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Last Updated: 01/14/2017
 

Ask the Attorney with John Brower, J.D.   [Back to Ask the Attorney]

For this special edition of Ask the Attorney, we have compiled some of the most recent questions submitted by our visitors and answered personally by John. Our thanks to John Brower, J.D. – Managing Attorney of the Education Law Center in Brighton, Michigan who answers our Ask the Attorney feature. You can ask a question here. Note: Due to time constraints and the simple fact that we are an all-volunteer organization, please be patient in receiving a response. We also ask that you read through previously asked/answered questions BEFORE submitting your question because chances are, it may have already been answered. Thank you.

 

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Question: (Michigan) My son was denied an IEP in middle school and denied again based on emotional impairment in high school. He has major depression and is ADD and has been permanently expelled. How can he be denied for any special education when he has had problems in school since 6th grade?
   

Answer:  One of those rights is to appeal a decision to deny a student special education eligibility to an IDEA administrative law judge. While it appears that a lot has gone on since the denial happened, it may still be worthwhile to revisit the denial of eligibility, either through a new request for an eligibility determination or an appeal of the last denial. Of course, any new request for an eligibility determination or an appeal of the old denial appeal will require evidence of a disability. Ideally you should get that from a professional who is familiar with your son. For emotional impairment that would ideally be based upon a psychologist's evaluation or the evaluation of some other equally qualified mental health professional. There are private attorneys who do represent students in these types of actions; they generally charge an hourly rate for their time. Michigan Protection and Advocacy Services (www.mpas.org) also provides trained advocates and if needed, attorneys to assist parents of students disputing eligibility determination.

 

Question: (Michigan) My son has autism and has an IEP. He is currently in a special needs classroom with 2nd & 3rd graders. He no longer has an aide and eats lunch in the regular lunchroom. Two days ago he took a bite of his sandwich and spit it on the floor because it tasted funny. The cafeteria workers made him mop the floor. Well, I guess he took another bite and spit it out again so they made him mop the floor again. Is this legal? Afterward he knows it was wrong to do it, but because of sensory issues, I don't think he can control it in the moment. He just knows he has to get that bite out of his mouth. What made me even more upset is that he didn't eat his sandwich yesterday. He said he was afraid he would have to mop the floor again! I called the principal and he said he disagreed with me and it seems like he would probably would make him mop the floor if it happened again.

 

Answer: School staff have a fair degree of discretion in dealing with issues like this. However, from my experience the best way to address this is to request in writing that your child's IEP Team be convened and a Behavior Intervention Plan be created that addresses their claims of "misconduct". The school psychologist and social worker, plus a person with expertise in autism should be at the meeting so everyone can discuss ways that this type of reaction to a sensory issue can be appropriately addressed in way that does not embarrass the student and allows the student to learn alternative ways to deal with what is obviously a manifestation of the child's disability.

 

Question: (Michigan) My sister has a son who is 15 who has autism and is currently attending school in North Carolina. She has been on disability for about 12 years and will be moving back home to Michigan with her son as she goes through a divorce. She needs help for her son and herself. Are there any referrals I can pass on?

 

Answer: In Michigan no cost advocacy and limited legal services for school special education issues is available from our state Protection & Advocacy organization: www.mpas.org.

 

Question: (Connecticut) A child has an IEP and you request a Psychiatric and Assistive Technology Evaluation. The school states they are required to do a "consultation" before doing an evaluation which delays getting the services. When you say they denied doing an evaluation they state, “no” because they are doing a consultation. So they place it as “request accepted” on the prior written notice. Can they do that?

 

Answer: Under IDEA the school district to a fair extent controls what evaluations they do and don't do. While a parent can request evaluations in specific areas, sometimes rather than agree, the school will 'consult" with their own experts to decide what to do. I have found the chances improve of having a specific evaluation completed if you write the Special Ed Director and explain exactly why, in terms of academics or behaviors, there are specific areas that have to be further evaluated. A parent also improves the chances if you can show or describe how the current IEP fails to address all the child's needs and therefore acts as a denial of a FAPE. I would suggest you consult with Connecticut’s Protection and Advocacy organization if the school refuses to do their own evaluation. Of course, even if they do their own evaluation, after reviewing it you may disagree and then request a publicly funded independent evaluation. http://www.ct.gov/opapd

 

Question: (Massachusetts) We did not receive an invitation to my son's annual review although the district claims it was mailed. The meeting was on the last day before the IEP "expired". When we learned of the meeting the day before while on the phone with the principal, we pleaded for the meeting to be rescheduled. The TEAM chair called and said it couldn't be rescheduled. "Her hands were tied" because the IEP expired. They had the meeting without us. The special education teacher was on leave since the onset of the year. She had been back for 2.5 days. It was December 3rd. There is no way she could provide information regarding his current performance level. Was it "legal" to have the meeting without us under those circumstances? What can we do?

 

Answer: Assuming you have documentation of the facts and your efforts to have the meeting rescheduled, you may wish to ask them to immediately reconvene the IEP Team with you present (as the issue of missing the deadline has now been resolved). If they refuse and you do not agree with the contents of the IEP you can file a complaint with your state department of education - special education department and state that you "were denied the opportunity to meaningfully participate" in creating the annual IEP. The problem that may arise if you do not agree with the IEP and they somehow implemented it without providing you a copy, is that if you now file for a hearing and try to have the old IEP remain in force during the hearing (i.e. "stay-put) the school may claim the "new" IEP is stay-put. If that happens, your state’s Protection and Advocacy may be able to assist you - www.dlc-ma.org. IDEA regulations at 34 CFR 300.322 state: "(c) Other methods to ensure parent participation." If neither parent can attend an IEP Team meeting, the public agency must use other methods to ensure parent participation, including individual or conference telephone calls, consistent with 300.328 (related to alternative means of meeting participation). (d) Conducting an IEP Team meeting without a parent in attendance." A meeting may be conducted without a parent in attendance if the public agency is unable to convince the parents that they should attend. In this case, the public agency must keep a record of its attempts to arrange a mutually agreed on time and place, such as (1) Detailed records of telephone calls made or attempted and the results of those calls; (2) Copies of correspondence sent to the parents and any responses received; and (3) Detailed records of visits made to the parent’s home or place of employment and the results of those visits.

 

Question: (Michigan) I have a child with Aspergers who has an IEP and is suspended from school every day I send him to school. I have kept him out of school and had the school report me for not sending him and as soon as I send him, he is suspended. He has been held back 2 years. He is supposed to be in 4th grade but he is still in the 2nd. He was suspended almost half the year last year and then he was held back. I have done all I can do. I get phone calls daily to come get him. I don't know what else to do.

 

Answer: The IDEA special education laws are very specific. After 10 days (or partial days) of suspension in the same school year that are all related to the child's behavior or identified disability, the District must convene the student's IEP Team and determine if the misconduct was caused by the disability or by the school's failure to properly implement the IEP. This is called a Manifestation determination Review or MDR. If it is determined that the child’s behavior is a manifestation of his or her disability, the IEP must be revised (and maybe should be redone anyway) to address the misconduct. Part of that generally is to conduct a Functional Behavior Evaluation to determine what the student needs to bring the conduct in line so he can stay in school. What is needed is set forth in a Behavior Modification Plan. If these steps were not followed, a written complaint to the Michigan Dept of Ed should be made and the student may be awarded "make-up" services for the time missed from school. In terms of going forward, you may be able to benefit from using a private advocate or an attorney-advocate. Both charge for their time, but they can be effective in requiring the school to follow the IDEA law. If you cannot afford a private attorney or advocate, Michigan Protection and Advocacy services may be able to assist at no charge. See www.mpas.org for contact details.

 

Question: (California) My son suffered an assault on campus, he was 'sucker-punched' in the head by an older student while he was eating lunch at school. The blow was serious and caused a concussion followed by symptoms consistent with post-concussion syndrome. His doctor ordered/prescribed him cognitive rest and that appropriate academic accommodation be made by the school for recovery. Immediately following the assault, my seriously injured son reported his injury and the incident to office staff. The staff and principal failed to recognize the seriousness of his head injury and denied my son any relief from his pain and trauma. My son was only 12 at that time, injured and inexperienced. He didn’t know how to advocate for himself. The school failed to provide a medical assessment, failed to summon the school nurse, failed to administer first aid, failed to allow my son to call his parents, failed to notify (us) parents, failed to follow California first aid protocol, FAILED TO DO ANYTHING REASONABLE and put my son at further risk by sending him off to a physical education class after sustaining blunt force head trauma. After detaining him in the school office for about an hour of waiting for the principal to speak with him, the principal determined my son was not at any fault yet gave him no relief for his emotional and physical trauma. He gave more attention and better treatment to the perpetrator who was allowed to go home with his parents. The school has failed to provide academic accommodations and then referred the medically sanctioned and excused absences to the truancy board as attendance violations school. They failed to grant my numerous requests for academic assessment for modifications within the legal timeframes. Now, finally five months later, the school determined him eligible for a 504.

 

Answer: It appears that you are seeking an attorney with familiarity in California school matters and personal injury claims to proceed with a claim against your son's school systems. A good source for attorneys who understand the law related to schools, and the possible immunity defenses available to schools can be found at www.copaa.net. As most claims have only a specific amount of time to file an action, you should not delay in locating an attorney or you risk forever losing your chance to file an action.

 

Question: (Michigan) My 10 year old has severe ADHD and pdd-nos. We have had a manifestation hearing for his behavior. They have determined that his behavior was a manifestation of his disability, but they did nothing to change his IEP. They said that they were going to have him in the general education class 1/2 a day, then in another class with a parapro and substitute teacher for the rest of the day, until we redo his IEP. They failed to do that and now, three days later, they are expelling him for pulling the fire alarm, while they made him stand outside the classroom as a form of punishment. Can they do this? What should I do now?

 

Answer: First, when an IEP Team determines that a student's misconduct was caused by his disability or the school's failure to implement the IEP, IDEA and the Michigan Rules set forth at 34 CFR 530(f) require: Determination that behavior was a manifestation. If the LEA, the parent, and relevant members of the IEP Team make the determination that the conduct was a manifestation of the child’s disability, the IEP Team must (1) Either (i) Conduct a functional behavioral assessment, unless the LEA had conducted a functional behavioral assessment before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan for the child; or (ii) If a behavioral intervention plan already has been developed, review the behavioral intervention plan, and modify it, as necessary, to address the behavior; and (2) Except as provided in paragraph (g) of this section, return the child to the placement from which the child was removed, unless the parent and the LEA agree to a change of placement as part of the modification of the behavioral intervention plan. If the District failed to do the above it would appear you have grounds for a complaint to the Michigan Department of Education http://www.michigan.gov/mde/0,1607,7-140-6530_6598_36168---,00.html or the U.S. Department Office for Civil Rights http://www2.ed.gov/about/offices/list/ocr/qa-complaints.html. As to the second discipline incident, the same rules apply. A Manifestation Determination Review meeting must be held prior to the 10th day of suspension (or immediately if the student was already removed for 10 days during this school year). One would think it would be hard for the District representatives to the MDR Team" to find the first incident to be a manifestation and the second not to be. If they find the second incident was also a manifestation, the above procedures would apply. They must conduct a behavior assessment and modify the IEP if needed for more support, etc. The latter could result in a changed placement to a more restrictive setting such as an EI classroom or a SEI Center-based program. On the other hand, if the Team finds it was not a manifestation the school must continue to implement the IEP, but can do that in another setting such as the home [I usually demand at least 5 hours of teacher services in the home each week]. The decision that it was not a manifestation and the type and amount of the placement and services that were thereafter provided can then be appealed to an IDEA Hearing Officer. Private attorneys do represent parents and students in discipline matters, but they all charge an hourly rate for their time. No cost legal services may be available from Michigan Protection and Advocacy Services (www.mpas.org).

 

Question: (Michigan) I've had a lot of problems with my son's IEP and we've basically lost three years of our son’s education. His school helper quit her job because of all the things we've been through and before she left she downloaded our son’s whole file and told us to get legal aid. So we really need help.

 

Answer: If you feel that your disabled child's IEP is inappropriate or has not been properly implemented, you likely can benefit from having a person with special education skills meet with you and go over your records. If you can afford the expense, there are skilled advocates who charge for their time to conduct such a review. The cost is generally from $50 - $150/hr. For example, one very experienced advocate I work with is a retired school administrator and charges around $80/hr plus travel expenses. If you cannot afford a paid advocate, depending on the issues, Michigan Protection and Advocacy Services (www.mpas.org) may be able to assist with one of their professional advocates at no charge. Also, the Michigan Alliance for Families has trained parent mentors and access to a network of advocates (www.michiganallianceforfamilies.org). Without reviewing your child's school records it is hard to say if the situation is such that it needs an attorney whose practice focuses on special ed law to address the issues. Again, there are private attorneys who do represent students and parents in their disputes with schools. The rates vary from $180 - $275/hr. Typically they start with an Initial Consultation meeting that might last 1-2 hours where the child’s educational records are reviewed and actions that might be taken are discussed. There is usually a fee for these meetings and they might range from $225/hr to $450 for two hours. If you are unable or unwilling to retain private counsel, Michigan Protection & Advocacy does have a very limited number of attorneys on staff to address issues that require an attorney. Generally their advocates are the ones who decide if one of their attorney's will be involved. While you may now have some records, you may not have all educational records. You will need a complete set of educational records and, ideally, will have them organized into a 3-ring binder with IEPs by date separate from evaluations separate from communications, etc.) before you meet with any advocate or attorney. You can find a record request form online that you can fill out and give to your building principal and special ed director. To assist in your understanding of the issues, I also suggest purchasing from www.wrightslaw.com the Emotions to Advocacy book for around $25. They also have another good book that explains special ed laws and regulations, however, while some parents have found it useful, others have found it to be too complicated. You would have to decide for yourself if it meets your needs.

 

Question: (Michigan) I have a question regarding an incident that occurred at my son’s school. My son has a learning disability and he was hit with a book by a teacher assistant and humiliated in front of the class with the use of profanity. I am seeking guidance with handling this matter. Thank you!

 

Answer: In a situation where a staff person assaults a student, at the minimum you want to write a letter to the Superintendent and Principal and set forth the details of what happened - who did what, when they did it, the surrounding circumstances, etc. You want to clearly state that in your opinion it was intentional and not an "accident." Further, for a staff person to assault your disabled son is unacceptable and you expect the person to be appropriately disciplined. Plus you want their assurance it will never happen again. Where you go from there is up to you. You can request a new person be assigned or that your child be moved to another class. You can file a police report, but unless there are visible bruises, etc. (and you took a picture of them when they were fresh) not so sure the police would do anything. You could inform the school that you consider this incident "child abuse" or "corporal punishment [infliction of pain to change conduct] and therefore it has to be self-reported to CPS [or you will] which will make some real enemies among the staff if CPS investigates. In any case I would think the aide has to go and the school would want that as in the end they are liable for their staff's conduct.

 

Question: (Michigan) My son is a 9th grader, but he reads, writes, and comprehends at a 2nd to 3rd grade level. He is struggling in math - Pre-Algebra. Can I request that his IEP be changed to include he must be graded at 1/2 (e.g.20/40, 10/20 etc.) the math questions due to his learning disability? When I asked, the Special Ed. teacher stated this was not in his IEP, but I want it added, then she said, only if the math teacher agrees. I am considering getting an Attorney, so I will not have more problems during his high school years.

 

Answer: As a disabled student eligible for an IDEA- based IEP, the student also comes under the anti-discrimination protection of Section 504. Therefore, the school is required to grant the student "reasonable accommodations" that are designed to put him on an equal footing with his non-disabled peers. Modifying tests so that the student is expected to answer a lower number of questions or has to make fewer choices on a multiple-choice test is pretty common. The same goes for adding time (usually 50% more) to finish tests or turn in assignments. To have that included in the IEP you need to write (so you can later prove you made the request and when) to whomever chairs your child's IEP Team and ask that the Team convene to create an Addendum to the current IEP to add appropriate accommodations. You can also tell them exactly what you want and why. If they refuse to convene the Team, the next step would be to file a written complaint with the Michigan Department of Education http://www.michigan.gov/documents/mde/DueProcess_Complaint_Procedures_340126_7.pdf?20150116150557 or you may wish to file the complaint with the U.S. Department of Education’s Office for Civil Rights (OCR) http://www2.ed.gov/about/offices/list/ocr/qa-complaints.html.

 

Question: (Ohio) Friends of mine have a 16 year old, extremely developmentally delayed, son who is charged with GSI (gross sexual imposition). Two months ago, he was playing and running around with a 14 year-old girl and her brother. They ran onto a playground where the 16 year-old and the 14 year-old girl both ran up a slide into the covered portion. This is where the girl alleges that the 16 y/o grabbed her breast (on the outside). The 16 y/o barely remembers the incident - - which the girl's brother said took place in less than a minute - - and said all he remembers was the 14 y/o and her brother putting a coat on a stick and chasing him with it after playing on the slide and they were laughing and happy. The girl's story has changed quite a few times, and as you can imagine, the boy doesn't even remember after all this time just that kids are harassing and bullying him ever since the "incident." The police tried to talk the parents out of charging the boy with GSI, but they refused to back down. The schools are sending an advocate with the parents to the hearing, but the child advocate attorney I spoke to today strongly suggested that the parents get an attorney. Unfortunately, my law firm doesn't handle criminal matters.

 

Answer: I suggest checking on Wrightslaw's www.yellowpagesforkids.com website or www.copaa.net for names of special education attorneys in their area and then contacting them to see if they also do juvenile criminal law.

 

Question: (Michigan) I have a son who is 8. I started him in the ECDD program at age 3 for his speech delay. Since he turned 7 because he scored high in one of three categories they were no longer able to keep him in a MiCI-type (mild cognitive impairment) class room and he is now in General Ed. Since being placed in the normal class room environment, he has become more and more aggressive. I finally got his diagnosis over the summer, turned it into the school and they are still fighting me on their procedural system that he is not eligible for MiCI-type services and say that he already is receiving as many services as he would anyway. I can’t believe that. I have received referral forms 3x this year already so far from his aggressive behavior, today was most extreme. He was cited for pushing through the line of students, throwing iPad, punching staff, throwing tray of food in the lunch room and now the teacher will be eating lunch with my son so her kids aren't afraid to go to lunch, and he supposedly hit everyone in the class. Last year he was suspended 9 almost 10x and we did the manifestation meeting to stop him from being suspended from school for his behaviors since it was due to his supposed disorder. I have been fighting since last year to have him pulled from General ed into a MiCI/special ed-type classroom. Unfortunately they eliminated special ed classrooms in our school district and only have MiCI classrooms and you have to fit the proper criteria. I am afraid because they have had to contact parents due to my child harming them in school that I'm going to have a lawsuit against me. My other issue is I also have one more son who is diagnosed as mildly cognitively impaired and is ECDD as well, but he turns 7 in January and they may start to pull him into a general ed classroom soon to begin transitioning him.

 

Answer: As you likely know the determination of an "appropriate" placement falls on the IEP Team. While written complaints can be filed if the District and/or Team fail to follow proper IDEA and MARSE (Michigan Administrative Rules for Special Education) procedures when the parent and school disagree over the actual determination of what is an appropriate program, that will then be subject to an administrative hearing before an IDEA Administrative Law Judge where each side uses documents and experts to prove what is appropriate. To save money, many districts have eliminated specialty special ed programs. Most replace them with ModCI (moderate cognitive impairment) classrooms as these students who may have a mix of EI (emotional impairment), POHI (physically or otherwise health impaired), LD (learning disability) issues also have lowered cognitive abilities. At this point it appears you need a strong advocate (and maybe an attorney) to review the records to see where you are at and thereafter again approach the school. Michigan Protection & Advocacy has a limited number of professional advocates available at no cost to parents. Their contact information is: Michigan P&A www.mpas.com 4095 Legacy Pkwy #500, Lansing Charter Township, MI 48911 (517) 487-1755. Also, the Michigan Alliance for Families has a number of parents they have trained as advocates. www.michiganallianceforfamilies.org or 1-800-552-4821. A final option is to contact the Michigan Department of Education, Office of Special Education at 888-320-8384 or email mde-ose@michigan.gov. Finally, there are a few paid professional advocates out there. For example, I work with one who is a retired school administrator, He charges for his services and travel expenses. But he charges much less than what an attorney would charge.

 

Question: (Kansas) Can a child who receives special education services for a learning disability also receive Title 1 services? Can you also tell me/show me the law that will answer this question? Thank you.

 

Answer: Some schools do so and others cite to a prohibition within the administration of the federal Title I Act. Contact your state P&A and they should be able to answer your question as to how Kansas operates. Kansas Disability Rights Center, 635 SW Harrison St., Ste 100, Topeka, Kansas 66603, Topeka Voice: 785-273-9661 • Toll Free Voice: 1-877-776-1541 • TDD: 1-877-335-3725
 

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