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Special
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This is written to provide you with our
experience. This information is written based on our experience, the problems
we encountered, the errors we made.
This web site may contain errors of
material facts. It may be inaccurate. Please do not rely on it. We are not
trying to give advice, we are just reflecting our experience so others can
learn from our mistakes.
If you find an error or you have
something to contribute, please send us an e-mail. Please do not send
unnecessary or random comments because we are too busy with our son’s problems.
Why we write. We found too much
information. We found it difficult to identify critical information we needed.
We found it very difficult to learn how to understand our rights, how to
protect our child. We use our web site to keep track of people to contact, web
sites, etc. and we would like to share some of our experience with you.
It is very difficult to have a child with
a disability. Often, we face a wall of bureaucracy and paperwork. It wastes our
time. It wastes our money. It wastes taxes. It hurts our child. We believe that
it is possible to drastically eliminate wasteful paperwork and unnecessary
procedures. There are numerous opportunities to improve the efficiency and
management of our schools.
The money saved would pay for better
education for our kids.
This site is under frequent renovation
and modifications.
Contents:
Federal, State, Discussion, interpretation, conflicts, Part B,
Part C
Forms to use, Suggestions to form completion, Topics to
complain about, Possible remedies, Pitfalls, traps and common errors to avoid,
How to make your best case, Best sites to find info on the Law, Government
officials: web sites, names
Mediation, Due Process Hearing, Appeal to Federal US District Court
Government officials: web sites, names
Federal Level, State of Maryland, Montgomery County Public School (MCPS)
Toys, Software, Educational Aids, Schools, Biochemical Diagnosis, Psychological diagnosis, Other Medical tests, Nutrition
The Law for Special Education
This topic is very confusing. We found the following components
The IDEA law, Sections 600
The USC Title 20, sections 1400 et seq
Code of Federal Regulations CFR Part 300
Each of these are pretty much the same, except the CFR may be more
detailed, as it implements the law
If you see a reference to a section 600 or so, it probably means the
IDEA law. A reference to section 1400 + probably means the US Code; a reference
to 300.xxx it probably means the US CFR
IDEA
'97 Law & Regs
The
Individuals with Disabilities Education Act Amendments of 1997 Public Law
105-17, were signed by the President on June 4, 1997. The Final IDEA '97
Regulations were released on Friday, March 12, 1999. The law and its associated
regulations are available in several different formats, including enhanced
versions that take full advantage of the linking capabilities of the web.
Federal
The actual law as passed by the US
Congress. Often there are many updates and revisions. Laws are numbered
according to the year they were passed. Sometimes there are comments by
Congress that help clarify the intent of the law. These comments help a Judge
interpret the law.
The US Code, which codifies and states
the law. It is basically the same thing as the law, but sometimes it has
slightly different wording. It has different numbers. There is a Title and a
Section. The IDEA is US 20 (title) section 1400 +
Federal Regulations, published in the
Code of Federal Regulations (CFR).
Annotations and comments on the CFR.
Before a regulation becomes public, it is often published and publicly
discussed. The government usually receives thousands of comments. Many of these
comments are further discussed by the government and incorporated in the final
version of the regulations. The government’s comments and discussion help to
interpret the regulations. These comments help a Judge interpret the law.
State
At the State level, one may have a
similar situation
State Laws
State Code
State regulations
There may also be Local (i.e., City or County) laws or regulations.
Maryland State regulations can be found at COMAR
Maryland State statutes can be found at
The Law - Parts A - D
Individuals
with Disabilities Education Act Amendments of 1997.
Part B
= Children > 3 (generally), public school
= US Code
= Regulations Part 300, 301
Part C
= Children < 3. Infant and Toddlers. Not public school.
= US Code
= Regulations Part 303
The Statute
US Code
sections 1400 and subsequent
The Final Regulations
Part
300
Assistance
to States for the Education of Children With Disabilities
*
Section Index
* Topic
Index
*
Glossary of Definitions & Acronyms
Part
301
Preschool
Grants for Children With Disabilities
Part
303
Early
Intervention Program for Infants and Toddlers with Disabilities
Part
304
Special
Education--Personnel Preparation to Improve Services and Results for Children
with Disabilities
Additional Part 300 (regulations) Materials Provided by OSEP Office special education Programs, US DOE
Overview
Summary
of Major Issues
Discipline
Q & As
Training
Overheads
Part
300 Topic Briefs Provided by OSEP
1.
Introductory Comments
2.
General State and District-wide Assessments
3.
Regular Education Teachers as IEP Team Members
4.
Graduation with a Regular Diploma
5.
Discipline -- Changes from Proposed Rules
6.
Children with ADD/ADHD
7. Use
of "Developmental Delay" by States and LEAs
8.
Definition of "Day; Business day; School day"
9.
Public Charter Schools
10.
Parentally-placed Children in Private Schools
11.
Removing all NPRM "Notes"
12.
Provisions of Special Interest to Parents
13.
Provisions of Special Interest to Teachers
14.
Provisions of Special Interest to Administrators
Discussion, interpretation, conflicts
Often there is a conflict between the
myriad of laws and regulations. Which one is more important or how is the
conflict resolved? Sometimes it is argued that a regulation is not valid or is
illegal. It may not be valid because it was not properly implemented. It may be
illegal because it contradicts other laws or for other reasons. Fortunately,
for most special education regulations, the answer is simple: federal laws and
regulations are imposed by contract upon entities receiving federal funds.
Laws are passed by the Federal Congress,
or by State Legislatures.
The general rule is that a regulation,
properly implemented, has the force of a law.
When there is a conflict, Federal Law usually
supersedes State Law. This issue may be disputed in some cases, because the US
Constitution provides the states with certain rights that cannot be overcome by
Federal Law.
However, in the case of Education
issues, we are often dealing with a separate matter.
Quite often, the Federal Government
provides funds (money) to the States or Local governments or Local agencies
(such as a school system). Money can be provided as a Grant or as a Contract.
The difference between a Grant and a Contract involves the manner the funds are
provided, the reporting requirements, the level of supervision by the
government, the output expected. Usually, in a contract, the government buys a
specific product and expects a specific output. For example, a contract may be
to build a bridge, or buy 10 airplanes. In a grant, the government often pays
for the provision of services where the outcome is less well defined, such as
research on cancer, or special education for children. The outcome is not a
“product”, like a bridge or an airplane, but a public benefit such as research
or better education for children.
Whether it is a grant or a
contract, the Federal Government imposes many restrictions and conditions
before an organization can receive and spend federal funds. The conditions and
restrictions vary according to the purpose and type of grant or contract.
However, there are many common elements that are important when dealing with
education services:
·
All the agreements between the Federal government and
any other entity, be it a state or a school, are CONTRACTS. That means that
both parties agree to them. Both parties have responsibilities. Both parties
must comply with the terms of the CONTRACT or agreement.
·
Sometimes the
Federal government gives money to the State, and the state gives out the money
to other entities, such as schools or companies. The terms of the CONTRACT
often require that the recipients of the federal funds comply with the terms of
the contract and the requirements of the contract.
Example: The federal government requires that federal funds be used in a manner
that does not discriminate on the basis of race or disability. If the money is
given to the State, the state cannot discriminate. If the State gives the money
to a school or another contractor, such school or contractor cannot
discriminate. Otherwise, the state would avoid its obligation not to
discriminate by giving the money to groups that discriminate.
Often, ignorant organizations believe that, once they receive the federal
funds, they can do whatever they want with the money. Or they believe that,
because they receive the money indirectly (such as from the state instead of
directly from the federal government), that they can use the money as they
please. That is not the case.
·
The entity that receives
federal funds signs a contract with the Federal Government. At least one
person, sometimes several people, certifies that they intend to comply with the
requirements of the contract, including its restrictions. The individuals who
signed the contract are responsible to insure that the terms of the contract
are not violated. People who violate the terms of the contract may be
considered to be misappropriating money and could be subject to substantial
penalties.
·
Common contract requirements or restrictions include:
That the money be spent only for certain specified purposes (from time to time
you may read in the papers about an organization that cannot account for its
expenses because it improperly spent the money and it can be seriously liable
for misappropriation of money);
That the money be spent without discriminating on the basis of race, sex,
disability, religion and other explicit facts;
That proper accounting be made of the money spent;
That certain services or products are to be provided within certain time
limits, and certain reports are to be made to the Federal government;
That the entities or individuals receiving federal funds comply with a wide
range of federal rules and regulations, whether they like them or not.
A substantial amount of education money
comes from the Federal Government. Most of the funds used for Special Education
come from the Federal Government. As a condition of receiving federal funds,
the States and Local education agencies must comply with Federal Laws and
Federal Regulations.
This is very important. Many states have
their own laws or regulations. Although in a different situation, the state
laws or regulations could take precedent over the federal laws or regulations,
in most grievances about special education, the states and local schools must
comply with Federal Law and regulations because they signed a contract saying
that they will comply. Otherwise, they will likely be in violation of the
contract and misappropriating federal funds.
There are severe penalties for misappropriation of federal funds, particularly
for intentional violations of the contractual agreements. Using the telephones
and the US mail to participate in a scheme to defraud the federal government
could make individuals and organizations liable under RICO. RICO is the law you
hear the “Mafia” guys talk about. It is not just illegal for gangsters to seal
money or dump dangerous chemicals and ruin the environment. It is also illegal
to misappropriate or steal education money, or use federal funds for purposes
different than their intended purpose.
So, if you know that a school official
is using federal funds for improper purposes, that matter should be reported.
Part B
Part B usually deals with children ages
3 to 18, but there are many exceptions.
These sections of the law go under many
different names
Part C
Part C usually deals with children under
age 3, but there are many exceptions.
These sections of the law go under many different names
Transitions
There are at least two transition periods
From Part C to Part B, when a child becomes 3 years old
From Part B to life, when a child graduates from high school or is old and becomes independent
There is confusion about the requirements for each part.
Infant and Toddlers, Part C, is supposed to prepare a transition
plan
Public School, Part B, is also supposed to prepare a transition
plan consistent with the one of Part C.
Individuals from all these systems should get together and create
a transition plan.
They must also create + implement the IEP before age 3
It also appears that they must provide in the transition plan the
transition services, that is, how the child will go from Part C to Part B.
These plans are individualized, so a child may stay longer in Part C even if he
is over 3, or transfer sooner to Part B if he is under 3.
That is the way we understand the law. We found no Court cases on
these matters.
Grievance Procedures
Complain to the appropriate officials.
Request Mediation (which is optional for
both sides)
Request a due process hearing (which
usually must be allowed)\
File appeals
Mediation
Forms to use
For Montgomery County Public Schools, Maryland:
Mediation/due process form page 1
Mediation/due process form page 2
Suggestions to form completion
Topics to complain about
Possible remedies
Pitfalls, traps and common errors to avoid
How to make your best case
Best sites to find info on the Law
Government officials: web sites, names
Due Process Hearing
COMAR 13A ; 28.02.01
Forms to use
For Montgomery County Public Schools, Maryland:
Mediation/due process form page 1
Mediation/due process form page 2
Suggestions to form completion
Topics to complain about
Possible remedies
Pitfalls, traps and common errors to avoid
How to make your best case
Best sites to find info on the Law
Government officials: web sites, names
Appeal to Federal US District Court
http://www.supremecourtus.gov/
http://www.uscourts.gov/districtcourts.html
http://www.uscourts.gov/
http://www.mdd.uscourts.gov/ District Courts Maryland
http://www.mdd.uscourts.gov/WebDataPages1/displayForms.asp
Forms
Forms to use
Suggestions to form completion
Topics to complain about
The issue to decide is the types of
claims to make. What types of violations are alleged? Under what law?
The decision involves a balance of
costs, benefits and risks. The more violations you allege, the more likely that
you can collect better benefits. However, that takes more time to prepare, more
possibility of making errors, and raises the specter of sanctions.
Complex cases most likely require a
lawyer. Lawyers may not accept the case on a contingency basis. They also make
mistakes and may not devote enough time to the case. Changing lawyers is very
difficult.
In general, the legal system is biased
against small plaintiffs. The cost of litigation is huge.
If you merely appeal an administrative
hearing, there is probably little additional discovery and you may not be able
to introduce new evidence or witnesses.
If you file under other laws, you may be
able to obtain substantially more discovery that can help your case. This is important
if the school or state failed to respond to your inquiries, or they provided
fairly empty answers to your letters.
The school and the state have
professional lawyers who spend their time in litigation. They know how to use
the system and the rules against parents. And they will use the system and the
rules, by citing appropriate rules of procedure and seeking to enforce them
against the parents. A mistake and your case may be dead.
They have access to libraries, staff,
copiers. And they keep doing the same thing over and over, meaning they learn
from past mistakes.
Possible remedies
Pitfalls, traps and common errors to avoid
How to make your best case
Best sites to find info on the Law
Government officials: web sites, names
http://www.supremecourtus.gov/
http://www.uscourts.gov/districtcourts.html
http://www.uscourts.gov/
http://www.mdd.uscourts.gov/ District Courts Maryland
http://www.mdd.uscourts.gov/WebDataPages1/displayForms.asp
Forms
Administrative hearings
http://www.oah.state.md.us/Library/Maryland%20Law.htm
http://www.oah.state.md.us/default.htm
Maryland regulations, COMAR
https://constmail.gov.state.md.us/comar/dsd_web/default.htm
Best sites to find info on the Law
On March 12,
1999 (64 FR 12406), the Secretary published final regulations for the
Assistance to States for the Education of Children with Disabilities program.
Appendix B to those regulations, entitled ``Index for IDEA--Part B
Regulations,'' was included as a technical assistance document to enable
readers to locate quickly (by section number and paragraph) the specific
requirements related to key topics in the regulations.
IDEA
regulations. Complete.
http://www.ideapractices.org/law/regulations/index.php4/17/02
Legal
cases. list of relevant cases.
Read and
search by topic
http://www.ideapractices.org/law/litigationLog.php#60
Federal
Statutes
http://www4.law.cornell.edu/uscode/ Search entire US code.
Government officials: web sites, names
Find the
law federal
http://www.findlaw.com/
Federal Level
Department
of Education
400
Maryland Ave., SW
Washington,
DC 20202
202-401-2000
Special
Education
Organizational Chart.
http://www.ed.gov/index.jsp
Offices http://www.ed.gov/about/offices.jsp
OSEP/MSIP
STATE CONTACTS
PART B AND
PART C
MARYLAND
PART B CONTACT:
MICHAEL SLADE 202-205-8969
PART C
CONTACT: ALMA MCPHERSON 202-205-8947
TEAM
LEADER:
LOIS TAYLOR 202-205-2776
State of Maryland
Office of administrative Hearings
http://www.oah.state.md.us/Library/Maryland%20Law.htm
Montgomery County Public School (MCPS)
Department
of special education
http://www.mcps.k12.md.us/departments/specialed/
Administrative
review and mediation, a guide
http://www.mcps.k12.md.us/departments/specialed/equity/arm.html
The
Superintendent's Advisory Committee on Special Education is comprised
of parents, MCPS staff, and representatives of Montgomery County community
groups that advocate for children with special needs. The committee meets the
fourth Thursday evening of each month, from 7:00-9:30 p.m., at Rock Terrace
School, located at 390 Martins Lane, Rockville (adjacent to the Board of
Education offices). The public is welcome to attend these meetings, and public
testimony/comments will be heard each month.
Other Useful information
Toys
Software
There are hundreds, perhaps thousands, of computer programs
aimed at normal children and children with disabilities. It is practically impossible
for parents to evaluate all of them, or even evaluate a few. Evaluating a
computer program is a very difficult task that requires expert evaluators and
common users (children). However, our experience with more than 10 programs has
been poor. We found software poorly written and mildly effective for its
intended purposes. There is a need for far better software.
The best programs that we liked are:
The worst programs that we did not like are:
Educational Aids
Schools
Biochemical Diagnosis
Psychological diagnosis
Other Medical tests
Nutrition
Contact us
Please write with specific comments on things you did that
worked for you. Services you are receiving from the state and how you got them.
Help you can provide to help other kids.
We are particularly interested in hearing from parents with
children who cannot speak or communicate at their age-appropriate level. We
believe that much more can be done to prevent brain disorders, to diagnose and
treat them in children.
Write to:
Dr. Siguel c/o Special Ed
PO Box 10187
Gaithersburg, MD 20898
Send comments to: mdchildren@hotmail.com
Your comment or suggestion should include the following
information
Subject heading of the e-mail = special ed
Your e-mail
Your name/address
Name the topic that you are addressing
Your skills, how you can help us improve the education of
children.
Comments on problems and solutions
Please be short to the point.
A statement as follows
I agree to have the information in this communication (e-mail,
letter, etc.) posted in Dr. Siguel’s web site. I transfer all intellectual
rights and copyrights that I own or may own in this material to Dr. Edward
Siguel (This is needed to have it posted on the web site.). I keep the right to
use my material for my own future purposes.
Your name, signature
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© 2002 Edward N. Siguel. All rights reserved |
modified 4/27/02 |