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Using ABA Principles to Navigate the IEP Process

Photo credit: Joe Loong

One of the things I’ve been trying to get across to people for years is the understanding that Applied Behavioral Analysis (ABA) is a science, not a special education service, much less a service specifically for students with Autism Spectrum Disorders (ASDs). The confusion arises from the fact that instructional strategies and behavioral interventions based on the principles of ABA, which work with all learners, just so happen to also work for students with ASDs and often it’s the only approach that does.

As such, the demand for ABA-based programs for students with ASDs, and the peer-reviewed research around its efficacy with this particular population, has resulted in confusion among the lay public as to what ABA actually is. Because so many people in public education and the families that rely on it only see ABA used with respect to ASDs, they think that’s all it’s for, and this is a gross failure on the part of the professionals who know otherwise to set things straight.

This is why I’ve been trying to get this point across for so long. Knowledge powers solutions for parents, which is the whole reason our organization exists. The absence of relevant knowledge on behalf of any of the stakeholders in the IEP process can prevent students with disabilities from getting the kinds of help they actually need, so a failure to appreciate that ABA applies to anyone or anything that behaves can have dire consequences for students who would benefit from ABA-based interventions, even if they have conditions other than ASDs that create these needs.

That’s a whole conversation unto itself, but that’s not the focus of this post. Because ABA applies to anyone and anything that behaves, it therefore applies to all the members of a student’s IEP team. For parents, the science of ABA can be not only constructive with respect to developing an appropriate IEP for their children, but also in navigating the behaviors of the other IEP team members during IEP meetings and related exchanges with public education agency personnel, which is what I’m focusing on in this post.

To be clear, ABA is not a method or strategy. It is a way of describing behaviors according to how they naturally occur. When it is used to make something happen, it’s all about how to interact with others in a way that promotes the behaviors we want to see from them. Used ethically in a team context, it keeps conversations productive and collaborative. However, the proverbial snake oil salesman “selling ice cubes to Eskimos” abuses ABA as part of a con to manipulate people’s behaviors for personal gain at other people’s expense.

The thing to understand is that ABA is a reality-based approach to understanding what is going on and planning what to do about it. It isn’t an invention; it’s simply a tool that measures what already is. That data can then be used to change how things are. So, it’s not like I can give you a checklist of things to do, whether you understand them or not, and you’re off and running. You need to understand the underlying science, which I’m going to grossly oversimplify here to make the concepts as digestible as possible.

Before I launch into what ABA is, I first have to back up and explain the three key tenets of science. Science relies on:

  • Determinism – an understanding that there is a logical, evidence-based explanation for everything in existence.
  • Empiricism – an understanding that every evidence-based explanation can be described in quantifiable terms using fixed increments of measure.
  • Parsimony – the understanding that the simplest explanation that fits the measured evidence is the correct explanation.

That’s not an ABA-specific thing. That’s how all science works, and ABA is a science.

Like a financial audit, science renders reality down into measurable bits that can be analyzed for black-and-white, yes/no answers, regardless of what is being discussed. There is a reason that “accounting” and “accountability” share a common root word. Financial audits examine accounting records for accuracy because those records are supposed to account for where money has gone or will go. For this reason, accounting is actually a science.

All other forms of science account for things the same way, measuring what is according to fixed increments of measure and giving us an accounting of what is really going on. Such is the case with ABA.

The increase of neo-fascism in America, in which science is frequently denied, is really a rejection of accountability and/or a significant detachment from reality consistent with mental illness. It’s about skewing numbers (like the 45th President attempting to offload COVID-infected cruise ship passengers at the beginning of the pandemic onto Guantánamo Bay so as to prevent the numbers of infection cases in the United States from going up) or otherwise pretending the numbers are untrue (like “The Big Lie” told by the 45th President regarding the vote count in the 2020 Presidential election), so as to avoid being held accountable.

Science is all about explaining reality using numbers, which requires the application of mathematics. There’s only one right answer to a math calculation. It never ceases to amaze me the number of people who grasp this concept when it comes to money, but not with anything else.

These are generally the kinds of people who own profitable businesses and use their money to hire private jets to fly to Washington, DC, so they can attempt to violently overthrow our government because they fear accountability and equate any perceived loss of privilege or unfair advantage with oppression. Oppressed people can’t afford private jets, in case you were wondering. These are also the kinds of people who end up in handcuffs over cooking their companies’ books, once the accountability finally catches up with them.

When you understand science as a form of accounting for anything that exists in numerical terms, just as with money, it isn’t possible to take it as an affront to your belief system, unless you believe things – or are trying to convince other people to believe things – that are not true. There is no rule that says we have to like the truth.

An intact person will acknowledge an undesired truth and deal with it. A person engaging in disordered thought will attempt to argue against it and assert beliefs unsupported by evidence as fact, thereby confusing opinion with fact and arguing against what they don’t want to be true as though it really isn’t.

As a parent going into the IEP process, you need to stick to the facts. An IEP is all about measurable annual goals that describe what your child is supposed to be taught and how to measure the degree to which your child learns from that instruction. Services are determined on what is necessary to achieve the degree of success targeted by the goals and placement is determined according to what setting(s) are the least segregated from the general education setting in which the services can be delivered such that the goals are met. The entire process hinges on the appropriate application of the relevant sciences.

As a parent, know going into the IEP process that it is scientifically driven and, therefore, relies on measurable facts to inform your child’s educational planning, plus it must do so according to the rule of law. The whole system was designed with the education agency’s accountability to the individual student and the student’s family in mind, which is why it boggles my mind every time I encounter anything but that in the IEP process.

Specifically with respect to using ABA to navigate the behaviors of the other team members as a parent attempting to exercise your federally protected right to meaningful participation in the IEP process, there are some ABA-specific concepts you first need to understand. The first concept is that of ABC data collection and the second concept is that of reinforcement.

ABC data collection is a process used to determine the function(s) of a specific behavior. The “A” stands for “antecedent,” the “B” stands for “behavior,” and the “C” stands for “consequence.” Each of these has a specific operational definition in ABA, and any deviation from their respective definitions means whoever is taking the data is not actually practicing ABA.

An antecedent in ABA is whatever happened right before the behavior that triggered it. When you’re talking about students, the presentation of a task demand can be the antecedent to a challenging behavior being addressed by an IEP, for example. When you’re talking about corrupt and/or incompetent public agency officials in an IEP meeting, the presentation of a parent request could be the antecedent to some kind of challenging behavior displayed by educational agency personnel, as another example.

The behavior in the ABC data collection process is the actual observable behavior being addressed. In the example involving a student just given, let’s say the challenging student behavior upon the presentation of a task demand involving a worksheet, is verbal aggression while tearing up the worksheet. In the example of a difficult IEP team member, let’s say the challenging behavior upon the presentation of a parent request is a bunch of hyperbolic excuse-making and changing the subject.

The consequence in ABA data collection is the immediate outcome produced by the behavior, specifically the pay-off the individual gets by engaging in it. This is an important distinction because it is often inaccurately reported in school-based behavior assessments, where the previous century of relying on a punishment model of behavioral intervention regards “consequence” as something meted out by staff. That is wholly inaccurate. Anything the staff does in response to the behavior, whether it works or not, is a “reactive strategy,” not a “consequence” within the meaning of ABA.

The point of identifying the actual consequence achieved by engaging in the behavior is to determine the function served by the behavior for the individual engaging in it. Once the function of the behavior is understood, you can choose how you want to respond to it in a constructive way. When you don’t know the actual function of someone else’s behavior, you can respond to it in a way that hurts more than helps the situation. Identifying the function of an inappropriate behavior is entirely necessary before an evidence-based approach can be developed to address it.

So, using the examples I just gave, let’s say that the consequence of the student engaging in verbal aggression and tearing up the worksheet upon the task demand being presented is to escape/avoid the task demand. With respect to an IEP team member engaging in hyperbolic excuse-making and changing the subject when a parent makes a request, the function of the behavior is to escape/avoid addressing, much less honoring, the parent’s request.

In both of these examples, the function of each of the hypothetical behaviors described were both escape/avoidance, but this is not the only function a behavior can serve. Behaviors happen for only one of two reasons: to get something or get away from something.

As such, behaviors can be reduced to a one or a zero, depending on whether its function was to get something (1) or escape something (0). Even the most complex behaviors can thus be reduced down to simple binary code as the most parsimonious way to describe what is happening.

In ABA, the functions of a behavior are typically described as access/attainment, escape/avoidance, and automatic. Automatic reinforcement speaks to behaviors that address internal drive states, such as physical wellness and emotionality, but even those are based on access/attainment or escape/avoidance. Sensory-seeking and/or sensory-avoidant behaviors are based on automatic reinforcement for someone with sensory processing issues based on their unique neurology, for example.

That leads us to the second key concept of ABA that you need to understand, which is that of reinforcement. A reinforcer is anything that increases the likelihood of an individual engaging in a specific behavior in response to a specific antecedent. If the consequence of the behavior is reinforcing, the individual will continue to engage in it whenever that specific antecedent is presented in order to achieve the reinforcer.

For example, if you get hungry (antecedent) and go put money in a vending machine and push the right buttons (behavior), you will get food (consequence). The function of the behavior is access/attainment of food to satisfy your hunger. It’s pretty simple.

Reinforcement can be positive or negative, but these are not judgments of “good” or “bad.” Just as with magnets, the poles of the Earth, and batteries, the terms “positive” and “negative” have specific meanings within ABA that are also frequently misunderstood in special education behavioral interventions. In reality, when it comes to ABA, “positive” means “to present” and “negative” means “to withdraw.”

Positive reinforcement, therefore, is the presentation of something that is likely to reinforce a specific behavior. Negative reinforcement is the removal of something unwanted in order to reinforce a particular behavior. The aforementioned vending machine scenario gives an example of positive reinforcement because food is presented in response to the behavior of putting money into the vending machine and pushing its buttons. Both forms of reinforcement were best explained scientifically back in the early days of behaviorism by B.F. Skinner using what came to be referred to as a “Skinner Box.”

In Skinner’s positive reinforcement experiments, rats in a cage were taught to pull a lever in order to access food pellets. At first, pulling on the lever was accidental, but as soon as food came out, the rats quickly learned that engaging in the behavior of pulling the lever resulted in the presentation of a food pellet. The presentation of the food pellet reinforced the pulling of the lever.

In Skinner’s negative reinforcement experiments, rats in a cage with an electrified floor that delivered mild shocks to their feet learned to pull a lever in order to turn off the electrification of the floor. Again, at first, pulling the lever was accidental, but as soon as their feet were no longer getting zapped, the rats quickly learned that engaging in the behavior of pulling the lever resulted in the termination of discomfort caused by the electrified floor of the cage. The removal of the electrification reinforced the pulling of the lever.

In both cases, the behavior of pulling the lever was reinforced. It’s just that one form of reinforcement provided access to something preferred and the other removed something aversive. Again, this can all be reduced to getting something (1) or getting away from something (0).

In the IEP process, you’re either getting what you want for your child or you are not. The public education agency personnel are either satisfying their agency’s agenda or they are not. The whole situation is riddled with ones and zeros depending on what you are talking about and who is involved.

Again, this is all a gross over-simplification of these basic ABA concepts. There are other considerations that have to be taken into account, such as setting events, otherwise known as Motivating Operations (MOs). MOs increase the likelihood of a specific antecedent triggering a specific behavior.

In our previous example regarding the student becoming verbally aggressive and tearing up a worksheet upon the task demand being presented, it could be the case that the student normally complied with task demands but, that particular day, the student had a stomach ache and didn’t have the concentration and stamina to engage in the task when it was presented. As such, the antecedent was still the presentation of a task demand, but that antecedent occurred in the presence of the MO of a stomach ache, and the consequence was still to escape/avoid the task demand.

Similarly, in our example previously regarding education agency personnel engaging in hyperbolic excuse-making and changing the subject in response to a parent request for something, it could be the case that said personnel would have normally agreed to honor the parent’s request, but that morning there had been an agency budget meeting in which personnel were told they would be subject to disciplinary action from the agency if they committed the agency to services for students that cost more than a certain amount, which is illegal but nonetheless happens all the time. As such, the antecedent was still the parent request, but it occurred in the presence of the MO of a threat of disciplinary action against agency personnel for committing the agency to costs it didn’t want to have to bear, and the consequence was still to escape/avoid honoring the parent’s request.

Sometimes you don’t know what all the MOs are because the education agency personnel won’t make them known to you. In many instances, the only way you know something is wrong is because the presentation of an antecedent results in a behavior that produces a consequence that doesn’t fit what should be happening. In that case, you know something is wrong because the behavior doesn’t fit the situation, at which point you have to ask yourself, “What is the function of this behavior?” It’s pretty obvious that any “no” response you receive is an escape/avoidance behavior; it’s just sometimes hard to know whether what is being avoided is cost, accountability, or both.

For example, data collection practices in special education throughout the country are generally pretty unscientific and shoddy in spite of a federal mandate that special education be delivered according to the peer-reviewed research, which is all scientific, according to measurable annual goals. As black-and-white as the process is supposed to be, it often isn’t because school personnel 1) have no idea how to do it correctly, and/or 2) are attempting to avoid accountability.

In most cases, it’s been my observation that the initial inappropriate behaviors are a consequence of incompetence, which creates a need to pursue accountability, at which point they engage in cover-ups to try to avoid getting into trouble for the errors of their ineptitude. You have to assume as a parent going in that not everybody on your IEP team knows everything they should and that they may respond unethically when they get called out on their errors. In other situations, public education agency personnel are just grifting the system for a government paycheck at taxpayer expense from the outset and see students as a means to their own financial ends, engaging in cover-ups when their self-serving behaviors become exposed.

As a parent going into the IEP process, you have to be a shrewd negotiator. If you don’t understand the functions of the behaviors of the other IEP team members, you are at risk of being robbed blind by unethical public servants and/or otherwise getting a poorly developed IEP from inept public servants.

It’s not on you to know all of the science and law that applies to your child’s situation, but if you can develop your skills at reading the behaviors of the other IEP team members, you can often figure out whether they are acting according to your child’s actual needs or not. At that point, how you respond becomes the next hurdle to clear.

Every situation requires its own analysis and there is no way I can give you a one-size-fits-all solution, here. What I can tell you to do is pay attention, try to get a sense of the function of someone’s inappropriate behavior as best as possible, and offer reinforcers in order to achieve the behaviors you want to see.

For example, send a thank-you card to the school psychologist who actually threw down on an excellent report and you will positively reinforce legally compliant behavior. Or, withdraw a compliance complaint if the agency remedies the problem that compelled you to file it and you will negatively reinforce legally compliant behavior. They can earn a food pellet or stop their feet from getting zapped, metaphorically speaking, but, either way, they’re going to have to pull the lever. If you can keep these concepts straight, you will be in a much better position to effectively participate in the IEP process.

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School Personnel, Conspiracy Theories, & Child Welfare

School Personnel, Conspiracy Theories, & Child Welfare
Christine Priola, OT, on the right in the Vice President’s Office of the Senate during the January 6, 2021 insurrection at the Capitol in Washington, DC

On January 6, 2021, a group of people, radicalized by false propaganda generated by the 45th President of the United States and his co-conspirators, attacked the United States Capitol with the intent to kidnap and/or murder members of Congress and the Vice President. This is an event that will live in infamy for so long as America remains a nation, and be blamed for it if it does not.

I’ve been working in special education advocacy, helping parents protect their children with disabilities from physical, emotional, and educational abuse/neglect by the public sector, primarily the public school system, since 1991. By now, you would think there’s nothing new for me to see when it comes to all the ways that adults can do wrong by those among us with disabilities. Clearly, I was wrong.

These recent events at the national level have left me with a whole new set of concerns that I believe are important to talk about, right now. Not the least of these concerns is the fact that a profoundly mentally ill president, along with his pathologically self-serving sycophants, exploited the suffering of some Americans with mental illness and the unfounded sense of entitlement experienced by other Americans with mental illness.

In the end, it’s a bunch of people with mental health issues frenzying like piranha at the smell of blood in the water and taking down the rest of us with them. The inmates are literally running the asylum, right now, and the survival of us all rests on the shoulders of those of us intact enough to realize what is happening, and equipped to deal with it.

For the last 30 years, it’s been my observation – and one I’ve repeatedly shared – that there are individuals employed within the public education system who believe children with disabilities are expendable and unimportant. In a sea of deprived students in general, special education students are uniquely further deprived because of their disabilities.

It’s been my observation that these individuals see their constituents – in this case, our children – as a means to their own personal financial ends, and nothing more. When the costs of educating these constituents increases due to disability, they become a hated burden to those looking to profit off them.

It’s not like the public education system is doing that great by any of our kids, right now. It’s just that problems that impact education in general tend to have a magnified effect on our kids with special needs. Public school officials will say things like, “My heart is bleeding for your child. I wish there was something I could do,” when there’s totally something they could do. They just don’t want to pay for it, which is unlawful.

Special education laws would have not become necessary back in the 1970s if it were not for the fact that people who do not believe in science or law were already employed in positions of authority within the public education system and engaging in unconstitutional conduct towards children with disabilities at that time. The public schools would refuse to enroll these students at all or, even if they did, let them languish in general education classes until they dropped out.

In spite of compulsory education laws, back in the day, it was totally okay to drop out of school if you couldn’t keep up with the instruction and nobody would come after you for truancy. This was what happened to a lot of people with relatively mild challenges, like learning disabilities, who ended up reaching adulthood functionally illiterate and unable to find gainful employment except as factory workers, coal miners, and all the other dangerous jobs that don’t require academic skills, in spite of their normal intelligence.

I provided adult literacy instruction to this population at a local vocational/technical college as a young adult in Arkansas. I’ve met these people. I’ve seen this play out, first hand.

This has led to a class of individuals who have increasingly lost the ability to support themselves, as robots take over dangerous jobs that don’t require real thinking. While the laws that passed in the 1970s were the right place to start, it’s foolish to think that enough has changed since then that the system isn’t still biased against kids with special needs. If things had changed, I’d have worked myself out of a job a long time ago.

The public education system is biased against any kid who isn’t white, male, and expected to inherit property upon reaching age of majority. It was created in its present form during the Industrial Revolution and hasn’t changed much since.

For the longest time, public education agency administration was male dominated while the teaching staffs were female dominated, putting men in authoritarian control over women employees. Teachers unions grew out of the very real discrimination and abuse of women in the public education workplace by their male “superiors” around the same time that unions gained popularity among the laborers working ot inher dangerous jobs in factories and mines.

Students, however, have no collective bargaining power. Even though they are the reason the system exists, they are the last individuals served by it. They get whatever leftovers are left after public agency administrators bleed their agencies dry with undeserved six-figure annual salaries while teachers are buying classroom supplies with their own money. Students are just an excuse for politicians to pay themselves.

So, the idea that discrimination and abuse do not manifest in the public education sector is plainly inaccurate. There are mountains of evidence to the contrary, my caseload being only one such mountain. The judicial and legislative history of special education law is not the total point, here, but it’s relevant in that it establishes that bad actors in public education have made it necessary to regulate public education to control for their inappropriate behaviors.

The evidence of bad faith in public education has been documented in the courts long enough that I don’t have argue it, here. That’s a done deal. So, when someone tells me they are worried about child welfare at the hands of government officials, I have to say, “Me too! That’s why I’m a child and family advocate.”

However, now when someone tells me they are worried about pedophiles in public education, I have to do a double-take and ask, “Why?” That’s only because of the whacky Q-Anon and similar conspiracy theories, now going around about Satanic cannibals molesting and trafficking children.

It’s not that human trafficking isn’t real or horrible. It’s that there is zero proof that it’s being perpetrated by the people these conspiracy theorists are targeting.

There is proof, however, that the 45th President was pals with a known, convicted pedophile and wished this pedophile’s co-conspirator well when she, too, got arrested. He’s also been accusing of raping a 13-year-old who was made available to him by this same duo of pedophiles, but these conspiracy theorists are not going after him. They think he is the champion of their cause, which defies logic in every possible way.

Even if the allegations of child rape cannot be sustained against #45, he’s sexually assaulted plenty of women and bragged about it on the record. How he’s become the champion of a human rights cause given his history of sexual assault and his policies regarding the children of lawful asylum-seekers at our borders is beyond me.

We have all seen news stories of the occasional teacher, aide, specialist, or administrator who gets busted for sexual relations with their students. It’s not that pedophiles are not employed within public education; we know some have slipped in and we do a poor job of screening them out, often only finding them after the harm has been done.

The more important point is that a ring of cannibalistic pedophiles do not run public education. The average school district administrator doesn’t come anywhere near actual children. They don’t appear to care for the company of children; they just want to exploit them for public dollars.

While I don’t doubt that there are people employed in public education administration who would gladly traffic in humans if they thought they could turn a profit and get away with it, that’s a whole lot of work to make happen within the public education system and not get exposed. It’s easier to milk the broken system as it is without taking on that risk. They can get rich by lazier means than selling their students into slavery.

As soon as someone gets caught engaging in pedaphilia with students in the public education setting, most school districts are the ones that call the cops. If school district administrators come to an accused educator’s defense, it’s either because the educator was wrongfully accused or because the administrators don’t want to be held accountable for the fact that they let a pedophile come work for their public education agency, so they’re trying to convince everyone that they didn’t.

It’s not that public education isn’t being run by a pack of corrupt jackals. By and large, like local police departments, local school districts get away with as much as they do because they only answer to their local constituents, most of whom don’t know how to monitor and audit a school district on an ongoing basis for compliance issues. Jackals are in gross abundance.

Even the most ethical educators can be corrupted once they are promoted into administration, and I suspect most of that is economics. Once they start getting that six-figure annual salary, they start buying nice houses and cars, putting their kids through college, and going on expensive vacations. That quickly creates debt.

If you have a six-figure income, you can pay that debt, but if you lose that income and can’t replace it fast enough, you’re quickly screwed. This is how good educators get pulled into the Dark Side of the Force when they accept promotions into administration. It’s the rare pure soul that sees what’s really going on and refuses to be manipulated that way before it’s too late.

The overarching problems I see in public school administration are about money, not pedophilia or cannibalism. I’ve yet to encounter cannibalism, actually, but it’s only January 2021, so let’s see if this year tops last year for the most disgusting conduct to be revealed among public servants for the whole world to see.

What prompts me to discuss this, now, is the recent resignation of Christine Priola, an Occupational Therapist (OT) from Cleveland Metropolitan School District, one day before she participated in the January 6, 2021 insurrection against the American government. Ms. Priola occupied the Capitol building with other insurrectionists and was photographed in the Vice President’s office as part of the occupation.

In her resignation letter, Ms. Priola, who is currently out on bail pending trial, stated she was leaving her job as an OT for the District’s special education department for three specific reasons:

  • She refused to take the Corona virus vaccine before returning to in-person learning;
  • She disagreed with paying union dues because she believes that money is funding abortions; and
  • She’s embarking upon a fight against child trafficking by government agencies.

So, I’m going to pick these apart one by one, first, and then get into the rest of it.

First, it’s unclear if Ms. Priola is an anti-vaxer opposed to vaccines in general, is against the current Corona virus vaccine because it was rushed to market so quickly and she questions its safety and efficacy, or just resents being told she has to take a shot before she can go back to work. Maybe it’s a combination of those things.

We don’t know why she was opposed to the vaccine, so I can’t automatically lump her onto the science-denying anti-vaxer wagon with this limited amount of information, though her overall behaviors incline me to suspect that she could be an anti-vaxer. Because she’s an OT, which is a scientific discipline that functions within the medical and educational realms, I don’t want to assume too much, here. However, science is a fact-based discipline and Ms. Priola has not be operating according to facts.

When we look at her second objection, the total absence of logic casts an unfavorable light on the first objection, even further. How union dues, which pay for the administrative overhead of each union’s operations, somehow funds abortions makes no sense.

The district may withhold those dues from educators’ paychecks, but there is an audit trail that shows where that money goes. If you’re worried about where the money is going, you do a request for public records asking for the accounting details and turn them over to a grand jury if you find that the money is being misappropriated.

The rule of law already provides a remedy for the misuse of public funds. You don’t raid the Capitol with the intent of hanging the Vice President to death to resolve issues such as these.

The idea that the rule of law had collapsed to the point that it was ineffective cannot be argued, here. Ms. Priola did nothing on record to resolve the issue with where her union dues were going before resorting to the violent overthrow of the government and an effort to assassinate the Vice President.

The government already had a legal remedy that she chose not to access and the “remedy” she opted for instead did not fit the situation. This strongly suggests disordered thought. It also, however, goes to the degree to which legitimate remedies to harm done are often inaccessible to everyday Americans because they can’t afford to lawyer up every time the government shirks its responsibilities and hurts people. When the appropriate options are closed off to people, they are only left with the inappropriate ones.

This is where peaceful protests for changes to the rules become such an important part of democracy, none of which involves insurrection or execution. Insurrection as a more expedient option to litigation speaks to the degree to which the legal system is often unavailable to most people because of the associated costs, but it’s not a valid excuse for what Ms. Priola has done. Ease of access to remedy may have made it less likely that she wouldn’t have done something literally insane, but that’s speculative at this point.

The third justification for resigning given by Ms. Priola was that she’s embarking upon a fight to protect children from abuses by government employees. On it’s face, I can’t take issue with that because I’ve been fighting to protect children with disabilities – the same students Ms. Priola served as an OT – from abuses within the public education system for the last 30 years.

Very often, though, I’m protecting them against people like Ms. Priola who are so divorced from science and, therefore, reality that they engage in violations that require me to file complaints with regulators. Again, the rule of law provides a remedy. The difference between Ms. Priola’s efforts to protect children and mine is that I use science and law to protect my babies. She’s trying to kill the members of Congress most likely to help her protect children from the real predators.

I’ve never had to violently overthrow a government agency or hang anybody to protect a child from government employees. Has the rule of law let my babies down, before? Yes, in hugely significant ways. Has the rule of law protected my babies when I’ve pursued enforcement of it? Yes, more often than it has not. It’s not a perfect system, but insurrection on behalf of the people responsible for undermining it is not going to fix anything.

And, it’s not like I haven’t seen evidence of child trafficking in government agencies. I have, just not in public education. Specifically, I’ve been working on a separate justice project with our organization’s founder, Nyanza, to address the egregious over-incarceration of African-Americans in Oklahoma that dovetails with what may be State-sponsored child trafficking.

Based on the publicly available research data we’ve gathered to date, it appears there may be an orchestrated mechanism in place in which officials in the State of Oklahoma incarcerates people of color and remove their children from their homes through the Child Protective Services (CPS) system, only to place these children in privately owned foster care facilities and/or adoption agencies that operate for profit.

It appears that at least some of the foster care and adoption agencies in Oklahoma that participate in this dynamic are owned, at least in part, by State officials responsible for passing and enforcing the laws of Oklahoma, from which they profit. It should be noted that Oklahoma’s CPS system was found to have been responsible for the death, rape, and maiming of many children processed through this system via a federal class action lawsuit that resulted in a consent decree that is not being properly enforced.

CPS employees have come out as whistleblowers to advise that the “proof” of compliance with the consent decree is falsified information and Oklahoma isn’t taking this federal court consent decree as anything other than one more thing to lie about. It should also be noted that all of the individuals involved in these behaviors appear to be Republicans, or they were at the time the data we collected were gathered.

From what we’ve seen so far in our data, it appears that Oklahoma lawmakers and judges are incarcerating people so they can steal their children and sell them for profit. If true, that’s a legitimate State-sponsored human trafficking ring that needs to be shut down immediately. But, it isn’t a Satanic group of Hollywood actors and Democrats eating and raping children.

While this possible human trafficking ring has not been investigated as such to my knowledge, thus far, it’s one of those things that can’t last forever without someone getting caught. Nyanza and I are working to get enough evidence together to get the situation investigated, and she’s been filing documents this whole time, but that’s how you address these things. We are availing ourselves of the mechanisms of our imperfect, but better than anarchy, democracy to fix this heinous problem. Whatever is responsible for Oklahoma’s ridiculous incarceration and CPS numbers is a problem that needs to be fixed, regardless of what it is.

This is painful because we know of families suffering horribly because of what is currently happening until this gets resolved, but justice can take time. I’ve learned that lesson from 30 years of working cases from IEP meetings all the way up to the 9th Circuit Court of Appeals, and you don’t always win. But, you always make a difference, even when you lose on some technicality. I’ve had cases where we lost on an issue, but just barely. The involved districts knew the next time they pulled the same stunt, they wouldn’t necessarily get lucky again, and have changed their practices as a result.

What I’ve learned from relying on the rule of law to address failures of the system is that you have to look at things in the aggregate. It becomes a measure of how many things I’ve prevailed on versus how many things I have not, and I’ve prevailed on more things than I haven’t. Overall, my work is highly effective. On a day-by-day basis, it’s a mixture of resolution and being obstructed by law-breaking public servants.

You have to get to the point where you can identify when it’s time to negotiate and when it’s time to collect evidence and file a complaint of some kind. We have processes and procedures already to address all of the concerns raised by Ms. Priola’s resignation letter, none of which involve insurrection and execution of elected officials.

So, having said all that, now I have to turn to the issue of people who think like Ms. Priola who are still employed in public education. I first have to say that she may be in the minority, but we don’t know how large or small that minority is because they have not been outspoken within the public education context, thus far.

Further, because I have been dealing with disordered thought on the part of school district personnel that results in harm to children for the last 30 years, I’m willing to believe that people whose thinking is as impaired as Ms. Priola’s appears to be are still deeply rooted in special education, right now. Whether their disordered thought makes them vulnerable to Q-Anon and similar propaganda or not isn’t anything I can answer. But, Ms. Priola’s departure from science in spite of her scientific training is consistent with much of what I see in special education when things go wrong.

What this really comes down to is a concern that I’ve had for years and have spoken about with colleagues, but we haven’t really figured out the most appropriate way to address it. What is happening now and the national dialogue around it may have finally opened a door to deal with this issue, and that issue is the societal impact of having so many members of our population who are apparently incapable of logical thought when it comes to abstract concepts like justice, democracy, and fascism. And, it circles back around to the quality, or lack thereof, of our public education system.

One of the tools I regularly use, or request that it be used, in special education is a standardized assessment called the Southern California Ordinal Scales of Development (SCOSD). The history of what led to the SCOSD’s creation is a story unto itself, but suffice it to say that it is a scientific way of measuring all the different domains of development according to Piaget’s stages of development.

The SCOSD breaks development down by subtest into cognition, communication, adaptive abilities, social-affective functioning, and motor skills. It is possible for an individual to function at a higher developmental level in one area than other areas. Each person’s outcome on the measure paints a picture of their relative strengths and weaknesses across the developmental domains. When working with children and young adults with developmental disabilities, this becomes important to designing effective programs for each of them.

What I’ve come to realize from the data I’ve seen produced by the SCOSD over the years is that it is possible for someone to have age-typical cognitive and communication skills, but then have below age-typical social/emotional functioning. What this means is that their emotional development is delayed while their abilities to acquire academic and job skills are intact. They can emulate adult behavior, but their motivations are child-like because of their delayed social/emotional functioning.

When otherwise intelligent people get whipped up into an emotional frenzy over things not supported by any credible evidence, this disconnect between intelligence and social/emotional functioning is apparent. When otherwise intelligent people argue against evidence that they did something incorrectly, this same disconnect is again apparent.

This disconnect is what I’ve been fighting over the years more than anything else. Any reasonably intelligent and socially/emotionally intact person would not engage in the kinds of crap I encounter in the public education system. Most of what I encounter in the public education system is the consequence of ineptitude, not a cabal of cannibals.

If any kind of cabal exists in public education, it’s the same one currently running the American Presidency into the ground. All of this makes me think of the right-wing folks in Orange County, California, who started a non-profit membership organization, self-described as a “brotherhood,” of school district officials who would all pay membership dues and then use that money to finance legal battles against parents of children with disabilities.

It also makes me think of Lozano Smith, a law firm that infamously (within special education circles) got eviscerated by a federal court judge after trying to lie, cheat, and steal in a special education due process appeal. The firm, the responsible attorneys, and the district it was representing all got sanctioned for jerking everybody, especially the court, around with their lies.

All of the firm’s attorneys were ordered to participate in additional ethics training, in addition to the reprimand and sanctions meted out by the court. At the time, Lozano Smith had over 200 attorneys on staff statewide throughout California. Shortly thereafter, most of them jumped ship and went to different firms or started their own firms. It’s quite reminiscent of what we are seeing in Washington, DC, right now, as cabinet members and other high-ranking personnel turn their backs on the outgoing President in the wake of all the destruction and death he has caused.

Lozano Smith is still around, but I haven’t encountered them in the field in several years. The last big thing I saw from them was in 2013 when my colleague, David Grey, prevailed on a case at the 9th Circuit against two school districts engaging in the same violation of the Americans with Disabilities Act (ADA). At least one of the involved districts filed an appeal to the U.S. Supreme Court, but it was shot down; the Supreme Court declined to try the case.

When the Supreme Court appeal was first filed, Lozano Smith, which had been uninvolved at that point, wrote an amicus brief that looked like something that could have been produced by Sidney Powell and Rudy Giuliani. It made nearly hysterical arguments about how the 9th Circuit’s interpretation of the ADA would undo decades of precedent within the public education system, as though decades of an established practice of discrimination should be maintained.

The point is that the conservative “fringe” has never been the “fringe.” To quote Stephen Colbert, “Lunatic fringe? There were tens of thousands of people in that murderous mob. The day after the riot, a poll found that 45% of Republican voters backed the attack on the capitol building. That’s not a fringe! That’s almost half the outfit! If you wore a suit that was 45% fringe, you’d be arrested for public indecency! But at least we’d be able to see through your pants to know you don’t have any balls!“

Based on how scholars look at the political spectrum, conservatives have gone further and further to the right towards radicalization as the left has remained predominantly centrist. The far right looks at centrist politics and mischaracterizes them as the “radical left.” Democracy is not the radical left.

Conservatism is no longer part of democracy in this country; it’s become a movement towards dictatorship in which 45% of the population believes it needs to be led by the nose by a demagogue. When left to think for themselves, these individuals run towards authoritarianism, thinking these leaders understand their needs and will fight for them, rather than exploit them to help take over and then kick them to the curb when they no longer serve a useful purpose.

It’s my suspicion that, once the people who participated in the insurrection realize that the 45th President will let them rot in jail for taking up his cause while he claims to have nothing to do with any of them, his base will finally get the backstabbing that has been coming their way this entire time and will realize he’s not in their corner like they thought. We can at least hope getting stabbed in the back will have this effect.

We’re going to have to watch the prosecuted go through this epiphany over time as we try each of their cases one by one. The stories we’re going to hear from these people are going to reveal legitimate unmet needs, impaired problem-solving skills, and exploitation of those factors by Republican terrorists looking to radicalize them.

Those of these defendants with the mental wherewithal to realize they’ve been played and the emotional stability to own it will turn on those who exploited them, as have many former allies of #45, such as Michael Cohen. Those who don’t have the emotional stability to own the fact that they made a mistake in judgment will continue to assert they’ve done nothing wrong and describe themselves as political prisoners rather than criminal insurrectionists and traitors.

In the minds of the insurrectionists, as they’ve reported themselves, they were responding to the call of their President to defend democracy. If that’s what you’re really doing, defending democracy isn’t bad. But democracy relies on the rule of law. You defend democracy by participating in it and putting its mechanisms into constructive use, not trying to overthrow it.

If our democracy is not working for all of the people – and people of color, indigenous people, LGBTQ+ people, women of all stripes, and people challenged by disability can attest that it has not for a very long time – we need to fix it. What boggles the mind is that now that groups made up mostly of white males in this country are finally beginning to experience the lack of undemocratic entitlement and advantage they’ve historically known, their response to advocate for themselves is to engage in insurrection. This means that what they want is nothing a true democracy would ever give them, and that tells you all you really need to know about them.

There is absolutely a silver lining in all of this, and I rely on Applied Behavioral Analysis (ABA) to inform that determination. In ABA, there is a term that I’ve discussed in previous posts called “Extinction Burst,” and that’s part of what we are looking at with the current state of things. In an Extinction Burst, a behavior that had previously been reinforced is no longer being reinforced, and the organism tries to force reinforcement to come by escalating its behavior.

Think of it this way: If, every day, you put money in a vending machine and a candy bar comes out, the candy bar reinforces the behavior of putting money into the machine. But if, one day, the candy bar gets stuck and won’t come out of the machine, what do we do? Walk away sad? No! We beat on the machine in an effort to make the candy bar dislodge and come out.

That’s an Extinction Burst. If the candy bar dislodges and comes out, it reinforces the behavior of beating up the machine. If beating the machine doesn’t work, then you walk away sad. After than, you’re less likely to use the machine again. If you stop using the machine altogether, the behavior of putting money into it becomes extinct.

What is happening in this country with the radicalized right is an Extinction Burst. Behaviors engaged in by the right wing that were previously reinforced are no longer being reinforced. The behaviors of the 45th President, his co-conspirators, and his followers over the last five years, leading up to January 6, 2021, and what may still yet happen as the 46th elected President takes office, have been an extended Extinction Burst.

The most important thing about an Extinction Burst when you’re trying to extinguish an inappropriate behavior is that you cannot allow it to produce the reinforcement being sought. If you want someone to give up on the candy machine, there can be no way to beat the machine until candy comes out.

We want the radical right to give up on trying to destroy democracy, so we cannot allow their behaviors to result in the reinforcement they are seeking, which, here, is to remain in power regardless of the will of the people. This includes holding them accountable according to the letter of the law. That’s what I’ve been doing in my niche of governmental accountability for the last 30 years and it’s the only way to preserve democracy going forward.

The other silver lining, here, is that in spite of all their efforts to overthrow democracy, it’s our democracy that will ultimately prevail. When we apply the rule of law to what they have done, democracy will have the opportunity to defend itself.

What saddens and scares me the most is the number of people whose developmental weaknesses and mental health conditions are being exploited by the right wing to radicalize them into becoming domestic terrorists while convincing them they are upholding American principles through their terrorism. When we talk about the mental health problems in this country, we tend to point to homelessness and addiction issues, like this is the only way they can hurt us.

As an advocate for people with disabilities, I am torn between being sad for and fearful of these individuals. On the one hand, we absolutely need to hold them accountable under the law. But, we prove the point that the system is skewed towards specific demographics when mentally ill right wing radicals suddenly get criminal consequences and nothing to address the real-world problems that they couldn’t solve that propelled them into radicalism.

In the end, once again, it’s people with disabilities being used as political pawns by self-serving, undeserving, overpaid public officials looking to line their own pockets with taxpayer dollars as part of a grift. This is something I know all too well in special education.

I’m willing to believe, in light of the evidence thus far, that decades of special education failures have produced an entire class of emotionally disturbed adults who are still vulnerable to the manipulations of public officials and that Ms. Priola and many of her compatriots are among them. I’m also willing to believe, in light of the evidence thus far, that the people manipulating them are just as mentally ill; they just have money and power.

I will never pretend to have all the answers, here, but I do know a thing or two that can help. All of us do. We need to weave our efforts together to repair the fabric of our country and make it stronger than it was in the first place. It’s not impossible. This country’s founding was far more difficult than its current preservation and we can do this.

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The Fundamental Flow of IEP Creation

Image credit: Justin Lincoln

Trying to piece together the actual special education process from the implementing federal regulations of the Individuals with Disabilities Education Act (IDEA) is a lot like trying to create origami from paper shredder cuttings. However, it’s been done and, when laid out in proper order, the special education process totally makes sense.

When followed as intended, the special education regulations are a marriage of law and science. It is further assumed that procedural compliance with the regulations is likely to result in the provision of the Free and Appropriate Public Education (FAPE) promised to each special education student by the IDEA. The specific language comes from what is known in special education circles as “The Rowley Decision,” which specifically states, “the Act’s emphasis on procedural safeguards demonstrates the legislative conviction that adequate compliance with prescribed procedures will in most cases assure much, if not all, of what Congress wished in the way of substantive content in an IEP. “

In order to understand why the regulations require the things in special education they do, it helps to first understand the history of the language in the regulations. Prior to Congress enacting the Education for All Handicapped Children Act (EAHCA) in 1975, which ultimately became the IDEA during a later reauthorization, there were no laws that specifically promised any kind of education to children with special needs.

Prior to the EAHCA, children with disabilities were routinely denied enrollment into the public schools. In the beginning, it was an accomplishment just to get a public school to open its doors to a child with special needs, and there was nothing that made it mandatory to educate the child according to any particular standards once the doors had been opened.

Then, in 1971, disability advocates took the matter of the Pennsylvania Association for Retarded Citizens (PARC) vs. the Commonwealth of Pennsylvania to the U.S. District Court. The settlement and resulting consent decree produced much of the language that is now found in the implementing regulations of the IDEA, particularly with respect to FAPE and individualized educational program development.

In PARC v. Pennsylvania, a class of individuals who all had intellectual disabilities (IDs), which at the time were described as “mental retardation,” were being denied access to public school on the basis of their diagnosed “mental retardation.” They were either languishing without any education or receiving privately funded education at their parents’ personal expense. PARC filed a class action lawsuit on behalf of itself and the child members of the class, sued for injunctive relief, settled with the Commonwealth of Pennsylvania, and obtained a consent decree overseen by the U.S. District Court, which it later enforced through the Courts to compel Pennsylvania to enroll children with IDs into its public schools and provide them with appropriate programs.

Quoting page 8 of the May 5, 1972 Opinion, Order and Injunction from PARC v. Pennsylvania, “The lengthy Consent Agreement concludes by stating that ‘[every] retarded person between the ages of six and twenty-one shall be provided access to a free public program of education and training appropriate to his capacities as soon as possible but in no event later than September 1, 1972 …’ To implement the agreed upon relief and assure that it would be extended to all members of this class, Dennis E. Haggerty, Esq., a distinguished member of the Pennsylvania Bar who has devoted much of his energy to the welfare of retarded children, and Dr. Herbert Goldstein, an eminent expert in the education of retarded children who is Professor and Director of the Curriculum Research and Development Center in Mental Retardation at the Ferkaus Graduate School of Humanities and Social Sciences, Yeshiva University, were appointed Masters at the expense of the Commonwealth … Next, the Consent Agreement charges defendants with the duty within 30 days, to formulate and submit to the Masters a plan to locate, evaluate and give notice to all members of the plaintiff class … Finally, and perhaps most importantly, the Agreement states that: ‘The defendants shall formulate and submit to the Masters for their approval a plan to be effectuated by September 1, 1972, to commence or recommence a free public program of education and training for all mentally retarded persons . . . aged between four and twenty-one years as of the date of this Order, and for all mentally retarded persons of such ages hereafter. The plan shall specify the range of programs of education and training, there [sic] kind and number, necessary to provide an appropriate program of education and training to all mentally retarded children, where they shall be conducted, arrangements for their financing, and, if additional teachers are found to be necessary, the plan shall specify recruitment, hiring, and training arrangements.'” [emphasis added; internal citations omitted]

Here, we see the language of FAPE (34 CFR Sec. 300.17), the marriage of law and science in the creation of the program design, the precursor to the federal “child find” requirements (34 CFR Sec. 300.111), and language that effectively describes creating what amounts to an IEP. PARC v. Pennsylvania laid the foundation for what ultimately became the IDEA, which specifically mandates that the peer-reviewed research be applied to the delivery of special education to the degree it’s practicable to do so (34 CFR Sec. 300.320(a)(4)).

The appointment of the masters in PARC v. Pennsylvania is important to note because it marks from the outset the need to combine the efforts of legal professionals and psychologists to come up with evidence-based approaches to special education instruction that conform with the regulations. While there have been many efforts over the years by those of a particular ilk within the public education system to minimize the science and place undue emphasis on legal maneuvering, they have never been successful at eliminating the science.

Now, we are seeing the courts rely more and more on the dry, neutral facts of science rather than the hysterical budget shielding that typically goes on in special education. As more and more people become more fluent with using math and science in everyday life, the public is increasingly expecting to see science rather than politics in the delivery of public instruction.

It has always been the intent of the applicable law to use the applicable science in the delivery of special education. The arguments for relying on facts and evidence in designing and implementing IEPs are too compelling to be overcome by cronyistic politics altogether. Politically speaking, the science has never carried as much weight in special education as it does now, which is tragic in that it’s taken this long but it’s also inevitable. The truth is the truth and no amount of political spinning changes what a child’s unique learning needs actually are or what research has proven actually works.

So, that being the case, when we look at the logical flow of how an IEP is supposed to go together, it’s important to understand how the law and science become inextricably intertwined as the IEP process goes forward. To start, a child cannot be found eligible for special education without first being assessed. Assessment determines if the child has a qualifying disability and, if so, what to do about it.

Competent special education assessment is a highly scientific process. People with special credentials and licenses are brought in to collect expert data, analyze it, and provide expert opinions to the IEP team as to why a child is struggling in school and what can be done about it. This process can become compromised by internal public education agency politics, however. See our previous blog post, “The Basics of Special Education Assessments,” for more information about this step of the process.

In an ideal world, a child’s initial assessment for special education is thorough and competent. It measures all of the student’s unique learning needs and assesses in all areas of suspected disability. The data it produces is then used with input from teachers and parents to create an IEP, presuming the child is eligible for an IEP. This is where things can get really messy.

There are two ways things can go badly at this stage:

  • The assessments were poorly done and now there isn’t good data to inform the development of the IEP, or
  • The assessment data is fine but the IEP offered to the student doesn’t match what the assessment data says the student needs

Parents need to understand what is supposed to happen at this stage of the process or they can be quickly bamboozled by seasoned bureaucrats with their own agendas. The information gathered by the IEP team about the student’s learning strengths and needs is supposed to result in measurable annual goals that describe what the IEP is supposed to make happen in each area of unique learning need.

Where things often break down is in translating all of the baseline data into measurable annual goals that target appropriate learning outcomes in every single area of unique learning need. That’s a tall order. It’s one thing to measure what already is, but it’s another thing to use that data to project where things should be in a year.

IEP teams often struggle to identify all the areas in which goals are needed, much less write the goals they come up with in a measurable manner. In my experience, the average special education professional would fail the 4th grade under the Common Core if their IEP goal-writing skills were used to measure their abilities to apply math and science to solving everyday problems.

A lot of the guidance given to special education professionals during the 1980s and 1990s about IEP goal-writing was a bunch of preemptive legal defense hooey that was utterly devoid of any kind of valid science or math. These approaches provided teachers with formulas and supposed hacks that they usually didn’t understand and usually used incorrectly in the field.

There was no sincere effort that I ever observed back in the day to teach special education professionals the technical nuts and bolts of goal-writing, and I still assert now that the training being done is grossly inadequate. A half-day workshop for continuing education units is usually about it for most special ed staffs, and most of what such a workshop instructs is usually garbage.

These are the workshops that taught teachers to write the measurement for every goal as “… with 80% accuracy in 4 out of 5 trials …” even if it makes no sense. For example, it’s highly inappropriate when used here: “By [annual due date], [Student] will cross the street safely with 80% accuracy in 4 out of 5 trials as measured by observation.”

First, try to make the math work, which you can’t. Then ask yourself what an 80% accuracy rate of crossing the street safely must look like, however it might be calculated, and whether it could possibly be educationally appropriate. It’s supposed to be a free and appropriate public education and there’s nothing appropriate about being run over in the street like a bug as a result of participating in publicly funded instruction.

My brief advice to school district administrators is to not let your attorneys develop your employee training for any aspect of special education that requires scientific rigor. And, unless you are qualified yourself in the applicable sciences, if you are an administrator, don’t think of developing that training yourself, either. Use actual experts; don’t be a chump.

Doing sound assessments only to toss the science and math out the window when it comes time to write the IEP makes no sense whatsoever. But, there is a political game that sometimes get played with parents in which public education agencies will deliver a decent assessment, but then offer a garbage IEP and act like the garbage IEP is what the data and law say the agency can do for the student. It’s a lie.

In reality, the IEP is based on how much the education agency is willing to spend on the student, but the agency’s administrators can’t admit that, so they try to run a con on the parents in which they use valid assessment data to argue for a garbage IEP. They’re effectively gaslighting the parents because the data doesn’t support the IEP at all, but the parents are usually too confused to understand what is really happening and just let it go, thereby allowing the education agency to get away with shortchanging a kid.

The parents get an assessment report that describes their kid, but then they get offered an IEP that is weak relative to the kid’s actual needs and they figure that’s the most the schools must be able to do for them. In truth, their kid is getting robbed. If the IEP doesn’t match the assessment data, something is really wrong. This can be particularly the case with IEP goals.

The data can make clear what the areas are in which goals are needed, but then only a few goals get put into the IEP by school personnel. This is a problem because the services that are offered to a special education student are supposed to be driven by what is necessary to meet the goals. If you don’t have goals in each area of need, there’s nothing to compel all of the services that are needed. Missing goals mean missing services. Schools that want to prevent spending on services can accomplish this by leaving goals out of IEPs.

Goals describe what the IEP is supposed to make happen. Services describe what it takes to meet the goals. This includes service frequency, duration, and location. For example, a student may receive 30 minutes per week of individual speech/language services to address their communication goals.

Accommodations are tools and strategies that make access to the grade-level content possible for a child with special needs. They are not the same things as modifications. Modifications actually change the learning expectations for the student to something less rigorous than the grade-level standards so that the instruction is accessible to the student.

For example, the accommodation of being able to dictate one’s answers rather than write them down doesn’t change the nature of the material being studied or the questions that have to be answered. The only thing that changes is how the response is produced, but a grade-level response is still expected.

In another example by contrast, a student with developmental delays may participate part of the time in general education math where students are calculating the hypotenuses of triangles, but the work is modified to cutting out different sized triangles for the student with developmental delays. In this example, the instruction has been scaffolded towards the grade-level expectations by modifying it to the student’s level of learning.

Before one can understand what a hypotenuse is, one must first understand what a triangle is, so instruction on triangles in general lays a foundation for the eventual instruction of the calculation of hypotenuses. Scaffolding towards the grade level standards and developmental norms is a critical method used in special education as per the peer-reviewed research to adapt the instruction to learners who cannot perform at grade level because of their disabilities. There still has to be a way to measure their learning and push them as close to grade level as possible.

Once goals, services, and accommodations are identified, the IEP team then determines the student’s educational placement. This is usually not a specific classroom or campus; it’s the type of classroom and/or campus required. Placement is decided at the end of the process because it is impossible to know where is the best place to deliver the services and accommodations such that the goals are met if the goals haven’t been written and services and accommodations haven’t yet been determined.

In addition to these critical steps, an IEP can also include an Individualized Transition Plan (ITP), which is basically a plan within a plan that describes what will be done for a teenager or young adult with an IEP to prepare them for life after high school. Students exit special education either by graduating with a regular diploma or aging out, usually at age 21 or 22, The ITP is supposed to be the driving force of their IEPs from at least age 16 forward, though nothing prevents IEP teams from starting younger.

Another component that an IEP may include is some kind of Behavior Intervention Plan (BIP). They can go by a variety of names, but they’re all basically the same thing, and usually loosely based on Applied Behavioral Analysis (ABA). This is another science that gets grossly watered down in special education, sometimes to the point of becoming ineffective if not harmful.

Good ABA is a wonderful thing, but there are way too many programs operating these days that are “ABA-based,” meaning they aren’t fully adhering to the science and only have borrowed those parts from it that they find most easy to use. They take a fluid science, try to turn it into something formulaic, and ruin the whole damn thing. It’s right up there with crossing the street safely with 80% accuracy in 4 out of 5 trials.

To be clear, when I talk about ABA in this blog/podcast, I’m talking about the actual science, not some hokey fly-by-night scam trying to take advantage of the autism community. I have plenty of colleagues who operate completely legitimate, scientifically rigorous ABA programs that save and change lives for the better, and they are just as disgusted as I am by the charlatans ruining the good name of a credible science for the sake of making a buck off of autism. These charlatans who have corrupted the legitimate science are the ones with whom the autism community takes such issue when they complain about ABA.

There is no way to have a conversation about the IEP process and the degree to which science plays a role in it without discussing ABA. ABA is the most reliable method of data collection currently used in special education, even when not done that well. This is because the field is dominated with people teaching their students to cross the street safely with 80% accuracy in 4 out of 5 trials as measured by observation. Even shoddily done ABA-type data collection is usually better than that.

It’s my argument that, if the science has to be applied to the degree it’s practicable to do so, and ABA-type data collection is the most reliable, then IEP goals should be based on ABA-type data collection methods. If IEP goals were actually written according to scientific method like they were supposed to have been from the start, we would naturally default to ABA-type methods of data collection because that’s the only thing that will work.

This becomes particularly important for IEPs with BIPs. Real ABA, not the half-baked version that is peddled by some agencies, should be used to develop measurable annual goals and any BIP in an IEP. This will allow for legitimate measurement of actual progress. Here, it’s not exactly about the instructional approaches of ABA so much as how to accurately measure learning. By using ABA-based teaching and measuring approaches, it’s a lot easier to tell if a student is actually learning anything or not, which is the whole point of measurable annual goals and measurable BIP criteria.

When you understand that there is a logical order to the sequence of the special education process that the law describes from what it has taken from science, the parts of an IEP start to make more sense. An IEP is not an arbitrary document. It’s an enforceable contract that describes what a public education agency is supposed to do to tailor the instruction to a student with special needs. It includes what it includes for logical reasons.

Congress organized how IEPs are supposed to go together based on the advice of attorneys and psychologists who worked very hard to come with with a marriage of law and science that will work so long as the public education system pays equal attention to both the science and the law. There needs to be more training for professionals in the special education community as to the scientific origins of IEP design and the scientific rigor actually necessary to deliver special education according to Congress’ intent.

Parents need to understand the importance of the science, as well. They are the most important members of any IEP team and if they don’t understand what the data means, they can’t give informed consent to anything.

Parent education is a related service that can be added to an IEP to help the parents understand their child’s special needs as well as help them better participate in the IEP process (34 CFR Sec. 300.34(a)). If you feel as a parent like you don’t have enough information to be an equal member of the IEP team, it’s your right to request parent training as a related service so that your rights to meaningful parent participation in the IEP process and informed consent are honored.

 

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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: Partial Parental Consent on IEPs & Assessment Plans

On January 5, 2009, we originally published “Partial Parental Consent on IEPs and Assessment Plans”. Throughout this school year, KPS4Parents is 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 listen to the podcast, “Partial Parental Consent on IEPs and Assessment Plans.”

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California SLPs Sometimes Confuse Legal Requirements

Today’s posting will hopefully lay to rest a misunderstanding that seems to plague special education in California. I can only presume that, like many other “urban myths” that root themselves in special education lore, at some point in time, somebody somewhere in California conducted a training seminar on speech-language assessment and services within special education and miscommunicated something that has now led to speech-language specialists throughout the state making improper conclusions to the detriment of some children in need of speech-language services.

The problem is this: the distinction between who is found eligible for special education on the basis of a speech-language impairment (“SLI”) and who qualifies for speech-language services as a student already eligible for special education under any other category. Eligibility for special education as SLI is not required in order for a child otherwise eligible for special education to receive speech-language services in order to benefit from his/her IEP.

The critical piece of legislation, which gets erroneously cited in speech-language assessment reports all the time, is 5 CCR  3030(c). Title 5 of the California Code of Regulations Section 3030 describes all of the criteria for each of the eligibility categories under which a student may qualify for special education and related services. These categories include Specific Learning Disability (“SLD”), Other Health Impaired (“OHI”), Emotionally Disturbed (“ED”), and many others, including SLI. The critical thing to understand here is that the 3030s describe who can receive special education and on what basis, not what services they will get.

What ends up happening, though, is a child will be assessed for special education purposes and a speech-language assessment will be conducted. In the course of the overall assessment, even though the child is found eligible under some category other than SLI, because he did not score below the 7th percentile on two or more speech-language assessments, the speech-language specialist will determine that he doesn’t qualify for speech-language services according to 5 CCR   3030(c). It is a complete and utter misapplication of this Code, which deals strictly with eligibility under SLI and not what services an otherwise eligible child should receive.

A typical example of this would be a child who is eligible for special education pursuant to 5 CCR   3030(g) for autistic-like behaviors (in special education in California, a medical or psychological diagnosis cannot be made by the school psychologist, so this section of the code provides alternative language and defines the criteria by which a special education eligibility category can be identified for a child exhibiting the symptoms of autism), but who is relatively verbal. While his scores may hover just above the 7th percentile on the speech-language tests he was administered, they are still very low and his low language functioning compounds his other problems arising from the other needs arising from his handicapping condition.

In this example, anyone in their right mind can see that the child needs pragmatic (social) language intervention and help with idiomatic and figurative (non-literal) language. He doesn’t have any friends, he doesn’t get jokes, and he doesn’t understand clichs and colorful sayings, such as “Clear as mud.” This makes it difficult for him to participate in group projects with peers and understand the writings of Mark Twain. He needs goals that address these areas of need and speech-language services in order to benefit from his IEP.

No subsection of 5 CCR  3030 drives the selection of services that any child gets, only whether or not a particular child is eligible and, if so, under what category. The IDEA mandates that children who are eligible for special education, regardless of what category they qualify under, receive whatever supports and services are necessary in order to afford them a FAPE.

Specifically, the federal regulations found at 34 CFR  300.320(a)(2) state that IEPs must include for each child measurable annual goals, including academic and functional goals designed to meet the child’s needs that result from the child’s disability to enable the child to be involved in and make progress in the general education curriculum and meet each of the child’s other educational needs that results from the child’s disability.

An eligible child is a child who requires, as a result of one or more handicapping conditions, special education and related services in order to receive educational benefit. 34 CFR  300.39 “Related services” is described at 34 CFR  300.34. In none of this is there anything that suggests that the only way that an otherwise eligible child can receive speech-language services is if he is also found eligible as SLI.

In fact, 34 CFR  300.304(c)(6) states that, when evaluations are conducted for special education purposes, they must be “sufficiently comprehensive to identify all of the child’s special education and related services needs, whether or not commonly linked to the disability category in which the child has been classified.” Congress understood when it crafted the IDEA that you don’t individualize a child’s program by resorting to “cookie-cutter” strategies that are based on a kid’s eligibility category.

The IDEA is the skeleton of special education law. It establishes the basic framework and minimal standards. It is left to the states, if they want any federal special education dollars, to add the flesh to the bones by creating their own state-level legislation that explains how each state will implement the requirements of the IDEA. While states are free to add more obligations to their schools than what the IDEA requires, they are prohibited from reducing the protections offered to students and parents under the IDEA lest they sacrifice their funding.

What this means for speech-language services to special education students in California is that the IDEA basically says each eligible child must get whatever he/she needs in order to receive educational benefit, regardless of what type of services are required and regardless of the applicable eligibility categories. That’s the whole concept of individualizing a child’s education plan based on his/her unique educational needs.

There is nothing at the state-level that reduces this federal mandate, nor could there be unless California were to choose to go it alone to cover its special education costs and we all already know that California can’t pay its bills even with the federal funding it receives. It absolutely cannot afford to give up its federal special education funding.

We’re curious to know if there are any other state-level debacles involving misinterpretations of the law happening elsewhere. Readers are encouraged to post comments to this posting about such misinterpretations that may be occurring where they live.

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Understanding Who Is and Who Is Not Eligible for Special Education

Eligibility is a very confusing concept for most parents trying to negotiate their ways through the bureaucracy of special education. It’s an unfortunate reality that special education has to be regulated in order to make objective determinations as to whether students benefitted from their services or not, but the regulations create what is to some parents seemingly insurmountable barriers to entry.

 

This is further compounded by an industry-wide (and I am considering public education an industry, here) initiative to intervene before students are so far gone that they actually need special education. On the surface, this sounds like a good idea. If acted upon in good faith, it’s a great idea. Why wait until a child is so far behind that he/she may never catch up Why resort to labeling the child as “disabled” when what’s closer to the truth is that he/she was never taught the way he/she actually learns?

 

However, far too often, in the name of preventing an unnecessary referral for special education, strategies are attempted in the name of “regular education accommodations” and “Response to Intervention” that aren’t successful. In the end, it becomes apparent in these instances that these “strategies” were nothing more than bad faith delay tactics used in the hopes that the parents would reach the conclusion that their children were beyond help and simply give up.

 

After all, teaching children who are struggling to master certain concepts is really, really hard. It’s a lot easier simply to not. The employees of the education system get their paychecks either way. This is a deplorable situation for parents and educators who truly care, alike.  Good teachers are constantly fighting an uphill battle to do the right things.  After a while, it’s easy to burn out and give up, leaving behind all the people who are inclined to take the easy path and just not do much of anything.

 

That said, when it comes right down to it, who is really eligible for special education? It is a misconception that the presence of disability automatically qualifies a child for special education. It does not. A disability must be present in an eligible child, but that by itself is not enough.

 

There must be a negative educational impact caused by the disability – it must interfere with the child’s learning or participation at school to a significant enough degree that specialized instruction, modifications, accommodations, and possibly related services such as speech-language services and occupational therapy are necessary in order for the child to receive educational benefit.

 

For more than two decades, everyone has been carrying on about the abysmal standard established by Rowley. Or, more accurately, Rowley has been misrepresented by public schools as meaning they don’t have to do a whole lot. Amy Rowley was passing her classes without the sign language interpreter her parents wanted and could get around school just fine, in spite of her hearing loss.  That really doesn’t speak to the circumstances of a child with learning disabilities and ADHD who is reading three grade levels below his current grade.

 

There is another case, Mercer Island, in which the appellate decision declared that the Rowley standard of “some educational benefit” and “a basic floor of opportunity” is dead. Rowley was decided in 1982 in light of the predecessor of the Individuals with Disabilities Education Act (“IDEA”), the Education of Handicapped Children Act of 1975 (“EHA”). The EHA was meant simply to give children with disabilities access to the public schools. Prior to the EHA, at least a million children with disabilities were denied enrollment and there was often no programming to meet their educational needs even when they were permitted to attend school. They simply stayed home or spent pointless hours in regular classrooms with no supports waiting for the day when they could drop out.

 

In 1997, the EHA was replaced with the IDEA. With it came much stronger language about what kinds of outcomes are to be expected. I concur with the findings in Mercer Island for the very obvious reason that the purpose of any education system is to teach students what they need to know so they can take care of themselves as much as is reasonably possible when they grow up. That’s what benefits the children and their families the most. That’s what benefits society the most. (See our posting, “The Big Picture – Special Ed Issues Impact Everyone“.)

 

The need for specialized instruction in order to receive educational benefit (setting aside for the moment how “educational benefit” is exactly defined) on the basis of a handicapping condition is what drives eligibility for special education. This could be something as relatively benign as an articulation disorder that prevents the student from speaking clearly enough to participate effectively in group learning activities with peers, read aloud in class, and/or effectively communicate personal needs or lack of understanding to instructors.  It could be something as severe as quadriplegia that prevents the student from independently navigating a school campus. There are a million ways to be disabled.

 

However, let’s say we have a child with quadriplegia who has mastered the use of his electric wheelchair and can get anywhere on campus he wants, is intellectually intact without any learning disabilities or emotional problems, and is able to hold his head upright and turn it sufficiently to follow instruction in the classroom. He grasps what the teacher is saying.  And, at most all he needs in his academic classes are accommodations, such as a set of books at home, a set of books at school, note-takers in class, access to a computer with dictation software on it, and assistance using his materials in the school setting in order to participate. Does this child require special education?

 

I’d argue that for a kid like this, PE is the only part of the curriculum he can’t participate in without specialized instruction and he would qualify on that basis alone, requiring Adaptive PE as his specialized instruction.  I’d also argue that for self-help needs such as eating and toileting, he would probably need a properly qualified 1:1 aide as a related service.

 

For a child with a disability that impacts his/her receipt of an education and/or participation at school, but who does not need specialized instruction, the solution is a 504 Plan. That’s another blog posting in and of itself. I’m not going to explain 504 right now.

 

The point I’m trying to make here, particularly to parents, is that special education really is meant for a specific group of kids.The federal regulations are found at 34 CFR 300.8.? Each state has its own additional language, as well. In California, for example, it’s 5 CCR 3030.

 

There are some parents who think that getting their child into special education will solve everything. That may not be so.  I’ve encountered parents who were simply looking for something to blame- a defect in their child – rather than their own incompetence as parents for their child’s problems.  Sometimes children are just responding to, or role modeling themselves after, the adults around them.

 

I’ve also encountered parents whose children did have mild problems that fell just short of qualifying them for special education. That’s the thing with the regulations. Somebody is invariably going to almost, but not quite, qualify for special education. The line has to be drawn somewhere. Those are the kids whose parents need to turn to Section 504 and learn as much about it as they can.

 

But, I’ve also encountered education agencies that didn’t want to admit that they had failed to conduct “child find” for years running, resulting in a failure to find a child eligible who should have been found eligible long ago, thereby denying the child a Free and Appropriate Public Education (“FAPE”). Because these agencies didn’t want to admit fault and were hoping to avoid being held responsible for providing compensatory education to these children, they lied and said these kids weren’t eligible at all and never had been.

 

A fair amount of litigation arises over eligibility issues. The important thing for parents to understand is that the regulations spell out who and who is not eligible for special education. You need to understand the rules before you go charging off on a mission. State law usually hones the federal law on this issue.

 

For example, if a clinical psychologist has given a child a DSM-IV diagnosis of dyslexia, that doesn’t mean the child will qualify for special education as having a learning disability, even though dyslexia is a type of learning disability; what matters is that there is a discrepancy between achievement and ability or the child has failed to respond to scientifically research-based interventions in the regular education setting because of the dyslexia, which is a processing disorder. On that basis, the child can qualify for special education as having a learning disability.

 

Educators need to appreciate that parents often don’t understand this subtle distinction and be kind and helpful to them as they try to navigate the system. Mocking them for not knowing this is simply inappropriate. Being compassionate to the needs of the student and the angst of the parents who are worried about their child’s academic performance is very appropriate.