Campus Community Loses Appeal In Federal Court Over Special Education Lawsuit

McAndrews Law Firm, a special education law firm with offices in Delaware, recently won a special education lawsuit that went all the way up to federal court.  I imagine the price tag, once calculated, will be very steep for Campus Community School, a charter school in Dover.

McAndrews Slams Delaware DOE In Federal Court Special Education Case

McAndrews Law Firm, the premier special education law firm in Delaware, just won a BIG case against the Delaware Department of Education.  The basis of their claim was that if a charter school goes under, the DOE is obligated to provide those services.  The DOE objected with twelve different claims, all of which were shot down by federal district court!  Way to go McAndrews!  From their press release:

Last week, we were gratified to report that McAndrews Law Offices had prevailed in an important federal court matter on behalf of children with disabilities who attended charter schools that go out of business. Just two days after prevailing in that important matter, MLO obtained another crucial federal court decision, this time in the state of Delaware, holding that states are responsible to ensure the rights of children and their families are protected when charter schools become defunct.

In MK v. Delaware Department of Education, McAndrews Law Offices negotiated a $30,000 compensatory education fund with a Delaware private charter school as part of a settlement agreement, but the charter school then failed to pay for the compensatory education services and went out of business. On behalf of the family, MLO brought an action against the Delaware Department of Education, asserting that under federal special-education law, the state must step into the shoes of the defunct charter school and provide the child and family their educational rights under federal law. The Delaware Department of Education asserted, in shotgun fashion through a motion to dismiss the case, nearly a dozen claims as to why the state had no responsibility for ensuring that the child received the protections of federal law. These claims were universally rejected by the federal district court, which held that “Congress considered the establishment of a single agency on which to focus responsibility for assuring the right to education of all disabled children to be of paramount importance.” With this motion to dismiss having been denied and the fundamental arguments of the state to avoid liability having been dismissed, a major procedural victory has been obtained on behalf of our Delaware clients.

I wonder which charter school this was? Delaware MET? Prestige Academy?  That’s just like the DOE, ducking their responsibility.  Do they really not get IDEA?  The fact that Delaware does not provide basic special education funding for students in Kindergarten to 3rd grade shows how out of touch they are with special education reality.  By relying on Response to Intervention as a “childfind” measure, which is not the identifying criteria for special education under IDEA, the Delaware DOE and our legislators continue to disregard federal law.  This is all going to come to a head very soon and Delaware taxpayers will be the ones holding the bag when we have to bail out the state for their horrible special education policies and funding mechanisms.  The Delaware ACLU lawsuit over education funding in general will be a drop in the bucket compared to what is coming.  DOE needs to get their heads out of their imaginary clouds and start following federal law!!!!!

Preparing For The New School Year For Students With Disabilities

Michael Connoly, Esq., of McAndrews Law Offices, P.C. just wrote an excellent article every parent of a child with an IEP or 504 plan should read.  As we send our kids back to school, it is important to know everything is in place for the continuation of your child’s special education services.  New teachers or possibly a new school can bring many changes.  Most public schools in Delaware start next Monday, but some started today.

Believe it or not, it’s that time of year again.  Commercials on television of gleeful parents purchasing school supplies abound as we are quickly approaching the end of the summer and beginning of a new school year.  While every parent of a school-aged child is going through their own pre-school-year checklist of supplies and clothes and trying to get in those last few days of sun and fun, there is another entire set of considerations to think about as a parent of a child with a disability.

The most obvious consideration is to make sure that your child’s program for the new school year is set and ready to go on the first day of school.  Is your child’s IEP or 504 Plan up to date and ready to be implemented?  Hopefully, your child’ IEP was updated as necessary at the end of the last school year, but if you are aware of any issues or have any concerns you should be reaching out to your school district in these last weeks of summer for any needed changes.  If your child participated in Extended School Year (“ESY”) services over the summer, consider whether his ESY performance revealed any new areas of need or concern that should be addressed by the IEP before school starts.

Make sure you, and more importantly, your child, are familiar with his or her schedule and curriculum, particularly if either is changing from the previous year.    A new school year often brings a lot of change and can be stressful, and at times anxiety provoking, for any student and especially for a student with special needs.  Ensuring your child is comfortable with his or her schedule and classes may go a long way in easing some of the stress and anxiety that can go along with the new school year.   Similarly, if your child is moving to a new building (for example, going from elementary school to middle school) or an unfamiliar area of his or her current building, an opportunity to tour the school, follow his or her schedule, and meet new teachers before the first day of school can also help reduce any new school year anxiety.

One of the most common beginning-of-the-school-year glitch involves transportation.  Not being picked up by the bus, being late to school, or being picked up by the wrong bus can be a particularly traumatic event for a student with special needs (and his or her parents).  If your child requires special transportation or certain supports while on the bus, you want to confirm with your school district that the necessary arrangements have been made, and that the schools transportation department/service is aware of any accommodations that your child requires.

While it’s not possible to ensure that no beginning-of-the-school-year glitch occur for your child, going through your own child’s pre-school-year check list using the above considerations should hopefully help to keep those glitches to a minimum.

by Michael Connolly, Esq. of McAndrews Law Offices, P.C.

Task Force Looking At Special Education Costs In Delaware Is Very Dangerous Ground

House Concurrent Resolution #34, introduced today by State Rep. Kevin Hensley and Senator Nicole Poore would look at the costs of special education in Delaware.  Another task force, with the usual representation.  A bunch of people sitting around a table, half of which won’t have a clue what they have jumped into.  The Delaware Way.  But here is the catch with this one: most of the spending going on with special education is based on federal mandate based on IDEA.

I have a hunch what some of the impetus for this is.  For years, districts have been complaining about McAndrews Law Firm.  Most of these cases wind up in settlements and the districts are crying foul on this.  But, if the districts and charters were doing the right thing to begin with, none of these cases would get to that point.  McAndrews won’t even take a case unless it has merit.  They won’t take a case based on a notice of meeting not going out once or twice.

Good luck with this task force trying to figure out WHY special education placements are increasing.  It doesn’t really matter why.  What matters is that they are and our General Assembly better find out how to wrap their arms around it instead of ducking the issues.  I can say most of the kids who lived in my neighborhood that were home one summer day in 2006 were subjected to nasty fumes coming from an accident at the old Reichhold Chemical Plant in Cheswold.  They all have disabilities of one sort or another.  My son is one of them.  We live in a polluted state.  I highly doubt this task force would look at things like that.

Are all special education placements valid?  I don’t know.  I know Response to Intervention is horrible.  Standardized testing should never be a measurement of whether a kid needs special education.  Autism rates have been soaring for over a decade now.  I just hope the Delaware DOE doesn’t put a gag order on district teachers and administrators like they did with the IEP Task Force.  They told districts and charters NOT to have anyone give public comment at those meetings.

Still, not one peep about giving Basic Special Education costs for kids in Kindergarten to 3rd grade.  We don’t need another task force to figure out that no-brainer.  If they really want to care, how about they allow our Auditor of Accounts office to FULLY audit every single penny in special education along with ALL of education.  We know the money isn’t always going where it needs to.  But Delaware loves their task forces to give some crappy illusion of people wanting to do the right thing.  How about just following the law to begin with?

Withholding Information: The Dangers Of Holding Back

This article originally appeared on the McAndrews Law website.  Attorney Caitlin McAndrews wrote this and it is very important!  It has pivotal information that parents of students with disabilities need to know about during the IEP process.  Parents, even with the best of intentions, can make mistakes during this process.  I agree with the author: give as much information as you possibly can to help your special needs child succeed!

Parents sometimes withhold information from School Districts, worried that the District will find a way to “use it against them.” This can include privately obtained evaluations, information from outside therapists or medical providers, or changes in medication. Though the instinct to protect your child’s privacy is understandable, withholding this type of information from the educators who work with your student typically does more harm than good.

In the example of an independent evaluation, providing the report to the District only gives them more information about how your child learns, which they should use to appropriately program for the student. Hopefully, the District will use the evaluation to help provide appropriate supports and services; but even if they do not, the family can at least say they provided all available information to the District. If parents have to go to a hearing, and they withheld a private evaluation, a hearing officer may hold that against the parent, and may question why the parent withheld outside information about the child that could have helped the District understand and program for the child.

Additionally, the private evaluation might contain information that would trigger the District’s Child Find obligation – that is, by putting the District on notice that the child has certain needs/diagnoses, and might require special education support.  If the District never saw the outside evaluation, it may be harder to prove that the District knew of the child’s disabilities.

Similarly, Districts often request permission to speak to outside providers, such as private speech/language or occupational therapists, treating psychologists, or pediatricians. This information could help the District program for your child, and withholding it can make a parent appear uncooperative in front of a hearing officer.

In general, the instinct to hold back can be a very natural and protective one, but ultimately, parents should ask themselves, “What am I afraid will happen if I share this information?” and “What good could potentially come from sharing?” In the vast majority of cases, the potential good will outweigh the potential harm.

By Caitlin McAndrews, Esq., McAndrews Law Offices, P.C.

Guest Post by Lauren O’Connell Mahler with McAndrews Law About Delaware IEPs

Lauren O’Connell Mahler is a special education attorney in the Wilmington offices of McAndrews Law Offices, P.C.  McAndrews has two offices in Delaware, the one in Wilmington and one in Georgetown which opened last year.  The original article appears on the website of McAndrews Law Offices.  This article was republished with the permission of McAndrews Law Offices, P.C. This is a must-read for Delaware parents, especially now when IEPs are in the creation process or getting an annual revisit.  Special education law is very tricky and many parents are unprepared for what is allowable by law and what is not.  Parents are the #1 advocate for their children with disabilities and they should always prepare ahead of time for any IEP meeting.  Know your child’s rights with special education!

Learning to read your child’s Delaware Individualized Education Program (IEP) can be an intimidating task. IEPs are filled with legal language and educational jargon that can be overwhelming. Without a basic understanding of your child’s IEP, you may be feeling reluctant to offer input at your child’s IEP meeting.

As a parent, you are an equal member of your child’s IEP team. Thus, it is essential that you understand your child’s IEP so that you can help the IEP team develop the IEP, monitor your child’s educational progress, and advocate for his/her needs. The following is a list of the basic components that make up your child’s IEP in Delaware. Items are addressed in the order in which they typically appear in Delaware IEPs:

• “Disability Classification” – Your child must meet one of the 13 eligible disability classifications in order to qualify to receive special education services. The categories are Autism; Developmental Delay; Deaf Blind; Emotional Disturbance (ED); Hearing Impairment; Learning Disability (LD); Intellectual Disability; Orthopedic Impairment; Other Health Impairment (OHI); Speech and/or Language Impairment; Traumatic Brain Injury; Visual Impairment; and Preschool Speech Delay. The classification does not dictate the services that your child can receive. His/her services should be based on your child’s unique, individual needs.
• “Data Considerations” – Here, the IEP team should list all current data about your child that they reviewed in developing the IEP. This includes, but is not limited to, current school district evaluations, independent evaluations obtained by the parent, State and local test results (such as DCAS scores), classroom test results, progress reports, and the parent’s educational concerns. The data should serve as the basis for the services and supports that the team puts into the IEP.
• “Other Factors to Consider” – These list special factors that the IEP team might need to be aware of with your child. The boxes should be checked if your child has difficulty with communication, is blind or visually impaired, is deaf or hearing impaired, is limited in his/her English Language proficiency, needs Assistive Technology, or has a print disability that prevents them from using materials presented on a physical page.
• “Transition Services” – This page is included in  beginning at least by age 14 or 8th grade. It should include a statement of your child’s measurable, individualized goals for life after high school, including where they plan to live, work, and whether they intend to pursue any higher level education or training. It should be based on data (such as Parent and Student Transition Surveys). It also lists the classes your child is taking, which should be tailored to help them achieve his/her post-high school goals, as well as any activities they will complete to help them reach his/her goals, and any outside agency who will help your child prepare for the transition to adult life (such as Division of Vocational Rehabilitation, Division of Developmental Disabilities Services, DART Bus Service, and POW&R).

“Unique Educational Needs and Characteristics” – The middle pages of your child’s Delaware IEP should list each of your child’s unique educational needs. The need will be identified in box at the top, left-hand corner of the page. The rest of the page will detail the services and accommodations being provided to address that need as follows:

• The top, right-hand box includes a statement of any supplementary aids, modifications, services, or accommodations that will be put in place to address your child’s unique educational need. These should be based on the supports that were recommended in your child’s evaluations.
• “Services, Aids & Modifications” – This is a statement of the duration, frequency, and location of any special instruction that your child is receiving to address the unique need (for example: Small Group Reading Instruction – 3 times per week for 30 minutes in a Push-In location). Push-In means within the general education classroom. Pull-Out means in a separate classroom.
• “PLEP” – The Present Level of Educational Performance is a specific statement of what your child is currently able to do in that unique area of need. It should be based on current data and should be measurable. The PLEP is the starting point for setting an annual goal and measuring your child’s progress.
• “Benchmark” – These are the interim steps your child will take over the course of the year to reach his/her annual goal. They are typically measured each marking period. Monitoring whether your child is meeting his/her benchmarks will help you determine if they are making sufficient progress toward his/her annual goal. If your child is failing to meet his/her benchmarks, his/her IEP may need to be revised to provide more support.
• “Annual Goal” – This is a statement of what the IEP team feels the child can achieve within 1 year’s time. The goal should be specific and measurable and should clarify how it will be measured. The amount of progress should be realistic and attainable, but not trivial. The language in the annual goal should be aligned with the language of the PLEP and benchmarks.
• “Related Services” – Related services provide extra help and support to your child in needed areas. They can include, but are not limited to, any of the following: Speech/Language Therapy, Occupational Therapy, Physical Therapy, Counseling Services, Parent Training and Counseling, Social Skills instruction, Audiology, Therapeutic Recreation, Social Work Services, School Health Services, Medical Services for diagnostic or evaluation purposes, Orientation and Mobility Services, and Psychological Services. The IEP must specify the frequency and duration of these services.
• “Consideration of Eligibility for Extended School Year Services (ESY)” – The team must document whether your child is eligible for extended school year services. ESY is different from summer school or credit recovery. It is based on the needs and goals in your child’s IEP. There is no single factor that determines whether a child is eligible for ESY. Instead, the IEP team must consider a variety of factors, including whether the child has made meaningful progress towards his/her IEP goals or has a tendency to regress in critical skill areas during the summer. Note: Under Delaware law, children classified under certain disabilities automatically receive 12-month educational programs.
• “Least Restrictive Environment” – The IEP must specify what placement your child is in. The placement (or LRE) is the extent to which your child will not participate in general education classes and extracurricular activities. The IEP lists a continuum of placements ranging from Setting A (for children who spend at least 80% of the day in the regular classroom) to Settings E, F, and G (for children who are in separate Residential Facilities, Homebound or Hospital placements, or Correctional Facilities).
• Additional components attached to Delaware IEPs – If your child has a Behavior Intervention Plan or Positive Behavior Support Plan, this should be attached to your child’s IEP and is part of the document. Additionally, if your child needs accommodations on the State-wide Smarter Balanced, DCAS, or SAT assessments, the checklist of Smarter Balanced, DCAS, or SAT accommodations should be attached to the IEP.*

This article was designed to provide you with a basic framework for understanding your child’s Delaware IEP. The information within this article is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

Editor’s note: The * in the last bullet point was edited by myself to reflect the Smarter Balanced and SAT assessments as well as DCAS.

 

 

Campus Community Loses Two Special Education Due Process Hearings, First Victories For Parents In 4 Years

Campus Community School, a Delaware charter school, recently lost two special education due process hearings.  These were the first due process hearings in Delaware since 2013, and the first time parents won cases in Delaware since 2011.  In both cases, the school was ordered to pay substantial compensatory damages.  Both cases were represented by McAndrews Law Firm, P.C.  In an article the law firm put out today, attorney Lauren O’Connell-Mahler wrote:

The school was further ordered to review and revise the child’s IEP to address absences due to illness, and to provide remedial education to its staff regarding their obligations to identify all children with disabilities. The panel found that the school’s record-keeping was inadequate, and determined that the Delaware Department of Education should conduct oversight of the school’s record-keeping until meaningful improvements were in place. Finally, the school was ordered to provide additional information to parents of children with disabilities concerning the educational rights of children so that those rights could be preserved and protected.

Both of the cases are below.  Campus Community received their charter renewal from the Delaware State Board of Education in December of 2015.  Neither of these cases came up at all during any of the formal proceedings for the charter school.  The school did have a comprehensive review of their special education in May of 2014.  This was something their board requested according to board minutes around that time.  The report was included as part of the record for their charter renewal.

Due Process Hearing 16-01

Due Process Hearing 16-05

Landmark Special Education Case Won In Pennsylvania #netde #eduDE #edchat @KilroysDelaware @ed_in_de

A plaintiff prevailed in a very important special education case regarding tuition reimbursement and compensatory damages in Pennsylvania.  The United States District Court for the Eastern District of Pennsylvania reversed a decision by a Pennsylvania Special Education Hearing Officer.  The Federal District Court ruled in L.G. v. West Chester Area School District, that the plaintiff was denied a Free and Appropriate Public Education (FAPE) and the student was entitled to a full tuition reimbursement for a private school as opposed to the earlier ruling for limited tuition reimbursement.

The case utilized both Section 504 of the Rehabilitation Act and IDEA as arguments for cause in arguments.  For the 504 argument, which covers “any disability which substantially impacts learning or other major life activities”, the plaintiff, represented by McAndrews Law Firm, argued the school district did not provide appropriate Child Find in identifying a student with disabilities.  Despite behavior interventions and attendance issues, the school did not perform their obligatory responsibility as required by IDEA as well.  As well, the child did not receive an IEP while in the 2nd and 3rd grade at the school district.

This case won a good deal of victories for special education advocacy.  It established FAPE, Child Find duties, and tuition reimbursement as clear avenues for special needs parents to advocate for their children, not only in Pennsylvania, but nation-wide.