Legal Updates

Dennis C. McAndrews has been asked to testify before a Pennsylvania House Committee on Transition Issues for Individuals with Autism.

Dennis C. McAndrews, Esq., will testify at the April 8, 2008, public hearing in the Ryan Office Building in Harrisburg with regard to Transition Issues for Individuals with Autism, as follows:

“By way of introduction, my law firm handles special education and estate planning for persons with disabilities. My firm witnesses on a daily basis the practical and legal challenges for individuals with disabilities and their families from birth through old age. The difficulty in transitioning individuals with Autism from school age to post-school programming is particularly acute and represents one of the most serious challenges which families face.

Under the Individuals with Disabilities Education Act (IDEA), children with Autism can generally receive special education and related services through their local school district from age three to 21. Beginning no later than age 16, school districts are required to begin transition planning for children with disabilities. Under amendments to IDEA in 1999 and 2004, transition planning is now required to be far more robust than in previous years, and school districts are required to conduct meaningful assessments of students to identify the specific instruction and services which students in this age group will receive in order to become independent and self-sufficient at graduation consistent with their cognitive abilities.

Unfortunately, transition planning is rarely robust within this Commonwealth, but typically involves merely providing limited information to families about agencies such as MH/MR, the Office of Vocation Rehabilitation, and other programs which serve adults with disabilities. Unless a parent vigorously advocates with knowledge and skill on behalf of the child, transition planning rarely involves the intensive assessment, instruction, and services which IDEA specifically requires. More and more parents are now pursuing due process hearings against their local school district over this very issue, because transition is so critical in moving a child with disabilities to independence and self-sufficiency.

Once the child reaches the age of 21, families encounter an entirely new set of roadblocks as they move from the educational system to the Mental Health/Mental Retardation system. Although many individuals with Autism should qualify for services within the MH/MR system because of their limited social skills and adaptive behaviors, too often county agencies assert that they have no responsibility to program for individuals within the Autism spectrum. Unfortunately, no user-friendly dispute resolution system exists in the MH/MR program--such as the educational due process system--to challenge decisions made by county agencies, and therefore determinations of county agencies are effectively final unless the family hires an attorney to pursue a claim in the local Court of Common Pleas. Even then, no clear legal structure exists upon which the court can make a proper determination.

Even where the county agency identifies an individual with Autism as being eligible for services through the MH/MR system, programs to meet the needs of these individuals are often inappropriate, understaffed, or inaccessible due to waiting lists. Although the Pennsylvania and federal courts have repeatedly held that the Pennsylvania MH/MR system is an entitlement program which requires county and state officials to provide those services which the individual requires, county or state agencies reject this position, and legal recourse to address these claims is, once again, unclear under the current Mental Health/Mental Retardation Act and Mental Health Procedures Act. Families are thus left with one manifestly inappropriate option--commitment proceedings.

In order to address these deficiencies, I would propose that the state Department of Education should conduct intensive monitoring of school district transition programs by reviewing randomly selected IEPs of students age 16 or over in specific school districts, such that each school district has such a review at least every five years. Moreover, legislation is necessary to create a clear, independent, fair and user-friendly system by which parents can contest the determinations of county administrators concerning eligibility and entitlement services. This fact finding/adjudicative process could easily be modeled after the special education due process system which presently exists, and has been successfully utilized for over 30 years, under federal and state law related to special education.

Thank you for your consideration of my perspectives.”

McAndrews Law Offices recently won two important victories on behalf of children with disabilities in federal court.

In Courtney T. v. The Philadelphia School District, the court held that the Philadelphia School District failed to provide an appropriate program for a child with significant emotional issues, and tuition reimbursement was ordered at a private out-of-state program. In Damian J. v. The Philadelphia School District, the federal court found that the failure of the Philadelphia School District to provide a certified teacher who could properly implement an IEP in a program for children with emotional disturbance denied the child of a free appropriate public education. Significantly, the court in Damian J. held that full days of compensatory education must be ordered for every day when a certified teacher was not present, and the court refused the school district’s invitation to “parse out” a particular portion of each school day as being inappropriate.

These decisions represent important judicial recognition of students’ rights to fully appropriate programs in every domain of educational programming, including academic, emotional, social or behavioral. In each case, the relief awarded to the child and the parents provided critical benefits to allow the children to access appropriate services from providers outside of the local school district.

Services for Exceptional Children in Private Schools

On September 26, 2007, the Pennsylvania Supreme Court issued a long-awaited decision in Lower Merion School District v. Doe. In this case, the Lower Merion School District alleged that children in private schools who receive Section 504/Chapter 15 Service Plans are not eligible to receive special education services through “dual enrollment” from the District, but that such services are limited to students with IEPs in the public schools under IDEA. The District also unsuccessfully attempted to persuade the Pennsylvania Supreme Court that a prior Commonwealth Court decision which established a broad right to “dual enrollment” had been superceded by new regulations of the Pennsylvania Department of Education (PDE) which were adopted in 2001. Veschi v. Northwestern Lehigh School District, 772 A.2d 469 (Pa. Cmwlth. 2001).

Federal Court in Pennsylvania Awards Compensatory Education in a
Monetary Fund

The United States District Court for the Eastern District of Pennsylvania recently found that a school district’s failure to provide an appropriate educational program required an award of compensatory education, and held that the award of compensatory education must be placed in a fund with a specified monetary amount for the child. In Heather D. v. Northampton Area School District, the court created a fund of $182,000.00 based upon the school district’s failure over multiple years to provide an appropriate educational programming for the child. The court determined that for every hour of educational deprivation, the school district should be required to make available the sum of $75.00. In light of the extensive deprivation involved in Heather D. over multiple years, the court held that the educational fund for Heather should total the amount of $182,000.00.

McAndrews Law Offices recently won two important victories on behalf of children with disabilities in federal court. In two separate cases, the federal court in Philadelphia overturned decisions of the Pennsylvania Appeals Panel and found in favor of children with disabilities and their families.Read More →
McAndrews Law Offices Have Speakers Available for your organization. We provide dozens of seminars and presentations each year to relevant organizations in the field of Special Education, Estate Planning, Special Needs Trusts. Our attorneys regularly speak at national, state, and local organizations such as parent groups, Bar Associations, community organizations, advocacy groups, and similar organizations. These presentations are provided at no cost, are educational in nature, and no marketing of our services is presented. If you would like to schedule a speaker for your organization, please contact Sarah Locher at 610-648-9300, and we will be happy to arrange a presentation for you.Read More →
Services for Exceptional Children in Private Schools On September 26, 2007, the Pennsylvania Supreme Court issued a long-awaited decision in Lower Merion School District v. Doe. Read More →
Federal Court in Pennsylvania Awards Compensatory Education in a Monetary Fund The United States District Court for the Eastern District of Pennsylvania recently found that a school district’s failure to provide an appropriate educational program required an award of compensatory education, and held that the award of compensatory education must be placed in a fund with a specified monetary amount for the child. Read More →