Category: Advice to Lay Advocates

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Is LAUSD Run by a Fascist Mafia?

LAUSD Main Offices – Downtown Los Angeles

The school year hasn’t even started yet and Los Angeles Unified School District (LAUSD), the second-largest school district in the country, has already hit the ground running with illegalities left and right, not the least of which is the systemic policy issue that I’m focusing on in today’s post. It’s hardly the only violation, but its a systemic one that stands to continue hurting a lot of children with disabilities, particularly our kiddos on the autism spectrum.

What I’m about to tell you would sound far-fetched if it was not for the fact that the United States is currently engaged in a soft civil war in which right-wing extremists are attempting to change us from a democratic republic to a ethno-religious dictatorship. The evidence indicates these decades-long plans were started at the local level in city councils, school districts, and various county agencies, then percolated upward into our federal agencies before culminating in the January 6, 2021 insurrection against our democratic republic.

The reality is that I’ve been dealing with these kinds of behaviors from local education agencies for the last 31 years, and there is no end in sight for many families in local education agencies as large as LAUSD. It’s the Titanic, it’s been on a direct course for an iceberg for decades, and it will collapse and sink under its own weight before too much longer at the rate it’s currently going.

This is particularly the case as the pro-democracy backlash to recent fascist efforts to overthrow our system of government is gaining momentum as more and more high-ranking fascist individuals at the federal level face the consequences of their actions with the J6 Hearings and related Department of Justice (DOJ) investigations. When the example is finally set at the national level and all of those responsible for J6 are either behind bars or being pursued by the feds and Interpol after fleeing the country, the trickle-down of legal consequences to State and local government agencies that have been engaging in fascist practices all this time will be severe.

But, we’re not there, yet. The only way to really get there is to make public what the heck is really going on so that taxpaying registered voters in Los Angeles can make informed decisions about the people they entrust with the responsibility of educating their children, particularly their children with disabilities. So, let me get into the actual issue to which I want to call immediate attention, that being LAUSD’s unlawful and unethical method of conducting Functional Behavioral Assessments (FBAs), which it has implemented as a policy, district-wide, according to District personnel.

Title 34, Code of the Federal Regulations (34 CFR) Section 300.304 describes the parameters for how special education assessments are supposed to be conducted. 34 CFR Sec. 300.320(a)(4) mandates the application of the peer-reviewed research to the design and delivery of special education, which includes the assessment process. Taken together, these laws require that competent assessors acting within the scope of their qualifications conduct assessments according to the professional standards that apply to each of the various types of assessments being conducted, in conformity with the peer-reviewed research.

There is no standardized measure, like an IQ test, when conducting an FBA, though there are assessment tools and instruments that can help inform the process. Instead, the applicable science describes the types of critical thinking and lines of inquiry a properly trained behaviorist must apply when determining the function of a maladaptive behavior and the most appropriate ways of responding to it. The science used is referred to as Applied Behavioral Analysis (ABA).

ABA is not a special education service, per se. ABA is the science behind effective behavioral interventions. ABA services requires scientists to think independently in applying the known science to the unique facts of each individual person assessed. It’s not a paint-by-numbers, one-size-fits-all measure. It’s not psychometrics in the sense that norm-referenced standardized tests will be administered to the student. It requires more thought and higher-level critical thinking skills than that, and the people who are certified to do it must prove their abilities to function that way.

There are no formal criteria for FBAs, specifically, but they are based off the Functional Analysis (FA) procedures developed by Dr. Brian Iwata and his colleagues in their published research. While being certified as a Board Certified Behavior Analyst (BCBA) is supposed to confirm that a behavioral scientist is adequately qualified to analyze behavior, BCBA certification is not required in California for conducting FBAs in the special education context. Anyone who has gone to graduate school for a school psychologist credential should have theoretically been trained on ABA just as a part of their grad school education.

My master’s degree is in educational psychology and I had to study ABA more than once during my higher education. It is not typically part of a special education teaching credential program, other than to mention that other professionals are available in the special education context to conduct FBAs and provide ABA-based behavioral interventions.

That is, except, in LAUSD, which is using special education teachers to conduct its FBAs. It will hire Non-Public Agencies (NPAs) that specialize in providing ABA services through and under the supervision of BCBAs, but it will not allow the BCBAs to actually conduct their own FBAs to inform their own Behavior Intervention Design (BID) services, which then compromises the quality of the Behavior Intervention Implementation (BII) services. This is a district policy, according to various LAUSD employees with whom I’ve been speaking about this since April, and they don’t seem to understand why I have such an issue with it.

First, the 8th grade LAUSD student I’m currently representing in which this issue has come up has been “assessed” under this model since the 1st grade and he still has the same behavioral challenges today that he had in 1st grade. He’s made no improvements and now he’s over 6 feet tall. His toddler-like tantrums result in significant property destruction, which has only gotten worse as he’s gotten smarter and bigger over time, and he puts himself and others at risk of injury when he throws them. Not only does LAUSD’s method of conducting FBAs fail to comply with the applicable science and law, it does not work!

LAUSD’s solution is to offer yet another illegal FBA conducted by an inexpert special education teacher who must then hand off their “data” to a BCBA who is then supposed to somehow magically engage in scientifically valid BID and supervise a Registered Behavior Technician (RBT) who is supposed to provide the BII in conformity with the plan designed by the BCBA. When I point out the epic failure of logic behind this practice to LAUSD personnel, I’m met with the Orwellian Doublespeak of corrupt District administrators and the blank stares of ineptitude and rote recitations of District policy from school-site personnel.

One school site administrator actually tried to get me to lie to the parent and trick him into doing something he otherwise was not inclined to do. I analyzed her behavior according to ABA standards based on what information I could gather and ultimately concluded that she’s as stupid as she is corrupt; her behaviors were automatically reinforcing and externally reinforced by her employer, which appears to employ the dumbest people it can find in positions of authority well beyond their critical thinking abilities and professional skills so that they can be the clueless, easily manipulated henchmen of the mafiosos at the main office on Beaudry.

Basically, what we are dealing with here is science denialism and unconstitutional conduct on the part of public officials to the tune of hundreds of millions of taxpayer dollars. LAUSD is the government, regulated by the rule of law and answerable to its local constituency, but the people generally have no voice against this behemoth of a self-serving institution, which is why I’m talking about it, here.

LAUSD is long overdue for a reckoning regarding its systemic illegal conduct across all aspects of special education, and it’s probably safe to say that if the District is willing to compromise its most vulnerable constituents, that being children with disabilities, it’s likely equally comfortable violating everybody else’s rights, as well. I can’t speak to the other social justice issues in which the District might be in the wrong, but it has historically failed on the special education front ever since special education and related civil rights laws were first passed in the 1970s.

Disability-related civil rights law is truly the canary in the coal mine for American democracy. The measure of how civilized a society is can be determined by how well it takes care of its most vulnerable members, and children with disabilities are among the most vulnerable humans on Earth. If LAUSD is willing to treat children with disabilities this way, it’s top administrators should probably swap out their dress suits for animal pelts so that their lack of civility is adequately conveyed. Otherwise, they’re just wolves in sheep’s clothing, preying our our most vulnerable children.

The Chanda Smith Consent Decree came after decades of unlawful special education conduct and was in place for decades thereafter in an effort to end the District’s unlawful conduct, which it failed to do. The courts attempted to pull LAUSD out of the gutter with the consent decree, but LAUSD just pulled the courts into the gutter with it. An Independent Monitor was hired to oversee the consent decree until such time that LAUSD came into compliance with special education law, but that day never came.

Apparently, presuming that compliance would never happen, the Independent Monitor began engaging in equally corrupt behavior, assuming lifelong job security for so long as LAUSD continued to violate special education law and grifting the system by overpaying consultants who failed to make any kind of perceptible difference with respect to LAUSD’s compliance. The Office of the Independent Monitor was shut down and the consent degree was closed out following an audit that revealed excessive unnecessary spending by the Independent Monitor that could not be related to the District’s conformity with the consent decree.

Further, while it may be true that the District legitimately improved some of its special education programming, by no means had to come close to a reasonable degree of compliance, as evidenced by the number of families who have still had to file lawsuits to get services, and even that doesn’t guarantee they’ll get all of the right services for their children. Many get only some of the services their children need, making their IEPs as effective as watered-down penicillin in the face of a raging bacterial infection. For all the services they may actually get that they need, the absence of the other services they also need undermines any successes they may have in the areas in which they’ve actually received help.

Which circles back around to the question that serves as the title to today’s post/podcast, which is, “Is LAUSD Run by a Fascist Mafia?” From the outside looking in, this seems to be a legitimate question.

Let’s start with the fact that LAUSD hired computer coders to work with its in-house counsel decades ago to bastardize a piece of insurance software known as Welligent into its IEP software. As a result, LAUSD has basically bureaucratically obligated its school site personnel to break the law because of the software limitations of Welligent, or at least how it has been coded by the District, that fail to even offer compliant options to its users in many areas of special education.

For example, let’s look at the assessment plan, redacted for privacy, that was offered to my current LAUSD student, which was generated from Welligent, and compare it to another redacted assessment plan for another student on my caseload in a different school district who also needed an FBA.

Example 1, below, is the assessment plan offered to my LAUSD student, and shows the FBA as an “alternative assessment” to be conducted by a special education teacher. “Alternative assessments” usually refer to non-traditional assessment measures or methods from those typically used in the place of standardized testing.

For example, using curriculum-based assessments in the classroom to gather informal data on actual classroom performance can be a more reliable method of assessing academic achievement than a standardized measure like the WJ-IV or the WIAT-4. None of this assessment plan makes sense with respect to the FBA.

Example 1 – page 1

Looking at the table of “standardized” testing from page 2 of this assessment plan, which is referenced by page 1, FBAs are not listed. Item 7 targets “Adaptive Behavior,” but that goes more to independent living skills and self-care, like dressing, toileting, and navigating the school setting. FBAs do not fit that category and the LAUSD assessment plan has no category that FBAs would logically fit. This was a deliberate coding decision made in Welligent by the District that has absolutely nothing to do with adequately assessing children with special needs and offering them appropriate behavioral supports at school.

Example 1 – page 2

Example 2, below, shows a different student’s assessment plan from a different school district. This assessment plan offers the student involved an FBA to be performed by the school psychologist in collaboration with a district behaviorist. This actually makes sense.

In this student’s case, it turns out the special education teacher was the problem and she got reassigned to a different classroom. This student had gone without behavioral challenges until she was placed in this teacher’s class, and the FBA made clear that the teacher was the one provoking the behaviors. Objectivity is one of the most critical aspects of science that must apply to special education assessments. Can you imagine if she had been trusted to conduct the FBA?

I can assure you the quality of the outcomes using appropriately qualified people who actually care makes all the difference in the world. Whereas our LAUSD student has historically been assessed according to plans virtually similar to Example 1, above, and has now gone for over six years with next to no improvements in his behaviors, our student from whose case Example 2 was taken is now thriving in school with no serious behavioral challenges of any kind.

To be clear, it’s not like the student in Example 2 has never had issues with this school district. There were problems years ago when she was little that I had to deal with, but it had been smooth sailing until she ended up in that whacko teacher’s classroom, last school year.

Because the student’s behaviors were interfering with her learning, even though we suspected the teacher was likely the problem, we didn’t go in accusing the teacher of anything. We simply asked for an FBA to get to the bottom of the behaviors and the next thing we knew the teacher was gone. The FBA report we got back was very well-written and explained the facts without demeaning the teacher or doing anything else unprofessional.

We hit a huge bump in the road that had the potential to go really badly, but the District in that student’s case handled it professionally, compassionately, and responsibly. I’ve yet to see any of those qualities from anyone I’ve dealt with from LAUSD regarding my LAUSD student. The difference in handling is night and day, and I’ve caught both districts messing up before. The difference is that my other student was met with professionalism, while my LAUSD student is being met with science denialism and an utter abandonment of the rule of law.

It is this refusal to abide by science and law on the part of the second largest school district in the nation that raises the specter of fascism. It’s all very “Marjorie Taylor Green-ish.”

Consider that California has adopted the Common Core as its State Standards. The purpose of these standards is for our public schools in California to teach students how to use academic knowledge and skills to solve real-world problems, yet LAUSD doesn’t use academic knowledge and skills to solve problems. It denies science and breaks the law.

How can people who deny science teach our kids to use science to solve problems? How can people who have abandoned the rule of law credibly teach social studies, particularly civics, and educate our kids to become knowledgeable participants in American democracy? How is this anything other than fascism and when are the feds going to do something about it?

I tried filing a complaint with the U.S. Department of Education, Office for Civil Rights (OCR), but it twisted my words into a narrower complaint than what I alleged and then declined to investigate its twisted version of my allegations, which is a first for OCR with me, I have to admit, and it makes me fear for our democracy even more, now.

If OCR is too intimidated by LAUSD to investigate such that it makes up lame excuses as to why it shouldn’t have to, how does that not also suggest the presence of organized crime within LAUSD so large and expansive that even the feds won’t touch it? DOJ is a little busy with the J6 investigations, but I suspect all of this stuff in inter-related as multiple spokes of a wheel-and-spoke conspiracy to overturn democracy in America.

Remember that Betsy DeVos tried to shut down OCR after she was appointed Secretary of Education by the 45th President until she had the snot sued out of her and subsequently reinstated it. She also admitted that her goal was to abolish USDOE as the Secretary of Education; she took the job with the specific intent of shutting down the entire agency from within.

How many people from the last administration continue to poison the well at USDOE? It’s the same question Americans have to ask about every single federal agency, but as pointed out in the above linked-to article from The Root describing DeVos’ desire to abolish USDOE altogether also describes the conference at which she recently shared her continued desire to shut down USDOE as teaching far-right parents how to build conservative-dominated school boards in their local communities, ban books, and a host of other undemocratic activities intended to deny the civil rights of children with disabilities, LGBTQ+ students, students of color, and students from other protected classes.

It’s an anti-science, anti-democracy approach that includes anti-vax, anti-masking nut-jobs who are too dumb to know how dumb they are and/or are profoundly mentally ill, being manipulated by grifters like DeVos to vote against their own interests in favor of the interests of the grifters. It’s the “have-nots” falling for the tricks of the “haves” who know the only way they can have way more than what they actually need is to make sure others don’t have enough.

Today’s post isn’t about documenting how I’ve figured out a way to overcome whatever fascist mafia might control LAUSD. It’s about exposing what I’ve witnessed and adding my voice and the voices of the LAUSD students who aren’t getting what they need to the conversation in the hopes that it will spark others to also help hold LAUSD to account for its egregious violations of special education law.

I’m hoping that voters in LA will learn more about these issues, understand that special education social justice issues cuts across all other demographic groups, and no segment of society is safe for so long as our government is allowed to conduct itself in this way. If you are involved in any type of social justice issue in which LAUSD has engaged in discrimination and withheld services it is legally required to provide, consider getting involved with our Meetup Group, Social Justice Series – Everyday Local Democracy for All.

Our Meetup Group is not limited to people living within the LAUSD attendance area, but we certainly have Angeleños already in the Group. You can comment/DM us directly on Meetup or on our social media, or use our Contact Us form on our site with any questions/feedback. We don’t have all the answers, but awareness is the first step to solving a problem, so we’re starting there.

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Recent Uptick in Behavioral Challenges

Now that the Fall 2021 half of the regular school year has come to an end and all the students on my caseload are on Winter Break, I’m taking advantage of the break from back-to-back Individualized Education Program (IEP) meetings to reflect on the most serious issues I’ve had to deal with so far during this first half of the current school year.

While I’ve had to deal with a lot of different challenges, it is the impact that the lack of appropriate services during shutdown, from March of 2020 to August or September of 2021, that has hit hardest. It’s been the absolute most hardest on my students with intensive behavioral services in their IEPs who have suffered the most regression and lost educational benefits. School districts all over Southern California, and likely elsewhere throughout the State and beyond, refused to provide in-person services to children on IEPs who required them in order to continue learning during shutdown.

This was in spite of explicit changes to State law that mandated in-person services for those special education students who needed it and compensatory education for any special education students who lost educational benefits during shutdown. Not only were in-person services denied, compensatory services are still being denied as school districts act like their students’ regression has nothing to do with the fact that the districts failed to provide in-person services to these children during shutdown.

What was done instead? Aides employed originally to provide direct, in-person support to these students in the classroom setting were put on Zoom, Google Meets, Microsoft Teams, or whatever else platform their employers were using for distance learning as remote participants. How in the Hell an aide on Zoom was supposed to provide the supports necessary to facilitate the student’s participation in online learning via Zoom was anyone’s guess. It consistently failed to work.

Further, even though the new laws clearly made it an option, only one of my students’ districts hired a non-public agency (NPA) to provide in-person behavioral support services in the student’s home during distance learning so the student’s behaviors could not be permitted to allow him to escape/avoid the instruction. Instead, they rewarded his participation and prompted him to return to task when his attention wandered, so he was able to make excellent academic progress during distance learning.

What he wasn’t able to work on was his social skills with peers and adults in normal everyday settings. When he returned to on-campus learning, his classroom behaviors became increasingly challenging and the behaviors of the other students in the class became escalated in response. It eventually got so bad that the other students in his non-public school (NPS) classroom assaulted his NPA behavior aide because they blamed her for keeping him in their class. He triggered them that badly.

We ultimately changed his placement right before Winter Break started and a due process case for the involved district’s utter failure to offer or deliver a Free and Appropriate Public Education (FAPE) for the last two years is now pending. Settlement is entirely possible, which I can’t discuss in detail, and the IEP team has come up with a strategy to hopefully salvage his education for the moment, but this is a student who is able to meet academic standards in spite of his grossly impaired social skills.

Our concern is that he will graduate with a diploma and get arrested the next day for acting out in public. His behavioral needs have been exacerbated by shutdown because he didn’t get any instruction or practice in behaving in socially appropriate ways when in-person with peers or adults at school. In part, this was because the NPS he had attended had a “philosophy” that failed to conform with the evidence-based scientifically valid practices of the NPA that was providing his behavioral interventions.

As such, NPS staff regularly failed to abide by the Behavioral Intervention Plan (BIP) in the student’s IEP, much to the frustration of the NPA experts who had designed it and much to the danger of the Behavioral Intervention Implementation (BII) staff who was assaulted by my student’s classmates because he made them so upset. Rather than work collaboratively with the experts hired to address his behaviors using methods proven to work by science, the NPS staff would engage in ad hoc interventions based on whatever ideas popped into their science-denying minds in the given moment, none of which worked.

Most of the students in the NPS had mental and emotional health needs, many of which arising from past trauma, but our student had autism and just didn’t know how to read the room. It was dubious as an appropriate placement from the outset, but the ecological factors of the on-campus setting weren’t a problem during distance learning.

It wasn’t until our student, who not only has autism, but also ADHD, started attending on-campus, which required him to be in transport between home and school for a total of five hours per day, and then attempt to behave in a socially appropriate manner among other students with serious mental and emotional health needs, that things really fell apart. He might as well have been put into a rocking chair in a room full of long-tailed cats.

The harm was inevitable. And, as always, he’s being blamed and vilified while no one from his school district offers something appropriate to his needs. We’re hoping the interim placement he has for now will benefit him more than where he’s been, but it’s still less than ideal. It may take a judge to figure it all out.

I’ve had two other students on my caseload face expulsion just within the last few weeks. One student’s case just recently settled after the involved school district attempted to assert that behaviors that were clearly associated with the student’s disabilities somehow magically were not, during a Manifestation Determination (MD) IEP meeting.

The only way for a parent to appeal an MD IEP meeting outcome is to file for due process. Because the student is facing expulsion, the hearing is automatically expedited. This gives parents very little time to prepare for hearing, much less find adequate representation.

I was able to refer this family to an attorney right away who was able to handle the MD appeal via due process. We were lucky to find a really good attorney who could take the case right away and handle it. Most of my attorney colleagues are overwhelmed with the volume of cases they are getting, right now. The violations are everywhere, evidently, and this failure to provide in-person services during shutdown when they truly were needed seems to be a recurring theme.

This case settled because we were able to move quickly through the process and find a good attorney who could handle going to an expedited hearing if necessary or otherwise negotiate an appropriate settlement. Not everybody is having that same experience, these days. This family was lucky. The violations in this student’s case were pretty egregious and the attorney was able to convince the involved school district that it wasn’t worth going to hearing.

My other student facing expulsion still awaits a decision from school site administration as to whether the principal should just let the IEP team effect a change in placement for special education reasons rather than subject this student to expulsion proceedings. Again, the involved school district tried to claim that the student’s disability had nothing to do with the behaviors, which was simply ridiculous.

The student already had behavioral interventions built into his IEP to address the very kinds of behaviors for which he was in trouble. He had a history of escalating to the most outlandish behaviors he could think of to come right up to the line and just barely cross it enough to get himself kicked out of school to avoid the instruction. He hated it that much.

He had transitioned to his current placement in a Special Day Class (SDC) for special education students with behavioral challenges from a special school where all the students had behavioral challenges at the start of the 2019-20 school year and had been largely successful for most of that school year, until the shutdown started in March 2020. During that time, his targeted behaviors of work refusals and avoiding the classroom setting altogether were entirely reinforced by being stuck at home on the computer while the aides from his SDC were also in their own homes using their district’s online meeting platform.

There was no one in his home trained in the interventions that were necessary to compel his compliance with teacher directions. There was no one who could make him even login. He had a baby sister at home and his mother was not about to have him triggered into angry outbursts in the home by trying to convince him to participate in the instruction with a baby in the house. Further, his mother was medically fragile and required multiple surgeries throughout the shutdown and afterwards. She was in no position to handle the angry outburst of a frustrated teenager with no impulse control due to ADHD struggling with the work because of a co-morbid learning disability.

We have a complaint pending before one of his school district’s regulatory agencies in response to its mishandling of his behavioral needs to date. He is now pending expulsion for a behavior we’re fairly convinced he engaged in so as to be kicked out of school. We don’t believe he ever had any intent to hurt anyone, but he did enough wrong for someone who doesn’t understand the function of his behaviors to think he might pose a credible threat. Law enforcement determined he posed no threat. It appears that district personnel may have exaggerated the severity of the behavior on purpose to justify expulsion.

All that said, the expulsion case may be dismissed if the district agrees to simply let the IEP team refer this student back to his previous placement at the special school. It was successful in preparing him for his transition to a comprehensive high school placement before shutdown; it should be able to return him to that state and help him transition back, again, with success. We also have a ton of new assessments pending to figure out what the most appropriate IEP for him should be, going forward.

This situation may deescalate before it has time to turn into a full kerfuffle. If we can all just agree to work together to address this student’s serious behavioral regression through the IEP process and avoid the expulsion process altogether, particularly given that this district is being looked at very closely by one of its regulators right now for failing to adequately support this student thus far, already, we can implement a solution that will eliminate the parent’s need to pursue accountability.

The goal isn’t to nail the school district’s hide to the wall; the goal is to get the student appropriately served as quickly as possible. Nailing hides to walls should only take place if it’s absolutely necessary to get a student appropriately served as quickly as possible. It’s a last resort option.

I have yet another student whose case is pending settlement, hopefully. It would be foolish on the part of his school district to allow it to go to hearing. I can’t discuss much about it while it’s pending settlement, but suffice it to say his school district totally blew it by failing to provide in-person behavioral services and supports during shutdown.

He has a host of learning challenges including partial vision loss, severe autism, intellectual disability, a seizure disorder, extremely limited communication skills, and self-injurious behaviors that frequently result in property damage in his home. His windows now have Plexiglas® panes and the dry wall in his home has been replaced so often, his family has lost count. He has made frequent trips to the emergency room and urgent care for medical treatment after hurting himself during an outburst. He has hurt his petite mother by accident.

He’s now a young adult who is still eligible for special education and he’s had these behavioral challenges his entire life. He’s been a student of the same school district his entire public education career. It’s not like they don’t know what he needs. Before shutdown, he received intensive 1:1 and 2:1 behavioral supports throughout the school day to keep him safe and engaged in the instruction. He got none of that at home during shutdown.

His mother was left to be his 1:1 aide support during distance learning over a computer while his actual aide support staff stared back at him from the screen from their own homes. He was immediately triggered into violent outbursts because he didn’t understand why he wasn’t at school with these people instead of looking at them on a computer screen. His participation in distance learning had to stop immediately for his own safety and that of his mother. It’s been a struggle ever since to get an offer of appropriate services in his IEP as a prospective matter of FAPE, much less with respect to all of the compensatory remedies he’s due.

This student’s case has been referred to a different attorney than the one mentioned above, but also an amazingly talented and smart one. Because settlement terms are still being discussed, I can’t speak much further to the matter, but I think the point is made that this is happening way too much. We’ve got too many kids who didn’t get what they needed during shutdown who are now owed compensatory remedies and they have until March 2022 to file for due process on their claims.

Special education attorneys who represent families are working at capacity with respect to their caseloads. That said, there have now been enough cases litigated and settled since the increase in claims began that openings are starting to come on many caseloads. Others are bogged down by appeals, which are largely occurring in the federal District Courts.

Some attorneys are having an easier time these days than others, just depending on whether they get good judges at the due process level, or have to work the appeals system before they get to someone willing to take the time to really listen to the arguments and examine the evidence relative to the rule of law and applicable science. That’s always the chance that attorneys take with these cases, and it’s not fun to work the appeals, I promise you.

I’ve provided paralegal support on cases all the way up to the 9th Circuit Court of Appeals, and there is nothing more tedious than a Table of Uncontroverted Facts, because there are always facts that become controverted between the parties. The back-and-forth between the parties about what facts were agreed to, which ones were disputed, and all the references to the evidence and testimony on the existing record from the original due process case and previous appeal to the District Court that supposedly supported each party’s asserted facts, became one of the most exhausting exercises I’ve ever engaged in as professional. I have ADHD – Inattentive Type, myself, so trust me when I say it was grueling.

Litigation should always be the very last resort to solving a special education problem, but these days it’s been necessary. For those of you finding yourselves in similar circumstances, I’d like to share a decision from the California Office of Administrative Hearings (OAH).

I downloaded the PDF of this decision just in case it ever gets taken down in the future, and have uploaded it to our site. Click here to download the PDF of this due process decision from California in which the Administrative Law Judge (ALJ) found in favor of a student who was deprived of educationally necessary in-person behavior services during shutdown, if the link to the OAH site doesn’t work. In this case, the ALJ ordered compensatory services as remedies to the student.

If this decision can help you argue for resolution to your own child’s lost educational benefits during shutdown, whether via due process or just a sensible discussion with your school district’s representatives, it will have served its purpose as a persuasive authority on the subject. If you find it necessary to hire an attorney to file for due process over shutdown-related deprivation of educational benefits, be sure to share this authority with your attorney. They may have very well already seen it, but if you can relate the facts of your own child’s case to the facts of this due process case linked to here, you will help bring your attorney up to speed regarding your child’s claims, so you can timely file your case before March 2022.

You may also choose to use this decision to support your arguments as you advocate for your own child in the IEP process as a parent. If you share this decision with your school district’s IEP team members and relate the facts of your child’s situation to the similar facts in this due process case, presuming your child’s case follows a similar pattern of a denial of behavioral services from his/her IEP during shutdown, your school district may be compelled to work with you rather than have you lawyer up and then have to deal with the costs of a legal action.

Parents’ attorneys’ fees and costs can be recovered from the offending school districts as a condition of settlement or upon prevailing in due process or appeal. School districts are smart to work things out through Informal Dispute Resolution (IDR) Agreements or Confidential Settlement Agreements, if they can. The costs of due process and any subsequent litigation are far too great for taxpayers to fund when those dollars could be spent on educating children, instead. Spending education dollars on fights over the deprivation of educational benefits just adds insult to injury, honestly.

The evidence is increasingly making clear that far-right politics have way too much influence on public education at various levels of government, from local to state to federal education agencies. This is how public service was infiltrated at its weakest point. Extremists would get elected by an uniformed or misinformed electorate, then hire their cronies to work for them within their agencies, undermining the efficacy of local government while mishandling the finances in order to “prove” that government doesn’t work while arguing for increased local control and reduced regulatory oversight.

Then they pay themselves more than they’d ever earn in the private sector where job performance matters as they slash resources to those expected to actually deliver on the agency’s mandates who work beneath them. This is the climate in which special education violations occur. This is why public agencies defy the regulations to the detriment to some of our most vulnerable children, many of whom coming from low-income households whose parents are often at a loss as to how to fight back. Most parents won’t do anything because they don’t know what to do and don’t realize how badly their children are being hurt in the long run.

If you are a parent whose child did not get appropriate services during shutdown, and who has regressed and may require compensatory services to be brought back to where he/she should be in school, right now, you’re not alone. Whether you negotiate resolution on your own with you local education agency or hire someone to help you, know that many other parents have already started to fight this same fight before you, and some really helpful decisions are coming out of the various venues that can help bolster the arguments you and/or your representatives make on behalf of your child.

I hope this helps you put your own child’s situation into perspective and gives you some ideas on how to go forward in the most constructive and least adversarial way possible. I can only imagine the other families’ stories that out there similar to the ones I’ve described and the case captured by the decision linked to above. All of you are in my heart and I’m praying for you all.

#specialeducation #disabilityrights #disabilities #childrenwithspecialneeds #positivebehavioralinterventions #positivebehavioralsupports #appliedbehavioralanalysis #evidencebased #evidencebasedpractice #regulatorycompliance #compensatoryeducation

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An Appeal to My Colleagues

Urie Bronfenbrenner, Human Development Researcher

I have a million other things I need to be doing right now, but this is one of those moments where if I don’t stop and purge these thoughts from my mind into print, they will torment and distract me until I do, so the sooner I finish this post, the sooner I can get back to work without continued torment and distraction. I wasn’t intending to post, right now, because my caseload is blowing up and my other endeavor, The Learn & Grow Educational Series, is starting to require more of my attention lately as it continues to experience its own growth and expansion. My plate is full, but it’s the reasons why it’s full that prompt me to stop what I’m doing and post this today.

In the course of analyzing the incoming bombardment of data that is my life, I’m seeing the connections between the specific issues I’ve chosen to take on with my professional skills and the turmoil being experienced by the world at large, right now. I’m seeing common allies and culprits across issues, and recurring themes and trends that can be generalized from the work I specifically do to the work that needs to be done overall to cure the defects of reparable systems, and overhaul and replace systems that no longer serve us.

Today’s post is an appeal to my colleagues to think beyond the bubbles and silos in which you may exist as professionals and recognize the need for your respective skills to contribute to much larger solutions on a much simpler scale. Capable, ethical, and responsible people each making what contributions they can along they way, just in the course of doing what they were already going to do, can reshape society into a healthier version of itself. We need to see our everyday activities as substantial contributions to the world that exists around us and appreciate that every little decision we make really does matter. If enough of us are thinking right and making the smart, ethical, and responsible decisions, we can help influence those around us who are less capable, thereby loving our neighbors as ourselves and being our brothers’ keepers when necessary.

We each help make the world we live in be what it is through our individual actions with each other. Those actions and their outcomes become woven together into complex relationships that evolve into established systems supported by nothing but learned behaviors. We don’t do them because that’s the way things work; the reason why that’s the way things work is because that’s the way we do them. That being the case, we have every reason in the world to believe that enough smart, ethical, altruistic people can facilitate healing throughout society to a more powerful degree than a minority of fear-based thinking, hate-mongering cowards can try to destroy it. It comes down to mindfulness and living a life of purpose that serves the common good while also serving oneself and one’s immediate loved ones in healthy and constructive ways.

One of my favorite theorists from human development research is Urie Bronfenbrenner. The lame graphic below is one I created in graduate school so as to avoid a copyright infringement by grabbing someone’s more professional graphic off the internet, but it illustrates the model. Follow the above link for more information about Bronfenbrenner’s model, if you’re not already familiar with it or need to brush up on it. It’s quite sobering in light of current world events.

Bronfenbrenner’s Socio-Ecological Model of Development

Bronfenbrenner realized that, while nature had a certain degree of influence on the raw materials with which each person started out in life, it was the environment in which that person was raised relative to those raw materials that dictated the unique development of that individual person. No two people who have ever existed, exist now, or will exist in the future will ever be entirely identical to each other because, regardless of genetics, actual life experiences that shape people through learning are never identical from one person to the next.

Genetics provide for a whole lot of variability, but they’re still technically finite in spite of their vastness. Environments are ever-changing; they must be adapted-to in the moment via individuals’ behaviors and over time via genetic mutation of the species.

For those of you among my colleagues in special education and related fields who are expected to individualize programming according to the unique needs of each constituent served, this shouldn’t be a leap of logic for you. For people unfamiliar with what it takes to truly individualize something for another person, particularly another person with diminished capacity to communicate their needs, it might as well be alchemy or voodoo.

The bottom line is that everybody thinks differently and has relative strengths and weaknesses. You can’t assume that just because it’s obvious to you, it’s obvious to everyone else. But, you also can’t assume that just because it doesn’t make sense to you, it doesn’t make sense to anyone else, either. The sword of understanding cuts both ways for each of us.

We’re each good at some things and not so good at others; that’s normal. Some people, however, are not so good at recognizing when they’re not so good at something. This goes to another body of psychological science, the Dunning-Kruger Effect, but that’s a whole discussion unto itself that I’ll link to but not delve into, right now. One lay person’s less-than-kind distillation of it, once it was explained to them, was, “So, basically, dumb people are too dumb to know that they’re dumb.”

The point is that those of us who get it have to carry the weight of those who don’t and/or can’t. It’s the opposite of authoritarianism, which demands the compliance of coerced individuals; what is called for, here, is the responsible stewardship of public service agencies to actually serve the public according to their mandates in conformity with the professional ethical standards of their involved professional disciplines.

For those of us supporting the needs of individuals with disabilities, we understand that the situation sometimes requires helping people exercise their informed choices as independently as possible. Other times, our responsibilities require us to protect the rights of those who are incapable of making fully informed choices without our help and are otherwise helpless and vulnerable to exploitation. We understand this better than most people and we need to recognize that we are collectively unique as a result. It’s not that big of a stretch between the issues of conservatorship abuse and voter suppression and nullification laws.

A whole lot of science in the areas of psychology, sociology, communication, behavior, instruction, organizational planning, leadership, and related disciplines has been conducted over the last 100 years. Many of us have access to that research but don’t make the time to follow it. I encourage every one of my professional colleagues to create a saved search for a specific body of peer-reviewed research and, whenever you are able to grab a free moment, take the time to run the search and read something new from the science that tells you something you didn’t already know, then think about ways to incorporate it into what you are doing in your work and follow through on applying them.

What small change in a routine task can you make that applies the knowledge you’ve gained for the better? Over time, how much better will things incrementally get with each little new thing you tweak after reading from your saved search? Is it a relevant authority to something you are currently writing? Does it help you better understand how to individualize a particular constituent’s goals and services? Is there another colleague who you think might benefit from the information with whom you can share it? Can you share your thoughts about it on LinkedIn and/or other professional online platforms in a constructive way?

Nothing exists in a vacuum. The more we recognize and honor the logical connections among our respective professions and how the science applies to out constituents and their service needs, the more we realize that Bronfenbrenner was right.

J. V. Wertsch, who worked with Bronfenbrenner, states in his 2005 review of Bronfenbrenner’s book, Making Human Beings Human,”Starting with the assumption that ‘to a greater extent than for any other species, human beings create the environments that shape the course of human development’ (p. xxvii), Urie has argued that it is incumbent on all of us to create decent, nurturing environments for human development.” [Emphasis added.] In my opinion, that’s something we have yet as a species to do; ants do a far better job of this than we do.

Unfortunately, because we still are not proactively applying Bronfenbrenner’s science as an ongoing element of how our society functions, we still do not love our neighbors just as we love ourselves and we are not our brothers’ keepers when our brothers go astray. We blame and punish people for having weak minds rather than remediate the effects of their shortcomings. As a species, humans generally treat their abilities as unfair advantages and use them to exploit others. They should be humbled by the responsibilities that come with their gifts and use them prudently with good intent, but in the absence of informed, deliberate planning, what has naturally been allowed to come to fruition is a society that rewards abuses of the rules more richly than compliance with them.

Those of us trying to facilitate functional independence among our most vulnerable children and adults know all too well that there aren’t enough of us with the necessary expertise to change the maladaptive behaviors in every bad situation that is collectively poisoning society, right now. The most we can do is the most we can do in our respective situations. We have to hope people will start copying our strategies that work when they see our successes. We need to start generalizing our successes into other areas where the same degree of expertise is not available, just as a matter of making sure our democracy thrives and functions as it should according to what can be proven true and responsibly effective for everybody.

Further, we as a society have historically regarded those individuals on the cusp between “can’t” and “could with learning” as an acceptable shade of gray on the spectrum of social involvement, but now they have become an outspoken and increasingly violent minority of individuals who cannot successfully function with independence in the quickly evolving world. They don’t know how to adapt but they can still wreak havoc on their way down the tubes.

The only difference between “can’t” and “could with learning” is the provision of instruction. The outcomes of both are the same if no instruction is made available; there has to be the “with learning” part in order for the choices of the person who can learn to differ from the choices of the person who can’t.

The problems we are seeing in the world today from misinformation being spread on the internet goes to the degree to which many internet users have no idea how search engines and social media algorithms indulge subjective biases and feed them whatever will increase their engagement without regard for how those choices impact the individual user or society on the whole. When all of our individual choices put together collectively shape the fabric of society, an artificial intelligence that only reinforces user engagement with neutral disregard for the quality or nature of that engagement will, by design, radicalize the most violent of the weakest minds into acts of terrorism. It weaponizes a previously harmless sub-population by turning them against us in irrational, violent ways and selling them the products to do it.

At the end of the day, humans are again proven to be part of nature and not something separate from it. The natural consequences of poor choices eventually catch up to people, one way or another. Sometimes other, innocent people become collateral damage along the way, and its in the interest of minimizing those numbers now and ultimately eliminating them as soon as possible that those of us who already work in professions helping people with disabilities need to generalize our skills into other aspects of human need where possible. What those of us working with individuals challenged by mental health issues already know can be imperative to addressing domestic terrorism.

As an example of generalizing one’s skills beyond one’s professional area of focus, while I still represent students with disabilities and consult with their parents as a lay advocate, provide paralegal support to attorneys representing students with disabilities in various legal proceedings, and design and implement compensatory programs for individuals with disabilities who were wrongfully denied services by publicly funded agencies, I also created something else using my knowledge and skills.

I created the Learn & Grow Educational Series to address food insecurity and sustainable living issues. The science of instruction is also the science of marketing, and social media can be used just as effectively to push learning as it can be used to push sales. In many cases, content creators push both, with the sales funding the instructional content and the instructional content driving the sales in a synergistic way; if it were organic, it would be considered symbiotic. The science I rely upon to determine appropriate educational goals and services for my learners with special needs is the same science I rely upon each time I create a new Learn & Grow learning experience for my online and in-person learners.

Through Learn & Grow, I’m able to teach people everywhere how to grow their own fresh fruits and vegetables anywhere using free and/or inexpensive materials, even if they have no open ground for growing. I use evidence-based instructional practices to teach them how to make self-watering containers from buckets for patio, balcony, fire escape, and rooftop gardening.

These containers are water conservative, using as little as one-tenth the amount of water of in-ground growing, and self-regulating, meaning the soil is never too wet or too dry so long as the reservoir beneath it doesn’t run dry. These containers are portable, meaning renters can take their gardens with them when they move. I’ve moved my own garden five times since I first started it in June of 2013, and the goji berry thicket I started from seeds when I first started the garden is still going strong in its original container, giving me two crops of berries per year.

The design of these containers is totally open-source, public domain knowledge. What is unique to Learn & Grow is the body of evidence-based instruction and project ideas using this gardening method that I provide in person and which lives online through Learn & Grow’s website, Facebook page, Instagram account, and video channels on YouTube: Food for Thought and Learn & Grow with Emmalyn. This is where I was able to apply my skills normally used in special education and disability resources to address other types of challenges the world is currently facing, specifically food insecurity and climate change. In October 2020, I expanded the Learn & Grow curriculum to include sustainable living methods, starting with alternative energy sources and gray water recapturing.

I’ve most recently started conducting online Meetups using Zoom and Prezi for urban gardeners in the greater Los Angeles area who can benefit from Learn & Grow’s instruction regarding self-watering bucket gardens. Without any marketing, my online classes are getting bookings and my Meetup group continues to grow in membership. Once I start marketing it, I expect to reach a larger number of learners who want to be able to grow their own food in their apartments, condos, mobile home parks, and other limited growing environments. This is an adaptation to their environments I can help them make, a lá Bronfenbrenner, to create a greater quality of life using sustainable means in a very healthy way. If they get their buckets used from local restaurants or bakeries, they keep that plastic out of landfills and reuse it for something entirely purposeful.

For me, achieving increased food security, recycling, water conservation, and portability with a single solution is too good of a thing not to share. It’s not directly related to publicly funded services for individuals with disabilities, but it relies upon the same sciences to be successful. I can generalize what I already know from what I’ve been doing professionally for the last 30 years to tackle an entirely different area of need, and it’s not that hard. It’s not any harder than representing a child with special needs in a federal complaint or supporting a child’s attorney in due process, and I can do those things.

Plus, I’m taking advantage of online tools to automate as much of my Learn & Grow content as possible, so the planning phase is followed by the scheduling phase which is then followed by an automated implementation stage that frees me up for months to years at a time to focus on other things, like the individuals on my caseload. I can drip instruction just as easily as I can drip marketing messages using the same online tools.

I also recently rejoined my local Kiwanis club, which is a community service organization. I’m helping the club use Learn & Grow to provide self-watering bucket gardens to community-based programs, like adult day cares and preschools, as well food insecure individuals through local food pantries, hunger relief programs, and shelters. I’m able to address food insecurity through a more direct means by partnering with my local Kiwanis club, which has ample volunteers and existing trusted business partners willing to invest in the right community service projects with their donations. This is a win-win-win for all involved, and it only happened because I went outside of my normal professional duties to tackle another social issue in ways that only someone with my unique skill set could.

All of us have skills and expertise that can be generalized to another problem in the world other than the one about which you spend most of your time thinking. I promise you that finding some other way to express yourself and apply your skills to something hugely constructive towards making the world a better place will open your mind in ways that makes you a better thinker back on your regular job and give you a healthier outlook on life.

Food shortages and economic collapse were the unknowns I most feared back when I started Learn & Grow in 2013. That was only made more real when Learn & Grow was discovered by panicked Venezuelans in 2016 when their country’s economy collapsed and their government subsidized food supply collapsed along with it, leaving them with no food in their stores and no more coming any time soon. I’m not afraid of that, now. My garden has grown to sixty-one self-watering containers and I have four laying hens who give me eggs throughout the year. Come what may, I’ll be okay for food.

The shortages in the stores at the start of the pandemic and the supply chain shortages happening right now have only been slight inconveniences compared to what could happen if the whole supply chain were to collapse altogether. Most people have become dependent upon it, and that’s dangerously unhealthy. If the commercialized food supply collapsed tomorrow, what situation would you be in?

As much as I live and breath special education and disability resource science and law, I can’t have figured out a way to dodge the bullet of a collapse of our commercialized food supply, have the ability to teach people according to their individual capacities to learn, and not use my skills to teach other people what I’ve figured out to survive a very dire time of food insecurity in this country. And, I know I can’t be the only one.

I know there are others of you out there who see issues with social justice, public health, climate change, domestic terrorism, and/or the ongoing threats to our democracy that would benefit from your unique perspectives and skills. Something horrible happening in the world today has factors in common with a problem you’ve already solved. Your solution translates into something that can be generalized to solve other serious world problems. Don’t keep it to yourself.

I’m not special; I’m just specialized in my knowledge and skills, and they can be applied to more than one context. That doesn’t make me unique; it makes me a member of a unique sub-population of individuals with relevant skills.

You, my professional colleagues, can do something about society’s ills today without it being political. Helping people everywhere grow their own food doesn’t take sides in anything. Everybody needs to eat. Food is a basic survival need no matter what somebody chooses to believe. Individual food security is a highly personal and universal topic with which every person can relate. So is access to clean drinking water, safety from violence, affordable housing, and a host of other issues begging for your expertise.

Most cultural disputes are about access to resources, and the United States is experiencing a cultural civil war, right now. It is fueled by misinformation meant to tear our country apart being published online by bad actors exploiting the capable hands of people with weaknesses of the mind who fear losing what they have to imaginary threats they believe to be real. People who can’t or won’t face their real problems will imagine things to be their absolute worst without confirming whether they actually are. They catastrophize things. It’s a symptom; it’s not healthy. It’s a feature of anxiety, which is always about lacking predictability. They cling to the familiar because they can’t predict anything else and their fear of the unknown is greater than any discomfort they may feel, if any, in their predictable routines.

People who can’t actually understand what is really going on have no sense of predictability about what is about to come. They will pin their expectations to what they want to happen next as opposed to what the facts dictate will happen next. They can’t follow an evidence-based thought process, so they substitute it with wishful thinking, but unrealistic expectations are just preconceived resentments. When things don’t turn out according to their wishes, they get mad at reality and insist that it bend to fit their fantasies rather than adjust their expectations according to what actually is. They don’t understand everything going on, so they can’t adjust their thinking according to all the relevant facts.

How can you, as a professional, interact with people who exist in this state without demeaning or condescending to them? Can you interact with them fully understanding that, like many of the individuals with disabilities we serve, these people are doing the best they can with what they have and they need our loving, responsible guidance to find their ways to the right side of things? If we just help them address their needs in more pro-social ways, they won’t feel compelled to attempt to meet them in anti-social ways. It’s basic ABA.

I’m asking my professional colleagues to please strongly consider using your knowledge and skills to address any of the many nonpartisan issues that are currently challenging the human species, right now, that are outside of your normal area of practice. See if there is a Kiwanis club in your local area that could use your help. Identify an unmet need in your local community and find out what is needed to address it, then find other people who have the necessary skills that you lack and start your own thing. Just find a way to contribute, even in a small way, to a nonpartisan issue in your community that isn’t currently getting enough attention.

The technology available to us today is a tool, but, like a hammer, it can build or kill depending on how it is used. I’m with Urie Bronfenbrenner on this one; we should use our knowledge and resources to make the world a place that meets everyone’s needs, rather than a place that meets the needs and wants of those who know how to exploit and take advantage of those who don’t. The tools now available for people to collaborate and get things done remotely, thanks in no small part to the necessities that arose with the pandemic, are phenomenally powerful and easy to use. The tools to create online content decrease in cost and become increasingly rich in features over time, and most people only need a few good features to make stellar content. Learn more about the ways you can participate in your citizenship in nonpartisan ways by studying the research on servant leadership.

If you find yourself in an environment in which acting in the short-term for immediate gain comes at the cost of considering the long-term consequences, and you can’t be a positive influence for more responsible thinking and planning, get out. You’re wasting your precious gifts on people who will never appreciate them and would use them to harmful ends if you let them. There are other places you can go where your gifts will be appreciated and put to proper use, where you can earn a decent living and live with yourself in peace. You just have to take the time to find it or create it. That’s not always easy, but it’s always worth it.

There is no way to memorize a script for every possible thing that could happen in the future in order to be prepared for if/when it happens. Nobody can remember that many scripts, much less predict every possible future in advance and develop a script for it before everything changes and new scripts are needed. Living a life that follows the same specific script in order to keep it predictable is a symptom, not an adaptive strategy. That’s not participation; it’s approximation. It’s parallel play.

The only way a collective of people can work together towards a common goal is to act according to common guiding principles. For example, if everyone helping with Learn & Grow agrees with and abides by the guiding principle of, “Make sure everyone can grow enough healthy food to survive, come what may,” whatever decisions they face along the way will come down to whether or not their choices facilitate everyone growing enough food for themselves, come what may. If you have a fixed outcome in mind, it’s the next best thing to having a script for every possible contingency. Having that fixed outcome limits the number of actions you can take, so it whittles down your choices to a more manageable list of alternatives. The more ethical conditions that have to be satisfied by the solution, the narrower the options, meaning the easier it is to decide.

What makes leadership and decision-making so overwhelming for most people is the sheer number of possibilities and figuring out which one makes the most sense. By using a consistent, agreed-to guiding principle as a “North Star” for decision-making, team members can be consistent among each other with their choices and actions towards achieving the common good. We don’t need a savior to swoop in and save us. We just need to be mindful of how our actions throughout the day shape the world around us and consciously choose actions that promote the things in the world we want to see based on what we’ve learned from all of our life experiences, including those most commonly associated with work, even if at only the tiniest level. It all adds up in the end, and every little positive contribution matters.

This is mindfulness meeting purposeful action, and I hope you’re inspired use your gifts to help in impactful, constructive ways that remind everyone you touch that we only get through these terrible times by working together. Because of your professional skills, you’re in a unique position to help humanity survive this time of upheaval and transition and thrive once the worst of it has passed. I look forward to seeing what truths each of you end up speaking to power over the next few years and appreciate the efforts of all of you who choose to contribute in ways you can towards a better tomorrow for everyone.

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Pandemic Era Special Ed.



This video is not a regular part of any of our YouTube or Patreon programming. It’s something that we just needed to put out there because there are a lot of parents looking for answers, right now, and we have at least some answers that can benefit many families of children with disabilities and an ethical obligation to share that knowledge.

This isn’t a short video, but that’s what the pause button is for. You can always save it and come back to it later to finish, if you need to. You can watch it once and save it in case you need to refresh your memory later on about something. It’s a tool to help parents still dealing with shutdown and distance learning involving their children with special needs.

We’re going to leave this up on our YouTube and Patreon channels, our Facebook page, and our blog for so long as it remains relevant because we expect a whole lot of families will be going online searching for answers throughout this current new school year as the pandemic continues to rage throughout the country. No one really knows how long it will be before the pandemic is brought under control, and we all have to be prepared for shutdowns to come and go periodically as flare-ups happen until it is finally reigned in. Right now, many areas are currently on shutdown, including many parts of California.

Mentioned in this video, are two reference items:

  • New California legislation and California Department of Education (CDE) guidance as to school districts’ duties under the law, as supplemented by the new legislation, including the provision of in-home, in-person special education services if they are necessary for students to receive a Free and Appropriate Public Education (FAPE) during shutdown: https://bit.ly/3jInffh
  • A recent stay-put order issued by California’s Office of Administrative Hearings (OAH) requiring in-person, in-home services to implement a student’s IEP during shutdown: https://bit.ly/3hZfnFA

Additionally, in the video, the procedures adopted by one school district to provide in-person, on-campus special education assessments during shutdown using appropriate safety protocols were referenced. They can be viewed here: https://bit.ly/3jOkycf

Also, the book, From Emotions to Advocacy, by Wrightslaw, was referenced during the video as an excellent resource for parents trying to keep their cool and work strategically as they advocate for their children with special needs. You can find it here: https://amzn.to/31WH0JV *

If you have questions about special education, including school closure-related concerns, please post a comment or email us at info@kps4parents.org. Find us online at https://kps4parents.org.

Facebook: https://facebook.com/KPS4Parents

Twitter: https://twitter.com/KPS4Parents

YouTube Special Education Quick-Fix Videos: https://bit.ly/2Z0951d

Patreon Channels: https://www.patreon.com/KPS4Parents

Anne’s t-shirt reads, “Science. Because figuring things out is better than making stuff up.” While we couldn’t find the exact same design, we found this great design with the same statement at: https://amzn.to/3i1d7xC *

* Note: Fundraising affiliate links are included in this post. KPS4Parents is a non-profit organization and funds raised are applied towards our costs of providing low cost and pro bono lay advocacy services to children with special needs and their parents who are unable to pay our regular hourly rate, which is billed at cost.

Donations can be made to https://paypal.me/learnandgrow.

Copyright 2020, KPS4Parents. All rights reserved.

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Understanding Who’s Responsible for FAPE with NPS Placements

I had an experience today at an IEP meeting for a student we represent that made me realize that there is some confusion out there amongst parents and educators about who (or what entity) is responsible for which aspects of a student’s IEP when the student has been placed in a non-public school (“NPS”) placement. This posting addresses this area of confusion and will hopefully make sense of the situation.

In our client’s situation, her IEP calls for certain things that are currently being provided by her NPS placement, which is not as restrictive of a setting as other NPS placements in the Greater Los Angeles Area, but is more restrictive than a public school setting. For her, it’s the Least Restrictive Environment (“LRE”) relative to her needs.

To say that this certain NPS conglomerate is politically attached at the hip to Los Angeles Unified School District (“LAUSD”) is a gross understatement. It was this incestuousness that made understanding who was responsible for what so confusing to the parents, the NPS teaching staff, and the District rep present at the IEP meeting – though the District rep finally understood what I was trying to make clear. The problem was that even though she finally got what I was saying, she had no authority to do anything about it.

The District-level deal making – which the NPS’ administrator didn’t seem to have a problem discussing with great candor – had occurred with far higher-ranking District personnel than the poor school psychologist sent to our IEP meeting on behalf of LAUSD. Without going into the gritty details (which is only going to make me mad all over again), I want to focus on the technical considerations. Hopefully by doing so, I can prevent other IEP teams from struggling over these same issues.

The problem was that our student has experienced a medical condition that she will now have for the rest of her life. Now, due to this condition, she can no longer take the medications that were addressing some of the learning issues that arise from the handicapping conditions that make her eligible for special education. This has changed her special education needs and has resulted in a new need for which some tweaking of her IEP was required. She needed additional accommodations and modifications to address homework completion issues and potentially some type of service to assist her with getting her homework done.

The NPS currently offers an after-school homework club, but even though it is an NPS serving students on IEPs at public expense, it was charging the parents a fee for her participation in the after-school homework club. This flies in the face of the definition of a Free Appropriate Public Education (“FAPE”).

34 CFR Section 300.17 defines a FAPE as being special education and related services that are provided at public expense and without charge to the parents, among other things, hence the use of the word “Free” in “Free Appropriate Public Education”. The imposition of a charge in order for our client to receive educational benefit amounted to a denial of a FAPE.

However, the NPS administrator was quite verbose during the IEP meeting (which we audio recorded as per parents’ rights) about how her NPS and the District had worked it out so that the after-school homework club would never be placed on students IEPs and was only offered as an “extra-curricular activity” such as music or sports teams rather than as a related service. I’m not going to belabor the point of just how non-compliant that is, but suffice it to say that a whole due process case could be built around that issue alone.

The NPS and the District had reached an agreement to refuse to put something on students’ IEPs even if it was educationally necessary. Presumably this was because the District didn’t want to have to pay for the service and was attempting to pass the expense on to the families of students attending the NPS. And, this NPS gets the bulk of its business from LAUSD. Rather than stand its ground and refuse to participate in unlawful activity, it hopped right into bed with a school district that has been under a Consent Decree from the Federal Courts since the 1980s for failing to implement compliant special education programs as a willing accomplice.

The parents were upset with the NPS, which heavily markets itself as being a heavy-hitter in the area of non-public schools for children with special needs. However, as disgusting as the NPS’ policy is, it’s not the NPS that bears the burden of providing its students with a FAPE. That burden is borne by the students’ individual school districts. In this case, the school district responsible for our client’s receipt of a FAPE was LAUSD.

The problem is that LAUSD and this NPS have gotten into bed with each other to develop a “take-it-or-leave-it” package deal. If a student requires anything beyond what the NPS offers, even if it’s just a supplemental related service, their collective answer is to suggest that the student be placed at a different NPS.

So the NPS administrator suggested that our client, who is finally having a good school year in every regard except certain aspects of homework completion, should be uprooted and taken away from her friends and familiar learning environment so she could get supplemental support with homework, which is outrageous to say the least. It certainly wasn’t an offer of a FAPE (failing on the “Appropriate” of “Free Appropriate Public Education”). The LAUSD rep started to go down this path with her until we said, “Wait a minute!” They were throwing out the baby with the bath water.

The real answer was for LAUSD to push in some kind of additional support in addition to the NPS placement and make it part of the student’s IEP. But, as I said, the rep that LAUSD sent in did not have the authority to do any such thing. We would actually have to file for due process to effect such a change to our client’s IEP; in any other school district, the same change would have been achieved within 15 minutes via a few emails and an administrative amendment that didn’t even require an IEP meeting.

We ended up informally agreeing that the parents wouldn’t be charged for the after-school homework club by the NPS as well as adding accommodations and modifications to the IEP and making some changes in the student’s related services to better support her needs. But, we couldn’t get the District to agree to put anything in the IEP that obligated it to pay for the support that had already proven to work, that being the after-school homework club. The NPS simply informally agreed (though it was captured on the audio recording) to eat the $15 per session fee.

This is less than desirable because, should the NPS shut down its after-school homework club, there is nothing to obligate the District or the NPS to continue supporting this area of need in our client’s IEP. We would have to come back to the table to come up with another idea, the NPS would again suggest that our client change schools in order to receive this one relatively simple service, and we’d probably end up having to file for due process just to get some kind of after-school homework support added to her IEP, which is ridiculous. That’s a tremendous waste of taxpayer resources to fight something that is so commonly provided pretty much everywhere else without even a hint of acrimony.

The point I want to make here is that parents should not be running to their children’s NPSs asking for things that are the burdens of their school districts to provide. NPS personnel should not be telling parents “Your child can’t have that service because we don’t provide it. You’ll just have to change schools.” What goes into an IEP is an IEP team decision and school districts should be sending representatives to all its IEP meetings who are empowered to actually facilitate a compliant IEP team meeting in which the team members – not some smarmy back-room dealings between the District’s upper administration and non-public entities sucking up and willing to aid an abet in the denial of a FAPE in exchange for a large block of business – determine the content of students’ IEPs as required by law.

Click here for the podcast version of this article.

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Podcast: Understanding Child Find & When SSTs are not Appropriate

On November 27, 2008, we originally published. “Understanding Child Find & When SSTs are Not Appropriate.” As we begin to move into the new school year, KPS4Parents will be recording many of our past text-only articles as podcasts so that busy parents, educators, and interested taxpayers can download them and listen to them at their convenience.

As always, feel free to comment on our content. We appreciate the input of our readers and listeners to bring you the information you seek. You can either comment below or email us at info@kps4parents.org.

Click here to download the podcast “Understanding Child Find & When SSTs are not Appropriate.”

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Get Your Facts Straight When Filing Complaints

As much as I personally hate filing complaints against public agencies, sometimes I find it necessary in order to achieve an appropriate outcome for a student with special needs.  It’s not the task of putting together a complaint that bothers me; after over 18 years of advocating for students with special needs, I’ve gotten pretty good at assembling the necessary evidence and figuring out what allegations to assert.  What I hate is what makes complaints necessary – somebody is doing something that deprives a child, to that child’s detriment, of an educational right and that just makes my blood boil.

In special education, there are several types of complaints that can be filed:  due process complaints, compliance complaints, and 504 complaints for the most part. Regardless of what type of complaint needs to be filed, you absolutely, positively must have your facts straight and your evidence together to support the facts of the case.

For the purpose of illustrating my point in this blog posting, I’m going to focus on the filing of compliance complaints with your state’s Department of Education.? Compliance complaints are filed when your local education agency (“LEA”) has violated the regulations and failed to follow the proper procedures, whether those are state or federal regulations.? Compliance complaints do not address issues involving substantive harm; those are the kinds of issues that get addressed by due process complaints.

To help distinguish between the two types of complaints, let’s say that a child’s parents disagreed with his school district’s recent special education assessment results and requested an independent educational evaluation (“IEE”) at public expense but the school district denied the request and took no further action.? Procedurally, this is a violation because the only way an LEA can legally refuse to fund an IEE is to prove through a due process hearing that the assessment with which the parents disagreed was competently performed and sufficient under the requirements of the regulations.

Therefore, in order to deny the parents’ request for the IEE at public expense, the school district would have had to file for due process to assert the appropriateness of its assessment.? All things being equal, it’s usually far less costly for the LEA to simply fund the IEE than to sue the parents to dispute it.

However, let’s say in this example that not only did the district refuse to fund the IEE and fail to file for due process, but that the child continued to fail to receive educational benefit because he had not been competently assessed in all areas of suspected disability by the district and the parents had been right to disagree with its assessment and ask for an IEE.? Now, the child has been substantively denied a FAPE because the IEP team had been without sufficient information about his needs to craft an IEP that was reasonably calculated to render educational benefit.? Further, his parents were denied meaningful participation in the IEP process by being deprived of necessary assessment data and the opportunity to get it via an IEE, which can also be found to result in a denial of a FAPE.

This is the kind of thing that results in a due process filing because the question at this point is:? How much educational benefit did the child fail to receive and what type of compensatory education is he due to make up for this substantive harm? It’s no longer just a matter of whether the district failed to follow the proper procedures; now it’s a matter of what harm resulted from its failure to follow the proper procedures.

Sometimes when parents and advocates are trying to prevent litigation, the best way they can do that is with a well formulated compliance complaint.? If you can get it sustained that the law was broken, you’ve eliminated 50% of the examination a hearing officer would otherwise have to make if the matter were to go to hearing.

A compliance investigator only has to determine whether or not the law was broken.? But a procedural violation that results in substantive harm that is taken straight to due process requires the hearing officer to first determine whether a procedural violation took place and then whether it resulted in substantive harm.

If you have compliance complaint findings that establish for the record that the law was, in fact, broken then the only thing the hearing officer has to determine is whether or not substantive harm resulted from the unlawful conduct.? That the law was broken is a foregone conclusion and presumed to be fact.

This is why, in most cases where I’ve had to file compliance complaints, things quickly de-escalate once the results come back.? The involved LEA knows that any findings against it will end up in evidence and they will have a lot of explaining to do if the case goes to hearing.? The best way to prevent litigation is to prepare for it.

But this sword cuts both ways.? If you file a compliance complaint and the LEA is found to have operated within the law, a copy of your compliance complaint and the findings of compliance will likely be introduced into evidence in due process by the LEA to demonstrate that it hasn’t broken the law and that you are a crackpot filing unfounded complaints, thereby suggesting that your due process complaint is also unfounded and you shouldn’t be taken seriously by the hearing officer.

Due process is not the place to argue that a complaint was wrongly determined by the state’s Department of Education.? There is a separate appeal process for that and a special education hearing officer lacks the authority to overturn a compliance complaint decision or re-try the issue.? The results of a compliance complaint are taken at face value in due process.? Therefore, it’s critically important that you do it right when you initially file so that you are less likely to encounter unnecessary problems later on and that means starting out with having your facts straight and evidence in order.

As with any type of complaint process, compliance complaints are supposed to involve an examination of the facts and a comparison of those facts against the procedural requirements established by the regulations.? Facts are not he-said/she-said opposing points of view.? Facts are things that are borne out by the evidence.

It is in an effort to preserve the facts for the record that we audio record every IEP meeting we attend on behalf of the parents, do everything we can with public agencies in writing (even if that means memorializing our telephone conversations in emails or letters), and request a copy of each student’s records on behalf of his/her parents when we begin a new case.? A comprehensive records review is a necessary part of each case we do.? By arranging all of the documents in chronological order, we can go step-by-step through the story as told by the record and then reconcile that against what the parents told us when they first came to us.

If we become aware of any violations, our first step is usually to document them in a records review report to the parents.? In the very least, we’ll list them out and have a meeting with the parents to talk about them.? From there, our next step as lay advocates is usually to write a letter on behalf of the parents to their LEA outlining the violations and specifying requested remedies, bearing in mind that the remedies we can ask for are limited by what is reasonably achievable were we to file complaints.

Most times, LEAs respond to a succinctly organized and worded demand letter in a constructive manner.? While we’d like to think that this is mostly due to an administrator’s well-intended desire to do the right thing, it has not escaped our attention that it is rather frequently the case that administrators just don’t want to get sued.? They can see how the problems we’ve outlined would not reflect well on the LEA in a compliance complaint or at hearing and the remedies we’re asking for are entirely reasonable.

On the rare occasion that some high-ranking person within the LEA loses his/her mind and decides to treat the situation as a power struggle rather than an attempt to resolve a dispute, our documents speak for themselves and things usually come together eventually.? That’s because we’ve gotten our facts straight and don’t assert things that cannot be borne out by the evidence.

So, in our example above, where the parents disagreed with their district’s assessment and requested an IEE at public expense, which the district subsequently denied and took no further action, we would first go to the district and point out the error of their ways, asking them to please fund the IEE.? If the district dug in its heels further rather than do the right thing, we would then file a compliance complaint alleging a failure to follow the proper procedures when a parent requests an IEE at public expense.

To demonstrate the facts of the case, we would attach as exhibits the following items:

  • The parents’ letter indicating their disagreement with the district’s assessment and requesting the IEE at public expense
  • The district’s letter denying the IEE
  • Our follow up letter pointing out that the district has to file for due process if it’s going to deny the IEE and asking that it reconsider and fund the IEE.

We would be sure enough time had passed after our demand letter for the district to file for due process, then let the record show that it didn’t before filing the complaint.? The more likely outcome, however, is that the district would cough up an assessment plan for the IEE.

You need to be aware of your state’s timelines for filing compliance complaints.? You can contact your state’s Department of Education compliance complaint unit for more information about the complaint timelines.? (In California, it’s one year from the date you knew or should have known about the violation – essentially, one year from the date the violation occurred.)

An example of what not to do might look like this: A parent verbally disagrees with the LEA’s assessment during an IEP meeting and requests an IEE at public expense.? Her disagreement and request are not recorded in the IEP meeting notes.? The LEA’s special education administrator tells her at the IEP meeting that someone will get back to her on her IEE request.? She submits nothing in writing to the LEA expressing her disagreement and weeks pass with no response from the LEA regarding her verbal request for the IEE that was made during the IEP meeting.

Finally, she decides to file a compliance complaint.? She writes a letter to her state Department of Education alleging failure to follow proper procedures in response to a parent request for an IEE at public expense.? She explains in her complaint that she made a request for an IEE after disagreeing with the District’s assessment at the IEP meeting.? An investigation gets opened and the parent gets a phone call from the investigator.? The call might go something like this:

Investigator: “Mrs. Jones, when did you inform the district that you disagreed with its assessment?”

Mrs. Jones: “At the IEP meeting of August 30, 2009.”

Investigator: “I’m looking at a copy of the August 30, 2009 IEP and can’t find any reference in this document to any disagrement on your part to the assessment or a request for an IEE.? Can you tell me what page it’s on?”

Mrs. Jones: “It’s not on any page.? They didn’t write it down.”

Investigator: “Did you subsequently submit anything in writing expressing your disagreement and requesting an IEE?”

Mrs. Jones: “I didn’t think I had to.? We talked about it at the meeting and the administrator told me someone would get back to me about it.”

Investigator: “Did you audio record the IEP meeting?”

Mrs. Jones: “No.”

Investigator: “Mrs. Jones, are you aware that the District claims that you never disagreed with its assessment or asked for an IEE?”

Mrs. Jones: “What?!!!!!”

A few weeks later Mrs. Jones gets a letter finding the district in compliance, explaining that there is no evidence of wrong-doing.

Another example of what not to do would be: A parent is speaking with her child’s teacher at the end of the school day as she picks him up from school.? Unbeknownst to this parent, the teacher has grown to dislike the principal over some unrelated issue.? The teacher will also gossip with whoever will listen, including the parent.? The parent is largely indifferent to the information the teacher discloses to her, but she wants the keep things cool between herself and the teacher for the sake of her child, so she indulges her.

On this particular day, the teacher tells the parent, “I probably shouldn’t be telling you this, but we had a meeting the other day and the principal told us that she doesn’t believe in full inclusion. She’s planning on placing your son in a special day class at another campus on the other side of town as soon as she can.? I just thought you should know.”? The parent understandably freaks out.

Knowing that placement decisions can’t be made outside of the IEP process, the parent panics and files a compliance complaint the next day alleging that the principal has failed to follow the proper procedures to change her son’s placement.? As it turns out, there is nothing in the record to suggest that the principal had any intentions to try to change the child’s placement.? When asked about it, the principal has no idea what is going on and claims she never said any such thing.

When the teacher is asked about it, she says that the parent must have misunderstood her.? She? tells the investigator that she did tell the parent about a staff training she attended on full inclusion and the types of students who can be fully included, but she never said anything about this parent’s child specifically.? “Besides,” she tells the investigator, “the principal can’t change any special education student’s placement.? That’s an IEP team decision.”

Now the parent looks like a fool and of course the allegation isn’t sustained.? The parent had a knee-jerk reaction and failed to confirm the facts.

The proper course of action would have been for the parent to request a copy of her son’s student records and write a letter to the principal asking if the principal has any concerns regarding her son’s placement that would make the principal think that his placement needed to be changed.? The principal would have been compelled to make the record in response and write back with a formal response.? Upon receiving the records and the principal’s response, the parent would have then been in a position to determine whether or not there was even a need to file a complaint, much less any evidence to support the allegation.

I hope you can see from this how important it is to have your facts straight and your evidence in order before you go off accusing people of anything.? Even if your allegations are true, you have to be able to prove them or they may as well not be.