Tag: education

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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.

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Emotions Part 2 – School Site Staff

Parents are not the only ones who have emotional reactions to things that happen in the special education process. Special education is a very complex undertaking that involves a lot of people, each with his/her own perspective.

Teachers and related service providers (speech-language specialists, occupational therapists, etc.), being in the trenches as it were, are the people most in a position to see the educational impact of a child’s special needs first-hand. What they don’t know can hurt a child.

Parents who jump to blaming teachers and providers without considering all of the factors that these professionals have to deal with, however, don’t help the situation. That isn’t to say that teachers and providers are without responsibility and shouldn’t be held accountable. But, things have to be done the right way.

There’s usually a whole lot more going on behind the scenes beyond the control of the teachers and related service providers that parents don’t know about or understand. Many parents may look at teaching and professional staff, as well as school site administrators, as having a lot of say in how things go down, but the truth is that their effectiveness is also influenced by internal agency politics that start at the top of the agency’s administrative hierarchy and trickle down into the classroom through bureaucratic channels.

What teachers and related service providers are prevented from doing by the internal politics of the agencies they work for can also hurt a child, and most teachers and providers who find themselves in these kinds of circumstances are sickened by them. I’ve spoken to many people over the years who left the teaching profession because they were unsupported by their administrations, were denied the tools they needed to teach all of their students (particularly those with unique learning needs), and were told not to say anything to parents or make waves lest they find themselves unemployed. This is entirely unacceptable on a variety of levels, not to mention unlawful.

In many of the difficult instances I’ve seen, teachers and related service providers have not been properly trained on what to do and/or have had critical resources withheld from them by the powers that be.  When parents understand that teachers and service providers are usually jumping nervewracking hurdles within their agencies behind the scenes, a more constructive and collaborative way of working together can be developed and the professionals can come to regard the parents as resources rather than additional obstacles.

Teachers and related service providers, like parents, need to check their emotions at the door when it comes time for meetings with parents and co-workers. I once attended an IEP meeting for a little girl who was being raised by her single dad and the little girl’s teacher, as it turns out, had a mad crush on the dad. This same teacher was actually a pretty decent special education teacher in terms of her caring for her students and how effectively she communicated with them. But, the school district she worked for had trained its special education staff incorrectly on how to write IEP goals, resulting in IEPs filled with nonsensical gibberish. 

The exasperated father kept going back to her asking for clarification, which she was more than willing to oblige, and calling new IEP meetings to better describe the goals without really getting anywhere productive. As a professional person, he knew what kind of standards he was held to when it came to goal-setting and he just couldn’t fathom his daughter’s IEP goals. 

I wrote a letter to the district explaining why the goals were completely unacceptable and an IEP meeting was again called to address the goals. He and I went to the IEP meeting where this teacher, who had tried so hard to please this frustrated parent using the knowledge and information she had, bawled uncontrollably throughout the IEP meeting.

The teacher took the parent’s hiring of advocates to address the goals she had written as a personal attack, despite the fact that the real failing was in the way the district had trained her to write the goals and not something that we’d ever blamed her for specifically. Her sense of rejection was only further amplified by the fact that part of her motivation in working so hard with this parent was because she was attracted to him and, clearly, if he had hired a quasi-legal representative to respond to her efforts, her affections were not?being returned.  It was one of the most uncomfortable IEP meetings I’ve ever attended.

That certainly doesn’t happen to me every day. But, I’ve gone to a number of meetings where teachers or service providers were defensive, rude, condescending, and inappropriate because they were bad people doing bad things. I went to a meeting once where a mean and nasty speech-language pathologist had produced a very poor assessment report on behalf of the district that failed to include any subtest scores, making it impossible to see whether the child had demonstrated subtest scatter (subtest scores that are not close together, indicating relative strengths in some areas and deficits in others, as opposed to the subtest scores more or less being about the same regardless of the areas tested). When I asked for the subtest scores, she sneeringly advised that she couldn’t provide them because she had shredded the assessment protocols (the booklets in which the student’s actual answers and scores are recorded). Shredded them!!!

In California, unlike many other states, assessment protocols are considered part of a student’s records and, therefore, must be maintained as such (meaning that parents have the right to copies of them). Here, the assessor had destroyed a protected student record and for what She couldn’t prove that she had properly administered and scored the assessments in addition to the fact that she couldn’t really show how the child had performed on them. 

On behalf of the parents, I immediately disputed her results and asked for an independent educational evaluation (“IEE”), which is basically a second opinion by an outside assessor not employed by the education agency, at public expense.? The only way the district could have turned down the request would have been to take the family to hearing to assert the appropriateness of its assessments, which it couldn’t do because the speech-language pathologist had shredded the evidence.  The district sensibly agreed to the IEE.

The thing I hope you take from this posting is that teachers and service providers are people too. Parents and administrators need to understand this but nonetheless expect the utmost ethical conduct from teachers and providers as well as a legitimate interest in learning whatever they can to make sure their students receive meaningful educational benefit. 

Teachers and providers need to understand that protections are in place (see our first posting of November 11, 2008) to prevent them from being retaliated against by their employers for doing what they think is right by their students with disabilities.  Administrators need to be sensitive to the feelings of pressure they may be inadvertently placing on teachers and providers to say and do things that betray their moral judgment. This is the kind of thing that leads to teacher burn-out and prompts service providers to leave public education and go into private practice.

Teachers and providers need to have confidence in their own voices and insist that they be provided with the training and supports they need to do their jobs well. Disenfranchisement is the usurper of success and depriving our children of success is an unacceptable outcome for us all.