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Burden of Proof Due Process Hearings COSAC Needs Your Input For Next Legislation Session Changes in the Community Care Waiver This section lists many of the most important issues currently affecting the autism community. This space will be regularly updated with new issues and those of continuing interest. On November 30, 2007, the Senate Health, Human Services, and Senior Citizens Committee considered S-2574, a bill that would require training in awareness of autism, intellectual, and other developmental disabilities by all Emergency Medical Technicians, firefighters, and police officers.    COSAC testified in favor of the bill, along with a COSAC member who is an EMT and has a son with autism.  The bill was originally introduced in the Assembly by Assembly Speaker Joe Roberts and sponsored in the Senate by Senator Loretta Weinberg.     Training will be developed by the NJ Department of Health & Senior Services, the NJ Department of Community Affairs, and the NJ Department of Law and Public Safety.  Training will focus on recognizing the behavioral symptoms and characteristics of a child or adult with one or more of these disabilities, the risks associated with these disabilities and basic response techniques to use. The Senate panel approved the bill and it now awaits a vote in the full Senate before the current legislative session ends on January 7, 2008.


On November 30, 2007, COSAC testified at a Senate Committee hearing in favor of Senate bill S-2604 that would put the burden of proof back on the school district in all special education due process cases.  The Assembly version of this bill (A-4076) was approved by the Assembly Education Committee on May 14, 2007 and awaits a vote by the full Assembly.     In 1989 the NJ Supreme Court issued a decision that school districts had the burden to prove their case in court in all Special Education disputes.  The Court reasoned that the district had had greater resources, as well as greater access to information, educational experts, school records, and the Child Study Teams.  The court ruled that districts should be required to prove their case in court because they are the party better able to meet those burdens. In November 2005, the U.S. Supreme Court in Schaffer v. Weast, held that the burden of proof in an administrative case challenging an IEP is placed upon the party that brings the case to court.  And in January 2006, the 3rd U.S. Circuit Court of Appeals (which covers New Jersey) affirmed the recent decision by the Supreme Court.  They decided against a family and sided with the school district because they said the family had not proven its case in court. Testifying in favor of S-2604 were several COSAC members, including Bobbie Gallagher and Sherry Epstein.  They spoke of their own difficulties in getting an appropriate education for their children and of the tremendous disadvantage they faced in going to court against a school district with seemingly unlimited resources.  Many who testified talked of the immense emotional and financial drain these due process hearings put upon them.  The bill was sponsored by Senators Stephen Sweeney and Joe Doria.    The Senate Education Committee heard the testimony and approved the bill unanimously and sent it on to the full Senate for a vote.


On December 3, 2007, the Senate Budget and Appropriations Committee approved S-1060, a bill that would require DDD to study the need to establish placement trusts for people with developmental disabilities.  A placement trust is a vehicle set up to allow for the transfer of trust funds to DDD that would be used to benefit a designated individual.  The funds could go toward residential functional services or day programs.   The bill has been revised since it was first introduced, and it calls for DDD to study placement trusts, including the mechanism to enable people to create them, as well as the possibility that they could be funded with pre-tax dollars.   In performing the study, DDD is required to consult with at least five advocacy groups representing the interests of people with developmental disabilities or their family members.  Within nine months of the passage of the bill, DDD is directed to report its findings to the Governor and the Legislature.  The bill was sponsored by Senators Diane Allen and Thomas Kean, Jr.      The Committee released the bill and sent it on for a vote in the full Senate.


Entitled the IDEA Fairness Restoration Act, the bill would allow parents who prevail in Special Education cases to be awarded reasonable fees for the cost of expert witnesses they bring to help make their case.  Although Congress had always make it clear it intended that parents could be reimbursed for these expenses, that specific language was not included in the legislation.     In remarks before Congress, Congressman Van Hollen described the hardship imposed by not allowing parents to be reimbursed for these high costs.  “Confronted with these costs, parents are discouraged or outright barred from bringing meritorious cases to secure the rights of their children,” he said. “Low and middle income families are particularly hard hit.” The Council of Parent Attorneys and Advocates (COPAA) lauded introduction of the bill.  “Congress included in the IDEA the right to a due process hearing because it recognized that parents needed an independent dispute resolution process to enforce their rights to a free appropriate public education for their children with disabilities.~~ Expert testimony is often necessary in such cases,” said Jessica Butler, Chair of the Board of Directors and Robert Berlow, COPAA Government Relations Committee Chair.   No members of the New Jersey House delegation have yet signed on as co-sponsors of H.R. 4188.    To view the text of this legislation, visit [Link]http://thomas.loc.gov/cgi-bin/query/z?c110:H.R.4188: Assembly Committee Approves a Bill that Helps Parents in Special Education Disputes Assembly bill A-4076 was approved by the Assembly Education Committee on Monday, May 14, 2007.  The bill would place the burden of proof on school districts in due process hearings conducted to resolve special education issues.   The bill is sponsored by Assembly members Joe Cryan (D-Union), Joan Voss (D-Bergen), Joe Vas (D-Middlesex), and David Wolfe (R-Ocean). COSAC Director of Government Affairs Art Ball testified in favor of the bill.  Ball was joined by COSAC members Bobbie Gallagher, Judith Reuter, and Sherry Deutsch Epstein who supported the bill with testimony about their respective experiences with school districts.  Many other parents also testified and several stories highlighted legal fights that dragged on for years and cost parents more than $100,000 in legal bills.   A 1989 NJ Supreme Court decision in 1989 (Lascari v. Ramapo Hills School) placed the burden of proof on the school districts, saying that school districts had greater resources and access to information, educational experts, school records, and Child Study Teams.  Combined with the lack of resources and parents’ expertise in developing the IEP, the Court said the burden of proving their case in court should be on the school districts because they are the party better able to meet that burden.  In November 2005, however, a U.S. Supreme Court decision reversed that thinking and a decision in January 2006 by the Third Circuit Court (which includes New Jersey) said the burden of proof should be on the party bringing the suit, usually the parents.    Last year, the NJ Public Advocate Ron Chen investigated this and sought input from organizations and individuals about their experiences with the issue.  In January 2007 the Public Advocate’s Office issued a report outlining the need for a change and called on the Legislature to enact a bill placing the burden back on the school district.  That Report includes this quote from COSAC, “The landscape in Special Education has not changed since the Lascari decision in 1989 and school districts are still incredibly better-equipped than virtually any parent to bear the burden of proof in special education cases.” A-4076 was unanimously approved by the Assembly Education Committee and afterward, Committee Chair Assemblyman Craig Stanley (D-Essex) also signed on as a co-sponsor of the bill.  A-4076 must now proceed for a vote by the full Assembly.     An identical bill (S-2604) introduced in the New Jersey Senate is awaiting hearing before the Senate Education Committee.  S-2604 is sponsored by Senators Stephen Sweeney (D-Cumberland, Gloucester, Salem), Joe Doria (D-Hudson), and Loretta Weinberg (D-Bergen).     Currently, to be eligible for services from the Division of Developmental Disabilities (DDD), an individual must meet the definition of “developmental disability.”  That definition requires that the individual must have “substantial functional limitations” in three or more areas of “major life activity,” and that the disability must manifest itself before the person reaches the age of 22.   On April 16, 2007, DDD proposed to change that definition so that the disability no longer must manifest itself before the age of 22.   This proposed change is a result of the March 1, 2007 decision by the NJ Supreme Court in favor of a 55-year old man with Asperger’s Syndrome.  That decision granting him DDD eligibility came despite the fact that T.H. lacked “concrete data” such as medical records to show that he had Asperger’s before the age of 22.  The Court accepted the anecdotal evidence provided by his family and said because Asperger’s was not recognized until recently, many adults with this Syndrome never received diagnosis or treatment. DDD regulations will still retain the need to demonstrate “substantial functional limitations” in three or more of the major life activities of: self-care; receptive & expressive language; learning; mobility; self-direction; and capacity for independent living or economic self-sufficiency.   The proposed changes to N.J.A.C. 10:46-1.3, however, remove the words “before the age of 22” from the definition.  DDD claims this change will have a positive impact because it will allow more individuals to be eligible for DDD services.  COSAC agrees with that assessment and supports this proposed amendment to the regulations.   To read the proposed regulation, go to http://www.state.nj.us/humanservices/Rules/index.htm Click on the third item down, “Determination of Eligibility.” Landmark legislation that would dramatically expand federal funding for lifelong services for individuals with autism was introduced in March by Senator Hillary Rodham Clinton (D-NY) and Senator Wayne Allard (R-CO). The announcement of the legislation, The Expanding the Promise for Individuals with Autism Act of 2007 (EPIAA – U.S. Senate bill number S.937), was made with Autism Speaks, the nation’s leading autism advocacy organization, and provides $350 million to improve access to comprehensive treatments, interventions and services for people with autism and their families. The proposed legislation aims to: COSAC is pleased to announce that New Jersey Senators Frank Lautenberg and Robert Menendez have both signed on as co-sponsors of S.937.  We encourage you use the contact information below to thank them for their support of this important piece if legislation.   Contact Senator Frank Lautenberg at: http://www.lautenberg.senate.gov/contact/ Toll-free office in New Jersey: 888-398-1642 Washington office: 202-224-3224 Contact Senator Robert Menendez at: http://www.menendez.senate.gov/contact/ North New Jersey office: 973-645-3030 South New Jersey office: 856-757-5353 Washington office: 202-224-4744 [ fcp://@www.accesspointsolutions.com,%239987065/njcosac/cosac2/s937 ]Click here for more information about S.937 The NJ Supreme Court recently issued a decision that will make it easier for adults with disabilities to receive services from the NJ Division of Developmental Disabilities (DDD). The case, T.H. v. DDD, involves a 55-year old man with Asperger’s Syndrome, who was cared for by his parents for his entire lifetime. After his mother died in 2000, his siblings asked DDD to help with his care.   DDD refused, citing a lack of evidence or documentation proving that his disability had manifested itself before he reached the age of 22.  The family said T.H.’s disability was evident by age six and significant enough that psychologists recommended placement in a group home, though his family chose to keep T.H. at home.  DDD, however, said that the information from the family was merely anecdotal and did not provide evidence of substantial limitations in three major life areas prior to age 22.  DDD denied that T.H. was eligible for services.   DDD’s denial of eligibility was upheld by an Administrative Law Judge who said the evidence was based on “anecdotal commentary at best from just a couple of people around T.H.”  T.H. appealed and in 2005 the NJ Appeals Court again upheld DDD’s decision.   On March 1, 2007, however, the NJ Supreme Court reversed those decisions.  The Supreme Court said that many ailments now recognized by the medical community were not identified until very recently, and that because Asperger’s was not recognized or classified as a disorder until recently, many adult sufferers never received a diagnosis or treatment.   The Court accepted the anecdotal information from the family as proof of T.H.’s disability.  The Supreme Court found that his family recounted in detail his fundamental limitations dating back to his childhood.  The decision states, “We can think of no more relevant evidence than testimony from relatives who lived with T.H. and his problems – year in and year out – over a lifetime.  To rule otherwise would be to punish families that choose to care for their disabled children in lieu of placing them in a facility.”   T.H. was represented in this case by S. Paul Prior, an attorney in the firm of Hinkle, Fingles, and Prior.  Ronald Chen, head of the NJ Department of the Public Advocate, had submitted a brief supporting T.H. and after the ruling, he said this Supreme Court decision will actually create an incentive for parents and loved one to care for their family members at home. On December 18, 2006, the NJ Department of Human Services (DHS) had proposed amendments to DDD regulations on the subject of determination of eligibility and contribution to care and maintenance requirements.  In light of the decision in T.H. v. DDD, DHS has withdrawn its proposed regulations until a future date.   To read the complete opinion, go to [Link]http://lawlibrary.rutgers.edu/courts/supreme/a-114-05.doc.html To find out who represents you in Congress, go to [ http://www.house.gov ]www.house.gov and enter your zip code. To find out who represents your district in the Statehouse of Trenton, [ www.njleg.state.nj.us/members/legsearch.asp ]click here.  You can search alphabetically or by district. You may also send email messages to your Assemblypersons or Senator through this website.

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