Building a Record In An Assistive Technology
Special Education Case
Copyright 2004 Advocacy, Inc., Minnesota
Disability Law Center, Wisconsin Coalition for Advocacy. All rights reserved.
Presented By:
Steven P. Elliot
Attorney at Law
Advocacy, Inc.
7800 Shoal Creek Blvd. 171-E
Austin, Texas 78757
Phone: 512.454.4816
Fax: 512.454.3999
Email: selliot@advocacyinc.org
Jennifer Giesen
Attorney at Law
Minnesota Disability Law Center
430 First Ave. N., Suite 300
Minneapolis, Minnesota 55401
Phone: 612.746.3714
Fax: 612.334.5755
Email: jgiesen@midmnlegal.org
Monica Murphy
Managing Attorney
Wisconsin Coalition for Advocacy
2040 W. Wisconsin Ave., Suite 678
Milwaukee, Wisconsin 53233
Phone: 414.342.8700
Fax: 414.342.7900
Email: monicam@w-c-a.org
I. Gathering Information
A. Sources of Information
1. Student’s Educational Records - A student with a disability will likely accumulate a FORREST of paper in his/her educational files, as he/she journeys through the special education system. This educational file will contain evaluations and plans related to the student’s educational needs and progress, so you should obtain and review these documents.
a. What is a record? - Education records are records maintained by a school district that are directly related to a student. 20 U.S.C. § 1232g (a)(4)(A); 34 C.F.R. § 99.3. Education records include items that are recorded by hand writing, print, computer media, video or audio tape, film, microfilm or microfiche.
b. FERPA - Under the Family Education Rights and Privacy Act (FERPA), a parent has the right to inspect, review and amend their child’s educational records. FERPA also prohibits a school district from disclosing the child’s education records to a third party without the parent’s consent. 20 U.S.C. § 1232g.
c. IDEA - Under the IDEA, a parent has the right to inspect and review any educational record related to the identification, evaluation, educational placement or provision of FAPE to their child. 34 C.F.R. § 300.560.
d. Copies or review - Parents have the right to copies of educational records, if the failure to provide copies would effectively prevent the parent from exercising the right to inspect and review the records. 34 C.F.R. § 300.562. Although a parent's right to review and inspect education records includes the right to have his or her representative inspect and review the records, school districts are not required to provide copies of records to a parent representative -- even if the failure to do so would prevent a distantly located representative from reviewing them altogether. 34 C.F.R. 300.562 (b)(3)); Letter to Longest, 213 IDELR 173 (OSEP 1988).
e. P&A Authority - Your P&A authority may give you access to some additional documents. For example, other students in the program that your client attends may fall under the reach of your agencies P&A authority, so you may be able to access their records without having parental consent.
2. Other documents to support your case
a. Medical records - Most students with disabilities have a variety of medical professionals involved in their lives, providing care and treatment. These medical professionals have probably also accumulated many records on this student with a disability. For example, a student may be treating with a private physical therapist, who documented the student’s fine and gross motor abilities. These documents may be helpful, if issues arise about the student’s ability to physically access a particular type of assistive technology, such as an augmentative communication device.
b. Accessing these Records - To obtain copies of medical records, you are going to need a release signed by the student’s parent or guardian and this release will have to comply with the Health Information and Privacy Act (HIPA).
3. Other Sources of Information
a. State agency policies - Most state education agencies from time to time issue formal and informal policies on the provision of special education services to students with disabilities. In fact, many states have special education manuals that guide local education districts in the provision of special education services. Your state may have published formal or informal guidelines on the provision of assistive technology to students with disabilities. You should investigate to determine what policies your state has published.
b. Federal agencies policies - From time to time the Office of Special Education Programs (OSEP) and the Office of Special Education and Rehabilitation Services (OSERS) issue policy guidance on the provision of special education services to students with disabilities. Often this guidance is issued in response to a letter of inquiry from a person with an interest in special education services. Every quarter these agencies publish a list of their correspondence in the federal register. Many of these letters are also contained in LRP publications special education database. You should investigate to determine, if there is a federal policy letter related to the assistive technology at issue in your case.
c. Previous hearing decisions - Each state education agency is required to maintain a database of special education due process hearing decisions. 20 U.S.C. § 1415(h)(4) Most of these databases are accessible through the internet and can be searched by topic.
d. National AT Project - The National Assistive Technology Project maintains a database of AT related documents, including court decisions, hearing decisions, pleadings and policy letters. The National AT Project also operates a e-mail list serve to field AT advocacy related questions. Direct one-on-one technical assistance is available from the National AT Project for advocates with AT related questions.
B. Evaluation in Support of Requested AT
1. School District evaluation - Every IEP team must consider whether a student with a disability needs assistive technology devices or services. 20 U.S.C. §§ 1414 (d)(3)(v). As with any other component of a student's program, providing appropriate AT begins with a good, comprehensive assessment. The IEP Team must assess "the student's functional capabilities and whether they may be increased, maintained, or improved through the use of [AT] devices or services." Hearing, vision, communication and motor abilities are properly included in the district's AT assessment. The evaluation should provide sufficient information to permit the IEP team to determine whether the student requires assistive technology devices or services in order to receive FAPE. Letter to Fisher, 23 IDELR 565 (OSEP 1995).
2. Independent Education Evaluation (IEE) at School District Expense - A parent has the right to an independent AT evaluation, at district expense, if the parent disagrees with the evaluation obtained by the district, and the district fails to show that its evaluations were appropriate. 34 C.F.R. § 300.502.
a. What if the School Refuses to Provide the IEE? - The School District must initiate a due process hearing and show that its evaluation was appropriate, if the District refuses a parent’s request for an IEE at District expense. 34 C.F.R. § 300.502 (b)(2)(I).
b. Criteria for Independent Evaluator - When a parent requests an IEE, the School District must provide information about where an IEE can be obtained and the District’s criteria for IEEs. 34 C.F.R. § 300.502 (a)(2). The criteria that a School District applies to an IEE must be the same criteria that the District uses for its own evaluations. 34 C.F.R. § 300.502(e)(1).
C. Providing guidance to the Evaluator
1. Most of the reports you solicit will come from individuals who are asked to state an expert opinion. When you speak or write to the report writer, you should provide him or her with some guidelines for writing the report.
2. Several key items should be contained in every report:
a. It should be on letterhead, dated and signed.
b. It should list the reporter’s job title or professional title, professional credentials, and any special licenses possessed.
c. It should explain the nature of the relationship and length of time working with your client.
d. If the reporter did specific evaluations or tests in connection with your client, those should be spelled out.
e. If the reporter is recommending a specific service or other item to be funded, the reporter should explain what other less costly alternatives were rejected.
f. The evaluator should specify how the particular service or item recommended will help the individual overcome the limitations of a disability and allow him or her to obtain educational benefit.
[For further elaboration on this topic, you should obtain and read the June-July 1998 issue of AT Advocate, the newsletter of the National Assistive Technology Advocacy Project, with its feature article: "Report Writing: Justifying the Need for Assistive Technology."]
3. Discovery of Communication with expert
D. Other Types of Evaluation Needed - In some cases it may be necessary to obtain an evaluation or evaluations in addition to the assistive technology evaluation. For example, the student may be currently exhibiting behaviors that are significantly interfering with his/her learning. In that case, it will probably be necessary to obtain a functional behavioral assessment of the student to determine the root causes of the behavior and the potential impact of assistive technology on the student’s behavior.
E. Medical or Disability-Related Research
1. Depending on the AT that is being considered, there may be a need to show through professional texts or literature that the need identified, or services sought to address that need, is supported by the text or literature.
2. Some examples where books or literature may help:
a. The American Speech-Language Association (ASHA) guidelines on the use of Alternative and Augmentative Communication state that people have the following communication rights (emphasis added):
The right to active treatment and intervention efforts to enable people with severe disabilities to communicate messages in whatever modes and as effectively and efficiently as their specific abilities will allow.
. . .
The right to have access at all times to any needed augmentative and alternative communication device and other assistive devices, and to have these devices in good working order.
b. The Consensus Statement of the National Institute on Disability and Rehabilitation Research contains the following standard for the provision of augmentative and alternative communication devices:
The realization of effective communication by people with severe communication disabilities depends on the selection and customization of appropriate AAC systems and the development of appropriate skills. AAC systems serve as tools for communication. The individual requires multiple means of communication -- such as gestures, eye pointing, natural speech, portable computer-based voice output communication aids, communication boards, computer systems for written communication -- in order to meet a wide range of communication needs. Suitable components are selected on an individual basis following a clear delineation of system requirements derived from the assessment of the individual's needs and skills. This requires knowledge of all appropriate options available. AAC should be as effective and efficient as possible. Natural speech should be fostered whenever possible.
3. Professional Associations and Professional Journals
4. There are many good sources for this type of information on the Internet.
5. If you already have an expert who is working with the client that expert may also be a wonderful resource for this information.
F. Technology-Based Research
1. In many cases, the individual will be seeking an assistive technology device or other technological intervention that is new to the IEP team and new to the Hearing Officer It may also be new to you as the advocate.
2. The fruits of your research will help you educate yourself on what it is you are advocating for.
3. If you cannot satisfy yourself that it will help the individual overcome the limitation caused by their disability, you are unlikely to convince a decision maker of this.
4. Again, if there is an AT expert already involved, this individual may be an excellent resource for this information.
5. The AT vendor may have promotional material, including photos, diagrams, videos and testimonials that may help you better understand the technology and that you may use as hearing exhibits.
G. Your Client and the AT
1. Data of your client without the AT - It will probably helpful to your case gather information and data about your client’s performance without the use of the requested AT, so that you have a base line to measure progress against.
2. Data of your client with the AT - You should gather information and data about the student’s educational performance with the requested AT. This should be done by your expert evaluator. The presentation of this data should account for the student’s inexperience with the AT.
3. Video of your client and the AT - It may be helpful to your case to make a video of the student using the requested AT that you can show to the hearing officer to demonstrate the benefits to the student of the AT. If the student does not have experience using the AT, this may not be a good idea, because this type of video may serve to raise with the hearing officer questions of appropriateness of the AT. It will be up to you to "produce" and "direct" the video, since most P&As do not have the resources to have a "professional" video produced. It is probably a good idea to have somebody else in your office, like a law clerk, actually shoot the video, in case he or she has to be called as a witness to authenticate the video. If you are not confident in the student’s ability to effectively demonstrate the AT in a video, you may want to submit a promotional video from the AT vendor or create a video of somebody proficient in the AT, such as the AT representative, demonstrating the AT.
H. Other People with Supportive Information - Their may be other people involved in the student’s life that have information relevant to your case.
1. Parents - Do not discount the parent’s knowledge of the student’s needs and educational performance.
2. Friendly school witnesses - Their may be people employed by the School District, who support the necessity of the requested AT for the student. You need to listen carefully during IEP meetings and examine the records carefully to determine whether there may be a "friendly" school witness.
3. Medical professionals - Doctors or therapist providing "medical" care to the student may have information relevant to the student’s educational performance.
4. People from other domains i.e. Sunday school teachers - The student may be involved in education-like activities, such as Sunday school, where his/her performance is relevant to the outcome of your special ed case. For example, the student may be successfully included in his/her Sunday school class with the use of a tape recorder.
5. Role of "Other Professionals" - After identifying the expert’s field of expertise, it is critical that you caution them to limit their testimony and opinions to those matters that lie within their expertise.
a. For example, a speech pathologist cannot testify as an expert on psychological testing or state an expert opinion relative to the individual’s cognitive ability.
b. However, the speech pathologist can explain that part of his or her evaluation process is to review the psychological testing results to determine what level of communication the individual can be expected to achieve using an AAC device. This witness could then explain what appeared in the psychological report and how that affected his or her opinion relative to communication ability.
II. Using the Evidence at the Hearing
A. Pre-Hearing Considerations
1. Develop a theory of your case.
2. Request the hearing.
3. Know your client’s hearing rights and the hearing procedures.
a. For special education hearings, federal law provides specific hearing rights:
i) Be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities;
ii) Present evidence and confront, cross-examine, and compel the attendance of witnesses;
iii) Prohibit the introduction of any evidence at the hearing that has not been disclosed to that party at least five business days before the hearing;
iv) Obtain a written, or, at the option of the parents, electronic, verbatim record of the hearing;
v) Obtain written, or, at the option of the parents, electronic findings of fact and decisions.
vi) At least five business days prior to a hearing, each party shall disclose to all other parties all evaluations completed by that date and recommendations based on the offering party’s evaluations that the party intends to use at the hearing (a hearing officer may bar any party that fails to comply with this section from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party);
vii) Parents involved in hearings must be given the right to have the child who is the subject of the hearing present;
viii) Open the hearing to the public;
ix) The record of the hearing and the findings of fact and decisions must be provided at no cost to parents;
x) The public agency, after deleting any personally identifiable information, shall transmit the findings and decisions to the State advisory panel and make those findings and decisions available to the public.
See 20 U.S.C. 1415(f)(2) and (h); 34 C.F.R. § 300.509.
b.Hearing rights and procedures may differ from state to state.
i) For example, in Texas, formal discovery may be conducted in special education hearings. Whereas, in Minnesota, discovery is informal.
ii) If you have never done a hearing before, try to attend one as an observer to learn about how hearings are conducted in your state.
c. Are the Rules of Evidence followed?
i) Administrative Hearings generally use relaxed rules of evidence.
ii) Hearsay rules generally do not apply.
iii) Documents are freely admitted.
4. If possible, know the decision maker.
a. What is the decision-maker’s background?
b. How has the decision-maker decided other cases?
c. How does this decision-maker run the hearing?
d. What must be submitted prior to the hearing?
i) Witness lists?
ii) Exhibits or exhibit lists?
iii) Marking exhibits?
iv) Pre-hearing briefs?
5. How will the testimony be recorded (tape, court reporter, etc.)?
6. Witnesses
a. Prepare a witness list.
b. Obtain the agency’s witness list.
c. Prepare your witnesses for direct and cross-examination.
B. Introduction of Real and Demonstrative Evidence
1. Definitions:
a. Real evidence is exhibits that are objects or documents that are facts in the case. These include physical objects and writings, such as letters, notes, and so forth.
b. Demonstrative evidence is exhibits that are not part of the event in question, but exhibits created after the event that help a witness testify or help the decision-maker understand the evidence. Examples include models, diagrams, charts, graphs, photographs, videos, and so forth.
i) Demonstrative aids do not need to be actual exhibits.
ii) Demonstrative aids do not have to be two-dimensional.
iii) Demonstrative aids should be visually oriented, not full of words.
iv) Good visual aids may cost some money, but are worth investing in.
v) Videotapes
(1) Show how something is done, portray a particular scene, demonstrate a person’s daily activities.
(2) Be aware of confidentiality issues.
(3) Be prepared to explain the conditions under which a video is produced.
(4) Know whether there are any rules or restrictions on the use of video.
(5) Logistics need to be well planned and practiced. Problems with technology will happen.
(6) Use with caution!
2. Managing Exhibits
a. Labeling and numbering exhibits.
b. Requisite number of copies.
i) Decision maker;
ii) Witness;
iii) Opposing party; and
iv) Two copies for you (one clean, one that can be marked up).
c. Presentation
i) Loose copies in file folders;
ii) Binders; or
iii) Collated Book.
d. Keeping track of exhibits (see Attachment B).
3. Litany of Foundation.
a. Before evidence can be admitted into the record, preliminary questions must be answered in order to establish that the evidence is admissible (meaning it is relevant to the case and the decision-maker should use it in making a decision).
b. Steps:
i) Mark the exhibit.
ii) Show the exhibit to opposing counsel.
iii) Hand it to the witness. (E.g. "I am showing you what is marked as Exhibit X . . . .")
iv) Have the Witness identify and describe it.
v) Offer the exhibit into evidence. (E.g. "Your Honor, I offer Petitioner’s Exhibit No. 1.")
vi) If opposing counsel objects, respond and ask the decision-maker for a ruling.
vii) Use it! (E.g. "Please turn to page 3 . . . .")
c. Certified Medical Records
i) Allow you to offer the medical records without the need for the keeper of the records to authenticate the records.
ii) Address possible hearsay objections.
iii) Clinic or hospital certifies the documents.
4. When presenting documents, such as letters of medical necessity, remember, you or the witness can read the document into the record.
5. When using photographs, diagrams, drawings, etc., think about how this will be presented.
a. Do you need the originals?
b. Will you have multiple copies for everyone?
c. Help the witness describe a visual object by asking pertinent questions.
C. Opening Statement
1. Set the stage for the decision-maker.
2. Organize around your theme.
3. Use exhibits and demonstrative aids, if helpful.
4. Be mindful of the elements of the case.
D. Direct Examination
1. Accredit the witness.
2. Set the stage.
3. Describe the action.
a. The witness is the "star," not the lawyer.
b. Use non-leading, open-ended questions (who, what, where, when, why, describe, explain, etc.).
c. Listen to the answer and ask follow-up questions.
d. Keep in mind your theory of the case.
E. Cross Examination
1. You are the "star" - keep the focus off of the witness.
2. Ask leading questions.
3. Avoid complex questions.
4. Only ask questions to which you know the exception.
5. Do not argue with the witness or allow them to explain their answer.
6. Listen to the witness’s answers.
F. Refreshing Recollection
1. When a witness cannot recall information, you may use anything that will refresh the witness’s recollection: letters, notes, documents, objects, photographs, etc.
2. Steps:
a. Establish that the witness does not remember the event.
b. Determine how the witness’s memory would be refreshed by the use of an item (notes, letters, objects etc.).
c. Show the witness the item.
d. Ask if the witness now remembers the event.
e. If the answer is yes, remove the item and continue the testimony.
G. Impeachment
1. Impeachment of a witness is to call into question the truthfulness of the witnesses’ testimony through the introduction of other evidence.
2. Steps:
a. Confirm: Repeat the testimony.
b. Verify: Set-up the prior statement and its reliability.
c. Confront: Impeach with the prior inconsistent statement.
3. Rehabilitating your witness.
a. Discuss the statement made during the testimony.
b. Reestablish what happened.
c. Establish why the inconsistency was not included in the testimony.
H. Dealing with Objections
1. Preparation (see Attachment B).
2. Common Objections:
a. Irrelevant;
b. Unfairly Prejudicial;
c. Misleading or inaccurate;
d. Cumulative or repetitious;
e. Lack of foundation;
f. Compound question; and
g. Argumentative.
3. Use common sense.
I. Closing Statement
1. Structure around your theme.
2. Establish the elements of your case.
3. Use exhibits and demonstrative aids, if helpful.
III. Post Hearing and Appeals
A. Post hearing considerations at Hearing
1. Make sure it’s in the record. If it is not in the record it did not happen.
a. Record itself Taped? Transcribed?
b. Are all exhibits really in? Does hearing officer have a copy?
c. Record off record discussions. Sometimes most important conversations take place off the record. Make sure these are recorded when you go back on the record.
d. Offers of proof. Make sure you make an offer of proof even when you have been overruled. State reasons for your position on the record.
e. The record is even more important when you are trying to change the law. It is likely no ALJ will make a radical decision. Be prepared for appeal if trying to change the law.
2. Trial briefs
a. When to use them, preferably provide in advance of hearing or at least day
b. Why -purpose they serve trial briefs are a little different that post hearing briefs. Trial briefs are best used when there is a complicated or novel area of the law for the ALJ. This is not the place to argue facts, it is the place to explain the law and sketch out the issues. Added benefit is that writing such a brief helps you frame you case and logically organize your arguments and address all necessary issues.
3. Holding the Record Open - If allowed
a. When should you consider it? Is there a key piece of evidence missing? Did you know this at the start? If so, did you bring up to the ALJ and other party then? Did an issue come up at trial that you did not anticipate but believe you can respond to?
b. Problems with holding the record open
i) Delay in decision-making, consider the impact on your client.
ii) IDEA time limits
iii) Gives the other side more time to respond too
c. If you request that the record be held open make sure you can deliver the missing evidence in a timely manner. Don’t promise what you can’t deliver. I t will hurt your credibility.
B. Post Hearing Briefs
1. Is a brief necessary?
a. Did closing argument cover it?
b. Did the ALJ get it?
c. Uniqueness of situation
d. Complex facts, do you need a brief to sort them out and bring them together in a coherent fashion? Were there a lot of witnesses?
e. Complex law; are there good case law arguments to make
f. Level of disagreement, do you an opposing side agree on most things?
g. Time frames, consider delay to client
h. Was the hearing itself spread out over several days or were the gaps in between days of hearing?
2. What type of brief?
a. Letter briefs - can you keep it short and sweet?
i) Can actually be more effective than a long rambling brief that recounts the whole hearing
b. Standard briefs - This may be the best route if there is good case law on you side or other complex legal arguments. Show the ALJ how to apply the law to you facts. This is also a good idea if you had a complex fact situation and many witnesses who added pieces of the puzzle.
3. Findings of Fact/Conclusions of Law
a. Some jurisdictions require this; submit along with your brief
b. Know the format used, even if your jurisdictions does not require this but uses this format in its decisions make it easy for the ALJ
C. Appeals
1. What about reconsideration? Was there a mistake in fact or misunderstanding that would change the outcome?
2. Before you appeal:
a. What is the real outcome of the decision? Did the ALJ split the baby? Can your client live with it? Did the ALJ give you enough that you can change things for the future, i.e. an improved IEP?
b. What is the basis for appeal? Is there a meritorious argument?
c. What does the client want?
3. Time lines - Make sure you double check time limit for appeal. Nothing ruins an appeal faster than a blown deadline.
4. Standard of Review - check your circuit
a. De novo- FAPE is generally a de novo question,
i) Questions of law
ii) Mixed questions of fact and law
b. Clearly erroneous - question of historical fact
5. New Evidence on Appeal
a. Is it permissible? It is under IDEA. 20 U.S.C.A. § 1414(i)(2)(A) & (B)
b. Has there been a significant change since the hearing?
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