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Susan Luger
Associates Newsletter
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Happenings in the World of Special Education
December 2010
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Serious Change in NYS SRO Decisions
In Post-Paul Kelly Era, Parents Stand a Chance Based on Law, Not Bias
In March 2008, the Committee on Preschool Special Education (CPSE) convened and classified the student as a preschool student with a disability, recommending a private preschool program and services.
The CPSE reconvened in October 2008; in April 2009, the Committee on Special Education (CSE) convened to review the student's elgibility and made changes to the earliest recommendations of the CPSE. The parents filed a due process complaint in July 2010, alleging violations in the October 2008 and April 2009 IEP's and denial of FAPE. The parents invoked the student's pendency entitlements according to the last agreed-upon IEP of March 2008.
Questions arose about which was the student's "last agreed upon" placement. The IHO stated it was the March 2008 IEP, not (as the district contended) the October 2008 IEP. This is the crux of where pendency is defined.
The IDEA and NYS Ed Law require that a student remain in his/her then-current educational placement. Pendency has the effect of an automatic injunction, and the requesting party need not meet requirements for injunctive relief. The purpose of pendency is to provide stability and consistency in the education of a student with a disability.
Pendency does not mean that a student must remain in a particular site or location, or at a particular grade level. The "then current placement" has been found to mean 'the last agreed upon placement at the moment when the due process proceeding is commenced'; and generally taken to mean the current special education and related services provided by the student's most recent IEP. A prior unappealed IHO's decision may esstablish a student's current educational placement for purposes of pendency.
The SRO ruled that, since the October 2008 and April 2009 IEP's were in dispute, the district's contention that the pendency placement was defined by the April 2009 IEP is wrong. The SRO whacked the district's appeal. |
 Parent Inflexibility is Not a Determining Factor, Maybe
Parental unwillingness to accept a District's proposal in the Resolution Process does not invalidate due process complaint
The Office of Special Education Programs (OSEP) is the government agency that provides guidance to state and local agencies and school districts regarding application of the IDEA. In recent guidance, OSEP stated that the IDEA does not require a parent who participates with a district in a resolution meeting to agree to anything. Thus, a district may not obtain dismissal of a due process complaint merely on the ground that a parent declined to end the dispute during the resolution process. |
Gov't says Calendar Days are Calendar Days regardless of school vacation |
 The federal Office of Special Education Programs (OSEP) is an agency which provides guidance to school districts and local organizations. Recently, a Texas school district asked to waive the IDEA's timeline for resolution meeting after a request for due process. The IDEA states that a district must have a resolution meeting in fifteen calendar days of receiving a due process complaint. [In NYC, SLA typically waives the resolution meeting since the participants have no power to resolve our parents' issues.]
The Texas school district typically has a two or three week winter break and wanted to delay any resolution meetings that would fall in that period. OSEP ruled that a calendar day is a calendar day, regardless of school holidays.
Our motivation for reporting on this case is, although in NYC resolution sessions are waived, there are other IDEA timelines that use the 'calendar day', and we should always keep track of these time units. In particular, OSEP states that "postponing the [resolution] meeting would delay the 45-day timeline for issuing a final due process decision".
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Community Corner | |
Susan Luger honored by the NY Chapter of the National Autism Association
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Susan was honored by the New York Metro chapter of the National Autism Association for her efforts in obtaining appropriate placements of children. We are all proud of her.
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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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Deb Ezbitski, Esq. is joining the SLA Affiliated Attorneys team. Deb's bio will appear on our website shortly. She is well-experienced in special education and passionate about her beliefs. Deb will be focusing on our northmost cases (Westchester, Rockland and such).
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Adriene Gavronsky, Esq. joined the SLA Affiliated Attorneys team last month. Adriene's bio too will be on our website shortly. Adriene is a keen litigator and looks forward to working in the NYC venue.
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Genes Jump More in One Type of Autism | |
Rett syndrome, a severe form of autism that mainly affects girls, manifests with speech and movement disorders, repetitive hand-wringing and other symptoms. Rett syndrome is caused by a mutation in the gene labeled MeCP2.
The protein made by MeCP2 tells genes when to pipe up and when to remain silent. The mutation of MeCP2 may not provide the proper control of genes, resulting in a molecular equivalent of cacophony.
Researchers now find that defects in MeCP2 cause genes to jump in a form of biological musical chairs. Gene jumping is a normal activity, but in children with Rett syndrome the amount of gene jumping is much greater.
Excessive gene jumping may increase the likelihood that an important gene may be damaged, disabling some brain functions and leading to some of the Rett syndrome symptoms. | |
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Defining 'Normal' in the Brain | |
Researchers have created a growth curve for the brain, similar to height/ weight charts used by pediatricians.
Scientists developed this milestone by aggregating results of brain scans, revealing how a brain's connections evolve with age. This information can help detect a variety of disorders which are marked by disordered neural connections: Tourette's syndrome, autism, schizophrenia.
Researchers envision that testing will soon uncover when and how the brain connections mature, and the diagnosis and meaning of maturity deviations.
From Science News, 10/9/2010. | |
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End Notes
This is a tale of two cities.
It is a work of fiction.
The characters are historic fact, but their actions, thoughts and motivations are purely hypothetical, and merely in the author's mind. Meryl Streep has first dibs on the movie version.
Act I. What is he thinking?
The mayor and a few other notables, including Microsoft's Bill Gates, believe that education can be treated as a business enterprise. Mayor Bloomberg believes that you can educationally budget to meet all contingencies, and that you can measure success in education analytically. He believes that a great manager (whose expertise was developed in the corporate world and who has no educational background) can easily and swiftly adapt to the non-product oriented, nurturing, child-centered world that we call education. One school = one profit center!
The mayor has his principal's academy, where he cookie-stamps out inexperienced yuppies, who are then "qualified" to become school principals. These ready-made "educators" are tearing down the integrity of the school system.
The mayor has his cadre of highly paid consultants who churn out mathematical proof that his methods and style are improving the school system. Whenever a newspaper article shows the flaws of the mathematics, the mayor is quick to silence the reporter.
The mayor has his hand-picked, public-education-free Chancellor in Catherine Black. Was there opposition to her waivered appointment? Was it quickly quieted down with the nominal appointment of another "educational leader" who is clearly to be subordinate to Ms. Black? Will Ms. Black and the mayor be making all the decisions? Yes, yes and yes.
Why is the mayor expending such care and control over education, you might ask? This is our theory.
Act II. The nefarious plot
Did you see the news report last week, where a list of 67 failing schools was announced? It was reported that these schools face expulsion of the principals, reassignment of teachers, and possible conversion to charter schools.
That made me think -- charter schools? Yes, charter schools. There are "benefits" when a public school is converted to a charter school.
First, you get rid of the union. Whatever one thinks of the education unions, they provide protection and structure to the educators. It is not perfect. It protects inefficiencies. But, without it, the world of educators would be chaotic, even medieval.
Then, you get to choose your student population. It sounds great to toss out the trouble makers (and the special education kids), but where are they to go? Thus, you can create a two-tier system of education: the chartered population and the "others", who would be relegated to public schools. Voila! There you have it. A tale of two cities, created in my imagination. The chartered population (wait ... let me guess -- upper class, upper middle class, middle middle class with a free superb charter school education) and the "others" (whoever is left -- the lower class, the special education kids, etc).
It was the best of times, it was the worst of times ...
Sincerely,
Susan Luger Associates
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