In this episode of the Texas Family Law Insiders Podcast, Holly Draper welcomes Sharon Ramage, founder and CEO of the Ramage Law Group in McKinney, Texas. In addition to being a family law attorney, Sharon is one of the few special education attorneys in the state. Sharon brings a unique perspective as both a former social worker and special education hearing officer. She discusses the critical intersection of family law and special education, explaining why family lawyers must understand IDEA, IEPs, and 504 plans when representing families with special needs children. Sharon shares practical advice on drafting orders, avoiding common pitfalls like appointing tiebreakers, and knowing when to bring in a special education attorney.
In this episode you’ll discover:
- The basics of Special Education law and the differences between IDEA and Section 504
- The necessity of assigning educational rights to one parent and the potential pitfalls when they are not
- How to advocate properly with the judge when there are special education issues at hand
- Who should and should not be making Special Education-related decisions
Mentioned in this episode:
- Special Education
- Ramage Family Law Group
- Texas Special Education Attorney
- 504
- IEP
- TEA
Transcript
Sharon Ramage: Education law in and of itself is a niche and special education law is a niche within the niche.
Announcer: You are listening to the Texas Family Law Insiders Podcast, your source for the latest news and trends in family law in the state of Texas. Now here’s your host, attorney Holly Draper.
Holly Draper: Today I’m excited to welcome Sharon Ramage, the Texas Family Law Insiders Podcast. Sharon is the founder and CEO of the Ramage Law Group in McKinney, Texas.
She’s a former social worker who has devoted her law practice to helping families and children. In addition to family law, Sharon is passionate about helping families with disabled children obtain the services they need and deserve. She served as a special education hearing officer and mediator for Texas Education Agency conducting special education due process hearings and mediating disputes between schools and parents. She regularly speaks on both family law and special education topics. Thanks so much for joining me today.
Sharon Ramage: Thank you for having me, Holly.
Holly Draper: So why don’t you start and tell us a little bit about yourself.
Sharon Ramage: Well, I think you kind of described it well. Most of my career, my professional career has been devoted to helping families and children. I started out as a social worker, believe it or not, I was a child protective services worker. Then went to law school, but became interested in education law when I was in law school as well as family law.
So after a brief period of time working as a prosecutor, prosecuting child abuse cases, I stepped out on my own and started doing family law and kind of fell by accident into special education law. Somebody thought it would fit with my personality…with my interest. And so, when I left the DA’s office, I thought, “Well, I’m going to take 90 days to study”. I was going to go into my office every day and read books and learn everything I needed to know to start practicing special education law. That lasted about a week before people started calling me. So I learned by fire.
So I’ve had a family law practice and on special education side, I have represented families. I’ve represented school districts, because for a period of time I worked for a law firm that only represented school districts, and then I went back to representing families.
I was a special education hearing officer for about 14 years, and during that time I presided over due-process hearings, which are basically trials when there’s a dispute between a parent and a school, and then also mediated those cases and now I’m back to representing families again or our firm does. We also practice family law, and we find with a lot of our cases there is an intersection between family law and disability law because there is a high incidence of conflict in families with children with disabilities because it’s a stressor, and those cases actually require some additional care.
Holly Draper: I think most family lawyers that don’t have any background or don’t have children with disabilities, or haven’t touched that piece in their own personal lives, don’t even think about the fact that there are all these unique issues if you have a case that involves a child where special education is an issue. So hopefully today we can talk about some of those pieces and help educate some of the family lawyers out there so that they are better able to take care of families with special needs kids and kids who are in the special education system.
So why do you think it’s so important for family lawyers to understand special education law, at least to a certain extent?
Sharon Ramage: I think there needs to at least be a broad overview and just a general like 30,000-foot view of what special education law is because there are so many children with disabilities in our cases and they have very unique needs and it impacts the parenting plan significantly. It impacts decision making and what should be done.
I see a lot of mistakes that lawyers make just because they don’t understand the basic from, you know, what is the difference between IDEA, which is the Individuals with Disabilities Education Act and Section 504. They’re two very different animals. They don’t address the same thing. One is an entitlement statute, and it’s all about services for the student. The other is about access, and it’s not an entitlement statute, and it gives very little enforceability rights…very little teeth to a 504 plan. And because they don’t serve the same thing, one is designed… 504 is designed to level the playing field just so that child can actually have access, and the other is so we make sure the child gets specialized instruction and services to meet their unique needs.
Holly Draper: So, does IDEA then govern IEPs?
Sharon Ramage: Yes, yes.
Holly Draper: Okay.
Sharon Ramage: IEPs, ARD meetings. Everywhere else in the country. They’re called IEP team meetings, but in Texas we call them ARD meetings or ARD’s.
Holly Draper: So, what is the difference? I know 504 often can turn into an IEP. Where’s, kind of, the line and what are the differences between a 504 plan and having an IEP?
Sharon Ramage: Well, the key difference is, does this child require specialized instruction? So, for example, instruction, not just the, not just reading, writing, and arithmetic, right? It’s about all things instruction, whether it’s behavioral instruction, social skills instruction, academic instruction. So those things are addressed in an IEP. But let’s say you have a student who maybe is hard of hearing or deaf, but all they need is the ability to access. Their campus and access their education.
They maybe don’t need direct instructional. That’s probably a bad example because they may need deaf education or they may not, or a student that is there’s many students that have just very mild disabilities, and the term disability is very broad. Under 504, it’s a lot. It’s any mental or physical impairment that impedes their access where special education falls under specific eligibility categories such as learning disabilities or emotional disability or autism deaf deaf or hard of hearing visual impairments, multiple disabilities. There is a broad category, and it’s a very strict category about do you have this disability and because of this disability, is there a negative impact on the student educationally, and because of the disability, does this student require specialized instruction to, not necessarily to meet, remediate, but to meet their unique needs? Where 504 is, we’re just going to give you access. And this is an error that a lot of school districts make. A lot of times, they’ll be serving kids under a 504 plan and this kid is getting nothing. Absolutely no additional services. And it really is a disservice to these students. So, it’s a matter of knowing what you need. Do you need access or do you need, actually, a lot of different support?
Holly Draper: So, I’ve reviewed some 504 plans in my day, and my reaction as a lawyer when I read a 504 plan was like, “This is the most unenforceable document I’ve ever seen”.
Sharon Ramage: It’s very unenforceable. It’s very vague. It’s very, I’m like, how do we know if teachers [are] doing this or not? You, you don’t.
Holly Draper: Is an IEP plan similar or is it, does it have a little more teeth to it?
Sharon Ramage: It is more. It has a lot more teeth. The difference with the IEP is there are procedural safeguards that must be followed. There are notice provisions that have to be done. One key difference, a school district can have a 504 plan meeting and not even invite the parent, just say, “This is what we’re going to do to give this child access”. You can’t do that with an IEP. You have to have that ARD meeting and invite that parent to the ARD meeting. Now, if the parent elects not to show up, that’s on the parent, but you have to actually invite and engage the parent because the parent is a meaningful participant in the development of that child’s educational plan. That’s one key difference. The other key difference; there are very specific safeguards in place if there is a disagreement between the school and the parent. And there is a hearings process that is set out under federal law that the school districts must implement, or actually the state educational agencies must require the schools to implement.
If I have a dispute with my school district on my child’s 504 plan, I just go to the principal and they call their buddy at the neighboring school district and say, “Hey, can you come resolve this dispute for us”? There’s nothing impartial about it. If I have a dispute with my child’s IEP, I file a, what is called a request for due-process with the Texas Education Agency, which is basically like a pleading you would file in court outlining my complaints. And then an independent hearing officer who has specialized expertise in special education law, but is independent of the school district, is assigned to hear that matter and issue a written ruling that is then binding on the district that they must follow.
Holly Draper: Who qualifies as a parent under IDEA?
Sharon Ramage: Well, biological parents. Obviously foster parents…adoptive parents, too. Let me say, a parent is a parent, adoptive versus biological. No difference. A foster parent, unless the state agency says foster parents cannot serve as the parent… you can have a guardian, if that guardian is given the right to make educational decisions. You can have anyone that the child resides with… any adult, if that adult is responsible for their care and is given educational rights or that has been delegated to them in some sort of legal manner or a surrogate parent. And this is where a lot of people screw up. They think, “oh, a surrogate can just be anybody. I’ll just go in and be a surrogate”. And that’s a very specific type of appointment by the district, and it’s not just anyone. So… and CPS workers. If a child’s in foster care, they specifically, by statute, can’t be the surrogate parent. So, a parent is a parent until their rights are taken away from them.
Holly Draper: So, jumping into the family law connection here, when we are dealing with conservatorship and educational decision making, what are the types of educational rights that we see as family lawyers in Texas orders that we should be thinking about if there’s a special education issue?
Sharon Ramage: Well, first of all, I truly believe, and in my office if this child even has a hint of a disability, because sometimes when they’re young, you don’t know they’re not really being served in special education right away. But you’ve got to give exclusive rights to one of the parents. You just, you just that there, the buck has to stop with one of the parents. If you do not, it creates too much confusion with the school district. It creates a situation where maybe you have one parent that consents to services and the other one that doesn’t. And there’s some guidance out there from the Department of Education that sets that refusal controls over the, the consent.
And so if you, you need to make sure that one parent has that exclusive right to make educational decisions, and the other…my big hot button issue that I will preach to the choir every day of the week: Do not appoint Tiebreakers. Do not. They’re, at best, ineffective because they’re not binding on the school and they really, really cause a lot of problems. And it’s because of what it does to the school districts and that relationship between… they’ve got to know who they’re going to. Because consent is required for an evaluation. It’s required for the initial provision of special education services. It’s required to exit them from special education unless that district has, otherwise has gone through other procedures. It’s required to reevaluate them. So, every step along the way within special education requires parental consent. And if you’ve got two parents that don’t agree, which is frequently the case when they’re divorced, you set this kid up to fail because what happens is a delay in the child services. It can create gamesmanship with the school because you know it’s human nature. You’re going to rally around the person that is causing the least friction. And a lot of times you’ve got a parent that says, “Hey, my child’s not getting the services they need”. And you know, sometimes school districts behave badly and they’ll go rally behind the, the one that’s not going to push them. And this kid gets, gets lost in that and they end up really not being served appropriately. And then the chicken’s way out is, which is what I call it, is, you know what, let’s just appoint a tiebreaker. We’ll just have an educational advocate. And that person is not, by law, a consensus member of an ARD committee, so they can never sign an agreement or non-agreement with the IEP because they cannot do it. Legally, ethically, there’s just no mechanism. And so the only person can be a parent. And then other designated ARD committee members such as an administrator, special education provider, general education teacher, evaluation staff. There are very specific provisions of who can sign an agreement or disagreement on an IEP.
I had a case once. and it was just a nightmare, and I know people meant well, but they’re like, “You know what? If the parents don’t agree, then we are going to have a provision that they have to then go consult with this educational psychologist that’s never been to the ARD committee. Mind you, she didn’t go to them. They just had to go consent with her. And it caused all kinds of problems with the school district who really wanted to do the right thing, but they could not do anything. because the parents would break, they would go talk to this advocate, and then they would have to go back to the ARD meeting. Well, you don’t always have that kind of time, and B, the school didn’t agree with her, so they were just going to do what they wanted anyway. And because, at the end of the day, they can make…the school district, if the parents are not in agreement, the school district can say, “Well, the school members of the ARD committee have deemed that this is what we’re going to do. This is the service that’s going to be provided. This is the placement that the child will be in, and we’re giving you five business days notice that this is what we’re going to do” and that’s it. So, you have no one to really hold them accountable. And then you have no one that really has the legal ability to actually file a request for due-process because one parent files it, the other one wants to come in and dismiss it. Hearing officers want to know who has the right to do that. So there are all kinds of problems, aside from the constitutional issues, which you and I have talked about on parental rights, there are all kinds of problems that this causes. In the long run, and I know there’s a cottage industry out there with people that say, “Oh, just appoint me”. It’s your educational advocate. And just, I would tell every special education attorney, just don’t do it.
Holly Draper: So, you just brought up a lot of things. Let’s go back and kind of tick through those a little bit deeper.
Sharon Ramage: Okay.
Holly Draper: So, you mentioned that you want one parent to have exclusive education decision-making rights.
Sharon Ramage: Correct.
Holly Draper: Well, in my experience, a lot of parents are not too excited to give the other side exclusive anything. So, what is the harm, or is there harm in, you know… let’s say that dad’s just really not super-involved, but he’s, this is the hill he is going to die on. He is not giving mom exclusive rights, so everybody’s going to have independent rights. And, a lot of times, I see judges default to independent rights on things. What are the risks of having independent rights?
Sharon Ramage: The risk of having independent rights is if ever dad decides “Hey, I do disagree”. He’s going to throw a monkey wrench into things because school does not have… I mean, it can result in the child getting a delay in services. The other thing that it could potentially result in is basically the mischief, what I call it, when it comes to due-process, about what the school district rallying around behind the one that’s not really holding their feet to the fire. The other thing it does, it’s a standing issue. I mean, who’s to say if both parents have independent rights? You’ve got to have, even in mediations that we do in special education, if one parent doesn’t have that exclusive right, we’ve had sometimes significant delays in getting services to kids because we have to go track down that other parent that’s pretty, kind of, non-involved to get their consent on the mediation, to even have that go into effect. So, it affects everything from due-process to complaints to mediation if you it’s really not that innocent. I mean, I’ve heard people tell me in mediations before, “But Sharon, they’re not going to, I mean, you’re not going to have to worry about anything with them”. Well, you do. So with independent rights, so let’s say we have a pretty MIA parent who really is not going to interfere.
Holly Draper: So let’s say mom has the independent right to make educational decisions. Dad has moved away… doesn’t care… doesn’t really see his kids.. but he, you know, got the independent right, or he signed off on the independent right. Can the school take action based on mom’s requests or what mom is doing because she has the independent right? Or are they going to insist on tracking down dad?
Sharon Ramage: No. Typically, I’ll tell you, for the most part, it works till it doesn’t. Right? So if you have only one parent go into the ARD meetings and they have independent rights, the school is going to, if the parent is either in agreement or, they’re going it, it’s going to be okay, or they’re doing that consent. Where it becomes a problem is if there is a dispute between the parent and the school that requires any sort of due-process or a mediation. That’s when we can run into issues. So that next level, once you’re bringing in the state, that’s when they’re going to require that other parent to be involved. And that’s assuming the other independent parent is kind of the silent one and isn’t really participating. But if you’ve got two independent parents and they’re both going to all, all the ARD meetings, and they’re in disagreement, it creates chaos.
Holly Draper: So, you talked a little bit about your pet peeve of the tiebreaker.
Sharon Ramage: Mm-hmm.
Holly Draper: And I know there are a lot of orders floating around out there…
Sharon Ramage: Mm-hmm.
Holly Draper:…where whether it was by agreement or whether it was by a judge doing it, I know tie breakers are appointed in a variety of rights situations, one of them being educational. I’ve seen the school counselor listed, I’ve seen the school principal listed.
Sharon Ramage: Mm-hmm.
Holly Draper: And I, I know. I always have heard they don’t want that job. They don’t want to be your tie-breaker. They’re going to refuse to be your tie breaker.
Sharon Ramage: Mm-hmm. Ethically, they can’t.
Holly Draper: So, is there any type of tiebreaker that you’ve seen that actually would work?
Sharon Ramage: No, not in the special education context, because they don’t have authority. Federal law is very limiting on who can actually be a consensus member of that ARD meeting, and they’re not one of them. And so, I do not see it as being effective.
Now. The whole deal with the tiebreaker. First of all, I had a case once where a judge, and I will not say who, had appointed the campus guidance counselor as the tiebreaker. Well, did you know that… you probably know this from your husband’s work… almost every school campus guidance counselor has zero special education background. There’s a difference between a campus level counselor and a special education counselor. They’re not even going to understand the special education component to begin with, and you don’t have to have a special education background to be a school principal or a school teacher. So, they potentially are appointing somebody that doesn’t have the expertise in it.
But I’ve also told people it’s kind of like appointing the fox to guard the hen house. Why would you do that? They have an inherent conflict. If there is truly dispute, schools do not always act in the child’s best interest. They just don’t. Especially nowadays where you’ve got all kinds of funding cuts and you’ve, you’ve got political issues that are impacting us. Schools don’t always act in the student’s best interest. And so, the whole point of the statute is to hold schools accountable, to hold their feet to the fire, to give some real enforcement and entitlement to educational services to students. So the very person that you’re saying, or the very entity that you’re saying, “Hey, they’re not doing right by this kid”, you’re going to put them in the position of being the one that say, “oh yeah, we are”. That’s like saying you can let the doctor be the decision maker on whether he’s engaging in medical malpractice. You just wouldn’t do that. But for some reason or another, since it’s school and it’s education, it’s like, oh, let the teacher decide. If we could let the teacher decide, the statute would not exist. That’s the whole point of it.
Announcer:: This episode of the Texas Family Law Insiders Podcast is sponsored by the Draper Law Firm, providing family law, appellate representation for non-parent custody cases, jurisdiction issues, property division, standing conservatorship, possession, and access, termination, parental rights, and grandparent access.
For more information, visit draper firm.com or call 469-715-6801.
Sharon Ramage: I think a lot of people who haven’t been in this situation have this assumption that, well, the school’s going to recommend what they think is best for the child. No, they’re not. And so, you think that’s why you, we should be just deferring to the school or same thing with a pediatrician or something like that.
Holly Draper: And you know, I’ve just, through friends and stuff, have seen when you have severe special needs, there is a big resistance on the part of schools to do what is required because it’s expensive.
Sharon Ramage: It’s very expensive. I just had a child, and in fact, we actually had to end up going into family court over the parental rights issue because this child needed residential treatment and, until we had the exclusive rights to my client, it was very difficult to get anything done because we had a parent that they had independent rights and he would just object just to object. And this kid desperately needed it. The school didn’t want it because it was expensive. I mean, when you’re talking residential treatment, you’re talking about $250,000 a year. There’s some ways that schools can defray that cost, but this kid really needed it. And it, had it not been for us being able to get into court and get exclusive rights to the mother, and then we ended up working it out with the school. We ended up mediating. It all worked out, but we just, she didn’t have that ability. Her hands were tied and even schools that want to do the right thing, they feel like they’re stuck in the middle. They are. They’re like, we don’t want to be stuck between two warning parents. Just give us one. And I have yet to find a school district that thinks having independent rights with parents is a good thing. Not when it comes to special ed. Because they want to know who they’re dealing with.
It’s also important too, that if you’re the attorney, that you make sure your school district…a client’s school district… gets a copy of that order, and it outlines those rights, because let’s say you have one parent that has exclusive educational rights, they’re kind of warring, and so one of them has that exclusive right, but the other was still involved with the kid. They go to meetings…that parent shows up that doesn’t have those rights and is signing off on consent forms and doing everything else. They have no authority. And so, it’s really, really important to identify who can do those things and that you also communicate that to the school.
Holly Draper: So, you touched on this a little bit, and this is something you and I have chatted about before, the constitutional issue…
Sharon Ramage: Mm-hmm.
Holly Draper:…of appointing a tiebreaker. I know that. I think that’s the one we’ve talked about.
Sharon Ramage: Oh yeah.
Holly Draper: And obviously if a parent does it by agreement, that is not a constitutional violation, but if a judge does it, which I think you and I have seen both that happen over the years.
Sharon Ramage: Mm-hmm.
Holly Draper: Why do you see a constitutional issue with that?
Sharon Ramage: Well, you’re appointing an outside non-parent to actually make one of the specifically enumerated parental decisions to a non-parent. This is no different than designating somebody the exclusive right to make or determine where the child’s residence is, or medical decisions. First of all, that person’s not even a party to the lawsuit…they’re not a party to the case. They have no dog in the fight, right? So it’s probably unenforceable from that standpoint alone. And I think that’s what the South Texas case had. But all of those rights are the rights of the parent, and to take that away… Would it pass constitutional muster to have two parents be joint managing conservators, but say Grandma down the street is going to be the one that decides where the child lives? And I think the answer from everybody would be, no. Well, this is no different. It’s in the same section of the family code. It involves the same level of scrutiny because it is a core parental right.
Holly Draper: I think there’s another interesting constitutional issue that could come up when there’s not a tiebreaker or non-parent involved with a court issuing an exclusive right to one parent over the other because you are taking away a constitutional right from one parent, and I’m going to be arguing “You have to have clear and convincing evidence that my client is unfit in order to take away one of these rights”. I don’t know if anyone is out there making those types of argents yet, but I can see that as the next battle.
Sharon Ramage: Would that apply then to the exclusive right to determine the child’s residence?
Holly Draper: I don’t know.
Sharon Ramage: How is that different? What [are] the core parental functions? You’re going to decide where your child lives, who your child’s associations are, your child’s education, and upbringing. Right now, parents when they divorce, they are submitting part of that to the court to allocate among the parents that you, by invoking the court system, you are invoking the court’s ability to allocate those rights among the parents as it deems…as is fit. I think that’s very different when you’re looking at saying, “Hey, we’re just going to go appoint the therapist down the street to make all these decisions” because that is truly a non-parent that did not, you know, you did not say, “When I submit myself to the jurisdiction of the court to allocate these parental rights, but oh, go find somebody else that’s a stranger to us and they can make those rights instead of us”.
Holly Draper: It’s an interesting, an interesting discussion, I think, but…
Sharon Ramage: I think it is. I think it is, but it is, but I, and I’m not ashamed of saying that it’s my soapbox because just because from where I sat, even when I was a hearing officer, there would be conflicts, you know? There was nothing more frustrating to sit in a case as a hearing officer brought by one parent, and then the school district is over bringing in the other parent to say, “I disagree”. You know, and it’s, they both had that independent decision making. It becomes an issue. And, and it’s very, very frustrating to see kids not get services that they need and that they desperately need, right?
Holly Draper: Mm-hmm.
Sharon Ramage: Because one parent doesn’t believe the child has a disability, and the case that I had where the child really needed residential treatment the, we had a core disagreement over whether the kid had a disability all, and it was very significant and serious, and it, it required this child to have a specialized level of instruction and care, and if we had not had those exclusive rights to one of the parents, I think the outcome for this kid would’ve been very bad.
But it’s also an education. It takes bringing in somebody to educate the judge about what these rights mean. And I, I think, you know, and to most, a lot of the world that you, disability has not touched you and you have not had to deal with that as a parent, you.. there… there’s just a lack of understanding of how… what all is involved. It’s not just deciding which campus the child goes to.
Holly Draper: So, let’s pivot just a little bit and talk about drafting of orders when we have families that have special needs, kiddos with special education needs. I know the Texas Family Malpractice Manual doesn’t have a whole lot to say about special education, and it’s just going to give the generic, you know, right to make educational decisions. What are some things that we should think about putting into orders when this is an issue in a case?
Sharon Ramage: Well, my kind of, my go-to language is giving one parent the exclusive right to make educational decisions. And I’ll do after, meaningful notice to the other parent. Right? You know, you want to keep them in the loop if you can. And, but having the buck stop with one parent. But combining with that the also the right to enforce the child’s educational rights under applicable federal and state law. That’s kind of my broad, overarching language that I like to see in our orders if a child has a disability, because you want to know that they can actually be the one that can go request a mediation from TEA, that they’re, they’re the ones that can actually file a request for due-process or, you know, let’s say it’s, it’s 504 or an ADA issue that they can actually fall suit.
But you want to know that you have the right. A person in place to make educational decisions that can then do something about them. So, it’s not just go and sign off on an ARD meeting and saying, yes, let yes school. I agree. But what happens in the event of a disagreement?
And I’ve been guilty of it. This, if you get too, too into the weeds and details, then that creates even, even bigger issues. I had a case where we wanted to limit, kind of, what type of placement it could be and I had to explain to the other side that the parent is not the one doing the placing. It is the school district doing the placing, so we’re, we cannot, by the family court order, limit what the school can do as far, because they wanted to guarantee that there would never be any sort of residential placement or out-of-district placement. And that is a tool for the school districts to use. Residential placement is, out-of-district behavioral schools are , out-of-district some different types of out-of-district placements.
If the school does not have the resources, they have an obligation to actually go find the resources and place the student within the, within them. And…so there were too many wanting to put too many limitations on it, and then it’s like, okay, well, can we say if there’s a residential treatment center that will only be within a certain mile radius of the of the child’s residence. And the problem with that is what if there isn’t one? I mean the case I most recently had, this kid was in the Ozarks in a residential, because that’s what, that was the only thing that was available that was appropriate, because you, there are so many differing factors that you have to look at. So I think broader to give that ability to make them, but if you want notice to the other parent and you want to involve the other parent, that’s how you do it. Even with exclusive rights.
Holly Draper: Is it important to specify certain things related to evaluations, consent authority, ARD meetings?
Sharon Ramage: Yes. Well, generally the person who can have the exclusive right to make educational decisions is the one that will need to be signing the consent for evaluations because it is an educational decision. This is not like going to the psychologist down the street or going to the doctor down the street. But whoever has those educational rights needs to be the one. They’ll be the one signing the consent and consenting to the services. It’s all one big package. I think that’s where you get into trouble if you start to try to parse those out, because then it’s also confusing to the school. The school needs to know who’s making the decisions.
Holly Draper: So, if we have a family that is a problem in this area. They have independent rights, they have joint rights, and we’re at a roadblock because they’re not agreeing…
Sharon Ramage: Mm-hmm.
Holly Draper: …what steps should we, as family, lawyers take in that scenario to help this family?
Sharon Ramage: What I’ve typically done and have been successful with is getting a temporary order set pretty quickly. And in fact, in one case, I’ve even gone and gotten a TRO and we’ve gotten in very, very quick because we were going to lose a spot… a placement that the school needed. At the end of the day. In one case in particular that I had, we couldn’t get into court quick enough and the school just said, you know what? This is the school member’s decision. Child is going to this , private placement. Whether you like it, this is what we are deciding. And we agreed with the school, so it wasn’t a problem. So, it happened in spite of the non-consenting one. But if you, it’s real important to get in, I think, to the court as quickly as possible and it, you’ve got to have somebody that knows what they’re doing that can explain this to the court and how critical it is and why it is needed.
Holly Draper: So let’s go back to that example you just gave, where the school took the initiative to send the child to the placement. If you’re on the side that does not think the placement’s appropriate or does not want the child to be placed, is that a family law issue or do you need to go deal with that somewhere else?
Sharon Ramage: That is a TEA issue and that is a request for due process.
Holly Draper: Does that get addressed quickly if they file that?
Sharon Ramage: No. In theory, yes… within 75 days from filing, but if you’ve got two parents with independent decision making, the first fight that there’s going to be, is who has standing to bring the suit. And the second thing is these cases are not timely. I mean, on paper they’re timely. They can only be continuances for good cause. But we have cases that we filed back in August that I think we are going to be doing good to get a decision by June.
Holly Draper: So, in the meantime, is that kid in the residential placement that the school wants?
Sharon Ramage: Correct. It depends if the parent files timely, then the, the stay put placement would be the last placement that was that existed before the due process was filed, so it could cut off that placement. It depends on the timing in which they file.
Holly Draper: What can we do as lawyers to help educate the judge on special education issues when we are severely limited in time?
Sharon Ramage: Well, first of all, I think you need to be asking for additional time. Secondly, I would get a report because you know, we can do summaries of testimony, in Collin County anyway, for temporary orders. I would get a report from your expert, have your expert testify. You’re going to need to have an expert at temporary order, if it’s a temporary orders hearing, you’re going to have to have somebody to explain why this is needed. If you have the school on your side, all the better. You just call from somebody from the school, but frequently that’s not the case. And so, you’re going to have to have, especially if you’re wanting to go contrary what to what the school is recommending, you’re going to need to have that person on board with you at the hearing.
Holly Draper: At least in my experience, judges tend to listen to what the school wants. So I think if you don’t have an expert…
Sharon Ramage: You’ve got to have an
Holly Draper:…in that scenario, you’re sunk.
Sharon Ramage: You’ve got to have an expert.
Holly Draper: When does a family need to bring in a special education attorney or advocate?