Did you miss our chat with Matt Cohen? Read the transcript of this exciting and informative chat.

To stay informed about monthly Expert Chats and other CABF events, join our mailing list by entering your email address and zip code in the box in the top right corner of the website.

                               
                               Biography

Attorney Matt Cohen is co-founder of the law firm Monahan and Cohen and is well known for his work in special education law. He has extensive experience in health care and mental health law and recently authored the book “A Guide to Special Education Advocacy - What Parents, Clinicians and Advocates Need to Know”.

Attorney Cohen can be reached via email at mdcspedlaw@earthlink.net. 

Nanci - CABF    
We are very pleased to welcome our guest, Matthew D. Cohen to our chat today. The information shared is not meant to be legal counsel and should not be taken as such. Attorney Cohen will be speaking primarily from the perspective of federal legislation but will try to share state specific resources or differentiate between state and federal laws whenever possible.
 
Attorney Cohen, could you start by telling us what prompted you to write your book?

Matthew Cohen
Sure. I have been working with children with disabilities and their families for over 25 years.  The law is very complicated and many families feel overwhelmed by all the rules and procedures.   In addition, the law changes regularly and is confusing. Many times, the schools do not provide parents with accurate information about the programs they offer or about their rights.

I do lots of speaking about these issues around the country. Everywhere I go, families feel frustrated and express a need for more information about how to better advocate for their children. This book was my effort to provide a more in depth and understandable source of information for parents to use to help them to get appropriate services. It can be ordered through our website at http://www.monahan-cohen.com/ or by calling our office at 312-419-0252.

Nanci - CABF   
You brought up the point that schools don't always offer full information about programming and legal rights. How much is it the parent’s responsibility to figure out the laws vs. a schools obligation to let families know what they are entitled to? 

Matthew Cohen
Unfortunately there is no "right" answer, as the law is complicated and can be interpreted many ways.   However, the school is obligated to provide parents with annual notice of their overall rights (if their child is already in special education). There are many specific rights that apply in a given situation and schools are required to explain those rights to parents in relation to the particular issue.

For example, if a parent requests that their child be evaluated the school must give the parents a response, the reason for the decision, and the recourse the parents have if they disagree with the decision. Many of the steps in the special education process have rules specific to those steps. However, the rules are complicated, and sometimes the school staff may not even be fully aware of all the rules. In addition, the school is not obligated to provide a full explanation of all of the safeguards in every interaction. So there is a disconnect between the school's broader obligation to inform parents and their obligation in a specific situation.

That is why it is so important for parents to have some awareness of how the law works without just relying on the school for information. If the parents have questions they are always allowed to ask the school to provide a full copy of all of their rights. This can also be obtained from the state department of public instruction or state board of education (or whatever the name is in the particular state).

eeyore16    
What can a parent do if the school continues to call the police liaison when the child is having outbursts and the parent is working and cannot leave work to get the child?

Matthew Cohen    
Technically, the school is allowed to involve the police is they feel a crime has been committed. However, they often involve the police unnecessarily or just to scare the child or have greater control. If problems are recurring and particularly if the police officer is being brought in a lot, the parent should ask whether the child's needs have been appropriately evaluated whether they have been getting appropriate or sufficient services, and whether there may be a need for a Functional Behavioral Analysis and Behavior Intervention Plan.

With a good analysis and behavior plan, and adequate emotional and behavioral supports, it should be less necessary to either call the police officer or the parent. The behavior plan can also provide a hierarchy of interventions, which can spell out what the school can/should do under different circumstances. Hopefully, a number of positive and/or more limited interventions should be available (and hopefully implemented in an effective way) so that calling the police, if needed, is far down the list of steps.

Whether calling the parents should be encouraged or discouraged is complicated. On the one hand, you don't want them calling you every time there is a minor problem that they should be addressing internally. On the other hand, if there is either a pattern of problems or a single serious problem, and particularly if the school does not seem to be managing it well, the parent may want/need to be called, in order to assure that they are aware of what is happening and can try to protect their child's interests.

Nanci - CABF   
I have a question from a discussion that several of our volunteers had the other day regarding signing IEPs. It seems that there is considerable variation between states as to whether or not parents should or must sign the IEP.  Is there any reason for this and are there any legal constraints that come with not signing an IEP?

Matthew Cohen    
There is variability in relation to this, so it is important to check your state's regulations about this. However, in most states, the parents' signature is relevant only in relation to 1) when the parent is asked to consent to an evaluation; 2) when asked for initial consent to the child being made eligible for spec education; 3) when asked for consent for a reevaluation.

In most states, the parent’s signature at the IEP meeting only signifies documentation that they were present and/or received specified documents listed by their signature. However, some states require the parents to sign the IEP, indicating they agree with it. In other states, where this is not the case, parents sometimes think that if they don't sign the IEP, it isn't legally effective or binding. Unless the state specifically requires parent signature, the refusal to sign does not limit the school's right to implement the IEP. In these situations, the parents' recourse is to request a due process hearing.

If the school is proposing to change the child's placement and the parent disagrees with that proposal, if they file a request for hearing right away (in the time period specified in state law), the child generally stays in the placement provided for in the last agreed upon IEP. However, there are some exceptions to this in situations where the child is being moved for serious disciplinary problems to an interim alternative placement. Parents should never assume that refusing to sign means the school cannot do what the parents object to.

However, under a recent amendment to the regulations, the parents do now have the power to withdraw their child from special education altogether. This is a very serious decision which may make sense under some circumstances, but also has very serious risks, including the loss of all special education services and the loss of the procedural protections provided by the special education laws. If the parents remove their child from special education eligibility, they cannot complain about the school's failure to provide their child a free appropriate education during time the parents withdrew the child.

Molly    
Can you talk about how I can demonstrate an "appropriate" placement? My daughter is currently in a "non-public placement", i.e., private school, but it is paid for by the public schools. The problem is that the school is really geared toward autism-spectrum disorders (my daughter is the only one with BP). Plus the school is REALLY small (only 25 kids) and thus she is one of only 3 girls. Can I make a case that this is not an "appropriate" placement? Do you have any tips?

Matthew Cohen    
I can't give specific legal advice, but there are several general principles that are relevant to whether a child is receiving an appropriate education. First, court interpretations generally state that the schools are not obligated to provide the best possible education but are required an education that is designed to allow the child to achieve meaningful benefit from the experience. Evidence to suggest that the child is not making progress or is experiencing serious difficulties within the program would be helpful in demonstrating this. Sometimes, it is helpful to look at the child test data, grades, behavior reports, and IEPs to track whether they are progressing, both academically and behaviorally.

In addition, sometimes it is useful to get outside evaluations from experts in the areas of the child's disabilities to assess the extent of their needs, how they are progressing and what is needed (and what is undesirable) in the program they should have. This also must be considered by the school, though it is not binding. In addition, under the IDEA 2004 amendments (to the federal special education law) the schools are required to provide programs that are based on scientific research to the extent practicable.

One issue to explore is whether the program the school is providing is based on research. This is something an outside evaluator might also address. There may also be research on the problems that you are describing that would show that the way the program is set up is contrary to the research. For example (and I don't know if there is research that says this), if research showed that it is undesirable for kids to be isolated in a class predominantly or exclusively composed of kids of the opposite gender, that might also demonstrate why the program was not appropriate.

Learning    
We live in Illinois, our daughter has been in a Delaware school for the past six months. She graduates 8th grade next week. She is AD/LD with some bipolar tendencies. We plan on sending her to a school in downstate Illinois. Is there any way we can obtain financial support for the school part from our local high school district?

Matthew Cohen    
Again, I can't give specific legal advice. However, there are several broad concerns. First, unless the student is enrolled in the school system (even if they are not attending), the school is not obligated to develop an IEP for them. Unless the school has the chance to develop an IEP for the student, there is little basis to argue that the school does not have an appropriate program and that the private school is necessary.

If the private school was paid for by the elementary district previously, the high school district may be obligated to maintain the prior program until it has had the opportunity to evaluate the student and develop its own IEP, but it is not permanently bound by the IEP it inherits from the prior district. If the new district refuses to fund the program, the parent has the right to request a hearing to challenge the refusal.  However, since she is moving to a new private school, the stay put placement provisions I described earlier may or may not apply.

In any case, if a parent is considering making a placement in a private school because they do not believe the public school has or can offer an appropriate program, and they want the public school to pay for the private program, the parent is supposed to give the public school advance notice of the intention to make the private placement, that they are doing so because they don't think the public school is offering an appropriate program, and they want the public school to pay. This notice must be provided either in writing ten business days before making the private placement or at the most recent IEP meeting before the child is privately placed. 

Giving this notice does not guarantee that the public school will pay for the private placement, but not giving the notice gives the public school a defense that may allow them to avoid paying when otherwise, they might have been held responsible. When parents make these sorts of placements, they need to be aware that they are taking a risk that they will be financially liable for the full cost of the placement and may not be able to get funding from the district, even for the educational portion of the placement.

Blueyeliz    
My son's school (he is a high school sophomore) refused to do a real evaluation because they said he is "obviously really smart and just doesn't do the work". I specifically asked about executive function deficit and they shrugged. He is consistently failing, though clearly high intelligence. They eventually agreed only to a 504, which I don't think is working. He is failing almost every class. What now? (Diagnosed ADD & clinically depressed).

Matthew Cohen    
First, if you have private evaluations that document the problem, you obviously want the public school to consider them. They are obligated to consider them, but are not bound by them. However, if he is smart, but not doing the work, they have an obligation to figure out why, rather than just assume he is unmotivated.

If you made the request for him to be evaluated in writing, they are obligated to inform you in writing of the reasons they are refusing and of your right to seek a due process hearing to challenge the refusal. You can also seek to have a better 504 plan. If they refuse that, you also have a right to a hearing under Section 504. In either case, the school appears to be taking a narrow view of disability.

The law makes clear that the student's intelligence and/or ability to obtain passing grades or getting good scores on achievement tests should not be used as the only measures of whether the child has a disability. The school is supposed to evaluate the child's academic, developmental and functional performance. This should include problems such as disorganization, planning issues, impaired time management, etc. 

If you are unsuccessful in getting the school to acknowledge that these issues can be their responsibility, you may need to consult with a knowledgable special education advocate or attorney about what you can do to address this with the school.

toni    
My child was removed from school by his doctor for his outbursts. The doctor wanted him out so we could strip him of his meds and start over. He requested that the school home school him but they wanted to only half day him, which was NOT a possibility. Now they are taking me to court for it. Is there anything I can do?

Matthew Cohen    
First, there are rules about attendance that are state specific, so you need to consult your state's rules regarding compulsory attendance and their rules regarding medical authorization for homebound services. As they are threatening legal action, you should also seek legal help immediately. In general, if a doctor determines that a child cannot be at school for medical reasons, this is usually sufficient to satisfy the school, further, it should generally be a basis for the school to provide some form of home-based services (as provided by state law) and would satisfy some judges that the parent was acting according to medical advice.  However, every situation like this is different and the outcomes are unpredictable so it is wise to get legal help.

stamps4kris    
Can an IEP include educating staff on my child's disorder (bipolar)? My son is in a regular public school (self-contained class) but the teachers/social workers are inconsistent, engage in power struggles daily with him, send him to the office, look at him putting his head down as a "negative" and just don't seem to have a clue.

Matthew Cohen    
Absolutely, though this is easier said than done. Actually, the federal law provides not only that the school should provide the supports that the student needs, but also that they should provide the supports that the staff needs in order to implement the IEP effectively. This can include staff training, additional staff support or intervention, consultation from an expert, and other strategies. However, the school has to agree that it is necessary in order for it to get written in to the IEP.

Obviously, schools may be reluctant to admit that their staff is not adequately trained or carrying out the IEP appropriately, so this is not always easy. However, if you make the request and the school refuses, it may put you in a better position to make the argument later if the problems continue.

In addition, it is complicated because if you raise these concerns at the IEP meeting it is quite likely that some or all of the school staff will become insulted or defensive which creates complications of its own. So you have to both decide how bad things are and whether there is no choice but to force the issue at the IEP meeting. In any event, it is best to try to present the need/concern in as positive and non-personally attacking a manner as possible.

Sometimes, it may be helpful to talk with the administrator privately, either before or after the IEP meeting, to try to raise the issue in a way that still allows a solution where the staff saves face. However, if you do this, you also want to make sure that you are documenting the concerns you are presenting to the school, so that they can’t claim they didn't know about them at a later date.  If friendly efforts have not been successful, it is sometimes necessary to raise these issues directly at the IEP meeting. However, these situations also suggest the value of getting consultation from a knowledgeable special education advocate or attorney.

genejeanie    
What's the best way to gain permission to tape an IEP meeting if you're the parent (& not disabled or ESL)?

Matthew Cohen    
The law varies from state to state, but generally mutual consent is required. It may help to offer to provide a copy of the tape to the school or to explain reasons why the taping is beneficial that are not focused on lack of trust or intent to use the information as evidence later but there is no magic way to do this. It depends on the state law, the people involved and the circumstances.

Kylesmom
Our son has considerable difficulty with school refusal due to his instability (diagnosed with BP).  We’ve been told by our district that getting our child to school is our problem and is due to his ‘medical’ condition.  Are they correct or do we have any recourse to consider an alternative placement that may help to address the school refusal?

Matthew Cohen    
School refusal is something that impacts the child's ability to participate and benefit from school. If due to the child's disability, it should be evaluated and plans should be developed to address it. Those plans may involve the need for private school or an alternate setting, though that doesn't automatically follow, nor should it.  Ideally, there should be a plan that examines the things that are triggering the refusal and develops interventions to address those problems. That may require an alternate setting, but if it can be done well in the regular school, all the better.

Nanci - CABF   
Thank you so much for sharing your time and expertise with us. You've covered a tremendous amount of material and we very much appreciate having you as a guest.

Matthew Cohen    
Great.....folks wanting more information can find it on our website, http://www.monahan-cohen.com/  or in my book....also can find a list of upcoming presentations I am doing. Good luck to all.