Firstborn: Attorney Client Privileged


So the letters were flying back and forth more then ever. I was becoming an expert documentor and the district was trying to make excuse after excuse to cover their tracks.

What I did not know at the time which I stumbled upon in a later records review was that the Board of Education had contacted their lawyer for legal advice regarding the certified letter that I had sent to each of their homes.

According to the attorney client privileged document that was later placed in my son’s educational file it stated the board wanted to know whether they were legally required to provide vision therapy and “MORE SPECIFICALLY” wanted to know ” the Board’s probability of success in defending her request in an administrative hearing.”

YES, MORE SPECIFICALLY AND MOST IMPORTANT COULD THEY BEAT ME IN AN ADMINISTRATIVE LAW HEARING???

The lawyer wrote, “I have reviewed the emotionally charged correspondence which was sent directly to the board members, which asserts that the Board must provide vision therapy to her son, which must be conducted by a trained vision therapist or doctor in the office where they could have access to the equipment needed. She also asserts the district must produce the law or policy that allows the refusal to meet a child’s educational needs based solely on the desire to not set precedent.”

The lawyer then went into the cost of the vision therapy pointing out that the cost of transportation could also become an issue (although it was always my plan to drive my son to vision therapy myself). He also said he had reviewed the letter from the special education director which stated the former superintendent had approved the service. He went on to say I also understand that before the superintendent’s untimely passing he directed his secretary to leave a message that the board “had already approved the service” and that she has retained a copy of this message to be used as evidence in a hearing.”

The lawyer then gave a history of ME and advised the board that I had threatened the District with lawsuits on a regular basis over various issues regarding my son’s program and did actually file for due process in 2002. He said, “The mother is indeed passionate and persistent regarding her son’s needs, her advocate (who has attended various child study team meetings despite being ill prepared) however, has been adversarial, unprofessional and disrespectful to members of the District’s child study teams.”

When I read this document which of course again was long after my actual battle for vision therapy I had a rush of thoughts that came to mind. First off my advocate at the time was no more adversarial, unprofessional and disrespectful to members of the child study team then the child study team had been to me or her. As a matter of fact audio tapes would prove my advocate was a saint compared to them. However, I was glad I had decided to finally cut bait from any advocate assistance at all shortly after this time. By the time I was fighting the district for vision therapy I had been hiring the advocate on an infrequent basis anyway and was doing the boatload if not all the the work anyway yet paying for her services.

And I was actually sort of comforted to hear the district’s attorney acknowledge that I was “passionate and persistent regarding (my) son’s needs”!  He knew and they knew I wasn’t adversarial, unprofessional and disrespectful and no matter the thorn I was in their side they also knew I was doing what was right and advocating for my child. They knew this despite all the cruel horrible things they put my family through and despite the picture they painted to the other schoolies and community members about me.

Now for his legal analysis; He went on to explain all the laws I had cited. He went into in length about a Free Appropriate Education, IDEA, Educational Benefit, etc…, etc….

He then talked about related services that school districts are obligated to provide. He stated  in accordance to NJAC 6A:14-3.9 and U.S.C. 1401 (a) (25)-(26) He stated, “The IDEA defines related services such as: transportation services and such developmental, corrective and other supportive services including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, social work services, counseling services, including rehabilitation counseling, and medical services (except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education.”
 
He then stated, “The question of whether a particular service falls within the “medical service” exclusion however, remains contested throughout the nation. Traditionally, school districts have been guided by the “eyeglass test”, ie., a district would not be required to pay for a child’s eyeglasses, as it is clearly medical in nature.”

He continued by stating there was no question that Optometric Vision Therapy was medical in nature. However, he had cited a case, “CEDAR RAPIDS COMMUNITY SCHOOL DISTRICT VS. GARRET F” in where the district was required to provide  continuous one on one nursing services for a quadriplegic student while at school.

Then came his findings and recommendation. He believed the district was NOT obligated to provide vision therapy and under normal circumstances would have better then a sixty five percent chance of prevailing in a due process hearing. However, taking into consideration the letter of approval, the voice mail message that I had retained, etc.., etc… he felt the chances would be more likely that it was a fifty fifty percent chance of the board prevailing and the Judge would most likely be sympathetic towards me after seeing my evidence.

It ended, “As a side note please keep in mind that if the Board resolves this matter internally (without going to court), that it is possible that it will in fact set more of a precedent with other parents who will likely know that the district does provide the service.”

Now remember I was going to walk into the closed Board session blind as I had no knowledge of the board’s legal advice at this time. However, I couldn’t help but laugh when I read this document much later and looked at the attorney’s probability statistics of prevailing in a due process hearing. Was he kidding? I was going to win this one hundred percent no doubt in my mind.
Copyrighted 2011: danadogooder and DMT

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About danadogooder

Happily married for 20 years except when he is pissing me off! ' Mommy of 3 boys, a yellow female lab named Curious, 2 kitties Trouble and Kornelia, and bird and fish! Yes, we have a Zoo! Love to cook, entertain, and travel. I give new meaning to, "You can't fight city hall" Cause I fought worse, "Yes, The Board of Ed! " I live in a houseful of ADHD, Dyslexia, Auditory Processing, Sensory Integration and Allergies!!! I love being a Mom, to have fun and am always joking around! My job titles are: Wife, Mommy, Advocate, Friend, Maid, Cook, Self Employed Business Owner among many others!
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2 Responses to Firstborn: Attorney Client Privileged

  1. Dee says:

    Hi Dana

    I really got a lot from your blog, and wanted to ask a question: If I requested to see all files and notes, how likely would this data be in my son’s file? I am planning on conducting a file review.

    • danadogooder says:

      Well legally they are obligated to put all the data and documents pertaining to your son in the file. For the most part my son’s team did however, there were documents added after the fact sometimes that I would discover a year later that I could have used at the time of the battle but they had made sure they were not available at the time. Send a certified letter or hand delivered requesting a signature that they received it. You can use this as a guideline since I see you are in N.J.: In order to prepare for our upcoming IEP meeting and pursuant to NJ Pupil Records Act and FERPA I would like to review ….’s entire and complete school file including all cumulative and confidential educational records (tests, evaluations, special education records, medical records or letters, formal and informal correspondence, discipline records, tape recordings, all data
      collection, e-mail’s, and teacher to teacher notes). Good Luck!

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