Connecticut Education Lawyer & Attorney : Berchem, Moses & Devlin Law Firm : CT Public Schools

The newly proposed administrative regulations from the State Department of Education on the subject of seclusion and restraint of special education students were published in the Connecticut Law Journal on July 15, 2008, so they are now officially open for public comment for a 30-day period until August 15, 2008.  A public hearing has also been scheduled for Tuesday, August 19, 2008 from 9:30 a.m. to 3:30 p.m. at the SERC Classroom, 25 Industrial Park Road, Middletown, CT.  Views and arguments may be submitted in writing to Attorney Theresa DeFrancis, Education Consultant, Bureau of Special Education, P.O. Box 2219, Hartford, CT 06145.

A full copy of the proposed regulations can be obtained by clicking here.

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If you have the patience to click on each individual numerical link on the State Department of Education website under Special Education Due Process Hearing Decisions, you too may be able to discern the following statistics from the 2007 hearing decisions.  These numbers are based on only those cases filed in 2007 that were also decided in 2007; it will not include those that were filed in 2006 and decided in 2007, or those filed in 2007 and decided in 2008.  None of the 2008 decisions have been posted yet.

Number of cases filed and withdrawn or dismissed due to settlement: 154

Number of cases filed by parents and dismissed on motion from the board: 6

Number of cases decided "on the merits": 15

Of the cases decided "on the merits", number decided in favor of boards: 9

Of the cases decided "on the merits", number decided in favor of boards where the parent was not represented by counsel ("uncontested cases"): 5

Remaining decisions in favor of boards in "contested cases": 4

Of the cases decided "on the merits", number decided in favor of parents: 4

Split decisions (part of ruling in favor of board, part in favor of parent): 2

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Two Historic Law Firms Join Forces to Become Pre-eminent Connecticut Firm

Two of the oldest law firms in Connecticut have joined forces in a move that will create one of the most comprehensive legal services businesses in the state. Berchem, Moses & Devlin, P.C. and Wake, See, Dimes, Bryniczka & Bloom (of Westport, Conn.) have combined their practices, as of March 1, 2008, resulting in a staff of nearly 30 attorneys covering 14 different law specialties. The new firm will operate under the name of Berchem, Moses & Devlin, P.C., and will maintain existing offices at 75 Broad Street in Milford and 27 Imperial Avenue in Westport.

Areas of practice at Berchem, Moses & Devlin include education law, business and commercial law, labor and employment, civil litigation, land use, estate planning, and real estate law. The newly combined firm will have a particular strength in education and municipal law.

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If the last few days are any indication, it promises to be a busy season for the General Assembly, particularly at the Committee on Education.  Multiple bills have been raised in both the Senate and the House pertaining to education of school-age children, and most of these have been referred to the Education committee. While by no means an exhaustive list, here are a few of the more interesting bills submitted to the committee or raised by the committee so far this session:

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The Connecticut State Board of Labor Relations recently issued a decision, Region 16 Board of Education, Decision No. 4270 (2007), in which it held that a unilateral change in the workload of Special Education Teachers constituted a prohibited practice. In doing so, the Board created an exception to the general rule that a unit wide fixed practice must be demonstrated in order for a union to establish a unilateral change based upon prior practice. 

Generally, it is an unfair labor practice for an employer to change a term or condition of employment in the face of a unit wide fixed past practice. Accordingly, where there has been a mixed practice, unions have been hard pressed to prove a violation. 

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In 2004, the IDEA was amended to provide for the possibility that school districts and state educational agencies might be able to collect attorney's fees from parents and parent attorneys if the due process complaint or subsequent litigation was found to be "frivolous, unreasonable, or without foundation".  Apparently, the courts have found one case that falls into that category and have awarded attorney's fees to a prevailing state educational agency. 

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Do you have students placed in out-of-state residential (boarding) schools by parents?  If so, this OSEP guidance letter may be of interest to you, particularly if some of those students are in Massachusetts and the state or the school has previously sent the parents back to you for evaluation if there was a potential special education issue.  In a letter directed to the State Director of Special Education, Letter to Mittnacht, 48 IDELR 194 (OSEP 2007), OSEP Director Alexa Posny indicated that the plan submitted by Massachusetts for compliance with IDEA 2004 may not be in compliance with the federal law.  Specifically, it appears that parents of students placed in Massachusetts residential and boarding schools who have attempted to refer those students for initial special education evaluations may have been told that the local school district will not conduct the evaluation if the student was an out-of-state resident.  Ms. Posny politely pointed out that this may conflict with 34 C.F.R. 300.131(f), which requires the local school district to take responsibility for child find, even if the student is a resident of another state, like Connecticut.

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Have you heard from some parent advocates that "there is no IEP" for a special education student unless the parent has agreed to the plan proposed by the school district?  A recent ruling by the United States Court of Appeals for the Second Circuit reaffirms that an IEP does, in fact, "exist" as a legally recognizable document at the time that it is proposed by the school-based members of the IEP team, and the right of the parents at that point is to exercise their procedural safeguards and request a due process hearing if they disagree with the IEP proposed by the school.

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The United States Supreme Court has denied a petition to review the decision of the United States Court of Appeals for the Second Circuit in the case of Board of Education of Hyde Park v. Frank G., 459 F.3d 356 (2d Cir. 2006).  Reviewing this case would have allowed the high court a second chance to review arguments similar to those made in the Tom F. case reported earlier, in which the justices deadlocked in a 4-4 decision over whether parents of children with special education needs are entitled to obtain reimbursement for unilateral private placements made in cases where the child has never received services from the public school district.  Since the Supreme Court seems unwilling to take a second shot at reviewing these arguments, litigation in the remaining circuits that do not have decisions on this issue seems inevitable.  Could Congress resolve this issue through legislation enacted during the expected 2009 reauthorization of the IDEA?  The time may be right for individuals, school districts and lobbying groups with an interest in this issue to organize their lobbying campaigns to go to Washington in 2009.  If not resolved by legislation, the composition of the Supreme Court when this issue comes before them again could influence the outcome.  Think about that when you go to the polls in the 2008 Presidential election....

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The Supreme Court issued a highly anticipated decision in the case of Board of Education of the City of New York v. Tom F. ex rel. Gilbert F., 107 LRP 58890 (U.S. 2007), but disappointed all court-watchers by failing to rule on the merits of the case.  After an impartial hearing officer in New York awarded a family reimbursement for a unilateral placement of their child in a school for children with learning disabilities based on the school district's procedural error of failing to include all of the necessary participants in the IEP meeting, the federal district court in New York reversed the hearing officer, concluding that the family was not entitled to such reimbursement because the child had never received special education services from the school district before being unilaterally placed by his parents in a private school.  The United States Court of Appeals for the Second Circuit vacated the district court's ruling and remanded the case to the district court in light of its recent ruling in the case of Board of Education of Hyde Park Central School District v. Frank G. ex rel. Anthony G., 459 F.3d 356 (2d Cir. 2006), that reimbursement is not restricted so long as the school district has failed to provide FAPE and the parents have provided appropriate notice of their intent to make a unilateral placement.

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Public Act 07-147, which took effect October 1, 2007, makes sections of the Connecticut General Statutes concerning the use of seclusion time out and physical restraint previously applicable only to institutions operated by the State and special education schools, now applicable to local and regional boards of education as well.  All children receiving special education services or who are being evaluated for eligibility for special education services are now defined as "persons at risk" under Section 46a-150 of the Connecticut General Statutes.  Local and regional boards of education must now incorporate any use of seclusion time out or physical restraint into a child's IEP and comply with the reporting requirements and parental notification requirements of these statutes.

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New guidance issued by the Office of Special Education Programs (OSEP) of the U.S. Department of Education indicates that if a Functional Behavioral Assessment (FBA) is conducted in order to determine behavioral supports and services required for an individual child, that FBA constitutes an "evaluation" under IDEA for which parental consent is required.  According to OSEP, the only situation in which parental consent would not be required for an FBA would be if the FBA was being conducted with respect to the whole school to assess the effectiveness of behavioral interventions general, and was not directed at any specific student.  This is a significant change of direction for OSEP, since previous guidance and cases decided in this area had suggested that an FBA should be considered either a teaching methodology or consistent with general ongoing observation of a child's behavior and data collection, neither of which would constitute an "evaluation" requiring parental consent.  Following this guidance, parents may now claim entitlement to an independent FBA if they disagree with the FBA conducted by the school district, since the FBA is now considered an evaluation, triggering the independent educational evaluation (IEE) procedural safeguards.  A copy of the OSEP letter can be found at Letter to Christiansen, 48 IDELR 161 (OSEP 2007).

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The U.S. Supreme Court has ruled that the Individuals with Disabilities Education Act (IDEA) grants parents independent legal rights which encompass the entitlement to a free appropriate public education (FAPE) for their child.  The decision means that non-attorney parents can litigate IDEA claims in federal court unrepresented by legal counsel, because they are acting on their own behalf. Significantly, the Court side-stepped the question of whether IDEA authorizes a parent to litigate another party’s (the child’s) claims. 

In this action, Jeff and Sandee Winkelman sued their child’s school district after an administrative hearing officer rejected their claim that their son’s individualized education program (IEP) failed to provide him with FAPE as required by IDEA. As the case went on, the Winkelmans proceeded without an attorney. The district court agreed with the hearing officer that the school district had provided their son with FAPE, and the parents appealed to the Sixth Circuit. The Sixth Circuit held that IDEA does not authorize parents to appear pro se on behalf of their child, a question on which other federal courts were divided.

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On March 8, 2007, Interim Chief of the Bureau of Special Education Dr. Nancy Cappello issued her Proposed Revisions to the State Special Education Regulations.  Subsequent inquiries to the State Department of Education (SDE) have yielded no announcement of dates when public comments will be accepted concerning the Proposed Regulations.  However, numerous groups and individuals around the State are in the process of reviewing the proposals and compiling commentary to be submitted when the time is right.  Discussions with school personnel in our area of the State suggest that a number of the proposals merit further discussion. 

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Responding to requests for clarification of the new 2006 IDEA regulations issued in the area of student discipline, OSERS issued non-binding guidance entitled "Questions and Answers on Discipline Procedures", found at 47 IDELR 227 (OSERS 2007).  In this commentary, OSERS states that the "2004 amendments to section 615(k) of the IDEA were intended to address the needs expressed by school administrators and teachers for flexibility in order to address school safety issues balanced against the need to ensure that schools respond appropriately to a child's behavior that was caused by, or directly and substantially related to, the child's disability." 

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