Special Education Services in the Summer Must be in LRE

Has your school district ever told you that summer extended services for kids with special needs must be provided at their set summer extended school year (ESY) programs?  Have they ever told you that such services must be provided in a program with only other students with special needs?   Have they told you that the Least Restrictive Environment (LRE) rules do not apply to summer ESY special education programs?

According to the 2d Circuit Court of Appeals — all of those statements are wrong!  Instead, a District must consider LRE requirements when providing summer services.  If your child receives instruction with general education students during the school year, the District likely has no right to restrict her to a segregated program over the summer.

“We hold that the IDEA’s LRE requirement applies to ESY placements just as it does to school-year placements. … [the School District] was required to consider a continuum of alternative ESY placements and to offer [the student] the least restrictive placement from that continuum appropriate for his needs. The district court therefore erred in determining that [the School District] met its obligations under the IDEA by offering [the student] only an ESY placement in a self-contained special education classroom.”  http://scholar.google.com/scholar_case?case=17386340325814739564&q=T.M.+v.+Cornwall+&hl=en&as_sdt=6,31

Federal law provides children who have IEPs with a right to be educated in the “least restrictive environment” – which means to be educated with general education students to the maximum extent appropriate.   Because each child is unique, an LRE decision has to be made on a child by child basis.

In the case linked above, the school argued that ESY was exempt from the LRE requirements because summer services were different in kind from services during the regular school year.  But the Court rejected that claim because ESY is an integral component of a child’s education if that child is eligible for ESY.   The school also argued that LRE applies only if the District has an alternative summer program available that includes general education students.  But the Court held that if the District does not have a program that includes general education students, it must either create one or provide the special education students who can be educated in a mainstream setting with summer services outside of the District.

It is current standard practice in New Jersey and Pennsylvania for District’s to create a set summer program of only children with special needs, and all students who need special education over the summer must obtain those services within that segregated program.  Under the legal analysis of the 2d Circuit, this is illegal.   If that analysis is successful here, parents who are offered only a segregated summer program may be able to obtain appropriate mainstream services on their own, and be reimbursed by their school districts.   Or they could bring an action against their school district to force them to offer an appropriate less restrictive summer program.

Parents should carefully consider the summer placement programming – and insist where appropriate on a more mainstream setting.

Good luck!

Special Education Students Failing High Stakes Testing

State-wide testing is a complicated and controversial issue for children with special needs in New Jersey, Pennsylvania and across the nation.

On the one hand, state testing can be a valuable barometer for parents — providing a measure as to how their children are doing as compared to a state or national average that includes all general education students.

On the other hand, schools can put a lot of pressure on students with special needs as test time approaches, often creating unnecessary anxiety and pressure on children already struggling in school.

Worse, in some states there is mandatory retention based on how a student scores, and special needs students are forced into grade retention that might otherwise not be appropriate.  Here is a link to a recent story from Oklahoma, discussing how almost 50% of the special needs third-grade students in that state failed to demonstrate an ability to read.   By Oklahoma state statute, many are now being held back a year.   http://www.tulsaworld.com/news/education/oklahoma-special-education-third-graders-parents-grapple-with-reading-test/article_0c62a0bf-178e-5394-8ecb-cea895115ed5.html    As the news report recounts, this is particularly problematic for students who are severely hearing impaired or have other specific disabilities that render the testing inappropriate.

Many blame the tests themselves, and much of that criticism is deserved.  All testing should be rigorously examined.

However, parents through their IEP teams can certainly battle against districts or teachers who spend too much time preparing for the state testing (because it affects the school’s performance scores) and/or creating misplaced fear and anxiety in vulnerable students.

Parents can also insist where appropriate that their child not be given supports during such testing that are otherwise not provided for the child at school.  Many schools without discussion with parents slip additional services into the IEP only for state testing.  When they do so, it is clearly for the benefit of the school’s performance scores rather than the child, and can undermine the usefulness of the testing for parents.

Most important, parents should not just buy into a school District’s contention that it is the testing that is at fault — rather than that the District has in fact failed to properly educate the students with special needs.   For all of the “progress reports” based on subjective reporting that parents receive from the teachers during the year, an objective state-wide test can sometimes expose this alleged “progress” as less than meaningful.

By way of example, the students in Oklahoma with the more unusual circumstance of deafness or brain damage as discussed in the attached news report do not make up the near 50% of the special education students who failed in reading.   Certainly the actual reading instruction for students with special needs in Oklahoma schools should be heavily scrutinized.

For these reasons, all parents of children in the special education system should be careful about too quickly joining the educators’ call for reduced state testing, and examine instead whether such testing has in fact revealed deficiencies in the services provided by the school.

Remember, in Pennsylvania, Delaware and New Jersey, students with special needs are entitled to programming that provides “meaningful education,” which requires “significant learning” that accounts for a child’s aptitude.   State testing can be a tool to measure whether your school is meeting your child’s needs.

Jerry Tanenbaum, Special Education attorney in PA & NJ

New Special Needs Communication Technology for Students with Autism or Other Disabilities

A father of a non-verbal child with Autism has developed a new communication app that relies on symbols (like the PEC system) for a non-verbal person to communicate with others.  It could be a good addition to special education programming in school for all children with special needs who require a pictorial method of communication.

Most existing systems do not allow for sending messages and e-mails to others utilizing a pictorial system, and instead require the person with autism to be at the same device screen as the person he is communicating with.

This device allows the non-verbal person to communicate with friends, teachers, family and others – so long as they also understand the pictorial message.  It appears to open up an area of vastly increased opportunities for reciprocal social communication for non-verbal persons with Autism or other disabilities who are otherwise not able to utilize the common keyboard to express their ideas.

I have no personal experience with this app, so am not vouching for it by any means — but it seems like a great addition to the existing technology and is at least worth knowing about.  Here is a link:  http://israel21c.org/people/new-israeli-app-for-special-needs-communication/?utm_content=buffer9a7fe&utm_medium=social&utm_source=facebook.com&utm_campaign=buffer

New uses of such technology should regularly be reviewed by parents of children with special needs so that they know the up-to-date options.

I can certainly envision the incorporation of such a device as this into a child’s school special education program (IEP), including possible group programming among a number of non-verbal students.

Leave it to a Parent to have recognized the value in this added component.

Jerry Tanenbaum, NJ and PA education attorney



Students with Autism Benefit from Play Therapy

“Play therapy,” such as DIR, for students with autism has been known to be effective for a long time now by many who are in or are working with the autism community, but until recently has lacked scientific proofs. 

This is a CBS News report of scientific studies from York University in Canada that have resulted in research based data that supports the efficacy of this type of training.

You can view it here:  https://www.youtube.com/watch?v=D2MZw7Ugccw&feature=youtu.be

It is not surprising to me that the ability to engage and interrelate with our peers is developed in the young through play.  Children with autism are often deprived of that development due to deficits that – without appropriate training – overwhelm them and cause them and their non-autistic peers to withdraw from each other.

For parents of children with autism, these “play-based” therapies are certainly worth looking into, and the growing scientific support can be utilized to seek such therapies in a school-based setting.


Pa Student Charged with Crime for Protecting Himself by Recording Those who Bullied Him in School

Wow – here’s a startling story from a school district near Pittsburgh PA.

A special needs child was being aggressively bullied by his class mates – right in front of the teacher – with little to nothing being done about it.  So the kid turned on his I-pod and recorded what they were doing to him.

But when he went to the Principal with his complaint and evidence, the Principal threatened him with “felony charges” and contacted the local police.  Incredibly, although the prosecutor dropped the charges from “wiretapping” to “disorderly conduct” – the child was actually adjudicated as guilty by the local judge.  (Appeal pending)

You can find the story here:   dailycaller.com/2014/04/14/special-ed-student-who-recorded-being-bullied-on-his-ipad-threatened-with-felony-wiretapping-charges/

I understand that PA is a “two-party consent” state for purposes of their state wire-tapping statute — but this is outrageous.  (NJ is a “one-party consent” state by the way)

The principal; the prosecutor; the judge — where was their common sense, and where was their concern for the victim?

Would they charge a woman who used her cell phone to record a sexual assault with a crime because she didn’t let her attacker know she was recording?


Significant Transition Victory for Students and Adults with Disabilities

Important settlement under the Americans with Disabilities Act (ADA) – between the U.S. Justice Department and the state of Rhode Island.

The settlement provides that adult workers with intellectual and developmental disabilities who are currently working in segregated, sheltered workshops and facility-based day programs will instead now be able “to work in real [non-segregated] jobs at competitive wages.   Additionally, over the next ten years, 1,250 students with I/DD will receive services to help transition into the workforce.”


The agreement results from the Supreme Court’s decision in Olmstead v. L.C, which requires that such persons be served in the most integrated setting appropriate.

This will likely start sweeping into other states.  It’s a huge victory for transitioning students and adults with these disabilities.

Jerry Provides Free Educational Workshops at this Year’s Camden County Parenting Conference

Hello friends:

I will be presenting free educational workshops on Saturday, April 12, 2014, at the Camden County Parenting Conference.  This year’s conference is being held at Pennsauken High School between 9 a.m. and 2 p.m.

Here is a flyer for the overall event, a description of all the workshops and a way to register for the interactive events:  http://www.camdencounty.com/parenting2014

“This FREE event, geared to children, youth and families, features two sessions of great interactive workshops, exhibitors, an ongoing continental brunch with grab and go food and drinks, door prizes, a countywide poster contest, face painting, crafts, entertainment, giveaway bags, free childcare and MORE!   Keynote speaker is Haddonfield life coach, author and family therapist June Grushka-Rosen, who will talk about how families can coach each other to greatness.”

My workshop will address school-related bullying, what it is, its impact, and the legal issues surrounding it.  Lots of other good stuff in an overall fun format.

Hope to see you there!

Jerry Tanenbaum

Jerry Files First Amendment Free Speech Case For Student at Sterling High School

As teenagers often do, a high school senior was alone in her room at home having a conversation with a few friends on Twitter.  She doesn’t like her school principal, and called him a few strong curse words.

Who would have known that school administrators were secretly monitoring these teenage social media exchanges?  And who would have known that they would react to being disliked by a teenager by berating the student the following week, and barring her from her Senior Prom, her Senior Class Trip, and even from any participation in graduation activities?  The administrators even went back into her Twitter account and located some comments in which the senior was asking her friends if they wanted to “smoke” with her.  Interpreting this to be related to marijuana, the administrators also insisted she be drug tested.  They claim all of the punishments are for the “protection” of other students at the High School.

The case raises major policy issues, and will give the Court an opportunity to provide some important guidelines for students and for school administrators:  What protections do students have from government officials reaching into their personal lives, especially on matters based solely on things they say to each other?  Have they lost their First Amendment rights because they are students?  Do school officials even have such power  under our state laws?  I think not.  Stay tuned for what the Court decides.

Here’s a link to the Courier-POST article from this morning about the case.  http://www.courierpostonline.com/article/20140318/NEWS01/303180039/Suit-Sterling-High-School-overstepped-bounds-girl-s-tweets-penalty?nclick_check=1

“No intent” to harm in hitting and spitting on a child in Swedesboro; therefore, no bullying?

A news story came out this morning about a young child in Swedesboro, New Jersey who is allegedly the target of repeated bullying during bus transportation – including being spit on and hit – to the point that he is now in therapy.  The District determined that the latest hitting incident was not “bullying” because the student who struck the child (the same student allegedly doing all the other spitting and hitting) did not “intend” any harm.  http://www.myfoxphilly.com/story/24833208/swedesboro-mother-claims-her-5-year-old-son-was-bullied

Regardless of the actual intent as to any one specific incident, it’s hard to imagine how there would be no finding of intent if the entire course of conduct was viewed as an ongoing unit, instead of looking at each separate act of abuse in isolation.  Unfortunately, this is a common approach taken by school Districts.  They investigate each alleged act as if it was a stand alone event, even in the face of an ongoing pattern of complaints.

It can be critical that parents who report abuse over time do not fall into the trap of treating each incident as if it were isolated from the whole.  When a child is targeted by individuals or groups for repeated bullying, schools cannot make appropriate decisions or take appropriate action unless they analyze the situation as a whole.

Pressure can be brought on school administrators to be certain that the larger picture is not ignored.  Don’t get trapped in the details of a single event to the exclusion of the whole.

Know Your Child’s “Stay Put” Rights in Special Education

An important right that children classified with special needs have is the right to “stay put” in their educational program during any litigation between the parents and the school.  This can be extremely important if the school is trying over the objections of the parents to take away important services, or is seeking to move the child to a different type of program.  The “stay put” rights can at least continue to provide the disputed services until the litigation is resolved.

The intent of the “stay put” provision is to protect the child.  Absent that right, the child could be moved back and forth from program to program during the course of a litigation through rulings and appeals, and yet again when the litigation is concluded.  The academic and emotional disruption if that were allowed could be significant.

Most important for parents to understand, is that such rights cannot be invoked unless they formally file for Due Process or mediation within a VERY SHORT period of their receipt of the formal proposal from the District to change the program.  In New Jersey, that period is fifteen days from receipt of the proposed IEP.  In Pennsylvania, it is only ten days from receipt of the NOREP.

If a parent fails to file before those short periods expire, the newly proposed program goes into effect and becomes the “stay put” program going forward – even if the parents do not sign the documents or otherwise refuse to give consent.  Many parents mistakenly believe that their verbal or written objections are sufficient to invoke “stay put,” only to learn to their dismay that the program has been changed.  Once that occurs, they can still litigate and obtain a ruling to change the program back to what it was, but their child will in the meantime be placed in the new program.

A recent case from the Third Circuit Court of Appeals has further clarified your child’s stay put rights – to reaffirm that stay put rights do not disappear or change during a litigation in which a lower hearing ruling favors one party and an appellate ruling favors the other.  For example, even if the first level hearing rules that the change in programming should go forward, if the parent appeals to the next level, the child remains in the initial “stay put” program.  This applies at least through appeal to the Circuit Court level.  See, M.R. v. Ridley Sch. Dist., No. 12-4137 (Feb. 20, 2014), http://www2.ca3.uscourts.gov/opinarch/124137p.pdf

“Stay put” rights do have nuances that can on some occasions be complicated, and whether to invoke such rights is an important strategic decision that varies depending on circumstances.  Please contact my office if you have any questions about this important right.