Posts tagged with "eligibility"

Developing Your Special Education Child’s Individualized Education Program

Written by Lindsay E. Raber, Esq.

A recent series of articles on this website provides an overview of the special education process so you, as a parent, know what to expect. You have the right to make sure your child receives a free appropriate public education (FAPE), and oftentimes that means a standard classroom environment does not meet your child’s special needs due to a disability. If your child is between 3 and 21 years of age, suffers from an enumerated disability under the Individuals with Disabilities Education Act (IDEA), and the disability interferes with his or her classroom performance, you have the opportunity to seek special education and related services. More importantly, you can play a critical role on the planning and placement team (PPT) to evaluate your child’s special education referral to determine eligibility.

So, you’ve made it this far: your child is deemed eligible for special education and related services, but… what happens now? The PPT will hold meetings to establish an individualized education program (IEP), which is “a written plan detailing your child’s special education program,”[1] including the following key elements:

Present levels of educational and functional performance;
Measurable educational goals linked to present levels of academic and functional performance for the coming year and short-term instructional objectives derived from those goals;
Evaluation procedures and performance criteria;
An explanation of the extent, if any, to which your child will not participate in the regular education class, the general education curriculum or extracurricular activities;
Modifications and accommodations your child needs to participate in the general education curriculum including nonacademic and extracurricular activities;
Special education and related services required by your child including transportation and physical and vocational education programs;
Recommended instructional settings and a list of people who will work with your child to implement the IEP;
The date services will begin and end, and the frequency of the identified services;
The length of the school day and year;
Statement of accommodations and modifications needed to facilitate CMT/CAPT, or district-wide testing;
Recommendations for participation in alternate assessments (if needed); and
Transition service needs.[2]

Within five days after the PPT meets and develops your child’s IEP, you must receive a copy of the plan. The same goes for any future revisions.

Keep in mind that you have the right to participate in the PPT meetings, and your school district must work with you to select a time and place that works for both sides. You must receive five days written notice of any meeting to make sure you will be able to attend. This notice includes:

A list of who will be attending the meeting;
Affirmation of your right to bring with you other individuals who are able to provide support or who have knowledge and/or expertise with respect to your child’s needs.
An invitation to your child to attend if he or she is 16 years of age or older (or even if the child is younger, if participation is deemed appropriate), and “the purpose of the meeting will be the consideration of the postsecondary goals and transition services for the child”[3]

If the school schedules the meeting at a time or location you cannot make, alternative methods of participation, such as a telephonic or video conference call, must be explored. However, if the school district repeatedly attempts to schedule a meeting and each time you are unable to attend, they may hold the PPT meeting without you; the school must maintain a results log documenting these attempts.

If you are the parent of a child that has a disability, it is imperative that you participate in this process so as to help maximize your child’s educational opportunities. Should you have any questions about special education or education law in general, it may prove beneficial to seek the counsel of an experienced school law practitioner. Please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.

[1] “Advocating on Your Child’s Behalf: A Parent’s Guide to Connecticut School Law,” by Joseph C. Maya, Esq., and Robert L. Keepnews, Esq., pp.20.

[2] “A Parent’s Guide to Special Education in Connecticut,” by the Connecticut State Department of Education, pp.4. Accessed October 9, 2012: http://www.sde.ct.gov/sde/lib/sde/PDF/DEPS/Special/Parents_Guide_SE.pdf

[3] Id. at 5.

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An Illustration: Eligibility for the Pretrial Alcohol Education Program

Connecticut provides individuals charged with operating a motor vehicle while under the influence (OMVUI), and a very limited number of other crimes, the opportunity to take part in a pretrial alcohol education program. The requirements of this program are set forth in Connecticut General Statutes (CGS) § 54-56g. Criminal defendants seek participation in hopes that should they successfully complete the program, they can have their charges dismissed. However, entry is not guaranteed: in the case where a defendant is charged with OMVUI, eligibility requires that “such person has not been convicted in any other state at any time of an offense the essential elements of which are substantially the same as” either the behavioral or per se violations of our OMVUI statute, CGS § 14-227a.

To illustrate, in a recent criminal law matter, a defendant was charged in Connecticut with OMVUI and sought participation in the pretrial alcohol education program. The essential elements of OMVUI under CGS § 14-227a(a)(1) are “(1) operation of a (2) motor vehicle (3) while under the influence of alcohol or drugs.” However, the defendant was previously convicted of violating New York Vehicle & Traffic Law § 1192.03, which prohibits “(1) operation of a (2) motor vehicle (3) while in an intoxicated condition.” As one can readily see, the required elements of these two crimes are substantially the same. Therefore, the defendant was denied eligibility because he was previously convicted of a New York offense that was substantially similar to the crime of OMVUI in Connecticut.

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence) or license suspension, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

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Court Denies Motion to Vacate FINRA Arbitration Award Without A Hearing

In a recent case before the Northern District of California, Farhang Oshidary (“Oshidary”), a securities broker, filed a petition to vacate a Financial Industry Regulatory Authority (“FINRA”) Arbitration Award issued on February 10, 2012 in favor of Grace Purpura–Andriola, Trustee FBO Grace Purpura–Andriola Revocable Living Trust (“Andriola”) and Olga Michel Basil ( “Basil”). Andriola and Basil filed an opposition to the motion, and a request for entry of judgment on the FINRA award pursuant to 9 U.S.C. § 9. The court denied the motion to vacate without a hearing, and confirmed the FINRA award.

The underlying dispute in this case arose from Oshidary’s investment advice to Andriola, Basil, and others while Oshidary was a broker at the Menlo Park, California office of Smith Barney, now Citigroup Global Markets, Inc (“Citigroup”). Andriola and several other claimants filed suit against Oshidary and Citigroup in California Superior Court, which ordered the case to FINRA Arbitration. After multiple hearing sessions, the FINRA arbitration panel dismissed all claims against Citigroup and dismissed all claims against Oshidary, except for claims for breach of fiduciary duty brought by Andriola, Basil and three other parties. On February 10, 2012, the panel issued its Arbitration Award. It found that Oshidary was liable for breach of fiduciary duty to Andriola for $250,000 plus seven-percent interest from April 1, 2001. Oshidary was also found liable for breach of fiduciary duty to Basil for $120,000 plus seven-percent interest from January 1, 2005.

Two of the four separate theories under which Oshidary proposed to vacate the FINRA award were rejected by the court for failure to satisfy the burden of proof. Under one of the remaining theories, Oshidary argued that, in violation of California Civil Procedure Code § 1281.9, the Chairman of the FINRA arbitration panel failed to disclose information that might preclude him from being impartial. Under his final theory, Oshidary argued that the FINRA arbitration panel manifestly disregarded the law by acting without jurisdiction over Andriola’s claims, which were barred by the “six year rule” regarding arbitration eligibility.

The Federal Arbitration Act (“FAA”), 9 U.S.C. § 10(a), provides four narrowly delineated circumstances in which a federal district court can vacate an arbitration award:
(1) where the award was procured by corruption, fraud or undue means;
(2) where there was evident partiality or corruption in the arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

Courts may not reverse an arbitration award even in the face of an erroneous interpretation of the law. However, the court may vacate an award where the arbitrators’ decision is in manifest disregard of the law. Johnson v. Wells Fargo Home Mortg., Inc., 635 F.3d 401, 414–15 (9th Cir.2011). “Manifest disregard of the law” has been interpreted to mean “something beyond and different from a mere error in the law or failure on the part of the arbitrators to understand and apply the law.” Collins v. D.R. Horton, Inc., 505 F.3d 874, 879 (9th Cir.2007) (quotation omitted).

California Civil Procedure Code § 1281.9, subdivision (a), imposes on arbitrators a duty to “disclose all matters that could cause a person aware of the facts to reasonably entertain a doubt that the proposed neutral arbitrator would be able to be impartial.” In decisions interpreting this statute, courts have highlighted the importance of the link between the subject matter of the arbitration and the matter subject to disclosure. In the instant case, the alleged conflict occurred over two decades ago, and was completely unrelated to the subject of the arbitration. Therefore, the court denied vacatur on these grounds.

FINRA Rule 12206(a) provides that “[n]o claim shall be eligible for submission to arbitration under the Code where six years have elapsed from the occurrence or event giving rise to the claim. The panel will resolve any questions regarding the eligibility of a claim under this rule.” Eligibility under Rule 12206 is a question for the arbitrators and not for the court. The FINRA arbitration panel was free to interpret Rule 12206 as it saw fit, in particular with respect to the triggering date, i.e. the “occurrence or event giving rise to the claim.” FINRA Rule 12206. That the investments at issue were loans supported the Panel’s decision to not choose the purchase date as the triggering event because, unlike other investments, the investor likely will not know whether repayment will occur until the agreed-upon return date.

Because the court denied Oshidary’s vacatur of the award on each of the four separate grounds, the court found that confirmation of the FINRA arbitration award was appropriate. Judgment would be entered by separate order, once respondents confirmed that they withdrew their parallel request to the state court.

Should you have any questions relating to FINRA or arbitration issues, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County, Connecticut at 203-221-3100 or at JMaya@Mayalaw.com.

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