Attorneys discuss special education laws

By DANIELLE LYNCH

In the area of special education, there are several laws and mandates set by the federal government that are adapted and enforced at the state and local levels. Because special education has become more litigious over the years, school districts and parents often hire attorneys who specialize in this area of law.
The Individuals with Disabilities Education Act (IDEA) is the federal law which ensures special education for disabled students between kindergarten and 12th grade. IDEA was originally enacted in 1975 as the Education for All Handicapped Children Act.
IDEA, which is aligned with the federal No Child Left Behind Act, is implemented in each state. In Pennsylvania, special-education services and programs are defined under the 22 Pennsylvania Code, Chapter 14, according to the Pennsylvania Training and Technical Assistance Network, also known as Pattan. After years of revisions, the final Chapter 14 regulations were published in the Pennsylvania Bulletin at the end of June 2008 and went into effect on July 1, according to Pattan.
There’s also a law known as Section 504 of the Rehabilitation Act of 1973 which works as a “companion” statue to IDEA, according to attorney David Painter of Sweet, Steven, Katz & Williams law firm in New Britain, Bucks County, who represents several Chester County school districts as a general solicitor and advises on special-education issues.
In addition to the Rehabilitation Act, the Americans with Disabilities Act of 1990 protects individuals with disabilities outside of the kindergarten through 12th grade settings.
IDEA defines several principles for special education. Some of the commonly used terms are Free and Appropriate Public Education (FAPE); Individualized Education Program (IEP); and Least Restrictive Environment (LRE).
“I think the law has in it inherited tension and it has to do with the term ‘free and appropriate education,’” Painter said.
Free and Appropriate Public Education was addressed by the United States Supreme Court in the 1982 Board of Education v. Rowley. In this case, the court decided that the child’s IEP must be reasonably calculated to provide meaningful educational benefit to the child, Painter said. But he said he believes this decision still does not give an explicit definition for appropriate which results in a lot of conflict.
Richard Chamovitz, a special education attorney based in Wayne who represents families with special-needs children, said special education has become a litigious process. He said that parents are supposed to be equal participants of the IEP team according to the law.
“The reality is there’s the school district and then there’s the parent,” Chamovitz said.
Special education has become an “under-funded, overwhelmed and outdated system,” said Chamovitz, a former federal prosecutor in Washington, D.C. “Congress left it to the states to make it happen.”
Chamovitz, who was also the past president of the Arc of Chester County and has a son with special needs, said he tells parents to empathize with the position of school districts. In addition, he tells parents they should focus on being part of the solution and ask how they can help with the situation.
“As a parent, keep your eye focused on the child’s issues and not let yourself get caught up by emotions that will arise by working through the education process,” Chamovitz said.
Inclusion and Least Restrictive Environment issues were addressed by the United States District Court in Philadelphia in Gaskin v. Pennsylvania Department of Education. This began as a class action suit back in June 1994 and a provisional settlement agreement was reached in December 2004, according to the Pennsylvania Department of Education.
As part of the Gaskin Settlement, the state must provide a LRE and start with the assumption that the special-needs child should be in a typical classroom, Chamovitz said. If that doesn’t work, the next step would be to work with a child in a “pull-out” situation, he said.
Special-education lawyers can assist families and school districts with a process of mediation, which is when they work with the conflicting positions and encourage compromise, according to Pattan’s Office for Dispute Resolution. If issues can’t be worked out, the next step is generally due process, which is a legal proceeding in which a hearing officer renders a decision about the child’s education.
“If you go to due process, the line between the parents and the school district are quite clear,” Chamovitz said. “The system talks about collaboration but the default is litigation. The focus really needs to be the child.”
Painter said he agrees with Chamovitz that true collaboration in special education is important. Chamovitz said that teachers, aides and therapists work hard to help children in special education, and Painter agreed.
“The overwhelming majority of educators are motivated to do the right thing,” said Painter, who was formerly a school psychologist for special-needs children.
But from the school district’s point of view, Painter said, administrators are trying to balance the needs of disabled children while also addressing special-education costs. This is because special education is not fully funded at the state and federal levels so costs trickle down to the local school districts, he said.
“It’s a balancing of competing needs,” Painter said. “Taxpayers expect administrators to be mindful of costs.”
Another struggle of school district administrators and teachers is the paperwork, Painter said.
“It’s discouraging to some teachers that go into special education because they want to spend time teaching, and many feel they are spending inordinate amounts of time on paperwork and legal requirements,” said Painter.

For more information about special-education guidelines, visit http://www.pattan.net/

To contact staff writer Danielle Lynch, send an e-mail to dlynch@dailylocal.com.