On July 19,2022, the Department of Education for Civil Rights (OCR) and Office of Special Education and Rehabilitative Services (OSERS) released guidance to assist public elementary and secondary schools fulfill their responsibilities to meet the needs of students with disabilities and avoid discriminatory use of student discipline.
These newly released resources are the most comprehensive guidance on the civil rights of students with disabilities concerning student discipline and build on the Department’s continued efforts to support students through pandemic recovery.
“ All students deserve to have their rights protected, and schools deserve greater clarity on how they can avoid the discriminatory use of discipline”, said U.S. Secretary of Education Miguel Cardona. “ Too often, students with disabilities face harsh and exclusionary disciplinary action at school. The guidance we’re releasing today will help ensure that students with disabilities are treated fairly and have access to supports and services to meet their needs-including their disability- based behavior. We also expect that districts utilize the American Rescue Plan dollars to build capacity, provide professional learning opportunities for educators and school leaders and hire additional staff. These resources will also help schools live up to their legal obligations, support an equitable recovery for all our students, and make sure that students with disabilities get the behavioral support and special education services they need to thrive. “
The new releases reflect the concern, particularly in light of the prevalence of student mental health issues associated with the pandemic, that some students with disabilities are not receiving the supports and services necessary to address their educational needs, including their disability- based behavior.
Parents are often shocked at how much control their minor child has over their mental health records. In a post-dissolution of marriage proceeding, the petitioner mother sought to restrict the father’s parenting time with their minor child based on allegations that the father would continue to interfere with the medical services necessary for the child’s mental health. The father moved for production of the child’s medical, psychiatric, psychological, and school records, and the mother objected based on the child’s statutory privilege to keep the requested records confidential and objected to disclosing the records to his father. The trial court denied the father’s entire request for production of the child’s records. The Appellate Court addressed the issues that arise in the context of divorce and post-decree matters, specifically a minor’s right to deny access to his or her mental records, whether in the context of mental health treatment by private practitioners as well as in a therapeutic day school.
The minor was seeing a therapist and attended a therapeutic day school. Father sought both the entire school records as well as the private treatment provider’s records. Mother and the child representative were both in possession of the records. The minor objected to the disclosure of these records to the father.
The Appellate Court addressed two certified questions regarding these issues. The issues raised by the modified certified questions of law are whether a trial court, in a proceeding related to a petition to restrict parenting time under section 603.10 of the Marriage Act, (750 ILCS 5/603.10 (West 2018), where the allegations involve the mental health of a child who is at least 12 but under 18 years old, may deny a parent based on the provisions of the Confidentiality Act or the best interests of the child(1) the ability to discover otherwise relevant evidence concerning the child’s mental health and therapeutic school records on the ground that the child in question does not want the evidence disclosed to one parent; (2) the ability to discover the child’s medical records concerning the child’s mental health and school records from a therapeutic school even though those records are relevant to the proceedings and the parent is entitled to have access to those records pursuant to the parties’ allocation parental allocation judgment; and (3) access to the child’s mental health and therapeutic information that the child’s representative has reviewed.
The father in this case, argued that he wasn’t seeking records from the therapist but from his former wife. The court found that the father cannot avoid the effect of the child asserting his privilege against disclosure by seeking the documents from another source besides the therapist. The court further held that this privilege is not absolute and looked to the statute for clarity. Section 4(a)(3) of the Confidentiality Act provides: § 4. (a) The following persons shall be entitled, upon request, to inspect and copy a recipient’s records or any part thereof: (3) the parents of a recipient who is at least 12 but under 18 years, if the recipient is informed and does not object or if the therapist does not find that there are compelling reasons for denying the access. The parent or guardian who is denied access by either the recipient or the therapist may petition a court for access to the record. Nothing in this paragraph is intended to prohibit the parent or guardian of a recipient who is at least 12 but under 18 years of age from requesting and receiving the following information: current physical and mental condition, diagnosis, treatment needs, services provided, and services needed, including medication, if any [.] (Emphasis added.) 740 ILCS 110/4(a)(3) (West 2018).
The court ruled that the father in this case was entitled to the limited information that is outlined in the statute but nothing more after petitioning the court for that access. The fact that the entire record was disclosed to the mother, or the child representative does not nullify the child’s objection to the same information to the father.
The father also sought records from the therapeutic day school where his child attended asserting that he was entitled to education records under the terms of the Allocation Judgment. The court recognized the ambiguity created by the records kept by a therapeutic school and reasoned as follows: Section 5(f)(1) of the Student Records Act recognizes the patient-therapist privilege and keeps confidential information communicated in confidence to a psychologist or other psychotherapist, school social worker, school counselor or school psychologist intern who works under the direct supervision of a school social worker, school counselor, or school psychologist. This list of protected communications includes information communicated in confidence to a teacher of an academic subject at a therapeutic school. 105 ILCS 10/5(f)(2) (West 2020). “Construing the provisions of the Student Records Act and the Confidentiality Act harmoniously, we conclude that privileged records and communications under the Confidentiality Act do not include a minor’s grades, grade level, academic assessments, and similar information, even if that child attends a therapeutic day school. Consequently, a trial court cannot deny a parent access under section 4(a)(3) of the Confidentiality Act access to the non-privileged school records of a minor child who attends a therapeutic day school, even if that child, who is at least 12 but under 18 years of age, objects to the parents request to inspect and copy those records. Furthermore, the trial court may conduct an in-camera review to ensure that the child’s therapeutic school’s records do not contain any privileged information concerning the child’s mental health services beyond the limited information regarding the child’s current physical and mental condition, diagnosis, treatment needs, services provided, and services needed, which the parent is entitled to receive. 740 ILCS 110/4(a)(3) (West 2018).
A due process hearing is one of the mechanisms for resolving disputes regarding special education services between parents and school districts. Other less formal options such as mediation or a resolution session are available and typically occur before the parties go to a due process hearing. We make every effort to resolve disputes prior to going to a due process hearing. However, when it is not possible to resolve the issues a due process hearing may be necessary.
Parents often ask what it takes to win a due process hearing and this question is one that I have given a lot of thought to over the years. My answer is based on my experience litigating due process cases for over twenty-six years. Some of the answers may seem obvious while others may not. The following is a compilation of lessons learned as a parent’s attorney in these proceedings.
The facts support the parent’s claim that their child was denied their rights under the Individuals with Disabilities Education Act (“IDEA”). There are many scenarios that meet this definition. Typically, the student has not received appropriate services, failed to make meaningful progress, or was not identified in a timely manner as a student with a disability. *
The denial of these rights must rise to a denial of a free, appropriate, public education. Data supporting these arguments is a necessary element in a successful due process hearing.
A well-organized parent who keeps good records is an asset in a hearing. Preparation from an attorney and collaboration with the family are essential.
Documentation of the parental concerns to the school and evidence of the district’s failure to respond appropriately are often key elements in a hearing.
The law supports the legal position that you are taking in the hearing. This is a complicated area of law that requires a knowledge of case law and prior decisions that provide guidance on the legal standards.
Expert witnesses often determine whether a parent will prevail in a hearing. Parent’s opinions are unlikely without some independent source, to persuade a hearing officer of their position. Choose experts carefully.
The parent’s willingness to work with the school and to participate in the process even though there may an “agreement to disagree” on what is needed is a factor in hearing officer’s decisions.
The ability to clearly articulate the relief you want from the hearing officer. Parents in conjunction with their legal counsel should be prepared to state very clearly what they want the school to do.
At all times parents and legal counsel should behave in a professional manner.
If you are considering a due process action or simply want to discuss your child’s special education rights, please call our office at (312)-640-0500 and ask to speak to Micki Moran or email her at mmoran@grundlaw.com
It has been nearly 26 years since I started my practice with a focus on special education law and advocacy for children and adolescents. The practice is and was inspired and informed by my own son’s struggle with dyslexia. I was fortunate to have both the financial ability and resources to provide him with excellent research -based intervention. He learned to read using an Orton-Gillingham based approach. It was neither a fast nor easy solution. It worked. He is an avid reader and has a lifelong love of learning.
After all this time the issue of reading intervention continues to be difficult for parents. Schools resist “labeling/identifying struggling readers as dyslexia. It is not uncommon for school systems to delay evaluations and interventions. Schools often do not utilize interventions that are researched based for students with specific learning disabilities relying on a patchwork of eclectic programs that depend on the skills or lack thereof a particular teacher and may even depend on what school a student attends in a district. This haphazard approach to something as basic as reading still surprises me. The science of reading intervention is not new. The Orton-Gillingham approach used 32 years that was implemented by my son’s reading teachers is hardly cutting edge and there is very little dispute that these interventions are needed and effective.
Despite this fact, a common complaint from clients who seek our legal assistance has to do with the failure of their child’s school to agree to or even utilize research-based methodologies. Parents should push back when they are met with this resistance. Below, I have outlined a few tips for families who find themselves in this situation.
Insist on an evaluation. If your school will not evaluate seek out a private comprehensive educational evaluation.
Trust your gut. Parents often know there is a problem before the school does.
Put every communication regarding your concerns to the school in writing.
Track your child’s progress.
Stay informed. [Resources to follow below]
If the school takes a wait and see approach- agree on how long this period will last. Confirm that in writing.
Agree on how progress or lack of progress will be monitored.
Read with your child at home. The pandemic and school closures revealed deficits in reading that many parents were unaware of until their child was home and they saw the struggle first- hand.
It is not uncommon for someone to consult with our office when they are just beginning to contemplate the possibility of divorce. Often, they want basic information about the legal process and their rights as well as advice on how to prepare for such a major life event. My clients have found it helpful to have a checklist that they can have on hand as a reference. It has been my experience that being organized helps in developing a plan and is useful in calming some client’s anxiety. Below is a checklist and although it is something that may vary from case to case it does provide a framework for people contemplating divorce.
Checklist
Your child or children’s names and dates of birth. If there are special needs considerations that will impact aspects of the divorce it is important that those are detailed to your lawyer.
Date and location of marriage or civil union.
Your spouse’s name and employer.
Information regarding your spouse or your being self-employment where applicable.
Your employer’s name. Current income.
The last three years of your tax returns. Mortgage statements on the marital residence.
A copy of any prenuptial or postnuptial agreements.
A summary of your debts.
Vehicles.
A list of property including retirement accounts owed before the marriage.
A list of property, including retirement accounts accumulated during the marriage.
Expenses for the children. (e.g. tuition, camps, tutoring)
Vacation property.
A list of any stock, stock options or investment accounts.
An estimated monthly budget that should include all costs including utilities, insurance. This is an important tool in determining what the financial future holds for you and your family.
An inventory of the personal property in your home. (e.g. art, furniture, electronics)
Non-Financial Issues
Mental Health concerns for either party that will impact parenting time or decision making.
Health concerns.
Parenting Plan proposals.
Decision Making (shared, sole)
Post-divorce plans and vision for what post-divorce life will look like for your family.
Not all of these things will be resolved immediately. Divorce is a process. It is always best if the parties can work together on these matters but that isn’t always possible. Regardless of the posture of your case it is essential that both parties be fully informed about the financial and child related issues in order to make the best decisions for the family.
If you are exploring the possibility of divorce, already committed to divorcing or have post-decree issues please feel free to contact our office for a free consultation. Our office is dedicated to advocating for the best outcomes for children and families. Call (312)-640-0500 or email me at mmoran@grundlaw.com. Consultations are available in person or by Zoom. Safety protocols are followed.
Summer is upon us and as a general rule this is a time when our office gets calls from parents regarding their teenager or young adults arrest or questioning by police.
Have this discussion now. One time is not enough. Here are some Frequently Asked Questions that I hope will educate you and your teenager.
What should my teenager do if they are stopped by the police?
Be respectful.
Keep your hands out of your pocket and visible
to the police.
Tell your child to provide his or her
identification to the officer when asked.
Provide the insurance information and
registration if they are driving.
Give them the name of your parents.
Politely but firmly indicate that they have been
told by their parents not to answer any questions. Ask them to call your
parents or an attorney. Have them state that they will not answer any
questions. This is hard for most young people. It is very common even when they
know that they shouldn’t talk to the police for them to give great detail or
even sign a written statement. Police can be intimidating and often will
promise that if the young person tells them what happened they won’t be
arrested.
The police are not your friend.
Do I have to be present if my child is questioned? Not necessarily. Students are often questioned at school and describe to school officials the details of the incident. They are not “in custody”. Students should be instructed to ask to call a parent before being questioned at school.
However, Illinois law requires police to “immediately make a reasonable attempt to notify the parent” after a minor is taken into custody.
Should I consult an attorney? The answer is yes. The stakes are high and parents should not attempt to play lawyer. Be very cautious about urging your child to tell an officer everything and as a result waiving their rights. This isn’t the time to teach your child a lesson.
Can my teenager or young adult with a disability be arrested? Yes.
How can I prepare my child? If your child has a disability it is essential that you prepare them for interactions for police contact. Parents are often shocked that their child with autism or other developmental disabilities can be questioned by police and arrested. Some families I work with have a script that their teen can practice regarding police contact. It is helpful that this “script” include a checklist of what to do. Autism/Advocacy Network aane.org has a downloadable wallet card that an individual with autism can carry and provide to police.
If your child has been arrested, ticketed, or you are
concerned that they will be facing legal consequences please call our office
for a consultation at (312)-640-0500.
There
is no road map that allows us to provide hard guidance on how to manage
parenting during this difficult time. Families are in unfamiliar territory.
However, there are some things that hopefully will help you navigate
co-parenting.
Follow
existing court orders. Parents must
follow existing court orders. This is scary advice for clients who may feel
that the other parent is not practicing social distancing practices. Courts are
not generally hearing these cases at the moment. In Illinois most courts are
closed until mid-May with the exception of emergencies. Common sense would
indicate that if one parent has been exposed to COVID-19 then act responsibly
even though it may violate the parenting plan. If a child or other family is at
high risk medically that may impact how parenting time is exercised, don’t be
arbitrary and act responsibly. Your failure to act in good faith during this
time will be used against you in the future.
Modifications. If you do decide to modify the existing Parenting
Plan, I suggest you get this modification in writing. This can be done with
your attorney by drafting a stipulation amending the existing schedule and
signed by both parties.
Be Flexible. Many of us including attorneys are working remotely.
Some families are now faced with the challenge of working while home schooling
and dealing with children home all day every day. If possible support the other parent during
this time to allow you both the option of working and supporting the education
of your children.
Keep communication
neutral. Resist the desire to lash
out at your ex at this time. Stay focused on the kids and the logistics of what
needs to be done.
Prioritize the
Financial Needs of your child. If one
parent loses a job or becomes unable to work due to illness or temporary
closures this will require a rethinking of support and payment obligations.
Parental
contact. In some situations in person
contact may be limited. Use Skype, Zoom or Face Time to ensure regular contact
with the other parent. It is important for your family.
There was a period in my practice that guardianship seemed
like the only option for families of disabled adults. That is no longer the
automatic solution. In our office we have always emphasized that there is no
one size fits all. Guardianship does not solve most issues facing families with
young adults with disabilities.
Here are a few scenarios that have come up over the years in
my office.
Matthew is
18. He is diagnosed with bi-polar disorder and a learning disability. Matthew
only wants to play video games in the basement and refuses medication. The
parents have been told by the school that they should seek guardianship in
order to force Mathew to take medication.
Anna is a
young adult with Down Syndrome. She will be finishing her transition program at
the high school next month on the day before her 22nd birthday. The
parents have not pursued guardianship but rather worked with Anna in helping
her make some of her decisions. Recently, Anna was sick with the flu and had to
be hospitalized. The hospital wanted to make sure the parents had a legal right
to make decisions.
Frank is a
young man with autism. He is non-verbal and is in a group home. His parents are
very concerned about his care. They obtained guardianship of Frank when he
turned 18.
The planning process for a family member with a disability
should start well before the person’s 18th birthday. The educational
team which includes the parents should discuss skills needed and any barriers
or deficits that need remediation or support. Guardianship is not a must but an
option. This is not an all or nothing approach of independence. There are other
supports that exist to help.
****
Let’s talk about our hypothetical of Matthew. Matthew has
average intelligence. He is impulsive and has had 3 psychiatric
hospitalizations in the last year. His parents finally persuaded him to sign a
Power of Attorney for Health Care and a Mental Health Declaration so that they
can help him in decision making and have information about his treatment. The
school is still insisting on guardianship. The parents are not sure that
guardianship is the right solution.
FAQ: What options exist other than guardianship?
A Power of Attorney for Health Care
Mental Health Declaration
Delegation of Rights (for special education
decision making)
FAQ: Do the parents have a right to make Matthew take
medication if they become his guardians?
No. Guardianship does not give you the power to
forcibly medicate a person with a mental illness.
In Matthew’s case the law is clear that a
guardian of the person cannot override his decision not to take medication in a
non-emergency situation without a petition to the court. 2-107(a) reads in
pertinent part as follows:
A
Guardian of the Person cannot override the decision of the patient/ward in a
non-emergency situation without a petition to the court. An adult recipient of
services or the recipient’s guardian, if the recipient is under guardianship
and the recipient’s substitute decision maker, if any, must be informed of the
recipient’s right to refuse medication or electroconvulsive therapy. The ward
has a right to refuse medication in a non-emergency situation. However, a
guardian may be authorized to consent to the administration of psychotropic
medication or electroconvulsive therapy to an objecting recipient only under
the standards and procedures of subsection(a-5). This refers to the seven
requirements that must be met in order to override the ward’s refusal. The
acting physician can also petition the court for the involuntary treatment of
the ward if both the ward and the guardian refuse treatment and must prove the
same seven things that the guardian would have to prove to overcome the lack of
consent.
The following must be proven at a hearing with clear and
convincing evidence.
That the recipient has a serious mental health
or developmental disability.
That because of said mental illness or
developmental disability, the recipient exhibits any one of the following:
Deterioration of his or her ability to function,
as compared to the recipient’s ability to function prior to the current onset
of symptoms of the mental illness or disability for which treatment is
presently sought.
Suffering, or
Threatening behavior.
That the illness or disability has existed for a
period marked by the continuing presence of the symptoms set forth in item (b))
of this subdivision (4) or the repeated episodic occurrence of these symptoms.
That the benefits of the treatment outweigh the
harm.
That the recipient lacks the capacity to make a
reasoned decision about the treatment.
That other less restrictive services have been
explored and found inappropriate.
If the petition seeks authorization for testing
and other procedures, that such testing and procedures are essential for the
safe and effective administration of the treatment.
After
the petition has been filed, the court has seven days to hold a hearing and the
parties are entitled to a continuance of seven days by right. If the seven
statutory factors are proven at a hearing the ward’s lack of consent is
over-ridden. If they are not proven the ward’s decision is affirmed.
FAQ: Does
Guardianship give Matthew’s parents the right to make him live in a group home?
No. Matthew must consent.
This is not intended to be an exhaustive
discussion of all the complexities of the Mental Health Confidentiality Act or
the Probate Act. The real intent of this discussion is that guardianship over
an adult with mental illness does not give you a magic wand that allows you to
force treatment or admission to a facility.
****
The options for
Anna. Not unlike the scenario in Matthew’s case, Anna’s parents had always
assumed that they would become Anna’s guardians when she turned 18. However, as
Anna moved through school and they met other parents it became clear that there
may be less restrictive options for helping Anna navigate the world more
independently.
Anna looked to her
parents for help in managing her money. She had a job after school at a local
pet store. She had very clear ideas about her clothes, music and food choices.
Anna wanted to get an apartment at some time like her older sister. Anna’s
parents wanted a place at the table to support her in decisions. Anna and her
parents decided that at least for now, they would agree that she would execute
a Power of Attorney forHealth
Care that would be used if serious
medical issues arose. Anna’s mother always accompanied her to any doctor
appointments. This was important to both of them. They found a doctor who was
very good at explaining things to Anna and asking for her input. For now, they
would not pursue guardianship.
It centralizes communication and helps with organization. Even for divorcing or divorced parents it has been my experience that the apps provide a less emotional vehicle for communication. Using an app can also limit the he said, she said phenomenon.
FAQ:
What can an app do to help with scheduling?
Most
apps provide an ability to use a shared calendar and allow you to provide
notice to the other parent in the event of a schedule change. I represent many
families with children who have special needs. Often the scheduling
complexities of outside therapies, doctor’s visits are daunting to intact
families. In divorced families, managing the scheduling is even more daunting.
An app that gives a calendar and notifications regarding changes is essential
and reduces the stress of constant communication.
FAQ:
My ex and I share expenses for our two children. Are there apps that track
expenses?
Yes.
Not all apps have an expense tracker, but most do. The list of common apps and
their features is listed below.
FAQ:
My wife has been very verbally abusive on the phone when we discuss anything to
do with our kids. Can an app help eliminate the tension or the constant
fighting via phone or text?
The answer
is yes. The apps aren’t perfect and for someone who is constantly angry they
may not resolve that completely. However, I have been involved in high conflict
divorces where the court may order that all communication ( with the
exception of an emergency) be conducted through an app. This does reduce much
of the free-floating anger and allows for more detached communication.
Apps for Coparenting
Our Family
Wizard
A divorce
couple created the Our Family Wizard platform to help keep communication
between co-parents as harmonious as possible. Each parent has their own account,
and can then add as many third party, child accounts and professional accounts
as the require at no extra cost. Attorneys and mediators are examples of third-
party accounts. There is an option extra called a ToneMeter. This is designed
to pick up on negative tones in a message and giving you an alternative that’s
less likely to start an argument. It also tracks and logs communications,
providing access to accurate records that may be used in court proceedings.
Costs:
$99.00 per year with a thirty- day money back guarantee. Each parent must
subscribe. The ToneMeter is available for an additional $10.00 charge annually.
Talking
Parents
Talking
Parents is an app that is free for the basic subscription. It has fewer options
even with the upgrades at an additionally monthly cost. This app is a good
option for parents who want to an ability to communicate with a secure system
that allows the parties to keep a record of communications.
Cozi
Cozi is a
free co-parenting app that allows you to set up shared calendars, create to
do-lists, share photos and other information. The basic version is free. It can
be shared with anyone who needs to access the shared calendar and other
information. Upgrades are available.
Coparently
Shared Calendar
Tracks Expenses
Mobile Access
Cost is
$99.00 per year per parent.
Most
of the apps offer a free-trial period. Determine which one works for your
situation. Discuss the use of the app with the other parent. The courts in high
conflict situations may require parties to utilize apps for communications and
this is often incorporated into a court order.
If you are contemplating divorce or
struggling to co-parent with the other parent or want advice on how to proceed
legally to achieve the best outcomes for you, your children and family. Call me
to discuss how our firm can assist you in this journey. (312)-640-0500 or via
e-mail at mmoran@grundlaw.com.
The holidays can be fraught with tension for many families who are divorced or who are in transition. Over the years of my practice as a family law attorney, I have developed a list of those things that can help during this complicated time of year.
1. Plan ahead. That may sound simple but very often clients find themselves in “emergencies” that their ex-spouse has generated. Sit down with a calendar and plan the days that loom ahead. Ask yourself if you and your co-parent are in agreement on where and when the children will be for each designated holiday. These details should be in a well-drafted Parenting Plan. However, parents may disagree on the language or fairness of the allocation of parenting time. This needs to be addressed before the holiday season and not on the day before a major event.
Communicate in writing with the other parent. Outline the itinerary if applicable for the upcoming holidays. Confirm in writing that there is an agreement regarding the pick -up times, dates, and any other details that are necessary. Document your efforts to resolve any dispute or your efforts at co-parenting.
Let the children or teenagers know of the plans. This discussion and how it is presented varies by age and developmental level. They should not be put in the middle of any discussion where there is a dispute. However, letting them know of the schedule can help ease any anxiety about how the holidays will be celebrated with each parent.
Stay positive and be flexible.
2. Determine how you will communicate with your children when they aren’t with you. Don’t infringe on the other parent’s time. Let them know you care, but keep it short and positive.
3. If you are struggling with the holidays as a result of the divorce or simply because they are hard, don’t share that with the children. Things will get better.
4. If there is an emergency or your ex-spouse is being difficult, keep in mind that judges don’t respond favorably to emergencies that are a result of procrastinating or playing gotcha with the other parent. If you anticipate a problem, plan ahead and let your attorney know of your concerns well in advance of the upcoming holiday or event.
5. Prepare your children or teens for the transitions and changes. Do the right thing and take the high road.
6. Do your best to enjoy the holiday events. Create new rituals for yourself and with your children.
