Concussion mechanics. Source: Patrick J. Lynch, medical illustrator. Creative Commons Attribution 2.5 License 2006

A concussion is the most common type of traumatic brain injury that can result in physical, cognitive, and emotional symptoms. A concussion may be caused by impact forces (which the head strikes something) or by impulsive forces (which the head moves as a result of an impact to the body). Such impact fores and impulsive forces frequently occur in contact sports games such as football, hockey, lacrosse, and soccer. But it can also occur in other “non-contact” sports such as volleyball, roller blading, skateboarding, and snowboarding.

If a concussion is not identified and treated appropriately, the individual may develop permanent, life-long symptoms including headaches, dizziness, fatigue, anxiety, memory and attention problems, sleep problems, and irritability. Subsequent concussions can result in psychiatric disorders and loss of long-term memory. Individuals who have had multiple concussions are at risk of developing Alzheimer’s disease and dementia pugilistica.

Thus, the importance of identifying and treating concussions cannot be overemphasized.

In the past, when a high school football player was struck in the head or pounded down hard, a school coach might briefly look at the player in the eye and say “You look fine. Get back out there, champ!”

Under a recently enacted New Jersey law, that can no longer happen.

New Jersey is one of a handful of states that has a concussion law. The law requires that student athletes who are suspected of having a concussion be immediately removed from the game and prohibited from playing additional games until a concussion specialist gives written approval.

Like the NJ Anti-Bullying Law, the concussion law also requires that school districts develop a written policy on concussion prevention and treatment. Additionally, athletic trainers who are licensed by the state are required to take continuing education in concussions.

The Athletic Trainers’ Society of New Jersey has published a helpful checklist that help school districts ensure it is in compliance with the NJ law.

When a student athlete suffers from a concussion, it can have a dramatic effect on the student’s academic performance and behavior. The student can suffer from memory loss; difficulties solving problems; difficulties finding the right words; have difficulties organizing information; exercise poor judgment; and experience depression and anxiety. To learn more about the effects that a concussion can have on a student, I recommend reading Educating Students with Traumatic Brain Injury.

Many experts have recommended academic accommodations to student-athletes with concussions.

Academic accommodations are important because the brain needs time to heal itself; stress and academic overload may hamper the healing process.

What types of accommodations might a student with a concussion receive? It depends. It could involve shortened school days, increased timed tests, and/or reduced homework.

On page 5 of the New Jersey Department of Education’s Model Policy and Guidance for Prevention and Treatment of Sports-Related Concussions and Head Injuries, we find the following:

Temporary Accommodations for Student-Athletes with Sports-Related Head Injuries

• Rest is the best “medicine” for healing concussions or other head injuries. The concussed brain is affected in many functional aspects as a result of the injury. Memory, attention span, concentration and speed of processing significantly impacts learning. Further, exposing the concussed student-athlete to the stimulating school environment may delay the resolution of symptoms needed for recovery.

• Accordingly, consideration of the cognitive effects in returning to the classroom is also an important part of the treatment of sports-related concussions and head injuries.

• Mental exertion increases the symptoms from concussions and affects recovery. To recover, cognitive rest is just as important as physical rest. Reading, studying, computer usage, testing, texting – even watching movies if a student is sensitive to light/sound – can slow a student’s recovery. In accordance with the Centers for Disease Control’s toolkit on managing concussions boards of education may look to address the student’s cognitive needs in the following ways.

• Students who return to school after a concussion may need to:

1. Take rest breaks as needed.

2. Spend fewer hours at school.

3. Be given more time to take tests or complete assignments. (All courses should be considered)

4. Receive help with schoolwork.

5. Reduce time spent on the computer, reading, and writing.

6. Be granted early dismissal to avoid crowded hallways.

A recent survey published in December 2011 revealed that 60% of school districts’ concussion policies do not define specific academic accommodations. This is surprising since the law requires that schools review the model policies and recommendations offered by organizations with expertise in brain injuries. The NJ Department of Education’s Model Policy and Guidance for Prevention and Treatment of Sports-Related Concussions and Head Injuries is quite helpful. However, the NJ concussion law does not specifically require that schools to draft specific academic accommodations that might be available to students with concussions. In fact, the word “accommodations” do not appear anywhere in the NJ concussion law.

Even if your child’s school has a concussion policy that does not list specific academic accommodations, it is important to remember that the NJ concussion law gives your child the right to those accommodations. Be sure to discuss with school personnel what academic accommodations may be appropriate for your child.

I always thought The Atlantic was politically moderate or centrist, as others also seemed to think.

But when I read Chris Borreca’s The Litigious Mess of Special Education and Miriam Freedman’s 4 Common-Sense Proposals for Special Education Reform, I was amazed.

Mr. Borreca and Ms. Freedman are both school district attorneys who believe that the Individuals with Disabilities in Education Act (“IDEA”) needs to be substantially overhauled. However, their suggestions for reforming the IDEA make very little sense.

Ms. Freeman made four suggestions. The first one is:

Focus on improving regular education for all students. The better that regular education is, the fewer students need to be identified for special education services.

I fail to see how improving regular education changes the genetic makeup of the child. If a child is dyslexic, or has a speech-language disorder, it is critical that we identify that child and provide appropriate services, accommodations, and modifications. Improving the regular education program is not going to change the fact that the child has a disability and needs an individualized educational plan to meet her needs.

Ms. Freeman also suggests working to

end the “medical model” in which IDEA eligibility for services requires a specialist’s diagnosis. This model is costly, problematic, and inexact. It often kicks in too late, after previously undiagnosed students have struggled and failed. The far better solution is to provide timely and appropriate education services for all students in our schools, based on their current performance, without the need for a diagnosis or label.

If a mildly or moderately disabled child has not made any progress for a significant period of time, how can you find ways to help the child without ever figuring out why the child is struggling? How can it be done without knowing the source of the problem? I really don’t get it.

If someone has been medically ill for a certain period of time, a physician will need to run a battery of tests, including a blood test, and, if necessary, a CT scan, PET scan, X-ray, and so forth, until a firm diagnosis is made. A diagnosis is necessary before a physician can treat the source of the problem. So it is with special education. The IDEA has a child find mandate: if a child is struggling in school and is suspected of having a disability, the school district is required to evaluate the child. This could mean having professional administer a battery of tests and then determine ways in which the child might be able to improve her performance in school.

Unfortunately, I have had cases involving students who were reading three, four, and five grades behind their peers. In other words, kids who were in the 9th grade who read at 3rd grade levels, or 11th graders who read at 5th grade levels. Ms. Freeman seems to suggest that it isn’t necessary to have these kids professionally diagnosed. Ms. Freeman seems to  suggest that “one size fits all.” But life isn’t one size fits all. For kids who have disabilities, we need a diagnosis, and we need a blueprint (the Individualized Education Plan).

Ms. Freeman’s final suggestion is well-intentioned:

End the adversarial approach of “private enforcement” by parents and use other dispute resolution models, such as via mediators and ombudsmen or federal and state enforcement mechanisms that encourage trust-building and collaboration between schools and parents.

I am all for trust-building and collaboration. I am a strong advocate of being open with school district personnel and sharing information as soon as possible. However, if school district personnel insist that they are providing an appropriate education when in fact they are not, something must be done. Parents cannot be expected to simply sit down and “trust” the teachers to do the “right thing.” When a 6th grader is reading on a 1st grade level, is the parent supposed to “trust” the teachers to do the “right thing” from here on in?

Joining Ms. Freeman’s criticisms of the adversarial nature between parents and school personnel, Mr. Borreca suggests that there should be a cap on attorney’s fees. I am opposed to any such cap. As I explained in my comment in response to Mr. Borreca’s article:

The courts will determine whether the fee requested is reasonable by reviewing the attorney’s hourly rate, the attorney’s experience, the amount of time that the attorney spent on the case, and how well the case turned out. If the requested fee is not reasonable, the court will adjust the fee downwards. This will undoubtedly hurt parent attorneys because if the school district’s attorney drags out cases, parent attorneys will be more unlikely to help the parents and their disabled child.

The IDEA is essentially a civil rights law, and the fee shifting provision in the IDEA can be historically traced to Title VII of The Civil Rights Act of 1964. The reason why Congress added a fee shifting provision in the IDEA is clear: the cost of retaining a special education attorney is high and many parents cannot afford the high costs of retaining a special education attorney. Mr. Borreca’s suggested cap will likely limit the number of parent attorneys who take special education cases. The reality is that practicing special education law requires a high degree of knowledge and skill; and litigation can take a very long time if it is not settled.

As of this writing, The Atlantic has not yet published a single article by a parent attorney to offer a different perspective. This is extremely disappointing. Perhaps the editors of The Atlantic believe that parent attorneys do not think that the IDEA needs to be reformed. This simply isn’t the case at all.

I hope that in due course The Atlantic will give at least two parent attorneys an opportunity to write and publish an article about how special education law may be reformed. There is clearly no question that the IDEA can be improved, but not in the ways that Ms. Freeman and Mr. Borreca suggest.

For those of you who don’t know what “cochlear implants” are, what is meant by “mapping,” and what “related services” mean — a brief explanation is in order.

A cochlear implant is a type of hearing aid that consists of two parts: an internal device that is surgically implanted inside the cochlea, and an external device that looks like a hearing aid. Individuals with severe and profound hearing loss may benefit more from cochlear implants as they are more powerful than even the most powerful hearing aid. Cochlear implants are surgically implanted by head and neck surgeons, typically otolaryngologists, who have expertise in cochlear implantation.

To understand exactly how cochlear implants work, the following video gives a good introduction.

When an individual is a recipient of a cochlear implant, it is important that the implant be “mapped,” or programmed, periodically so that the implants stimulate the electrodes inside the cochlea appropriately, so that the individual wearing the cochlear implant can hear sounds that are as realistic as possible. The mapping, or programming, are done by audiologists who have training and experience working with cochlear implant programming.

And “related services”? That is a concept found in the IDEA, a federal law that guarantees children with disabilities a Free and Appropriate Education. The federal regulations provide clear definition and guidance:

Related services means transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education, and includes speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, early identification and assessment of disabilities in children, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services for diagnostic or evaluation purposes. Related services also include school health services and school nurse services, social work services in schools, and parent counseling and training. 34 CFR §300.34.

If you continue to read the regulations, you’ll more specifics about many of the related services that the IDEA guarantees to children with disabilities. Audiology, for example, is clearly defined in the regulations:

(1) Audiology includes—

(i) Identification of children with hearing loss;

(ii) Determination of the range, nature, and degree of hearing loss, including referral for medical or other professional attention for the habilitation of hearing;

(iii) Provision of habilitative activities, such as language habilitation, auditory training, speech reading (lip-reading), hearing evaluation, and speech conservation;

(iv) Creation and administration of programs for prevention of hearing loss;

(v) Counseling and guidance of children, parents, and teachers regarding hearing loss; and

(vi) Determination of children’s needs for group and individual amplification, selecting and fitting an appropriate aid, and evaluating the effectiveness of amplification. 34 CFR §300.113(c)(1)

In 2004, the IDEA was amended and excluded as a related service any medical device that has been surgically implanted. 20 U.S.C. § 1401(26).

However, the amended IDEA does not explicitly address whether school districts must provide “optimization” and “maintenance” services for surgically implanted devices. Cochlear implant mapping is a kind of “optimization” and “maintenance” service.

In 2006, the Department of Education implemented new regulations and provided clarification relating to cochlear implants:

Related services do not include a medical device that is surgically implanted, the optimization of  that device’s functioning (e.g., mapping), maintenance of that device, or the replacement of that device. 34 CFR §300.34(b)(1) (emphasis mine).

And again further down in the regulations:

For a child with a surgically implanted medical device who is receiving special education and related services under this part, a public agency is not responsible for the post-surgical maintenance, programming, or replacement of the medical device that has been surgically implanted (or of an external component of the surgically implanted medical device). 34 CFR §300.113(b)(1) (emphasis mine).

All of this means that under the implementing “Mapping Regulations,” public schools are no longer required to pay for the costs of mapping.

Petit v. United States Department of Education involved two couples with hard-of-hearing children who were recipients of cochlear implants. These children required periodic mapping, which the school districts had agreed to pay for a number of years prior to 2006 because during that time there was case law in favor of mapping as a related service. But when the Department of Education issued the new “Mapping Regulations” in 2006 that excluded mapping from the scope of “related services,” the school districts in D.C. refused to continue to pay for the cost of additional mappings.

The parents filed suit. In essence, the parents argued that the Department of Education’s 2006 “Mapping Regulations” violated the IDEA.

The District Court for the District of Columbia ruled in favor of the school district and granted summary judgment. When the parents appealed to the US Court of Appeals for the District of Columbia, the parents lost again.

In its opinion, the appellate court made it clear that the issue was whether the 2006 “Mapping Regulations” were valid. Without delving into precisely how it reached its conclusion (which would bore most lay readers), the appellate court determined that the 2006 Mapping Regulations were valid.

While the appellate court’s decision is binding only on the District of Columbia, courts in other jurisdictions will find it extremely persuasive. I predict that if a case based on similar facts is litigated in another circuit in the future, the court will take a long and hard look at Petit.

Notwithstanding the outcome of Petit, school districts still have certain obligations to children who have cochlear implants. These obligations should not be overlooked. The US Department of Education explained some of these obligations:

Teachers and related services providers can be taught to first check the externally worn speech processor to make sure it is turned on, the volume and sensitivity settings are correct, and the cable is connected, in much the same manner as they are taught to make sure a hearing aid is properly functioning. To allow a child to sit in a classroom when the child’s hearing aid or cochlear implant is not functioning is to effectively exclude the child from receiving an appropriate education. (71 Fed. Reg. at 46570-1)

While school districts are not responsible for the costs of cochlear implantation or mapping, several insurance policies cover cochlear implant surgery and mapping if they are “medically necessary.” Such policies benefit children with severe and profound hearing loss if parents choose the cochlear implant option for their children. Parents may wish to review their insurance policy or contact their insurance company to discuss their options. Adults who are hearing impaired may also benefit from cochlear implants as well.

It is important to note that the Petit decision does not affect the right of deaf and hearing impaired children to receive certain special education services under the IDEA, such as speech therapy, sign language interpreters, and CART (Computer Assisted Real Time Captioning).

What is the unilateral placement?

When a parent disagrees with the school district’s proposal for special education services or placement, the parent may choose to unilaterally place her child in a private school to ensure that her child receives a Free and Appropriate Education pursuant to the Individuals with Disabilities in Education Act (“IDEA”).

After unilaterally placing the child in a private school, the parent may then sue the public school district for reimbursement association with private school tuition and transportation costs pursuant to the IDEA.

But unilaterally placing a child in a private school with the expectation that the public school will ultimately pay for it is a big — and risky — gamble. Since the standard is very high and the chances of reimbursement often depends on expert witness testimony, there is absolutely no guarantee that the parent will be reimbursed.

Keep in mind that if a parent chooses to unilaterally place her child at a private school because she believes that her child is not being provided a FAPE or because the school district’s IEP proposals are inadequate, the parent needs to sue the school district for reimbursement. That means:

1. The parent needs money to pay for the private school tuition and transportation until the parties settle or the court decides that the parent is entitled to reimbursement.

2. The parent needs money to hire at least one expert to write a report and testify at a hearing.

3. The parent needs money to hire a special education attorney to increase the likelihood of winning the case.

If, based on the evidence presented, the court denies the parent’s request for reimbursement, all of the money comes out of the parent’s pocket. While the parent certainly has the right to file an appeal, that too will cost the parent even more money. One can never predict what will happen on appeal.

Unless the parent has sufficient disposable income, the unilateral placement is a dangerous gamble because it can bring the entire family into debt. Before a parent unilaterally places a child at a private school, it is critical to consult with a special education attorney to determine if there are other options to consider.

For many parents, IEP meetings can be stressful and sometimes intimidating, even for those parents who have been attending IEP meetings for years. When you are sitting down in front of three, four, or five teachers and school staff, you might feel overwhelmed. The amount of information that teachers and school staff share at these IEP meetings can also be overwhelming.

To help reduce stress and prepare for the next IEP meeting, it will be helpful to review one of my earlier blog articles, Preparing for IEP Season. In that blog article, I offer several tips that are worth reviewing.

Here are some more practical tips that may be helpful for your next IEP meeting:

1. Do not sit at the head of the table. Sit in between IEP members. This may help make you feel that you are a part of the IEP team, rather than a third wheel.

2. Tape recording the IEP meeting may make everyone nervous and cautious. Ask yourself: why do you want to tape record the meetings? Is it because you don’t trust anyone in the room, or is it because you cannot remember everything that is being said? If someone at the IEP asks you why you are tape recording the IEP meeting, be prepared to offer an answer. In any event, it is a courtesy to tell your child’s case manager or the IEP team leader that you want to tape record the meeting. Springing out the tape recorder on the day of the meeting may bring out the evil eye and start things off on the wrong foot.

3. Keep your emotions in check. When you walk into the IEP meeting, think of yourself as an expert of your child. Therefore, act in the same manner that an independent expert would act: well spoken, professional, firm, and courteous. Keep your composure. Sit up straight. Listen carefully. Ask questions. (There are no stupid questions.) Chances are good that the other IEP team members will act like professionals as well.

4. Ask the independent evaluator to participate in the IEP meeting. If you recently had an independent evaluation conducted, you are free to invite the independent evaluator to the IEP meeting. If you cannot afford the cost of having the independent evaluator attend the meeting in person, ask the independent evaluator if she can join the IEP meeting via telephone.

5. Invite a family member or friend to accompany you. If your spouse is unable to attend the IEP meeting with you, or if you are a single parent, ask a family member or friend to accompany you to the IEP for moral support. As a parent, you are free to invite a family member or friend to the IEP meeting. And make sure that the person accompanying you acts like a professional.

6. If you are in doubt regarding the change of services or change of placement, invoke stay put within 15 days of the IEP meeting. To understand what stay put is, you should read Stay Put in Special Education Litigation. For assistance in invoking stay put, consult with a special education attorney in your state. If you are in New Jersey and need to reach out to a special education attorney, you may wish to contact Matthew Stoloff, Esq.

If, after the IEP meeting, you are not certain that your child has or will continue to receive the special education services he or she is entitled to, reach out to an attorney who is knowledgeable about special education law. Once you have definitively decided to meet with a special education attorney, be sure to read Preparing For Your First Meeting with A Special Education Attorney so you will be adequately prepared for your meeting. You also may want to read Ten Tips for Special Education Clients.

Good luck with your IEP meeting!

In a recent case in New York, a pro se parent (“Parent”) argued that her child’s school district is legally obligated to reheat her diabetic child’s homemade lunch meal. Parent sued under 504, the Americans with Disabilities Act (“ADA”), the Individuals with Disabilities in Education Act (“IDEA”), and other “statutes” and “regulations” that purportedly form a basis upon which to seek relief (see p. 2 and footnote 1, 2). Parent seemed to try to test the limits of a school district’s obligations under 504 and ADA. Ultimately, the court determined that the school district’s refusal to reheat homemade lunches did not violate 504 or the ADA.

The facts of the case are somewhat confusing. For reasons of brevity, let’s review the pertinent,
undisputed facts of the case and focus on why the court held that the school’s failure to reheat J.M.’s homemade lunches did not violate 504 or ADA.

In 2007, J.M. was diagnosed with Type 1 Diabetes Mellitus when he was 11 years old. On the advice of J.M.’s nutritionist, Parent made homemade lunches for J.M. to take to school. “This was to enable the parent and J.M.’s doctors to monitor his diet–specifically his caloric/carbohydrate intake–at least until J.M. became more accustomed to his ‘new situation.’” (see p. 6). Apparently, there were menu choices available to students with diabetes (see p. 6-7), but J.M. did not like the lunches provided at the school (see p. 31).

When Parent asked whether J.M. could heat his homemade lunch in a microwave, a school staff member agreed to warm up J.M.’s food using the microwave in the teacher’s lounge (see p. 7). For reasons that aren’t clear, however, J.M.’s food was not microwaved on a regular basis; as a result, J.M. did not always eat his lunches. It is not clear whether J.M. was afraid or too self-conscious to ask a staff member to microwave his lunches. It is not even clear if J.M. did not always eat his lunches solely because it was not heated up.

In any event, Parent became concerned about J.M.’s health and access to a microwave. Parent expressed concerns to a number of people, including school personnel and J.M.’s pediatrician, regarding J.M.’s glucose levels and not eating his lunches.

J.M.’s pediatrician signed a Glucose form and a request for a 504 accommodation, which contained very general statements and the importance that staff supervise J.M. to ensure that he “ingests adequate amount[s] of food to prevent hypoglycemia.” Significantly, when J.M.’s pediatrician signed a request form for 504 accommodations, it did not contain an “order or [a] request to heat J.M.’s lunch” (see p.9).

The school superintendent was concerned about “potential liability” associated with microwaving
the lunch meals (see p.10). The superintendent discussed alternative options with the parent, such as “training [the] student to make appropriate menu choices” (see p. 10). When Parent insisted that the school reheat J.M.’s homemade lunches, school personnel repeatedly denied the request (see p. 10).

Parent subsequently filed a petition for a due process hearing, ultimately seeking that the school provide J.M. a microwave so that he can heat up his homemade lunches (see p. 12). The hearing officer appeared sympathetic to the parent, but found against the parent (see p.13). Parent appealed to the State Review Officer and the matter was dismissed for lack of Subject Matter Jurisdiction to review Section 504 claims (see p. 14). Parent then filed a complaint in federal court seeking injunctive relief and damages.

The federal court determined that “Although diabetics must monitor their food intake, there is no medical necessity for them to consume hot food” (see p. 7). The court also determined that since J.M. was diagnosed with diabetes 5 years prior to the federal litigation, and since Parent argued that reheating homemade lunches would only be needed “until such time that [J.M.] was able to adjust to the dietary demands of his newly diagnosed condition,” the request for an injunctive relief was moot (see p. 22).

Parent also argued that the school’s failure to accommodate J.M. to reheat his homemade food and supervise J.M. food intake was discrimination under 504 and ADA. The court disagreed (see p. 27-30). In fact, the court held that the “request to heat up J.M.’s homemade food represents the archetype of a preferential, as opposed to a necessary, accommodation” (see p.30). As for supervising J.M.’s food intake, this, too “represents a preferential, as opposed to a necessary, accommodation” (see p. 32).

The court was unable to evidence of any discrimination (see p. 35). Since school staff had been monitoring J.M.’s glucose levels during lunch for years by this point (see p. 33-35), and since there was no evidence or proof that reheating lunches were medically necessary, summary judgment to the defendants was appropriate.

This case is rather remarkable because it seems to me that if the school had simply provided a microwave in the cafeteria so that students could heat up their own homemade lunches, the school district (and the taxpayers) could have saved an enormous amount of money. Alternatively, Parent could have purchased the microwave and donated it to the school cafeteria. Microwaves can be purchased for less than $100 these days. This litigation probably cost the taxpayers tens of thousands of dollars. Was it worth it? On the other hand, the school district and its attorneys may have been concerned with slippery slope — today, a microwave; tomorrow, a blender. That’s certainly what they might have been thinking. And there are certainly dangers associated with the use of kitchen appliances, especially among young children.

There is one additional piece of information about attorney’s fees that parents should be aware of: even if a federal court orders that the parent reimburse attorney’s fees and costs to the school district, the fee award may be overturned on appeal.

As a general rule, in order to overturn the fee award, the parents must persuade the appellate court that the school district was not a “prevailing party.”

By way of example: In a recent case, a federal court in the District of Columbia awarded the school district attorney’s fees and costs in the amount of $1027.50 for the time spent in litigating a due process complaint initiated by the parent. On appeal in 2011, the appellate court determined that the school district was not a “prevailing party” and therefore reversed the lower court’s decision to award fees and costs. The case is District of Columbia v. Ijeabuonwu.

Likewise, in a decision also issued in 2011, the United States Circuit Court of Appeals for the Ninth Circuit overturned a lower court’s fee award of approximately $140,000 in attorney’s fees and costs against the parents. The case is R.P. v. Prescott Unified School District.

Now, it goes without saying that appealing a fee award can be challenging. No lawyer can guarantee that parents will win on appeal. It also goes without saying that appealing a fee award can be expensive. The fees associated with litigating the matter in an appellate court can cost as much (and perhaps more than) the actual fee award.

It is therefore critical to weigh your options of prevailing in the appellate court. Even if the parents lack funds, it may be worth the effort to reach out to special education attorneys to see if they are willing to take your case on a pro bono basis. Alternatively, some pro bono legal organizations may be interested in your case. Some of us love a real challenge.

This is a very important issue because if the parent prevails, she not only gets some or all of the remedies that she sought on behalf of her special needs child, but she also gets reimbursed for some or all of the legal expenses paid out of pocket.

Now, I want to talk about what could happen if the parent files a frivolous lawsuit.

Although it is not common, it is possible that if a parent files a complaint for a due process hearing against a school district, the school district can sue the parent for attorney’s fees and costs. Fortunately, however, the circumstances upon which the parent may be liable for attorney’s fees and costs are limited.

Perhaps the clearest circumstance in which the parent may be liable for attorney’s fees and costs is when the parent files a frivolous lawsuit. Simply stated, a frivolous lawsuit is a lawsuit that has no merit. Thus, in a situation where a parent files a frivolous lawsuit and loses the case, a court may order the parent to reimburse the school district for attorney’s fees and costs.

Even if a parent files a legitimate complaint, another scenario in which a parent could be liable for attorney’s fees and costs is when a parent continues to litigate the case long after the issues have been settled.

By way of example, there was a recent federal case where a school district filed a federal lawsuit seeking an award of attorney’s fees and costs. In that case, the attorney had continued to litigate the issues even after the school district had agreed to offer all of the relief that the parents sought. The district court determined that the school district was the prevailing party and awarded the school district $10,000. In 2010, the Fifth Circuit upheld the $10,000 award. See El Paso Independent School District v. Berry.

Although it is not common for school districts to seek attorney’s fees and costs from parents in special education matters, parents must nonetheless ensure that their complaints are legitimate and continue to be legitimate throughout the course of the litigation to avoid liability. It is critical to keep in mind all of the pieces of the puzzle and how these pieces fit together.

It is always a good idea to speak with an attorney to ensure that your case has merit. In special education matters, it is advisable to speak with an attorney who is knowledgeable about special education laws and regulations.

I’ll give you a hint: look at the title of this blog article.

Most parents who have experience attending IEP meetings understand that appropriate goals and objectives must be developed and incorporated into the child’s Individualized Educational Plan (“IEP”).  Many parents also understand the importance of preparing for IEP meetings well in advance to ensure that the appropriate IEP goals and objectives are developed.

But children with disabilities are not the only ones who need appropriate goals and objectives. Parents must also have specific goals and objectives of their own as well. To the extent to which parents must deal with members of the IEP team and help develop goals and objectives and ensure that appropriate services and accommodations are provided to their child, parents have very specific goals and objectives of their own.

Yet, when there are obvious disagreements among parents and school personnel regarding services, accommodations, goals and objectives, some parents may lose their sense of objectivity. Emotions overtake reason; and when this happens, parents immediately file a State complaint or a petition for a due process complaint to “punish” the IEP team for one reason or another.

Whenever there are disagreements with school personnel regarding special education matters, the parent’s goal should not be to “punish” the IEP team. Rather, the parent should try to ensure that her child (1) receives all of the services and accommodations that she needs to do well in school and (2) has appropriate IEP goals and objectives. Focusing on “punishing” the IEP team means only one thing: the child’s education is secondary to everything else.

If there is one human quality that parents must protect and defend, it is this: credibility. A parent’s credibility can be adversely affected when the parent makes a bad move or commits a tactical error. When this happens, the parent’s child can suffer the consequences. This is one of the worst things that can ever happen in special education matters.

It bears repeating: Parents have goals and objectives of their own when it comes to their child’s education. Thus, if you have had disagreements with the IEP team and you are contemplating filing a State complaint or a petition for a due process complaint, ask yourself this: what is your goal and/or objective? What is it that you hope to achieve? Will filing a complaint benefit your child? For parents who are already in an emotional state, these are not easy questions.

The stay put provision of the Individuals with Disabilities in Education Act (“IDEA”) says that a child shall remain in the “then-current educational placement.” What does this mean? Well, the best way to explain this is to look at two scenarios in which the stay put provision can apply:

Example #1: A child is receiving special education and related services in a public school. The school district now determines that the child is “no longer disabled” or at least no longer needs special education and related services. When the school district proposes to declassify the child and cease providing the child special education services, the parents can invoke the stay put provision of the IDEA to ensure that the child continues to receive services pending the outcome of the litigation.

Example #2: A child has been attending an out-of-district placement at public expense. Certain IEP members from the public school district determines that the child should be transferred back in-district. When the child’s parents do not believe that the child’s placement should change, the parents can invoke the stay put provision of the IDEA to ensure that the child continues to attend the out-of-district placement pending the outcome of the litigation.

The stay put provision, therefore, is an extraordinary important safety procedural protection. Its power cannot be overemphasized. Stay put effectively “freezes” the child’s current services and/or placement pending litigation. Until a settlement is reached or a judge issues an opinion, the public school district cannot change the child’s program, services, or placement.

Parents need to keep in mind that under the IDEA they need to invoke stay put within 15 days of the proposed change. In other words, when the school district proposes changes in services or placement, and the parents do not agree with those changes, the parents have 15 days to invoke stay put. If the parents fail to invoke stay put within the 15 day timeline, the school district’s proposed changes will take effect under operation of law.

There are, of course, legal complications associated with stay put. Such complications often arise when dealing with students who exhibit serious behavioral and/or emotional issues.

The take-away message: Stay put is a procedural safeguard that parents must exercise within 15 days of the school district’s proposed changes. Parents should consider invoking stay put within the 15 day timeline if they do not agree with the school district’s proposed changes to the IEP.