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1990 Main St Ste 750 Sarasota, FL 34236
Phone: (941) 302-3754
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Professional Continuing Education Courses where Mr. Corchnoy has spoken:

FAPE and Mental Health - Where Does a School District's Responsibility Begin and End? Presented at the Lehigh University's 44th Special Education Law Conference: The Latest Legal Lessons of a Long-Lasting IDEA, Friday, May 13th, 2016.

 

Settlement Agreements and Their Enforcement

Presented at the 2015 Council of Parent Attorneys and Advocates (COPAA) National Conference, March 7th, 2015.

 

Evaluations and Eligibility

Presented at the NBI seminar Special Education Laws Made Simple, December 6th, 2013.

 

Motions Pleadings in Federal Court / Appellate Practice in the 3rd Circuit,

Presented at the PBI Exceptional Children’s Conference, October, 2012.

 

Section 504 of the Rehabilitation Act vs. The Individuals with Disabilities Education Act Presented at the Lorman Education services seminar, February 22nd, 2006.

 

The Effect Of “Persistent Dangerous Schools” Under N.C.L.B. On § 1983 Claims For Damages And Denial Of FAPE Claims Under IDEA

Presented at the Lorman Education services seminar, Impact of the No Child Left Behind Act on Special Education in PA, December 7th, 2005.


Governor Corzine signs bill reversing Shaffer v. Weast

Governor Corzine signed A4076/S2604 (which passed the Senate unanimously) into law Januray 15th, 2007.  As a result, school districts at Due Process hearings will now have the burden of persuasion to show that they provided a Free and Appropriate Public Education (FAPE) to the student in question.  This requirement was the proceedure at all Due Process hearings prior to the U.S. Supreme Courts decision in Shaffer v.Weast.  This procedure shall now be in effect for all New Jersey Due Process hearings.

Testimony Given on 11-28-07 to the NJ State Senate
 in Support of reversing Shaffer v. Weast

Ladies and Gentleman:

My name is Jonathan Corchnoy. I am a resident of Camden County and a parent of a special needs child and as a special education attorney who represents parents.

I would like to thank the sponsors of this bill for attempting to help level the playing field for parents. These cases were difficult enough for a parent before Shaffer v. Weast. However, what I am seeing post- Shaffer is that rather than trying to resolve these cases, school districts are taking a "take it or leave it" position with parents. And for any parent brave enough to challenge the District, the school district will fight to the death, rather than settle. Either the parent must take what is offered or face a costly and lengthy litigation process. School Districts know that it is the rare parent who has the resources and stamina to fight such a case, so the Districts effectively break the law with impunity.

I quote from a portion of a Brief that I recently filed in the U. S. Third Circuit Court of Appeals in reply to a New Jersey school district’s brief:

The District shows no concern for T. C.’s education or well-being, and attempts to shift the blame to N. F. for the its lack of compliance. Appellee’s argument clearly implies that T. C.’s IEP was somehow more than he actually needed, but it believed those services were what he needed when the IEP’s were created and for the duration that the services were provided from the first IEP until T. C. left the District some three years later. The District’s defense suggests some sort of powerlessness on its part, as if it was somehow forced into providing more services than necessary. This argument is ridiculous on its face - any parent who has undergone the ordeal of the IEP process knows very well where the power resides, and it is NOT with the parent.

The issues in that case are not all that different form a recently decided Third circuit case where the U.S. Supreme Court refused the District’s request to hear the matter: P. N., ex. rel., M. W., v. Clementon Board of Education, 442 F.3d 848 (3rd Cir., 2006). Yet here we are again before the Third Circuit from the same NJ District Court judge as in that case: Freda Wolfson. In that case, rather than pay $425.00 to the parents to reimburse them for an evaluation of their child, the case went to a Due Process hearing where they lost. When the District refused to pay the parents’ counsel fees as provided by law, they filed a federal lawsuit in the District of NJ. Judge Wolfson found that $425.00 was de minimis and refused counsel fees. To quote the Third Circuit:

The District Court’s conclusion that the plaintiffs’ failure to "prevail beyond the basic requirements of the IDEA," and achieve substantial relief precluded them from prevailing party status is perplexing ... Even when considered for the purpose of determining the amount of attorneys’ fees to be awarded, an award of $ 425 in the context of the IDEA can hardly be regarded as de minimis. As Amici point out, IDEA claims often involve low income families raising handicapped or otherwise troubled children receiving some kind of public assistance ... Indeed, we believe the IDEA’s fee shifting provision is specifically designed to protect those families for whom $ 425 is not a de minimis amount of money. P. N., ex. rel., M. W., v. Clementon Board of Education, 442 F.3d 848 (3rd Cir., 2006).

Judge Wolfson ultimately awarded approximately $120,000.00 in counsel fees against the Clementon Board of Education. I’m sure they paid their own lawyers about the same. So for refusing to pay $425.00, and what was then probably around $5,000.00 or less in counsel fees, the Clementon Board of Ed. wasted approximately a quarter of a million dollars which could have been spent educating students.

I’m sure you have been bombarded with comments that reversing Shaffer will raise school expenses and ultimately school taxes. I would like to point out that pre-Shaffer, cases such as I noted, settled quickly just by asking for Due Process. When parents called me, I would tell them to send a certified letter requesting Due Process and then, if they could not resolve the matter to their satisfaction, call me. More than half of the time, they resolved the matter and did not need any more services from me. The District ultimately spent far less money paying their lawyer and the parents’ lawyer and the student involved received appropriate services more promptly. Now, it seems that nearly all cases are headed for a full hearing. 

Therefore, I fully support this bill as a parent and as a special needs attorney.

Testimony Given on 5-14-06 to the NJ State Assembly
 in Support of reversing Shaffer v. Weast

Ladies and Gentleman:

My name is Jonathan Corchnoy. I am a resident of Camden County and come to you as a parent of a special needs child and as a special education attorney who represents parents.

First, I would like to thank the sponsors of this bill for attempting to help level the playing field for parents. These cases were difficult enough for a parent before Shaffer v. Weast. However, what I am seeing post- Shaffer is that rather than trying to resolve these cases, school districts are taking a "wait and see" position. They wait until a parent presents their case at a Due Process hearing rather than try to resolve these matters either in a resolution session or a mediation. That is not to say that Resolution Sessions and Mediations do not occur, but rather that offers to resolve a parent’s requests at such sessions tend to be just "bones tossed to a dog." Either the parent must take what is offered or face a costly and lengthy litigation process. School Districts know that it is the rare parent who has the resources and stamina to fight such a case, so the Districts effectively break the law with impunity.

Second, a case in point concerns a nine year old second grader in Reading, Pennsylvania. The same issues are happening there, but they have yet to propose a codification of the reversal of Shaffer. That case concerns a Type I highly unstable diabetic and, unlike here, school nurses are not required in every school. The student needs a full-time medical professional to diagnose whether the child is in need of sugar or insulin and administer the correct treatment. The school district is fighting so that they do not have to provide such an individual.

The hearing officer will not decide in the child’s favor until she hears from the child’s doctor - a very busy diabetic specialist from Hershey Medical Center - because until the medical specialist testifies, the parents have not met the Shaffer burden. The doctor does not want to testify. Usually in this situation, the doctor will ask for five to ten thousand dollars to testify so as to discourage the request. Most parents can not afford this sum, and if they can, another U.S. Supreme Court case says that they can no longer recover those expenses. The parents in this case cannot afford me, let alone to pay the doctor to testify. And there is the dilemma that your proposed bill will help.

Third, I would like to point out that pre-Shaffer, cases such as I noted, settled quickly just by asking for Due Process. When parents called me, I would tell them to send a certified request for Due Process and then, if they could not resolve the matter to their satisfaction, then call me. More than half of the time, they resolved the matter and did not need any more services from me. Now, it seems that nearly all cases are headed for a full hearing.

Therefore, I fully support this bill as a parent and as a special needs attorney.

Debunking a Special Education Myth

Can spiraling special education costs explain why educational achievement remained stagnant over the past three decades while real education spending more than doubled? Read what Jay P. Greene and Marcus A. Winters have to say on the subject.  Jay P. Greene is professor of education reform, University of Arkansas, and a senior fellow at the Manhattan Institute for Policy Research. Marcus A. Winters is senior research associate at the Manhattan Institute for Policy Research and doctoral fellow at the University of Arkansas.  Read their article at the Hoover Institution’s Education Next Journal.

Testimony Given on 5-17-06 to the NJ State Board of Education and NJ Statewide Demonstration for the Rights of Students with Disibilities
regarding special education

Good afternoon. My name is Jonathan S. Corchnoy. I am the father of an autistic child, and because of him, I have become a special education lawyer. When my wife and I were first doing an IEP for him, and the School District promised in it that he would be placed in a "distraction free environment," I asked what had they done for that aspect and the social worker’s reply: "We always put that in there, but we’ve never actually done anything about that." Two months later the school principal told my wife that: "Your child is unteachable." We home school now because - quite frankly - we couldn’t do any worse.

My testimony concerns the timeliness of Due Process Hearings.

It has been my experience and the experience of many other parents and litigators in the State of NJ for an OAL hearing and decision to take in excess of 6 months from a party’s request for a hearing.

This time delay is in clear violation of the procedural safeguards of the IDEIA, 20 USC §1415, and the corresponding United States Department of Education Regulation 34 CFR §300.511 "Timelines and convenience of hearings and reviews."

Specifically, Subsection (a) of that CFR regulation states:

The public agency shall ensure that not later than 45 days after the receipt of a request for a hearing-

(1) A final decision is reached in the hearing; and

(2) A copy of the decision is mailed to each of the parties.

I realize that under the IDEIA, there is now a mandatory 30 mediation period that precedes that 45 day time limit, but even so, NJ is outrageously out of compliance with the law. Nevertheless, there is no exceptions for this timeline - None - not even if the parties agree to a continuance.

Justice delayed is justice denied, and with our children days matter. To them, weeks are years and months are decades. Every day lost because a judicial officer hasn’t had time to hear a case and make a decision is lost to them and they won’t make it back.

Ironically, many more cases would probably be settled, and the caseload thereby reduced, if the day of reckoning came promptly. Pennsylvania - which has its Due Process hearings and decisions thereon within the 45 days required by law - has many more cases settle than in NJ. Their Office for Dispute Resolution hearing officers will not continue cases, even if the parties agree to a continuance. Knowing that, Plaintiffs will not file until they have a case that is ready to proceed. Knowing that, Defendants settle obvious losing cases.

How have they done that? By using a 2-Tier, as opposed to the NJ 1-Tier, administrative process, they have developed hearing officers who do nothing but Due Process hearings for IDEIA, §504 of the Rehabilitation Act of 1973, and other educational matters. They are expert in these areas. They know the law as well as anyone in this very specialized area of the law. They know the procedural safeguards, without question. They know the modified evidentiary rules for IDEIA cases. And they move the cases very quickly. Appellate review goes to an Appeals Panel; then to a Court of competent jurisdiction like the US District Court.

They do this using part-time hearing officers who are paid $55.00/hour which translates to $110,000.00/year for a full-time equivalent without benefits. Since they are part-timers, the state may hire many more than a few administrative law judges (who currently receive about $120,000/year plus benefits). Since they are many, they may hold many more Due Process hearings per day than in NJ. Yet the need drops because hearings may proceed timely - not 6 months later.

Thank you.


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