subsequently, the United States Supreme Court came to the same conclusion. The question of whether ADA covers discrimination among disabled individuals was clearly confronted in Olmstead v. L.C. Indeed, Justice Clarence Thomas, in his dissent, criticized the majority for finding that "discrimination occurs when some members of a protected group are treated differently from other members of that same group." Responding to this allegation, the Supreme Court majority called Justice Thomas' contention "incorrect as a matter of precedent and logic."Numerous other federal courts and the U.S. Department of Education have held that it is illegal to discriminate against the most disabled. This policy is not only mandated by the language of the Individuals with Disabilities Education Act, it is also sound, just and humane. For years, individuals with disabilities have been shunned, segregated and placed out of sight in institutions. By deeming the disabled as the other, we strip them of their humanity and feel free in removing their basic human rights.Judge Moukawsher deems it economically infeasible to provide comprehensive special education services to those with severe disabilities. He decides that they are hopeless or worthless, and certainly not worth the expenditure of public resources. The judge has no idea what thoughts, dreams, hopes and loves reside in the heart of an individual who cannot speak or who cannot control his or her physical movements. Yet, ignorant of the basic humanity of an individual with a severe disability, he wants to deprive them of educational services. Shame on him.Equally frightening is the underlying notion that the level of societal expenditures on an individual ought to be based on that individual's potential contribution to society. We cannot, of course, predict with any accuracy what an individual may offer to the world. Beyond that, this notion could lead to a termination of benefits for the elderly, as well as the disabled. It is a notion out of the selfish and stern philosophy of Ayn Rand.We must, as a society, reject such an approach. We need to focus on unlocking the potential of all our citizens. We need to focus on the contributions made by each of our neighbors. Only by helping those most in need can we create a just society.

Katie's Chronicles: Interview with Jack

The following post is the fist of a series of reflections and interview responses given by successful young adults with varying disabilities who have direct experience with the Connecticut Special Education system.  Our interviewer and writer is Katie Feinstein, daughter of Attorney Feinstein, who is also a successful young adult living with disabilities.  Katie chronicles individuals respective journeys within the system and beyond, into their adult lives.  The Feinstein Education Law Group represented some of these young adults when they were students.  Katie asks individuals to discuss their struggles, triumphs and perspectives as they consider their pasts and move forward into futures of hope and evolving independence.  Her first interview is with Jack, a 22 year old young man.  Thank you Katie and Jack for your contribution to our community!
 ---------I am a 22-year-old man with Autism who works full time, manages my own finances, drives, is active in my local community, and has a growing social network. My journey to get here, though, has been long and hard. I have had experiences that are very different from many of my peers.My challenges first began to become evident when I was two years old and the adults in my world were concerned that I was not speaking. By age two and a half, I was receiving Birth to Three services including OT, PT, and speech therapy. By age four,  I was in psychotherapy. By age six, I was on medication. By ten, I had my first psychiatric hospitalization. By thirteen, I had spent nearly a year in a psychiatric hospital and was on my way to residential treatment where I stayed for the next three years. You get the picture! Experts had told my mother that I would never be able to take care of myself and would need lifelong therapeutic supports. For years I was obnoxious, hated myself, was often out of control, suicidal, unpredictable and many times, I was very difficult to love and tolerate. The world seemed strange and confusing, and most of the time I did not feel like I was like other people. I had no friends and did not know how to be a good friend. Most people saw me as annoying, a punk, and a bad kid. I became a bully as a way of getting my anger out.I probably have had every therapeutic service and intervention available other than brain surgery and exorcism.It is getting easier to publicly acknowledge and understand my diagnosis of Autism. The more I learn about the spectrum, the more I believe that it accurately describes me. But for years I carried a number of other diagnoses including ADHD, Depression, Anxiety, Mood Disorder, Oppositional Defiant Disorder, and the one I laugh at the most – being the Product of a Single Mother who had bad parenting skills. Unfortunately it was not until I was twelve that I was given the Autism diagnosis and the correct treatment was begun.I have worked very hard to get to where I am today. Yet I continue to struggle every day. And I believe I have a long way to go! There is not a day that goes by that I do not fear that everything will crash down around me and that I will fail. I am terrified that my mom, who is my primary support system, will die before I am totally independent. I worry that my depression will return. I fear that if I am honest and tell people that I have a developmental disability that they will judge me and limit my options. I am still struggling to put my past behind me with every peer who I meet who knew me when I was in elementary school.To young people who are struggling like I was, I would tell them to never give up and always believe that things can get better. I would encourage them to find something that they are interested in and then pursue that interest.  For me it was boy scouts. I started as a tiger scout and worked my way through to Eagle Scout. When I was seven, I attended my first Eagle Scout ceremony, and when it was over I remember telling my Mother, as we were walking out,  that I wanted to be an Eagle Scout. Achieving this accomplishment was very difficult and took many folks, but it can be reached.Now, how is it possible for me to make the transition from disaster and dysfunction to stability and hopefulness? GOOD QUESTION. What I am realizing is that it is a process and I am proceeding on my own timeframe. I achieve goals and milestones at my own pace. But there are some lessons learned from my experience that I would like to share with you.The most important thing to remember is that it is not one intervention, technique or program that determines success. It takes a team of folks and a variety of interventions.Family is important but love is not enough. Young people like me need to have people around them who can set good boundaries, insist upon independence, and continue to raise the bar of expectation. Do not allow us to sit at home and let you take care of us. We might fight and use guilt strategies on you on this but please continue to push and insist upon separation and self-direction.Motivation is essential, so you need to find out what motivates a young person. Do not make assumptions that you know what is important to a young person. Take the time to listen to them and constantly identify what they want and why. And always be prepared that those goals, dreams and interests will change.Young people with Autism Spectrum Disorders need to be exposed to as many normalizing activities as possible. Often our behaviors make such participation in such activities difficult. And we often will fight you and resist. Ask my mom and she will tell you about the endless times she had to carry me kicking and screaming out of stores, restaurants, concert halls, and theaters. Do not stop exposing us to things. Encourage, teach, support and even insist upon us engaging in positive social leisure activities. The more opportunities we can have for typical normalizing activities the better. Do not let us sit at home. That is the absolute worst thing that you can do for us!Encourage endless community connections. We need to be part of larger social groups like church families, extended families, community groups and clubs, sporting teams, scouting groups, and civic organizations. Do not believe for a minute that we do not want to have friends or social connections. We do desire friendships and want to be part of social groups.We just do not know how to connect and have had many bad experiences in which we have been rejected and humiliated. So we are reluctant to try again.Teach us self-advocacy skills. We have to learn how to appropriately speak up for ourselves and not be taken advantage of. We do not know how to be assertive and not passive or aggressive.Finally, those of you who love and work with young people like me know that you should never give up hope that we will be successful. It might mean that you need to redefine what successful means. But never stop believing in us and never stop working on us having a voice in our own future and decision-making.

Virtual Schools Must Follow Federal Special Education Law

Over the years virtual learning and online schools have increased across the country.  On August 5th the U.S. Departments of Education issued guidance to states and school districts regarding their responsibilities for students with disabilities attending public virtual schools.  States and school districts that allow virtual schools must comply with all aspects of the Individuals with Disabilities Education Act.  This means ensuring that the provision of a free, appropriate public education in the least restrictive environment are met.  It also means that virtual schools must have "child find" policies and procedures in effect to ensure that all children with disabilities residing in the State, including those who attend virtual schools, who are in need of special education and related services, regardless of the severity of their disability, are identified, located, and evaluated.

So You Want to Be a Parent Advocate: Nine Mistakes to Avoid

Editor's Note:  In this post, parent advocate and former LCSW Susan Morton shares some common pitfalls encountered in the world of special education advocacy.  While this short article is written for a professional audience, parents who are striving to be the best advocates they can be for their own children will also benefit from these tips.What makes a great parent advocate?  You can provide invaluable assistance to parents trying to navigate the complexities of special education programming and procedures.  A strong advocate knows how to:
  • Obtain necessary information about the child and available educational program options;
  • Organize and present data to key stakeholders in a compelling manner;
  • Develop and implement effective strategies for obtaining the services the child requires; and
  • Communicate the available options to the parents, allowing them to make intelligent and realistic choices throughout the process.
Errors that crop up during the advocacy process are often those of excess -- excessive emotion that clouds judgment; excessive advice in areas beyond the advocate's knowledge or experience; excessive involvement in situations the parents would be better off handling on their own; raising parents' expectations excessively; and feeding parents' sense of outrage, rather than helping them cultivate a calm demeanor in trying situations.  Here are some of the most common mistakes advocates stumble into:(1) Replaying Your Own Special Education Advocacy Battles through Your Clients' Case.Don't relive your personal struggle to advocate for your own child, however similar that ordeal may have been to your client's case. Your judgment will be skewed, and you may create a hostile relationship between the family and the school system. Despite the similarities between your own child and the student for whom you are now advocating, the reality is that your client may have very different needs.(2) Failing to Inform Parents Upfront about the Special Education Process.Do your clients understand the potential costs of their case, both in terms of your fee as as well as the time and energy they will need to invest?  Do they understand, for example, that even if they obtain an IEE, the school district team members can still disagree with the outside evaluator's findings and refuse to implement her recommendations?  Make sure the parents understand that this is one step in the process and that there are multiple directions their case may take.(3) Making Assumptions about the Child.We are constantly informing teachers that they are incorrectly taking a one-size-fits-all approach to a child with one or another disability.  Does every child who is diagnosed with an Autism Spectrum Disorder require ABA instruction?  I think not.  Yet we are also guilty of pigeonholing a child with a certain disability into a certain type of program from time to time, because we have particular experience with that area and think we know better.  Make sure the student is thoroughly evaluated in all areas of suspected disability, and when you get the evaluation report back, read it.(4) Supporting Unrealistic Expectations.This is a really tough one.  We want to champion our clients' dreams for their children, especially in those truly crushing cases where the school has told the parents that "this is just the way your child is."  But we also know that pie in the sky ideals for how much progress a student will make are not always realistic.  Do your best to be supportive and explore all avenues for the child's education, while maintaining reasonable (not necessarily low) expectations on the part of the parents.(5) Taking a Habitually Aggressive or Confrontational Stance.Similarly to the first item on our list, don't displace the parents' rage with your own, and don't look to instill aggression where there is none.  You can express displeasure at the way the staff has handled a child's programming without jumping across the table at them.(6) Being Overly "Chummy" with the Key Players.On the other hand, too much friendliness with anyone involved -- whether they represent the school district, your client, or a third party -- just looks unprofessional and inappropriate.  Just keep it polite and professional.  You can be affable while being effective in your advocacy.(7) Failing to Listen.I was going to subtitle this point "failing to learn," but really, learning is about listening.  What are the school personnel trying to tell you?  Are they just being argumentative, or do they have real and valid concerns about how they view the child's disability and his resulting needs?  Help the parents evaluate the staff's credibility and gauge the usefulness of the information they're sharing.(8) Failing to Stay Informed.Keep up to date not only with what's going on with your clients, but with local and national developments with special education laws and regulations, including new case law and hearing decisions.  We are not lawyers, but it behooves us to keep abreast of changes in the law so we can keep our clients informed as well.  On that note ...(9) Failing to Refer a Case to An Attorney when Warranted.This could be a whole blog post by itself, or perhaps several.  A knowledgeable advocate understands when the parents are wading into legal issues that are best handled by consulting with an attorney.Parents view their advocates as their personal educational experts; they rely on them to maintain their composure and apply keen, informed judgment throughout the decision-making process.  Advocates must therefore remain mindful of the trust their clients place in them, and reflect on the case's progress as new developments unfold.  While mistakes happen to us all, it is just as important to know the best practices for avoiding mistakes as it is to know how to remedy any problems that do arise.
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