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| Bar Bulletin |
March,
2003 |
| MSBA Features |
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Attorneys in
Various Practices May
Advocate for Clients with Special Needs
By Hilda
Coyne
Attorneys in
general practice, domestic or criminal law may succeed when advocating for
students with special needs without specializing in special education law,
whether the attorneys represent their clients in the school, at the
college or in court. Further, according to the International Dyslexia
Association, 20 percent of the population has a learning difference
affecting themselves, their families and society, thus attorneys may have
numerous opportunities to provide such clients with valuable services.
Attorneys may be more successful if they are familiar with the needs of
those clients, the federal legal guidelines which pertain to their needs,
the services available (which may vary per school, college or state) and
the strategies that prove the most effective in winning cases to obtain
services or custody.
The
interdisciplinary overview of special needs clients includes their
medical, emotional, social and academic histories. The professional and
parent reports may conflict, however. For instance, a report of the
findings in an I.Q. test might provide an analysis of the data, and a
psychologist may conclude a student failed to try, whereas another
psychologist describes evidence of hard effort, considering the child has
a learning difference. For other examples, a learning specialist outside
of the school may determine a child is acting out from frustration caused
by not receiving appropriate services, while the school psychologist may
claim the acting out prevents the student from learning. A teacher may
state that a child is learning in class, and the parents may disagree;
they saw the learning specialist they hired advance their child, who must
advance to reach grade level, a year in reading comprehension and math in
two months, while the school may claim credit for the advancement to date.
It is therefore generally best to review the reports before interviewing
the client in-depth to determine needs first hand.
Attorneys next may
review the legal guidelines to address these needs. They may then
determine which services the school provides to their client with special
needs: 1) accommodations including untimed testing, 2) by-pass strategies
such as class substitution, or 3) remediation. These students may not
learn by traditional methods of instruction. Further, if the student with
special needs receives appropriate academic support but fails to receive
services addressing the cause of the problem, e.g., dyslexia or a Central
Auditory Processing Disorder, the student may appear proficient that
semester, but the cause will remain, creating problems until that student
receives the appropriate identification of and treatment for that cause.
Further, the child with sufficient documentation from qualified
professionals may receive placement in a special education classroom or
receive resource class instruction in reading or math, having been pulled
out of the mainstream class for that instruction a few hours per week.
Some schools, however, have no provision for special education classes,
and a child may receive placement in a mainstream setting with an aide who
provides accommodations. This may not always be a viable solution. For
instance, the 15-year-old student placed in a tenth-grade class with
eighth-grade accommodations may fail if he/she only scores on a
fifth-grade level in a standardized test of silent reading comprehension.
In rare instances,
the Individualized Education Program (IEP) school team members may
recommend a student receive services which exceed parent wish lists. More
often, schools may provide fewer services when government budgets reduce
school funding. The most serious danger to some students appears when a
few members of the school staff seem either indifferent or more concerned
with the fear of the school failing to meet accountability requirements
than with the needs of the students. Some of those professionals, per
The Baltimore Sun, falsify records. Others may misrepresent
the events of the team meeting in their reports, and one of the most
effective ways to counter that policy is to direct the client to tape
record the meetings involving his or her child.
A few IEP team
members may bully the parent or the advocate without a legal background,
but may find the presence of an attorney restraining, which may ensure
that school personnel actions tend more to meet student needs. Once a
child has been labeled as a learning-disabled student, however, the school
personnel may change that label to severely emotionally-disturbed with
their documentation without the permission of the parents and place the
child in a school for the emotionally disturbed. Such incidences may occur
when the team members are relatively inexperienced in the identification
and treatment of special needs and wish to place the student elsewhere.
A few team members
also may misinform parents concerning the nature and consequences of
papers requiring signature. Parents might then sign an agreement to
relabel the student, even when not required, which is detrimental. The
attorney may draft a rescinding order and request the parents sign it and
submit it to the members of the IEP team. The best protection tends to be
to submit reports from a wide range of professionals outside of the
school, e.g., the pediatrician, the audiologist, the Learning Specialist,
the psychologist and the pastor or recreation center director who writes
the character and behavior references. When these reports present mutually
corroborative statements, they tend to be more effective and difficult to
circumvent. The parents should submit the reports to the members of the
IEP team, with a cover letter noting that the attorney receives copies as
well. Should the school deny the desired relabeling and accurate
identification of needs and appropriate services available, the parents
should forward copies to the members of the Board of Education supervising
the IEP team members, also sending copies to the attorney. Similarly, when
a college student with a learning difference does not receive
accommodations or waivers after certifying eligibility with documentation
from qualified professionals (e.g., the Learning Specialist and the
psychologist), the student should submit the reports to the Dean of
Academic Advising, with copies to the attorney noted on the cover letter.
Should the matter
go to trial, the attorney representing a client with a child with special
needs in a school services or custody case may find similar strategies
tend to assist in winning the case. The interdisciplinary representation
and documentation may counter the possible misrepresentation by certified
professionals when the attorney presents the mutually corroborative
reports from qualified professionals in such categories as listed above
and enlists the aid of an attorney to represent the child or young adult
in a custody case as well.
Lastly, attorneys
may wish to develop a list of referral sources of qualified professionals
known to identify, successfully treat and document the medical,
emotional-social and academic special needs of students with learning
differences before the need arises, so that when the need does arise the
resources will be at hand.
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