Archived | FEAT-FMC Newsletter Message | Circa June 23, 2008

FEAT-FMC Newsletter Message
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FEAT-FMC Newsletter info@feat-fmc.org via domain.softcom.net
Jun 23, 2008, 1:50 PM
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FAMILIES FOR EFFECTIVE AUTISM TREATMENT
FRESNO/MADERA COUNTY

FEAT-FMC
Families for Effective Autism Treatment-Fresno Madera Counties
http://www.feat-fmc.org

Children’s Hospital Central California 9300 Valley Children’s Place Madera Rm 140A
Tuesday June 24 6:PM to 7:PM

The June Parent Resource Meeting involves the Madera County Sheriff Department’s
“Operation Lost and Found”


Madera County Sheriff
John Anderson
&
Sergeant Jim Bernardi
Madera County Sheriff Department


A parent’s worst nightmare is the thought of loosing tract of their precious child. Add to that scenario a nonverbal child that does not respond to his/her name and even heaven forbid a regimen of required medication.
Sgt Jim Bernardi is going to explain the “Operation Lost and Found” program that uses an electronic tracking device that is attached to children with autism that have a propensity to escape the confines of their home or supervision.


There are limitations to the program, but it is one more layer of safety for our children with autism. Stop by and see if this program will work for you.


The Cam Twisters Car Club is hosting the third annual “On the roof” car show at the River Park Shopping Center on the top level of the parking structure. FEAT-FMC has raised almost half of the necessary funds to start an “After School Center” thanks to the generosity of the Cam Twisters. FEAT-FMC is aggressively searching for a civic minded Corporation or benefactor to match our hard earned dollars so that a non-profit training center for children with autism can have a center based alternative to under funded public schools or expensive private treatment providers. Save this date September 20, 2008 for the Car Show.
The Parent Resource Meetings are free and open to the public thanks to dedicated experts in the field of autism. They provide professional advice and recommendations while they share their expertise and experiences. For additional information contact Chuck .


There is a second issue you need to be aware of. On June 24 and 25 the California Education Committee is reviewing AB 2717 Burden of Proof Bill. This is a bill that places the burden of proof back on the School Districts as it was before. The following is a brief history of the reversal of the original “Proof Of Burden”. Today and tomorrow the following Legislatures needs to hear from you regarding your position either support or oppose. This is a list of the Education Committee Members.

For over a decade, up until 2005, the law in the 9th Circuit, including California, was that in special education due process hearings (to resolve disputes about educational services for children with disabilities), school districts bore the burden of persuasion. The party that bears the burden of persuasion in a hearing will lose the decision if the evidence at hearing is evenly balanced 50-50. It made sense for districts to bear the burden of persuasion because they have access to almost all of the information needed to show the nature and effects of their programs, they have the affirmative obligation under the law to provide an appropriate education, and they have extensive state resources both to provide programs and to defend them. In addition, they usually have far more experience navigating the complex special education hearing system than parents. Unfortunately, in 20 05, the Supreme Court of the United States made a grave mistake with its ruling in Schaffer v. Weast which, though somewhat ambiguous, has been interpreted as placing the entire burden of proof (the burden of production and the burden of persuasion) on the party that files for hearing, i.e., in the vast majority of cases, on the parents.

PARENTS SHOULD NOT BEAR THE BURDEN OF PROOF IN SPECIAL EDUCATION DUE PROCESS. EXPERIENCE SHOWS THAT UNDER THIS RULE:

LOW AND MODERATE INCOME FAMILIES AND PARENTS FACING LANGUAGE BARRIERS HAVE LOST EFFECTIVE ACCESS TO DUE PROCESS PROTECTIONS


Families simply cannot be successful in the complex special education due process system without legal representation. But when Schaffer put the burden of proof on parents in 2005, as a practical matter, the families least able to afford an attorney lost any reasonable chance of finding an attorney to take their case. In this environment, fewer attorneys do substantial work pro bono or on contingency, and no one can now afford to make this the bulk of their practice. There are too many up front costs: OAH demands extraordinarily detailed initial complaints.

Cases have to be incredibly strong to meet the burden of proof, and even then, parents have been losing at OAH on nearly all important issues. Because of another Supreme Court decision, parents can no longer be reimbursed for expert fees if they win, meaning they or their lawyers have to be able to absorb those costs as w ell: in other words, even if parents win, they will not be made whole. Attorneys can no longer reasonably hope to recoup attorney fees by winning at the administrative level. They have to be willing and able to take cases on appeal, and that means having clients that can afford not only experts and fees, but appeal costs as well. The scope of the problem is partially apparent in the fact that in a disproportionate number of the cases involving interpreters at OAH, parents are unrepresented. Moreover, in many of the cases involving unrepresented parents, the districts have sued the parents, often seeking to prevent the parents from getting an educational “second opinion” (viewed by the Supreme Court as a readily available, crucial procedural safeguard).

MEDIATION HAS BECOME LESS SUCCESSFUL; FOR PARENTS WHO CAN ASSERT THEIR CHILDREN’S RIGHTS UNDER THESE ADVERSE CIRCUMSTANCES, MORE DISPUTES END UP IN HEARING

Districts understand that because parents have the burden of proof, stonewalling is a very effective way to sink a parent’s case. If parents cannot access information, they cannot provide proof. The fact that districts control access to most information about a child’s education gives them a tremendous advantage, and greatly reduces their incentive to compromise. Parents who have a choice, and who (like most parents) are unwilling to sell out their children to avoid litigation, are more and more often forced into hearings.

HEARINGS ARE LONGER AND MORE EXPENSIVE
While hearings have always been time-consuming and costly, under this parent-burden regime, districts have an incentive to stonewall. No information = no proof = parents lose. This means that parents must spend enormous amounts of time dragging information out of reluctant district witnesses at hearing. If the district had the burden, it would be expected to lay the cards on the table. As it is, literally days are added to hearings to allow time for parents to pull teeth. Since litigation costs often dwarf service costs, a procedural rule which magnifies hearing costs is costly for one or both sides.

HEARINGS ARE MORE ADVERSARIAL, WITH TEACHERS BEING PRESSURED BY THEIR EMPLOYERS TO HOLD BACK INFORMATION AND BY STUDENT ATTORNEYS TO REVEAL WHAT THEY KNOW AND ACKNOWLEDGE PROGRAM FLAWS
When districts are given an incentive to put forward as little information as possible—because less information means a greater chance that the party with the burden of proof will lose—parents must try to fill gaps by questioning staff. Teachers bear the brunt of the time consuming and at times painful questioning that parents must employ in their attempt to gather information that, if districts had the burden, would be much more comfortably offered in direct examination by the district’s own attorneys. The bad taste of acrimonious questioning lingers long after hearing, often poisoning the relationships between students, parents, and district staff that are critical for long-term collaboration. In New York, the teacher’s union joined with parents in rejoicing at improved accounta bility for school districts. It is sad that in California the CTA has taken the opposite position. CAPCA is willing to negotiate to address CTA’s concerns, and some changes in the present version of the bill are needed in order for the bill to avoid inadvertently creating additional problems, especially for unrepresented parents.

  • * * *
    AB 2717 SHOULD BE AMENDED IN THE EDUCATION COMMITTEE TO MAKE IT SIMPLE AND WORKABLE
    On the floor of the Assembly, amendments were taken to AB 2717 in order to try to address the concerns raised by lobbyists for school districts and CTA. Districts and CTA complain that there is not a strong enough filter at the outset of due process cases to prevent or discourage parents from filing weak and even frivolous cases, and that a return to a system where districts bear the burden of proof would encourage even more filings. While we dispute the validity of these complaints, we agreed to work with the Assembly Education Committee on compromise language. The compromise developed by Assembly Education and other Assembly staff attempted to import into special education the prima facie/burden shifting model used in employment discrimination cases (i.e., the McDonnell Douglas model). Not only did the amendments not satisfy either the districts or CTA, all of whom continue to oppose the bill, but we are concerned that if enacted they would add a very complex and wasteful layer of litigation to an already complicated system that ALJs struggle to comprehend, let alone unrepresented and non-English speaking parents. We address in detail the problems that a McDonnell Douglas model would introduce into special education in a separate memo where we also suggest a simpler alternative (i.e., placing the burden of production on parents and the burden of proof on districts) that we believe would address the same “filter” concerns that the prima facie idea was trying to get at, but in a much more workable way. We urge this committee to support amendments to simplify AB 2717 along these lines.

CALIFORNIA NEEDS TO RETURN TO OUR SENSIBLE, FAIR, PRE-2005 APPROACH
When school districts again bear the burden of proof:

· LOW INCOME AND MINORITY FAMILIES WILL BE ABLE TO MORE EASILY ACCESS DUE PROCESS PROTECTIONS.
· MEDIATIONS WILL BE MORE SUCCESSFUL.
· FEWER DISPUTES WILL GO TO HEARING.

· PARTIES TO A DISPUTE WILL HAVE AN INCENTIVE TO LAY ALL THEIR CARDS ON THE TABLE, REDUCING BURDENSOME LITIGATION.
· THE FUNDAMENTAL FAIRNESS OF CALIFORNIA’S TRADITIONAL APPROACH WILL BE RESTORED.

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