Vietnam Redux

Submitted NY Times – 2/5/12

Dear Editor:

Not unlike Vietnam, there are two wars in Afghanistan: the war of
“success” portrayed to the American public, and the real war on the
ground [“Taliban Captives Dispute U.S. View on State of War” 2/2].
The best the U.S. can hope for is a “decent interval” between
departure and the emergence of the political reality upon which the
U.S. attempted to impose its will.

Sincerely,

Tom Miller

UNFETTERED CAPITALISM =’S JOBS?

NY Times Letter 1/27/2012

Letters to the SF Chronicle – Role of Government and the Death Penalty

Letters

Slush Funds of Iowa

New York Times Letters to the Editor 1/3/12

Dear Editor:

Add to the evil mix of Supreme Court backed unlimited
unaccountable funding of political campaigns [“The Slush Funds of
Iowa” 1/3] that over 90% of elections are won by the candidate with the
most money and that 90% of campaign contributions come from the upper
5%, and you will see why there is such a disconnect between the public
good and Washington – and this does not take into account the ongoing
impact of the merry-go-round of legislators/corporate lobbyists.  Our
country is “Occupied”, but not by the 99%.

Sincerely,

Tom Miller*

*The writer is a member of the Advisory Board of MAPlight.org, a
non-profit organization devoted to tracking the impact of money on
politics.

Why a Slow Recovery in Haiti

Letters New York Times 1/9/12

Dear Editor:

Neither editorial [“Haiti’s Slow Recovery” 1/9] nor op-ed [“Haiti
Can Be Rich Again” 1/9] nor thousands of humanitarian organizations
competing to help Haiti (with notable exceptions such as Partners in Health)
face the Achilles Heel of Haitian society: a U.S.
supported small, elite group controls election outcomes by banning
candidates and political parties it does not like.  The result is a
disconnect between the Haitian government and its people and the
public good.  No wonder recovery is slow.

Sincerely,

Tom Miller

Special Education Law – What is your wish list?

“What is your wish list?” – The simple question behind our success and parents’ satisfaction.

One question we ask all parents when they first contact us, is: “If I ask you for a wish list regarding your child, what would be on that list?”

In many cases, and unfortunately, it’s the first time the parents have been asked. It is a simple way to engage the parent into the special education process, which quite frankly, is a difficult one.

This question allows our attorneys to determine what the parents believe their child needs. Unquestionably, a parent is in the best position to know how to help his/her child. Of course, this doesn’t mean the law will provide a child with everything a parent wants, but it allows our attorneys to cater our services to each family.

Although we can’t promise anything, or a particular outcome, our attorneys are experienced in taking a parent’s wish list, and strategically handling the case around that list. This includes many aspects of each case, and because it is case specific, we ask parents to contact us for more information.

So, what’s on your wish list?

Special Education – Background Information

Under the Individuals with Disabilities Education Act (IDEA), children with eligible disabilities are entitled to a “free appropriate public education” (FAPE). FAPE is provided through an Individualized Education Program (IEP).

An IEP team determines whether a child qualifies to receive special education services and what the IEP should entail. Parents are critical members of this team. In theory, the team is to collectively determine the contents of the IEP. An IEP cannot be implemented without parental consent.

Understandably, the team occasionally disagrees about specific content in the IEP. This disagreement is generally between the parents, and the district IEP members. When a stalemate occurs, and there is no chance of a consensus, it may be necessary to file a due process complaint. This leads to a due process hearing.

 

What is a due process hearing and how does it work?

Essentially, a due process hearing is an impartial way to determine the identification, assessment, educational placement, and appropriate services and support that your child is entitled to under the law. It leads to a decision by an administrative judge.
Parents can think of a due process complaint like a filing a lawsuit – but if you “win” at the hearing, your award is an IEP that is designed to what you considered as “appropriate”, as well as “compensatory education” (services your child should have received, but for the district’s violations).

Instead of filing a complaint through the “regular” court system, it is filed through OAH (Office of Administrative Hearings). OAH is an independent state agency that handles special education disputes. Instead of a “trial”, due process complaints are handled through a “hearing”. Hearings are similar to trials, but are not held in a courtroom, and are slightly more informal.

Once you file a complaint, the “lawsuit” begins. Before the hearing, there are three primary events:

First, there is an early resolution session. This is an informal meeting between the two parties (parents and school district) without legal representation. The hope is that the parties come to a mutual agreement at this resolution session. Our attorneys will help parents prepare for this meeting, and will be available throughout the session for consultation (via telephone).

Second, there is a mediation. This is a more formal attempt to resolve your complaint without going to a hearing. The parties, their attorneys, and an administrative judge from OAH will attend. It is generally held at the school district’s office. It is scheduled for the entire day, although it does not take the entire day in some cases. It is considered confidential settlement negotiations, meaning, anything said during the mediation cannot be used as evidence in the hearing. The judge presiding over the mediation is automatically prohibited from hearing the case, to ensure that confidential settlement communication is not brought into the hearing.

Third, there is a pre-hearing conference (PHC). This is a teleconference between the judge, who will be presiding over the hearing, and the attorneys. The purpose of the PHC is to identify the specific issues (allegations) that will be determined at the hearing, the proposed resolutions, witness lists, evidentiary issues, any pre-hearing motions, and any and all other practical matters for the hearing.

Lastly, if all else fails, a hearing is held. It is a “trial”, wherein the parties are allowed to present witnesses, evidence and arguments. The presiding judge makes a final, written decision.

 

Do I need an attorney?

Parents are not required to have an attorney. However, there are several reasons why having one is beneficial. Attorneys can handle all the “administrative” aspects of the case. In addition to the events outlined above, there are many things that need to be done before a case goes to a hearing, such as, PHC statements, exchanging of documentary evidence and witness lists, issuing subpoenas, and so on.

Attorneys also have the benefit of wide exposure to special education cases. This experience allows attorneys to better gauge the legal strength of a parent’s grievances, as well as the likely outcome. It’s fair to say that all the parents our attorneys have met are well intentioned, and want the best for their child. However, in many cases, there is a significant difference between what parents want (the best), and what the child is entitled to under the law (a “free appropriate public education”). In other words, this allows our attorneys to remove any bias and emotion from your child’s complaint, and strictly focus on obtaining the service your child is entitled to under special education law.

Consequently, as another benefit, attorneys can “fine tune” your grievances from a legal perspective. It has been our experience that certain grievances parents may have are not necessarily legal violations committed by the school district. On the other hand, parents may not realize a violation has occurred, because they are not as familiar with the law.

 

How can Miller & Washington help my child?

Our special education attorneys represent students, through their parents, in due process complaints and hearings. We have worked on many issues with IEPs, including, but not limited to: a student being determined to qualify to receive an IEP, what the LRE (least restrictive environment) is, what related and/or support services the student should receive, and whether the student should receive ESY (extended school year).

Our attorneys are here to ensure that your child receives a FAPE. We will be very honest with parents when it comes to the legal aspects of the case. We’re here to help parents obtain all the “appropriate” services and support your child is entitled to under law.

 

Which attorney will be handling my case?

The benefit of hiring Miller & Washington is that we have more than one attorney who focuses on special education. Our attorneys work together in the best interest of your child. Most cases are handled by Natashe Washington, even though a primary attorney is assigned to each child. The primary attorney ensures that the case is moving along, and is the direct contact for the parent at any stage of the case. However, all attorneys collectively “work” on your case, such as legal strategy.

Does my child qualify for special education?

Several parents have contacted me after their child’s school district refused to qualify their child for special education services, which raises the question – Who qualifies to receive special education services and an IEP (Individual Education Plan)?

This note addresses a particular scenario that our office has encountered.

Hypothetical:

A parent who requested an assessment for eligibility of services based on a child’s recent change in behavior (such as, a sudden decline in academics, getting into continuous trouble with the law and/or school, generalized depression, and so on) has been denied special education services.

* In our hypothetical, it is assumed that the district agreed to assess the child for eligibility, but the IEP team concluded that the child did not qualify for services. The district’s failure to respond to, or denial of, your request to assess your child for eligibility is a different legal issue, for which you may need to contact an attorney.

Common triggers for the recent change in a child’s behavior include sudden life changes, such as a divorce or death in the family. Usually, according to the parents, these children have done well, if not excelled, in school prior to the “triggering event”. In fact, parents in this scenario generally do not claim that the child has another disability.

The Law:

In California, there are two preliminary requirements that must be met for a child to receive special education services: (1) the child must meet one of the statutorily defined categories of needs; and (2) in most cases, the qualifying need must adversely affect the child’s educational performance, thus requiring special education.

Currently, the special needs that qualify for special education in California include:

(a) hearing impaired;
(b) concomitant hearing and visual impairments;
(c) language or speech impairment
(d) visual impairment;
(e) severe orthopedic impairment;
(f) limited strength, vitality or alertness, due to chronic or acute health problems;
(g) autistic-like behaviors;
(h) significantly below average general intellectual functioning;
(i) serious emotional disturbance (over a long period of time and to a marked degree); and
(j) multiple disabilities. (5 CCR 3030 (2011))

It must first be established that your child has a “qualifying need” for special education services under 5 CCR 3030. Only the qualifying needs (disabilities) listed under 5 CCR 3030 permit a child to receive special education services.

In our hypothetical, the only qualifying need, as defined by law, that may be applicable, is the “serious emotional disturbance” category, since the parent does not contend that the child has another disability (and the child was doing well before the triggering event). Therefore, it must be determined whether the new behavior qualifies the child as having a “serious emotional disturbance”.

To make that determination, the IEP team shall review any and all relevant material on the student (including assessments) which is available to the team. (5 CCR 3030 (2011)). Whether or not a child’s behavior may be considered a “serious emotional disturbance” is done on a case-by-case basis, and there is no black-and-white, clear, test. The IEP team, with a collective knowledge of the child, and trained medical physicians, who have performed the necessary assessments, are in the best position to make such a determination.

The second requirement to receive special education services is that the IEP team must conclude that the qualifying need is at the level of requiring special education services, because the need is adversely affecting the child’s educational performance. (5 CCR 3030 (2011)).

In our hypothetical, this is less of an issue in many cases, because parents generally seek an attorney after a child’s educational performance has diminished.

Conclusion:

Special education is meant to provide students with disabilities the appropriate services and support to succeed in public schools. In other words, “special” in “special education” refers to the “needs” (disabilities) of a child, and does not refer to the “specialized” education and/or help a child may possibly receive.

To qualify for special educational services, therefore, a child must have a qualifying disability. The problem with our hypothetical is the child did not have any physical, cognitive, or psychological disability before the triggering event.

Then, the question is: now that the child has behavioral issues and his/her educational performance is suffering, does the child qualify for special education services? It depends – does the new behavior rise to the level of a qualifying disability (which may most likely be the “serious emotional disturbance” category)?

DISCLAIMER

The material found herein is only intended for informational purposes. Its accuracy beyond the date of authorship cannot be guaranteed and the material will not be regularly updated or monitored for accuracy. This material should not be construed as legal advice and readers should not act upon the material without consulting with a licensed attorney. MILLER WASHINGTON & KIM, PLC, cannot be held liable for actions taken by readers in reliance of the material. Further, such reliance on the material shall not be construed as legal advice or the formation of an attorney-client relationship. Only by entering into a written attorney-client agreement, signed by the attorney, is such a relationship formed.

The Firm’s Pro Bono Service

The firm has served, pro bono, as counsel to non-profit organizations for decades.  These include:

LA PENA CULTURAL CENTER in Berkeley, serving the general and Latin American communities for over 30 years, and where Cesar Chavez celebrated his 50th birthday.

NAUTILUS INSTITUTE FOR SECURITY AND SUSTAINABILITY, which provides vital research and advice to countries in the effort to prevent nuclear proliferation and to develop a sustainable world.

SEND A PIANA TO HAVANA.  Established by Steinway piano tuner Ben Treuhaft, Send a Piana to Havana has engaged in an ongoing struggle against the U.S. blockade of Cuba managing to send hundreds of donated pianos to Cuban schools and churches, and to establish a school of piano tuning and repair at Cuba’s National Music School.

GLOBAL EXCHANGE, a San Francisco human rights organization whose “people to people” program has brought thousands of U.S. citizens to “forbidden countries” such as Afghanistan, Cuba, Iran, Libya and North Korea to learn about these countries directly from the people who live there.

GREEN CITIES FUND. Headed by Tom Miller and his wife, TT Nhu, Green Cities has established a number of innovative projects around the world, including the Vietnam Green Building Council and Parwaz, the first Afghan-run microfinance organization.  In Cambodia it is working to save the Prey Lang Forest and its indigenous Kuy people (see:  http://www.youtube.com/watch?v=NJHEiYmleVo ) and in Haiti it is helping Haitian artists who survived the earthquake through a local organization, FONDAM.  It is also developing programs in Cuba supporting social responsible entrepreneurship, permaculture and sustainability, through the Antonio Nunez Jimenez Foundation, a Cuban NGO.  The Center for Plastic and Reconstructive Surgery, established by Tom during the Vietnam War in Saigon to treat war-injured children, continues to this day to be an important treatment and teaching institution in Vietnam.

Sara Lafleur-Vetter, Photographer/Journalist

The firm’s photographer, Sara Lafleur-Vetter, is also an accomplished radio journalist, covering The Occupation and other stories for Pacifica, the oldest listener supported radio network in the United States.  Here is the poignant story of “Lafleur’s” search for her father, a Vietnam War vet who was killed as a test pilot when she was 2 years old:

http://soundcloud.com/dj-lafleur/donald-vetter-mixdown-5-at-13