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Special Education / School Law

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)

Top Ten Things to Start the School Year

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  1. Keep a journal. I am not suggesting a long narrative detailing every aspect of your child’s school experience, but a simple highlight of those things that seem relevant. (e.g. length of time it takes for homework, changes in attitude, struggles with a subject.)
  2. Communicate with your child’s teachers. If they are in the upper grades identify and agree on a point person. The nature and frequency of the communication is dependent on the needs of the child. A weekly email is optimal. This should be a checklist rather than a narrative of each and every detail.
  3. The communication should be short and simple. Avoid daily or very frequent, long or angry emails.
  4. If you need a response, set a date for a reply that is reasonable. If the matter is urgent, pick up the phone.
  5. Get in the habit of using a binder or file where all records, evaluations, IEP’s and other school records are kept.
  6. Prioritize what must get done this semester/school year. Take inventory at least 4 times a school year making use of data, grades, your child’s attitude toward school, to make sure you are moving forward.
  7. Let the school know when things are working as well as when they are not. They are likely to hear your concerns with a more open mind.
  8. If the issue cannot be addressed in a short email then a meeting may be necessary. Ask for a meeting.
  9. All meetings should have an agenda of talking points. This is a joint effort between school and home and should be developed collaboratively. If the district isn’t willing to do that, you should bring your agenda to the meeting. The district’s refusal to address your concerns should be documented in the minutes of the meeting.
  10. Keep your eye on the big picture.

Suspensions are Higher for Disabled Students

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For those of us who work in the area, this recent New York Times article didn’t seem like new news. An August 7, 2012 New York Times article reported that “Students with disabilities are almost twice as likely to be suspended from school as non-disabled students,” with the highest rates among black children with disabilities.
The Center for Civil Rights Remedies at the University of California, Los Angeles, conducted the study.

The study found that 13 percent of disabled students in kindergarten through 12th grade were suspended during the 2009-2010 school year compared with 7 percent of students without disabilities. The rate was much higher among black children: one out of every four was suspended at least once that school year. In Illinois, the rate was close to 42 percent compared with about 8 percent for white students.

Suspensions Are Higher for Disabled Students, Federal Data Indicate

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