Special Education Law and Co Parenting Strategies

When a child needs extra help at school, there are laws in place to get the right help and a plan. But it doesn't always come easily, or at all. Former special education teacher, attorney Hope Kirsch, talks with host and family law attorney Billie Tarascio about what should happen and how to get it done. Hope takes the mystery out of the system to help kids, especially ones who have divorced parents with sometimes conflicting ideas about how to resolve the needs of a child who is struggling with education issues at school. This episode is packed with great ideas and advice for co-parenting kiddos with special needs.

Transcript

Billie Tarascio (00:04):

Hi there. This is Billie Tarascio from the modern divorce podcast. And I am grateful today to be joined by local special education attorney. Hope Kirsch. Thank you so much for being here.

Hope Kirsch (00:18):

Well, thank you for having me and thank you for asking me to be here.

Billie Tarascio (00:22):

Absolutely. This is such an important issue. It's one that I personally have dealt with and many, many, many of my clients have dealt with and it's, you know, the special education system, which is its own entire legal system that really puts parents in a place of having to figure out how to navigate this legal system and act on behalf of their child and walk this tight rope of how do I play nice with the school and get my child with a need. And that's what you do, right?

Hope Kirsch (00:52):

That is what I do. That is what I endeavor to do. That is what I try to do. Yeah.

Billie Tarascio (00:56):

Okay. And so how did you get into this area of law?

Hope Kirsch (01:00):

Well, that's an interesting question. I was a teacher in New York city for 18 years, special education teacher and an administrator special education coordinator with children who had emotional difficulties. So we call them sometime emotionally handicapped or emotional emotionally disturbed. So I do that a long, long time ago, beginning in 1975. Wow. Like a couple of centuries ago. And I loved it. I mean, I loved being a teacher and then my baby sister went to law school and I was at her law school graduation. And I said to my mom I mean, this is a long story, but I said to her, you know, I really wish I had gone to law school. But I knew I also wanted to be a teacher and live independently, you know, and work right away. And, and I really thought my mother would turn to me and say, but how can you have such a nice job?

Hope Kirsch (01:56):

You're a teacher, but instead she says, you still can. And that was in may of like, Oh my gosh, 19, I don't even remember. And so I, the next day I applied to, I looked to see and to getting into law school, went to law school at night and loved law school. Yeah. I'm one of those nerds who absolutely loved law school. Okay. So fast forward I go to commercial litigation, civil litigation, and I'm happy as a clam loved doing that move out. And that was back in New York, moved back to Arizona, following my baby sister. We're working at the same firm, big firm downtown. And we started navigating the system because one of her sons, she has twin sons, they're now 25. And one day she gets called through the school and says, we need to evaluate one of your child.

Hope Kirsch (02:51):

I want to be children. And that's, what's called child find reality. So the school is doing what it should have done suspected a child with a disability contacts. The parent says we need to evaluate. And so I went with her to the meeting and remember I had been an of, by that time, I had a special education as a lawyer for bout 10 years. And the whole world had changed. The laws became much more complex. We walk into a room and there are 10 people there and they're all sitting there and you're telling your you that your perfect, perfect child has disabilities and needs special education. And then just the cheer started gushing, you know, your whole world collapses in that moment. And so I said, Laura, you know, I'll hold your hand. But my gosh, I've been away from this so long. And there was an attorney at our other firm and he helped guide us.

Hope Kirsch (03:49):

And he said, here's the stack of papers. It's the law. You need to read it. I said, Holy cow. So that's the code of federal regulations, thousands of pages. So anyway, long story short, only it was, I didn't really make it sure was. We helped, we navigated from the time when the sun was in, my nephew was in kindergarten, he's now 25. He had this dire prognosis from some well-known neuropsychologists in the Valley who said, no, he's never gonna really be successful. So he is finishing up at ASU now getting his teaching degree in English, living alone and driving and living an independent life all through, having gone through the public school system in Arizona very successfully. So if you have the right tools and the school judge, what it should do, then everything should turn out much better than you ever thought. And so that's segue. We started getting into special education law. So we started our own firm 14 years ago. And that is all we do is education law, representing students and families throughout the state of Arizona. Pre-K through even college law school and medical school. Wow.

Billie Tarascio (05:22):

Okay. I have, sorry,

Hope Kirsch (05:23):

You asked that question. Not at all. Not at all.

Billie Tarascio (05:27):

Just it, it makes me think of so many things that I want to talk to you about. Like, I want to talk about special education in college and I want to talk about five Oh four versus IEP. And I want to talk about the difference between when the school comes to a parent and says, you know, we think your child has special education versus a parent who thinks, I think my child needs special education, but the real reason I brought you on was for the specific issue of when you've got divorced parents with a special needs child, trying to navigate the school system. So let's focus on that and tell me what your thoughts are.

Hope Kirsch (06:10):

And that is very hard because when parents are together and they're United and they have the same agenda, then you're just fighting the school. But now you've got two parents who don't agree. And often I see that situation where one parent says my child has a disability. And the other child parents says, no, my child doesn't have a disability. And I've represented both the one who thinks their child doesn't have a disability. The one who thinks they do this is a very unique area of the law, because usually you advocate for your parents and your client's position. And I do that. But if I don't disagree, if I don't agree, sorry, I let them know that right upfront, because I also have a background as an educator. And so I'm not a diagnostician, but I've been doing this a long time. And so I may say, I don't agree with you.

Hope Kirsch (07:09):

Let's get an independent expert to figure out if your child has a disability or not. But that's one scenario, but we'll, I'll try to advocate for my client's position. And so if I, we go to an IEP meeting you have one parent sitting over there who says, now my child does not need all those services. And my client says, no, my child just need all of these services. Now, usually when I go to an IEP meeting, I always think of my client as the child before, but, and I always say I'm the family's attorney or in the child's attorney, but in those situations where I'm hired by only one parent, I say mom's attorney. So that the other parent doesn't say, you can't be arguing for my child. You don't, you're not my child's attorney. That's right. I'm not your child attorney. Your the mom's attorney, I'm the dad's attorney, but that makes it harder. That makes it more difficult. But I am also in the more privileged position than a school and telling a parent, this is what I think this is what I see. And actually, if you don't agree with me, you don't have to use my services. There are a couple of other attorneys who do what I do, but it makes it just that much harder. And sometimes schools like to use that wage.

Billie Tarascio (08:36):

Okay. All right. So as you know, and as many of the listeners know Arizona overwhelmingly orders, joint legal decision-making which, you know, use, which means that both parents have to have equal decision-making authority with regards to education. And usually that means if they don't agree on a change, no change happens. Now, if you're in a position where one parent thinks the child needs services and the other parent doesn't, and they've got joint education, does that stop a parent from asking the school for special education services?

Hope Kirsch (09:14):

So the way the schools handle it is whichever parent comes in first, but it puts them in an awkward position. You know, they're not the only law, even their attorneys, aren't family law attorneys. They're not going to read the divorce degree or the parenting agreement and figure it out. So it's which I find that it's whichever parent comes in first, but then if the other parent doesn't agree, all you need is one parent's signature on the document. So there are certain documents that must be signed. For instance I request for an evaluation the school needs parental consent. So I'm parent test is signed that the other parent comes in and says, I don't agree. The school already has this signature of one parent. There's no form that says that, that the, that the other parent comes in and says, I don't agree.

Hope Kirsch (10:11):

All they need is one signature. They have that signature. Now the, and the initial provision of special education as well, needs one parent to sign, not to what the schools do not need is when you have an IEP meeting and everyone sits around, including the parents. I Arizona is a non-consent state, meaning that the school can implement the IEP, even without parent consent bear to sort of have to sign off on it. There's a signature page, but that is only a testing to the presence and participation at the IEP. So if mom goes in and signs the consent for evaluation, the child is evaluated consent for provision of special education, fine IEP. If there's no signature, if no one has to agree to it, it's implemented. And then the parents get what's called a procedural safeguards notice, which is basically saying it's a booklet.

Hope Kirsch (11:13):

And it says, if you don't agree with us with the school, you can file due process years where I have a problem though, if parents aren't on the same page for due process and that's for a dispute. So if they want a different placement, they want to have in-services, I cannot file a due process. If both parents don't agree, I don't need the signature of both parents, but say, for instance, you come to me, Billy, and there's a dad in the picture, whether it's it's, you know, the parent, the kid's father, whether you're married or you're not, and you guys joint decision making, you would have a parenting agreement and you want a private placement. You want, you know, the school's not doing what should have done. And so there are so many violations and they're not providing your child's with a free and appropriate public education of fate. Then we may be able to get a private placement. That means a district, the district will place the child in a private Arizona department of education approved special education school. Okay. But if the dad doesn't want that, I can get it for you. And he could come in and say, Ooh, no, I don't agree with that. And I'll do it. So I would want an affidavit from him saying whatever Billy wants. I agree with.

Billie Tarascio (12:36):

Sure. Because you've got school choice issues, right. So if both parents don't agree and there's joint legal, decision-making, you can't change the schools. Even if you go in and you win a special education lawsuit that says the state has to pay for the private school. Correct. So that's yeah. And, and the other thing you said that's important is so for the special education process to work, you only one parent's signature, but if you have joint legal decision making and one parent signs, and the other person doesn't agree, you may have a violation of joint legal decision making in the family court,

Hope Kirsch (13:08):

Correct. Has nothing to, I can help you. Then you have to go to your family attorney. Yeah.

Billie Tarascio (13:14):

Yeah. And it's not easy to navigate this situation at all. And so when I'm, when I'm working with clients you really have to take your actions to protect your child and also protect yourself from a potential lawsuit and family court. And, and try to tread lightly on the, on the school and with what you're asking.

Hope Kirsch (13:45):

Correct. And, and they're in one, we do not practice family law. I cannot say that I would understand it, a parenting agreement that would be beyond my expertise. That would be beyond what my malpractice carrier would want me to do. So I can't. So what I would do is I would, I I'll get released. I can't speak to anyone else. If I don't get a, parent's released to speak to their family law attorney. Sometimes we work together. I had a mediation with the office of civil rights and it wasn't just me there. It was each parent had their own family law attorney present. Wow. So at least I felt good because I can't, I can't navigate the family law part. I don't know how, and I don't want to do that. Okay. So sometimes all attorneys have to be involved when it gets expensive for the parent, when they have to have that family law attorney involved the school part,

Billie Tarascio (14:53):

Let's take a step back. If let's talk about what, when a child might qualify for an IEP and what, what a parent might be seeing that might indicate that they should look into getting special education services.

Hope Kirsch (15:12):

Sure. So the parent isn't in the school with the child. So all the parent knows is what the child tells them. If the child can sometimes children jump on to say, I had a case once where a child was being put in a seclusion room very frequently.

Hope Kirsch (15:27):

Why didn't you tell him, mom, I didn't want to tell mom. I thought I was being bad. You know, but what the parent will see is no tone about discipline issues. That that's usually red flags. So we're looking for red flags. If Johnny's not able to bring home his homework, if he doesn't know what his homework is, if he, his grades are falling. So you're looking at grades, you're looking at standardized test BAC, merit, not generally. Well, I'm not able to tell parent what the homework is, no tone. Well, they don't do notes home. Now they do emails, right. Johnny forgot his worked on, he didn't do his homework. So you're looking at the grades. You looking at the behaviors you're looking at, if your child's coming home happy or not, does your child not want to go to school? That could be a sign of bullying, could be a sign that the child isn't understanding what's going on in school.

Hope Kirsch (16:18):

So parents can see a lot, but if your parent has communication with the teacher and teachers are really for the most part, are really good at that emails. Just, you know, how how's Johnny doing check-in once in a while. Are there any concerns with parents now they could tell by if their child's struggling with their homework? And if the parents suspect that a child is struggling in anything, whether it's the academics, not understanding, friendships, behaviors then the parents should email. And I always say sends emails to three people, cause ones could go into spam junk. It could be fired, whatever the teacher. So you want to send it to the teacher, the principal, if you know who the special education coordinator is in the school at that point, you probably don't. So at least two, preferably three people, principal, assistant principal, teacher and copy yourself and say request for evaluation, you know, and concerned that my child isn't understanding the homework then maybe other areas and, and, and problems that I'm not even aware of. And so I'd like my child tested or evaluated for special education. That's all. And then from that point, the school has to convene a red meeting to review the existing data. What do we know about the child that has to be done within 15 school days? So if you're requesting it on the list last week of school at school, doesn't have to convene a meeting until the new school year. That's the first step. I don't want to jump ahead.

Billie Tarascio (17:54):

I really like what you just said, because if your child isn't functioning well in school, for whatever reason, it could be an indication that they might qualify for special education or might be struggling with something. And that could be a lot of things. Like in my case, I've got two different kiddos with IEP and one really primarily struggled behaviorally. And there was no re there was no way that I could punish that out of him or the school could punish that out of him. He didn't have the skills to function in school, and it's not anybody's fault. He just, he needed extra help. And the IEP really, really helped him. And then I've got another kiddo with an IEP who really struggled educationally. And that was the red flag for me is like, wow, he's not reading. He's not getting it. Now with the first kiddo, he was given an IEP quickly, easily and immediately. But with the second kiddo, the school said Billy, we don't think we need to do an evaluation. It's fine. You're overreacting. He's gonna read soon, you know, essentially. And they, and, and bless her. I love the school. We have a great relationship. It's good. But I have to imagine that that is a frequent thing that parents hear from schools.

Hope Kirsch (19:13):

Yeah. And so, unfortunately, yeah, and the parent can push on it. Now, when it comes to learning disabilities, such as reading schools are required first to do tiered interventions. Okay. Well, they, they can't, they must do tiered interventions and they can delay the evaluation just a bit while that's tried. And what that means is that there, the child is getting extra help in reading or math or whatever the learning suspected learning area is. So schools can do that, but parents should not, they should keep after this school because it could be that with some tiered interventions and you know, some more work, some different approaches child might be fine, but just monitor it. Don't let it go beyond a half a year, say, Hm.

Billie Tarascio (20:06):

Yeah. And I mean, behavior is different. So do you, do you think it's easier in general to get an IEP when, when a child has behavioral problems versus learning problems?

Hope Kirsch (20:19):

I have found that I have found that schools don't usually recognize dyslexia. They used to tell parents you know, dyslexia doesn't qualify your child for an IEP. It actually does. It's actually in the law. It States that but behavior is something you can see, it's more tangible. So that's why schools react. It's interesting. What you said, you said, you know, you couldn't discipline your child's out of that. No. Okay. So remember I taught emotionally handicapped kids. So our kids with emotional and Indy cats. And so those children were either withdrawn the internalizers or they were the externalizers. So they kids who act out in school, kids aren't born bad and not born bad. Their behavior is a form of communication. And it could be a child is throwing desks because they want to be bad and violate the rules. It's because they're frustrated or because they're, you know, they're, they're angry.

Hope Kirsch (21:18):

What's causing that emotion what's causing that. And then your child, if your child's had some behavioral issues, they probably did. What's called the functional behavior assessment and FBA to figure out what's, what's triggering these behaviors. What are the antecedents? And let's work on that. I had a kid and I'm sorry, when they say kid child. So I had a client and with autism and he was in first grade not verbal struggling with language and he'd get online. He'd be hitting kids. He'd be hitting his peers. And he was getting in trouble for bullying. So I had a very well-known psychologist in the Valley go and observe. And that doctor said, you know, PhD said he's hitting because he's a form of communication. He wants attention. He doesn't know how to get the attention of his peers. He's not being bad.

Hope Kirsch (22:19):

So I love behaviors. That's my background. I feel comfortable with that. But I also think that that's what schools say. And a lot of times we handle discipline. When school was in session before COVID, that was a big part of our practice. Of course, when school kids are in school, they can't really be suspended, but it says happened. Anyway, what we would always say to parents was, let me see all the records. How many times did your child been in trouble? All these discipline records. And we'll usually get on the phone with the school district's attorney and say, you're suspending this child, this gen ed child. These are the red flags for special education should have been evaluated. Right. And that stops the suspension pretty much right away.

Billie Tarascio (23:04):

Yeah. And I think that this is so important for parents to know, because if kids are getting suspended, they're not in school, they can't be learning. And that's the entire point of the faith, which you said a free, appropriate public education. This is what a child, every child is entitled to. And if they're being suspended, how can they access that free, appropriate public education?

Hope Kirsch (23:30):

And do you know that Arizona, a child can be expelled for truancy? Now you're expelling the children who need it. The most, the students who need it the most, it is crazy that law. So we need to get these children back in school. Yeah. So if, if you have an IEP or even a five Oh four, there's one extra step schools must take before suspending long term suspending or expelling child, and that's called a manifestation determination review where with the team, when it, you know, I've been talking a lot about teams. So the team is made up of a school administrator such as the principal. If a child has a five Oh four would be the Fargo court coordinator, that's an IEP. It would be the case manager. Who's often the special education coordinator of the school, a special education teacher. The agenda teacher, parent is part of the team.

Hope Kirsch (24:30):

And the team sits around and determines whether or not the child's behavior that violated the school rules is a manifestation of their disability. That's number one. And the second question is, or was the behavior caused because the school bell to follow the IEP or the five Oh four, and that would happen for instance, with the child who has autism. And the IEP says that this child is allowed to go to the sensory room for 15 minutes before class begins sensory rooms, where they have the bouncy balls and the, the lights, and it's quiet, and there might be music. And no one's speaking as loud as me cause they know that voice and nice and soothing and, or, you know, a place where the child can get the jelly beans out, you know, just bounce around, goes back to class, sits down. Well, if there's a substitute in the class that day and substitute is supposed to read the IEP, doesn't allow the child to go to the sensory room and the child kicks over a desk and punches Johnny in the mouth. And they want to suspend him. Well, actually you don't have to BMDR until 10 days, but let's just say he's close to his 10 day sub suspension. That's a failure to follow the IEP. What caused that behavior? And so the child can be suspended for that.

Billie Tarascio (26:02):

Yeah. I think this is so incredibly important because I don't know that parents truly understand how much they can do to help a child who's struggling in school and how much the law can help the child if you get this IEP in place. And in my experience because it's a lot of work for a school, they're probably gonna try to see if they can address your concerns in another way. But if you don't have an IEP, you don't have the same level of protection that you from either reasonable accommodations of a five Oh four or tiered intervention. Right?

Hope Kirsch (26:50):

Correct. An IEP gives you well. Okay. So here's a big difference between a 500, 409 pay is a child with a five Oh four can be long-term suspended or expelled. You just have to have that MDR, the manifestation, determination review a child with an IEP cannot be long-term suspended without services, meaning that yeah, you can suspend the child for more than 10 days. If they have an IEP, send them at least to an alternative school.

Billie Tarascio (27:30):

I lost you for a minute. Can you pick back up there?

Hope Kirsch (28:01):

So a child with an IEP they can and camping, they let's just say they can be long-term suspended, but they must receive services. They cannot be expelled child with the five Oh four can, you know, goodbye. You're out of school child with an IEP must receive services to access the general curriculum. What does that mean? That means they have to be provided with an education and they must be provided with their special education minutes, whether it is in reading or writing or behavior or communication. So they would be placed in an internal alternative school. If that school district has it, there is, there are some school districts that don't have that, which means a child must be home, which is just crazy that you've got a kid who's been suspended from school and then they're home and parents may not be home because they may be working.

Hope Kirsch (28:53):

So it's, it's just really a crazy system. And in that case, what we try to do is try to get a, at least a private placement for the child. Doesn't always work. But you know, when looking at what is it, what does this child need? And that's what we try to get. And so when I talk about a free and appropriate public education, it doesn't mean that the parents get everything they want. Of course you want what's best for your child. Absolutely. But the law doesn't require that the largest requires that your child be able to access the school curriculum as well as other, as well as other children too. But it doesn't mean that they get the Cadillac of, of education.

Billie Tarascio (29:38):

Okay. So we don't have a of time left, but I have a question. What are the schools required to do for special education children when they're not in session?

Hope Kirsch (29:52):

I'm sorry. Yeah. Can you repeat that again? Because you cut out,

Billie Tarascio (29:55):

What are the schools required to do for children with an IEP when schools are not in session?

Hope Kirsch (30:04):

During COVID you mean? Yes. Okay. So you have to implement the IEP as best as you can. It's not going to be exact and they may miss out on a few services here and there. And then parents can keep a log and the school will meet. We always tell the parents wait until the, you know, COVID is over and then hopefully soon, and then you'll meet with the school and see if your child needs compensatory services. So if they didn't have all of their special education math services, for instance, all of the minutes per the IEP, if they regress, they're entitled to compensatory. I wouldn't say that they're necessarily entitled to get compensatory if they didn't regress, if they were doing fine on 30 minutes of specialized math instruction a week instead of 45 minutes a week, they're going to have a hard time asking for compensatory services.

Hope Kirsch (31:08):

And even if they progress, but not as much as parent wanted, the school may also deny compensatory services. But the bottom line is that the school must implement the IEP as best as it can. Meaning also occupational therapy, speech therapy, even a paraprofessional doesn't come to the home, but it can be with the child on whatever platform the schools are using. Usually usually they use a Google platform. And then the para professional can speak to the child's in a separate room to work on whatever they need to work on. Say, it's a math lesson, so it's not going to look the same, but it has to be in principle comparable. That was different for every child. All children will have separate as a result. Yeah.

Billie Tarascio (32:01):

Oh, totally true. At what point do parents need to come see you?

Hope Kirsch (32:14):

Um, we would be the, the point of last resort. We, sometimes parents come, we'll do a consultation and we give them strategies for going back to the school. You know, maybe buzzwords. You always want to try to work it out because it's a relationship that you will have for hopefully all the time that your child is in school. So come to us, if you're not getting what you need, if you feel like you're banging your head against the wall, if you've tried everything, I mean, you can come earlier, but you know, try to exhaust things. The, when we do a consultation, we're always giving parents legal strategies. We might even write an email for them to send. We might tell the parents who say that they met with us. Good. Say you met with us if you didn't meet with us because we'll get a call from the school.

Hope Kirsch (33:08):

And I said, I don't know who that parent is now. And just, we really wanted to work out it's, it's a living, breathing relationship. And it is our hope that even if we go to an IEP meeting, that it's one and done, you don't need to bring us after that, that we've given you the tools and the strategies and educated you a bit on what you can do without an attorney and to empower you. Okay. You shouldn't have to have, I know, like in New York, every parent brings an attorney with them to an IEP. We have some clients that do that. They don't need to, they feel that comfort level and that that's fine. But for most people it's, it's, like I said, last resort, but also we have a good working relationship with all of the school attorneys in the state.

Hope Kirsch (34:00):

I would say it's a very small bar. We all know each other. We could pick up the phone, we can talk, we can dialogue. And we want to improve relationships. It is not combative. It is confrontational. Do we get into arguments sometimes? Sure. We're advocates, attorneys or advocates, but we always find a common ground because we want it's you have children involved. It's not like a car accident case where you're looking for money to make you whole, again, we want everything to improve for this child. And a lot of times it's communication broke down with the school. That's what happened. And so we want to improve that communication. We do a lot of presentations with school, with journeys, and this number one thing is communication. And parents also need to be understanding of teachers and how hard they work, but schools too need to understand this is a parent of a child with a disability. Okay. So they're already, you know, have that disadvantage in that they're struggling with this whole, within this whole system. They're worried, they're concerned. Like my sister was that very first day that she was told that her child needs special education needs to know everyone. That meeting was there for the child. It's overwhelming. So everyone needs to understand what it's like to be in that person's shoes, or at least, you know, empathize with that and be compassionate. And then everything should go a little smoother, a lot smoother. Well hope

Billie Tarascio (35:38):

Thank you so much for your time today. I really appreciate it. I think the information has been great. How can people get ahold of you?

Hope Kirsch (35:48):

Just look for special education attorneys online or email me at hope@kgklaw.com, go to our Facebook or website Kirsch Goodwin & Kirsch. And it's my sister and me. She's the Kirsch-Goodwin and I'm the Kirsch.

Billie Tarascio (36:04):

Wonderful. Well, thank you so much. Have a good day. Bye.