AND NOW A WORD FROM OUR READERS...

Happy New Year to our readers! As we start 2010, I thought it would be a good opportunity to take a look back at some of the comments we received to some of the 2009 postings. 

In response to my posting in July predicting that now Justice Sotomayor would be friendly to school districts in the area of special education, our own Karl Romberger responded that he disagreed and that she likely would not be that friendly to public schools. Naturally, that elicited a response from Nancy asking which is which. The short answer is that has yet to been seen. As I advised in my original posting, trying to guess how a judge turned justice might rule in a particular area is always risking business. I suppose we will just have to wait and see. 

 

In response to my July posting on a case out of the Ninth Circuit related to a blog operated by a teacher and the finding that this does not qualify as protected speech, Michael wrote “[i]t is a shame that we are allowing this type of case law to be put in place.” He further notes “[a] blog is essentially a public journal and it is not the government’s place to judge the quality or content of a private writing.” I believe the court’s view was more that employees of public entities do not have the right to say whatever they want in public about their work and then once that speech begins to have an adverse effect on work, the limits of the protection have been breached.   

 

On my blog posting back in October related to a case out the Ninth Circuit that found that teachers who complain about the treatment of disabled students also qualify for the protections of the ADA and Section 504, even if the teacher is not disabled, Mekei wrote “Very interesting. As a parent I observe that often times, the special ed teachers et al, are considered second class citizens among the other teachers.” 

 

Finally, in response to my posting in late December on Least Restrictive Environment, Rick responded “[s]chools use LRE as an inexpensive way to ‘dump’ special ed kids in a mainstream classroom and let them try to keep up with the rest of the class.” He further notes “schools are relying on law enforcement personnel to handle simple behavior problems that would be taken care of in a special ed classroom.” Rick’s comments only seem to underscore the ongoing debate on how to apply the LRE concept. 

 

As always, the blog welcomes your comments, questions and suggestions and, from time to time, we will try to respond to them.    

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Response To Comments, Fall 2008

Its time again to write about some comments. I wrote about the District of Columbia School Chancellor’s efforts to implement performance pay in “Teacher pay and tenure: creating a free agent market.”  Professor Fox added a comment regarding improvement to the current common rater method of assessing performance. I also wrote a piece about confederate flag waiving students (“Yet another confederate flag case”)” that garnered a response from Lynn accusing me of revisionist history and political correctness (me!). Craig wrote an interesting question in response to the entry “College-Student Disciplinary Contract Claims.”  Finally, in “Fourth Circuit Placement Decision Revisited: the last word,” I brought readers up to date on the case at issue and responded to a previous comment critical of my suggestion that open and honest communication can be a salve to the bad decision. Well, I got a comment from Nagla in support of my view!  Thanks for all your comments, even if I don't get to address each one.  Now to the four comments.

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U.S. Department of Education proposes changes to special education regulations

On Tuesday, May 13, 2008, the U.S. Department of Education published proposed changes http://edocket.access.gpo.gov/2008/pdf/E8-10522.pdf to its special education regulations.  The Department seeks public comment on the proposed changes.  Details on how to submit comments are included with the announcement.

Among the proposed changes are new provisions to give a parent the right to unilaterally exit a child from special education.  The LEA would have no option or recourse, such as a due process hearing, to override the parent's decision. 

The Department also proposes to clarify its long-standing position on non-attorney representation at due process hearings.  The proposed changes state that whether parents can be represented by a non-attorney advocate would be determined by state law. 

Other proposed changes include amendments to subgrant funding processes, and state and local efforts regarding employment of highly qualified staff. 

The deadline to submit comments is July 28, 2008.

Response to comments

I have received some comments and the time has come to address some of them. Remember: this is not legal advice.

C.H. wrote with the following questions. “Do Medicaid rules require that group counseling services provided to special education students in schools be given in groups of 6 students or less? Do these rules vary from state to state? If Medicaid rules require small group counseling, does this conflict with Least Restrictive Environment rules that children be served in regular classrooms when appropriate?” Typically, Medicaid and education are fiefs alone. Although we know well that the two do meet and should be better coordinated, education rules would likely apply to a school-provided counseling service. Each state will have different rules. As to counseling and LRE, my thought is that counseling is not something inherently amenable to the concept of least restrictive environment. Counseling would seem to be unlike academic instruction or social activities that are open to all or required of all. The question might be whether the counseling is delivered in the right environment, but without the added layer of LRE.

Regarding the entry for Section 403(b) employee benefits plans, Kristine asks “Are you interpreting this regulation to mean that if a teacher complies with the election provisions, no additional tax is due?” Sorry, Kristine, I am not going to touch that one. You will need to consult tax experts and review the IRS guidance. 

Back to Medicaid and special education funding, an anonymous commenter asks “Is there a site where we can check how much our school district will lose each year because of these changes?” Not to my knowledge.  The actual loss will depend on a number of factors, such as how many students participate in medical assistance and whose parents permit the district to bill and how aggressive the district is in claiming medical assistance money.  In my experience, some parents will not permit the district to access such funds and some district really do not put much effort into securing the funds. Because of these factors, even taking the “savings” estimated by CMS as a per pupil amount would likely be wildly inaccurate because of the many factors. I suggest you contact the person in charge of the district’s medical assistance related matters and or the district’s business manager. 

Finally, suburbanmom asks, “Who do I contact if I think Title IX is not being enforced?” There are a number of places to turn. You may want to contact your school’s Title IX coordinator. You may also contact your state or the federal departments of education. This is a link to the federal DOE’s Office for Civil Rights, which enforces Title IX, among other laws.