FAPE? What’s the big IDEA?

That’s a funny title. I know. Its a pun on some legal acronyms that have to do with public education. The IDEA is the Individuals with Disabilities Education Act. Its several legislative generations in by now. Most people at least have a basic understanding of what protections that a child has in public schools under the IDEA. But it is deep. It is complicated. And parents who have children with disabilities, be they physical and debilitating or something as minor as attention deficit disorder, need to understand how to use this law to get the most out of public education.

FAPE is an acronym for ‘free and adequate public education.’ It is a phrase defined in the IDEA. The phrase seems simple enough. In its most basic form, the IDEA requires school districts to provide a FAPE to each and every child within its district. That means that the school district must partake in “child find,” or they must seek out children, even those not enrolled in their schools. (this is subject to some key exceptions as all laws are)

How does a school provide a FAPE to a child with disabilities you ask. Well, the IEP, of course. IEP is another acronym (Legislators and educators love acronyms) which stands for Individual Education Program. The IEP is the key to your child getting a proper education and having their particular needs addressed. The IEP can address the physical setting a child is in if they struggle with large class sizes, or it can simply outline a specific curriculum for a child with a learning disability. Regardless of the disability, the IEP can be suited to meet your child’s needs.

I got a chance to represent a young woman recently regarding the IDEA and FAPE. Why? Well this is simple. In our opinion, the school failed to provide a FAPE to my client by not addressing her specific needs in the IEP. The case got deeper and included bullying and the school failing to act. Yet, at its core, this case was about a young woman being denied an opportunity to learn. Her parents had attempted, without success, to work with the school to ensure their child had a safe environment in which to learn. The saddest part is, the parents did not know how to advocate for their daughter under the IDEA. Most parents don’t. I’m now going to show what it takes to successfully advocate for your child with disabilities.

You must fight! Not the kicking and screaming kind of fight, but more the pesky and busy bee type of fighting. You cannot let the school be complacent with your child’s education. If your child is struggling or not progressing, the IEP team needs to reconvene and reassess the situation. How do you make this happen? Request a meeting in person, by phone, by email and send a letter. You must have a paper trail. That’s worth repeating. You must have a paper trail showing that you have tried. The reason behind this is sad. The school will not admit that they are not doing their job. They will in fact fight tooth and nail to show that you are crazy for even suggesting that they may have fallen short. The people on the IEP team are not your friends when you start suggesting they did wrong. So keep records.

Request evaluations and re-evaluations if necessary. (Do it in writing) If you feel the school’s initial evaluations are wrong, request another or ask to have a second opinion. The schools will often not make this happen without you pushing for it. But a proper evaluation, be it a psycho-educational evaluation or psychiatric evaluation, can make all the difference. Your child’s IEP will be dependent upon these evaluations.

Insist that your child’s teachers are part of the IEP team. If they cannot attend, then ensure that they get copies of the IEP summary and that they are made aware of the action steps within it. Too many times the IEP is developed and it is a good plan, but it is not shared with those who are to implement it. This is key.

Finally, if you have done all you can, and the school is not doing their part, then you have rights. You need to understand that if you and the school disagree about something with regard to the IEP and/or its implementation, you can file for a Due Process Hearing. This is what I had to do with the family I was representing. However, one good thing about this administrative process is that the IDEA requires a Resolution Session within 30 days of a Due Process Request. It was at this Resolution Session that my client and her parents were given the support and respect that they deserved. We were able to reach a settlement in the matter. We were able to ensure that this child’s needs were going to be adequately assessed and addressed in the school. That’s a victory!

If you have a child that has an IEP and is still struggling in school, or you have a child who you suspect has a learning or attention disorder that has not been diagnosed, you have options and your child has rights. The IDEA is complicated and the process of getting the school to follow it is just as complicated. You may need the help of an attorney to get things rolling in the right direction. Sometimes all it takes is to make a little noise. Whether you need advice regarding an IEP or you have serious concerns with your child’s education, please give me a call. Consultations are free.

DISCLAIMER:
The above strategy works even if you have a great school with great teachers and administrators. You just might not need the paper trail. Also, I’m fairly certain most schools and their staff want to help your child. Sometimes they don’t know the law either.

 

Brandon J. Cox

Attorney At Law

201 West Main Street

Smithville, Tennessee 37166

(615) 597-5297

Liar Liar!

I had the pleasure of witnessing, what must truly be a singular event in the practice of law. It occurred on Friday last, in small claims court in my home town. It was a simple detainer action which my partner was hired to administer. The lease was solid, the owner kept great records, and the Defendant was Pro Se. Nothing to it, right?

That’s what we expected. The Plaintiff claimed damages in an amount equal to unpaid rent plus costs. The Defendant says “I paid rent.” Still this is in the realm of normalcy. People make these claims all the time. You see, when we say “the truth, the whole truth and nothing but the truth”, we don’t really mean it. We only want the pertinent truth and just a snapshot of that. But courts do expect the truth.

I am thoroughly convinced that some degree of perjury is committed every time the court is in session. Most of the time it occurs with things none too important. My favorite is the Defendant, appearing for driving on a suspended licence who swears to the judge he will not drive until he gets them back. That same Defendant usually walks out of court, gets in his car and drives home. But what I witnessed on this day shook me a bit.

You see, the tenant (Defendant) says she paid rent. But she went on to say, “I have proof.” Ok. At this point, my partner is perplexed. She was prepared, she had exhibits, she had witnesses, and she even had a recording of the Defendant stating that rent had not been paid since September. So obviously, this peaked my partner’s interest.

The Defendant proceeds to introduce to the court 4 photocopies of checks that had been sent by her to plaintiff. And deposited in plaintiff’s bank. Now, the Plaintiff does not have a record of these, and they kept great records. They just didn’t exist.

The judge instructs defendant to show the photocopies to Plaintiff’s counsel before presenting to the judge. My partner is 100% blind, but she has impeccable intuition. (not to mention a heightened sense of hearing, which is a topic for another post) She has an assistant who peered over these copies. It took only a brief glance for suspicion to set in. The judge was warned by plaintiff that these appeared to be altered.

Could this really be happening? I began to get nervous for the Defendant. It felt wrong just to watch. I felt that, at any moment, the judge would lay down the papers, rise from his chair, and proceed to reign down a ferocious and inflamed barrage of condemnation on this woman. Usually, in reality, this looks very similar to contempt and jail. (But I like fire and condemnation better!)

Yet, the judge, as calming as the setting sun, asked the parties to stand and be sworn in. Following the ordinary spiel about truth and whole truth came a very emphasized “under penalty of PERJURY!”

The defendant subsequently admitted under oath and on the record that she had a friend “fix up” these documents. She had no explanation as to why. And, to be honest, she did herself a favor by not laboring the court with petty excuses.

Still, I sat in amazement. First, wondering to myself what it must have felt like to knowingly present false documents to a court of law. It almost, and I stress almost, made me feel sorry for her. But second, I could not believe the reaction from the judge. It was as unexpected as the perjury. But in the end, the court may have the last laugh.

The court explained to Defendant that he was going to present this forgery issue to the D.A. and see if the general wanted to pursue criminal charges. So, it seems that Ms. Defendant may have a place to stay after she has to vacate the rental… The county clink!

If you are ever before a court for any reason, just be honest. The truth will come out, and if that happens while you are still the same room with the judge, do not expect to be treated as generously as this woman was!

Brandon J. Cox, esq.
201 West Main Street
Smithville, TN 37166
(615) 597-5297

Ab Initio

“In the beginning…” This famous opener, kicks off the Good Book and as such is good enough to ignite my first ever blog.  I’m new to this and the practice of law. But everyone was new to everything at some point. As I venture out into my legal career in a small town firm with two lawyers, I endeavor to make a difference. What kind of difference I dare not speculate.

This blog will serve as a notebook of all the legal issues I encounter. I seek to pass on the knowledge of my failures and hopefully some successes. In addition I will attempt to describe life as an attorney. But more specifically, a solo practitioner in a tiny town. One that encounters a plethora of legal questions on a daily basis ranging from alimony to workers compensation. Jack-of-all-trades trades is a requirement.

I will also pass along stories from the office and comment on pressing legal news. I like to debate and encourage disagreement.

If you are reading this you are probably a friend or family member, but thank you nonetheless. I look forward to posting and receiving your feedback. Thank you!