The International Council on Infertility Information Dissemination, Inc

How Has The Nursing Profession Evolved And Where Is It Headed?

Team of medical personnel in a hospital

Nurses are essential components of a functioning healthcare system and have been for some time. However, it is only within the last couple of centuries that nursing has been recognized as the profession we know today.

The Birth Of Modern Nursing

Healthcare has been an important part of human civilization since its earliest days. However, nursing did not emerge as a proper bonafide profession until around the middle of the 19th century. Most historians agree that Florence Nightingale is the first example of a modern nurse. Prior to her arrival, there had been many people, mostly women, doing work that we would now recognize as nursing, although it was not referred to as such at the time, as male doctors dictated the terms of healthcare.

Florence Nightingale was the first person to recognize the importance of the scientific method for healthcare. Her contributions to nursing during the Crimean war laid the groundwork for the modern field of nursing.

A decade later, with the outbreak of the American Civil War, the nursing profession accelerated as women like Mary Ann Bickerdyke and Captain Sally Tompkins developed many of the techniques that would become standard for nurses going forward. Many of the volunteer nurses during the civil war were female slaves. Freed male slaves would often fight for the union army, while freed female slaves would offer their services as nurses and caregivers.

Because of this, public support for and recognition of the nursing profession spread across the United States. The contribution of women throughout the civil war also helped to cement their role in American society. For the first time, there was a recognized and respected profession that women could pursue. However, nurses were still considered inferior to male doctors.

Training

The study and field of nursing began to coalesce into the profession that we recognize today. With the emergence of nursing as a recognized vocation for many ambitious women, a standardized approach to the training was required. The first programs that we would recognize as training for nurses opened their doors to students in the late 19th century.

By the latter half of the 20th century, these training courses had evolved into more complex and comprehensive training programs, and colleges and universities took over responsibility for training new nurses from hospitals, which had been handling the training process until then.

Work And Responsibilities

Over the years, the responsibilities of a nurse have also changed quite dramatically. There are a number of reasons for this, shifting societal attitudes towards nurses and towards the role of women in nursing, in particular, have played a big part.

Nurses are no longer considered as subordinate to doctors, and there is now a recognition that the two roles are different, although they obviously complement one another. Nurses were originally seen as caregivers, looking after patients while they were stuck in the hospital, but not really providing much in the way of medical care, which was left to doctors.

As Americans began to seek out medical care in greater numbers, more nurses we needed in the second half of the twentieth century to cope with the increased demand. This resulted in the nursing profession expanding significantly and nurses taking on many of the roles and responsibilities that had previously been reserved for doctors.

The Future Of Nursing

We have looked at how nursing has changed over the years. Now let’s take a look at where it is headed in the future.

The nursing profession is in a constant state of flux. There are always new advances being made in the fields of medicine and technology, and these advances can significantly impact what nurses do and how they do it. As time goes on, nurses' training is continuing to expand, meaning that nurses are able to take on new responsibilities. This is a trend that we have witnessed since the earliest days of nursing, and which we expect will continue long into the future.

Nurses today have more options than ever before when it comes to career progression. A registered nurse can set their sights on any specific field or industry within the realm of healthcare that they would like to work in. For example, if you are passionate about working with children, then you could pursue a career as a family nurse practitioner or pediatric nurse.

The nursing profession has changed a lot since Florence Nightingale’s time and will likely be unrecognizable again in another century. Nurses are always going to be in demand, that is never going to change. But the nature of nursing reflects our current understanding of both medicine and technology.

How to Reach Your Full Potential as a Registered Nurse

Photo of nurses as part of a surgical team

Many people outside of the medical community tend to think of nursing as a one-dimensional profession. The classic description of a nurse as one who assists physicians in the administering of healthcare is certainly one way in which a registered nurse can function. However, there is so much more than one might do with a nursing degree than this.

While there will always be a place in the medical world for dedicated nurses who give their all day in and day out to care for patients as RNs, there are a number of incredible options out there for nurses who feel that their talents, skills, and experience would lend themselves to other roles that might be higher up in the medical hierarchy.

Such nurses can contribute a great deal to the field of medicine. In fact, it is becoming more and more common for nurses to be placed in positions of great responsibility. This is because the firsthand knowledge and experience that nurses obtain from working directly with patients and physicians make them more than capable of providing insight into how better patient outcomes can be achieved across the board.

If you feel that your potential as a nurse is such as would make you a strong candidate for positions of greater responsibility and contribution to the world of medicine, there are certain things that you can do that will help you to reach that potential. Here are just a few of the more common ways in which a nurse can reach for more in his or her career.

Advanced Degrees

Advanced degrees are an interesting subject for nurses. It is possible to practice as a nurse with just a nursing certificate under our belt. Although this is the case, most nurses these days opt to at least obtain a two-year associate's degree in pursuit of the RN certification. Still more feel that it is better to go for a four-year Bachelor of Science in Nursing degree (BSN) in order to work as a qualified nurse.

Anyone who is looking to reach their full potential as a nurse will want to at least have a BSN degree. This is essentially the first step to earning further advanced degrees that will help you in your career. For instance, if you hope to work as a nurse practitioner, you will need to have a DNP. You will not be qualified to earn a DNP unless you at least hold a BSN first.

 

The next question you might be wondering is what does DNP stand for? DNP stands for Doctor of Nursing Practice. This is the highest type of degree that a nurse can hold and carries a great deal of weight within the medical community. By earning your DNP, you become qualified to do so much more within the field of nursing and the world of medicine as a whole.

While it is helpful to have a Master of Science in Nursing (MSN) before enrolling in a DNP program, this isn’t always necessary. There are a number of excellent programs out there that provide for a BSN to DNP track. Ultimately, the decision to go for a DNP without an MSN will pretty much depend on what it is you would like to accomplish in your career.

Those who hope to study and work in a very specific niche of medicine might wish to be equipped with as much knowledge and experience as possible. These individuals might, thus, opt for multiple degrees. However, it isn’t entirely necessary in all cases. A career or academic advisor should be able to point you in the right direction in this regard.

Your next question might very well pertain to how you would possibly earn such a hefty degree. Most nurses work in shifts that can vary from month to month, or even week to week in some cases. The hours that a nurse works aren’t exactly conducive to becoming a full-time student. The good news is that these days there is no shortage of options available for nurses dedicated to reaching their full potential.

Online degree programs are designed specifically for such purposes. A nurse can now enroll in an expedited, online DNP program for a reasonable tuition cost. While the workload will be heavy for a while, it will ultimately be worth it if you are able to reach your full potential in your nursing career.

Make Connections

Another incredibly significant piece of the puzzle when a nurse is trying to advance in his or her career is that of professional connections. The medical community as a whole thrives off of such connections amongst working professionals. The importance of medical and healthcare professionals being able to exchange experiences and ideas cannot be overstated.

This is why such things as professional organizations exist within the medical community. Physicians, nurses, and other professionals can connect via such organizations with others who work in similar roles. There are even some organizations that are specific to the particular field of medicine that one works in or is studying.

For example, the Academy of Neonatal Nursing is a professional organization designed for nurses who work in the neonatal field. On the other hand, the American Academy of Nursing is one that is open to nurses who work in all fields. Other organizations are state-specific and help nurses within the same state network. By joining such organizations, you obtain access to a valuable community of like-minded nurses.

Via a professional organization, you can stay in the loop with major developments in your field. Such developments might be legislative in nature or they might be related to breakthroughs in medical research. No matter what the context might be, anyone looking to achieve their full potential in nursing should stay current on any and all major developments.

You also gain access to events pertaining to your specific field. Such events can help you to network and build valuable professional relationships with your fellow nurses or they might be educative in nature. Some events might even count towards your required continuing education credits as well.

The connections that you make and the knowledge that you stand to gain by being part of a professional organization can be incredibly helpful in allowing you to reach your full potential within your nursing career.

Find a Mentor

If you are someone who is looking to achieve a certain level of success in your career, one of the most valuable resources that you could give yourself is that of a mentor who has already been there. A mentor is someone who can give your firsthand knowledge and advice that can aid in guiding you to reach your full potential

Even someone who is only a few years and steps ahead of you in their career can prove to be invaluable as a mentor. The guidance and advice that a mentor can supply you with can help you to better understand the steps that you should take and the mistakes that you should avoid in your own career path.

Finding the right mentor might be a bit easier than you think, as well. If you work for a major hospital or health system, there might already be a mentorship program in place that you can enroll in. Just inquire with your human resources department to see if such a program exists and if they are taking candidates at this time.

 

If you don’t have a program of this nature at your disposal, there are still ways of finding a mentor that are a bit more on the informal side. You can simply look to see if there is someone withing your professional network that you respect and who would make a good mentor.

The qualities of a good mentor are a bit on the subjective side as you are essentially looking for someone who is in a position in their career that you aspire to with your own and who also is willing and able to impart their knowledge to you. You should look for someone who is regarded as a leader and who has a reputation for being reliable. Such a person should be happy to work with you in this way and offer you professional feedback throughout the next stage of your career.

Know Your Goals

While this might sound like a piece of generic career advice, it is not something that can or should be overlooked. There is no clear way of reaching your goals in your career unless you know exactly what those goals are. Simply having a vague picture in your mind of being a contributor to developments in healthcare will do you no good if you are trying to reach your full potential.

For the years that you are in nursing school, you will be exposed to various fields of nursing. It is perfectly ok for you to not know precisely what you want to do and accomplish at this time as it is very likely the first time that you are being introduced to such things. It is through experience that you will be able to find your true calling as a nurse.

Once you have found that pursuit that you would like to dedicate your energy and talents to, it is important to sit down and lay out what it is that you would like to accomplish. It might seem a bit silly, but it is a good idea to physically write out your goals onto a piece of paper. Not only does this help you get a clear picture of what those goals are, but such a tactic can help you associate particular steps in your career with achieving your goals.

It is important that you take the time to do a bit of introspective thinking on this score. You want to make sure that you are doing all that you can to reach your goals on a professional level. Now, this isn’t to say that those goals won’t change or develop as you go along. Reaching your full potential is not a one-step process. Make sure that you know where you would like to get in your career but are open and flexible to the changes to your vocation that might develop with more time and experience.

Practice Self-Care

Another piece of advice that you will want to bear in mind if you truly hope to reach your full potential in your nursing career is that you need to take the time to practice good self-care. Often, nurses spend their entire professional, and most of their personal, life thinking of others. While this is no doubt one of the shining qualities that make nurses so valuable to society as a whole, it can also lead to the tendency to put one’s self on the backburner.

Ultimately, if you burn out professionally, you won’t be very likely to achieve much in your career. Moreover, you can’t expect yourself to continue to offer your patients the highest levels of care if you do not first care for yourself. With extensive hours that will need to be dedicated to working, education, and your professional development, it might seem like there won’t be much time left over for looking after yourself.

However, there are ways of working self-care into your schedule, even if that schedule is jam-packed. Every once in awhile, take a break for a few days and get away from work and school. Taking a day or two to recharge is incredibly helpful in avoiding mental burnout.

Make sure, also, that you give yourself the chance to get the right amount of sleep at night. Nursing is a job that typically requires you to be on your feet for most of your working day. Coupling this with the fact that you have to be mentally checked-in all day makes for a fairly exhausted nurse by the end of a shift. The right amount of sleep at night is the only way to ensure that your mind and body are able to fully recover and recharge for the next busy day.

ADA Resources

ADA & Disability History

ADA Timeline

Learn more about the history of the Americans with Disabilities Act (ADA) through this historical timeline from the ADA National Network. 
Web: adata.org/ada-timeline

ADA Highlights - George H.W. Bush Presidential Library Museum

This website highlights the ADA, its history, and provides an ADA Lesson Plan, quotes from President Bush about the ADA, and other historical resources.
Web: bushlibrary.tamu.edu/features/2010-ada/

ADA Exhibit - Presidential Timeline

This virtual exhibit features the ADA as a key piece of legislation signed during President Bush's administration and highlights other related events and issues.
Web: presidentialtimeline.org/#/exhibit/41/06

EveryBody: An Artifact History of Disability in America

This virtual exhibit from the National Museum of American History explores the history of disability through the material record of the people who lived it from stereotypes to laws, technology and issues in everyday home life for people with disabilities — How the story unfolds depends on how you, the visitor, shuffle it. Featuring images documenting more than 50-years worth of objects and stories collected by the Smithsonian, the exhibit is the museum’s first to be presented exclusively online which they plan to build upon with additions and frequent updates as well as a vibrant social media presence.
Web: everybody.si.edu/

Equality of Opportunity: The Making of the Americans with Disabilities Act - National Council on Disability

Future historians will come to view the Americans with Disabilities Act (ADA) of 1990 as one of the most formative pieces of American social policy legislation in the 20th century. This publication from the National Council on Disability (NCD) reminds us of our past and urges us to press on with renewed and united sense of purpose to deliver on the ADA's legacy, hope, and promise.
Web:ncd.gov/publications/1997/equality_of_Opportunity_The_Making_of_the_Americans_with_Disabilities_Act

General ADA Resources

ADA Service Dog

Revised (2010) regulations for service dogs. Also "Dogs with Jobs" an overview of different kinds of working dogs.

ADA Questions and Answers (Q&A) Booklet

This collaborative publication by the ADA National Network provides answers to common questions on the ADA for employment, state and local government, public accommodations and also offers a quick contact reference for federal agencies and other organizations that provide information about the ADA and informal guidance in understanding and complying with the ADA.
Web: adata.org/FAQbooklet

Frequently Asked Questions about the ADA

Find answers to common questions on the ADA and related disability topics — search by keyword, audience and topics. This is a collaborative initiative of the ADA National Network. 
Web: adata.org/faq-pag

ADA Title II & III Regulations Fact Sheet Series (English) (Español)

The U.S. Department of Justice revised the ADA Title II and Title III regulations. These regulations amend the DOJ Title II requirements for State and Local Governments and Title III requirements for Places of Public Accommodation. Many of the regulations took effect March 15, 2011 with some requirements going into effect March 15, 2012. The ADA National Network developed these Fact Sheets to give guidance on specific changes and an overview of revised regulations by topic.
English: adata.org/factsheets_en/ 
Spanish/Español: adata.org/newregs_II_III_sp

ADA Anniversary Tool Kit

A tool kit of informative materials on the Americans with Disabilities Act (ADA) for use throughout the year in your celebration of the ADA Anniversary - July 26. This is a collaborative initiative of the ADA National Network hosted by the Southeast ADA Center.
Web: ADAanniversary.org

ADA Publications and Fact Sheets from the ADA National Network

Informational materials about the ADA and related disability topics; some materials are also available in Spanish. This is a collaborative initiative of the ADA National Network. 
Web: adata.org/ada-national-publications

ADA Web Search Portal

This portal provides a focused search of important websites that contain information about the Americans with Disabilities Act (ADA) and connects individuals with high quality information about the ADA and to assist individuals in answering ADA questions. This is a collaborative initiative of the ADA National Network. 
Web: adata.org/ada-document-portal/

ADA Quiz Book, 4th Edition

A comprehensive ADA training tool for individual study or group trainings. The 105 pages and 45 activities include quizzes, puzzles and case studies, expanded to reflect recent changes in the ADA. Order and pay online from Meeting the Challenge.
Web: shop.adainformation.org/ADA-Quiz-Book-4th-Edition-DOC33.htm

ADA Systematic Review

Research on the ADA includes many different research questions and methods, covers numerous topic areas, and impacts diverse groups of people. Because of this broad range of research, policy makers and researchers are often unsure about the true impact of the ADA. To address this uncertainty, the University of Illinois at Chicago is conducting a three-stage review of the ADA in collaboration with the ADA National Network - National ADA Knowledge Translation Center Project. The first stage of the project is a Scoping Review Summary and a Technical Report of the Scoping Review which involves gathering scientific research and search terms on the ADA.
Web: adata.org/national-ada-systematic-review

Ten Things You Need to Know about the ADA

The July 2015 issue of the quarterly newsletter, Disability Connection, from Disability.gov summarizes ten need-to-knows about the ADA.
Web: disability.gov/disability-connection-newsletter-july-2015/

Technology Access Resources

Accessible Tech - For Accessible Technology In The Workplace

A web portal designed to build a partnership between the disability and business communities to promote full and unrestricted participation in society for persons with disabilities through awareness of technology that is accessible to all. This initiative of the ADA National Network is hosted by the Pacific ADA Center with support from the Great Lakes ADA Center and Mid-Atlantic ADA Center.
Web: AccessibleTech.org

Disability Law & Policy Resources

ADA Case Law Database

A comprehensive database tool that tracks major decisions and summarizes the key issues pertaining to significant rulings under the Employment (Title I), Local and State Government (Title II) and Places of Public Accommodations (Title III) provisions of the Americans with Disabilities Act (ADA) searchable by disability type, discrimination issue, jurisdiction and remedy. This collaborative initiative of the ADA National Network hosted by the Great Lakes ADA Center.
Web: adacaselaw.org

ADA Disability Law Handbook

A broad overview of the rights and obligations under federal disability laws available online in web or PDF format. This is a collaborative publication by the Southwest ADA Center and ADA National Network.
Web: adata.org/lawhandbook/

Report on the Impact of the ADA Amendments Act (ADAAA) Released by National Council on Disability

The National Council on Disability (NCD), an independent federal agency, released a report in July 2013 titled “A Promising Start: Preliminary Analysis of Court Decisions Under the ADA Amendments Act,” which reviews the court decisions that have been rendered to date applying the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) and reveals significant improvements in how courts are interpreting protections intended for coverage under the ADA.
Web: ncd.gov/publications/2013/07232013/

Business & ADA Resources

Accessible Meetings, Events, and Conferences Guide

This guide will help you navigate, plan, and create successful, inclusive meetings, events and conferences. Features include: plan a meeting, attend a meeting, speakers/presenters tips, training materials, employers guide, operations, publications, and resources. This guide from the Hospitality and Disability initiative of the ADA National Network is hosted by the Mid-Atlantic ADA Center, in collaboration with TransCen, Inc.- Career and Workforce Development.
Web: adahospitality.org/accessible-meetings-events-conferences-guide

Hospitality and Disability Initiative

A web portal designed to promote accessibility and opportunity for people with disabilities in the hospitality industry. Materials, resources, and training aim to help hospitality businesses expand their market share by effectively reaching and serving customers with disabilities, and are also designed to assist lodging and food service employers recruit, hire, and retain qualified workers with disabilities. This initiative of the ADA National Network is hosted by the Mid-Atlantic ADA Center, in collaboration with TransCen, Inc.- Career and Workforce Development.
Web: adahospitality.org

Employment & ADA Resources

Just-in-Time Toolkit for Managers: Building a Disability-Inclusive Workforce

This toolkit is divided into ten topics based on a disability issue that managers typically encounter in the workplace. Each topic has been designed to be used in about five minutes. If you choose, each topic also contains links to test your knowledge, print a one-page checklist, and pursue further resources. This is a collaborative initiative of the Northeast ADA Center, a member of the ADA National Network and a program of the K. Lisa Yang and Hock E. Tan Institute on Employment and Disability at Cornell University.
Web: disabilitytoolkit.edi.cornell.edu

Government & ADA Resources

Case Analysis: You don't have to be a lawyer to learn to think like one!

Thinking like a lawyer

Thinking like a lawyerA Conversation with Brice Palmer

[Note: Watch the Webinar CASE Analysis., with Speaker Brice Palmer about thinking like a lawyer and getting the appropriate services. Download the Webinar Handout 
In our first INCIID article we said you don’t have to be a lawyer to be a good parent advocate; “You just need to know how to think like one.”

Well – surprise, surprise. If you Google the term “think like a lawyer” you will find lawyers do not have a universal definition of what thinking like a lawyer means. There are thousands of articles, blog articles, academic papers, and web sites that talk about what it means to think like a lawyer.

Experience taught me that parents are far more aware of what their child’s special education problem is than others realize. The rub comes when parents do not know how to explain the problems in a way the procedural system deals with resolving problems.

The one word that appears in all the articles I read about thinking like a lawyer is the word analysis.

Analysis goes like this –

  • What’s the big deal here?
  • Are there any rules that tell us how to deal with the big deal?
  •  Is there any credible proof (facts) that the big deal really is a big deal?
  • What rules tell us how to formally complain about the big deal, and 
  • Where can we find insights into how the big deal deciders have decided big deals?

This article is intended to introduce you to the first basic concepts about how to read a case. There is a hypothetical practice exercise on the last page 5 of this article. You will find this is a completely different way to look at cases and what they mean. It takes time and practice. Isn’t easy – and you can do it.

Raise your hand and say I can do it.

The one word that appears in all the articles I read about thinking like a lawyer is the word analysis.

Basics:

1. Do not read the opinion word for word. Look for the structure. Once you fully understand the structure you can then learn how to read an opinion or decision. Once you master the structure your life will change when it comes to planning for a Team meeting or writing a state administrative complaint or a request for a due process hearing.

2. Print the decision. A printed page is much easier to read than reading text on a screen.

The structure

1. The Caption

At the top of the first page of any legal opinion is the caption. The caption is comparable to a title. It tells us who is who is complaining against whom (the parties to the dispute) which court or hearing authority issued the decision, and the dates.

Example:

J.D. EX REL. J.D. v. PAWLET SCHOOL DIST., 224 F.3d 60 (2nd Cir. 2000)

J.D., by his parent, J.D., Plaintiff — Appellant, v. Pawlet School District,

Bennington-Rutland Supervisory Union, Vermont Department of Education, and

Mark Hull, in his official and individual capacity, Defendants — Appellees.

No. 99-9263.

 

United States Court of Appeals, Second Circuit.
Argued June 30, 2000.
Decided August 15, 2000.

You can read J.D. v Pawlet online and download a pdf copy here: http://caselaw.findlaw.com/us-2nd-circuit/1295784.html

Full disgraceful disclosure: I was the advocate who conducted the due process hearing, found a lawyer for the review by the US District Court and the appeal to the Second Circuit. I cannot adequately describe all of the mistakes I made in that case. Feel free to ask.

Though the style might change slightly from jurisdiction to jurisdiction, the information in the caption remains the same.

Next, the decision contains a short history about how the case came to the court or administrative hearing officer or judge. The short history or background information may include the procedural history of the dispute. It might also include some factual information. You can recognize this section by its position just below or near the caption.

This is the short history from JD v Pawlet School District:

 “J.D., by his parent J.D., appeals from a final judgment of the United States District Court for the District of Vermont (Jerome J. Niedermeier, Magistrate Judge), granting the defendants-appellees' motion for summary judgment dismissing the complaint in its entirety. The district court held that: (1) J.D. failed to meet the "adverse effect" eligibility criterion of the Vermont Department of Education Special Education Regulations ("VSER"), which implement the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq.;[fn1] (2) the defendants-appellees did not discriminate against J.D. in violation of § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; and (3) J.D. was not entitled to relief based on alleged violations of certain procedural safeguards in the IDEA. We affirm.”

Following the procedural history you will find a discussion of the facts. The facts are only the facts the court found as relevant to JD’s claims. All special education cases under the IDEA that wind up in a court are decided without a jury. That means the judge (and for that matter a hearing officer or law judge) determines which facts presented by both sides are facts that are relevant to the issue complained about by the parent or the school district (if the district files the request for a hearing). It also means the judge or hearing officer is the sole determiner of the applicable law for the case.

This section of the decision is generally labeled Facts or something like that. In JD v Pawlet School District the sub-title of the fact section is

I. BACKGROUND

A. Factual Background

(JD v Pawlet pdf version, Pages 2-4)  

Some decisions describe the facts of the case in numbered paragraphs. Others write the facts in paragraphs without numbers.

Following the facts as determined by the judge or administrative hearing authority, the author of the decision describes the laws that apply to the case in great detail. In JD v Pawlet School District, the court sub-titled this section

II. DISCUSSION

A. Standard of Review

(JD v Pawlet pdf version, Pages 4-12)  

In this section the court meticulously described the claims JD made in his complaint and applied the law to each of those claims. At the end of each of the claims discussion the court published its ruling for that particular claim.

III, Conclusion

(JD v Pawlet pdf version, Page 13)  

“For the reasons explained above, the judgment of the district court is affirmed.”

Shazam

Once you know how these things are written the light will come on. You will know how to make more persuasive presentations to the Team, write more effective letters to the school, and decide whether you have enough information to think about exercising your administrative complaint or hearing rights under the procedural safeguards.  You will also be able to decide whether you have enough factual information to file an OCR complaint letter. The upshot is that you can make reasoned decisions instead of going on a gut feeling.

Hypothetical exercise.

Background and facts:

The Old Overshoe School District superintendent notified all parents with children in grades 1 – 12 in the District that students at Old Overshoe are required to bring an electronic tablet or pad to school beginning on the first day of school for the 2015-2016 school year.

 

The students will use the tablet or pad throughout the school year for taking classroom notes, doing their homework, and taking tests and examinations. The parents are required to purchase the tablet.

There is no exception to this rule. The notice from the superintendent went to parents to their last known email address and by US Mail to the parent’s home address of record.

Question: Under what set of facts and the IDEA or Section 504 might the Old Overshoe School District’s requirement (a) be found to be a denial of FAPE and/or (b) discrimination on the basis of handicap or disability?

Helpful tools:

The Law Dictionary http://thelawdictionary.org/

Legal citation https://www.law.cornell.edu/citation/

Have fun.

.Brice

You are invited to post a question for Brice about this article or any other special education question on the INCIID Ask The Advocate Forum by going to

http://www.inciid.org/forum/forumdisplay.php?51-Ask-the-Educational-Advocate

Download the Article in PDF

Making Decisions and Analyzing the Facts

Cartoon: Who made the decision to invite the cat?
Blackboard  Half Truths

By Brice Palmer

[NOTE: REGISTER for the next workshop with Brice scheduled May 21 at 7:30 PM ET;

We all have them. Dark and stormy nights before Team meetings. We burn the midnight oil combing through the records looking for FAPE denying critters camouflaged by vague, symbolic, and sometimes meaningless language hiding in 8 point type.

It can get ugly.

We stress out. We know the meeting is going to be another IEPcalypse. The school’s side of the table will be loaded with more people than the IDEA calls for. The school district’s lawyer will be there – and – sometimes claims to be a “member” of the Team because the school invited them to attend. The facilitator or compliance coordinator will be there. And, they will all be talking over one another. Precious time wasted by a cacophonic chorus.

Sometimes we get stretched to the breaking point. We must complain. So we complain. And we complain again. And we complain again. We begin to ask ourselves whether anyone ever listens.

In a movie called Sweet Liberty, Alan Alda played a history professor whose book was picked up by a movie studio. The movie folks moved to the professor’s home town to film the story. Of course the screen writers and movie producer immediately began tweaking the story, the period costumes, and so forth – The professor was furious. So we complain. And we complain again. And we complain again. We begin to ask ourselves whether anyone ever listens.

The professor collared the director and said something to the extent the contract said he, the professor, must be consulted on all script and script changes.  The producer took a copy of the contract from the professor’s hand, turned a page or two and said: I have just consulted with you. At that point the producer turned and walked away.

Don’t we feel like the professor when the Team smiles, says everything is okeydokey and thanks us for being at the meeting? Yes we do.

Despite the mess, parents generally have a good intuitive notion about what is and what is not right with an IEP. Many parents, though, do not know effective ways to complain and prove their complaints.

We must define what we mean by complain.

Informal complaint: A few Synonyms: squawk grumble, gripe, bellyache, protest, and beef.

Formal complaint:  Charge, pleading, bill of particulars, allegation,

That means that when we want to complain (advocate for change) at a Team meeting we want the school district to do something or stop doing something connected to the IEP or 504 plan. And, it means we must complain in a way the procedures and the “system” can deal with our complaint. The procedures and the “system” cannot process our squawks, grumbles, gripes bellyaches, protests and beefs.

Does that mean we cannot squawk, grumble, gripe, bellyache, protest and bring up our beefs? No. We can, but we must not allow our anger to take over the conversation. Remember the one who can make you angry is the one who can control you.

Which brings us to the reason for this article: Getting heard.

In the legal sense, complaining and talking about complaining has been going on for centuries. During the 6th Egyptian dynasty[1], for example, Ptahotep issued an important instruction. It is paraphrased here. 

The Instruction of Ptahhotep (pronounced Pta-hotep)

If you are one who leads,
Listen calmly to the speech of one who pleads;
Don’t stop the pleader from purging their body
Of that which they planned to tell.
One in distress wants to pour out their heart
More than that their case be won.
About one who stops the pleas
One says: “Why does one reject it?”
Not all one pleads for can be granted,
But a good hearing soothes the heart.

 We want someone to listen.

Admission:

Yes, I am guilty. Sometimes I do get antsy when a frustrated parent calls and I'm eager to drill down to what the real issues are. And yes, parents do actively remind me of that when they call and I urge them to focus on the reason they are having trouble with the school district. I sometimes forget that they want – and need – to pour out their heart.  When it happens I have a silent talk with myself about a universal truth of human nature:

We human beings will tolerate all kinds of abuse except one: We do not tolerate being taken for granted. Still, we cannot get far toward getting what a student needs without knowing what legitimate [2] complaints exist in a student's Plan and the way the Plan is implemented. Why go through all of that? Because when we need to complain about something we believe is not right (legitimate) in an IEP or 504 plan, our complaints are always related to a legal question:

Does the Plan provide a free appropriate public education or not?

Has an action, lack of action, or policy caused discrimination or not?

The IEP is the school district's legal definition of an individualized free appropriate public education for a specific student. The primary question all school district attorneys ask-

Is The IEP Legally Defensible?

We should also ask the same question: Does the IEP provide the student a free and appropriate public education at public expense?  And if not, why not, and what do we want the school to do about it (what is the remedy)?

Why should we use this approach?

Is all of this nit-picky use of words and looking for the supporting facts necessary for making your argument (presentation) during a Team meeting? Yes. It is necessary because we are always more likely to get more cooperation from the school district if we can mutually fix the problem with the least amount of legal wrangling. Another reason is what happens or does not happen in a Team meeting may well be the factual foundation for an administrative or formal complaint later.

Blackboard  Half TruthsFind The Real Issues

Whether we want to complain at a Team meeting or by a more formal way of complaining, the question is how do we decide what the real issues are? Yes, correctly identifying the real issues is a lot of work. We need to think like an investigator. We also need to think about what an IEP is. What is it supposed to do? What is its function?

We can begin by not thinking about an IEP as a series of pieces and parts. The IEP is a whole document.  Unless we look at the whole document we, and the school district, sometimes name solutions before naming the unique educational needs of our student. As you know, this is a serious problem.

We can change that by asking a basic question.

The IEP and its function

The function of a Plan is to provide an educational benefit to the specific student named in the IEP.

An analogy:

Nobody wants a checking account at the bank.  What we want is safe place to store our money so we can pay for things with a check instead of carrying around a bunch of cash.  We want an ATM card or a credit card for the same reasons.

Likewise, nobody wants an IEP for the sake of having one. We want what an IEP will do; deliver; an education plan tailored to the student's unique educational needs at no cost to the parent and helps the student make adequate annual educational progress no matter what the student’s disability is. Every student must receive an educational benefit.

The similarity of a bank checking account and an IEP is exactly the same: Both perform a function that delivers us a benefit.

The analogy of the checking account ends there because we cannot just close our IEP account with the school district and find another one in town to use.

Well, ok, you know the IEP is supposed to perform a function, which is to provide a free and appropriate public education. But woe is me: It is getting harder to get necessary changes made. I mean, it’s like pulling teeth. You’d think every school district member of the Team has a financial stake in a student’s IEP whether it is good, bad, or indifferent.

Thinking about the function of an IEP or 504 plan can change the conversation with the school district. An IEP is not a matter of “this piece” and “that piece.” All the “pieces: must be functioning in harmony to give a student what the student needs, get the protections of the rules, and offer educational benefits.

Form follows function

Form follows function is a principle associated with architecture and industrial design. The principle is the shape of a building or object should be based on its intended function or purpose.

And so it is with the “pieces” of an IEP. All the IEP or 504 plan[3] “pieces” must be designed such the finished product, the Plan, delivers what it is intended to deliver. That is why the present levels of academic achievement and functional performance (PLOPs) section is the first piece of the Plan. It is the cornerstone of the plan’s architecture. The information in the present levels must be objective and backed up with measurable information. “Nimrod is a pleasant boy and everyone loves him” is a purely subjective statement. The Plan cannot be appropriate for the student if the present levels are not objectively stated, have measurable information and is factually correct.

The theory of the IDEA

The theory is the evaluation is the foundation for an IEP. It is no mistake that an evaluation of a child suspected of needing special education is the top box the school has to check off before anything else happens to create an IEP.  That evaluation is intended to prove that a child is or is not eligible for special education and, to define the unique educational needs of an eligible student.

You might say the evaluation is the foundation that supports an IEP because the architecture of a unique IEP must stand firmly attached to the evaluations.  Educational Placement, then, is supposed to be decided by how the student's unique educational needs must be met and where the specifics in the IEP should be delivered by the school district.

All IEPs are not created equal

Theory vs. The Real World In a nutshell

First Step: Evaluation

 Evaluations are properly used for:

  • Screening
  • Eligibility
  • defining unique educational needs
  • determining present levels of educational performance           

School districts currently use evaluations that concentrate on eligibility at the expense of evaluations for the other purposes. Schools have tried to use eligibility evaluations for just about everything.

Second Step: Two piles of needs

  • conditions needed for learning, (often these conditions are defined in the evaluations, but never make it to the IEP) and
  • conditions needed for educating. (for example., modifications, accommodations, specialized instruction).

Third Step: The IEP must fit the student

The IEP should give us a clear picture of the student. All too often, though, we get a clear picture of this piece or that piece, but not of the student. Begin by assessing the student's unique educational needs.

Highlight the child's unique educational needs and the evaluators' recommendations. Compare the unique needs and recommendations to the IEP. Drill down and find how many of those unique educational needs and recommendations are dealt with in the IEP.

One way of tracking the information is by using a spread sheet program such as Microsoft Excel or another similar program. Libre Office[4] has just such a program. It is free and works just as well as Microsoft Excel.

If the only issue in special education is whether an IEP provides FAPE, then the facts of a case will eventually become the “argument” that you will make during IEP meetings or in a complaint or a request for a formal hearing.  If the underlying facts are defined poorly the arguments become poorly defined as well.  Children identified as having disabilities under the IDEA are entitled to a Free and Appropriate Public Education (FAPE) in the Least Restrictive Environment (LRE).

Definition of a Free appropriate public education. 20 USC 33 § 1401 (9) The term “free appropriate public education” means special education and related services that—

(A) have been provided at public expense, under public supervision and direction, and without charge;

(B) meet the standards of the State educational agency;

(C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and

(D) are provided in conformity with the individualized education program required under section 1414 (d) of this title.

Identify each suspected violation separately.

Begin with the Present Levels of Academic Achievement. Then, move through the other sections of the IEP one section at a time. Do not skip any section. Remember the IEP is a whole document – not pieces parts.

For each suspected violation, identify the State special education regulation that applies to that specific suspected violation. For example, if you believe the school district’s notion of ESY for your child is a violation, go to your State’s regulations that control ESY. Do not overlook the State definition of ESY (or any other terms).

The next step is to compare the facts as you find them in the records to the exact language of the regulation.  

Hypothetical Example

Nimrod’s mother wrote several letters to the school to ask the school to give Nimrod ESY during the school year and during the summer vacation.

At the last IEP meeting she asked for ESY again. The District’s response has been consistent: (a) Nimrod does not quality for ESY because Nimrod has not regressed and (b) even if Nimrod qualified for ESY, the District limits ESY services to the first three weeks of summer vacation. The school district has not given Nimrod’s mother an explanation (in a prior written notice) that explains why the district turned down her request and the district did not explain any alternatives the district considered.

For this illustration we will use the Ohio special education regulations. The title of the Ohio special education regulations is the Ohio Operating Standards for the Education of Children with Disabilities. NOTE: Be certain that you use the most current version of your state’s regulations.

Ohio defines ESY in the section under the Free Appropriate Public Education Rule 3301-51-02(G).

The legal question (issue) in this hypothetical is:

Under the Ohio Operating Standards (the Ohio regulations) Rule 3301-51-02(G), did the school district deny a free appropriate public education for Nimrod by denying him ESY services? Ohio defines ESY in the section under Free Appropriate Public Education Rule 3301-51-02(G).

Extended school year services

(1) General

(a) Each school district must ensure that extended school year services are available as necessary to provide FAPE, consistent with this rule.

(b) Extended school year services must be provided only if a child’s IEP team determines, on an individual basis, in accordance with rule 3301-51-07 of the Administrative Code, that the services are necessary for the provision of FAPE to the child. Additionally, the school district shall consider the following when determining if extended school year services should be provided:

(i) Whether extended school year services are necessary to prevent significant regression of skills or knowledge retained by the child so as to seriously impede the child’s progress toward the child’s educational goals; and

(ii) Whether extended school year services are necessary to avoid something more than adequately recoupable regression.

(c) In implementing the requirements of this rule, a school district shall not:

(i) Limit extended school year services to particular categories of disability; or

(ii) Unilaterally limit the type, amount, or duration of those services.

The definition of ESY in Ohio is at Rule 3301-51-02(G)(2).

Definition

As used in this rule, the term “extended school year services” means special education and related services that:

(a) Are provided to a child with a disability:

(i) Beyond the normal school year of the school district;

(ii) In accordance with the child’s IEP; and

(iii) At no cost to the parents of the child; and

(b) Meet the standards of the Ohio department of education.

How is the school year defined? Is it limited to a specific number of instructional days in a calendar year or does it also include the number of instruction hours per day for the school year? We know that extending the school year for ESY means services during the summer break. Can we also include additional instruction hours during the school year as ESY services?

Relevant Facts:

1. Nimrod is a 13 year old student enrolled in the Old Overshoe Middle School.

2. He has had an IEP since he entered the 4th grade.

3. His category of disability is Other Health Impairment (OHI) because the school nurse diagnosed Nimrod’s condition as opposition defiant disorder (OCD) when he was in the 4th grade.

4. A series of independent evaluations by licensed evaluators show Nimrod has a speech and language processing problem.

5. The present levels of academic achievement and functional performance section of his current IEP include the following statement: “Nimrod’s defiant behaviors interfere with his willingness[5] to learn to read and write at grade level. Nimrod’s mother refuses to allow medication. His willingness to learn is a function of his defiance and he could read and write at grade level if he was medicated and he chose to learn.”

6.  Nimrod’s latest reading level as recorded by the school district in his current IEP shows that he is three years behind in reading and writing.

Take the facts and the language of the regulation for exactly what they say. Do not imagine other facts that might also be present.

Come to your conclusion and answer this question:

Under the Ohio Operating Standards (the Ohio regulations) Rule 3301-51-02(G), did the school district deny a free appropriate public education for Nimrod by denying him ESY services because it

(1) would not give him ESY services during the school year

And/or

(2) limits ESY services to the first three weeks of summer vacation.

Is it worth spending time to wring out your argument in this way for an IEP meeting? I leave that to you to decide. Just remember, though, the IDEA does not give local education agencies the privilege of having the “I said so” doctrine.

Use the “formula” we just used for getting ready to complain.

About complaints

We can make a complaints at Team meetings as well as in a State administrative complaint. We can also ask for a due process hearing. The difference is the forum and the degree of formality of the complaint and how the complaint is decided. Always try to resolve a complaint at the lowest level of formality needed.

The old saying about the squeaky wheel gets the grease is a true comment about the way we sometimes complain. However, squeaks are mostly just annoyances.  The school district can easily discard or ignore constantly squeaking wheels. (Mom is overprotective, wants a Cadillac education, and on, and on, and on).

Nevertheless, well thought out complaints presented in a clear way are necessary. Public schools do not try hard to find dissatisfaction. And, they do not correct problems presented to them unless those problems come to their attention by strong advocacy.

Key Concept:

An Individualized Education Plan (IEP) is nothing more and nothing less than the education agency’s formal legal definition of FAPE for a specific student. Every underlying issue, or question, is about FAPE, and every public education agency has a statutory duty to provide FAPE for every eligible disabled or handicapped child in its jurisdiction. 
Pick one:

ESY
Attorney Fees
Alternative Placement
Assistive Technology|
Assistive Services
Present Levels of Educational Performance
Annual Goals and Short Term Objectives
Transportation
Independent Evaluations
Discipline

Think of school district decisions like this:  Every decision about special education is a final decision unless a challenge to that decision made.  Even choosing to ignore a situation and do nothing is an administrative decision.  Remember this the next time a special education administrator says, “My hands are tied.”

The formula, or recipe, for challenging decisions is in the procedural safeguards.

Identify the real issues by objectively analyzing the facts

If we have not been trained or taught how to objectively analyze the facts and issues in a special education conflict, we have a difficult time identifying the issues (questions) of their case.  Here is a quick introduction to helping you decide the real issues of a special education case:

1. Go through the IEP section by section.

2. For each section that you suspect has a procedural violation that denies FAPE identify the state special education regulation that controls that particular procedure. Examples are Child Find, evaluations, present levels of academic achievement and functional performance, transition, etc. If you are not familiar with the IEP sections just use the state regulation table of contents to guide you through finding the right rule and section.

3. For each unique violation you believe happened, gather the documented evidence that you have that proves – or tends to prove – (a) the violation occurred and (b) the violation caused harm (denial of FAPE).

4. Analyze the suspected violation and denial of FAPE one at a time. Do not jump around. A good way to handle this is to use a separate file folder for each suspected violation.

First, write the rule[6] word for word on the first page of the analysis. Next, compare the facts that you have documented. List each fact separately. Just list them as #1, #2, etc.

You can identify them by the name of the document. Example, #1: Letter from Ms. Special Education Director, dated x-xx-xx

Next, compare the facts with the exact language in the rule. If the facts show that the regulation was violated, then you can argue that a denial of FAPE happened.

 

Example analysis outline:

1. Write your question:

Did the school district deny Nimrod a free appropriate public education because it failed to properly evaluate under the Child Find Provision (write the regulation number)

2. Write the exact language of the regulation on your analysis page.

3. Compare the facts with the exact language of regulation. The facts will show whether the district did or did not follow the Child Find provision.

4. Draw your conclusion. The school did (or did not) violate the Child Find regulation and as a result, denied Nimrod a free appropriate public education.  

Note: With the exception of some procedural differences and the so called educational benefit standard,[7] the substance of a free appropriate public education in Section 504 and the IDEA are the same.[8] You can read a full explanation of FAPE under Section 504 at http://www2.ed.gov/about/offices/list/ocr/docs/edlite-FAPE504.html

"Wresting ambiguity from the jaws of clarity."

That remark came from Judge Alex Kozinski as he delivered a paper on the language in contracts.[9] I think we can steal it fair and square by applying that concept to IEPs and special education meetings

IEP graffiti - Excerpts from real IEPs

The following is a collection of excerpts from IEP documents that Otis[10] gleaned from our files during 2000-2001. If you have some that you would care to add to this collection . . . feel free to do so. Just send them to askotis@shoreham.net

1. "[The Student] has a language-based Learning Disability which has made it difficult for him to access reading, spelling and writing instruction."

Translation: This student has a learning disability which impedes his ability to use language. As a result of that disability, he is not able to demonstrate that he is getting an adequate educational benefit from his reading, spelling, and writing instructions.

2. "Reading comprehension is difficult for [the Student]. He has an easier time understanding narrative than non-fiction.’’

Comment: The fiction is that the writer of the sentence above is an educated educator.

3. "The Student] is a careful reader who takes him (sic) time with the decoding process."

Translation: The student either has a neurological disorder or we have not taught him how to read. We will obscure all of this in the record by assigning a catch-all phrase such as "decoding process," and use it to explain that he is a slow and careful reader.

And, more from the same IEP. .

"At times this effects (sic) his level of understanding because he forgets what he is reading about."

Translation: "We've really, really tried, but it is all the Student's fault because he is such a slow reader. He forgets from one word to the next what he is reading."

"The [Student] needs to work on his automacticity with words to increase his rate of comprehension.

Question: Huh? Can anyone out there decode the word automacticity in this context?

Automaticity

1. the state or quality of being spontaneous, involuntary, or self-regulating.

2. the capacity of a cell to initiate an impulse without an external stimulus.

http://medical-dictionary.thefreedictionary.com/automaticity

Also found in: Dictionary/thesaurus, Encyclopedia, Wikipedia.

automaticity /au·to·ma·ti·ci·ty/ (-mah-tis´ĭ-te)

4. The following sentence was the entire transition plan for a child in Florida:

"[The Student] will be exposed to a variety of prevocational activities to better determine his interests."

Question: Care to try to translate that into a transition plan? Can't you just imagine what might happen here if the school folks said to the kid, "Look, kid, we are going to ask you to go expose yourself in front of a variety of prevocational activities”?

5. From a Florida IEP:

"During bathrooming [the Student] will pull his pants down with verbal prompts as needed 80% of the time."

Question: Has anyone seen my verbal prompts? Hurry, I gotta bathroom.

"After toothbrushing, [the Student] will use a damp washcloth to wipe his mouth with verbal prompts 80% of the time.

Comment: We are hopeful that the Student does not wipe his mouth with the same verbal prompts he used to pull his pants down (80% of the time) for bathrooming. Perhaps, the verbal prompts not used 20% of the time for pulling his pants down are left-overs, and can safely be used for wiping his mouth after toothbrushing.

"Toileting is a priority need for the parents and school."

Comment: Now let’s just think about that for a moment. Yes, toileting is a priority for all human beings, including parents. But - can you just try to imagine a school with gastric distress?

And from a Statement of Present Levels of Performance description from the same Florida IEP:

"[The Student's] emotional psychological and behavioral issues are integrated parts of his unique educational needs. It is critical that he generalize behaviors across all environments."

Request: If any reader can translate the statement above into an education plan, please write to me. I  would really, really, really, like to know what it means.

6. From a short term goal description from a Kentucky IEP:

"Play or attend to functional computer."

Translation: "Here's the deal, kid, ask the teacher which computer in the room is functional. You should then either play with it - or simply attend to it."

Noteworthy: The Goal, for which the short term objective was written was absolutely blank: Nada. Zip. El Voido.

7. Another of our favorite short term objectives:

"New tasks will be introduced bi-weekly."

No comment necessary.

8. Graduation: The following appears on a student's IEP graduation options page (Florida).

Under Graduation options, a check mark appeared in the box for the option "Exceptional Student Certificate of Completion."

In the next section, appearing on the same page, the following comment is made:

"[Student's] intellectual functioning level does not permit him to understand the school rules as outlined in the "Student's Rights and Responsibilities Handbook."

Question: What, other than time served, did the student complete during 12 years of being in school? A "certificate of completion" is reminiscent of a lyric line in a song from a television western series of years gone by: "Move ‘em in, head ‘em out - Rawhide."

9. One of our favorite recommendations comes from a letter written to a student's parents in the state of Tennessee by a school counselor. As background information, you should know that the student was, and always had been, placed in a fully self-contained segregated classroom with disabled students, all of whom were classified as severely autistic or mentally handicapped, or both.

"It is also felt by the undersigned that [the Student] benefits a great deal from the classroom group sessions where he has an opportunity to see and learn from his peers participation in affective settings."

Right. . .

10. This is one of my favorite annual goals. It appeared in an IEP from New Hampshire.

"[The Student] will demonstrate body part identification with verbal prompts only."

Question: How does one do that? Maybe, in the same way, one could pull down one's pants with verbal prompts. "Now let me see, where did I put those verbal prompts?" "Maybe they are in my locker, no - in my backpack - no -." "Teacher, I can't demonstrate a body part because I can't find my verbal prompts."

11. "Parent was not present at the actual 6/12/01 meeting."

Question: Is this some indication of a meeting shell game? Which pea is the meeting under? "Oh - sorry mom, you missed it again - we had a virtual meeting on 6/12/01, but you missed the actual 6/12/01 meeting."

12. "With some verbal input from [Mom], she requested that the team draft an IEP for her."

Question: Would anyone out there care to outline this sentence? Now let's see: subject, predicate, object of whatever it is. Oh, I see.  This is an outcome-based sentence.

DOWNLOAD THE ARTICLE AS A PDF

We hope some of these suggestions and methods help you avoid dark and stormy nights. Remember that you know your child better than anyone else. Making the Team meeting your forum for arguing from a legal perspective instead of on intuition will make your advocacy stronger.

Thanks.

—Brice

You are invited to post a question for Brice about this article or any other special education question on the INCIID Ask The Advocate Forum by going to


[1]             2300-2100 B.C.

[2] The word legitimate comes to us from the mid-15th century by way of the middle French word ligitimer, which comes from the Latin word legitimus (lawful) which comes from the Latin word Legis (law). Today we also use the informal synonyms “genuine” and “real” in the sense of a “genuine complaint” or the “real issues”.

[3] Under the amendments to Section 504 through the amendments to the ADA, Section 504 now includes a free appropriate public education which with a few exceptions, mirrors the FAPE requirement in the IDEA.

[5] Notice here that the district shifted the cause of Nimrod’s problems to his “willingness” to learn to read and write at grade level.

[6] A rule is a regulation or statute.

[7] The standard under Hendrick Hudson Dist. Bd. Of Ed. V Rowley, 458 U.S. 176 (1982) is “a basic floor of opportunity. However, that is no longer the standard in some Circuits. Special education attorney Dorene Philpot has y argued this issue and she has outlined the case law on this subject. You might find that discussion and outline on her website. http://www.dphilpotlaw.com/html/special-ed.html If it is not on her website just drop me an email to brice@shoreham.net and I’ll send it to you. Put Philpot in the subject line.

Under Section 504, “T o be appropriate, education programs for students with disabilities must be designed to meet their individual needs to the same extent that the needs of nondisabled students are met.”

[8] “No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”  (Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794. )

[9] Judge Alex Kozinski, Distinguished Jurist In Residence Program, Touro College Jacob D. Fuchsberg Law Center, March 16, 1994.

[10] Otis the wonder dog oversaw the office from 1994 until he went to his beloved meadow behind the office for the last time in 2007.  

Unrestrained Danger - Virginia Schools May be Hurting Children

For Immediate Release:   
Contact: Colleen Miller
August 11, 2014  
disAbility law Center of Virginia
(804) 225-2042

Virginia Schools May be Hurting Children

 

            Children in Virginia’s public schools may be subjected to long periods of seclusion and restraint with virtually no oversight or regulation by the State Department of Education, according to a report released today by the disAbility Law Center of Virginia.    The dLCV collected policies and procedures from almost all school districts in Virginia and reviewed them for the presence of protections for children with disabilities.

            128 of Virginia’s 133 school districts provided information for the report.  The results were discouraging:  32 school districts reported that they do not have any procedures that restrict a teacher’s ability to restrain or seclude a child. 83 school districts provided procedures that fail to meet the suggested “guidelines” developed by the Virginia Department of Education.  No public school produced standards that would meet the requirements set for private schools in Virginia.  In Virginia’s public schools, a child may be restrained for an unlimited amount of time, and the school faces no oversight or regulation.  Schools do not even have to notify the parents when a restraint has been used.

            “Nothing in Virginia code or regulations prohibits a school from putting a child in dangerous restraints, nothing limits how long a child may be left in seclusion, no rules control whether or not a school can lock a child in a closet all day long.  For most children, these practices would be considered abusive, but when the child has a disability, many public schools allow the practice,” said Colleen Miller, the Executive Director of the disAbility Law Center of Virginia.

            The report, Unrestrained Danger: Seclusion and Restraint in Virginia’s Public Schools, issued today urges the Commonwealth to create uniform and consistent policies that are evidence-based, focused on positive behavioral supports, data-driven, trauma-informed, and person-centered.  In addition, the Commonwealth should limit the use of restraint and seclusion in public schools as a last resort -- only when there is an immediate and significant risk of physical injury and only when less restrictive interventions have failed.  Statewide policies must prohibit the most dangerous practices, including mechanical restraints and prone restraints.

 

            The disAbility law Center of Virginia is a newly created nonprofit organization that serves as the state’s designated protection and advocacy system.  The dLCV’s mission is to combat abuse and neglect, to promote the civil rights of people with disabilities, and to encourage that people with disabilities have choice, independence and inclusion in all aspects of their lives.  The dLCV advocates for all people with disabilities to be free from abuse, neglect and discrimination.

            The Unrestrained Danger report and supporting detailed analysis, Seclusion and Restraint in Virginia’s Public Schools: Investigative Study of Policies and Procedures to Protect Students, can be found at www.dlcv.org.

 

# # #

 

Brice Palmer Special Education Advocate

 

One spring day in 1995 a mother knocked on the door and asked for some help with a special education problem.
Special Education?  Never heard of it. .
She asked me to go to a meeting at the school with her.
Armed with a copy of the Vermont Special Education Regulations, a Netscape Navigator browser and primitive e-mail, we readied ourselves for the meeting.

Special education has been my life’s work ever since.

I’m located in one of the most rural parts of an already rural state: Vermont. Even though we’re out in the woods, my services include special education advocacy, parent support, and coaching services for parents in almost any state. My services include litigation support for parents in due process hearings and State Review Office (SRO) appeals under section 1415 of the IDEA.

I also furnish legal writing and editing services for licensed attorneys appearing in federal district and state courts as well as in the U.S. Circuit Courts of Appeal for special education appeals.

The office has a full law library and a full special education law library, 24-7 on-line legal research subscription services, and Ruby the office dog.

Teacher, Writer, and Researcher
Brice was one of the curriculum developers for the SEAT advocacy training program. He and New York attorney and hearing officer Barbara Ebenstein taught the 2006 and 2007 classes of SEAT advocates in New York City.

He has taught special education law and advocacy for continuing legal education courses, continuing education courses for educators, protection and advocacy agency seminars, at annual conferences of the Council of Parent Attorneys and Advocates, and other parent advocacy groups.

His articles about special education and advocacy appear in a wide variety of publications.

Among them are The Beacon Journal, published by Harbor House Law Press, Autism Asperger’s Digest, published by Future Horizons, Inc., Family Focus, the quarterly newsletter published by Families for Russian and Ukrainian Adoption (FRUA), and various articles appearing at www.wrightslaw.com.

Some of the Wrightslaw articles are: Do the Documents Speak for Themselves?, How to Prepare Your Case, Learning To Negotiate Is Part of the Advocacy Process, and How and Why to Tape Record Meetings.

Brice co-authored Defending the Legal Malpractice Claim Arising from Representation of Small Business (62 Am Jur Trials 395) with Lisa Chalidze, Esq.

Brice serves on the board of trustees for Camp Thorpe, located in Goshen, Vermont. Camp Thorpe is a 501(c)(3) organization that has provided summer camp experiences for disabled individuals for 87 consecutive years. He is also a former member of the COPAA board of directors.

Professional affiliations

Council of Parent Attorneys and Advocates (COPAA)
Legal Writing Institute
Education Writer’s Association