Preparing for a due process hearing

 When parents and school districts are in dispute about what special education should look like for a student, they have the option of filing a request for due process. The IDEA provides this method of dispute resolution to afford the parties an opportunity to have their matter presented to, and decided by, an impartial hearing officer. Due process hearings in Ohio are relatively rare; most cases are settled without the need for a hearing. But when a hearing is necessary, it resembles a bench trial with witnesses, examination and cross examination, presentation of exhibits and finally a written opinion by the hearing officer deciding the outcome of the case. 

Participating in a due process hearing is not something parents or their attorneys should take likely. Due Process should always be a last resort, when every other attempt to resolve the issues has been attempted but has failed to result in necessary assistance for the child. Parents, even parents who may be attorneys themselves, are advised to seek assistance from an attorney when due process becomes necessary. 

In choosing an attorney, parents should assure themselves that the individual has experience, not just in practicing law, but in the handling of special education matters, including due process hearings. Vetting an attorney should be a part of every parents’ effort to assure they are receiving experienced representation for their case. It is imperative that parents inquire as to how many hearings the person has handled, whether they have won any, and must assure themselves that the attorney can explain the process to the parents. Parents also need to understand the costs associated with a due process hearing even if they are not paying their attorney. Many attorneys will accept cases without requesting fees from the client, but generally the client is required to front the costs associated with the hearing, most particularly expert witness fees. Winning at due process is difficult even when parents have a lawyer. Winning without experts is virtually impossible. 

Winning a due process hearing also requires a strategy, just as in any type of litigation. It is critical at the outset to develop a theory of the case, i.e. how did the District’s failures result in this student’s difficulties. Most important though is to develop a remedy which will explain to the hearing officer how your requested services will help this student. If an attorney is not able to present evidence to answer that very critical question, the likelihood of prevailing is slim. In Ohio, there are hearing officers who have found denials of FAPE but have refused to order any relief where no evidence was presented as to remedy. Generally this evidence must be presented through expert testimony. Remember that hearing officers want to know not just what the problem is– they also want to know the proposed solution. 

Developing the plan to present evidence in a due process case is critical to relating the story of the student’s struggles. Each and every document or witness must have some purpose in furthering this narrative. Unnecessary evidence takes away from the case and distracts the hearing officer from focusing on the theory of the case, whatever that is. Since there is no discovery in a due process hearing in Ohio outside of the disclosure conference, attorneys must make use of every opportunity to see all of the student’s records. At times, obtaining records can be a challenge but it is critical to persevere in this effort, even if the records do not appear until after the hearing has begun. 

Adequate preparation of witnesses is also essential to success. Parents and experts need to be prepared not just for the questions coming from the parent’s attorney, but for the likely cross examination from the District. Generally the district’s defense will be contained either in the response to the due process, or in a Prior Written Notice. From there it ought to be possible to predict the likely questions on cross. 

The presentation of evidence must tell a story. Often that story is told through the testimony of the District staff. Since no depositions are permitted, a thorough familiarity with the documents is essential. The parent’s attorney usually does not know what the District witnesses will say until the words emerge from their mouth. Without an exhaustive knowledge of the records, it is impossible to formulate the questions spontaneously as is necessary in a due process hearing. 

By the time the hearing is concluded, the hearing officer should have received a clear picture of what happened to the student, how it happened, and what is necessary to fix it. If these things are not wrapped up for the hearing officer, it is unlikely that any gaps will be filled in by the hearing officer him/herself. 

Professional conduct at a due process hearing is essential. That rule applies equally to school districts and their lawyers, as well as to parents and their lawyers. While parents may get understandably emotional, there is no excuse for nasty or brutish behavior. If the other side gets nasty, it is best for the parents and their lawyer to “take the high road.” Often when school districts, or parents, feel that the case is not going well, they may engage in personal attacks to those on the other side. It is best not to engage with that. Hearing officers hate unprofessional attorneys and parties. 

Generally this office requests a “sequestration of witnesses” before the hearing so that district staff who may be on the witness list are unable to attend the hearing and listen to the testimony before their own turn on the witness stand. This separation of witnesses does not impact a parent’s right to have an open hearing where members of the public, including friends, can attend. 

Parties are usually required to write a brief after the hearing to explain their respective positions to the hearing officer by identifying the relevant law and applying it to the facts of the case. Brief writing is a highly technical skill and parents ought to know that their attorney has extensive experience in brief writing. Attorneys should always send their brief to the client before it is filed to assure that it accurately reflects the client’s position even if the client may not understand all of the legal jargon. 

Due process proceedings are often lengthy, expensive and can be emotionally draining for parents. However, there are times when a hearing is necessary in order to improve the education and life of a student after other options have been exhausted. If parents are not sure whether a hearing is necessary, they are free to seek a second opinion just as they might for a medical issue. In making a decision of this nature, sometimes another opinion is not a bad idea. 

Students With Disabilities In Juvenile Court For Behavior Issues

Back in March, we discussed what to do if your student with a disability ends up in juvenile court for attendance issues. Unfortunately this is all too common. However, even more common are those circumstances where students end up in juvenile court for behaviors that occur at school, or at a school related event (e.g., football game, bus transport, field trip). Where a student’s behavior is related to his/her disability, the consequences for the behavior become a special education issue.  

Here’s a real life example: Student is an international adoptee. She was born with fetal alcohol syndrome, and suffered abuse and neglect for most of the first years of her life. She has chronic PTSD, together with medical issues related to her early years. Student was not adopted until age 10. After starting school in the U.S., student was placed on an IEP but no behavior goals were included. Over the first three years in school, Student’s behavior gradually escalated, but school district never took any action to address behaviors clearly related to her disability. School district decides it cannot deal with Student, so it arranges to send Student to a County program for students with behavioral needs. At the time Student starts school, no IEP or ETR has been sent to County program. No information about Student’s profound trauma needs was communicated to teachers, though parents had warned administrators that Student could not be restrained or placed into seclusion room due to past history of abuse, which included having been locked in a closet. On third day of the new program, Student is noncompliant and is told she will be restrained and placed into seclusion room. Student warns teachers not to put their hands on her, but they pay no attention and she punches them and injures one. Student is arrested and charged with several felony offenses.

This situation is extremely common, and it should be obvious to any thinking person that this situation is not the fault of the Student. Unfortunately, that is not always the case. So what can a parent do?  

The best approach under these circumstances is to immediately file a request for a due process hearing detailing why the school district’s failures ultimately resulted in the behavior that brought the child to the juvenile court. Not every case involving a student with a disability can be handled this way. However, if the behavior occurs at school or at a school function, the first place to look is at the child’s IEP. If the student was regularly having behavior issues that went unaddressed, then seeking relief in a due process hearing is likely to get the best result. 

 I generally advise the school district and the prosecutor that the situation presents an educational issue, not a criminal one, as it was the District’s responsibility to take some action to prevent the Student from escalating. In almost all of the cases, the prosecutor’s office has agreed to drop the charges, including in the case described above. Educating those who practice in juvenile court is essential to assuring that students with disabilities are not punished for behaviors over which they may have little or no control, and particularly where the situation could have been averted if the school district had not violated the child’s right to receive FAPE.

In most of these situations, school district personnel appear front and center in the juvenile court to assure that the child is prosecuted. I have never heard of a school district, which is not a party to the criminal proceeding, being ordered to show up at an arraignment, but yet there they are. Filing a due process, and in some circumstances, a civil rights action, holds the district accountable for its failures, while educating court personnel regarding the special education issues presented by the facts.

In most cases, the Student will need an attorney for the criminal proceeding, as well as for the educational one. Again, many public defenders and other criminal defense attorneys have little knowledge or understanding of special education laws, or about particular disabilities and how they impact students’ behaviors. They too require education by the parents and the student’s advocates.

Finally, creating an IEP for the student that appropriately addresses the behavior issues goes a long way toward convincing prosecutors and judges that the matter is better off handled by the district and parents than through resources available through the Court. Judges like to know that there is a plan in place to assist the Student so that the Student will not end up in the Court again.  

The juvenile courts are not meant to be a shield behind which school districts may hide when they have failed in their obligations under the laws that govern the education of children with disabilities. If your child has been denied FAPE, and is involved with the juvenile court as a result, you should take action immediately to assure that your child is not punished for having a disability. Juvenile detention is generally a poor place to educate a child whose disability includes challenging behaviors.

Do I Absolutely, Positively Have To Have a Lawyer?

This is a question we often have to address with folks who call us. And the majority of the time, the answer to that question is “no,” a lawyer is not absolutely necessary. When parents are unhappy with their child’s program, and most particularly where the trust in the school district has eroded, calling a lawyer can be a knee jerk reaction. For many, that response seems warranted because they believe the school district is no longer listening to them, and that the presence of an attorney will make them sit up and take notice. Certainly, the presence of a lawyer changes the dynamic of discussions with a school district. IEP meetings become more formal, and generally the school district will have its lawyer present for those meetings as well.  

But having a lawyer may not always be the best option. Aside from the expense of hiring an attorney, there are other things to consider. One of those is looking at the issues parents are having. If, for example, the principal concern is that the parents feel overwhelmed, and are unable to articulate their concerns to the team either because the laws are too difficult to navigate, or because anxiety gets in the way, parents should consider using a lay advocate to assist. Lay advocates are common in Ohio and there are many who are skilled in assisting parents to understand what their rights are and how to advocate. Lay advocates often attend meetings and speak for parents who may be unable in that situation to adequately identify the specifics of their concerns. 

When choosing a lay advocate, be sure and inquire as to the person’s experience, and ask about their fees. Different advocates have different approaches so be sure the one you choose shares your style of communicating. If you want to be cooperative, and you go into a meeting with someone who has an aggressive or combative attitude, that person may not be the right one for you. Anyone who does lay advocacy should have insurance, and should look and act in a professional manner. Lay advocates are not lawyers, and under Ohio law, they are not permitted to advise you as to your legal rights. That is a rather fuzzy line in special education, but be aware that when you sign something, whether it is an IEP or a mediation agreement, that is a legal document and only an attorney can advise you as to how it will impact your – or your child’s – rights. Lay advocates should be attuned to when they themselves have reached a point where a lawyer is necessary to assist the parents.  

Even when parents are in dispute with the district, lay advocates can assist in the filing of a complaint to the Ohio Department of Education. Many lay advocates have extensive experience in filing complaints, and that is one way to resolve disputes in a reasonably efficient and inexpensive manner. But be cautious if you engage in mediation. At mediation, parents are asked to enter into legally binding settlement agreements and many include clauses that release legal rights. You should not do that without consulting a lawyer. Most school districts who draft mediation agreements will include a general release of liability, and parents may not understand what they are giving up, or what they are getting in return. Often when we see mediation agreements signed without an attorney, the problems are too late to fix.  

Some disputes, though, do require a lawyer, but only a lawyer can tell you that for sure. Generally when a parent is going to file a due process, they are better off to have an attorney. A lay advocate in Ohio is not permitted to appear at a due process and represent a parent at a hearing, though they can certainly attend and assist. Due process hearings are essentially bench trials, and most parents will significantly increase their chances of prevailing if they have an attorney. Additionally, parents face the possibility of having to pay the legal fees of the school district if the district prevails at the hearing and the claims brought in a due process request were for an improper purpose. Attorneys will advise you as to your potential liability for fees under those conditions.

Other considerations include what to do when the school has brought in their attorney. Many lay advocates are comfortable appearing at meetings where the district’s attorney is present. Others are not. Parents need to decide where their comfort level is, and whether they feel the need for their own counsel.  

In the end, parents are often left to determine whether they are better off spending their money on their child, or better off spending it on a lawyer. Generally speaking, the answer will usually be the former. For parents who cannot afford a lawyer, many of us in Ohio will, and have, represented parents without expectation of payment unless the parent prevails and fees can be recovered from the school district. Finally, some cases have components that go beyond the special education issues and may impact the child’s, or the parents’, civil rights. While parents do not need an attorney to file a complaint with the Office for Civil Rights, filing a complaint in federal court in a civil rights action will require a lawyer.  

Most lawyers in Ohio work cooperatively with lay advocates, parent mentors and others. Don’t hesitate to call an attorney if unsure about whether one is necessary. Any good parent attorney will provide you with an assessment of the matter that will reveal the best, and most cost effective, way to proceed.

When Your Disabled Child Is Bullied

With the start of the school year, parents always face new issues. A new school year can bring new teachers, new students, new staff, new schedule, etc. But whether your child is 5 or 15, bullying is something that continues to be a significant issue for kids with disabilities (as well as for kids without).  

What is bullying? Bullying is any verbal or physical harassment of a student for any reason. From the legal standpoint, bullying can become actionable when it is severe, pervasive or objectively offensive. But a parent or child need not show that bullying is a result of disability. It is not relevant at the school level what the reason for the bullying may be. It is relevant if it is happening to your child. Bullying can be subtle and some impressionable students may not even be aware they are victims.  

What should you do if your child is bullied? First and foremost, you must talk to your child, and make sure your child knows how important it is to talk to you. Most kids who are bullied do not speak to their parents about it for fear it will only make the situation worse. Parents need to look for changes in their child’s behavior, including reluctance to go to school, depression, or other anti-social behavior. If the child has communication impairments, parents may need to go to the school to observe the classroom in order to determine what is going on. Teachers often miss bullying behaviors as children who bully develop strategies for engaging in bad behavior when the teacher is out of sight or earshot.

Parents must document to the school each and every instance of the bullying. If the child is afraid or is experiencing severe anxiety, parents need to call an immediate IEP meeting. Bullying implicates a child’s right to receive a free appropriate public education. If a student is afraid or anxious he or she cannot benefit from their FAPE. Accordingly, it is the responsibility of the IEP team to address the issue of what the school district can do to assure the child receives the benefits of his education. That might require schedule changes either for the victim or the bullies. Accommodations or modifications to the child’s program should be documented in the IEP. Some students may require an escort or other aide at certain periods of the day.

If bullying continues, parents have other options. If bullying is physical, a police report should be filed. If necessary the child can seek a protective order from the juvenile court. Such an order would require the bullies to stay away from the student including at school. A letter can be sent to the parents of the bullies notifying them of their potential liabilities, including for damages.  

As a last resort, students may need to be removed from the environment and either placed elsewhere or at home. There is no benefit to making a child go to school where bullying is occurring. Unfortunately, while most schools have anti-bullying programs in place, there is little hard evidence that such programs work. In fact, some studies have shown that bullies learn from these programs how to hide their bad behavior which can actually make the situation worse.

Parents of children with disabilities have other options as well. Bullying on the basis of disability is a civil rights violation and parents can file a complaint with the Office of Civil Rights. The complaint form is online and you do not need a lawyer to complete it. The ability to bring a civil rights lawsuit against a school district for bullying is more difficult. At that point, it would be imperative to show, in a discrimination claim, that the bullying was on the basis of disability in order for the case to be viable. Even then, there are other requirements that must be met in order to establish liability of a public entity for acts of a third party (where the bullying is peer on peer). There may be other claims as well, so if you are not sure, seek the help of a lawyer.  

For parents who have sent their children to private school or scholarship provider, the ability to challenge the school in those situations may depend on the terms of your tuition agreement.

Bullying continues to be a problem in our schools. Anyone who tells you otherwise is whitewashing. Bullying occurs in schools regardless of whether they are in affluent or poorer school districts, and it impacts children with a variety of disabilities. Don’t let this happen to your child. If you suspect there is a problem, there probably has been one for some time.

What Is a Due Process Hearing?

Most parents are aware that when they have a dispute with their school district, they have various ways in which they can pursue a remedy on behalf of their child. One of those is to file a due process request. Due process in the special education context is an administrative proceeding that begins by filing a complaint with your superintendent. This complaint generally requests a hearing before an impartial hearing officer appointed by the Ohio Department of Education (“ODE”). Hearing officers in Ohio are attorneys who have specialized knowledge in matters relating to special education law. They are not employees of the State.

A due process complaint is basically a lawsuit against your school district; it is just not filed in a court (at least initially). Such complaints must contain specific information in order to be deemed “sufficient.” Check the requirements for a due process complaint. The school district has 15 calendar days from the date of the hearing request to convene a resolution session with the parent to address the issues raised in the due process complaint. Resolution sessions are similar to IEP meetings as far as who should attend. There are no third party mediators or hearing officers at a resolutions session. Parties may also request mediation which is an informal means of dispute resolution facilitated by a third person appointed by ODE. Mediation is voluntary and must be agreed to by both sides. Parties may have resolution or mediation or both, but if the school district demands a resolution session, the parents must attend or they cannot proceed to a hearing. Mediators do not make decisions for either party. Their role is to broker an agreement that will be acceptable to both sides.  

If the parties reach agreement at resolution or mediation, a written agreement must be entered into and signed by both parties. The due process case will then be dismissed. If no agreement is reached, the hearing officer appointed to the case will set hearing dates. The due date for a decision by a hearing officer is no more than 75 days from the date the due process is filed. Either side can request an extension of the decision date, which is a common practice in this area of the law simply because the timelines are so restrictive.  

At least five business days prior to the start of the hearing, the parties will have a disclosure conference where they must disclose all the documents they intend to present at the hearing, and provide the hearing officer and the other side with a witness and exhibit list. Due process hearings are frequently held on nonconsecutive days and sometimes occur over a period of several months to accommodate the parties’ schedules. The length of a hearing depends on the complexity of the issues, (and the verbosity of those presenting the evidence). Hearings are just like trials you may see on T.V.- each side can compel the attendance of witnesses through a subpoena issued by the hearing officer, and there is examination and cross examination of witnesses, evidentiary objections, etc. Most hearing officers require a legal brief from each side after the hearing to argue the relevant law and show how it applies to the facts that came into evidence at the hearing. While it is not necessary to have a lawyer representing you at a hearing, most parents would be smart to consider retaining one as the complexity of these proceedings makes it difficult for most parents to navigate. The special education laws permit parents who prevail at a hearing to recoup their reasonable attorneys’ fees from the school district.  

The hearing is transcribed by a court reporter and each side will receive a copy. The district must pay for the parents’ copy of the hearing transcript. After briefs are filed with the hearing officer, the hearing officer will issue a written decision within the time frames allowed or agreed to by the parties. Either side may appeal a hearing officer’s decision to a second tier administrative hearing officer within 45 days of the decision. Sometimes each side will prevail on some issues but not others so it is possible for both sides to appeal. The second tier in Ohio consists of a state level review officer who receives the record of the case, generally has the parties brief the issues remaining, and issues a decision within 30 days. Again, extensions are often requested. These second tier hearing officers may request a brief but usually do not allow additional evidence in the record beyond what was already admitted at the hearing. Once the state level review officer has issued a written decision, either side may seek review in federal or state court.

The decision to seek a due process hearing is not one that should be made lightly. Due process hearings are very labor intensive and time consuming. Preparation is key, particularly since Ohio does not permit any depositions or other pre-hearing discovery. You will not know what is going to come out in evidence until you are in the hearing. Many parents feel as though they want their day in court. But litigation is expensive, and is to be avoided unless there is no other option for the student. Some attorneys, including those in this office, will take some cases without payment, but the ability to do that will depend on the strength of the case, anticipated cost of experts and time available. Most attorneys charge a flat rate and will agree to try and collect the remainder of their fees if they prevail.  

Finally, parents who pursue due process need to know that if they or their attorney files a claim that is found to be frivolous or filed for an improper purpose, the school district can seek fees against them and their lawyer. Generally, it is very difficult for districts to obtain fees under this provision as the evidence necessary to prove that a claim was frivolous is quite high, as it should be. But this provision should give parents pause about pursuing claims on their own.  

When deciding whether to file a due process, ask the attorney about their track record. How many hearings have they had? How many were successful? How much will it cost? How long will it take? And most important, is what the student will be getting worth the time and expense of fighting 

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.