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.

Support Group for Parents

Support Group Invitation for Parents
AZAP As a parent of a child with autism you may find yourself longing for a connection with other parents who can truly understand you. If so, Arizona Autism United Parents Association invites you to join its Support Group for Parents, a safe place where you can freely talk about your struggles and triumphs in an open-ended round table format with no agenda. The meetings are facilitated by a Licensed Professional Counselor who also has two children, one with autism. They meet the last Monday of every month from 7:00 to 9:00 PM at the AZA United main office. The next Meeting is on June 30. If you have any questions please contact  This group is hosted through the AZA Parents Association (AZAP). We hope to see you there!

Hope Kirsch

Wednesday, June 11, 2014

Online Handbook for Special Needs Parenting

This handbook, the Online Handbook for Special Needs Parenting, is for parents and special education teachers who dedicate themselves to helping kids with special needs have the best possible lives.  From exploring the special education system to planning the family's financial future, raising a child with special needs can be difficult, but also joyful and rewarding. These challenges may even continue into adulthood, but they don't have to be faced alone.
KGK Special Ed Law Blog is pleased to be among the resources listed.

Sunday, June 8, 2014

What is bullying? Is there a definition?

Bullying is behavior that is:
Imbalance of power – real or perceived
Repeated, or potential to be repeated, over time.

It is rare that a one-time event or episode will constitute bullying. 
Parents should report to the school authorities/administration every instance of their child being bullied, and the reporting should be via e-mail.  If parents merely tell someone at the school or phone it in, there is no record.

Kirsch-Goodwin & Kirsch, PLLC

U.S. Supreme Court throws out "mental retardation"

The U.S. Supreme Court is often divided, but they unanimously agreed recently on one point: the term "mental retardation" is no longer appropriate to use.  This may seem trivial and way too late.  Mental health professionals and most of us stopped using that term long ago as it recalls insulting playground inssults. 
But the decisions of the Supreme Court of the United States have broad impact, and the Court's action is a significant sign of society's progress toward treating each other with dignity.
Arizona removed the "mental retardation" and "crippled" from state statutes in 2011 when Governor Jan Brewer signed House Bill 2213.
Intellectual disability is one of the categories under which a child between three years old and 22 years old may be found eligible for special education and related services:
(i) Autism.
(ii) Developmental delay.
(iii) Emotional disability.
(iv) Hearing impairment.
(v) Other health impairments.
(vi) Specific learning disability.
(vii) Mild, moderate or severe intellectual disability.
(viii) Multiple disabilities.
(ix) Multiple disabilities with severe sensory impairment.
(x) Orthopedic impairment.
(xi) Preschool severe delay.
(xii) Speech/language impairment.
(xiii) Traumatic brain injury.
(xiv) Visual impairment.

Tuesday, June 3, 2014

What to do if your child is being bullied?

If you are a parent (or legal guardian) and your child is being bullied at school, or you think your child is being bullied, here are some things you can and should do include:
  • Email the classroom teacher, the SPED Director and the school Principal (or the Headmaster, if at a charter school) about your concerns;
  • Meet with your child's teacher and follow that meeting up with an IEP about what you discussed;
  • Ask for an IEP meeting (and remember, is a child with a disability is being bullied, that could be a denial of FAPE and/or disability harrassment);
  • Read the school district and school's policies on bullying to assure the school is following its own policy which includes conducting an investigation. Arizona state law requires school districts to have anti-bullying laws. Make sure you know what your school district's  (or charter school's) policy is on anti-bullying.   
 Most important - make sure there is a record (emails are fine) of your reports of bullying, or even of suspected bullying.  Know what bullying is, and what it is not.

Kirsch-Goodwin & Kirsch,