Parents are just seeking a Free Appropriate Public Education

[Guest guest]

My husband and I are being sued for doing the right thing: Advocating for our son who has disabilities...

Please don't give up on your children!

UNITED STATES DISTRICT COURT

for the

District of Idaho

Independent School District of Boise City No. 1 )

Plaintiff )

)

)

v. ) Civil Action No.

)

Reff and Phyllis Reff, husband and wife ) 11-096-CV CWD

Defendant )

A lawsuit has been filed against us. The following is our response:

We, Phyllis Reff and Reff, are the parents of Luke Reff, and have the responsibility, mandated by Congress, to assist our son in obtaining a Free Appropriate Public Education.

Luke joined our family, as a foster (to adopt) child, in early June 2006 and we enrolled him in the Boise School District during August of that same year. He was already a classified student, having received Special Education, while living in Oregon.

We have attended IEP meetings for our son, as required under IDEA 2004. We disagreed with the IEP’s drafted and finalized by school personnel, with no input from us. We attended the IEP meetings, and most often that is the first time we see the school drafted IEP -- when copies are provided to us. IEP’s are finalized by school staff, over our objections. We are instructed by school personnel to write our concerns and submit them to the school, for more IEP meetings, where school personnel consider and disregard what we have written. We have independent evaluations and therapy, provided to our son; we have provided the evaluations and reports to the school personnel. We have always signed Releases, so that school personnel could have access to outside of school professional providers. Rarely has school personnel contacted an outside of school provider, to ask questions about our son’s educational needs.

Our concerns are based on the evaluations and testing of doctors and therapists, who have evaluated and provided therapy to our son. We have never asked for anything that is unreasonable, or frivolous. All that we have asked for, is within the law and regulations of IDEA 2004, that our son is entitled to have, in order to give him a free appropriate public education. It is the school district personnel who do the delaying and denying, which cause the need for many IEP meetings -- not us. We don’t get paid to attend IEP meetings; school personnel do.

We asked for due processes hearings only after doing IEP meetings, or Facilitated IEP team meetings, where again our son’s educational needs are disregarded because our concerns are based on what private doctors and therapists declare are our son’s needs. It is well established that parents don’t win due process hearings in Idaho, and you only have to look at the published decisions to know that. School personnel claim that only what they see in school, is addressed, and as long as they don’t see what the private doctors and therapists see, and what we see, they won’t provide educational services to our son to address those needs. We have never put in a request for a due process hearing that was not justified by testing and evaluations, which identify our son’s educational needs. All our requests for due process hearings are based on documentation of our son’s difficulties in school, and what has been identified and diagnosed by doctors and therapists. Now, after 4 and a half years, in the Boise School District, school personnel are admitting that we were right, and they are now just starting to address the issues we have brought up in the many IEP meetings, facilitated IEP meetings, and due process hearings. We did as we as parents are required to do; we are following our procedural safeguards to obtain, for our son, what his testing, evaluations and educational performance (in school) shows he needs.

At this time, with no academic goals and services to address his low academics, our son’s final exam scores are 5 “Fâ€s and 2 “Dâ€s, which places him at risk of failing the 7th grade. Now, school personnel are discussing academic goals -- after 4 and a half years of providing little to nothing in academics, and only because his grades are, undeniably, plummeting, and they don’t know how to cover it up like school personnel did, in previous school years.

The Boise School District did not prevail in the Federal Court cases. Federal District Court did not rule on our complaints. The rulings state that we have to hire an attorney to represent our children, and pay filing fees, or request informa pauperis status (by disclosing our entire family’s income, instead of basing it purely on our child’s income). We don’t have the money, so our children’s cases have been dismissed. This lawsuit is harassment to us, because Elaine Eberharter-Maki knows our Federal court cases have been dismissed because we cannot afford to hire an attorney to represent our children and pay the court fees. We went to Federal court because it is an act of futility doing a due process hearing, in Idaho, where the same three or four hearing officers who don’t rule in favor of any parent, hears and/or denies due process hearings. Many decisions are done in undocumented pre-hearings, by motions done by the school lawyer, and ruled on by the hearing officer. Motion practice, done by the school’s lawyer, often takes away our right to present our complaint (in order to advocate for our child’s educational needs) to the Hearing Officer. Frequently, the Hearing Officer will grant the District’s motions (which are not in Parent’s Procedural Safeguards), i.e. Motion for Summary Judgment, leaving us with the choice of appealing to Federal Court, or abruptly discontinuing our pursuit of FAPE, for our son.

We have never done anything to delay the Special Education/IEP process, and/or increase the cost of legal fees, for the school district. All we have done is follow our procedural safeguards, in response to school personnel’s position that our son is not entitled to Special Education services. We are not asking for something unreasonable, or without any foundation. In fact, we have provided documentation, when we disagreed with our son’s IEP’s Present Levels of Academic Achievement and Functional Performance. An example of what we have been forced to fight for our son is: His IEP PLOP did not include Baselines to address his Unique Educational Needs, so that he can receive Specially Designed Instruction, in order to progress in the General Education Curriculum. Our son needs Baselines in the Following Educational Areas: MATH; READING; WRITTEN EXPRESSION/ENGLISH; HISTORY/GEOGRAPHY; SCIENCE; SOCIAL COMMUNICATION; SOCIAL/EMOTIONAL; EXECUTIVE FUNCTIONING, ESPECIALLY MEMORY; EXECUTIVE FUNCTIONING AS A SINGULAR COMPLEX PROCESS; COUNSELING/ATTACHMENT; HANDWRITING/HANDWRITING ALTERNATIVES; NONVERBAL LEARNING DISABILITY. The results of not having the baselines in his IEP, for the school year 2010-2011, has resulted in the most current final exam grades showing his present performance on academics is 5 “Fâ€s and 2 “Dâ€s, because nothing is being done to address the fact that our son is not on grade level, in all of his subjects in school, and does not have the knowledge and academic foundation to legitimately pass all his classes. There are no goals to address the areas identified in the independent evaluations and testing, which identifies our son’s academic performance, and/or grade equivalent levels.

This lawsuit is a retaliation by Boise School District Personnel, and their lawyer, Elaine Eberharter-Maki, because we won’t give up on our son and just let him fail and drop out of school, as most children with his identified and diagnosed disabilities do. We believe this lawsuit is a Strategic Lawsuit Against Public Participation. This is a SLAPP suit, which is a retaliatory lawsuit intended to silence, intimidate, and punish us for following the procedural safeguards of IDEA 2004. In order for Elaine Eberharter-Maki to procure her legal fees she must show our actions were frivolous, and the proof our son is at risk of failing the 7th grade, and school personnel are now admitting he needs academic goals -- clearly shows we were not wrong. This lawsuit shows Elaine Eberharter-Maki is a good lawyer, at manipulating the law, to prevent our son from receiving a Free Appropriate Public Education for the past four and a half years, and with her success in delaying and denying services, to our son, she may have destroyed his future chances of ever obtaining a high school diploma.

We expect this lawsuit to be dismissed, because there is no merit to the school complaints, other than they admit that they disregard what we, as parents, state are the concerns and educational needs of our son. They resent parents who stand up for their children’s rights, under IDEA 2004. We are not like the parents on August 2, 1992, United States District Court Judge Gerard l. Goettel out of the White Plains, NY office of the Southern District of New York stated in his decision of:Jack Jr., Jean, and Jack III Straube, vs. Florida Union Free School District, Sobol, Neveldine, Commissioners, NYS Educational Department, 91 Civ. 1359(GLG) OPINION 92,0021WP “In addition, Jack’s parents must share some responsibility for the shortcomings in his education. They were cognizant of Jack’s lack of progress and yet acquiesced in the same type of IEP year after year despite being quite aware of their due process rights. The structure of the IDEA presumes that a child’s parents or guardians will arduously seek to ensure that the child receives all of the benefits to which they are entitled by the Act. Rowley, 458 U.S. at 209. The Straubes did not demonstrate this ardor and as a result it become very easy for the school district to provide Jack with what appears to be inappropriate and minimal services.â€

We are the parents who are doing Vigorous Advocacy.

Vigorous advocacy is an anticipated by-product of a policy encouraging parental involvement. See Rowley, 458 U.S. at 209 (discussing Congress’ intent to protect children through parental involvement and commenting that “parents . . . will not lack ardor in seeking to ensure that handicapped children receive all of the benefits to which they are entitled by the Actâ€).

We are complying with IDEA 2004 Procedural Safeguards; defending our son’s rights to a Free Appropriate Public Education; we are being Retaliated against, in violation of our ADA rights.

September 8, 2003, the U.S. Ct. of Appeals for the 11th Cir. ruled in Shotz v. City of Plantation, Docket No. 00-06894-CV-BSS “The anti-retaliation provision states that “[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.†“4 A related provision also makes it “unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter.†42 U.S.C. § 12203(.â€

This lawsuit is just another fee generating activity Elaine Eberharter-Maki does, as she assists her client, the Boise School District, in their successful efforts -- so far-- to delay, deny and destroy our son’s chances of ever obtaining a high school diploma.

We ask you to dismiss this lawsuit, as it is groundless and retaliatory.

*All of the above was submitted in response to the first lawsuit filed against and Phyllis Reff, in regards to our son, L.R. It is included in the response to the current lawsuit, filed against L.R.’s parents, because most of the first lawsuit is repeated in the second/current lawsuit. Since the current lawsuit, dated March 11, 2011, is based on what is in paragraph 129: “…the incurred cost of responding to the allegations and actions of the Parents set out in paragraph 102 through 109….,†We will focus our response on that section of the lawsuit.

In the state of Idaho the hearing officers are biased adjudicators (Carlson, Kumm, Price, and Litteneker), who dismiss our son’s due process hearings (and our daughters’s), violating his rights under IDEA.

Through carefully orchestrated legal tactics, Elaine Eberharter-Maki (attorney for the Boise School District) has successfully denied our son educational services, for years. Prior to our son’s February 25, 2011, current, IEP, he had 2 annual IEP’s with only Language Goals.

As of the creation of his new IEP, dated February 25, 2011, our son is now Eligible under the Multiple Disabilities Category (encompassing the Specific Learning Disability Category and the Health Impairment Category), instead of the Language Eligibility Category. In fact, he is no longer eligible under the Language Category, despite not mastering his 4 language goals on the October 2010 IEP. On the current IEP, our son has goals in EXECUTIVE FUNCTIONING, SOCIAL/COMMUNICATION/EMOTIONAL, WRITTEN LANGUAGE (ACADEMIC), MATH CALCULATION (ACADEMIC). Among the many accommodations are ENCOURAGE USE OF FM SYSTEM TO INCREASE THE INSTRUCTIONAL SOUND IN RELATION TO BACKGROUND NOISE, AND COPIES OF TEXTBOOKS WILL BE PROVIDED FOR HOME USE. As parents, we are glad that the Boise School District is finally (years have been wasted, ignoring our son’s diverse educational needs) beginning to address some of our son’s various educational needs. However, as detailed in a packed two page Written Notice, dated 2-25-11, the Boise School District Considered but Rejected many requests, from the parents, for needed services.

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Our son is diagnosed with the following, according to the IEP Cover page, beginning with his October 2009 IEP, with the same diagnoses on his 10-27-10 IEP (many diagnoses were actually made prior to the 2009 IEP) (Eligibility Category is Language Impairment, plus a Secondary Eligiblity Category of Health Impairment):

Attention Deficit Disorder-Combined Type

Learning Deficit, Specific

Reactive Attachment Disorder of Early Childhood

Anxiety Disorder NOS

Pervasive Developmental Disorder NOS

Nonverbal Learning Disability NOS

Oppositional Defiant Disorder

Developmental Learning Problem (by history)

Fine Motor Skills Limitations (by history)

Adjustment Disorder (by history)

Expressive Language Disorder

Central Auditory Processing Disorder

Acquired Brain Injury Secondary to Fetal Alcohol and Drug Exposure

Looking at the IEP Goals, on our son’s 10-27-10 IEP, his 4 Goals consisted of only Language Goals. We are confused. Where are the Present Levels of Performance Baselines, and the accompanying Goals, Accommodations, Services, etc… for all the Non-Language Disorders? That’s right; there are none. Our son was continuing to be harmed by the Boise School District. On the 10-27-10 IEP, there were no goals addressing our son’s Executive Functioning Deficits (from his ADHD, Brain Injury, etc…). On the 10-27-10 IEP, there were no goals addressing our son’s Social/Emotional Deficits (from his Pervasive Developmental Disorder, Reactive Attachment Disorder, Nonverbal Learning Disability, Brain Injury, etc…). On the 10-27-10 IEP, there were no goals addressing our son’s Academic Deficits (based on Pre and Post Summer Testing, which showed major Regression, and way below grade level performance on Huntington Learning Center Academic Testing – paid for by the parents, since the Boise School District had refused to do Academic Testing prior to the School Year 2010-11, despite Parents expressing Academic Concerns.) (from his Learning Deficit, Nonverbal Learning Disability, Central Auditory Processing Disorder, Brain Injury, etc…). On the 10-27-10 IEP, why is there no goal or accommodation to get our son to use his FM System, which is a necessity to address his Central Auditory Processing Disorder. Why is there no accommodation to provide our son with a home based copy of his school textbooks?

In paragraph 129, of the March 11, 2011 lawsuit we are responding to, the District’s attorney states, “These attorney fees and costs incurred by the School District were necessary and reasonable expenditures caused by the persistent harassment by Parents.†She refers to, “…the sum of $3,209.54 for the incurred cost of responding to the allegations and actions of the Parents set out in paragraphs 102 through 109…â€

Paragraphs 102-109 clearly demonstrate the appropriate actions of parents, whose child is continuing to be denied a Free Appropriate Public Education! The Due Process Hearing Request, of January 12, 2011, and the Parent’s willingness to attend, work diligently, and help draft an agreement – during a day-long Mediation session – demonstrates parents who actively engage in collaborating with the School District to attain their child’s rights to a Free Appropriate Public Education. It also demonstrates parents who follow their Procedural Safeguards, diligently.

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At our son’s recent independent (at parent expense) neuropsychological evaluation (2-15-11) he was diagnosed with:

Cognitive Disorder, Not Otherwise Specified (Alcohol Related Neurodevelopmental Disorder)

Attention Deficit Hyperactivity Disorder, Not Otherwise Specified

Adjustment Disorder, with Anxiety and Depression, Chronic

Expressive Language Disorder (by history)

History of prenatal exposure to alcohol and other controlled substances

Central Auditory Processing Disorder (by history)

Probable static encephalopathy

Academic Struggles. Social Struggles

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It is well known, that children with Fetal Alcohol and Drug Exposure, who have been Neglected, etc… have poor school outcomes.

Jodi Siegal, of Southern Legal Counsel, pointed out the following, re: children with similar backgrounds to our son:

Children and youth who are, or have been in out-of-home care face extra challenges: more than 60% of

children or youth in care drop out of school before graduation, a rate that is twice as high as the dropout

rate for all students.

Children and youth who are, or have been in out of home care are two or three times more likely than other

students to have disabilities that affect their ability to learn. 1

Numerous studies have confirmed that foster children perform significantly worse in school than do

children in the general population. The educational deficits of foster children are reflected in higher rates of

grade retention; lower scores on standardized tests; and higher absenteeism, tardiness, truancy and

dropout rates. The poor academic performance of these children affects their lives after foster care and

contributes to higher than average rates of homelessness, criminality, drug abuse, and unemployment

among foster care "graduates."

What are the causes of such undesirable educational outcomes? First, most of the 500,000 children in foster

care bear the scars of physical and emotional trauma, such as prenatal exposure to alcohol, tobacco and

other drugs; parental abuse, neglect and abandonment; exposure to violence in their homes and

communities; separation from their birth families; and frequent changes in foster placement. These

experiences place children at great risk of developing physical, emotional and behavioral disorders that

interfere with learning. End of quote from Jodi Siegal

We are mandated, under IDEA, to fight for our son’s services. There would have been no due process hearings if our son had been receiving the educational services, that he just recently had added to his IEP. The fact that our son is receiving services now (due to vigorous advocacy by the parents) – is proof that he was denied educational services for years. L.R. never mastered his Language Goals, on his October 2010 IEP, and he no longer qualifies in the category of Language Impairment. The Boise School District’s attorney prevented our son from receiving educational services for a number of years.

If it were legal to sue for Educational Neglect, we would sue the Boise School District for malicious intent to cause harm. When our son is 18 years old he has a right to personally sue school staff, and their attorney, for the actions they committed against him obtaining a free appropriate public education. The damage, which Elaine Eberharter-Maki has caused, in delaying our son’s educational services, may not be reversible.

We are ready to go forward to fight the lawsuit against us, in an open court, with a jury. We have 8-9 more years that our son is entitled to FAPE. We will not sit back and let the Boise School District destroy our son. We can demonstrate the lengthy (over 4 years) fight to obtain, for our son, a Free Appropriate Public Education.

None of our Due Process Hearing Requests, or IEP Team Meeting Requests, etc… have been frivolous. All of these requests were necessary, to obtain the educational services our son needs. We are fighting for our son’s life, and Elaine Eberharter-Maki is racking up legal fees. Sadly, the chances of a non-attorney parent obtaining what they have requested for their child (because of the child’s unique educational needs), in a due process hearing, in the state of Idaho, is almost zero.

We ask you to dismiss the Boise School District’s lawsuit, as it is groundless and retaliatory.

Phyllis Reff Dr. C. Reff

March 31, 2011

[Guest guest]

Lesli,

Your words are wise, and I will not waiver in my fight...

My fight actually began in 2002, on my daughter's behalf, in Florida. My husband taught at a community college. Since we lived in a small town in Florida, my husband was forced out of his job, despite wonderful job evaluations over the 2 and one half years living there. Essentially, he was blacklisted from working in any public college in Florida, so we were forced to move away. That is how we ended up in Idaho.

I have 5 Special needs children. My eldest, who is 24, never received the IEP and services he so desperately needed in Florida. In Idaho, we adopted two special needs children, who were age 8 and 9, in 2006 when they joined our family. They are biological siblings.

I am being taken to due process by the Meridian school district, in early May, for my adopted daughter, since the district is refusing to pay for an independent educational evaluation.

I have requested an independent educational evaluation for my biological son, age 16, who has Aspergers, ADHD, etc..., since they took him off his IEP a couple weeks ago, declaring him not eligible for Special Education.

I have a friend from Florida, who is a Special Education advocate, who has encouraged and guided me all these years, who is currently helping a number of families in Florida, too (for free). She is part of the passionate group of people who will never give up on helping children access a free appropriate public education.

Thank you for being a parent who keeps up the fight; your son is lucky to have you as his parent!

Best,

Phyllis

My thoughts and prayers go out to you and your family. This is why, for over fifteen years, I have never wavered in my fight for a free appropriate education for my son. I am his only voice as you are the strong voices for your son. I am uplifted by your strength and stamina over these past four years. I will remember your words and fervor every time I enter yet another meeting for son. As an educator myself, I am sometimes appalled by the stories that I hear and the things that I have seen. I pray that this unwarranted case is dismissed and that the school system of Boise comes to terms with the mistakes that have taken place, on their part. Yes, the past four years are lost.....but your son has the future and for that reason there is hope.

Lesli

Parents are just seeking a Free Appropriate Public Education

My husband and I are being sued for doing the right thing: Advocating for our son who has disabilities...

Please don't give up on your children!

UNITED STATES DISTRICT COURT

for the

District of Idaho

Independent School District of Boise City No. 1 )

Plaintiff )

)

)

v. ) Civil Action No.

)

Reff and Phyllis Reff, husband and wife ) 11-096-CV CWD

Defendant )

A lawsuit has been filed against us. The following is our response:

We, Phyllis Reff and Reff, are the parents of Luke Reff, and have the responsibility, mandated by Congress, to assist our son in obtaining a Free Appropriate Public Education.

Luke joined our family, as a foster (to adopt) child, in early June 2006 and we enrolled him in the Boise School District during August of that same year. He was already a classified student, having received Special Education, while living in Oregon.

We have attended IEP meetings for our son, as required under IDEA 2004. We disagreed with the IEP’s drafted and finalized by school personnel, with no input from us. We attended the IEP meetings, and most often that is the first time we see the school drafted IEP -- when copies are provided to us. IEP’s are finalized by school staff, over our objections. We are instructed by school personnel to write our concerns and submit them to the school, for more IEP meetings, where school personnel consider and disregard what we have written. We have independent evaluations and therapy, provided to our son; we have provided the evaluations and reports to the school personnel. We have always signed Releases, so that school personnel could have access to outside of school professional providers. Rarely has school personnel contacted an outside of school provider, to ask questions about our son’s educational needs.

Our concerns are based on the evaluations and testing of doctors and therapists, who have evaluated and provided therapy to our son. We have never asked for anything that is unreasonable, or frivolous. All that we have asked for, is within the law and regulations of IDEA 2004, that our son is entitled to have, in order to give him a free appropriate public education. It is the school district personnel who do the delaying and denying, which cause the need for many IEP meetings -- not us. We don’t get paid to attend IEP meetings; school personnel do.

We asked for due processes hearings only after doing IEP meetings, or Facilitated IEP team meetings, where again our son’s educational needs are disregarded because our concerns are based on what private doctors and therapists declare are our son’s needs. It is well established that parents don’t win due process hearings in Idaho, and you only have to look at the published decisions to know that. School personnel claim that only what they see in school, is addressed, and as long as they don’t see what the private doctors and therapists see, and what we see, they won’t provide educational services to our son to address those needs. We have never put in a request for a due process hearing that was not justified by testing and evaluations, which identify our son’s educational needs. All our requests for due process hearings are based on documentation of our son’s difficulties in school, and what has been identified and diagnosed by doctors and therapists. Now, after 4 and a half years, in the Boise School District, school personnel are admitting that we were right, and they are now just starting to address the issues we have brought up in the many IEP meetings, facilitated IEP meetings, and due process hearings. We did as we as parents are required to do; we are following our procedural safeguards to obtain, for our son, what his testing, evaluations and educational performance (in school) shows he needs.

At this time, with no academic goals and services to address his low academics, our son’s final exam scores are 5 “Fâ€s and 2 “Dâ€s, which places him at risk of failing the 7th grade. Now, school personnel are discussing academic goals -- after 4 and a half years of providing little to nothing in academics, and only because his grades are, undeniably, plummeting, and they don’t know how to cover it up like school personnel did, in previous school years.

The Boise School District did not prevail in the Federal Court cases. Federal District Court did not rule on our complaints. The rulings state that we have to hire an attorney to represent our children, and pay filing fees, or request informa pauperis status (by disclosing our entire family’s income, instead of basing it purely on our child’s income). We don’t have the money, so our children’s cases have been dismissed. This lawsuit is harassment to us, because Elaine Eberharter-Maki knows our Federal court cases have been dismissed because we cannot afford to hire an attorney to represent our children and pay the court fees. We went to Federal court because it is an act of futility doing a due process hearing, in Idaho, where the same three or four hearing officers who don’t rule in favor of any parent, hears and/or denies due process hearings. Many decisions are done in undocumented pre-hearings, by motions done by the school lawyer, and ruled on by the hearing officer. Motion practice, done by the school’s lawyer, often takes away our right to present our complaint (in order to advocate for our child’s educational needs) to the Hearing Officer. Frequently, the Hearing Officer will grant the District’s motions (which are not in Parent’s Procedural Safeguards), i.e. Motion for Summary Judgment, leaving us with the choice of appealing to Federal Court, or abruptly discontinuing our pursuit of FAPE, for our son.

We have never done anything to delay the Special Education/IEP process, and/or increase the cost of legal fees, for the school district. All we have done is follow our procedural safeguards, in response to school personnel’s position that our son is not entitled to Special Education services. We are not asking for something unreasonable, or without any foundation. In fact, we have provided documentation, when we disagreed with our son’s IEP’s Present Levels of Academic Achievement and Functional Performance. An example of what we have been forced to fight for our son is: His IEP PLOP did not include Baselines to address his Unique Educational Needs, so that he can receive Specially Designed Instruction, in order to progress in the General Education Curriculum. Our son needs Baselines in the Following Educational Areas: MATH; READING; WRITTEN EXPRESSION/ENGLISH; HISTORY/GEOGRAPHY; SCIENCE; SOCIAL COMMUNICATION; SOCIAL/EMOTIONAL; EXECUTIVE FUNCTIONING, ESPECIALLY MEMORY; EXECUTIVE FUNCTIONING AS A SINGULAR COMPLEX PROCESS; COUNSELING/ATTACHMENT; HANDWRITING/HANDWRITING ALTERNATIVES; NONVERBAL LEARNING DISABILITY. The results of not having the baselines in his IEP, for the school year 2010-2011, has resulted in the most current final exam grades showing his present performance on academics is 5 “Fâ€s and 2 “Dâ€s, because nothing is being done to address the fact that our son is not on grade level, in all of his subjects in school, and does not have the knowledge and academic foundation to legitimately pass all his classes. There are no goals to address the areas identified in the independent evaluations and testing, which identifies our son’s academic performance, and/or grade equivalent levels.

This lawsuit is a retaliation by Boise School District Personnel, and their lawyer, Elaine Eberharter-Maki, because we won’t give up on our son and just let him fail and drop out of school, as most children with his identified and diagnosed disabilities do. We believe this lawsuit is a Strategic Lawsuit Against Public Participation. This is a SLAPP suit, which is a retaliatory lawsuit intended to silence, intimidate, and punish us for following the procedural safeguards of IDEA 2004. In order for Elaine Eberharter-Maki to procure her legal fees she must show our actions were frivolous, and the proof our son is at risk of failing the 7th grade, and school personnel are now admitting he needs academic goals -- clearly shows we were not wrong. This lawsuit shows Elaine Eberharter-Maki is a good lawyer, at manipulating the law, to prevent our son from receiving a Free Appropriate Public Education for the past four and a half years, and with her success in delaying and denying services, to our son, she may have destroyed his future chances of ever obtaining a high school diploma.

We expect this lawsuit to be dismissed, because there is no merit to the school complaints, other than they admit that they disregard what we, as parents, state are the concerns and educational needs of our son. They resent parents who stand up for their children’s rights, under IDEA 2004. We are not like the parents on August 2, 1992, United States District Court Judge Gerard l. Goettel out of the White Plains, NY office of the Southern District of New York stated in his decision of:Jack Jr., Jean, and Jack III Straube, vs. Florida Union Free School District, Sobol, Neveldine, Commissioners, NYS Educational Department, 91 Civ. 1359(GLG) OPINION 92,0021WP “In addition, Jack’s parents must share some responsibility for the shortcomings in his education. They were cognizant of Jack’s lack of progress and yet acquiesced in the same type of IEP year after year despite being quite aware of their due process rights. The structure of the IDEA presumes that a child’s parents or guardians will arduously seek to ensure that the child receives all of the benefits to which they are entitled by the Act. Rowley, 458 U.S. at 209. The Straubes did not demonstrate this ardor and as a result it become very easy for the school district to provide Jack with what appears to be inappropriate and minimal services.â€

We are the parents who are doing Vigorous Advocacy.

Vigorous advocacy is an anticipated by-product of a policy encouraging parental involvement. See Rowley, 458 U.S. at 209 (discussing Congress’ intent to protect children through parental involvement and commenting that “parents . . . will not lack ardor in seeking to ensure that handicapped children receive all of the benefits to which they are entitled by the Actâ€).

We are complying with IDEA 2004 Procedural Safeguards; defending our son’s rights to a Free Appropriate Public Education; we are being Retaliated against, in violation of our ADA rights.

September 8, 2003, the U.S. Ct. of Appeals for the 11th Cir. ruled in Shotz v. City of Plantation, Docket No. 00-06894-CV-BSS “The anti-retaliation provision states that “[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.†“4 A related provision also makes it “unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter.†42 U.S.C. § 12203(.â€

This lawsuit is just another fee generating activity Elaine Eberharter-Maki does, as she assists her client, the Boise School District, in their successful efforts -- so far-- to delay, deny and destroy our son’s chances of ever obtaining a high school diploma.

We ask you to dismiss this lawsuit, as it is groundless and retaliatory.

*All of the above was submitted in response to the first lawsuit filed against and Phyllis Reff, in regards to our son, L.R. It is included in the response to the current lawsuit, filed against L.R.’s parents, because most of the first lawsuit is repeated in the second/current lawsuit. Since the current lawsuit, dated March 11, 2011, is based on what is in paragraph 129: “…the incurred cost of responding to the allegations and actions of the Parents set out in paragraph 102 through 109….,†We will focus our response on that section of the lawsuit.

In the state of Idaho the hearing officers are biased adjudicators (Carlson, Kumm, Price, and Litteneker), who dismiss our son’s due process hearings (and our daughters’s), violating his rights under IDEA.

Through carefully orchestrated legal tactics, Elaine Eberharter-Maki (attorney for the Boise School District) has successfully denied our son educational services, for years. Prior to our son’s February 25, 2011, current, IEP, he had 2 annual IEP’s with only Language Goals.

As of the creation of his new IEP, dated February 25, 2011, our son is now Eligible under the Multiple Disabilities Category (encompassing the Specific Learning Disability Category and the Health Impairment Category), instead of the Language Eligibility Category. In fact, he is no longer eligible under the Language Category, despite not mastering his 4 language goals on the October 2010 IEP. On the current IEP, our son has goals in EXECUTIVE FUNCTIONING, SOCIAL/COMMUNICATION/EMOTIONAL, WRITTEN LANGUAGE (ACADEMIC), MATH CALCULATION (ACADEMIC). Among the many accommodations are ENCOURAGE USE OF FM SYSTEM TO INCREASE THE INSTRUCTIONAL SOUND IN RELATION TO BACKGROUND NOISE, AND COPIES OF TEXTBOOKS WILL BE PROVIDED FOR HOME USE. As parents, we are glad that the Boise School District is finally (years have been wasted, ignoring our son’s diverse educational needs) beginning to address some of our son’s various educational needs. However, as detailed in a packed two page Written Notice, dated 2-25-11, the Boise School District Considered but Rejected many requests, from the parents, for needed services.

-----------------------------------------------------------------------

Our son is diagnosed with the following, according to the IEP Cover page, beginning with his October 2009 IEP, with the same diagnoses on his 10-27-10 IEP (many diagnoses were actually made prior to the 2009 IEP) (Eligibility Category is Language Impairment, plus a Secondary Eligiblity Category of Health Impairment):

Attention Deficit Disorder-Combined Type

Learning Deficit, Specific

Reactive Attachment Disorder of Early Childhood

Anxiety Disorder NOS

Pervasive Developmental Disorder NOS

Nonverbal Learning Disability NOS

Oppositional Defiant Disorder

Developmental Learning Problem (by history)

Fine Motor Skills Limitations (by history)

Adjustment Disorder (by history)

Expressive Language Disorder

Central Auditory Processing Disorder

Acquired Brain Injury Secondary to Fetal Alcohol and Drug Exposure

Looking at the IEP Goals, on our son’s 10-27-10 IEP, his 4 Goals consisted of only Language Goals. We are confused. Where are the Present Levels of Performance Baselines, and the accompanying Goals, Accommodations, Services, etc… for all the Non-Language Disorders? That’s right; there are none. Our son was continuing to be harmed by the Boise School District. On the 10-27-10 IEP, there were no goals addressing our son’s Executive Functioning Deficits (from his ADHD, Brain Injury, etc…). On the 10-27-10 IEP, there were no goals addressing our son’s Social/Emotional Deficits (from his Pervasive Developmental Disorder, Reactive Attachment Disorder, Nonverbal Learning Disability, Brain Injury, etc…). On the 10-27-10 IEP, there were no goals addressing our son’s Academic Deficits (based on Pre and Post Summer Testing, which showed major Regression, and way below grade level performance on Huntington Learning Center Academic Testing – paid for by the parents, since the Boise School District had refused to do Academic Testing prior to the School Year 2010-11, despite Parents expressing Academic Concerns.) (from his Learning Deficit, Nonverbal Learning Disability, Central Auditory Processing Disorder, Brain Injury, etc…). On the 10-27-10 IEP, why is there no goal or accommodation to get our son to use his FM System, which is a necessity to address his Central Auditory Processing Disorder. Why is there no accommodation to provide our son with a home based copy of his school textbooks?

In paragraph 129, of the March 11, 2011 lawsuit we are responding to, the District’s attorney states, “These attorney fees and costs incurred by the School District were necessary and reasonable expenditures caused by the persistent harassment by Parents.†She refers to, “…the sum of $3,209.54 for the incurred cost of responding to the allegations and actions of the Parents set out in paragraphs 102 through 109…â€

Paragraphs 102-109 clearly demonstrate the appropriate actions of parents, whose child is continuing to be denied a Free Appropriate Public Education! The Due Process Hearing Request, of January 12, 2011, and the Parent’s willingness to attend, work diligently, and help draft an agreement – during a day-long Mediation session – demonstrates parents who actively engage in collaborating with the School District to attain their child’s rights to a Free Appropriate Public Education. It also demonstrates parents who follow their Procedural Safeguards, diligently.

------------------------------------------------------------------

At our son’s recent independent (at parent expense) neuropsychological evaluation (2-15-11) he was diagnosed with:

Cognitive Disorder, Not Otherwise Specified (Alcohol Related Neurodevelopmental Disorder)

Attention Deficit Hyperactivity Disorder, Not Otherwise Specified

Adjustment Disorder, with Anxiety and Depression, Chronic

Expressive Language Disorder (by history)

History of prenatal exposure to alcohol and other controlled substances

Central Auditory Processing Disorder (by history)

Probable static encephalopathy

Academic Struggles. Social Struggles

------------------------------------------------------------------

It is well known, that children with Fetal Alcohol and Drug Exposure, who have been Neglected, etc… have poor school outcomes.

Jodi Siegal, of Southern Legal Counsel, pointed out the following, re: children with similar backgrounds to our son:

Children and youth who are, or have been in out-of-home care face extra challenges: more than 60% of

children or youth in care drop out of school before graduation, a rate that is twice as high as the dropout

rate for all students.

Children and youth who are, or have been in out of home care are two or three times more likely than other

students to have disabilities that affect their ability to learn. 1

Numerous studies have confirmed that foster children perform significantly worse in school than do

children in the general population. The educational deficits of foster children are reflected in higher rates of

grade retention; lower scores on standardized tests; and higher absenteeism, tardiness, truancy and

dropout rates. The poor academic performance of these children affects their lives after foster care and

contributes to higher than average rates of homelessness, criminality, drug abuse, and unemployment

among foster care "graduates."

What are the causes of such undesirable educational outcomes? First, most of the 500,000 children in foster

care bear the scars of physical and emotional trauma, such as prenatal exposure to alcohol, tobacco and

other drugs; parental abuse, neglect and abandonment; exposure to violence in their homes and

communities; separation from their birth families; and frequent changes in foster placement. These

experiences place children at great risk of developing physical, emotional and behavioral disorders that

interfere with learning. End of quote from Jodi Siegal

We are mandated, under IDEA, to fight for our son’s services. There would have been no due process hearings if our son had been receiving the educational services, that he just recently had added to his IEP. The fact that our son is receiving services now (due to vigorous advocacy by the parents) – is proof that he was denied educational services for years. L.R. never mastered his Language Goals, on his October 2010 IEP, and he no longer qualifies in the category of Language Impairment. The Boise School District’s attorney prevented our son from receiving educational services for a number of years.

If it were legal to sue for Educational Neglect, we would sue the Boise School District for malicious intent to cause harm. When our son is 18 years old he has a right to personally sue school staff, and their attorney, for the actions they committed against him obtaining a free appropriate public education. The damage, which Elaine Eberharter-Maki has caused, in delaying our son’s educational services, may not be reversible.

We are ready to go forward to fight the lawsuit against us, in an open court, with a jury. We have 8-9 more years that our son is entitled to FAPE. We will not sit back and let the Boise School District destroy our son. We can demonstrate the lengthy (over 4 years) fight to obtain, for our son, a Free Appropriate Public Education.

None of our Due Process Hearing Requests, or IEP Team Meeting Requests, etc… have been frivolous. All of these requests were necessary, to obtain the educational services our son needs. We are fighting for our son’s life, and Elaine Eberharter-Maki is racking up legal fees. Sadly, the chances of a non-attorney parent obtaining what they have requested for their child (because of the child’s unique educational needs), in a due process hearing, in the state of Idaho, is almost zero.

We ask you to dismiss the Boise School District’s lawsuit, as it is groundless and retaliatory.

Phyllis Reff Dr. C. Reff

March 31, 2011

[Guest guest]

I wish you the best of luck. When my son entered school in Fla. the only goal on

his IEP was that he would learn to say yes and no appropriately. After a

special master's hearing and threats from Mr. Marko the school board attorney, I

finally gave up and home schooled my child for almost 7 years. Then we put him

in private special needs schools for 4 years and finally into a private religous

school. He graduated second in his class in a regular classroom. We private

paid for speech therapy, and psycho therapy, and play therapy during that time.

Unfortunately until my son went to the special needs school and I met other

parents with kids on the spectrum, I didn't know about APD services, Social

Security benefits, etc., so my kid didn't get on the APD list soon enough to be

considered for benefits before he is in his eighties, and he just got on Social

Security at age 22. I will pray that you are successful and your child will get

the best services possible. Unfortunately Idaho was not one of the states

listed on a recent survey, as providing good services to people who are DD.

Regards,

Glenda.

>

> My husband and I are being sued for doing the right thing: Advocating for

> our son who has disabilities...

>

> Please don't give up on your children!

>

>

>

>

> ____________________________________

>

>

>

> ____________________________________

>

>

> UNITED STATES DISTRICT COURT

> for the

> District of Idaho

> Independent School District of Boise City No. 1 )

> Plaintiff )

> )

> )

> v. )

> Civil Action No.

> )

> Reff and Phyllis Reff, husband and wife )

> 11-096-CV CWD

> Defendant )

> A lawsuit has been filed against us. The following is our response:

> We, Phyllis Reff and Reff, are the parents of Luke Reff, and have

> the responsibility, mandated by Congress, to assist our son in obtaining a

> Free Appropriate Public Education.

> Luke joined our family, as a foster (to adopt) child, in early June 2006

> and we enrolled him in the Boise School District during August of that same

> year. He was already a classified student, having received Special

> Education, while living in Oregon.

> We have attended IEP meetings for our son, as required under IDEA 2004.

> We disagreed with the IEP’s drafted and finalized by school personnel, with

> no input from us. We attended the IEP meetings, and most often that is

> the first time we see the school drafted IEP -- when copies are provided to

> us. IEP’s are finalized by school staff, over our objections. We are

> instructed by school personnel to write our concerns and submit them to the

> school, for more IEP meetings, where school personnel consider and disregard

> what we have written. We have independent evaluations and therapy, provided

to

> our son; we have provided the evaluations and reports to the school

> personnel. We have always signed Releases, so that school personnel could

have

> access to outside of school professional providers. Rarely has school

> personnel contacted an outside of school provider, to ask questions about our

> son’s educational needs.

> Our concerns are based on the evaluations and testing of doctors and

> therapists, who have evaluated and provided therapy to our son. We have never

> asked for anything that is unreasonable, or frivolous. All that we have asked

> for, is within the law and regulations of IDEA 2004, that our son is

> entitled to have, in order to give him a free appropriate public education.

It

> is the school district personnel who do the delaying and denying, which

> cause the need for many IEP meetings -- not us. We don’t get paid to attend

> IEP meetings; school personnel do.

> We asked for due processes hearings only after doing IEP meetings, or

> Facilitated IEP team meetings, where again our son’s educational needs are

> disregarded because our concerns are based on what private doctors and

> therapists declare are our son’s needs. It is well established that

parents don’

> t win due process hearings in Idaho, and you only have to look at the

> published decisions to know that. School personnel claim that only what they

> see in school, is addressed, and as long as they don’t see what the private

> doctors and therapists see, and what we see, they won’t provide educational

> services to our son to address those needs. We have never put in a request

> for a due process hearing that was not justified by testing and

> evaluations, which identify our son’s educational needs. All our requests

for due

> process hearings are based on documentation of our son’s difficulties in

> school, and what has been identified and diagnosed by doctors and therapists.

> Now, after 4 and a half years, in the Boise School District, school

> personnel are admitting that we were right, and they are now just starting to

> address the issues we have brought up in the many IEP meetings, facilitated

IEP

> meetings, and due process hearings. We did as we as parents are required to

> do; we are following our procedural safeguards to obtain, for our son,

> what his testing, evaluations and educational performance (in school) shows

he

> needs.

> At this time, with no academic goals and services to address his low

> academics, our son’s final exam scores are 5 “Fâ€s and 2 “Dâ€s, which

places him

> at risk of failing the 7th grade. Now, school personnel are discussing

> academic goals -- after 4 and a half years of providing little to nothing

> in academics, and only because his grades are, undeniably, plummeting, and

> they don’t know how to cover it up like school personnel did, in previous

> school years.

> The Boise School District did not prevail in the Federal Court cases.

> Federal District Court did not rule on our complaints. The rulings state

that

> we have to hire an attorney to represent our children, and pay filing fees,

> or request informa pauperis status (by disclosing our entire family’s

> income, instead of basing it purely on our child’s income). We don’t have

the

> money, so our children’s cases have been dismissed. This lawsuit is

> harassment to us, because Elaine Eberharter-Maki knows our Federal court

cases

> have been dismissed because we cannot afford to hire an attorney to represent

> our children and pay the court fees. We went to Federal court because it

> is an act of futility doing a due process hearing, in Idaho, where the same

> three or four hearing officers who don’t rule in favor of any parent, hears

> and/or denies due process hearings. Many decisions are done in

> undocumented pre-hearings, by motions done by the school lawyer, and ruled on

by the

> hearing officer. Motion practice, done by the school’s lawyer, often

> takes away our right to present our complaint (in order to advocate for our

> child’s educational needs) to the Hearing Officer. Frequently, the Hearing

> Officer will grant the District’s motions (which are not in Parent’s

> Procedural Safeguards), i.e. Motion for Summary Judgment, leaving us with the

> choice of appealing to Federal Court, or abruptly discontinuing our pursuit

of

> FAPE, for our son.

> We have never done anything to delay the Special Education/IEP process,

> and/or increase the cost of legal fees, for the school district. All we

> have done is follow our procedural safeguards, in response to school

> personnel’s position that our son is not entitled to Special Education

services.

> We are not asking for something unreasonable, or without any foundation.

> In fact, we have provided documentation, when we disagreed with our son’s

> IEP’s Present Levels of Academic Achievement and Functional Performance.

An

> example of what we have been forced to fight for our son is: His IEP PLOP

> did not include Baselines to address his Unique Educational Needs, so

> that he can receive Specially Designed Instruction, in order to progress in

> the General Education Curriculum. Our son needs Baselines in the Following

> Educational Areas: MATH; READING; WRITTEN EXPRESSION/ENGLISH;

> HISTORY/GEOGRAPHY; SCIENCE; SOCIAL COMMUNICATION; SOCIAL/EMOTIONAL; EXECUTIVE

> FUNCTIONING, ESPECIALLY MEMORY; EXECUTIVE FUNCTIONING AS A SINGULAR COMPLEX

> PROCESS; COUNSELING/ATTACHMENT; HANDWRITING/HANDWRITING ALTERNATIVES;

NONVERBAL

> LEARNING DISABILITY. The results of not having the baselines in his IEP, for

> the school year 2010-2011, has resulted in the most current final exam

> grades showing his present performance on academics is 5 “Fâ€s and 2

“Dâ€s,

> because nothing is being done to address the fact that our son is not on

> grade level, in all of his subjects in school, and does not have the

knowledge

> and academic foundation to legitimately pass all his classes. There are no

> goals to address the areas identified in the independent evaluations and

> testing, which identifies our son’s academic performance, and/or grade

> equivalent levels.

> This lawsuit is a retaliation by Boise School District Personnel, and

> their lawyer, Elaine Eberharter-Maki, because we won’t give up on our son

and

> just let him fail and drop out of school, as most children with his

> identified and diagnosed disabilities do. We believe this lawsuit is a

Strategic

> Lawsuit Against Public Participation. This is a SLAPP suit, which is a

> retaliatory lawsuit intended to silence, intimidate, and punish us for

> following the procedural safeguards of IDEA 2004. In order for Elaine

> Eberharter-Maki to procure her legal fees she must show our actions were

frivolous,

> and the proof our son is at risk of failing the 7th grade, and school

> personnel are now admitting he needs academic goals -- clearly shows we were

not

> wrong. This lawsuit shows Elaine Eberharter-Maki is a good lawyer, at

> manipulating the law, to prevent our son from receiving a Free Appropriate

Public

> Education for the past four and a half years, and with her success in

> delaying and denying services, to our son, she may have destroyed his future

> chances of ever obtaining a high school diploma.

> We expect this lawsuit to be dismissed, because there is no merit to the

> school complaints, other than they admit that they disregard what we, as

> parents, state are the concerns and educational needs of our son. They

resent

> parents who stand up for their children’s rights, under IDEA 2004. We are

> not like the parents on August 2, 1992, United States District Court Judge

> Gerard l. Goettel out of the White Plains, NY office of the Southern

> District of New York stated in his decision of:

> Jack Jr., Jean, and Jack III Straube, vs. Florida Union Free School

> District, Sobol, Neveldine, Commissioners, NYS Educational

> Department, 91 Civ. 1359(GLG) OPINION 92,0021WP “In addition, Jack’s

parents must

> share some responsibility for the shortcomings in his education. They were

> cognizant of Jack’s lack of progress and yet acquiesced in the same type of

> IEP year after year despite being quite aware of their due process rights.

> The structure of the IDEA presumes that a child’s parents or guardians

> will arduously seek to ensure that the child receives all of the benefits to

> which they are entitled by the Act. Rowley, 458 U.S. at 209. The Straubes

> did not demonstrate this ardor and as a result it become very easy for the

> school district to provide Jack with what appears to be inappropriate and

> minimal services.â€

> We are the parents who are doing Vigorous Advocacy.

> Vigorous advocacy is an anticipated by-product of a policy encouraging

> parental involvement. See Rowley, 458 U.S. at 209 (discussing Congress’

intent

> to protect children through parental involvement and commenting that “

> parents . . . will not lack ardor in seeking to ensure that handicapped

> children receive all of the benefits to which they are entitled by the

Actâ€).

> We are complying with IDEA 2004 Procedural Safeguards; defending our son’s

> rights to a Free Appropriate Public Education; we are being Retaliated

> against, in violation of our ADA rights.

> September 8, 2003, the U.S. Ct. of Appeals for the 11th Cir. ruled in

> Shotz v. City of Plantation, Docket No. 00-06894-CV-BSS “The

anti-retaliation

> provision states that “[n]o person shall discriminate against any

> individual because such individual has opposed any act or practice made

unlawful by

> this chapter or because such individual made a charge, testified, assisted,

> or participated in any manner in an investigation, proceeding, or hearing.â€

> “4 A related provision also makes it “unlawful to coerce, intimidate,

> threaten, or interfere with any individual in the exercise or enjoyment of,

> or on account of his or her having exercised or enjoyed, or on account of

> his or her having aided or encouraged any other individual in the exercise or

> enjoyment of, any right granted or protected by this chapter.†42 U.S.C. §

> 12203(.â€

> This lawsuit is just another fee generating activity Elaine

> Eberharter-Maki does, as she assists her client, the Boise School District,

in their

> successful efforts -- so far-- to delay, deny and destroy our son’s

chances

> of ever obtaining a high school diploma.

> We ask you to dismiss this lawsuit, as it is groundless and retaliatory.

>

>

> *All of the above was submitted in response to the first lawsuit filed

> against and Phyllis Reff, in regards to our son, L.R. It is included

> in the response to the current lawsuit, filed against L.R.’s parents,

> because most of the first lawsuit is repeated in the second/current lawsuit.

> Since the current lawsuit, dated March 11, 2011, is based on what is in

> paragraph 129: “…the incurred cost of responding to the allegations and

> actions of the Parents set out in paragraph 102 through 109….,†We will

focus

> our response on that section of the lawsuit.

> In the state of Idaho the hearing officers are biased adjudicators

> (Carlson, Kumm, Price, and Litteneker), who dismiss our son’s due process

hearings

> (and our daughters’s), violating his rights under IDEA.

> Through carefully orchestrated legal tactics, Elaine Eberharter-Maki

> (attorney for the Boise School District) has successfully denied our son

> educational services, for years. Prior to our son’s February 25, 2011,

current,

> IEP, he had 2 annual IEP’s with only Language Goals.

> As of the creation of his new IEP, dated February 25, 2011, our son is now

> Eligible under the Multiple Disabilities Category (encompassing the

> Specific Learning Disability Category and the Health Impairment Category),

> instead of the Language Eligibility Category. In fact, he is no longer

eligible

> under the Language Category, despite not mastering his 4 language goals on

> the October 2010 IEP. On the current IEP, our son has goals in EXECUTIVE

> FUNCTIONING, SOCIAL/COMMUNICATION/EMOTIONAL, WRITTEN LANGUAGE (ACADEMIC),

> MATH CALCULATION (ACADEMIC). Among the many accommodations are ENCOURAGE

> USE OF FM SYSTEM TO INCREASE THE INSTRUCTIONAL SOUND IN RELATION TO

> BACKGROUND NOISE, AND COPIES OF TEXTBOOKS WILL BE PROVIDED FOR HOME USE. As

> parents, we are glad that the Boise School District is finally (years have

been

> wasted, ignoring our son’s diverse educational needs) beginning to address

> some of our son’s various educational needs. However, as detailed in a

> packed two page Written Notice, dated 2-25-11, the Boise School District

> Considered but Rejected many requests, from the parents, for needed services.

> -----------------------------------------------------------------------

> Our son is diagnosed with the following, according to the IEP Cover page,

> beginning with his October 2009 IEP, with the same diagnoses on his

> 10-27-10 IEP (many diagnoses were actually made prior to the 2009 IEP)

> (Eligibility Category is Language Impairment, plus a Secondary Eligiblity

Category of

> Health Impairment):

> Attention Deficit Disorder-Combined Type

> Learning Deficit, Specific

> Reactive Attachment Disorder of Early Childhood

> Anxiety Disorder NOS

> Pervasive Developmental Disorder NOS

> Nonverbal Learning Disability NOS

> Oppositional Defiant Disorder

> Developmental Learning Problem (by history)

> Fine Motor Skills Limitations (by history)

> Adjustment Disorder (by history)

> Expressive Language Disorder

> Central Auditory Processing Disorder

> Acquired Brain Injury Secondary to Fetal Alcohol and Drug Exposure

> Looking at the IEP Goals, on our son’s 10-27-10 IEP, his 4 Goals consisted

> of only Language Goals. We are confused. Where are the Present Levels

> of Performance Baselines, and the accompanying Goals, Accommodations,

> Services, etc… for all the Non-Language Disorders? That’s right; there

are none.

> Our son was continuing to be harmed by the Boise School District. On

> the 10-27-10 IEP, there were no goals addressing our son’s Executive

> Functioning Deficits (from his ADHD, Brain Injury, etc…). On the 10-27-10

IEP,

> there were no goals addressing our son’s Social/Emotional Deficits (from his

> Pervasive Developmental Disorder, Reactive Attachment Disorder, Nonverbal

> Learning Disability, Brain Injury, etc…). On the 10-27-10 IEP, there were

no

> goals addressing our son’s Academic Deficits (based on Pre and Post Summer

> Testing, which showed major Regression, and way below grade level

> performance on Huntington Learning Center Academic Testing †" paid for by

the

> parents, since the Boise School District had refused to do Academic Testing

> prior to the School Year 2010-11, despite Parents expressing Academic

> Concerns.) (from his Learning Deficit, Nonverbal Learning Disability, Central

> Auditory Processing Disorder, Brain Injury, etc…). On the 10-27-10 IEP, why

is

> there no goal or accommodation to get our son to use his FM System, which is

> a necessity to address his Central Auditory Processing Disorder. Why is

> there no accommodation to provide our son with a home based copy of his

> school textbooks?

> In paragraph 129, of the March 11, 2011 lawsuit we are responding to, the

> District’s attorney states, “These attorney fees and costs incurred by the

> School District were necessary and reasonable expenditures caused by the

> persistent harassment by Parents.†She refers to, “…the sum of

$3,209.54

> for the incurred cost of responding to the allegations and actions of the

> Parents set out in paragraphs 102 through 109…â€

> Paragraphs 102-109 clearly demonstrate the appropriate actions of parents,

> whose child is continuing to be denied a Free Appropriate Public

> Education! The Due Process Hearing Request, of January 12, 2011, and the

Parent’s

> willingness to attend, work diligently, and help draft an agreement †"

during

> a day-long Mediation session †" demonstrates parents who actively engage in

> collaborating with the School District to attain their child’s rights to a

> Free Appropriate Public Education. It also demonstrates parents who

> follow their Procedural Safeguards, diligently.

> ------------------------------------------------------------------

> At our son’s recent independent (at parent expense) neuropsychological

> evaluation (2-15-11) he was diagnosed with:

> Cognitive Disorder, Not Otherwise Specified (Alcohol Related

> Neurodevelopmental Disorder)

> Attention Deficit Hyperactivity Disorder, Not Otherwise Specified

> Adjustment Disorder, with Anxiety and Depression, Chronic

> Expressive Language Disorder (by history)

> History of prenatal exposure to alcohol and other controlled substances

> Central Auditory Processing Disorder (by history)

> Probable static encephalopathy

> Academic Struggles. Social Struggles

> ------------------------------------------------------------------

> It is well known, that children with Fetal Alcohol and Drug Exposure, who

> have been Neglected, etc… have poor school outcomes.

> Jodi Siegal, of Southern Legal Counsel, pointed out the following, re:

> children with similar backgrounds to our son:

> Children and youth who are, or have been in out-of-home care face extra

> challenges: more than 60% of

> children or youth in care drop out of school before graduation, a rate

> that is twice as high as the dropout

> rate for all students.

> Children and youth who are, or have been in out of home care are two or

> three times more likely than other

> students to have disabilities that affect their ability to learn. 1

> Numerous studies have confirmed that foster children perform significantly

> worse in school than do

> children in the general population. The educational deficits of foster

> children are reflected in higher rates of

> grade retention; lower scores on standardized tests; and higher

> absenteeism, tardiness, truancy and

> dropout rates. The poor academic performance of these children affects

> their lives after foster care and

> contributes to higher than average rates of homelessness, criminality,

> drug abuse, and unemployment

> among foster care " graduates. "

> What are the causes of such undesirable educational outcomes? First, most

> of the 500,000 children in foster

> care bear the scars of physical and emotional trauma, such as prenatal

> exposure to alcohol, tobacco and

> other drugs; parental abuse, neglect and abandonment; exposure to violence

> in their homes and

> communities; separation from their birth families; and frequent changes in

> foster placement. These

> experiences place children at great risk of developing physical, emotional

> and behavioral disorders that

> interfere with learning. End of quote from Jodi Siegal

> We are mandated, under IDEA, to fight for our son’s services. There would

> have been no due process hearings if our son had been receiving the

> educational services, that he just recently had added to his IEP. The

fact

> that our son is receiving services now (due to vigorous advocacy by the

> parents) †" is proof that he was denied educational services for years. L.R.

> never mastered his Language Goals, on his October 2010 IEP, and he no longer

> qualifies in the category of Language Impairment. The Boise School

District’

> s attorney prevented our son from receiving educational services for a

> number of years.

> If it were legal to sue for Educational Neglect, we would sue the Boise

> School District for malicious intent to cause harm. When our son is 18 years

> old he has a right to personally sue school staff, and their attorney, for

> the actions they committed against him obtaining a free appropriate public

> education. The damage, which Elaine Eberharter-Maki has caused, in

> delaying our son’s educational services, may not be reversible.

> We are ready to go forward to fight the lawsuit against us, in an open

> court, with a jury. We have 8-9 more years that our son is entitled to FAPE.

> We will not sit back and let the Boise School District destroy our son.

> We can demonstrate the lengthy (over 4 years) fight to obtain, for our son,

> a Free Appropriate Public Education.

> None of our Due Process Hearing Requests, or IEP Team Meeting Requests, etc

> … have been frivolous. All of these requests were necessary, to obtain

> the educational services our son needs. We are fighting for our son’s

> life, and Elaine Eberharter-Maki is racking up legal fees. Sadly, the chances

> of a non-attorney parent obtaining what they have requested for their child

> (because of the child’s unique educational needs), in a due process

> hearing, in the state of Idaho, is almost zero.

> We ask you to dismiss the Boise School District’s lawsuit, as it is

> groundless and retaliatory.

> Phyllis Reff Dr. C.

> Reff

> March 31, 2011

>

[Guest guest]

My thoughts and prayers go out to you and your family. This is why, for over fifteen years, I have never wavered in my fight for a free appropriate education for my son. I am his only voice as you are the strong voices for your son. I am uplifted by your strength and stamina over these past four years. I will remember your words and fervor every time I enter yet another meeting for son. As an educator myself, I am sometimes appalled by the stories that I hear and the things that I have seen. I pray that this unwarranted case is dismissed and that the school system of Boise comes to terms with the mistakes that have taken place, on their part. Yes, the past four years are lost.....but your son has the future and for that reason there is hope.

Lesli

Parents are just seeking a Free Appropriate Public Education

My husband and I are being sued for doing the right thing: Advocating for our son who has disabilities...

Please don't give up on your children!

UNITED STATES DISTRICT COURT

for the

District of Idaho

Independent School District of Boise City No. 1 )

Plaintiff )

)

)

v. ) Civil Action No.

)

Reff and Phyllis Reff, husband and wife ) 11-096-CV CWD

Defendant )

A lawsuit has been filed against us. The following is our response:

We, Phyllis Reff and Reff, are the parents of Luke Reff, and have the responsibility, mandated by Congress, to assist our son in obtaining a Free Appropriate Public Education.

Luke joined our family, as a foster (to adopt) child, in early June 2006 and we enrolled him in the Boise School District during August of that same year. He was already a classified student, having received Special Education, while living in Oregon.

We have attended IEP meetings for our son, as required under IDEA 2004. We disagreed with the IEP’s drafted and finalized by school personnel, with no input from us. We attended the IEP meetings, and most often that is the first time we see the school drafted IEP -- when copies are provided to us. IEP’s are finalized by school staff, over our objections. We are instructed by school personnel to write our concerns and submit them to the school, for more IEP meetings, where school personnel consider and disregard what we have written. We have independent evaluations and therapy, provided to our son; we have provided the evaluations and reports to the school personnel. We have always signed Releases, so that school personnel could have access to outside of school professional providers. Rarely has school personnel contacted an outside of school provider, to ask questions about our son’s educational needs.

Our concerns are based on the evaluations and testing of doctors and therapists, who have evaluated and provided therapy to our son. We have never asked for anything that is unreasonable, or frivolous. All that we have asked for, is within the law and regulations of IDEA 2004, that our son is entitled to have, in order to give him a free appropriate public education. It is the school district personnel who do the delaying and denying, which cause the need for many IEP meetings -- not us. We don’t get paid to attend IEP meetings; school personnel do.

We asked for due processes hearings only after doing IEP meetings, or Facilitated IEP team meetings, where again our son’s educational needs are disregarded because our concerns are based on what private doctors and therapists declare are our son’s needs. It is well established that parents don’t win due process hearings in Idaho, and you only have to look at the published decisions to know that. School personnel claim that only what they see in school, is addressed, and as long as they don’t see what the private doctors and therapists see, and what we see, they won’t provide educational services to our son to address those needs. We have never put in a request for a due process hearing that was not justified by testing and evaluations, which identify our son’s educational needs. All our requests for due process hearings are based on documentation of our son’s difficulties in school, and what has been identified and diagnosed by doctors and therapists. Now, after 4 and a half years, in the Boise School District, school personnel are admitting that we were right, and they are now just starting to address the issues we have brought up in the many IEP meetings, facilitated IEP meetings, and due process hearings. We did as we as parents are required to do; we are following our procedural safeguards to obtain, for our son, what his testing, evaluations and educational performance (in school) shows he needs.

At this time, with no academic goals and services to address his low academics, our son’s final exam scores are 5 “Fâ€s and 2 “Dâ€s, which places him at risk of failing the 7th grade. Now, school personnel are discussing academic goals -- after 4 and a half years of providing little to nothing in academics, and only because his grades are, undeniably, plummeting, and they don’t know how to cover it up like school personnel did, in previous school years.

The Boise School District did not prevail in the Federal Court cases. Federal District Court did not rule on our complaints. The rulings state that we have to hire an attorney to represent our children, and pay filing fees, or request informa pauperis status (by disclosing our entire family’s income, instead of basing it purely on our child’s income). We don’t have the money, so our children’s cases have been dismissed. This lawsuit is harassment to us, because Elaine Eberharter-Maki knows our Federal court cases have been dismissed because we cannot afford to hire an attorney to represent our children and pay the court fees. We went to Federal court because it is an act of futility doing a due process hearing, in Idaho, where the same three or four hearing officers who don’t rule in favor of any parent, hears and/or denies due process hearings. Many decisions are done in undocumented pre-hearings, by motions done by the school lawyer, and ruled on by the hearing officer. Motion practice, done by the school’s lawyer, often takes away our right to present our complaint (in order to advocate for our child’s educational needs) to the Hearing Officer. Frequently, the Hearing Officer will grant the District’s motions (which are not in Parent’s Procedural Safeguards), i.e. Motion for Summary Judgment, leaving us with the choice of appealing to Federal Court, or abruptly discontinuing our pursuit of FAPE, for our son.

We have never done anything to delay the Special Education/IEP process, and/or increase the cost of legal fees, for the school district. All we have done is follow our procedural safeguards, in response to school personnel’s position that our son is not entitled to Special Education services. We are not asking for something unreasonable, or without any foundation. In fact, we have provided documentation, when we disagreed with our son’s IEP’s Present Levels of Academic Achievement and Functional Performance. An example of what we have been forced to fight for our son is: His IEP PLOP did not include Baselines to address his Unique Educational Needs, so that he can receive Specially Designed Instruction, in order to progress in the General Education Curriculum. Our son needs Baselines in the Following Educational Areas: MATH; READING; WRITTEN EXPRESSION/ENGLISH; HISTORY/GEOGRAPHY; SCIENCE; SOCIAL COMMUNICATION; SOCIAL/EMOTIONAL; EXECUTIVE FUNCTIONING, ESPECIALLY MEMORY; EXECUTIVE FUNCTIONING AS A SINGULAR COMPLEX PROCESS; COUNSELING/ATTACHMENT; HANDWRITING/HANDWRITING ALTERNATIVES; NONVERBAL LEARNING DISABILITY. The results of not having the baselines in his IEP, for the school year 2010-2011, has resulted in the most current final exam grades showing his present performance on academics is 5 “Fâ€s and 2 “Dâ€s, because nothing is being done to address the fact that our son is not on grade level, in all of his subjects in school, and does not have the knowledge and academic foundation to legitimately pass all his classes. There are no goals to address the areas identified in the independent evaluations and testing, which identifies our son’s academic performance, and/or grade equivalent levels.

This lawsuit is a retaliation by Boise School District Personnel, and their lawyer, Elaine Eberharter-Maki, because we won’t give up on our son and just let him fail and drop out of school, as most children with his identified and diagnosed disabilities do. We believe this lawsuit is a Strategic Lawsuit Against Public Participation. This is a SLAPP suit, which is a retaliatory lawsuit intended to silence, intimidate, and punish us for following the procedural safeguards of IDEA 2004. In order for Elaine Eberharter-Maki to procure her legal fees she must show our actions were frivolous, and the proof our son is at risk of failing the 7th grade, and school personnel are now admitting he needs academic goals -- clearly shows we were not wrong. This lawsuit shows Elaine Eberharter-Maki is a good lawyer, at manipulating the law, to prevent our son from receiving a Free Appropriate Public Education for the past four and a half years, and with her success in delaying and denying services, to our son, she may have destroyed his future chances of ever obtaining a high school diploma.

We expect this lawsuit to be dismissed, because there is no merit to the school complaints, other than they admit that they disregard what we, as parents, state are the concerns and educational needs of our son. They resent parents who stand up for their children’s rights, under IDEA 2004. We are not like the parents on August 2, 1992, United States District Court Judge Gerard l. Goettel out of the White Plains, NY office of the Southern District of New York stated in his decision of:

Jack Jr., Jean, and Jack III Straube, vs. Florida Union Free School District, Sobol, Neveldine, Commissioners, NYS Educational Department, 91 Civ. 1359(GLG) OPINION 92,0021WP “In addition, Jack’s parents must share some responsibility for the shortcomings in his education. They were cognizant of Jack’s lack of progress and yet acquiesced in the same type of IEP year after year despite being quite aware of their due process rights. The structure of the IDEA presumes that a child’s parents or guardians will arduously seek to ensure that the child receives all of the benefits to which they are entitled by the Act. Rowley, 458 U.S. at 209. The Straubes did not demonstrate this ardor and as a result it become very easy for the school district to provide Jack with what appears to be inappropriate and minimal services.â€

We are the parents who are doing Vigorous Advocacy.

Vigorous advocacy is an anticipated by-product of a policy encouraging parental involvement. See Rowley, 458 U.S. at 209 (discussing Congress’ intent to protect children through parental involvement and commenting that “parents . . . will not lack ardor in seeking to ensure that handicapped children receive all of the benefits to which they are entitled by the Actâ€).

We are complying with IDEA 2004 Procedural Safeguards; defending our son’s rights to a Free Appropriate Public Education; we are being Retaliated against, in violation of our ADA rights.

September 8, 2003, the U.S. Ct. of Appeals for the 11th Cir. ruled in Shotz v. City of Plantation, Docket No. 00-06894-CV-BSS “The anti-retaliation provision states that “[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.†“4 A related provision also makes it “unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter.†42 U.S.C. § 12203(.â€

This lawsuit is just another fee generating activity Elaine Eberharter-Maki does, as she assists her client, the Boise School District, in their successful efforts -- so far-- to delay, deny and destroy our son’s chances of ever obtaining a high school diploma.

We ask you to dismiss this lawsuit, as it is groundless and retaliatory.

*All of the above was submitted in response to the first lawsuit filed against and Phyllis Reff, in regards to our son, L.R. It is included in the response to the current lawsuit, filed against L.R.’s parents, because most of the first lawsuit is repeated in the second/current lawsuit. Since the current lawsuit, dated March 11, 2011, is based on what is in paragraph 129: “…the incurred cost of responding to the allegations and actions of the Parents set out in paragraph 102 through 109….,†We will focus our response on that section of the lawsuit.

In the state of Idaho the hearing officers are biased adjudicators (Carlson, Kumm, Price, and Litteneker), who dismiss our son’s due process hearings (and our daughters’s), violating his rights under IDEA.

Through carefully orchestrated legal tactics, Elaine Eberharter-Maki (attorney for the Boise School District) has successfully denied our son educational services, for years. Prior to our son’s February 25, 2011, current, IEP, he had 2 annual IEP’s with only Language Goals.

As of the creation of his new IEP, dated February 25, 2011, our son is now Eligible under the Multiple Disabilities Category (encompassing the Specific Learning Disability Category and the Health Impairment Category), instead of the Language Eligibility Category. In fact, he is no longer eligible under the Language Category, despite not mastering his 4 language goals on the October 2010 IEP. On the current IEP, our son has goals in EXECUTIVE FUNCTIONING, SOCIAL/COMMUNICATION/EMOTIONAL, WRITTEN LANGUAGE (ACADEMIC), MATH CALCULATION (ACADEMIC). Among the many accommodations are ENCOURAGE USE OF FM SYSTEM TO INCREASE THE INSTRUCTIONAL SOUND IN RELATION TO BACKGROUND NOISE, AND COPIES OF TEXTBOOKS WILL BE PROVIDED FOR HOME USE. As parents, we are glad that the Boise School District is finally (years have been wasted, ignoring our son’s diverse educational needs) beginning to address some of our son’s various educational needs. However, as detailed in a packed two page Written Notice, dated 2-25-11, the Boise School District Considered but Rejected many requests, from the parents, for needed services.

-----------------------------------------------------------------------

Our son is diagnosed with the following, according to the IEP Cover page, beginning with his October 2009 IEP, with the same diagnoses on his 10-27-10 IEP (many diagnoses were actually made prior to the 2009 IEP) (Eligibility Category is Language Impairment, plus a Secondary Eligiblity Category of Health Impairment):

Attention Deficit Disorder-Combined Type

Learning Deficit, Specific

Reactive Attachment Disorder of Early Childhood

Anxiety Disorder NOS

Pervasive Developmental Disorder NOS

Nonverbal Learning Disability NOS

Oppositional Defiant Disorder

Developmental Learning Problem (by history)

Fine Motor Skills Limitations (by history)

Adjustment Disorder (by history)

Expressive Language Disorder

Central Auditory Processing Disorder

Acquired Brain Injury Secondary to Fetal Alcohol and Drug Exposure

Looking at the IEP Goals, on our son’s 10-27-10 IEP, his 4 Goals consisted of only Language Goals. We are confused. Where are the Present Levels of Performance Baselines, and the accompanying Goals, Accommodations, Services, etc… for all the Non-Language Disorders? That’s right; there are none. Our son was continuing to be harmed by the Boise School District. On the 10-27-10 IEP, there were no goals addressing our son’s Executive Functioning Deficits (from his ADHD, Brain Injury, etc…). On the 10-27-10 IEP, there were no goals addressing our son’s Social/Emotional Deficits (from his Pervasive Developmental Disorder, Reactive Attachment Disorder, Nonverbal Learning Disability, Brain Injury, etc…). On the 10-27-10 IEP, there were no goals addressing our son’s Academic Deficits (based on Pre and Post Summer Testing, which showed major Regression, and way below grade level performance on Huntington Learning Center Academic Testing – paid for by the parents, since the Boise School District had refused to do Academic Testing prior to the School Year 2010-11, despite Parents expressing Academic Concerns.) (from his Learning Deficit, Nonverbal Learning Disability, Central Auditory Processing Disorder, Brain Injury, etc…). On the 10-27-10 IEP, why is there no goal or accommodation to get our son to use his FM System, which is a necessity to address his Central Auditory Processing Disorder. Why is there no accommodation to provide our son with a home based copy of his school textbooks?

In paragraph 129, of the March 11, 2011 lawsuit we are responding to, the District’s attorney states, “These attorney fees and costs incurred by the School District were necessary and reasonable expenditures caused by the persistent harassment by Parents.†She refers to, “…the sum of $3,209.54 for the incurred cost of responding to the allegations and actions of the Parents set out in paragraphs 102 through 109…â€

Paragraphs 102-109 clearly demonstrate the appropriate actions of parents, whose child is continuing to be denied a Free Appropriate Public Education! The Due Process Hearing Request, of January 12, 2011, and the Parent’s willingness to attend, work diligently, and help draft an agreement – during a day-long Mediation session – demonstrates parents who actively engage in collaborating with the School District to attain their child’s rights to a Free Appropriate Public Education. It also demonstrates parents who follow their Procedural Safeguards, diligently.

------------------------------------------------------------------

At our son’s recent independent (at parent expense) neuropsychological evaluation (2-15-11) he was diagnosed with:

Cognitive Disorder, Not Otherwise Specified (Alcohol Related Neurodevelopmental Disorder)

Attention Deficit Hyperactivity Disorder, Not Otherwise Specified

Adjustment Disorder, with Anxiety and Depression, Chronic

Expressive Language Disorder (by history)

History of prenatal exposure to alcohol and other controlled substances

Central Auditory Processing Disorder (by history)

Probable static encephalopathy

Academic Struggles. Social Struggles

------------------------------------------------------------------

It is well known, that children with Fetal Alcohol and Drug Exposure, who have been Neglected, etc… have poor school outcomes.

Jodi Siegal, of Southern Legal Counsel, pointed out the following, re: children with similar backgrounds to our son:

Children and youth who are, or have been in out-of-home care face extra challenges: more than 60% of

children or youth in care drop out of school before graduation, a rate that is twice as high as the dropout

rate for all students.

Children and youth who are, or have been in out of home care are two or three times more likely than other

students to have disabilities that affect their ability to learn. 1

Numerous studies have confirmed that foster children perform significantly worse in school than do

children in the general population. The educational deficits of foster children are reflected in higher rates of

grade retention; lower scores on standardized tests; and higher absenteeism, tardiness, truancy and

dropout rates. The poor academic performance of these children affects their lives after foster care and

contributes to higher than average rates of homelessness, criminality, drug abuse, and unemployment

among foster care "graduates."

What are the causes of such undesirable educational outcomes? First, most of the 500,000 children in foster

care bear the scars of physical and emotional trauma, such as prenatal exposure to alcohol, tobacco and

other drugs; parental abuse, neglect and abandonment; exposure to violence in their homes and

communities; separation from their birth families; and frequent changes in foster placement. These

experiences place children at great risk of developing physical, emotional and behavioral disorders that

interfere with learning. End of quote from Jodi Siegal

We are mandated, under IDEA, to fight for our son’s services. There would have been no due process hearings if our son had been receiving the educational services, that he just recently had added to his IEP. The fact that our son is receiving services now (due to vigorous advocacy by the parents) – is proof that he was denied educational services for years. L.R. never mastered his Language Goals, on his October 2010 IEP, and he no longer qualifies in the category of Language Impairment. The Boise School District’s attorney prevented our son from receiving educational services for a number of years.

If it were legal to sue for Educational Neglect, we would sue the Boise School District for malicious intent to cause harm. When our son is 18 years old he has a right to personally sue school staff, and their attorney, for the actions they committed against him obtaining a free appropriate public education. The damage, which Elaine Eberharter-Maki has caused, in delaying our son’s educational services, may not be reversible.

We are ready to go forward to fight the lawsuit against us, in an open court, with a jury. We have 8-9 more years that our son is entitled to FAPE. We will not sit back and let the Boise School District destroy our son. We can demonstrate the lengthy (over 4 years) fight to obtain, for our son, a Free Appropriate Public Education.

None of our Due Process Hearing Requests, or IEP Team Meeting Requests, etc… have been frivolous. All of these requests were necessary, to obtain the educational services our son needs. We are fighting for our son’s life, and Elaine Eberharter-Maki is racking up legal fees. Sadly, the chances of a non-attorney parent obtaining what they have requested for their child (because of the child’s unique educational needs), in a due process hearing, in the state of Idaho, is almost zero.

We ask you to dismiss the Boise School District’s lawsuit, as it is groundless and retaliatory.

Phyllis Reff Dr. C. Reff

March 31, 2011

[Guest guest]

Phyliss,

Yet again, your story gives me inspiration to continue.....no matter how tired and drained I may feel. So, thank you. It's funny, but we have moved around the state of Florida quite a bit due to the lack of appropriate education for my son, as well. I can honestly say that we don't have any real roots anywhere. However, now I have my son in a program that has helped him so much......but yet I still have to fight with them to come to grips with the fact that my son can be a productive member of society, and that his behavior does not define who he really is. Unfortunately, it has become an ongoing battle along with weekly meetings, since the beginning of this school year. Still, I will prevail in what I believe is right for my son....as you do for yours.....as we are supposed to do for them.

Lesli

Parents are just seeking a Free Appropriate Public Education

My husband and I are being sued for doing the right thing: Advocating for our son who has disabilities...

Please don't give up on your children!

UNITED STATES DISTRICT COURT

for the

District of Idaho

Independent School District of Boise City No. 1 )

Plaintiff )

)

)

v. ) Civil Action No.

)

Reff and Phyllis Reff, husband and wife ) 11-096-CV CWD

Defendant )

A lawsuit has been filed against us. The following is our response:

We, Phyllis Reff and Reff, are the parents of Luke Reff, and have the responsibility, mandated by Congress, to assist our son in obtaining a Free Appropriate Public Education.

Luke joined our family, as a foster (to adopt) child, in early June 2006 and we enrolled him in the Boise School District during August of that same year. He was already a classified student, having received Special Education, while living in Oregon.

We have attended IEP meetings for our son, as required under IDEA 2004. We disagreed with the IEP’s drafted and finalized by school personnel, with no input from us. We attended the IEP meetings, and most often that is the first time we see the school drafted IEP -- when copies are provided to us. IEP’s are finalized by school staff, over our objections. We are instructed by school personnel to write our concerns and submit them to the school, for more IEP meetings, where school personnel consider and disregard what we have written. We have independent evaluations and therapy, provided to our son; we have provided the evaluations and reports to the school personnel. We have always signed Releases, so that school personnel could have access to outside of school professional providers. Rarely has school personnel contacted an outside of school provider, to ask questions about our son’s educational needs.

Our concerns are based on the evaluations and testing of doctors and therapists, who have evaluated and provided therapy to our son. We have never asked for anything that is unreasonable, or frivolous. All that we have asked for, is within the law and regulations of IDEA 2004, that our son is entitled to have, in order to give him a free appropriate public education. It is the school district personnel who do the delaying and denying, which cause the need for many IEP meetings -- not us. We don’t get paid to attend IEP meetings; school personnel do.

We asked for due processes hearings only after doing IEP meetings, or Facilitated IEP team meetings, where again our son’s educational needs are disregarded because our concerns are based on what private doctors and therapists declare are our son’s needs. It is well established that parents don’t win due process hearings in Idaho, and you only have to look at the published decisions to know that. School personnel claim that only what they see in school, is addressed, and as long as they don’t see what the private doctors and therapists see, and what we see, they won’t provide educational services to our son to address those needs. We have never put in a request for a due process hearing that was not justified by testing and evaluations, which identify our son’s educational needs. All our requests for due process hearings are based on documentation of our son’s difficulties in school, and what has been identified and diagnosed by doctors and therapists. Now, after 4 and a half years, in the Boise School District, school personnel are admitting that we were right, and they are now just starting to address the issues we have brought up in the many IEP meetings, facilitated IEP meetings, and due process hearings. We did as we as parents are required to do; we are following our procedural safeguards to obtain, for our son, what his testing, evaluations and educational performance (in school) shows he needs.

At this time, with no academic goals and services to address his low academics, our son’s final exam scores are 5 “Fâ€s and 2 “Dâ€s, which places him at risk of failing the 7th grade. Now, school personnel are discussing academic goals -- after 4 and a half years of providing little to nothing in academics, and only because his grades are, undeniably, plummeting, and they don’t know how to cover it up like school personnel did, in previous school years.

The Boise School District did not prevail in the Federal Court cases. Federal District Court did not rule on our complaints. The rulings state that we have to hire an attorney to represent our children, and pay filing fees, or request informa pauperis status (by disclosing our entire family’s income, instead of basing it purely on our child’s income). We don’t have the money, so our children’s cases have been dismissed. This lawsuit is harassment to us, because Elaine Eberharter-Maki knows our Federal court cases have been dismissed because we cannot afford to hire an attorney to represent our children and pay the court fees. We went to Federal court because it is an act of futility doing a due process hearing, in Idaho, where the same three or four hearing officers who don’t rule in favor of any parent, hears and/or denies due process hearings. Many decisions are done in undocumented pre-hearings, by motions done by the school lawyer, and ruled on by the hearing officer. Motion practice, done by the school’s lawyer, often takes away our right to present our complaint (in order to advocate for our child’s educational needs) to the Hearing Officer. Frequently, the Hearing Officer will grant the District’s motions (which are not in Parent’s Procedural Safeguards), i.e. Motion for Summary Judgment, leaving us with the choice of appealing to Federal Court, or abruptly discontinuing our pursuit of FAPE, for our son.

We have never done anything to delay the Special Education/IEP process, and/or increase the cost of legal fees, for the school district. All we have done is follow our procedural safeguards, in response to school personnel’s position that our son is not entitled to Special Education services. We are not asking for something unreasonable, or without any foundation. In fact, we have provided documentation, when we disagreed with our son’s IEP’s Present Levels of Academic Achievement and Functional Performance. An example of what we have been forced to fight for our son is: His IEP PLOP did not include Baselines to address his Unique Educational Needs, so that he can receive Specially Designed Instruction, in order to progress in the General Education Curriculum. Our son needs Baselines in the Following Educational Areas: MATH; READING; WRITTEN EXPRESSION/ENGLISH; HISTORY/GEOGRAPHY; SCIENCE; SOCIAL COMMUNICATION; SOCIAL/EMOTIONAL; EXECUTIVE FUNCTIONING, ESPECIALLY MEMORY; EXECUTIVE FUNCTIONING AS A SINGULAR COMPLEX PROCESS; COUNSELING/ATTACHMENT; HANDWRITING/HANDWRITING ALTERNATIVES; NONVERBAL LEARNING DISABILITY. The results of not having the baselines in his IEP, for the school year 2010-2011, has resulted in the most current final exam grades showing his present performance on academics is 5 “Fâ€s and 2 “Dâ€s, because nothing is being done to address the fact that our son is not on grade level, in all of his subjects in school, and does not have the knowledge and academic foundation to legitimately pass all his classes. There are no goals to address the areas identified in the independent evaluations and testing, which identifies our son’s academic performance, and/or grade equivalent levels.

This lawsuit is a retaliation by Boise School District Personnel, and their lawyer, Elaine Eberharter-Maki, because we won’t give up on our son and just let him fail and drop out of school, as most children with his identified and diagnosed disabilities do. We believe this lawsuit is a Strategic Lawsuit Against Public Participation. This is a SLAPP suit, which is a retaliatory lawsuit intended to silence, intimidate, and punish us for following the procedural safeguards of IDEA 2004. In order for Elaine Eberharter-Maki to procure her legal fees she must show our actions were frivolous, and the proof our son is at risk of failing the 7th grade, and school personnel are now admitting he needs academic goals -- clearly shows we were not wrong. This lawsuit shows Elaine Eberharter-Maki is a good lawyer, at manipulating the law, to prevent our son from receiving a Free Appropriate Public Education for the past four and a half years, and with her success in delaying and denying services, to our son, she may have destroyed his future chances of ever obtaining a high school diploma.

We expect this lawsuit to be dismissed, because there is no merit to the school complaints, other than they admit that they disregard what we, as parents, state are the concerns and educational needs of our son. They resent parents who stand up for their children’s rights, under IDEA 2004. We are not like the parents on August 2, 1992, United States District Court Judge Gerard l. Goettel out of the White Plains, NY office of the Southern District of New York stated in his decision of:

Jack Jr., Jean, and Jack III Straube, vs. Florida Union Free School District, Sobol, Neveldine, Commissioners, NYS Educational Department, 91 Civ. 1359(GLG) OPINION 92,0021WP “In addition, Jack’s parents must share some responsibility for the shortcomings in his education. They were cognizant of Jack’s lack of progress and yet acquiesced in the same type of IEP year after year despite being quite aware of their due process rights. The structure of the IDEA presumes that a child’s parents or guardians will arduously seek to ensure that the child receives all of the benefits to which they are entitled by the Act. Rowley, 458 U.S. at 209. The Straubes did not demonstrate this ardor and as a result it become very easy for the school district to provide Jack with what appears to be inappropriate and minimal services.â€

We are the parents who are doing Vigorous Advocacy.

Vigorous advocacy is an anticipated by-product of a policy encouraging parental involvement. See Rowley, 458 U.S. at 209 (discussing Congress’ intent to protect children through parental involvement and commenting that “parents . . . will not lack ardor in seeking to ensure that handicapped children receive all of the benefits to which they are entitled by the Actâ€).

We are complying with IDEA 2004 Procedural Safeguards; defending our son’s rights to a Free Appropriate Public Education; we are being Retaliated against, in violation of our ADA rights.

September 8, 2003, the U.S. Ct. of Appeals for the 11th Cir. ruled in Shotz v. City of Plantation, Docket No. 00-06894-CV-BSS “The anti-retaliation provision states that “[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.†“4 A related provision also makes it “unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter.†42 U.S.C. § 12203(.â€

This lawsuit is just another fee generating activity Elaine Eberharter-Maki does, as she assists her client, the Boise School District, in their successful efforts -- so far-- to delay, deny and destroy our son’s chances of ever obtaining a high school diploma.

We ask you to dismiss this lawsuit, as it is groundless and retaliatory.

*All of the above was submitted in response to the first lawsuit filed against and Phyllis Reff, in regards to our son, L.R. It is included in the response to the current lawsuit, filed against L.R.’s parents, because most of the first lawsuit is repeated in the second/current lawsuit. Since the current lawsuit, dated March 11, 2011, is based on what is in paragraph 129: “…the incurred cost of responding to the allegations and actions of the Parents set out in paragraph 102 through 109….,†We will focus our response on that section of the lawsuit.

In the state of Idaho the hearing officers are biased adjudicators (Carlson, Kumm, Price, and Litteneker), who dismiss our son’s due process hearings (and our daughters’s), violating his rights under IDEA.

Through carefully orchestrated legal tactics, Elaine Eberharter-Maki (attorney for the Boise School District) has successfully denied our son educational services, for years. Prior to our son’s February 25, 2011, current, IEP, he had 2 annual IEP’s with only Language Goals.

As of the creation of his new IEP, dated February 25, 2011, our son is now Eligible under the Multiple Disabilities Category (encompassing the Specific Learning Disability Category and the Health Impairment Category), instead of the Language Eligibility Category. In fact, he is no longer eligible under the Language Category, despite not mastering his 4 language goals on the October 2010 IEP. On the current IEP, our son has goals in EXECUTIVE FUNCTIONING, SOCIAL/COMMUNICATION/EMOTIONAL, WRITTEN LANGUAGE (ACADEMIC), MATH CALCULATION (ACADEMIC). Among the many accommodations are ENCOURAGE USE OF FM SYSTEM TO INCREASE THE INSTRUCTIONAL SOUND IN RELATION TO BACKGROUND NOISE, AND COPIES OF TEXTBOOKS WILL BE PROVIDED FOR HOME USE. As parents, we are glad that the Boise School District is finally (years have been wasted, ignoring our son’s diverse educational needs) beginning to address some of our son’s various educational needs. However, as detailed in a packed two page Written Notice, dated 2-25-11, the Boise School District Considered but Rejected many requests, from the parents, for needed services.

-----------------------------------------------------------------------

Our son is diagnosed with the following, according to the IEP Cover page, beginning with his October 2009 IEP, with the same diagnoses on his 10-27-10 IEP (many diagnoses were actually made prior to the 2009 IEP) (Eligibility Category is Language Impairment, plus a Secondary Eligiblity Category of Health Impairment):

Attention Deficit Disorder-Combined Type

Learning Deficit, Specific

Reactive Attachment Disorder of Early Childhood

Anxiety Disorder NOS

Pervasive Developmental Disorder NOS

Nonverbal Learning Disability NOS

Oppositional Defiant Disorder

Developmental Learning Problem (by history)

Fine Motor Skills Limitations (by history)

Adjustment Disorder (by history)

Expressive Language Disorder

Central Auditory Processing Disorder

Acquired Brain Injury Secondary to Fetal Alcohol and Drug Exposure

Looking at the IEP Goals, on our son’s 10-27-10 IEP, his 4 Goals consisted of only Language Goals. We are confused. Where are the Present Levels of Performance Baselines, and the accompanying Goals, Accommodations, Services, etc… for all the Non-Language Disorders? That’s right; there are none. Our son was continuing to be harmed by the Boise School District. On the 10-27-10 IEP, there were no goals addressing our son’s Executive Functioning Deficits (from his ADHD, Brain Injury, etc…). On the 10-27-10 IEP, there were no goals addressing our son’s Social/Emotional Deficits (from his Pervasive Developmental Disorder, Reactive Attachment Disorder, Nonverbal Learning Disability, Brain Injury, etc…). On the 10-27-10 IEP, there were no goals addressing our son’s Academic Deficits (based on Pre and Post Summer Testing, which showed major Regression, and way below grade level performance on Huntington Learning Center Academic Testing – paid for by the parents, since the Boise School District had refused to do Academic Testing prior to the School Year 2010-11, despite Parents expressing Academic Concerns.) (from his Learning Deficit, Nonverbal Learning Disability, Central Auditory Processing Disorder, Brain Injury, etc…). On the 10-27-10 IEP, why is there no goal or accommodation to get our son to use his FM System, which is a necessity to address his Central Auditory Processing Disorder. Why is there no accommodation to provide our son with a home based copy of his school textbooks?

In paragraph 129, of the March 11, 2011 lawsuit we are responding to, the District’s attorney states, “These attorney fees and costs incurred by the School District were necessary and reasonable expenditures caused by the persistent harassment by Parents.†She refers to, “…the sum of $3,209.54 for the incurred cost of responding to the allegations and actions of the Parents set out in paragraphs 102 through 109…â€

Paragraphs 102-109 clearly demonstrate the appropriate actions of parents, whose child is continuing to be denied a Free Appropriate Public Education! The Due Process Hearing Request, of January 12, 2011, and the Parent’s willingness to attend, work diligently, and help draft an agreement – during a day-long Mediation session – demonstrates parents who actively engage in collaborating with the School District to attain their child’s rights to a Free Appropriate Public Education. It also demonstrates parents who follow their Procedural Safeguards, diligently.

------------------------------------------------------------------

At our son’s recent independent (at parent expense) neuropsychological evaluation (2-15-11) he was diagnosed with:

Cognitive Disorder, Not Otherwise Specified (Alcohol Related Neurodevelopmental Disorder)

Attention Deficit Hyperactivity Disorder, Not Otherwise Specified

Adjustment Disorder, with Anxiety and Depression, Chronic

Expressive Language Disorder (by history)

History of prenatal exposure to alcohol and other controlled substances

Central Auditory Processing Disorder (by history)

Probable static encephalopathy

Academic Struggles. Social Struggles

------------------------------------------------------------------

It is well known, that children with Fetal Alcohol and Drug Exposure, who have been Neglected, etc… have poor school outcomes.

Jodi Siegal, of Southern Legal Counsel, pointed out the following, re: children with similar backgrounds to our son:

Children and youth who are, or have been in out-of-home care face extra challenges: more than 60% of

children or youth in care drop out of school before graduation, a rate that is twice as high as the dropout

rate for all students.

Children and youth who are, or have been in out of home care are two or three times more likely than other

students to have disabilities that affect their ability to learn. 1

Numerous studies have confirmed that foster children perform significantly worse in school than do

children in the general population. The educational deficits of foster children are reflected in higher rates of

grade retention; lower scores on standardized tests; and higher absenteeism, tardiness, truancy and

dropout rates. The poor academic performance of these children affects their lives after foster care and

contributes to higher than average rates of homelessness, criminality, drug abuse, and unemployment

among foster care "graduates."

What are the causes of such undesirable educational outcomes? First, most of the 500,000 children in foster

care bear the scars of physical and emotional trauma, such as prenatal exposure to alcohol, tobacco and

other drugs; parental abuse, neglect and abandonment; exposure to violence in their homes and

communities; separation from their birth families; and frequent changes in foster placement. These

experiences place children at great risk of developing physical, emotional and behavioral disorders that

interfere with learning. End of quote from Jodi Siegal

We are mandated, under IDEA, to fight for our son’s services. There would have been no due process hearings if our son had been receiving the educational services, that he just recently had added to his IEP. The fact that our son is receiving services now (due to vigorous advocacy by the parents) – is proof that he was denied educational services for years. L.R. never mastered his Language Goals, on his October 2010 IEP, and he no longer qualifies in the category of Language Impairment. The Boise School District’s attorney prevented our son from receiving educational services for a number of years.

If it were legal to sue for Educational Neglect, we would sue the Boise School District for malicious intent to cause harm. When our son is 18 years old he has a right to personally sue school staff, and their attorney, for the actions they committed against him obtaining a free appropriate public education. The damage, which Elaine Eberharter-Maki has caused, in delaying our son’s educational services, may not be reversible.

We are ready to go forward to fight the lawsuit against us, in an open court, with a jury. We have 8-9 more years that our son is entitled to FAPE. We will not sit back and let the Boise School District destroy our son. We can demonstrate the lengthy (over 4 years) fight to obtain, for our son, a Free Appropriate Public Education.

None of our Due Process Hearing Requests, or IEP Team Meeting Requests, etc… have been frivolous. All of these requests were necessary, to obtain the educational services our son needs. We are fighting for our son’s life, and Elaine Eberharter-Maki is racking up legal fees. Sadly, the chances of a non-attorney parent obtaining what they have requested for their child (because of the child’s unique educational needs), in a due process hearing, in the state of Idaho, is almost zero.

We ask you to dismiss the Boise School District’s lawsuit, as it is groundless and retaliatory.

Phyllis Reff Dr. C. Reff

March 31, 2011

[Guest guest]

Lesli,

This need to fight for our children's rights is what is wrong with the scenario. I blame the lack of clarity in IDEA Laws and Regulations. If they were written with more clarity, there would be less varied interpretations. This is why we have so many lawyers and judges in the picture. Congress had intended for simple communication to take place at IEP meetings. Congress wanted collaboration between the school members of the team, and the parents. You shouldn't need weekly meetings.

With regards,

Phyllis

Phyliss,

Yet again, your story gives me inspiration to continue.....no matter how tired and drained I may feel. So, thank you. It's funny, but we have moved around the state of Florida quite a bit due to the lack of appropriate education for my son, as well. I can honestly say that we don't have any real roots anywhere. However, now I have my son in a program that has helped him so much......but yet I still have to fight with them to come to grips with the fact that my son can be a productive member of society, and that his behavior does not define who he really is. Unfortunately, it has become an ongoing battle along with weekly meetings, since the beginning of this school year. Still, I will prevail in what I believe is right for my son....as you do for yours.....as we are supposed to do for them.

Lesli

Parents are just seeking a Free Appropriate Public Education

My husband and I are being sued for doing the right thing: Advocating for our son who has disabilities...

Please don't give up on your children!

UNITED STATES DISTRICT COURT

for the

District of Idaho

Independent School District of Boise City No. 1 )

Plaintiff )

)

)

v. ) Civil Action No.

)

Reff and Phyllis Reff, husband and wife ) 11-096-CV CWD

Defendant )

A lawsuit has been filed against us. The following is our response:

We, Phyllis Reff and Reff, are the parents of Luke Reff, and have the responsibility, mandated by Congress, to assist our son in obtaining a Free Appropriate Public Education.

Luke joined our family, as a foster (to adopt) child, in early June 2006 and we enrolled him in the Boise School District during August of that same year. He was already a classified student, having received Special Education, while living in Oregon.

We have attended IEP meetings for our son, as required under IDEA 2004. We disagreed with the IEP’s drafted and finalized by school personnel, with no input from us. We attended the IEP meetings, and most often that is the first time we see the school drafted IEP -- when copies are provided to us. IEP’s are finalized by school staff, over our objections. We are instructed by school personnel to write our concerns and submit them to the school, for more IEP meetings, where school personnel consider and disregard what we have written. We have independent evaluations and therapy, provided to our son; we have provided the evaluations and reports to the school personnel. We have always signed Releases, so that school personnel could have access to outside of school professional providers. Rarely has school personnel contacted an outside of school provider, to ask questions about our son’s educational needs.

Our concerns are based on the evaluations and testing of doctors and therapists, who have evaluated and provided therapy to our son. We have never asked for anything that is unreasonable, or frivolous. All that we have asked for, is within the law and regulations of IDEA 2004, that our son is entitled to have, in order to give him a free appropriate public education. It is the school district personnel who do the delaying and denying, which cause the need for many IEP meetings -- not us. We don’t get paid to attend IEP meetings; school personnel do.

We asked for due processes hearings only after doing IEP meetings, or Facilitated IEP team meetings, where again our son’s educational needs are disregarded because our concerns are based on what private doctors and therapists declare are our son’s needs. It is well established that parents don’t win due process hearings in Idaho, and you only have to look at the published decisions to know that. School personnel claim that only what they see in school, is addressed, and as long as they don’t see what the private doctors and therapists see, and what we see, they won’t provide educational services to our son to address those needs. We have never put in a request for a due process hearing that was not justified by testing and evaluations, which identify our son’s educational needs. All our requests for due process hearings are based on documentation of our son’s difficulties in school, and what has been identified and diagnosed by doctors and therapists. Now, after 4 and a half years, in the Boise School District, school personnel are admitting that we were right, and they are now just starting to address the issues we have brought up in the many IEP meetings, facilitated IEP meetings, and due process hearings. We did as we as parents are required to do; we are following our procedural safeguards to obtain, for our son, what his testing, evaluations and educational performance (in school) shows he needs.

At this time, with no academic goals and services to address his low academics, our son’s final exam scores are 5 “Fâ€s and 2 “Dâ€s, which places him at risk of failing the 7th grade. Now, school personnel are discussing academic goals -- after 4 and a half years of providing little to nothing in academics, and only because his grades are, undeniably, plummeting, and they don’t know how to cover it up like school personnel did, in previous school years.

The Boise School District did not prevail in the Federal Court cases. Federal District Court did not rule on our complaints. The rulings state that we have to hire an attorney to represent our children, and pay filing fees, or request informa pauperis status (by disclosing our entire family’s income, instead of basing it purely on our child’s income). We don’t have the money, so our children’s cases have been dismissed. This lawsuit is harassment to us, because Elaine Eberharter-Maki knows our Federal court cases have been dismissed because we cannot afford to hire an attorney to represent our children and pay the court fees. We went to Federal court because it is an act of futility doing a due process hearing, in Idaho, where the same three or four hearing officers who don’t rule in favor of any parent, hears and/or denies due process hearings. Many decisions are done in undocumented pre-hearings, by motions done by the school lawyer, and ruled on by the hearing officer. Motion practice, done by the school’s lawyer, often takes away our right to present our complaint (in order to advocate for our child’s educational needs) to the Hearing Officer. Frequently, the Hearing Officer will grant the District’s motions (which are not in Parent’s Procedural Safeguards), i.e. Motion for Summary Judgment, leaving us with the choice of appealing to Federal Court, or abruptly discontinuing our pursuit of FAPE, for our son.

We have never done anything to delay the Special Education/IEP process, and/or increase the cost of legal fees, for the school district. All we have done is follow our procedural safeguards, in response to school personnel’s position that our son is not entitled to Special Education services. We are not asking for something unreasonable, or without any foundation. In fact, we have provided documentation, when we disagreed with our son’s IEP’s Present Levels of Academic Achievement and Functional Performance. An example of what we have been forced to fight for our son is: His IEP PLOP did not include Baselines to address his Unique Educational Needs, so that he can receive Specially Designed Instruction, in order to progress in the General Education Curriculum. Our son needs Baselines in the Following Educational Areas: MATH; READING; WRITTEN EXPRESSION/ENGLISH; HISTORY/GEOGRAPHY; SCIENCE; SOCIAL COMMUNICATION; SOCIAL/EMOTIONAL; EXECUTIVE FUNCTIONING, ESPECIALLY MEMORY; EXECUTIVE FUNCTIONING AS A SINGULAR COMPLEX PROCESS; COUNSELING/ATTACHMENT; HANDWRITING/HANDWRITING ALTERNATIVES; NONVERBAL LEARNING DISABILITY. The results of not having the baselines in his IEP, for the school year 2010-2011, has resulted in the most current final exam grades showing his present performance on academics is 5 “Fâ€s and 2 “Dâ€s, because nothing is being done to address the fact that our son is not on grade level, in all of his subjects in school, and does not have the knowledge and academic foundation to legitimately pass all his classes. There are no goals to address the areas identified in the independent evaluations and testing, which identifies our son’s academic performance, and/or grade equivalent levels.

This lawsuit is a retaliation by Boise School District Personnel, and their lawyer, Elaine Eberharter-Maki, because we won’t give up on our son and just let him fail and drop out of school, as most children with his identified and diagnosed disabilities do. We believe this lawsuit is a Strategic Lawsuit Against Public Participation. This is a SLAPP suit, which is a retaliatory lawsuit intended to silence, intimidate, and punish us for following the procedural safeguards of IDEA 2004. In order for Elaine Eberharter-Maki to procure her legal fees she must show our actions were frivolous, and the proof our son is at risk of failing the 7th grade, and school personnel are now admitting he needs academic goals -- clearly shows we were not wrong. This lawsuit shows Elaine Eberharter-Maki is a good lawyer, at manipulating the law, to prevent our son from receiving a Free Appropriate Public Education for the past four and a half years, and with her success in delaying and denying services, to our son, she may have destroyed his future chances of ever obtaining a high school diploma.

We expect this lawsuit to be dismissed, because there is no merit to the school complaints, other than they admit that they disregard what we, as parents, state are the concerns and educational needs of our son. They resent parents who stand up for their children’s rights, under IDEA 2004. We are not like the parents on August 2, 1992, United States District Court Judge Gerard l. Goettel out of the White Plains, NY office of the Southern District of New York stated in his decision of:Jack Jr., Jean, and Jack III Straube, vs. Florida Union Free School District, Sobol, Neveldine, Commissioners, NYS Educational Department, 91 Civ. 1359(GLG) OPINION 92,0021WP “In addition, Jack’s parents must share some responsibility for the shortcomings in his education. They were cognizant of Jack’s lack of progress and yet acquiesced in the same type of IEP year after year despite being quite aware of their due process rights. The structure of the IDEA presumes that a child’s parents or guardians will arduously seek to ensure that the child receives all of the benefits to which they are entitled by the Act. Rowley, 458 U.S. at 209. The Straubes did not demonstrate this ardor and as a result it become very easy for the school district to provide Jack with what appears to be inappropriate and minimal services.â€

We are the parents who are doing Vigorous Advocacy.

Vigorous advocacy is an anticipated by-product of a policy encouraging parental involvement. See Rowley, 458 U.S. at 209 (discussing Congress’ intent to protect children through parental involvement and commenting that “parents . . . will not lack ardor in seeking to ensure that handicapped children receive all of the benefits to which they are entitled by the Actâ€).

We are complying with IDEA 2004 Procedural Safeguards; defending our son’s rights to a Free Appropriate Public Education; we are being Retaliated against, in violation of our ADA rights.

September 8, 2003, the U.S. Ct. of Appeals for the 11th Cir. ruled in Shotz v. City of Plantation, Docket No. 00-06894-CV-BSS “The anti-retaliation provision states that “[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.†“4 A related provision also makes it “unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter.†42 U.S.C. § 12203(.â€

This lawsuit is just another fee generating activity Elaine Eberharter-Maki does, as she assists her client, the Boise School District, in their successful efforts -- so far-- to delay, deny and destroy our son’s chances of ever obtaining a high school diploma.

We ask you to dismiss this lawsuit, as it is groundless and retaliatory.

*All of the above was submitted in response to the first lawsuit filed against and Phyllis Reff, in regards to our son, L.R. It is included in the response to the current lawsuit, filed against L.R.’s parents, because most of the first lawsuit is repeated in the second/current lawsuit. Since the current lawsuit, dated March 11, 2011, is based on what is in paragraph 129: “…the incurred cost of responding to the allegations and actions of the Parents set out in paragraph 102 through 109….,†We will focus our response on that section of the lawsuit.

In the state of Idaho the hearing officers are biased adjudicators (Carlson, Kumm, Price, and Litteneker), who dismiss our son’s due process hearings (and our daughters’s), violating his rights under IDEA.

Through carefully orchestrated legal tactics, Elaine Eberharter-Maki (attorney for the Boise School District) has successfully denied our son educational services, for years. Prior to our son’s February 25, 2011, current, IEP, he had 2 annual IEP’s with only Language Goals.

As of the creation of his new IEP, dated February 25, 2011, our son is now Eligible under the Multiple Disabilities Category (encompassing the Specific Learning Disability Category and the Health Impairment Category), instead of the Language Eligibility Category. In fact, he is no longer eligible under the Language Category, despite not mastering his 4 language goals on the October 2010 IEP. On the current IEP, our son has goals in EXECUTIVE FUNCTIONING, SOCIAL/COMMUNICATION/EMOTIONAL, WRITTEN LANGUAGE (ACADEMIC), MATH CALCULATION (ACADEMIC). Among the many accommodations are ENCOURAGE USE OF FM SYSTEM TO INCREASE THE INSTRUCTIONAL SOUND IN RELATION TO BACKGROUND NOISE, AND COPIES OF TEXTBOOKS WILL BE PROVIDED FOR HOME USE. As parents, we are glad that the Boise School District is finally (years have been wasted, ignoring our son’s diverse educational needs) beginning to address some of our son’s various educational needs. However, as detailed in a packed two page Written Notice, dated 2-25-11, the Boise School District Considered but Rejected many requests, from the parents, for needed services.

-----------------------------------------------------------------------

Our son is diagnosed with the following, according to the IEP Cover page, beginning with his October 2009 IEP, with the same diagnoses on his 10-27-10 IEP (many diagnoses were actually made prior to the 2009 IEP) (Eligibility Category is Language Impairment, plus a Secondary Eligiblity Category of Health Impairment):

Attention Deficit Disorder-Combined Type

Learning Deficit, Specific

Reactive Attachment Disorder of Early Childhood

Anxiety Disorder NOS

Pervasive Developmental Disorder NOS

Nonverbal Learning Disability NOS

Oppositional Defiant Disorder

Developmental Learning Problem (by history)

Fine Motor Skills Limitations (by history)

Adjustment Disorder (by history)

Expressive Language Disorder

Central Auditory Processing Disorder

Acquired Brain Injury Secondary to Fetal Alcohol and Drug Exposure

Looking at the IEP Goals, on our son’s 10-27-10 IEP, his 4 Goals consisted of only Language Goals. We are confused. Where are the Present Levels of Performance Baselines, and the accompanying Goals, Accommodations, Services, etc… for all the Non-Language Disorders? That’s right; there are none. Our son was continuing to be harmed by the Boise School District. On the 10-27-10 IEP, there were no goals addressing our son’s Executive Functioning Deficits (from his ADHD, Brain Injury, etc…). On the 10-27-10 IEP, there were no goals addressing our son’s Social/Emotional Deficits (from his Pervasive Developmental Disorder, Reactive Attachment Disorder, Nonverbal Learning Disability, Brain Injury, etc…). On the 10-27-10 IEP, there were no goals addressing our son’s Academic Deficits (based on Pre and Post Summer Testing, which showed major Regression, and way below grade level performance on Huntington Learning Center Academic Testing – paid for by the parents, since the Boise School District had refused to do Academic Testing prior to the School Year 2010-11, despite Parents expressing Academic Concerns.) (from his Learning Deficit, Nonverbal Learning Disability, Central Auditory Processing Disorder, Brain Injury, etc…). On the 10-27-10 IEP, why is there no goal or accommodation to get our son to use his FM System, which is a necessity to address his Central Auditory Processing Disorder. Why is there no accommodation to provide our son with a home based copy of his school textbooks?

In paragraph 129, of the March 11, 2011 lawsuit we are responding to, the District’s attorney states, “These attorney fees and costs incurred by the School District were necessary and reasonable expenditures caused by the persistent harassment by Parents.†She refers to, “…the sum of $3,209.54 for the incurred cost of responding to the allegations and actions of the Parents set out in paragraphs 102 through 109…â€

Paragraphs 102-109 clearly demonstrate the appropriate actions of parents, whose child is continuing to be denied a Free Appropriate Public Education! The Due Process Hearing Request, of January 12, 2011, and the Parent’s willingness to attend, work diligently, and help draft an agreement – during a day-long Mediation session – demonstrates parents who actively engage in collaborating with the School District to attain their child’s rights to a Free Appropriate Public Education. It also demonstrates parents who follow their Procedural Safeguards, diligently.

------------------------------------------------------------------

At our son’s recent independent (at parent expense) neuropsychological evaluation (2-15-11) he was diagnosed with:

Cognitive Disorder, Not Otherwise Specified (Alcohol Related Neurodevelopmental Disorder)

Attention Deficit Hyperactivity Disorder, Not Otherwise Specified

Adjustment Disorder, with Anxiety and Depression, Chronic

Expressive Language Disorder (by history)

History of prenatal exposure to alcohol and other controlled substances

Central Auditory Processing Disorder (by history)

Probable static encephalopathy

Academic Struggles. Social Struggles

------------------------------------------------------------------

It is well known, that children with Fetal Alcohol and Drug Exposure, who have been Neglected, etc… have poor school outcomes.

Jodi Siegal, of Southern Legal Counsel, pointed out the following, re: children with similar backgrounds to our son:

Children and youth who are, or have been in out-of-home care face extra challenges: more than 60% of

children or youth in care drop out of school before graduation, a rate that is twice as high as the dropout

rate for all students.

Children and youth who are, or have been in out of home care are two or three times more likely than other

students to have disabilities that affect their ability to learn. 1

Numerous studies have confirmed that foster children perform significantly worse in school than do

children in the general population. The educational deficits of foster children are reflected in higher rates of

grade retention; lower scores on standardized tests; and higher absenteeism, tardiness, truancy and

dropout rates. The poor academic performance of these children affects their lives after foster care and

contributes to higher than average rates of homelessness, criminality, drug abuse, and unemployment

among foster care "graduates."

What are the causes of such undesirable educational outcomes? First, most of the 500,000 children in foster

care bear the scars of physical and emotional trauma, such as prenatal exposure to alcohol, tobacco and

other drugs; parental abuse, neglect and abandonment; exposure to violence in their homes and

communities; separation from their birth families; and frequent changes in foster placement. These

experiences place children at great risk of developing physical, emotional and behavioral disorders that

interfere with learning. End of quote from Jodi Siegal

We are mandated, under IDEA, to fight for our son’s services. There would have been no due process hearings if our son had been receiving the educational services, that he just recently had added to his IEP. The fact that our son is receiving services now (due to vigorous advocacy by the parents) – is proof that he was denied educational services for years. L.R. never mastered his Language Goals, on his October 2010 IEP, and he no longer qualifies in the category of Language Impairment. The Boise School District’s attorney prevented our son from receiving educational services for a number of years.

If it were legal to sue for Educational Neglect, we would sue the Boise School District for malicious intent to cause harm. When our son is 18 years old he has a right to personally sue school staff, and their attorney, for the actions they committed against him obtaining a free appropriate public education. The damage, which Elaine Eberharter-Maki has caused, in delaying our son’s educational services, may not be reversible.

We are ready to go forward to fight the lawsuit against us, in an open court, with a jury. We have 8-9 more years that our son is entitled to FAPE. We will not sit back and let the Boise School District destroy our son. We can demonstrate the lengthy (over 4 years) fight to obtain, for our son, a Free Appropriate Public Education.

None of our Due Process Hearing Requests, or IEP Team Meeting Requests, etc… have been frivolous. All of these requests were necessary, to obtain the educational services our son needs. We are fighting for our son’s life, and Elaine Eberharter-Maki is racking up legal fees. Sadly, the chances of a non-attorney parent obtaining what they have requested for their child (because of the child’s unique educational needs), in a due process hearing, in the state of Idaho, is almost zero.

We ask you to dismiss the Boise School District’s lawsuit, as it is groundless and retaliatory.

Phyllis Reff Dr. C. Reff

March 31, 2011