- Welcome to Food Allergy Support.
Posted by twinturbo
- May 06, 2014, 02:59:55 PMPosted by twinturbo
- May 19, 2013, 06:35:59 AMI don't have any qualified opinion to offer on the matter. But I am going to offer support 
any time you need it, feel free to come around and vent what you can when you want.
Hypothetically speaking, however, there would be some matters I would want to know before making a decision for myself in that situation.
Again, hypothetically speaking, a judge is paid to do what he or she does. A jury will be called in from their lives in order to weigh in for minimal compensation. A judge is already trained to think legally, a jury must be instructed in how to think and what to consider as it pertains to interpreting the law. Ultimately, were it me, I'd focus more on the strength of my case including evidence in all aspects, not only demonstrative of my claim but strong enough to withstand challenge, and further what the fundamental argument is and why this court should hear the argument. Not why any court should hear it but why federal, why this case, why it is before this judge because the fastest way to victory for defense might be getting it dismissed completely, immediately.
In essence, since the previous hearing resulted in a decision in parent/student favor against the school district and superintendent's actions (as opposed to the principal) with regard to retaliation, what outstanding matter has not been remedied by that decision? Unless it's still compensation for not providing FAPE being sought. Note I don't really need to know, and would not ask.
Good luck. I'm not going to ask any details you can't disclose.
any time you need it, feel free to come around and vent what you can when you want. Hypothetically speaking, however, there would be some matters I would want to know before making a decision for myself in that situation.
- How much evidence does my team have? What does it look like? Will it hold up?
- What is opposing counsel like? Are they good at disqualifying evidence? Weakening it?
- Does it alter the appeals process?
- Does one take longer to reach a decision than another?
Again, hypothetically speaking, a judge is paid to do what he or she does. A jury will be called in from their lives in order to weigh in for minimal compensation. A judge is already trained to think legally, a jury must be instructed in how to think and what to consider as it pertains to interpreting the law. Ultimately, were it me, I'd focus more on the strength of my case including evidence in all aspects, not only demonstrative of my claim but strong enough to withstand challenge, and further what the fundamental argument is and why this court should hear the argument. Not why any court should hear it but why federal, why this case, why it is before this judge because the fastest way to victory for defense might be getting it dismissed completely, immediately.
In essence, since the previous hearing resulted in a decision in parent/student favor against the school district and superintendent's actions (as opposed to the principal) with regard to retaliation, what outstanding matter has not been remedied by that decision? Unless it's still compensation for not providing FAPE being sought. Note I don't really need to know, and would not ask.
Good luck. I'm not going to ask any details you can't disclose.
Posted by kindergartenmom
- May 18, 2013, 11:00:09 PMJury or Judge making federal decision on discrimination and retaliation? Thoughts? My thought is that there would be less corruption with a jury. My fear is that jury would not understand the law. Interested in others opinions.
Posted by kindergartenmom
- January 16, 2013, 11:44:46 AMThank you all for your words of wisdom and experience. Lots of reading to do.
Posted by Macabre
- January 12, 2013, 08:33:36 AMGood find, that it is Zirkel. It has to be one and the same.
Posted by twinturbo
- January 12, 2013, 07:01:18 AMYikes. Don't want to get OP's hopes up that my enthusiastic IRL trolling would count as legal advice. But wouldn't be a real kick in the seat to be before Zirkel of letter to Zirkel asking him if the decision follows the spirit of OSEP's clarification of "reasonable" and greater protections? I'd be too ignorant to be afraid of being outclassed by him. I'd be happy with irritating him.
Posted by ajasfolks2
- January 11, 2013, 07:17:05 PMQuote
school district is vindictive about the 504 process
How MANY of us here and elsewhere have this badge of honor?!
Twinturbo, your contributions so far as details & legal side of this are very helpful!
Posted by twinturbo
- January 10, 2013, 07:12:50 AMhttps://docs.google.com/viewer?a=v&pid=sites&srcid=ZGVmYXVsdGRvbWFpbnx0ZWFtYW5hcGh5bGF4aXN8Z3g6M2I0MDk2NDZhNDcxNmMwYg
Link to DOE OCR findings after it completed an investigation into 504 procedural safeguards violations.
Link to DOE OCR findings after it completed an investigation into 504 procedural safeguards violations.
Posted by twinturbo
- January 09, 2013, 08:05:47 AMhttp://204.186.159.23/odr/HearingOfficerDecisions/2824-11-12.pdf
Feast your eyes on the above link. ^
Same Hearing Officer on the same subject FAPE, different cases. How much stock anyone wants to put into what one poster (me) on a food allergy board has to say about a decision rendered by a practicing attorney (with a PhD, possibly) I don't know but nonetheless, check out the citation by hearing officer below.
WTH with his preference to cite pertinent (in his opinion) federal regulations? That, dear sir, is the name of the game. Here again he names state regulations adopting federal. Again, no expert here but isn't that what Holder went after Arizona for doing? A state mirroring federal law and enforcing their own version of it? And again, the guiding principal in disability law on the federal level is that greater protections prevail because it is expansive rather than restrictive.
On the chance that these decisions haven't been pored over with a fine tooth comb including his citations to what he references, his sourcing, I'd go through both of these FAPE decisions with a keen eye if the decision process is holding to that principal of greater protections prevailing and also if the use of federal vs. state law is appropriate as a preference. Were all procedural safeguards honored? Where are THOSE records? Have they been shared with all parties and VERIFIED as to timeline? With whom were they verified?
Thoughts. Useful ones? You'd be crazy to listen to me but smart to force some transparency for timeline and evidence, I think.
Also, I noticed the name "Zirkel" on the appeals panel board on the state PA ODR page where I found these decisions. Would that be the same Perry Zirkel of Pennsylvania in the now well-known letter to Zirkel from DOE OSEP re: "reasonable" standard incorrectly used in public educational situations and that greater protections always prevail rather than lesser? Anyone able to see if this is possibly same individual?
If so, here's the letter to him from OSEP so you can have the straight dope.
http://www.dueprocessillinois.org/zirkel.html
The DOE having to set Pennsylvania straight may not set a good precedent for who you're dealing with. You should also take a look at Mystic Valley appeal and resulting Hearing Officer's decision.
http://www.doe.mass.edu/bsea/decisions/03-3629.pdf
One strikes me as "do I hafta" in contrast to the other's "yeah, don't be stupid it's not an undue burden, nor over the top".
Feast your eyes on the above link. ^
Same Hearing Officer on the same subject FAPE, different cases. How much stock anyone wants to put into what one poster (me) on a food allergy board has to say about a decision rendered by a practicing attorney (with a PhD, possibly) I don't know but nonetheless, check out the citation by hearing officer below.
WTH with his preference to cite pertinent (in his opinion) federal regulations? That, dear sir, is the name of the game. Here again he names state regulations adopting federal. Again, no expert here but isn't that what Holder went after Arizona for doing? A state mirroring federal law and enforcing their own version of it? And again, the guiding principal in disability law on the federal level is that greater protections prevail because it is expansive rather than restrictive.
On the chance that these decisions haven't been pored over with a fine tooth comb including his citations to what he references, his sourcing, I'd go through both of these FAPE decisions with a keen eye if the decision process is holding to that principal of greater protections prevailing and also if the use of federal vs. state law is appropriate as a preference. Were all procedural safeguards honored? Where are THOSE records? Have they been shared with all parties and VERIFIED as to timeline? With whom were they verified?
QuoteIt is this hearing officer's preference to cite to the pertinent federal implementing regulations of Section 504 at 34 C.F.R. §§104.1-104.61. See also 22 PA Code §§15.1- 15.11 wherein Pennsylvania education regulations explicitly adopt the provisions of 34 C.F.R. §§104.1-104.61 for the protection of "protected handicapped students". 22 PA Code §§15.1, 15.10.
2 34 C.F.R. §§300.1-300.818. See also 22 PA Code §§14.101-14.162.
Thoughts. Useful ones? You'd be crazy to listen to me but smart to force some transparency for timeline and evidence, I think.
Also, I noticed the name "Zirkel" on the appeals panel board on the state PA ODR page where I found these decisions. Would that be the same Perry Zirkel of Pennsylvania in the now well-known letter to Zirkel from DOE OSEP re: "reasonable" standard incorrectly used in public educational situations and that greater protections always prevail rather than lesser? Anyone able to see if this is possibly same individual?
If so, here's the letter to him from OSEP so you can have the straight dope.
http://www.dueprocessillinois.org/zirkel.html
The DOE having to set Pennsylvania straight may not set a good precedent for who you're dealing with. You should also take a look at Mystic Valley appeal and resulting Hearing Officer's decision.
http://www.doe.mass.edu/bsea/decisions/03-3629.pdf
One strikes me as "do I hafta" in contrast to the other's "yeah, don't be stupid it's not an undue burden, nor over the top".
Posted by twinturbo
- January 09, 2013, 06:21:18 AMFor what it's worth I and I'd say everyone on this site not only believe what you're saying but have experienced something similar. Some here have successfully filed claims with DOE OCR where the school was found to be out of compliance with procedural safeguards.
You have our support on this.
But two things. Firstly, I was interested in what official documents read rather than either news reports or Facebook pages for the contents of the actual decision. Secondly, I follow jurisdiction and process when any case like this makes the news waves. When I see state agencies intervening in the reporting structure between the federal agency and the citizen on federal matters I start wondering why.
A member here won on procedural safeguards through a complaint with DOE OCR. She went directly to them when her child's 504 was blatantly violated along with some retaliation. The similarities are striking both for how closely the violations are mirrored and also that school district is vindictive about the 504 process. I'll find a link to Team Anaphylaxis Google docs on that decision.
The hearing officer in TF's case also has other decisions posted in PDFs on the link above. Might be worth a look at another decision he made on FAPE. It was made a month prior. At the very least compare and contrast perhaps how he states he comes to his decision using what sources.
If no *federal* department or office has actually used to file a complaint it may be worth a call or email to DOE OCR federal. And if the state level Penn Dept of Human Relations told you that you can't file federally until the state investigates it might be worth verifying with the feds.
It would be worrisome if a state through their formations on procedures violated federal procedures, and/or decided to veer from the central tenet of disability law where the most expansive and greatest protections prevail.
You have our support on this.
But two things. Firstly, I was interested in what official documents read rather than either news reports or Facebook pages for the contents of the actual decision. Secondly, I follow jurisdiction and process when any case like this makes the news waves. When I see state agencies intervening in the reporting structure between the federal agency and the citizen on federal matters I start wondering why.
A member here won on procedural safeguards through a complaint with DOE OCR. She went directly to them when her child's 504 was blatantly violated along with some retaliation. The similarities are striking both for how closely the violations are mirrored and also that school district is vindictive about the 504 process. I'll find a link to Team Anaphylaxis Google docs on that decision.
The hearing officer in TF's case also has other decisions posted in PDFs on the link above. Might be worth a look at another decision he made on FAPE. It was made a month prior. At the very least compare and contrast perhaps how he states he comes to his decision using what sources.
If no *federal* department or office has actually used to file a complaint it may be worth a call or email to DOE OCR federal. And if the state level Penn Dept of Human Relations told you that you can't file federally until the state investigates it might be worth verifying with the feds.
It would be worrisome if a state through their formations on procedures violated federal procedures, and/or decided to veer from the central tenet of disability law where the most expansive and greatest protections prevail.
Posted by kindergartenmom
- January 08, 2013, 07:22:55 PMThe district came up with a food allergy policy the first day of court. The policy I believe was what the hearing officer used to say the district provided fape. Multiple emails presented to the hearing officer and on record show repeated and ignored request to the district for any policy, procedure or practice related to food allergies.
Posted by twinturbo
- January 08, 2013, 06:31:51 AMCut the rest of the post to highlight the actual decision.
I found the Hearing Officer decision in PDF put out by the ODR. Public record student's name has been redacted.
http://204.186.159.23/odr/HearingOfficerDecisions/2803-11-12.pdf
Ok, not surprisingly the news articles aren't completely accurate. The Pennsylvania Office for Dispute Resolution Hearing Officer's decision on Fox Chapel is that the while the district did provide FAPE adequately it also DID ENGAGE IN RETALIATION in direct relation to the family's pursuit of a 504 by continually using district truancy even though the student was enrolled elsewhere.
On the Hearing Officer's interpretation of what is appropriate management for LTFA, I think he's way off course, and quite frankly I'd want to see some procedure on how he came to those conclusions on what is medically required. I completely understand appealing that decision.
I found the Hearing Officer decision in PDF put out by the ODR. Public record student's name has been redacted.
http://204.186.159.23/odr/HearingOfficerDecisions/2803-11-12.pdf
Ok, not surprisingly the news articles aren't completely accurate. The Pennsylvania Office for Dispute Resolution Hearing Officer's decision on Fox Chapel is that the while the district did provide FAPE adequately it also DID ENGAGE IN RETALIATION in direct relation to the family's pursuit of a 504 by continually using district truancy even though the student was enrolled elsewhere.
On the Hearing Officer's interpretation of what is appropriate management for LTFA, I think he's way off course, and quite frankly I'd want to see some procedure on how he came to those conclusions on what is medically required. I completely understand appealing that decision.
Posted by kindergartenmom
- January 07, 2013, 06:09:09 PMPosted by kindergartenmom
- January 07, 2013, 06:02:53 PMocr was not involved. A dept of human relations complaint was filed so ocr could not act until the human relations dept investigation was complete. Dept of human relations was filed because of the joint task force and the issues involved.
Posted by twinturbo
- January 07, 2013, 07:20:01 AMWas OCR involved at any point?