NAVIGATING THE SPECIAL EDUCATION PROCESS

Across Westchester County and New York State,the beginning of the new school year is a time of both excitement and anticipation. Children and parents alike look forward to seeing friends and returning to the familiar routine but also anticipate new schools, new teachers and the changes they bring.

This transition is most times smooth but can sometimes be the cause of some anxiety and adjustment. This is particularly so for families and children with special needs. Whether toddler or teenager, the autistic child, the child on the spectrum or the child with other physical, emotional or behavioral issues may face unique circumstances and demands requiring intervention and the cooperation of the particular school system.

Appropriate special education services are available in most if not all suburban school districts. Indeed, such services are a child’s right under federal law which guarantees every child a ‘free appropriate public education”. Nonetheless, with resources limited and budgets and bureaucracies stretched, parents often find themselves struggling to get their school district to provide the special education services their child needs. What should be a cooperative effort becomes adversarial. It is then that parents must be sure they have to tools, the information and the guidance they need to protect their child’s interests.

Typically, the special education process begins when a parent or a school staff member makes a referral for an initial evaluation. In the event that someone other than the parent makes the referral, the parents must still agree in writing. Based on the results of the referral, a decision will be made as to whether the child is eligible for special education services.

If the child is deemed not eligible, parents have the right to an Independent Educational Evaluation (IEE). The school district must then either agree to the evaluation at its expense or prove at a Due Process Hearing why its initial evaluation was appropriate. A Due Process Hearing is a formal, impartial hearing at which both sides, the parents and the school, present their positions and a Hearing Officer makes a determination. Alternatively, the school district must make mediation available.

If the child is deemed eligible the parents and school district will draft an Individualized Education Plan (IEP) at an IEP Team meeting. Parents and the school must recognize that the parent is a true team member entitled to participate fully in crafting the child’s IEP. An IEP will list any special services the child needs, one year goals for the child and benchmarks for progress and placement decisions as to where best the child’s needs can be met. The law requires that the child be placed in the Least Restrictive Environment appropriate. Ideally, a child should be placed in a regular classroom where appropriate special services are made available. Again, the parents are entitled to fully participate in this decision making process.

If disagreements as to the IEP arise, the parent and child are entitled to another Due Process Hearing. Assuming an appropriate IEP can be crafted, the IEP team then meets at least once a year to discuss progress, goals and services.

Ideally, the process outlined will be a cooperative one. However, appropriate special education services can be expensive and complex. As a result, parents may find themselves struggling against a school district bureaucracy to secure the services their child needs. Under such circumstances, the parent and child are entitled to have an education advocate or attorney represent them and assist them in securing needed services. Such an ally can bring their knowledge of the education system, available resources and the law to bear in arguing the family’s position. By helping parents learn, understand and articulate their rights, the advocate or attorney can provide families the support they need to obtain the education their child deserves.

Worth a look

Our client, Kenyon Ridge, a maker of fine men's sportswear, recently updated its website. The new site is well worth a visit as is the first Kenyon RIdge retail store in Bronxville, New York. Take a look at www.kenyonridge.com.

Honus Wagner sets another record.

Honus Wagner, the baseball Hall of Famer who retired in 1917, just set another record. His 1909 baseball card sold at auction this week for 2.35 million dollars. It seems the card is rare because it was distributed by a cigarette company and Wagner, a non-smoker, had it recalled because he didn't want to encourage children to develop any bad habits. I wonder if any of today's ballpalyers are listening...can you say steroids?

Not so "small" business

A business related site I visited recently listed some interesting facts. It pointed out that there are 4.8 million businesses in the United States with fewer than 99 employees. These "small" businesses put a roof over the head of some 41 million individuals (not counting family members). They are producing nearly three quarters of the new jobs in this country each year. Indeed, "small" business accounts for over 50% of the Gross Domestic Product of the United States.

Thats why I've told more than one of my clients that they don't own a small business...they own a growing business...and they are the country's economic engine.

"On the Internet, nobody knows you're a dog..."

So said one dog to another as they sat at the keyboard in the well known New Yorker cartoon a few years back. Unfortunately, if certain members of Congress have their way, they may not know if you're a dog, but they will know a great deal more about your computer habits.

Under a new bill introduced in Congress within the last few weeks, Internet Service Providers would be required to maintain the names and addresses corresponding to every IP address for the ISP's customers. The bill would also allow the U.S. Attorney General to require ISPs to maintain information on traffic, sites visited and the content of e-mails.

The bill was introduced by Representative Lamar Smith of Texas as part of a "Law and Order" initiative. It will bear careful watching, lest law and order cross the line into invasion of privacy.

Lessons from Anna Nicole

While it is easy to roll our eyes at the circus surrounding the death of Anna Nicole Smith, that very circus should actually be a lesson to all of us. While most of us will never have the assets that come from marrying a billionaire octagenarian, a few simple and obvious steps will still avoid our own version of the "Anna Nicole Show".

Inventory all of your assets, cash, investments, real and personal property. Consult an attorney to prepare a will addressing the distribution of that property and, if necessary, issues such as guardianship and trusts for minor children. At the same time, consider executing a power of attorney so that a trusted friend or relative can attend to your affairs in the event that you are not able. Likewise, prepare and execute a living will and a health care proxy. A living will sets out instructions and wishes for your medical care in the event that an injury or illness prevents you from expressing those wishes. A health care proxy is, in effect, a power of attorney for medical decision making, again allowing a trusted relative or friend to make decisions if you are not able.

Such simple steps will avoid much of the melodrama currently unfolding in a Florida courtroom.

Public Records Seminar

On April 26, 2007 I will be moderating a seminar titled "What You Need to Know About Public Records and Open Meetings in New York". The all day presentation will begin at 9:00 a.m. at the Crowne Plaza Hotel in White Plains, NY. The seminar, sponsored by Lorman Education Services, will present the most recent information available on New York State's Open Meetings Law, Freedom of Information Law and the recently enacted Federal Funding Accountability and Transparency Act of 2006.

I will be joined on the Panel by attorneys Debra S. Cohen, J. Henry Neale, Jr. and Lino J. Sciretta.

For more information about this seminar and other Lorman programs visit www.lorman.com

"Contract Counsel" arrangements provide small and mid-size businesses with affordable, reliable representation

Many small and mid-size businesses recognize their need for regular legal advice but can afford neither a full time staff attorney nor the risk of unpredictable legal bills from outside counsel. Indeed, the billable hour, that standard of lawyer’s bills, often prevents business owners from seeking advice when they should.

Business owners, looking at the bottom line, resent the fact that they need worry that every call to their lawyer is “on the clock”. Often, lawyers hear, clients are hesitant to pick up the phone to make routine inquiries for fear that they will pay for even the simplest two minute phone call.

It wasn’t always like this. Indeed, the billable hour as the standard way of doing business is largely a creature of the post-war era. It was a Harvard Law School Dean, hired to manage a Boston law firm in the thirties, who determined that modern accounting and office efficiency required marking a lawyer’s time in six minute increments. Prior to that time, attorneys often billed for services in a variety of ways involving time, flat fees and contingencies.

In recent years, the trend has begun to reverse itself, with more and more clients seeking alternative fee structures and lawyers and law firms necessarily accommodating such wishes.

Many start up, small and mid-size businesses could benefit from the consistent, hands on approach of full time counsel. In the past, that meant either the expense of hiring a full time in-house counsel or relying on an expensive, outside law firm, for often necessary but routine tasks such as contract negotiations or document reviews. For many businesses, which need regular counsel but can afford neither a full time attorney nor unpredictably high legal bills, there is a third alternative. Across the country, such firms are turning to so-called “contract general counsel” arrangements which afford the benefits of regular legal advice, the integration of the attorney into the “team” and the financial benefit of a predictable, negotiated fee. When neither the client nor the attorney is constantly watching the clock, the client tends to be more willing to involve the lawyer in the larger picture of the business. Likewise, the lawyer has the opportunity to fully integrate his legal services into the “big picture” of the client’s business plan and goals.

Attorney Vida Harband operates Advanced General Counsel in Tiburon California. As she points out on her website, serving as outside general counsel her office is “able to work closely with [its] clients and provide more hands on service”. Indeed, Harband notes that her initial client meeting is not only intended to learn the client’s legal requirements but “to begin the process of learning about [the client’s ] business to meet [its] goals”.

Typically, under a contract general counsel arrangement, the attorney will agree to dedicate a specific number of hours or days per month to a particular client’s legal needs, often on site at the client’s place of business. During that time the attorney can handle routine legal matters, keep an eye on all of the legal ramifications of the client’s business dealings and be available to the client’s officers and employees for advice and counsel. The attorney also, typically, agrees to be generally available to answer the client’s inquiries by telephone or to attend meetings outside the office with the client. The client, in exchange, agrees to pay a negotiated, monthly fee, typically discounted from the attorney’s ordinary hourly rate. The contract counsel model differs from traditional retainer agreements in that with a retainer, the client pays a set amount up front or over time, but the attorney still bills hourly against the retainer leaving the same “clock watching” phenomenon in place.

In my own law practice, I have established such contract arrangements with multiple clients. The advantages have become quickly apparent. Freed from concerns of constantly mounting legal bills and assured of my regular attention, clients have been quick to integrate me into the day to day operations of their business. In that way, I can spot legal issues before they become legal problems and often point out ramifications of decisions the client might make before they require extra “lawyering”. The clients know that they can rely on my office to monitor their business for the full spectrum of legal issues and, yes, when necessary recommend the need for outside counsel. Like any in-house general counsel, part of what the client pays for with contract general counsel is the ability to recognize when a particular legal specialty is necessary. Even in those cases, however, the client has the comfort of knowing that, as part of his regular duties, the contract general counsel is monitoring the retained outside counsel.

Contract general counsel arrangements are a win/win for clients and lawyers alike. The client has the comfort of knowing that for an agreed upon cost its business is being protected by counsel fully familiar with its business plan and goals. The lawyer, taken off clock and knowing that the client isn’t looking at every conversation as a mounting charge, is freed to fully integrate his legal expertise with the client’s overall business strategy.

As more and more start up and mid size businesses recognize that they can obtain the benefits of in house counsel without the time and dollar commitment of hiring full time staff, contract counsel arrangements and similar alternative time and fee structures will become more commonplace.