Do I Need an Attorney, an Advocate, Both or Neither?

When do you need a special education attorney versus a parent advocate?

Federal and state laws require school districts to find and identify children with disabilities. Parents can request that their child be evaluated, and schools must respond appropriately. Once children have been identified, the schools are required to determine if they are eligible for special education services, and if they are, to provide those services in an appropriate manner.

In many cases, and with the right information, parents can advocate effectively for their child in the special education setting. The special education process was set up to be relatively non-adversarial and to allow parents to be members of the IEP team and collaborate with schools. However, some school districts push back when parents question their decisions, fail to truly inform parents of their rights under IDEA and Section 504, and fail to identify, evaluate or provide appropriate services to children with disabilities. If you are experiencing push back, you suspect something is wrong but cannot get your school to listen, or you believe your child is not getting services that allow him or her to progress appropriately, it may be time to call for help.

Your next decision is whether to call a special education attorney or parent advocate.

Abdnour Weiker, LLP has both advocates and special education attorneys to handle cases. Our advocates are many times more financially affordable to families, typically billing at 50% of the attorney hourly rate. Another benefit to hiring Abdnour Weiker, LLP is that you can start with an advocate but if the situation ever progresses to needing an attorney, our attorneys are already up to speed and familiar with your case. That means less time transitioning from an advocate to an attorney, and less money spent by the family.

Both advocates and attorneys should have a solid understanding of the IDEA and 504 frameworks at the state level, disabilities, educational theories and practices, and school environments. They should be aware of appropriate interventions for children with disabilities, be able to connect you with resources and services outside the school, and be adept at effectively communicating with school districts.

Here are some tasks that BOTH special education attorneys and advocates should be able to do well:

• Evaluate initial and triennial Evaluation Team Reports

• Advocate for and help draft appropriate and effective IEPs

• Advocate for Section 504 eligibility and help draft appropriate and effective 504 plans

• Advocate for Independent Educational Evaluations

• Evaluate and advocate for Functional Behavior Assessments & Behavior Intervention Plans

• Advocate for students with behavioral disabilities and protect those students when schools want to discipline them

• Understand and advocate for effective progress monitoring

So, when should you consider a special education attorney?

Advocates and attorneys should be able to evaluate your case to determine if you need legal or advocate assistance. However, the following may be red flags to alert you that an attorney may be needed:

• Your child’s needs concern specific areas of law such as placement outside of the school, your legal rights of confidentiality, etc.;

• Your child faces expulsion and/or criminal charges for conduct within the school;

• The school has brought in an attorney to help them, or you need to answer a letter written by an attorney; or

• You need to move beyond advocacy to file a formal complaint or due process with the Ohio Department of Education, or a complaint with the Office of Civil Rights.

The best way to determine if you need an advocate or attorney is to call one and ask. A responsible advocate will tell you when you need an attorney, just as a responsible attorney will tell you when you can use an advocate. Make sure they listen more than they talk – the hallmark of effective advocacy is in their listening skills!

Questions? Call us at 614.745.2001 or visit www.Lawyers4Students.com

Can I Leave Work to Attend an IEP Meeting?

FMLA LEAVE MAY BE AVAILABLE TO PARENTS TO ATTEND IEP MEETINGS 

On August 8, 2019, the U.S. Department of Labor, Wage and Hour Division (“the DOL”) issued guidance on whether an employee may take protected leave under the Family and Medical Leave Act (“FMLA”) to attend a meeting to discuss the Individualized Education Program (“IEP”) of the employee’s son or daughter. U.S. Dept. of Labor, WHD, FMLA 2019-2-A(August 8, 2019). 

1. FMLA Leave

As a starting point, FMLA provides that an employee eligible for FMLA may take up to 12 weeks of job-protected, unpaid FMLA leave per year “to care for the spouse, son,daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.” 29 U.S.C. §2612(a)(1)(C); see also 29 U.S.C. §2611(11); 29 C.F.R. §825.112–.115.

2. IDEA and Related Services

Alternatively, the Individuals with Disabilities Education Act (“IDEA”) requires public schools to develop an IEP for astudent who receives special education and related services, with input from the child, the child’s parents, teachers, school administrators, and related services personnel. Under IDEA, “related services” may include such services as audiology services, counseling services, medical services, physical therapy, psychological services, speech-language pathology services, rehabilitation counseling services, among others.

3. DOL Conclusion

Considering both statutes, the DOL instructed that attendance at IEP meetings does qualify FMLA-covered leave so long as the employee’s son or daughter suffers from a “serious health condition” as defined in the law. FMLA defines a “serious health condition” as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider. Many students receive “continuing treatment” by a healthcare provider pursuant to their IEP. 

4. FMLA Medical Certification

An employer may require the parent to provide a medical certification in order to verify the existence of the child’s serious health condition. This certification is a standard FMLA form issued by a health care provider, further supporting the request for leave. This certification would verify that the child’s condition qualifies as a “serious health condition” under FMLA. 

5. Parents Input is “Essential”

In issuing the guidance, the DOL recognized that the parents in question attend IEP meetings in order to “help make medical decisions concerning their children’s medically-prescribed speech, physical, and occupational therapy, to discuss their children’s wellbeing and progress with the providers of such services, and to ensure that their children’s schoolenvironment was suitable to their medical, social, and academic needs.” The DOL also instructed that, a parents’ attendance at IEP meetings is often “essential to [the parent’s] ability toprovide appropriate physical or psychological care” to theirchildren, further justifying the application of FMLA protected leave for IEP meetings. 

6. Intermittent Leave 

Under FMLA, an employee may use the leave intermittently or on a reduced leave schedule when medically necessary because of a family member’s serious health condition. 29 U.S.C. §2612(b)(1); 29 C.F.R. § 825.202. This means that the employee may apply the FMLA leave as-needed, for portions of a workday, rather than in a scheduled days or in continuous days. Intermittent leave is the type of leave most parents would need to request and use for IEP meetings. 

Finally, the DOL instructed that the child’s doctor does not need to be present at IEP meetings in order for the leave to qualify under FMLA. The conclusion provided by the DOL alsoapplies to any special education meetings held pursuant to IDEA. 

This article was authored by education and employment attorney, Mark A. Weiker. 

Questions? Call us: 614-745-2001

Starting Point: ADHD

School-aged children with ADHD

Attention Deficit Hyperactivity Disorder (ADHD) is a neurological disorder affecting between 4-12 % of school aged children. It is a deficiency of a specific neurotransmitter called norepinephrine. The ADHD brain matures at a different rate than a typical brain, resulting in a delay of 3-5 years of the frontal cortex area, and a faster than typical motor cortex. Among other things, the frontal cortex is responsible for suppressing inappropriate actions and thoughts, focusing attention, short term memory and the ability to work for rewards. Two thirds of children with ADHD have at least one other co-existing condition such as a learning disability, anxiety, depression, oppositional defiant Disorder, or others. Common symptoms of ADHD are inattention, impulsivity, poor social skills, and poor concentration.

Many children with ADHD are not appropriately evaluated for a disability or accommodations in school. According to the Office of Civil Rights (OCR), ten percent of OCR complaints in the last 5 years have dealt with allegations of discrimination against students with ADHD. Because of this, in July 2016 OCR issued a guidance document for students with ADHD.

The guidance clarifies:

• when a student may be eligible for special education or related services;

• makes clear that even students who perform well academically may have a disability if also substantially limited in major life activities such as such as reading, learning, writing and thinking; and

• reminds schools to provide parents with information regarding due process and how to appeal a decision involving identification, evaluation, or educational placement of students with disabilities.

This guide is available on the Office for Civil Rights’ website at http://www.ed.gov/ocr.

Questions? Call us! 614.745.2001