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Susan Luger
Associates Newsletter
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Happenings in the World of Special Education
October 2010
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 Paul Kelly Goes Missing
State Review Officer Appears to Have Left Position
Paul Kelly, the State Review Officer we love to hate, has apparently left his position. Kelly, well-known for his favoritism of school districts over parents and amorous apparent conflicts of interest, is no longer the State Review Officer.
We at SLA found out that Mr. Kelly is no longer participating in making life difficult for parents when one of our rulings came down in our favor and was signed by Frank Munoz. Mr. Munoz used to contribute as one of the State Review Officers (and was considered fair to all parties) and then disappeared, only to make a come-back in the last few days.
Then the rumor mill within the special education community (oh yes, such a mill exists and is the primary source of much that you read here)
started buzzing. We have proof that Mr. Kelly has left his position. We do not know the reason or the means by which he left.
As a true story, witnessed by this writer, on more than one occasion, a school district lawyer has shrugged his/her shoulders as our case was being won and said "we [the school district] still have [Mr.] Kelly to overturn the case".
We leave Mr. Kelly with wishes for a good life and paraphrase the blessing over the Tsar from Fiddler on the Roof : may the Lord bless and keep Mr. Kelly well and well away from special education! Amen! |
OSEP Rules IEP Team Responsible for FAPE |
OSEP is the federal Office of Special Education Programs, and a major interpreter of the IDEA. OSEP often gets queries from individuals asking clarification of rules and procedures. The OSEP Letters, responses to the queries, are considered guidance to agencies (school districts, state organizations, etc.).
A recent 'Letter to Richards' clarified the ultimate responsibility of the IEP as the channel to FAPE. According to OSEP, the IEP team (which we typically call the CSE) is the communications vehicle between the family and the school personnel, and enables the family to participate in joint decisions to meet the child's unique needs.
The team should work toward general agreement. But, if that agreement is not forthcoming, the CSE must determine appropriate services and provide the parent with written notice of its decision and of the family's right to seek resolution through due process (i.e., an impartial hearing).
OSEP stated that the IEP determination is not a democratic process in that the majority "vote" does not rule. It is the CSE that must ultimately make the IEP service decisions that determine FAPE.
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Warning to the CSE:
Don't Recycle Last Year's IEP | |
The Southern District of New York US District Court has ruled against a school district in an interesting case that should serve as a warning to CSE's and other IEP teams.
In this case, E.S. and M.S. ex rel. B.S. v. Katonah-Lewisboro Sch. Dist., the school district created an 2006-07 IEP that the parents disagreed with. The parents placed their child in a private school.
In 2007-08, the school district heard of the student's progress (which was substantial) from the private school and parents' private testers. So, what does the school district put in the 2007-08 IEP? The same goals and services as were rejected the previous year. Evidently, the school district did not take the child's progress into account when formulating the IEP.
Parents go to impartial hearing. The hearing officer rules for the school district. Parents go to SRO. Paul Kelly (remember him?) ruled in 08-158 for the school district.
Parents go to federal court. Here, Judge Loretta Preska
finds the repetition of the annual goals and short-term objectives from the prior year's IEP troubling. The IEP team should have designed a new program to take into account the objectives the student met as well as the objectives that continued to challenge him, rather than resurrecting the old one.
The court pointed out that the IEP team had access to the private school reports, indicating academic progress. The district simply reprinted the prior year's IEP. This was deemed by the court as a denial of FAPE.
This shows that the CSE can offer an IEP and services, as shown in the first article and, if you disagree, you have rights! | |
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Community Corner | |
Susan Luger Workshops 2010-11 Announced
It is with great pleasure that we inaugurate the 2010-11 Workshop Series with a November 17th presentation by Dr. Boris Gindis on "Effects of Fetal Alcohol Syndrome on International Adoptions."
Stuart Flaum will be speaking on Special Needs Trusts in December.
In January, Dr. Peter Piegari will speak to parents about neuro-psych reports.
Keep an eye on our website for details and registration. |
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Siblings of autistic children may share symptoms but not be diagnosed | |
Survey finds surprising number of girls affected but not diagnosed
A new study finds that siblings in families with two or more children with autism often grapple with language delays, social difficulties and other mild symptoms of the disorder but remain undiagnosed.
Autism symptoms vary in intensity among members of these families, including siblings with symptoms who don't qualify as having autism.
Kids with undiagnosed autism-related social deficits may find it hard to make friends and could experience a worsening of conditions such as learning disabilities and attention-deficit hyperactivity disorder.
It is recommended that the intensity of autism symptoms in individuals should be measured over time and points of intervention should be determined. | |
Science News 10/07/2010 |
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Prepare to See Service Animals in Schools | |
The Justice Department on July 23 published new Americans with Disabilities Act (ADA) Title II, III regulations. The final rules take effect March 15.
One Section pertains to service animals and should be noted by parents and school districts, especially because the use of service animals in schools is increasing.
We have yet to learn the NYC DOE policy on service animals. Stay tuned.
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If you learn of any newsworthy item related to Special Education, contact us with the information. |
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End Notes
This is the time of the year when our affiliated attorneys are preparing for and appearing at Impartial Hearings. The attorneys and the SLA advocacy staff are busy strategizing to prevail against the school districts. The school district attorneys attempt to do the same. It is not a subtle, chess-like strategy with fancy foreign names given to the moves: Latvian gambit, Sicilian defense.
No. This strategy is more like a game of checkers in an old-fashioned country store. It is often a game of block-your-move with skill so you don't block-my-move. Sometimes, there is a knee jerk reaction or a "we've always done it this way" frustration or a "I'm only doing my job" retort. Often there is a "Why don't you see that what you are doing isn't working" response.
What the checker players sometimes forget is that this isn't about a case folder. Its not about a number. And it is certainly not a game. It is about a child with special needs. It is about a child with a recognized disability whose guaranteed right to a free appropriate public education is being compromised. It is about a family that is seeking appropriate services for their son or daughter.
It is necessary for ALL of us to get beyond the 'fault', beyond knee-jerk reactions and remember that this is about a real live child. This child is in need of help that only we can provide. All of us have an obligation to assist that child.
No school district is expected to have all the solutions for all its children in special education. Some special education children require very small and quiet classes, some require specialized programs, others require dedicated services. Some require service the school district cannot provide. When there is disagreement about what that child needs, and the grown-ups cannot work it out, let's hope that the next steps can be performed in a professional and caring manner.
Not a subtle game at all.
Sincerely,
Susan Luger Associates
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