By George Zelma and David Berlin
May 28, 2018
Tips from an attorney who specializes in education law.
Attorney George Zelma focuses his practice on special education law. We talked to Zelma about the kinds of cases he handles, what sorts of conflicts can arise, and what he’s learned about how to work with your local school district to get the placement and services your child needs.
What kinds of situations lead to parents calling in an attorney?
We often get contacted to help parents when there’s a dispute brewing about what a child needs and is entitled to.
Under the law, when a child is having difficulties, a parent (or a teacher or other professional) can make what’s called a “referral” to the Committee on Special Education—that indicates the need for an evaluation, to say, “I see something here.”
This referral sets in motion a process that leads an individual education program, or IEP, for the child. The IEP has to address the academic performance of the student, his or her social performance, needs, and goals.
It will also make a recommendation as to what kind of program he or she should be in, for instance, “this child should be in a six-to-one-to-one,” which means six students, one teacher, one teaching assistant.
Now, if there’s a dispute between the parents—who are members of the CSE team, by law—and the school district or, in New York City, the Department of Education, there are steps parents can take to resolve the disagreement. That’s where we might come in.
What might the disagreement be over?
Sometimes parents ask for certain things, like assistive technology, or an aide to be assigned to their child, within the public school program. Other times it’s a private placement that they’re seeking.
On what grounds would parents ask for a private placement?
The law says that every classified student is entitled to a “free and appropriate public education,” or, as it’s known, “FAPE.” The law allows parents who do not believe what they’ve been offered is an appropriate program and placement for their child to find a placement on their own (“unilaterally”) and be reimbursed for it, if certain facts exist and can be proved.
For example, parents might feel that the group of students their child has been placed with will create problems: When a student who doesn’t have an emotional disturbance is placed in a classroom with students with emotional disturbance. A dyslexic student with a high IQ is probably not appropriately placed in a class with much lower functioning peers. Some students need language-based programming throughout the day.
A parent of an autistic child might be fine with the program that’s recommended—say six-to-one-to-one-but not the particular school placement. The school environment might not be right for that student. For example, there might be physical barriers or overcrowding; distractions and over stimulation.
Or perhaps a child is doing poorly in her current placement. In October the parents might come to us, saying, “You know, we started the school year and it doesn’t seem to be working out. My six-year-old seems distraught.” Sometimes parents come in and they’ve already identified a school they would like to send their child to. So there can be many fact patterns that utilize our advocacy and legal services.
What can you do to increase the chances of getting what you think a child needs?
In my experience, disputes can arise when the school personnel have already made preliminary decisions before parents even walk into that committee room. They’re allowed to meet in advance of the parents coming there. So I try to do what I call “front-loading,” to get the school members of the Committee on Special Education (“CSE”) any and all valuable information and data such as neuropsych evaluations as early as possible, so they have plenty of time to consider the student’s needs, instead of just walking in with it.
I believe it’s important to reach out to them. Try to talk and say, “Look, here’s a report. This is what it says.” And then give the CSE the opportunity to dispute it on a professional basis, around the merits of the situation. Because once the CSE members have sort of made up their minds, for whatever reason, then it becomes more difficult to change.
That’s why the neuropsych component—or whatever testing is appropriate to a particular child — is so critical, because that’s what will ultimately indicate where this kid’s needs lie. Then, in legal terms, if you ask for it, chances are good that you’re going to get the recommendation in the report to be seriously considered and hopefully adopted in the IEP.
Our approach is to really try to describe what the student experiences in the classroom, not just his diagnosis. It’s much easier to get what is needed if you do that, because it brings to life his particular learning profile and experience. When you can convey things from the point of view of the student, how she or he perceives a particular moment, it will be easier to draft the IEP.
Is it true that it’s become more difficult for parents to get reimbursement for a private placement?
Until about 2005, it was easier to prove successfully what a child needed. Then court decisions started to turn against parents. Now, very often, parents are practically put on trial.
Two United States Supreme Court cases, Burlington and Carter, held that the parents must be able to demonstrate that they have cooperated with the school district’s efforts to create an IEP and that the “equities” therefore, favor reimbursement. But in recent years, parents are told: “Oh, you had a closed mind. Oh, you didn’t really have an open mind to this.”
For example, they are asked when they made up their minds about a private placement. When did they sign the contract? This can lead to some real difficulties and hardships, because some of the openings in private schools, the seats or the beds, go quickly and parents are asked to commit contractually as early as February or March for the next school year. And if a child is not doing well, you don’t want to lose another school year.
So, parents are unfairly put between a rock and a hard place to prove that equity favors tuition reimbursement.
What role do teachers play in the process?
Teachers are supposed to refer kids to special education when they think it’s the appropriate thing to do—but there is pushback because of finances. So teachers can get caught in the middle. This is the only field of law I’ve ever been involved in where something like this happens: You’re in a hearing, on a coffee break, and the teacher will say, to the parents who have made unilateral placements and to me, “Oh, you’re doing the right thing.”
But then they go back into that hearing room and say, “Oh, yes, our program is appropriate,” because they’re administratively forced to do that, and they’re nervous about their jobs.
It’s very confusing for parents, because parents get feedback from the teachers that they need to do something, and then when they try to assert their rights under the law, they have the very same teachers saying in the hearing room, “Our program is totally appropriate.”
What pitfalls should parents be aware of?
One cornerstone of the law is that a child should be educated in the “least restrictive environment” that’s appropriate for him. It stems from the days when kids were warehoused, stuck somewhere out of sight, and allowed to go from September to June with no advancement. Those kids were left behind not only educationally, but also socially and emotionally, and the result is kids who are really less likely to transition into independent young adulthood.
This good “least restrictive environment” concept has been turned on its head, in my opinion. Now if a parent wants to put a child in a private school, the district comes and says, “Well, that’s too restrictive—he won’t have any access to mainstream students.”
It is important that parents can demonstrate that their child’s needs require the type of setting for which they are seeking reimbursement.
So it can be used to keep a child in a mainstream classroom, even if the parents don’t think it’s working?
Well, yes. That’s why it is very important to have supportive data in evaluations and school records to prove that the rejected placement was not calculated to meet a student’s needs and that the parents had to fund an appropriate placement on their own.
So what’s the lesson we should draw from this?
It’s still very possible to get favorable results, but it’s like walking through a minefield, and you have to be very careful not to step on something. So they may say, “Yes, we didn’t offer a FAPE, and yes, the school you picked was appropriate, but you didn’t cooperate. You made up your mind too early.” Or the school you picked isn’t the least restrictive environment . So it requires greater preparation on the part of parents and advocates for parents in order to prevail.
The law (IDEA) is still a great enlightened statute passed by Congress to level the playing field for students with learning disabilities. When a child’s needs are presented as evidence, the law’s requirement for an appropriate program and placement to meet those needs will be recognized at some state of the IEP process.
Attorneys George Zelma and David Berlin are trial lawyers and advocates serving the needs of families and children in New York State. They also produce documentary films to educate mainstream students about the needs of their special education peers.