Interview with Matt Cohen, 
Special Education Attorney

January, 2009

Matt Cohen is co-founder of Monahan & Cohen, a Chicago legal practice specializing in health, human services, special education, and disability law. In addition, he teaches law; lectures and writes on special education topics, among others; and serves as legal commentator for LD Online, answering questions regarding legal issues for people with learning disabilities. In addition, he is the author of the book A Guide to Special Education Advocacy: What Parents, Clinicians and Advocates Need to Know. In this edited interview with 2e Newsletter, he discussed his work.


2e Newsletter: What led you to a career in special education law?

Matt Cohen: My parents worked as mental health professionals, and in law school I had an interest in civil rights law and education reform. It seemed like a natural combination for me. Then I clerked for a legal aid clinic doing special education law.

2e: Have you had any experience working with the families of twice-exceptional children?

MC: Much experience. 

2e: What typically leads these families to seek your help?

MC: They come because services aren’t working. For example, the child needs a more or less restrictive program; there are problems with discipline or with the methods being used; the child is being denied access to therapy or technology; the student’s not making progress; promises are not being fulfilled; teachers are not adequately trained; the child’s not getting appropriate services for giftedness.

Problems with the implementation of IEPs [Individualized Education Programs] are very common. So is disagreement between the school and parents over where the child should be placed – in regular education or special education.

What I find is that there’s a lack of awareness about kids who are once exceptional and even less awareness about kids who are 2e. 

2e: At what point in the problem are you typically consulted?

MC: Sometimes I’m called in early, but more often it’s when the situation is at the conflict stage.

2e: Does that mean a court case?

MC: Few cases get to court. Most are resolved before they reach that stage. Often, we can resolve the issues by creating an IEP for the child or through informal meetings with the school district.

2e: Do cases involving 2e children present special challenges?

MC: Each case has its own type of challenges. A main issue with 2e children is that many hearing officers in courts accept the view that a student must be functioning below average, and the perception is that it must be way below average. But the language in the 2004 amendments to IDEA [the Individuals with Disabilities Education Act] help with that. The law now states that public schools are responsible for dealing not only with academic problems but functional problems as well. Plus, the process of identifying disabilities was changed in 2004. Now the law allows using the child’s pattern of strengths and weaknesses in relation to intellectual ability or state standards. A high pattern – high strengths as well as high weaknesses – nicely describes a child who’s 2e. The law also states that the fact that a child is getting passing grades doesn’t mean that the child is receiving FAPE [the free appropriate public education mandated by law]. 

2e: Can you give some examples of cases you’ve handled that have involved twice-exceptional children?

MC: A typical situation is that the kids need accelerated instruction in some areas, with accommodation or remedial instruction in others. Sometimes we’re able to persuade the schools to do that; and other times the schools aren’t willing, and we haven’t been successful. Then the family may need to find a program that’s a better fit for the child.

2e: If the family finds that private school would be a better fit for the child, does the school district have to pay for it?

MC: It may have to if the child is already in special education and if the public school can’t meet the child’s needs due to disability (not giftedness per se). But this is always difficult to accomplish, particularly for kids who are also gifted – and with current school budgets, it’s getting harder. Only a small percentage of kids in special education are candidates for this – no more than one to two percent.

In some instances, it’s more likely for 2e kids to be candidates and, in others, it’s more difficult. They need to be failing. The school doesn’t look at it in terms of the child’s potential, but in terms of how the child’s performance compares to others’. One of the huge problems for 2e kids is that schools may not see them as entitled to special services at all.

2e: What advice would you give parents before they seek the services of a special education lawyer?

MC: Try to resolve the dispute in a cooperative way whenever possible. Be careful to pick battles that are truly critical to your child’s progress. Be watchful and don’t make assumptions about what the school will do or if they know what to do.

Also, use the Internet. I send parents to websites where they can find information such as the US Department of Education website, the National Dissemination Center for Children with Disabilities [also referred to as NICHCY], CHADD [Children and Adults with Attention Deficit/Hyperactivity Disorder], and COPAA [the Council of Parent Attorneys and Advocates].

2e: Can you talk about the organization COPAA – about its goals and membership?

MC: I’m on the board of COPAA. It has about 1,000 members, and its goal is to secure services and support for kids with disabilities in the schools. The website [www.copaa.net] has information for parents on special education law, rights, and services; and it provides a search engine for locating advocates and attorneys. The organization also offers training in advocacy and how special education works.

2e: What changes do you think RTI [Response to Intervention] has brought for 2e kids? Do you see it as beneficial? [For an explanation of RTI, see the September, 2007, issue of 2e Newsletter.]

MC: Schools no longer have to use the discrepancy formula [to identify children who may need special education services]. The law doesn’t rule it out, but it offers RTI as an alternative. With RTI, schools can try interventions in the regular education classroom based on scientifically proven methods and see how the child responds before determining if a learning disability is present. It gets things started sooner in regular education, but it slows down the process of identifying LDs and getting special education services.

RTI is a double-edged sword. It’s great if kids can get help and avoid special education, but there are shortcomings in how it’s delivered. A problem with a lot of schools is a lack of qualified teachers for conducting these interventions. Also, if a child doesn’t make progress, time’s been lost; and there’s confusion over what testing should be done.

2e: The ADA [Americans with Disabilities] Amendments Act was recently signed into law. What impact, if any, do you think this will have on 2e children?

MC: It relates to interpretation of Section 504 of the ADA, and it applies to public schools in theory. It’s significant in terms of the definition of who has a disability. For example, if a person uses glasses or takes medication, that doesn’t disqualify the person as having a disability.

It applies to 2e in one way – the disability doesn’t have to manifest itself in all circumstances in relation to a particular skill set. In other words, if you can’t keyboard but you can brush your teeth, you’re still disabled. The reference point has been changed in determining if a disability is sufficiently severe. Congress says it doesn’t have to be debilitating in every way in regard to a particular function, such as fine motor skill.

 

For more information on special education law, see the articles on Matt Cohen’s website: www.monahan-cohen.com/publications_articles and sign up for the electronic newsletter Special Education News at http://visitor.constantcontact.com/email.jsp?m=1101316448426&id=preview. 

For more on special education law, see these articles from the January, 2009, issue of 2e:Twice-Exceptional Newsletter: Special Education Process: IEP vs. 504 Plan What is Special Education Law?

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