A Landmark Victory: Supreme Court Rules Unanimously For Special Education Students

Regina Skyer will be discussing the Endrew F. ruling live on NPR’s national show The Takeaway today (Thursday) at 9:20AM. Tune in at 93.9 FM and AM 820 or click on the livestream on WNYC’s website http://www.wnyc.org/. 

The Supreme Court returned a landmark unanimous (8-0) decision in the case of Endrew F. v. Douglas County School District in favor of a special education student. We are thrilled that the Court has taken such a clear and strong stand, powerfully affirming the spirit of the Individuals with Disabilities Education Act (IDEA).

As we first reported to you in January, when five senior attorneys from our office traveled to Washington DC to listen to oral arguments, the Endrew F. case concerns a fourth grade student with autism named Endrew F. whose parents enrolled him in a private school specializing in autism for which they sought reimbursement from their school district in Colorado. The district argued that they shouldn’t have to pay because in his prior public school program Endrew F. had made “some” educational progress. The parents’ attorneys argued that Endrew F. was entitled to a “meaningful” educational benefit.

What the Court has decided is that in order for a school to meet its substantive obligation under the IDEA “a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” The Court rejected the school district’s argument that for a child to receive a free and appropriate public education the IEP only need provide some de minimis (minimal) benefit to the child—as opposed to no benefit at all.

In their written opinion, the Court explained that the IEP “must aim to enable the child to make progress,” and while not every child may be in a mainstream classroom, “every child should have the chance to meet challenging objectives.”

What this means practically is that whether an IEP is adequate will turn on the child’s unique circumstances and needs and the procedures for developing their IEP. This is big news for New York state residents because the Second Circuit (which New York State is a part of) has long subscribed to the absurdly low de minimis standard. However, with the help of today’s historic decision, we look forward to holding our school districts to a higher standard.

The decision itself is only 16 pages long and special education families will be familiar with much of its language and concepts. Don’t be intimidated—read it. This is a historic moment and one to celebrate.

Getting Ready for Your Annual IEP Meeting

By Regina Skyer

Today is officially the first day of spring, which means more sunshine, budding flowers, Passover and Easter Holidays, state tests, private school acceptances… and annual CSE/IEP review meetings. Here are some strategies for how to get ready for yours.

Scheduling your meeting. The responsibility to schedule and hold the annual CSE/IEP meeting lies solely with the school district if your child already has an IEP or if a parent has requested a meeting in writing and has proof of that request. This includes “turning five students” who are aging out of CPSE and into CSE. Parents do not have to contact their CSE to schedule a meeting, but they must fully cooperate and respond to notices sent by the district. You are entitled to five days advance notice of your review meeting. If you don’t receive proper notice, you can postpone the meeting.  

Get organized. I recommend parents create their own “CSE file.” Doing this the first year requires the most work. You can use an accordion folder or a big binder, whatever you prefer. Create the following sections and arrange the contents within these sections chronologically, with the most recent documents at the front:

• Prior IEPs, IFSPs
• Independent Evaluations: May include neuropsychological or psychoeducational evaluations and any other evaluations you had done.
• School District Observations and Evaluations: Make a request to receive copies of these in advance of the meeting so you can review them.
• School and Provider Progress Reports
• Relevant Medical Reports and Health Forms: May include regular school health form, developmental pediatrician report, specialist report, pediatrician medical form on busing or other medical needs.
• Correspondence: Printed copies of all emails, letters sent between yourself and school officials.
• Parent Notes: Your handwritten or typed notes from relevant phone conversations, classroom observations, school tours, etc.

Gather your people. As needed, arrange for independent evaluators, a family member or a friend to support you and take notes, and providers currently working with your child to attend the IEP meeting. Remember to give the team notice of anyone you plan to bring with you. Participants can also call in by phone or submit letters for the team to review and consider. If a child has a health issue that impacts on their education there is an option to have a physician member present at the IEP meeting, but you must make this request in writing 72 hours in advance. There are specific instances where we might recommend that your attorney attend, like when a child has been accepted to an approved private school, or if a parent is completely overwhelmed by the process.

Participate in the meeting. You will be asked to sign an attendance sheet and you must do this. This is not an agreement with the IEP or a placement/program recommendation. You will mostly be listening, but when you do speak, present an accurate picture of your child. If you submitted an independent evaluation, make sure that everyone on the team has reviewed it. If not, suggest that the group takes a few minutes to do so. Whatever happens, don’t be adversarial. Listen to the team’s position and ideas and then state yours. At all times you must be open to what the team recommends—but that doesn’t mean you have to accept their recommendation.

Document what happened. As soon as possible after the meeting, write up notes from the meeting. The more detail here the better. If you end up suing then these notes will be important in drafting the notice for your complaint and the hearing request.

Breathe, but be prepared. This is the most critical component. Every case is unique, and there is no singular formula for success. If you are a client at our firm your case manager and attorney will happily prepare you for your CSE review meeting the week before the actual meeting.  Call Ben in our office to arrange a time for this conversation.

Skyer Law Attends Council of Parent Attorneys and Advocates National Conference

by Greg Cangiano

Last week, two partners of our firm, Diana Gersten and Greg Cangiano, attended the 19th annual conference of the Council of Parent Attorneys and Advocates (COPAA) in Dallas, Texas. The conference was attended by 550 parents, attorneys, and special education advocates from across the country.

We try never to miss the annual COPAA conference; we always want to learn more from our peers about how to better serve our families. We also get a chance to catch up with members of our esteemed bar—not only to compare war stories, but also to discuss developments in special education law and policy. COPAA is a critical national organization, and we have blogged before about why we think special education parents should consider joining its ranks.

As you can imagine, the focus of this year's conference was quite political, and many of the panels focused on how to best support our families in the climate created by the current administration in Washington. We attended relevant and important workshops, such as “School Vouchers and Students with Disabilities: Examining Impact in the Name of Choice,” “The Independent Educational Evaluation- Roadblocks to Getting a Truly Independent IEE,” and “Refusing the Diploma: What to Do When Your Student in Not Ready to Transition to Post-Secondary Life.” 

We took a lot of pride in the fact that the “The Top 40 Chart-Topping District Court Decisions of 2016” panel featured a number of winning decisions that were handled by our office. We are always grateful and humbled to be able to contribute to the betterment of students with disabilities by creating good legal precedents. Celebrating our successes is important. 

We left with our spirits raised, our curiosities piqued, and our bellies full with good ol’ southern grub. 

Supreme Court Win for a Girl and Her Service Dog Clarifies Families’ Right to Sue in Federal Court for Discrimination

The ACLU of Michigan published this 3-minute video about this case entitled, “Ehlena and her Wonder: The Americans with Disabilities Act.

Last week, the U.S. Supreme Court ruled unanimously in favor of the family of a child with cerebral palsy in Fry v. Napoleon Community Schools. This is an important win for students with disabilities that greatly clarifies in what situations a child can bypass the slow-moving process of impartial hearings and state appeals required by the Individuals with Disabilities Act (IDEA). In its essence, the Court ruled that if a child with a disability alleges discrimination under the Americans with Disabilities Act (ADA) or Section 504 of the Rehabilitation Act, and their claim isn't related to denial of a free appropriate public education ("FAPE"), then that student has the right to immediately sue in federal court.

Ehlena Fry was 5 years old when she began attending her local school in 2009 with her service animal, a hypoallergenic Goldendoodle named Wonder. After a trial period, the school refused to allow Wonder to continue to accompany her. Officials claimed that Ehlena was adequately accommodated by the 1:1 aide the district provided. But Wonder was trained to help Ehlena be more independent so she didn’t have to rely on people’s help. Her service animal helped her do intimate things like use the bathroom without assistance, and also to take off her coat, open and close doors and lockers, and pick up dropped items.

Rather than separate Ehlena from Wonder or force their daughter to be less independent than she was capable of, her parents homeschooled her until they found a school willing to let her be accompanied by Wonder. They then filed a lawsuit under  Title II of the Americans with Disabilities Act (ADA) since the ADA permits service animals in public institutions like schools. A lower court ruled against the Fry family since they hadn't first exhausted all remedies under IDEA.

The Court’s decision outlines a test for lower courts to apply. Federal courts will now ask (1) whether the plaintiff could have brought the same claim if the discrimination happened in another public facility (like a library); and (2) whether a non-student at the school (like a teacher) could sue for the same issue. If the answer to both questions is yes, then the complaint may be immediately brought in federal court. If not, the parents must bring the claim under the IDEA.

The ACLU of Michigan released this statement after the Court issued its decision.

Why Parents Should Join the Council of Parent Attorneys and Advocates (COPAA)

Lately, whenever we blog about an important legal or policy development, we receive emails from clients wanting to know: What can I do? 
 
One organization that parents can join to get more involved in affecting public policy is the Council of Parent Attorneys and Advocates (COPAA). COPAA is the only national organization of attorneys, advocates, and parents that specifically focuses on the educational rights of students with disabilities. In addition to many invaluable member-only resources, like sample documents and other advocacy tools, discounts on COPAA’s informative webinars, access to COPAA’s moderated listserv, and an online peer-to-peer network for parents, COPAA actively engages in public policy work, fighting every day to protect the civil rights of special education children. The Law Offices of Regina Skyer and Associates, L.L.P is a proud member of COPAA.
 
Some of COPAA’s current public policy priorities include safeguarding the IDEA, Section 504, and the ADA; protecting the IDEA funding formula; ending discrimination against students with disabilities in voucher and charter programs; and creating more opportunities for students with disabilities to transition to post-secondary life. (See COPAA’s Policy webpage for more information on their public policy priorities.) COPAA also opines on critical issues impacting special education from political appointments to rules changes and legislation, and writes amicus briefs (which assist a court by offering information on ongoing cases) for impact legislation.
 
For more information about how to become a member of COPAA, please see their website.