School Choice For Children With Disabilities

There has been a lot of discussion recently around the issue of school choice in Ohio. At present, there is a proposal pending in the Ohio Senate Education Committee (Sen. Bill 85) to create additional vouchers for non-disabled students to attend private schools of their choice. There is not expected to be any impact of this proposed program on the availability of school vouchers for students with disabilities. As to the impact it will have more globally, we cannot say, though there is concern that the exodus of students from public schools would result in greater segregation for students with disabilities who may not have all of the same options.

Ohio currently has two voucher programs serving students with disabilities-the Autism Scholarship program and the Jon Peterson Scholarship program. The Autism Scholarship program allows parents of students with an IDEA classification of Autism to receive up to $27,000 per year to pay for private services by an approved provider(s). The Peterson Scholarship allows for varying amounts depending on the child’s eligibility category under the IDEA. The information about qualifying and application is available on the Ohio Department of Education’s website.  

Articles published recently in the New York Times and elsewhere have highlighted the ups and downs of vouchers. Regardless of where you stand on school choice, parents need to be aware of the consequences of their decision to obtain a voucher for their child. In Ohio, parents who use either one of the scholarship programs agree to give up their child’s right to receive a free appropriate public education from their local school district. That means that if you are unhappy with the choice you made regarding the private voucher provider you are using, you will have no recourse to proceed against your school district as you would if your child were in public school. The purpose of the scholarship programs was to allow parents a choice of programs in exchange for which they have given up the right to FAPE.

What about your rights vis-á-vis the voucher school? What rights do parents have to proceed against those schools in the event they violate the child’s rights?  

First, parents should always be careful to read the contract they enter into with the private school. That document will govern much of the relationship between the parents and school. Make sure you understand the policies regarding admission, classroom placement, service provision, contract renewal and discipline. Schools receiving voucher funds (and even those that are not) may still be required to comply with the Americans with Disabilities Act, which would require them to make reasonable accommodations for a student with disabilities. So if your child is in a private school, and the school fails to renew your child for the coming year based on his or her disability, you may have a claim against them in the event the school has failed to make reasonable accommodation.

Autism Scholarship students, at least until Ohio changes the law, may have a third party action against a voucher program in the event the program fails to provide a free appropriate public education. That is because at present, the law requires autism voucher schools to comply with all the laws governing the education of children with disabilities, including the IDEA. That provision of the law is under consideration and will likely be removed. This provision is not present in the Jon Peterson Scholarship law.

What if your child is abused or gets injured as the result of someone’s behavior at school? You can sue a private school as well as the individuals who work there, for negligence. This type of action is not afforded to students who attend public school where simple negligence cannot be alleged against either the school district or its staff. Again, however, the contract you sign with the school may limit your rights so be sure to check it carefully.  

What if your child is excluded from the private school? Again, many private schools must make reasonable accommodation for students with disabilities. However, a private school need not make substantive changes to its program to make it suitable for your child, so a voucher program can choose the students they believe are best suited to their program. Even if they accept voucher money, they do not have to admit your child with a disability if your child does not meet the admission requirements of their school.  

What about a civil rights action for discrimination against a private voucher program? Voucher programs cannot discriminate against students on the basis of race, color or nationality. They may, under certain circumstances, restrict students by gender and religion. Most private schools receive some federal funding, and that is certainly true of voucher programs for students with disabilities.  

If your child is the victim of bullying by another student or students, you may have an action against the school for failing to protect them. However, most of the time those matters are better handled by the Office for Civil Rights (“OCR”) rather than in an action against the school. So long as the school receives some federal funding, the OCR may receive complaints about it. Those complaints can be filed online without assistance from a lawyer.

The school choice programs in Ohio have afforded parents many more options than they otherwise might have had. Remember though, that parents need to be educated consumers. Not all programs are created equal and some are better than others. Not every program is designed to meet every need. There is not a lot of accountability in Ohio regarding the quality of individual programs, so do your homework to make sure your scholarship dollars are well spent.  

Transition Planning For Students With Disabilities

If your child is on an IEP, he or she has a right to have a plan to transition into a postsecondary setting after high school. The type of setting does not obviate the need for a transition plan. School districts in Ohio are required to have these plans when a student on an IEP turns 14.

The need for good transition planning cannot be overstated. Regardless of whether the student is college bound or slated to participate in vocational programming, transition is essential to enable students with disabilities to be successful when the district’s obligation to provide a free appropriate public education ends. The transition should be a “roadmap” which directs what the student intends to do, and defines the services and activities which will enable him or her to get there. The transition plan also includes a section on independent living, which for many students, is critical in how they will manage either independently or in a supported living environment as adults. As a colleague once said, “parents must picture their child’s life when they are no longer in it.” 

Most of the transition plans we see have statements such as “John will explore options for college,” or “Susie will learn functional skills in the resource room.” Those kinds of statements do not comply with requirements for transition planning. Not even close. Parents interested in advising their districts about compliant transition planning should explore the website at This website has comprehensive examples of compliant transition plans for a variety of students with a variety of disabilities. Remember that the failure to have a transition plan is a significant denial of FAPE. By the time a student is in high school, the transition plan should be the centerpiece of their IEP.

Early planning for students intending to go to college is essential. While colleges are required to comply with the ADA and Section 504, they do not have to alter their admission requirements for students with disabilities. Students need to determine what those requirements are, whether they can meet them, and what services will be required to enable that student to be admitted into the program of their choice. Students also need to learn about what their rights are as adults, what accommodations they are entitled to, and how to advocate for themselves with schools and employers.

Students with significant impairments are often relegated to one or two programs after high school, many of which are segregated from the community. Transition planning for these students needs to include development of workplace skills, self- help skills, and skills that will enable them to be as functionally independent as possible. Districts are required to bring in outside agencies to enable transition plans to be comprehensive in the options offered. Parents should not assume that the only option for their child is something akin to a sheltered workshop. Adults with disabilities have the right to work and live in the community, and the transition plan needs to be geared toward that objective.

Look at the website. Pull up the sample transition plan for the student who most closely resembles your child. Bring it with you to your IEP meeting and tell the District that if the plan doesn’t resemble that, it is not going to fly. Remember that for a student in high school, the transition plan is the centerpiece of that student’s IEP. Everything else in the IEP should come from what is in that plan.  

Relationship Between Behavior and Curriculum

The management of disordered behavior is one of the most common issues in special education. This particular concern is not limited to students with any one type of disability, but occurs in connection with many students facing a variety of challenges. The examination of behaviors and their function is a highly specialized area, and has become a niche practice for many professionals.  

In matters where the child’s behavior is a problem, we usually work with experts in behavior analysis to help us determine why the child is behaving the way he/she is and who will then determine the best way to address the problem. Invariably, our experts always tell us that behavior cannot be looked at in a vacuum, and that one of the first places to look in ascertaining the function of behavior is the child’s curriculum. Is it too easy? Too hard? Let’s look at some real life examples to see why curriculum matters in managing behaviors.

Louis is a fifth grade student attending his local elementary school. He spends most of his day in a classroom with other disabled students, some of whom are nonverbal. Louis is identified as a student with a cognitive disability. While Louis has an articulation issue, his language is otherwise appropriate for his age. Louis’ academics are abysmal however, and he is 3-4 grade levels behind in reading and math. Almost every day, Louis screams and becomes aggressive with his teachers, who then place him in a time out room where he continues to scream and throw objects. An independent expert evaluates Louis and determines that he has no cognitive disability, but does have a learning disability in reading and math. The evaluator recommends specialized reading and math programs, and says that Louis needs to be removed from the multihandicapped classroom. Louis’ behavior improves as his reading and math improve.

Patrick is a sixth grade student with severe spastic cerebral palsy, is nonverbal, has a cortical vision impairment and is confined to a wheelchair. Patrick cannot respond to yes/no questions. At school, Patrick is taught the Ohio extended content standards including material about the Civil War in social studies, and physics in Science class. Patrick frequently screams and attempts to hit his teachers and aide. The school is unable to ascertain why Patrick’s behaviors continue to escalate. A behavior specialist is brought in who determines that Patrick cannot understand the material presented to him, and is lashing out at his teachers because he cannot make himself heard any other way. Patrick is removed from the program and taught to communicate basic wants and needs. His behavior issues decline significantly and he is taught to communicate using a card system as his motor skills allow.  

Arlen is a second grade student with high functioning autism. Arlen’s IQ is in the very superior range and his reading and math are at a sixth grade level as a result of computer programs and books provided to him by his parents. At school, Arlen disrupts the class, talks out of turn, cries frequently and engages in stigmatizing self-stimulatory behavior. The district is at a loss. A behavior expert from the County comes in and creates a basic reinforcement system which fails to improve the student’s behavior. The child’s private speech therapist is brought in, and after observing the class, says that Arlen needs enrichment every day in every subject in order to manage his behavior. Arlen is allowed to move ahead and assist the other students who need help. His behavior improves and he is motivated to self regulate his behavior in order to continue to move ahead with his academics.

Each of these scenarios really occurred. This is not to say that every case in which a child’s behavior impacts their learning or the learning of others is attributable to the curriculum. Behavior is a complicated thing, and most particularly those behaviors resulting from underlying mental health issues. But where a child’s behavior is a problem, regardless of the disability, the school’s program should be one of the first things to consider. Unfortunately, the curriculum is frequently never considered as a possible cause of unwanted behaviors. The notion that children with disabilities, including those with significant cognitive disabilities, do not get bored when presented with the same material over and over again must be debunked. Students with disabilities get bored just as nondisabled students do. And children with learning disabilities are often well aware that they cannot read or write at the level of their peers, and may act out in an effort to detract attention from their academic deficits.  

Parents know their children best and should be proactive in helping their child’s school understand what their child’s needs are. While districts are supposed to teach to the content standards, the practical application of how that is done is not something that the Ohio Department of Education weighs in on. We all need to learn to think outside the box and make sure the child’s program is designed to meet their unique needs. A child’s educational program must be part of the solution to disordered behaviors instead of part of the problem. 

Long Overdue Autism Insurance Reform Enacted

In December, Ohio became the 45th state to pass autism insurance legislation. Parents, advocates and attorneys have fought for years to obtain payment for expensive yet critical behavioral health services for children with autism. Educators claimed that the services were medical and not educational. Insurers and Medicaid officials claimed that the services were habilitative or educational and not medical. They argued that ABA was ‘experimental’ despite years of research proving its effectiveness. While service systems pointed responsibility to each other,, parents were forced to mortgage homes and quit their jobs to pay for services themselves or, watch their children struggle in the absence of services. With the passage of this new law, parents now may be able to use their private insurance and the Autism Scholarship to pay for private placements and services.

Why is this a big deal? Because it makes significant progress in the hard fought journey in advancing the rights of children with autism. Thirty plus years ago, children with autism were often placed in state run children’s psychiatric hospitals, far away from their families and communities. These institutions primarily medicated and contained the children; no empirically based behavioral services were available. Chemical, mechanical and physical restraints were not uncommon. 

As public institutions closed, some parents in desperation gave up custody of their children with autism because of the uncontrollable behaviors and the lack of community based services. Over time, more parents opted to keep their children at home, cobbling together services as best as they could.

Some families managed to obtain community based services for their children with autism but began to lose those services because of changes to State policies. Potentially life threatening behaviors that had been almost extinguished reemerged. In 2008, a few dozen parents of children with autism filed a groundbreaking federal court case. The court granted a preliminary injunction to stop the State of Ohio from changing rules that would have ended Medicaid payment for applied behavior analysis (ABA). The U.S. Court of Appeals for the Sixth Circuit upheld the lower court’s decision (Parents League for Effective Autism Services v. Jones-Kelley, Case No. 08-3931, 6th Cir. 2009) and the case was settled. But that agreement only directly benefited those who participated in the case.

In 2014, through an executive order, Ohio Governor John Kasich required state employee health plans to cover ABA and other medically necessary services to treat autism. But until H.B. 463 amended Section 1751.84 of the Ohio Revised Code, other insurers were not required to pay for treatment of autism.

The new law finally requires ‘parity’ by prohibiting dollar limits, deductibles, or coinsurance provisions that are less favorable to an enrollee with autism than the dollar limits, deductibles, or coinsurance provisions that apply to other medical and surgical benefits under insurance policies.

The law also requires coverage of, at minimum, all of the following: 

(1) Twenty visits per year for speech and language therapy or occupational therapy;

(2) Twenty hours per week for clinical therapeutic intervention;

(3) Thirty visits per year for mental or behavioral health outpatient services for consultation, assessment, development, or oversight of treatment plans.

In order to be covered, the insurer must give “prior authorization” and the services must be prescribed or ordered by either a developmental pediatrician or a psychologist trained in autism.

The law specifies that its requirements do not limit any obligation to provide services under an individualized family service plan, an individualized education program, or an individualized service plan. Thus families can use their insurance to supplement educational services, including those provided through the Autism Scholarship Program.

The law also includes definitions and specifies which professionals make the determination of medical necessity. Finally, coverage is limited to children who are under the age of fourteen.

While the new law has its limitations, it is long overdue and will most certainly help many children who have autism and their families.

When A Child With A Disability Is Abused By a Teacher – The Bad News

Two recent cases from the Sixth Circuit Court of Appeals (the federal circuit where we are) have proven to be sobering statements regarding the constitutional and other protections afforded to students with severe disabilities who are abused by a teacher in a public school. The first case, Domingo v. Kowalski, involved a teacher at the North Point Educational Service Center in Toledo. In that case, the teacher was alleged to have done the following: tied a nonverbal autistic child to a gurney and put a gag in his mouth to keep him from spitting; tied a nonverbal autistic child to a toilet seat with a man’s belt she brought from home; and placed a nonverbal autistic first grader on a potty chair in her classroom, including during mealtimes and once took the potty around to show the other students when this child produced a bowel movement into it. The aide was fired; the teacher remained.

The parents of these children, who were unaware that their children were being mistreated by this teacher, filed an action against her and the Service Center when one of the aides spoke up. They alleged that the students’ rights to substantive due process under the Fourteenth Amendment to the Constitution had been violated. The district court actually characterized this teacher’s behavior as abusive, but both the district court and the Court of Appeals found no constitutional violation. The Court said that because the teacher had a “pedagogical” purpose for her actions, in other words, she intended to teach something, there was no violation. This pedagogical purpose kept her actions from “shocking the conscience” of the Court which is part of the standard of the Court’s review. Because these students were not toilet trained, the Court said, her intention to keep them from soiling themselves was a legitimate teaching objective when she tied them to the toilet or kept them on a potty chair in full view of their classmates. By the same token, tying and gagging a student who spits was legitimate because this child was not complying with repeated teacher requests to stop self- injuring and spitting, and the teacher said she “needed to be firm.”

Equally disturbing was the Court’s decision that the Plaintiffs had not produced any evidence of “serious” injury and their claim must therefore fail. Again these students could not describe to anyone how they felt about the treatment they endured because they are all nonverbal. It certainly makes one wonder whether this Court would treat nondisabled students similarly, right? Is it ok to tie a nondisabled student to a toilet if he has a toileting accident?  

In Gohl v. Livonia Public Schools, a three year old child with hydrocephalus, who was medically fragile and severely brain injured, knocked a toy off a table. His special education teacher, Ms. Turbiak, grabbed him by the top of his head, yanked his head back “aggressively” and screamed in his face. In a split decision, the Sixth Circuit once again found that this teacher had acted with intent to teach this severely disabled child to clean up after himself. “Requiring a child to clean up a mess he made not only fits with a common-sense understanding of what teachers typically do, but it also fits with the demands of J.G.’s Individualized Education Program—as provided under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400. Whatever one thinks about the timing or manner in which Turbiak used this technique here, no one can credibly deny that Turbiak had a pedagogical purpose in using it.” The evidence in the Gohl case established that Ms. Turbiak’s students were “being force-fed while crying and gagging, being screamed at in their faces, being violently grabbed and pushed to the ground, being put in restraints made of potato chip cans, having their chairs pulled out from under them, or being otherwise humiliated and treated like something less than human….” Again, the Court found that this teacher’s behavior did not violate this child’s constitutional right to substantive due process, and further found that there was insufficient evidence to show that the behavior was disability-based discrimination. Case dismissed. No reasonable jury, the Court concluded, could reach a decision other than the one it had reached. Judge Clay of the Sixth Circuit wrote a scathing dissent in Gohl which is worth reading.  

What does this mean for your child? Well, for starters, nothing good. Obviously if a teacher abuses a student with a disability, and then declares that he or she had a teachable moment in mind, it largely protects the teacher from being sued for violation of the child’s constitutional or other federally protected rights. Where is the line when abuse becomes actionable? Though it is hard to say from reading these cases, any actionable case would probably require some physical injury that involves bleeding, and even then it might not pass muster. But that does not mean you cannot seek damages against a teacher who abuses your child. But you would have to file the case in state court, and would have to allege some sort of reckless misconduct or even assault. In such cases, though, you would have a more difficult time bringing the claim against the school district.  

When the right case comes along though, the civil rights bar will ask the Court to revisit this issue because the incorrect standard was applied. The standard is not whether the teacher acted with malice, which is virtually impossible to prove particularly where the teacher claims she was trying to instill some discipline into the class or the child. Instead, the Supreme Court has distinguished cases where police officers, for example, have to make split second decisions in order to protect themselves and the public. But where an officer has the ability to deliberate about how to act, and then proceeds to engage in abusive or violent behavior, that conduct is no longer protected. Disabled children who cannot speak up to protect themselves, or tell their parents what has happened to them, require more, not fewer, protections than a suspected criminal, or even a nondisabled child. The right to bodily integrity, particularly for a severely impaired individual, needs to be determined under the proper standard. The standard applied in these cases is not the right one. 

Is My Child Really Reading?

The most recent report cards for school districts in Ohio show an abysmal record for the overwhelming majority of Ohio’s school districts. And while districts complain about changing tests, too many tests, etc., the bottom line is that if a child is in the third grade, his or her reading ability should not depend on who is writing the test. That child should be able to read third grade level material regardless of who wrote it. Moreover, the score set by our State Board of Education for third graders to be promoted is in the “limited” range, which means your child doesn’t need to be able to read much to be promoted.

But what about those students who test in the “Basic,” proficient or even accelerated range in reading? How can you tell if they are really reading? Because we know that despite our tendency to pat ourselves on the back for how awesome our schools and teachers are, many Ohio students reach postsecondary education unprepared to do college level work. Those students must take remedial classes, and many drop out before they get a degree. The State is now considering reducing graduation requirements to avoid a crisis where more than 30% of high school students are not on track to graduate. And at the elementary level, in the last reporting, 45 % of Ohio third graders were below proficient in reading.

So how can you tell if your child is doing as well as the district says he is doing? We have seen school districts who routinely give students “A”s on their report cards despite their knowledge that the student cannot do grade level work. First find out what reading program your child is using. Most elementary schools now have adopted curricula which is mandatory for K-8. In many cases, if a district is using Leveled Literacy Intervention, Literacy Collaborative, Reading Recovery or Benchmark Literacy, those programs are the only reading materials your child will receive. You may be told your child is reading at a specific level, generally described by a letter designation. Level M, for example, coincides with a specific grade level. Most leveled programs are aligned as far as what the individual levels signify. So Level M in Leveled Literacy will coincide with Level M in Benchmark, etc.  

Most of these programs are referred to as “guided” or “blended” reading programs. The blending refers to incorporation of a variety of reading techniques. And the school district will steadfastly assert that these programs are “research based.” Unfortunately the only research supporting the efficacy of these programs has been done by the publishers or originators of the program. Obviously those folks are not going to say anything other than that every child can benefit, right?

The actual research says otherwise. Most early readers need to have explicit phonics instruction in order to establish the necessary foundational skills to become strong readers. For students with dyslexia and other learning disabilities, there is simply no evidence that blended reading programs enables these students to read. Without explicit instruction to assist with phonological awareness (hearing and manipulating sounds) and phonics (connecting sounds with letters), those students will continue to struggle all the way through school. Many will drop out. Even non-disabled students frequently struggle with learning to read when not given a strong phonetic basis for their reading skills.  

Then there’s the focus on sight word recognition. Just remember that you cannot learn phonics from learning sight words. Sight words are limited to those words that don’t follow a rule or pattern and therefore must be memorized.  

What can you do about this? Well for starters you can read with your child. If the district says your child is at grade level, go to the library and take out a book at that level. Give it to your child. If he or she is struggling to read it, then you may have a problem. One of the issues we have with guided reading programs is that districts often do not require any reading other than what is in the program. Because the students are guided through the reading, there may not be other indicators that students really aren’t reading independently until you get the statewide assessment results and discover that the students in your school district cannot read third grade material. Again, many districts do not require students to read anything outside of their own adopted reading program, so teachers think their students are doing better than they are. In some cases we have seen fourth grade teachers who read all the content areas directly to their students, perhaps because their students are unable to read it on their own.

If your child is on an IEP and you think he or she is not reading, ask the district to conduct a standardized assessment to see how they are really doing. If you have the resources, have your child tested by an outside evaluator. If they are able to read, then great. If not, you need to call a meeting of the IEP team to make sure the IEP contains explicit instruction in the areas of need. Make sure that the instruction is really addressing what is necessary and not just paying lip service.

Your child’s ability to become a strong reader will impact him or her throughout their life. By the time a student is in high school, it is often too late to redress all the deficiencies. So be vigilant and ask the hard questions. You have a right to do that. 

The Third Grade Reading Guarantee – an Ohio Myth

In an effort to address poor proficiency scores in reading, Ohio passed a law requiring that students who are not proficient in reading by the end of third grade receive intensive intervention in language arts. Proficiency was to be determined by the child’s score on statewide testing required by law. Unfortunately, what started out as a good idea has not had any impact on proficiency scores and in fact, has turned into a sad game played at the expense of students.  

The TGRG requires that a student who does not obtain a score set by the State Board of Education by the end of third grade must be retained in third grade and provided with intensive instruction. The law requires that this instruction can be provided by either the school district or an outside provider and must equal at least ninety minutes per day. The Ohio Department of Education has a guidance manual detailing the requirements, and touts school districts whose promotion rate for students has increased since the TGRG has gone into effect. Let’s take a look at that.

Parents know that scores on statewide testing place their child in one of five ranges of performance: accelerated, advanced, proficient, basic and limited. What they probably do not know is that for the 2015-16 school year, the “cut” score for promotion to the fourth grade set by the State Board was so low that students who scored in the limited range could still be promoted. That’s right. Your child could be promoted even though his or her literacy skills are several grade levels behind their peers. The law allows the Board to do this and it must raise the cut score every year until such time as the score reaches the proficient range. At the rate it is going, that may not happen in our lifetime.

Parents may also not know that students who have previously been retained are not subject to the TGRG. What this means is that if your child was held back in any grade prior to fourth grade, they are not entitled to the benefits provided by the Guarantee. Likewise students identified as having significant cognitive impairments and who take the alternate assessment are not entitled to the benefits of the TGRG. Not surprisingly there has been an otherwise unexplained increase in the number of students being held back as well as an increase in those qualifying for the alternate assessment since the TGRG went into effect. Of course if your child is on an IEP or 504 plan, he or she will be exempt from the TGRG if the IEP team decides to exempt them. Again, what that means is that your student will not receive the guaranteed 90 minutes of intensive language arts instruction. While students are still entitled to receive some remediation, for most school districts that means they will receive more of the same programs that failed to enable them to read in the first place. They will not receive services from an outside provider.

While we have been unable to obtain any numbers from the Department of Education as to how many students on IEPs are exempted, our experience tells us it is substantial. The irony of this should not be lost on parents. Students in IEPs who frequently need the most help, are excluded from participation in this “guarantee” that would enable them to get it. Moreover, it is rare to find an IEP even for a student with a reading disability that provides 90 minutes of specially designed instruction in language arts per day.  

The stories we hear about this are always the same. Parents were told of the horrors their child would experience if held back so they agree to exempt their child. What they are not told is that districts only have to retain the student in language arts but otherwise can allow the child to participate in other subjects in fourth grade. Parents are also not told that if they refuse to exempt their child and the child fails to make the cut score they may access services from an outside provider. While the District must choose the provider, many districts have told parents they were not aware of this requirement and could not say who their outside provider was.  

Another “out” allows districts to administer alternative tests to students, sometimes multiple times, in an effort to get them above the cut score so they can be promoted. The upshot of all this is that when a parent sees that their school district has a 99% promotion rate of students to the fourth grade, that number says absolutely nothing at all about the number of students who can read.  

In Akron for example, for the 2015-16 school year, 87% of third graders were promoted to fourth grade, but only 37.9% scored in the proficient range on statewide testing in reading. Even more profound, of eighth graders in Akron only 27% scored in proficient range in reading which does not portend well for students moving up through the grades. Let’s remember too that the determination of what counts as proficient in Ohio is substantially less than what counts as proficient in other states. In 2013 Ohio’s standards for what counted as proficient were 49th out of 50 in a comparison done by the National Assessment for Educational Progress (NAEP) also known as the nation’s report card. What that means is that students in places like New York and Massachusetts who are deemed proficient in reading are reading 3-4 grade levels ahead of students considered proficient in Ohio.

What does this mean for your student who is in early elementary school? Don’t let your child be retained in grades K-3 unless you know the consequences of doing so, including foregoing your right to outside services if he is unable to read by the end of third grade. Don’t let the district exempt your child from the TGRG if he is on an IEP without exploring what he might be able to access from the district if he does qualify. Unless your child is severely impaired, do not agree to allow him to take the alternate assessment which is another “out” for the district.  

The TGRG was supposed to assist students who were not progressing in reading because statistics show that students who cannot read by the end of third grade have higher dropout rates and higher rates of incarceration. It was not intended to punish students who had not learned how to read. It was intended to hold school districts accountable for failing to address reading deficiencies. Instead it has become just another source of paperwork for parents and teachers, benefitting nobody.

Know When To Hold ‘Em, And When To Fold ‘Em

Now that I’ve begun to receive fairly regular mail from the AARP folks, I feel the time has come for me to share some of my collected wisdom with all you younger lawyers and advocates. Over the course of my time in practice, I have had the opportunity, and privilege, of working on the opposite side of some very fine lawyers. Occasionally, though, I come across some lawyers who, probably due to inadequate amounts of yoga, cannot help themselves. They absolutely must hurl the most outrageous zingers at me and I think it’s nice for you younger folks to know how to respond when that happens to you. So I’ve created this handy “Guide to the Proper Response” when these gems are directed at you. When perusing this guide, keep in mind several things:

  1. All of the remarks in this guide were actually said or written to me, or about me, or to co-counsel (in one instance).
  2. These remarks were directed at me equally by male and female attorneys.
  3. I am a fairly petite female, and while I do not purport to be a thing of beauty (unless compared with a fairly unkempt sheepdog, most of whom have bad breath), I do try to present a stylish appearance largely to make up for my other inadequacies.
  4. I am the parent of a child with autism.
  5. I have had two pregnancies and now have 2 children.
  6. Did I mention that I didn’t make this stuff up? If I had, I’d be making John Grisham money instead of the bupkas I’m getting.
  7. I am an attorney.

So here it is:

Aimee’s Guide to Special Education Advocacy Appropriate Responses

  1. Remark: The question I am asked most often is “Are you the court reporter?” This one always amuses me, and face it folks, this one always comes from a member of the opposite sex whose gender shall remain nameless but which begins with “m.”
    Response: Of course the proper response to this is to politely advise Mr. M that you are, in fact, opposing counsel and proceed to kick his butt.
  2. Remark: “I’ve been doing this for 35 years.”
    Response: Since this remark was recently made to me and I am only in my 30th year in practice, you can only imagine the fear it struck into my heart. The appropriate response here is, “I was not aware of that Mr. School District attorney and since the “35 year rule” applies in this instance, we will immediately dismiss our due process and go home.”
  3. Remark: “I see they brought the big guns in.”
    Response: This remark was made to me upon my appearance at a deposition. Actually there is no appropriate response to this comment – you must move forward and proceed to kick their butt.
  4. Remark: “Your honor, she’s always pregnant.”
    Response: First, a pregnant pause (sorry, couldn’t help myself) and then proceed to kick butt. No verbal response is necessary though if you get close enough you can intimidate with your size depending on how far along you are.
  5. Remark: “Your client was caught speaking to another parent in the district about the other parent’s child. She should not be doing this because these communications are meant to incite panic.”
    Response: This remark was made to me by a young attorney who is a personal favorite of mine because of the hours of amusement she provides. The proper response to this is: “I had forgotten about the constitutional amendment which prohibits parents from the same school district from speaking to one another about anything except the weather and professional sports (college and high school athletics are still off limits). I will speak to my client and I can assure you this rare event will not happen again.”
  6. Remark: “How could you know what happened at the IEP meeting since you spent the entire time looking at your iPhone?”
    Response: The proper response is to sheepishly acknowledge your addiction to internet porn and promise opposing counsel that you are in the process of getting help.
  7. Remark: “As for your clients “expert” reports, suffice it to say they will be subject to cross examination.”
    Response: This is a tough one. How do you argue with an attorney who possesses this kind of razor sharp legal analytical skill? This is one of those instances where the appropriate response can only be: “I hadn’t even thought of that counselor, probably because my Pilates class coincides with the critical Law and Order episodes which might have given me the necessary insight. We will promptly dismiss.”
  8. Remark: “Your client cannot expect my client to cure her child.”
    Response: “What? No cure? All these long wasted years trying to advocate for her needs and now you tell me you can’t cure?” You must promptly dissolve into tears and put a comforting arm around your client’s shoulders while gently escorting her from the room.
  9. Remark: “You’ve made this into a legal issue.”
    Response: This one did stump me, I have to admit. But upon reflection, the appropriate response is, “Moi? A legal issue? Well I certainly didn’t intend that. Let’s forget all this and shop.”
  10. Remark: “If you’re autistic and you know it, flap your hands.”
    Response: Some of you may have heard this remark which was made at an out of state training I attended. The individual who said it is a well known school district attorney who rarely appears without her wonderful sidekick, the psychologist. There is no proper response to this one that does not include bodily injury which I generally frown on.

Well, there they are — my top ten. I hope y’all find this guide helpful. If you have some zingers you’d like me to see and advise you on how to respond, send them to me at All submissions will be kept confidential (until printed on the internet), and are not subject to cross examination, though I may not get to them until the next IEP meeting when I can check my iPhone.

The Uber Due Process

(Impartial Hearing Officer) Ok, counselors, we are going to get this show on the road. I run a tight ship as evidenced by my last two hearings which I managed to complete in a record 39 days each. Let’s see if we can extend that a little this time. I have my eye on a new car for my husband.

(Parent attorney, who is very stylish and wearing gorgeous shoes) But your honor, my client has to get back to her job where she engages in washing the dirty feet of the impoverished and sick. Can’t we eliminate some of these repetitive witnesses?

(School District Attorney): But I need all these witnesses your honor, to prove that the cost of my client’s insurance policy which is paying for the defense of this action, was worthwhile. And besides, these witnesses will prove that this foot washing thing is the whole point. If this mom spent more time with her kid, we’d all be better off and maybe this child wouldn’t have so many behavior problems.  

IHO: Well in order to keep this thing moving, I’m going to let these witnesses in, and then I’ll decide if their testimony is repetitive. If it is, I’ll ignore it but we can all bill for the time anyway. Counsel for the District, will you be using an expert witness?  

SDA: Yes, your honor.

IHO: Will it be the same lovely woman who testifies at all your hearings?

SDA: Yes, your honor, the very same.  

IHO: Ok, great. I know I’m gonna need to hear what she has to say. She certainly seems to be an expert in a great variety of things. Parent’s counsel, will you be using an expert?

PA: Yes your honor, and my expert has actually seen and spoken to the child.  

IHO: That’s nice. Before we begin, is there any chance the parties might settle this thing?

SDA: Well, your honor, Counsel for this parent is just here to get her fees so it’s unlikely. In fact the only reason we are here is because she wants her fees. We have offered to allow Johnny to enroll in a public charter school, which I think is very generous. 

PA: I object your honor. This is highly inappropriate and settlement discussions are supposed to be confidential. And besides, they haven’t offered to pay any fees. 

IHO: I will take those comments for what they’re worth, Counselor. You are going to need some fees to pay for those shoes you’re wearing though, so let’s get started. Is there an opening statement for the Parent?

PA: Yes, your honor, there is. (Stands up on very high heeled shoes, 1” platform, black suede, with a studded bow on the front). This matter involves an 8 year old child with autism, ADHD, ODD, SLD, who wears glasses and is a lousy bowler. Johnny lives with his mom, Theresa, who spends her time serving the poorest of the poor, in the poorest neighborhoods in Delhi, Ohio, where they live. She is a single parent, and Johnny is her only child. Since she is poor, I’m not currently receiving any fees, though hopefully it won’t impact my ability to wear a different pair of shoes for each day of this hearing. 

Johnny began in Ye Olde School District when he was 5. At that time, he was already creating scale models of the Army’s yet to be divulged hovercraft and selling them to the Chinese. Despite this accomplishment, Johnny was placed in a multihandicapped classroom when the school psychologist for YOSD evaluated him and determined that his IQ was somewhere between 25 and 35. After 3 years in the MH classroom, Johnny had set up a command center enabling both teachers and students to engage in off track betting during school hours. When the principal found out, Johnny was expelled, oh excuse me, his “placement was changed” and he was placed on home instruction. No manifestation determination was held and Mother Theresa did not agree with the change of placement. The school failed to provide a prior written notice.

The parent is requesting that Johnny be placed back into regular classes at YOSD or alternatively, be enrolled in the MIT engineering program in Boston. At this time, Johnny is not able to do anything other than calculate the odds on his poker and craps games, and read the instructions that come with his model airplane kits. His mom wants him to learn like other kids including things such as using money to make purchases instead of bets, learning how to socialize with typical children without relieving them of their lunch money, and reading Charlotte’s Web. What parent wouldn’t want that for their child? We believe the private placement is best for Johnny because currently every one of the teachers at his school owes Johnny at least $200 since the Jets failed to make the playoffs. Thank you.

IHO: And for the District?

SDA: Your honor, I don’t even know why we’re here. Oh yes, did I mention it’s because mom’s attorney wants her fees? Imagine that. She wants to get paid.  

IHO: Counselor, let’s move on please.

SDA: Ah yes, Johnny. So the school psychologist was a little off in her assessment of Johnny’s skills. So what? It hasn’t hurt him. Heck, I’ve lost money to him myself, the little stinker. Frankly, I think this kid’s got a great future ahead of him. And if he hadn’t been placed in the multihandicapped room, he would not have developed the bookmaking skills which are so critical in this economy. Who would have imagined the Jets wouldn’t make it anyway? So the parent can’t show any substantive harm here your honor. Johnny is better off at home where he can participate in an online school program that will keep him out of trouble and won’t cost YOSD a dime. Certainly we can’t be expected to sit here and pay counsel’s fees… did I mention that we are only here because she wants her fees… though I wouldn’t mind just putting on the evidence because frankly my billing rate for the insurance company is so low at this point, I’d need a good 3 week hearing just to make this worthwhile.  

As for the change in placement, well we had to do something to get Johnny out of there. The Superintendent is in hock way over his head.

IHO: Ok I think I’ve got a pretty good feel for the issues and 3 weeks sounds like a good round number to me. Excuse me, counselor, what is that on your client’s head?

PA: It’s a halo, your honor, and my client has tried to get rid of it but it just keeps coming back. 

IHO: Counselor, I’m warning you that I will not tolerate attempts to unduly influence me…, but just in case, well, can I ask her to light a candle for me? The divisional soccer championships are coming up, and well, my son is in them, so…you understand.

PA: No problem, your honor. Theresa will take care of everything.

IHO: Thank you counselor, and this is off the record, but I would like to know where you got that particular shade of lipstick. I’ve been looking for that exact color…

PA: It’s available even as we speak at the One Day Sale at Dillard’s.

IHO: Well, that’s all for today.

SDA: But your honor, it’s only 2:00. I thought we were going until 5:00.

IHO: I said that’s all counselor, and I will see you tomorrow at 8:30. Ah, one more thing. Are we still on for our poker game Friday night?

SDA and PA: Yep. It’s at Johnny’s, as usual.

Black high-heeled shows with bows
Petitioner’s Exhibit A

My Home Office

Though many tout the advantages of having a home office, after three years in mine, I frankly don’t see it. The biggest problem with having a home office is the constant availability and presence of food. Every time I need a break, usually determined bythe passage of about 5 minutes, I head upstairs to the refrigerator. In fact, my husband no longer asks me what happened to last night’s leftovers. He knows. The progression of this problem is evidenced in our house by the collection of desk chairs I have had since my office began. I started out with one of those trim little chairs with no arms and which moves up and down and spins. As the number of work “breaks” increased, so did my backside and I moved on to ever widening types of chairs. Now I just sit on a bench. Amazingly, despite the fact that I find time for 5000 food breaks per day, I somehow never find time to go on the highly expensive treadmill which sits in my office less than 2 feet from the end of my desk.

Another disadvantage to the home office is the “home sounds” which can interfere with my attempts to run a serious business. Frequently I will be on the phone with an attorney from The Other Side, trying to sound tough, when the following exchange will occur:

Me (to attorney from Other Side): Your client is a scum sucking slimeball and they better pay up or else…

Child No. 1 (screeching in my ear): MOOOOOOOOOOOOM! Max is touching my stuff!

Other Side Attorney: Ha Ha. We’ll pay just as soon as Max is done touching her stuff.

The touching of stuff syndrome is a big problem in our house. Though I have tried to control this by removal of all stuff, stuff clones itself until we have more of it than ever. The home sounds problem is also evidenced by times when Lou, the office dog, will arise periodically out of his usual comatose state and bark at an imaginary sound, always during a critical phone conversation. I have started telling people that I work in a bad neighborhood and that sound is the landlord’s guard dog protecting the premises.

One nice thing about working at home is that it is never necessary to shower or get dressed. Aside from the time and money this saves, there is the added benefit that it keeps family members (and everyone else) at a distance. No one asks me anymore what I am making for dinner, because after seeing me they know they would not want to eat anything I made anyway. However, there are drawbacks to this as well. For example, when the UPS guy comes to make a delivery, and I appear looking like the hausfrau from hell, I feel compelled to explain to him that I need this delivery because I am WORKING, because I know he thinks I look this way at 11:00am because I am sitting in front of the tube watching The Price Is Right. Lately I have noticed that he communicates with me by megaphone and leaves my packages at the end of my driveway.

Being at home also means there are constant reminders of things left undone. When I come upstairs from the office for an important break, I can’t fail to see the mound of clean laundry accumulated on the family room couch, and on which a number of animals are sleeping. Some of these critters have been there so long that they have made nests in the laundry, and clothing which was once clean now has the faint smell of corn that animals emit after they have been sleeping for long periods.

I realize that this situation cannot go on much longer. The discipline in my office has started to erode, and I have even sent myself memoranda warning of the consequences if I continue to make numerous personal phone calls and spend time readingand sending humorous emails about George Bush and Al Gore. I plan to go out soon and start looking for office space – just as soon as I shower and get dressed.