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NEW GUIDANCE HELPS SCHOOLS SUPPORT STUDENTS WITH DISABILITIES and AVOID DISCRIMINATORY USE OF DISCIPLINE

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On July 19,2022, the Department of Education for Civil Rights (OCR) and Office of Special Education and Rehabilitative Services (OSERS) released guidance to assist public elementary and secondary schools fulfill their responsibilities to meet the needs of students with disabilities and avoid discriminatory use of student discipline.

These newly released resources are the most comprehensive guidance on the civil rights of students with disabilities concerning student discipline and build on the Department’s continued efforts to support students through pandemic recovery.

            “ All students deserve to have their rights protected, and schools deserve greater clarity on how they can avoid the discriminatory use of discipline”, said U.S. Secretary of Education Miguel Cardona. “ Too often, students with disabilities face harsh and exclusionary disciplinary action at school. The guidance we’re releasing today will help ensure that students with disabilities are treated fairly and have access to supports and services to meet their needs-including their disability- based behavior.  We also expect that districts utilize the American Rescue Plan dollars to build capacity, provide professional learning opportunities for educators and school leaders and hire additional staff. These resources will also help schools live up to their legal obligations, support an equitable recovery for all our students, and make sure that students with disabilities get the behavioral support and special education services they need to thrive. “

            The new releases reflect the concern, particularly in light of the prevalence of student mental health issues associated with the pandemic, that some students with disabilities are not receiving the supports and services necessary to address their educational needs, including their disability- based behavior.

The new resources include:

The Minor’s Right to Confidentiality under Illinois Law

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Parents are often shocked at how much control their minor child has over their mental health records. In a post-dissolution of marriage proceeding, the petitioner mother sought to restrict the father’s parenting time with their minor child based on allegations that the father would continue to interfere with the medical services necessary for the child’s mental health. The father moved for production of the child’s medical, psychiatric, psychological, and school records, and the mother objected based on the child’s statutory privilege to keep the requested records confidential and objected to disclosing the records to his father. The trial court denied the father’s entire request for production of the child’s records. The Appellate Court addressed the issues that arise in the context of divorce and post-decree matters, specifically a minor’s right to deny access to his or her mental records, whether in the context of mental health treatment by private practitioners as well as in a therapeutic day school.

The minor was seeing a therapist and attended a therapeutic day school. Father sought both the entire school records as well as the private treatment provider’s records. Mother and the child representative were both in possession of the records. The minor objected to the disclosure of these records to the father.

The Appellate Court addressed two certified questions regarding these issues. The issues raised by the modified certified questions of law are whether a trial court, in a proceeding related to a petition to restrict parenting time under section 603.10 of the Marriage Act, (750 ILCS 5/603.10 (West 2018), where the allegations involve the mental health of a child who is at least 12 but under 18 years old, may deny a parent based on the provisions of the Confidentiality Act or the best interests of the child(1) the ability to discover otherwise relevant evidence concerning the child’s mental health and therapeutic school records on the ground that the child in question does not want the evidence disclosed to one parent; (2) the ability to discover the child’s medical records concerning the child’s mental health and school records from a therapeutic school even though those records are relevant to the proceedings and the parent is entitled to have access to those records pursuant to the parties’ allocation parental allocation judgment; and (3) access to the child’s mental health and therapeutic information that the child’s representative has reviewed.

The father in this case, argued that he wasn’t seeking records from the therapist but from his former wife. The court found that the father cannot avoid the effect of the child asserting his privilege against disclosure by seeking the documents from another source besides the therapist. The court further held that this privilege is not absolute and looked to the statute for clarity.
Section 4(a)(3) of the Confidentiality Act provides:
§ 4. (a) The following persons shall be entitled, upon request, to inspect and copy a recipient’s records or any part thereof:
(3) the parents of a recipient who is at least 12 but under 18 years, if the recipient is informed and does not object or if the therapist does not find that there are compelling reasons for denying the access. The parent or guardian who is denied access by either the recipient or the therapist may petition a court for access to the record. Nothing in this paragraph is intended to prohibit the parent or guardian of a recipient who is at least 12 but under 18 years of age from requesting and receiving the following information: current physical and mental condition, diagnosis, treatment needs, services provided, and services needed, including medication, if any [.] (Emphasis added.) 740 ILCS 110/4(a)(3) (West 2018).

The court ruled that the father in this case was entitled to the limited information that is outlined in the statute but nothing more after petitioning the court for that access. The fact that the entire record was disclosed to the mother, or the child representative does not nullify the child’s objection to the same information to the father.

The father also sought records from the therapeutic day school where his child attended asserting that he was entitled to education records under the terms of the Allocation Judgment. The court recognized the ambiguity created by the records kept by a therapeutic school and reasoned as follows:
Section 5(f)(1) of the Student Records Act recognizes the patient-therapist privilege and keeps confidential information communicated in confidence to a psychologist or other psychotherapist, school social worker, school counselor or school psychologist intern who works under the direct supervision of a school social worker, school counselor, or school psychologist. This list of protected communications includes information communicated in confidence to a teacher of an academic subject at a therapeutic school. 105 ILCS 10/5(f)(2) (West 2020). “Construing the provisions of the Student Records Act and the Confidentiality Act harmoniously, we conclude that privileged records and communications under the Confidentiality Act do not include a minor’s grades, grade level, academic assessments, and similar information, even if that child attends a therapeutic day school. Consequently, a trial court cannot deny a parent access under section 4(a)(3) of the Confidentiality Act access to the non-privileged school records of a minor child who attends a therapeutic day school, even if that child, who is at least 12 but under 18 years of age, objects to the parents request to inspect and copy those records. Furthermore, the trial court may conduct an in-camera review to ensure that the child’s therapeutic school’s records do not contain any privileged information concerning the child’s mental health services beyond the limited information regarding the child’s current physical and mental condition, diagnosis, treatment needs, services provided, and services needed, which the parent is entitled to receive. 740 ILCS 110/4(a)(3) (West 2018).

The Child and Family Law Center: Advocating for the Legal Rights of Children for over 25 years

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What does it take to win a Due Process Hearing?

A due process hearing is one of the mechanisms for resolving disputes regarding special education services between parents and school districts. Other less formal options such as mediation or a resolution session are available and typically occur before the parties go to a due process hearing. We make every effort to resolve disputes prior to going to a due process hearing. However, when it is not possible to resolve the issues a due process hearing may be necessary.

Parents often ask what it takes to win a due process hearing and this question is one that I have given a lot of thought to over the years. My answer is based on my experience litigating due process cases for over twenty-six years. Some of the answers may seem obvious while others may not. The following is a compilation of lessons learned as a parent’s attorney in these proceedings.

  1. The facts support the parent’s claim that their child was denied their rights under the Individuals with Disabilities Education Act (“IDEA”). There are many scenarios that meet this definition. Typically, the student has not received appropriate services, failed to make meaningful progress, or was not identified in a timely manner as a student with a disability. *
  2. The denial of these rights must rise to a denial of a free, appropriate, public education. Data supporting these arguments is a necessary element in a successful due process hearing.
  3. A well-organized parent who keeps good records is an asset in a hearing. Preparation from an attorney and collaboration with the family are essential.
  4. Documentation of the parental concerns to the school and evidence of the district’s failure to respond appropriately are often key elements in a hearing.
  5. The law supports the legal position that you are taking in the hearing. This is a complicated area of law that requires a knowledge of case law and prior decisions that provide guidance on the legal standards.
  6. Expert witnesses often determine whether a parent will prevail in a hearing.  Parent’s opinions are unlikely without some independent source, to persuade a hearing officer of their position. Choose experts carefully.
  7. The parent’s willingness to work with the school and to participate in the process even though there may an “agreement to disagree” on what is needed is a factor in hearing officer’s decisions.
  8. The ability to clearly articulate the relief you want from the hearing officer. Parents in conjunction with their legal counsel should be prepared to state very clearly what they want the school to do.
  9. At all times parents and legal counsel should behave in a professional manner.

Selected Resources:

http://wwwisbe.net/documents/parents-guide-special-ed-Aug.20pdf

If you are considering a due process action or simply want to discuss your child’s special education rights, please call our office at (312)-640-0500 and ask to speak to Micki Moran or email her at mmoran@grundlaw.com

Getting the Right Reading Intervention Shouldn’t Be So Hard

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It has been nearly 26 years since I started my practice with a focus on special education law and advocacy for children and adolescents. The practice is and was inspired and informed by my own son’s struggle with dyslexia. I was fortunate to have both the financial ability and resources to provide him with excellent research -based intervention. He learned to read using an Orton-Gillingham based approach. It was neither a fast nor easy solution. It worked. He is an avid reader and has a lifelong love of learning.

            After all this time the issue of reading intervention continues to be difficult for parents. Schools resist “labeling/identifying struggling readers as dyslexia. It is not uncommon for school systems to delay evaluations and interventions. Schools often do not utilize interventions that are researched based for students with specific learning disabilities relying on a patchwork of eclectic programs that depend on the skills or lack thereof a particular teacher and may even depend on what school a student attends in a district. This haphazard approach to something as basic as reading still surprises me. The science of reading intervention is not new. The Orton-Gillingham approach used 32 years that was implemented by my son’s reading teachers is hardly cutting edge and there is very little dispute that these interventions are needed and effective.

            Despite this fact, a common complaint from clients who seek our legal assistance has to do with the failure of their child’s school to agree to or even utilize research-based methodologies. Parents should push back when they are met with this resistance. Below, I have outlined a few tips for families who find themselves in this situation.

  1. Insist on an evaluation. If your school will not evaluate seek out a private comprehensive educational evaluation.
  2. Trust your gut. Parents often know there is a problem before the school does.
  3. Put every communication regarding your concerns to the school in writing.
  4. Track your child’s progress.
  5. Stay informed. [Resources to follow below]
  6. If the school takes a wait and see approach- agree on how long this period will last. Confirm that in writing.
  7. Agree on how progress or lack of progress will be monitored.
  8. Read with your child at home. The pandemic and school closures revealed deficits in reading that many parents were unaware of until their child was home and they saw the struggle first- hand.

Resources:

  • Dyslexia Handbook, Illinois State Board of Education, www.isbe.net

Co-Parenting in the Age of Coronavirus

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There is no road map that allows us to provide hard guidance on how to manage parenting during this difficult time. Families are in unfamiliar territory. However, there are some things that hopefully will help you navigate co-parenting.

  1. Follow existing court orders. Parents must follow existing court orders. This is scary advice for clients who may feel that the other parent is not practicing social distancing practices. Courts are not generally hearing these cases at the moment. In Illinois most courts are closed until mid-May with the exception of emergencies. Common sense would indicate that if one parent has been exposed to COVID-19 then act responsibly even though it may violate the parenting plan. If a child or other family is at high risk medically that may impact how parenting time is exercised, don’t be arbitrary and act responsibly. Your failure to act in good faith during this time will be used against you in the future.
  2. Modifications. If you do decide to modify the existing Parenting Plan, I suggest you get this modification in writing. This can be done with your attorney by drafting a stipulation amending the existing schedule and signed by both parties.
  3. Be Flexible. Many of us including attorneys are working remotely. Some families are now faced with the challenge of working while home schooling and dealing with children home all day every day.  If possible support the other parent during this time to allow you both the option of working and supporting the education of your children.
  4. Keep communication neutral. Resist the desire to lash out at your ex at this time. Stay focused on the kids and the logistics of what needs to be done.
  5. Prioritize the Financial Needs of your child. If one parent loses a job or becomes unable to work due to illness or temporary closures this will require a rethinking of support and payment obligations.
  6. Parental contact. In some situations in person contact may be limited. Use Skype, Zoom or Face Time to ensure regular contact with the other parent. It is important for your family.
Close up of stethoscope and gavel on white background

Rights of Teens Regarding Confidentiality under the Mental Health and Developmental Disabilities Confidentiality Act

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Close up of stethoscope and gavel on white background

Many parents who come to our office are surprised to learn that their child, if they are at least 12, must consent to the release of mental health information.
Who has the right to the records protected by the Act? You have the right to copy and inspect your own records if you are age 12 and older. In addition, the following people have the right to inspect and copy the records upon request:
• The guardian of a child under age 12
• The guardian of a recipient who is age 18 or over
• An attorney and guardian ad litem representing a minor age 12 years or older, with a court order
• An agent appointed by a recipient under a Power of Attorney for Health Care or Property
• An attorney-in-fact named in a declaration of preferences or instructions regarding mental health treatment under the Mental Health Declaration Treatment Preference Declaration Act.

Disclosure of Records to Parents of Children Age 12 to 18.

A parent or guardian of a recipient of services who is over 12 but under age 18 may always have access to certain kinds of records. Those are records about the child’s current condition, diagnosis, treatment and medications being provided, and the treatment and services needed.
The parent or guardian may have access to other kinds of mental health or developmental disabilities service records if the child does not object or if the therapist does not feel there is a strong reason to deny the parent access to the records. If the therapist or the child denied access to those records, the parent or guardian may file court action to seek access.

Karma

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Last week I received a call from a lawyer who had reviewed a CLE presentation I had done on School Discipline. He was handling his first expulsion case and wanted some advice. I was busy and thought for a brief moment that I just couldn’t take the time to help. I called the lawyer. He was grateful and we talked about the implications of a student with special education issues and school discipline. The child’s family had few resources and this lawyer was trying to assist in assuring that this 13 year-old wouldn’t be expelled without access to education.

Over the years, I have had many of these calls. I have always tried to reach back and help because access to legal advocacy in special education, in most instances, depends on a family’s ability to afford an attorney or advocate. The stakes are very high. Removal from school is disastrous for all children. Failure to get the right resources can damage a child forever.

There are only a handful of private special education attorneys in the Chicago area. There are far fewer, if any, as we move away from the greater Chicago area. The need is the same. Access to these resources is critical. It is a shared responsibility.

Reflections of a Special Education Lawyer

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Yesterday, I traveled to Rockford, Illinois, to give a presentation on Special Education Law to a group of parents of children with autism. The parents had arrived early on a Saturday morning, anxious to hear how to navigate the labyrinth of the special education system. I agreed to trek nearly two hours away on this early morning to give people information that hopefully would help them advocate for their children.

This is my 18th year practicing special education law, a career shift inspired by my own efforts to advocate for my son. The first year of my practice, in a combination of serendipity, skill, experts, determined resourceful parents and circumstances, I handled my first autism case. Ultimately, that case went to the 7th Circuit and represented a victory for parents of young children with autism. At the time, I had no idea that following the T.H. v. Palatine case the world would experience what felt and still feels like an epidemic of autism.  In my naivety, I thought that schools would take notice and parents would be empowered to request research-based interventions for their children. This happened on a small scale.

However, yesterday I was struck by questions that reminded me that despite the fact that recent CDC statistics now indicate that 1 in 50 children have a diagnosis of autism, parents are still struggling mightily to get educational interventions for their children. The parents in the audience  were a mixed group. Many could not afford an attorney. They were desperate for information, asking for specific language they could use to make their schools listen. Several special education teachers were in the room and they too wanted to know how to help the children and parents get much needed services.

The parents asked questions and clearly didn’t know how to respond when their school answered by refusing their requests for summer school. One family told me that they were not sure what to do because their district told them that “they didn’t offer extended school year for anybody.” The parents couldn’t afford an attorney and couldn’t pay for a summer program. I provided resources to the Illinois State Board of Education and links on the web that they could use to advocate for their children. I offered to help them if they needed more assistance.

The stories continued in the question and answer period following the presentation. The parents were told by their school districts that there was simply no money for the resources they were requesting. The parents understood the answer. This was a problem they shared with their school districts. Almost everyone in the room believed that things would get worse for their kids with the upcoming funding cuts.

January 1, 2013

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Happy New Year to all my clients and colleagues. The last several months have been very humbling and have provided me with a window into what having a disability means on a day to day basis. In late October, on an ordinary evening, I was walking my dog in the rain. She pulled forward, I slipped on mud and wet leaves and for a moment, I became airborne, landing on my shoulder. Although I had never broken anything before, I was fairly certain that this was  in fact what had happened. The result was an ambulance ride and several days later, surgery for a 4 part fracture to my shoulder. For the last two months, my right arm has been immobilized and quite painful.

I was faced with all the things I couldn’t do, rather than the things I could do. I couldn’t type, put on my socks, reach for anything, drive (at this point I am still being chauffeured around). I prided myself on my independence and now at least for the short run, I was dependent on everyone. I counted the days/months until this would pass. Cooking was impossible, although I subsequently mastered a few one handed recipes. I discovered that the world is complicated with only a working left hand. I slept upright and not very well. There seemed to be more things I could not do on a daily basis.

It has been a humbling experience and one I hope not to repeat. I am still in the process of healing but there has been slow progress on most days. I have tried to take some meaning from this experience. It has given me a much greater, personal look into the world of my clients with physical and other limitations. The experience has reminded me that small kindnesses matter and give thanks to the strangers on the train who helped me with my coat and briefcase. I am thankful for my friends who have been there for me in ways I never anticipated. I am especially grateful to my son who has been there every day, waiting for me at the train, driving me to work, doing the laundry and in general being such a mensch. It has put the meaning of family in sharp focus and reminded me that there has been a silver lining in this unexpected set back.

Thank you to everyone for your support and understanding on this New Year. I am  humbled by my clients’ struggles and hope that this experience will make me a better lawyer and human being.

When is a Therapeutic Non-Mainstream Placement Justified?

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FAQ: What are the factors that schools and/or hearing officers consider when recommending or ordering a therapeutic day school?  Parents and/or schools should be prepared to demonstrate that the school considered and implemented reasonable interventions and supports to attempt to make the mainstream placement work.

FAQ: What are some of the examples of interventions a school should demonstrate that it has implemented?  This is best illustrated by example. Clearly a data driven Functional Behavioral Analysis and a Behavior Intervention Plan are the cornerstones of this effort. Additionally, the student may be provided with a paraprofessional, smaller classes, and a revised IEP with supports.

FAQ:  What behavior will warrant a discussion or recommendation of a therapeutic day school?  Typically, schools look at several factors. Is the student’s behavior negatively impacting their learning or the learning of others? How much time is being spent that is detracting from classroom time for that student or his or her classmates dealing with the behavior? Are the interventions working? Is the student making academic progress?

See, Hiawatha Sch. District No. 426, 58 IDELR 269 (SEA IL 2012)

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