Monday, September 8, 2014

What to do if your child has been restrained at school?

Restraints are methods that restrict a person’s ability to move freely or use one’s body. Restraints are:
  • mechanical (for example, straps)
  • physical (for example, being held by others), 
  • chemical (for example, medications that are used to sedate an individual). 
Restraints (as well as seclusion) have been used by schools to stop behavior.  Restraints, if used at all, must only be used by trained personnel and then only to prevent a student from harming himself//herself or harming others. Unfortunately, schools improperly use restraints (and also seclusion) excessively as a management intervention and by untrained staff, and when behavior is not dangerous.

Arizona has no statute or rules regarding the use of restraints in schools.  However, restraining a child - and secluding a child - may lead to psychological trauma, physical injury, or even death.  Do not let that happen to your child.  If you believe your child is being restrained, notify the Principal of the school and the Superintendent, at least.  (If a charter school, notify the headmaster / head of school.)  If you communicate via phone or in person, follow-up with an email.  Make sure that you have a record of your notifications, complaints and concerns, and email helps you make that record.  Request a meeting.  If you child has a 504, request a meeting immediately with the 504 coordinator, and the school Principal, and anyone else you deem necessary.  If your child has an IEP, request an emergency IEP meeting to discuss.  It may be a denial of FAPE if your child has been restrained on several occasions; at the very least, the school has a legal obligation to find out why your child is engaging in behaviors that are interfering with his or her education.  There are many steps the school should have taken before restraining your child, and the school has an obligation to find out why your child has behaviors that the school is restraining.  Know your rights, what you can do, what the school is legally obligated to do, and what can be done. 

Kirsch-Goodwin & Kirsch, PLLC

Wednesday, August 27, 2014

What are the IDEA eligibility categories?

The first prong of IDEA eligibility requires the existence of a specific condition of disability. In Arizona, the MET (Multidisciplinary Education Team) must identify at least one of the following conditions before considering is a student qualifies for special education and related services:
Arizona Revised Statute (A.R.S.) Section 15-761(2)(a):
(i)        Autism (A, which is now Autism Spectrum Disorder, ASD)
(ii)       Developmental delay (DD)
(iii)      Emotional disability (ED)
(iv)      Hearing impairment (HI)
(v)       Other health impairments (OHI)
(vi)      Specific learning disability (SLD)
(vii)     Mild, moderate or severe intellectual disability (what used to be called mental retardation) (MID, MOID)
(viii)    Multiple disabilities (MD)
(ix)      Multiple disabilities w/ severe sensory impairments (MDSSI)
(x)       Orthopedic impairment (OI)
(xi)      Preschool severe delay (PSD)
(xii)     Speech/language impairment (SLI)
(xiii)    Traumatic brain injury (TBI)
(xiv)    Visual impairment (VI)

Diagnosing certain mental or neurological disabilities in very young children is often difficult, and thus Arizona may choose to designate children as experiencing "developmental delays." Under the Individuals with Disabilities Education Act (IDEA), states may recognize children ages 3 years through 9 years who need special education and related services as a result of developmental delays in physical development; cognitive, communication, social, or emotional development; or adaptive development, as children with disabilities. 34 CFR 300.8 (b).

In order to be eligible for an IEP, a child must fit the definition of one of those disabilities expressly listed above.   However, the list of specific impairments included within the definition of each of the categories of disabilities is not meant to be exhaustive.  Thus, for example, children with dyslexia fit within the category of Specific Learning Disability (SLD) and children with anxiety disorder may fit within the category of Other Health Impaired (OHI) or sometimes Emotional Disability (ED).  

For more information, visit

Sunday, August 24, 2014

What are the EDUCATIONAL PLACEMENTS available for the LRE (Least Restrictive Environment)?

The LRE (Least Restrictive Environment) means "to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 20 U.S.C § 1412(a)(5)(A).  Educational placements along the continuum, from least restrictive to most restrictive, include the following:
1.  General Education (Only accommodations no additional services)
Students with disabilities are educated with students without disabilities, to the maximum extent possible.  (In Arizona, this is Level of Service [LOS] A.)

2.  General Education (push in services)
Is a collaborative teaching model; the Resource Specialist or other therapists provides assistance to students who require help accessing the curriculum in the general education classroom. 
3.  Resource Specialist (pull out services)
Students are pulled out of the general education classroom by the Resource Specialist to receive academic instruction in a small group.
4.  Special Day Class
An intensive educational program designed for students who have special needswhen they cannot be appropriately educated in a general education environment.  The types of classes available usually include mild, moderate or severe. (In Arizona, this is Level of Service [LOS] C.)

5.  Non-Public School
An elementary or secondary school within the state, other than a public school, offering education for grades kindergarten through 12, or any combination of thereof, wherein any child may legally fulfill compulsory school attendance requirements.  Placement in Non-Public Schools occurs via an IEP when the public school is not able to fulfill its requirements to provide a free appropriate public education.  Many Nonpublic schools specialize in Autism, Learning Disabilities and other special needs. 
6.  Day Treatment Center
A program designed to address a student’s Mental Health and Educational needs during the school day only.  It usually refers to a licensed or certified facility which is licensed to provide a behavioral health treatment program, outpatient care, and treatment of mental or nervous disorders under the supervision of physicians. 
7.  Residential Treatment Center
A program designed for a student who suffers from Severe or Chronic Emotional Disabilities in a residential setting.  Residential treatment centers generally are clinically focused and primarily provide behavior management and treatment for adolescents with serious issues. 
8.  Home and Hospital Instruction Program

Home and Hospital Instruction Programs serve students who have a disability, which makes attendance in the regular day classes or alternative education program impossible or inadvisable. The district in which the home or residential health facility is located is responsible for instructing and educating pupils who must be hospitalized or remain at home due to disability issues.

Due Process in Arizona

For information on the due process procedures under the Individuals with Disabilities Education Act ("IDEA") in Arizona, including decisions from Due Process Hearings in Arizona, visit  

Sunday, August 10, 2014

Are you prepared for your child's IEP meeting? Here's your CHECKLIST.

Are you prepared for your child's IEP meeting?
Make a checklist of what you should do, minimally, to prepare:
  • Obtain your child's records in advance of the meeting.  The law allows you to do so without waiting 45 days (which is the time the school district or charter school can make you wait, unless you have a meeting where your child's identification, evaluation or placement are discussed.  
  • Review the records, especially your child's progress reports over the last two years.
  • Graph the progress - making a graph help you actually see the progress.
  • Invite all the people you want to participate, even if they can only participate via phone, such as the other parent, step-parents, outside evaluators, etc.  Remember that they all become members of the IEP team!
  • If you expect to have anyone of the people you invite attend via telephone, ask the school (the case manager or SPED director, or whoever is your contact at the school) to have a speaker phone available and a call in number, or make sure you can call out, including long distance if anyone is out of town or state, and at worst, make sure your cell phone is powered up and you know how to use the speaker on your cell phone.
  • Make sure the meeting is scheduled at a time and at a place that is mutually agreed upon, and that there will enough time to address all issues.
  • Make a list of the issues and concerns and questions you have.
  • Obtain a draft of the IEP in advance of the meeting.  
  • Decide if your child is old enough and/or mature enough to attend.  If you think the attendees don't know your child, then bring your child to introduce him or her to the attendees and then have arrangements for your child to leave the meeting when you deem it is no longer appropriate for him or her to remain in the meeting. 
  • Have your tape recorder ready, with enough battery power.
  • Make sure your "IEP" book is organized.  You can organize any way you like so long as you know where everything is.  You can group all IEPs together, all PWNs together, all tests together, for instance, or you can put each IEP in its own section along with the meeting notice(s), drafts, final and PWN(s) for that IEP.  You may want to put the PWNs on different color paper for ease of reference.
  • Read and re-read your parental rights in advance of the meeting.
  • Bring flash drive to meeting to obtain electronic copies - some schools will provide electronic copies at the meeting.
  • Make a note to remind yourself to request a draft of the IEP that was prepared at the meeting - BEFORE you leave the meeting.
  • At the meeting, remember to be cordial and respectful, just as you expect the school members of the IEP team to treat you.  

Sunday, June 29, 2014

What is the differnce between an education advocate and an attorney?

What is a non-lawyer education advocate (also sometimes called a "parent advocate" or "educational consultant")?  When do you need an attorney?  Generally speaking, a non-lawyer advocate can help you write an IEP, and can help you until a dispute arises.  While an education advocate can help with some disputes, they cannot give legal advice, and if a parent accepts legal advice from an advocate that is not correct, it will be difficult for any attorney to fix.  In practice, an advocate and attorney play different roles but both can work together as part of your team.  In fact, a good advocate knows when he or she has done all they can to help a parent, and then they will refer you to an attorney.  Likewise, if what you need is an initial IEP, or a better IEP, an education attorney will refer you to an advocate.  While an education attorney can help you with an IEP, an advocate is probably less costly. In the end, if you end up in Due Process, you cannot recover for fees you spent on an advocate, which is why an advocate ought to know when to refer a parent to an advocate.  Parents should also be cautious when advocates tell them they "have a case" or that they "don't have a case."  That crosses the line of giving legal advice.  An advocate should not be advising a parent about whether they have a case or not; instead, a competent advocate will refer the parent to a lawyer to evaluate the facts in light of the law, and that lawyer's own experience.

A non-laywer advocate’s focus is on education.  An advocate should, for example, help the parent identify the child’s unique needs, explain to a parent how progress is monitored, helps formulate "SMART" goals, help select services needs, supports needed, methodology, and identify areas of needs that have not been addressed in the IEP but that need to be addresed.  To best accomplish this, effective advocates understand schools; they may have been teachers themselves.  Some may have been parents of a child with special needs.  

An education attorney has a duty to keep current on the laws, which include federal and state statutes, rules and regulations, and ever-changing case law (court decisions, both for their own state, and their Circuit, and the Supreme Court).

When looking for advocates and attorneys, ask how long they have been working in the special education arena, how they got started, what their experience is in working with children with special needs, what their educational background is (do they have undergraduate or graduate degrees in teaching,or in working with children with special needs?), how long they have been doing what they do, have they ever worked in a school or classroom, have they been involved in mediation, resolution, due process hearings, and the outcomes.  For attorneys, ask if they have gone all the way to hearing and the outcomes, and ask about their trial experience in addition to their experience handling due process.  

Attorneys practice the law.  An attorney is a professional dispute resolver and understands how to utilize dispute procedures.  They can negotiate directly with the school's attorney, which is often more efficient than attending multiple IEP meetings.  

Once disputes arise, there are different ways to try to resolve, including informal meetings, administrative complaints, mediation, and due process.  An attorney is generally not required but a parent may want to consult with one, and the attorney can advise the parent.  Some states allow a parent to help them at due process, but only an attorney may engage in the practice of law.  Attorneys attend law school, must pass a bar exam, receive a law degree, and must be licensed in the state(s) in which they practice.  They are regulated by the State Bar and many are rated (AV, BV or CV).    

Working with an attorney to resolve a dispute can make a difference. An attorney’s knowledge of the legal system and ability to evaluate the strength of your side of a dispute is very important. Attorneys narrow down and clarify complex issues (focus), write and apply facts to the law (communicate), and utilize the legal system (strategy) to achieve the best possible outcome.  Attorneys can review records, identify issues, and advocate for a quick resolution of a dispute at meetings, through letter writing, or formal complaints. If a dispute goes to hearing, attorneys are trained on how to write complaints, motions, closing briefs, presenting issues, using and objecting to the introduction of inappropriate or non-relevant evidence, questioning witnesses, and making opening and closing statements.

Although there are differences, there is a lot of crossover between advocates and attorneys in special education.  An advocate must understand the structure of the law and how to work within it to obtain results. An education attorney can identify the issues and guide the parent and the non-lawyer advocate.  When disputes arise, an attorney can advise on how best to resolve.  A non-lawyer advocate cannot give legal advice, is not properly trained to represent a child at hearing, and cannot appear in, or appeal to, state or federal court on behalf of a child or the parent.

Advocates and attorneys work well together because of their differences.  Advocates should know when an attorney is needed, and should recognize when a disagreement is a legal dispute. Attorneys can help navigate disagreements and provide guidance to avoid problems because of their understanding of the law, the legal system and how it applies to special education.  Parents should understand the difference between “educational advocacy” and “legal advocacy and representation” because both advocates and education attorneys “advocate” for you and for your child. 

Kirsch-Goodwin & Kirsch, PLLC

Saturday, June 28, 2014

How is a child IDENTIFIED as possibly needing special education and related services?

There are two primary ways in which children are identified as possibly needing special education and related. services.  
The first is through an obligation that each and every school district has called "Child Find."  The second is byway of referral of the child - either by a parent or school
personnel, such as a teacher or a principal.
What is Child Find?
Each state is required by IDEA (the federal Individuals with Disabilities Education Act) to identify, locate, and evaluate all children with disabilities in the statewho need special education and related services. To comply with this requirement, states conduct what are known as Child Find activities. When a child is identified by Child Find as possibly having a disability and as needing special education, parents may be asked for permission to evaluate their child. 
What is the referral process?
Referral by the school:  A school professional may ask that a child be evaluated.  The school will notify the parent in writing to request that the parent attend a meeting to discuss the child. A team of professionals from the school district will attend and discuss what they know about the child, including the child's strengths and weaknesses and areas of concern.
Referral by a parent:  A parent who has any concern about his or child at school should contact the school (email is best, or if in-person or by phone, follow-up with an e-mail), and say you are concerned your child may need special education and you want an evaluation.  There are no specific words; rather, just let the school know you are concerned and want your child tested. 
Under the federal IDEA and Arizona state regulations, the evaluation needsto be completed within 60 days after the parent gives consent for evaluation, so make sure to give consent ASAP.