Presented By Dina C. Kaplan, Esq. ADVOCATING FOR CHILDREN WITH SPECIAL NEEDS and SPECIAL CONSIDERATIONS IN FAMILY LAW MATTERS Presented By Dina C. Kaplan, Esq.

Special Considerations in Family Law Matters Learn about Child’s disabilities and special needs; What do the federal, state and local laws provide; Who will pay for everything including therapies, medications, equipment.

Special Considerations Custody and Visitation: Joint Custody? Does the child have transition problems? Does the child need two of everything including equipment and home modifications for joint custody? Who will manage the child’s schedule? Who will transport the child to school and therapies?

Special Considerations Support: Does support need to be greater than recommended guidelines? Consider costs of services, supports, medications and equipment not covered by insurance, school district or other government agency; Consider long term care costs.

Special Considerations Medical Decisions: Do parents agree upon the types and amounts of medical interventions needed? If not, who will have the ultimate decision making power? Consideration of medical and therapeutic needs not covered by insurance; What happens when the child is no longer eligible for parent’s insurance coverage.

Special Considerations Educational Decisions: Very important to determine who has the power to make educational decisions; May be necessary to appoint a third party guardian if parents cannot agree; School District’s only need one parent to agree to IEP so if one agrees and the other doesn’t who will prevail? Where will the child go to school if the parents live in different school district’s?

Special Considerations Initial Client Meeting: Ask for list of all doctors, specialists, therapists; Ask for list of all medications including dosage and frequency and reason for taking; Copies of insurance and other agency information; Copies of educational records; All out of pocket costs Who will be the primary caregiver and what supports are necessary; will they be able to work?

Special Considerations Pleadings, Discovery and Parenting Plan: Details, Details, Details!; Pleadings should contain detailed information about the child with special needs; Educate the judge as to all of the details regarding all of the special needs of the child; Make sure the judge understand the costs involved in caring for the child now and in the future; Consider a “Day in the Life” video

Six Main Principals of IDEA Free Appropriate Public Education (FAPE) Least Restrictive Environment (LRE) Appropriate Evaluation Individualized Education Plan (IEP) Parent and Student Participation in Decision Making Procedural Safeguards

Definition of FAPE The term “free appropriate public education”, means special education and related services that: Have been provided at public expense, Meet the state educational standards, Include an appropriate education, and Are provided in conformity with the individualized education program (IEP).

Board of Education v. Rowley First U.S. Supreme Court decision to define FAPE (1982); Special Education is specially designed instruction to meet the unique needs of the child supported by such services as necessary to permit the child to benefit from the instruction; Public education does not have to maximize a child’s potential.

Least Restrictive Environment (LRE) Children with disabilities are educated with their non-disabled peers to the maximum extent possible; Removal of children from the regular education environment occurs only when the nature or severity of the disability is such that education in the regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

Appropriate Evaluation Request for evaluation can be made by parent or any other interested party; Parents should send a written request for an evaluation in all areas of child’s suspected disability, by certified mail or hand deliver, to district/school offices, obtain a receipt, and keep copy for their files; Starts legal timelines.

Legal Time Lines School district has 15 days to send parent an evaluation plan; Evaluation in all areas of suspected disability; Plan should be in primary language of the parent and parent must consent in writing; The district has 60 calendar days from the time the parent consents to conduct evaluation and hold IEP meeting;

Evaluation Procedures Instruments must be free of racial or cultural bias; They must be valid and reliable for the purposes for which they are used; No single instrument is to be used as sole criterion; Must consider information provided by parents.

Independent Evaluations If parent disagrees with results of district’s evaluation(s), parent is entitled to obtain an independent evaluation at district’s expense; Must inform district in writing that you disagree and want them to pay for independent evaluation; Make sure independent evaluators are as qualified as district’s evaluators; If district doesn’t want to pay, they have to file for Due Process.

Special Education Eligibility Categories Hearing impairments (including deafness) Visual impairments (including blindness) Speech or language impairments Orthopedic impairments Autism Mental Retardation Emotional Disturbance Traumatic Brain Injury Specific Learning Disability Other Health Impairment

Eligibility (continued) AND WHO BY REASON OF THEIR DISABILITY NEED SPECIAL EDUCATION AND RELATED SERVICES

RELATED SERVICES Such things as: Transportation Speech and language pathology Audiology Psychological services Physical and occupational therapy And other services necessary for a child to benefit from his/her education

THE INDIVIDUALIZED EDUCATION PROGRAM (IEP) Meeting to discuss results of evaluations Team of people Team considerations Special considerations Contents of the document Legal document

IEP TEAM MEMBERS Parents of child; Regular education teacher if the child participates at all in general education; Special education teacher; Individual able to interpret evaluation results, including related services providers; School district representative qualified to make decisions; The child if appropriate; Others at the discretion of the parents or district who have knowledge or expertise regarding the child.

TEAM CONSIDERATIONS Academic needs of the child; Developmental and Functional needs of the child; The strengths of the child; The child’s unique needs; Concerns of the parents.

CONTENTS OF THE IEP Assessment results; Student’s present levels of performance; Long term goals and if appropriate short term objectives; Progress toward meeting prior goals; The extent of time the student will be participating in general education; Transition services when the child is sixteen;

CONTENTS OF THE IEP (continued) The transfer of educational rights when the student turns eighteen; A statement of the special education and related services the child needs; Supplemental aids and services the child needs; Program modifications if necessary; Program accommodations if necessary.

SPECIAL MATTERS TO BE CONSIDERED BY THE IEP TEAM Positive behavior interventions and strategies if necessary; For a child with limited English proficiency, consideration of language needs in relation to child’s IEP; Braille instruction, if appropriate, for a visually impaired child; For a child who is deaf or hard of hearing, consideration of child’s means of communication, and instruction in that means of communication; Assistive technology.

PARENT AND STUDENT PARTICIPATION Parent concerns considered; Consideration of information from outside assessors, medical documentation or information regarding outside services; Individualized Transition Plan (ITP) with student when he/she turns 16.

A NOTE ABOUT DISCIPLINE A student with disabilities may be disciplined to the same extent as a student without disabilities if, the behavior is a violation of the school code of conduct and is not a manifestation of the student’s disability, except that the student must continue to receive services; Very complicated always seek legal advice from an expert.

PROCEDURAL SAFEGUARDS General Protections At the IEP meeting the district must provide the parents with a document explaining that they and their child have certain procedural safeguards : The opportunity to examine all records relating to their child; To consent to evaluations; To participate in meetings with respect to the identification, evaluation and educational placement of the child; To a Free, Appropriate Public Education (FAPE) for their child; To obtain an independent educational evaluation (IEE); The opportunity to participate in the complaint resolution process;

PROCEDURAL SAFEGUARDS General Protections Continued What the “Stay Put” placement will be; Discipline procedures; Procedures for unilateral placement of children in private school at public expense; Due Process procedures including mediation and appeals; and Right to attorney fees.

PRIOR WRITTEN NOTICE Provide written prior notice to parents when the district proposes to initiate or change, or refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE. Notice must be in parents native language. Must give notice of the mediation and Due Process complaint procedures.

PRIOR WRITTEN NOTICE CONTINUED Notice must contain: A description of the action proposed or refused by the district; An explanation of why the district proposes or refuses to take action; A description of each evaluation, procedure, assessment, record or report the district used as a basis for the proposed or refused action;

PRIOR WRITTEN NOTICE CONTINUED A description of any other factors relevant to the district’s proposed or refused action; A statement that the parents have access to procedural safeguards and a list of sources for parents to contact where they can obtain assistance in understanding these provisions; Provided in the parent’s native language.

THE DUE PROCESS COMPLAINT A complaint may be filed by any party regarding the identification, evaluation, or educational placement of the child or the provision of a free, appropriate, public education. Administrative proceeding handled by the State’s Department of Education or Office of Administrative Hearings. Two year Statute of Limitations.

THE DUE PROCESS COMPLAINT The complaint SHALL include: The name and address of the child and the name of the school the child is attending; In the case of a homeless child, available contact information for the child and the name of the school the child is attending; A description of the nature of the problem relating to the proposed action or refusal to act, including facts relating to such problem; and A proposed resolution of the problem.

“STAY PUT” With the exception of appeals related to discipline, when a due process complaint is filed, a child stays in the last agreed upon placement with the last agreed upon services unless the parents and the district agree otherwise.

RESOLUTION SESSION Unless waived, in writing, by the parties, the district is to hold a Resolution Session within 15 days of receipt of the complaint to attempt to resolve the dispute prior to a hearing. In addition to the Resolution Session, voluntary mediation must be available to the parties either before or after the complaint has been filed.

RESOLUTION SESSION The resolution session must include members of the IEP team who have specific knowledge of the facts identified in the complaint and a representative that has decision making authority. The district may not have an attorney present unless the parents are represented.

THE DUE PROCESS HEARING The Federal Regulations at, 34 CFR 300.511(a), provides that a hearing must be held within 45 days of the date the request is received. The parties are entitled to an impartial due process hearing.

THE DUE PROCESS HEARING Most states require a disclosure of all exhibits and a list of witnesses the parties intend to call at hearing not less than 5 business days before the hearing. Failure to disclose may bar the party from introducing the evidence.

THE DUE PROCESS HEARING The hearing officer’s decision must be made on substantive grounds based on a determination of whether the child received a FAPE or on procedural grounds when the procedural errors impeded the child’s right to FAPE, significantly impeded the parent’s opportunities to participate in the decision making process, or caused a deprivation of educational benefits.

APPEAL Appeal of a hearing decision is to the district courts of the United States or to a state court of competent jurisdiction within 90 days unless an other time line is provided by state law. The court hearing the appeal will receive the record of the administrative hearing, hear additional evidence if requested and base its decision on a preponderance of the evidence.

ATTORNEY FEES Fees and costs can be awarded to the parents if they are the prevailing party. The fees are determined based on what is reasonable and customary. No fees for attending IEP meetings unless the meeting is as the result of a Due Process matter. No fees for an attorney attending a Resolution Session. No fees for expert witnesses evaluation or testimony.

ATTORNEY FEES Fees can be reduced or denied for: actions that delayed the resolution of the matter; the relief obtained at hearing was not better than what was proposed in a written offer from the district given 10 days prior to hearing; or the attorney did not provide appropriate information in the complaint.

ATTORNEY FEES If a district wins at hearing, it may seek fees against the parents or the attorney for the parents, if the complaint or Due Process proceeding was presented for any improper purpose, such as to harass, to cause unnecessary delay or to needlessly increase the cost of litigation.

SECTION 504 OF THE REHABILITATION ACT OF 1973 (504) Broad civil rights law to protect the rights of individuals with disabilities in programs that receive Federal funds including public school districts. Children with IEP’S are automatically protected by Section 504. No one with a disability shall be excluded or denied benefits solely because of their disability.

504 DEFINITION OF DISABILITY A person who has a physical or mental impairment which substantially limits one or more major life activities; Has a record of such impairment; or Is regarded as having such an impairment. Regulations that apply to educational institutions define physical impairment as affecting one or more bodily systems; Mental impairment includes mental retardation, learning disabilities and mental illness.

AMERICANS WITH DISABILITIES ACT (ADA) Broadened the definition of disability to include more major life activities such as eating and sleeping; Cannot consider mitigating measures such as medication and hearing aids; Exception for ordinary eye glasses or contacts. A medical diagnosis only qualifies a student for a 504 Plan if it causes a substantial limitation of the student’s ability to learn or other major life function.

504 REGULATIONS Require school districts to provide FAPE, which includes regular or special education and related aids and services to meet the unique needs of a disabled student, as adequately as the needs of a nondisabled student. Begins with evaluation similar to the one under IDEA. May include accommodations or services. Purpose, to “level the playing field” in the classroom with non-disabled peers.

OPTION FOR HEARING OR COMPLAINT WITH THE OFFICE OF CIVIL RIGHTS Hearing rights are similar to those under IDEA but no requirement for mediation. The Office of Civil Rights (OCR) investigates claims of discrimination in the public schools. If school district is out of compliance with the law, OCR can seek voluntary corrective action. If district refuses, OCR can ask the Department of Education to withhold funds or can file in Federal Court. Student can file directly in Federal Court.