Thursday, October 13, 2016

Revisions to the Americans With Disabilities Act (ADA)

Revised ADA regulations should ensure that more students with disabilities qualify for a 504 even if they did not before.  Effective October 11, 2016, the Americans with Disabilities Act (ADA) Amendments Act of 2008 (ADA Amendments Act or the Act), which took effect on January 1, 2009 was amended broadening coverage to more individuals with disabilities.  New sections were added to Title II and Title III of the ADA regulations to set forth the proper meaning and interpretation of the definition of “disability” and to make other related changes required by the ADA Amendments Act in other sections of the regulations.
The revised regulations expand the definition of “major life activities” by providing a non-exhaustive list of major life activities that specifically includes the operation of major bodily functions. The revisions also add rules of construction to be applied when determining whether an impairment substantially limits a major life activity. These rules of construction state the following:
—That the term “substantially limits” shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA;
—that an impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population;
—that the primary issue in a case brought under the ADA should be whether an entity covered under the ADA has complied with its obligations and whether discrimination has occurred, not the extent to which the individual's impairment substantially limits a major life activity;
—that in making the individualized assessment required by the ADA, the term “substantially limits” shall be interpreted and applied to require a degree of functional limitation that is lower than the standard for “substantially limits” applied prior to the ADA Amendments Act;
—that the comparison of an individual's performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical evidence;
—that the ameliorative effects of mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a “disability”;
—that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; 
—that an impairment that substantially limits one major life activity need not substantially limit other major life activities in order to be considered a substantially limiting impairment. The final rule also states that an individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to a prohibited action because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity. It also provides that individuals covered only under the “regarded as” prong are not entitled to reasonable modifications.
The ADA Amendments Act's revisions to the ADA apply to title I (employment), title II (State and local governments), and title III (public accommodations) of the ADA. 
The changes include:
The addition of Attention-Deficit/Hyperactivity Disorder (ADHD) as an example of a physical or mental impairment;
The addition of “writing” as an example of a major life activity;
The “regarded as" prong is clarified; the burden is on a covered entity to establish that, objectively, an impairment is “transitory and minor” and therefore not covered by the ADA.

Wednesday, September 21, 2016

Upcoming presentation for families, advocates and providers: 17th Annual Autism Society of Greater Phoenix Conference

Legal Track Track

9:00-10:00    Resolving Special Education Disputes:  Behind the Scenes with a School Attorney, Parent Attorneys and a Former State Complaint Investigator – Heather R. Pierson, Esq., Maureen Ringenoldus, M.Ed., Hope N. Kirsch, M.A.(Ed.), Esq., and Lori Kirsch-Goodwin, Esq.- Have you ever had a problem, disagreement or dispute with your child’s school?  Ever wonder whether you have a “case”?  Ever wonder how best to resolve the issue?  This is a unique opportunity to get a behind-the-scenes glimpse of how a parent attorney evaluates your case, how a state investigator investigates, and how a parent attorney negotiates with the school attorney to resolve the issues to avoid Due Process.

10:30-12:00  3 Hot Topics in Special Education-Bullying, Discipline and Placement vs Location- Hope N. Kirsch, M.A.(Ed.), Esq. and Lori Kirsch-Goodwin, Esq. – Special education attorneys will walk parents and professionals through the legal ins and outs of three of the most pressing issues that students with disabilities encounter. Parents and professionals will understand the legal rights and protections that both the parents and student have in the areas of bullying, discipline and placement/location decisions, and parents and professionals will improve their advocacy skills and learn how to handle these special education issues and disputes with confidence.

Upcoming presentation: Special Education Legal Disputes Involving Students with Autism

Special Education Legal Disputes Involving Students with Autism
This course, presented by two nationally recognized special education attorneys, will provide a comprehensive overview of the different laws applicable to the education of students on the autism spectrum, including the IDEA and the Americans with Disabilities Act, focusing on issues and cases involving students with autism, and providing an overview of DSM-V and its impact on special education eligibility. The course is for school attorneys, parent attorneys, disability attorneys, educators, school board members, and attorneys in other practice areas who have an interest in special education law. In this guide to special education laws impacting students with autism, our experienced faculty will walk you through the differences between DSM-4 and DSM-5 as it applies to students with autism, legal ins and outs of proving need for eligibility for students on the spectrum, services, supports and placement of students on the autism spectrum, as well as discipline and bullying and harassment of students with autism. Learn how to handle special education legal issues for this unique population with confidence.
Key topics to be discussed:
  • Laws impacting students on the autism spectrum, including the IDEA and the Americans with Disabilities Act
  • IEP versus Section 504, IDEA and Due Process versus the ADA and OCR
  • Evaluations and Proving Need for Eligibility of, and Autism Label for, Students on the Spectrum
  • IEP’s for Students with Autism
  • Disciplinary Issues Involving Students with Autism
  • Bullying and Harassment of Students with Autism
  • Avenues of Dispute Resolution for Students on the Autism Spectrum

Friday, September 2, 2016

FAPE, Bullying, Discipline

Parents, advocates, attorneys and providers:  We will be presenting on November 5, 2016 at the Annual Arizona Autism Coalition Conference

What's This Thing Called FAPE: A Parent's Guide to Special Education,
Hope Kirsch, Lori Kirsch-Goodwin, Kirsch-Goodwin & Kirsch, PLLC          

Discipline & Bullying Involving Students with ASD,
Hope Kirsch & Lori Kirsch-Goodwin, Kirsch-Goodwin & Kirsch, PLLC      

2016 Annual Arizona Autism Conference

Friday, August 26, 2016

Advocating for your child with special needs

KGK education attorney Hope Kirsch, education advocate David Jefferson from Parent Support Arizona, and Chris Tiffany from Raising Special Kids discuss advocating for your child with special needs at a Raising Arizona Kids magazine event. 

Navigating the special education system can be confusing, overwhelming and emotional. You’re worried about your child. You’re dealing with people you don’t know, information that is new and an alphabet soup’s worth of acronyms.
No parent should go into it unprepared. At  magazine’s first annual Special Needs Resource Fair, panelists explained the pros and cons of self-advocacy, paid professional advocacy and paid legal representation — and when each option should be considered.

Our guests:

David Jefferson
Parent Support Arizona (non-legal advocacy)
Hope Kirsch, M.A.(Ed), Esq.
Kirsch-Goodwin & Kirsch, PLLC (special education attorneys)
Christopher Tiffany, M.Ed.
Director of Family Support at Raising Special Kids (self-advocacy)

KGK in the News

KGK's Lori Kirsch-Goodwin wins another victory in court for clients. The issue here involved a public records request.

Ex-FFA member, CGUHSD in dispute

Judge orders district to pay some attorney feesPosted: Thursday, August 25, 2016 8:18 am

CASA GRANDE — A former student of the Casa Grande Union High School District is in a legal dispute with the district regarding records related to his membership in a school organization.
Attorneys representing John Baker, a former Casa Grande Union High School student, filed a complaint in May after the district reportedly failed to supply records tied to the district’s FFA program.

Baker had been involved in the program, formerly known as Future Farmers of America, and wished to submit an application to receive the FFA state degree, an honor in the organization. He reportedly was suspended from FFA in March 2015, according to court documents but still requested that the school submit his application.
An email sent to Baker’s family in April 2015 suggested that the student’s application was submitted but later recalled. However, Baker’s attorneys questioned whether the school had ever submitted the application.
In February, Baker submitted a formal request to the district seeking to review all documents related to his FFA application. He also asked for copies of all FFA state degree applications submitted by other students in 2015.  
The district reportedly refused to release the documents due to standards set in the federal Family Educational Rights and Privacy Act, which bars the public release of student records without parental consent.
Lori Kirsch-Goodwin, Baker’s Scottsdale attorney, stipulated that the FFA applications of other students could still be released with names and personal information blotted out. The district reportedly still did not grant this request.
Kirsch-Goodwin told the Casa Grande Dispatch she had wanted the applications of other students to compare signatures listed at the bottom of each. State degree applications must be signed by the school’s FFA adviser and the FFA state representative.
The plaintiff attorneys believed one of the signatures on Baker’s application had been forged to make it appear the school had submitted it. Therefore, the applications of other students could be used to compare and confirm the forgery suspicions.
To the surprise of the plaintiff attorneys, the district eventually admitted that Baker’s application was never submitted. According to court documents, CGUHS teacher Brittnie England declared the application was not sent and that signed copies of other student applications were not in her possession.
Kirsch-Goodwin said it was upsetting to discover that documents her client had been chasing after for months were never available. The question as to why the district did not submit Baker’s application remains unanswered, she added.
On Aug. 11, a Pinal County judge ordered the district to pay more than $8,000 in attorney fees to the plaintiff. The district’s attorney attempted to make the argument that the district shouldn’t pay attorney fees since it couldn’t deny access to records that it didn’t possess.
Judge Stephen McCarville concluded that since there was no mention of records being unavailable in court documents submitted by the defendant in June, the district was liable for paying some attorney fees.  
The Dispatch reached out to the district’s attorney to ask whether it would appeal paying these fees but did not receive a response.
Kirsch-Goodwin said her clients have not decided yet whether to proceed with filing a lawsuit against the district and suing for damages incurred through the dispute.
Baker’s family declined to comment on the litigation to the Dispatch since the matter is still pending.
The district’s Governing Board may hold an executive session at 10 a.m. today to discuss the pending litigation. Executive sessions are not open to the public, and discussion of pending litigation is one of the reasons they are allowed under Arizona law.

Thursday, August 18, 2016

Autism Spectrum Disorders (ASD) and School Law

Lori Kirsch-Goodwin and Hope Kirsch will be presenting a national webinar September 15, 2016, AUTISM SPECTRUM DISORDERS (ASD) AND SCHOOL LAW
For more info or to register, go to: