Public Education Version 2.0 and the Power of Stay-Put

Photo Credit: Matthew Cipican

I’m pained to open with the platitude that these are unprecedented times. We all already know that and belaboring it for the purpose of a proper opening paragraph seems to belittle the magnitude of the moment.

The truth is that I’ve been having a hard time coming up with the right place to start the next conversation on this blog. I had developed a publishing schedule for Making Special Education Actually Work just before the pandemic hit and the schools in California, where we are headquartered, shut down.

All of that went out the window the moment the shutdown started and I’ve since published some bits about how to respond to the situation based on what was known at the time of each publication, but how things have continued to play out, or not, from one school district to the next has been nothing short of pandemonium. Some of my kids have done so much better with distance learning that they never want to leave their houses again. Others have regressed so greatly since the shutdown started that it’s going to take years to undo the damage that has been done and catch them up to the degree its possible to do so.

Each kid, as a unique individual learner, has experienced the shutdown differently, but all of them are experiencing the same procedural violation at the hands of their Local Education Agencies (LEAs): Failure to implement the Individualized Education Program (IEP) as written. Or, framed in the language of the regulations, failure of the education rendered to conform with each student’s respective IEP.

In California, the State has already assumed that compensatory remedy will be due to most, if not all, of its special education students because of the shutdown. None of the laws changed. There are permissible, though narrow caveats, in the law that provide for extenuating circumstances.

While the implementing regulations of the Individuals with Disabilities Education Act (IDEA) mandate the application of evidence-based science to the design and delivery of special education on a child-by-child basis, it is only to the degree that the application of the science is practicable. LEAs bear the burden of proving that the delivery of a special education service is not practicable before denying it and giving notice of such via a Prior Written Notice (PWN).

The real dispute, it seems, is over what is realistically practicable given the circumstances, but that first requires us to operationally define what we mean by practicable, and that’s a problem. There is no legal authority or professional standard for what defines “practicable” within the context of 34 CFR Sec. 300.320(a)(4).

I know this because the operational definition of “practicable” was one of the burning questions I had when I went back to graduate school in 2011 and had answered by the time I graduated in 2013. The truth is that there is no operational definition in the scientific literature or the case law as to what is meant by the term, “practicable.”

Even Perry Zirkel was stymied by this question and ultimately concluded that most courts interpreted the definition of “practicability” as something to be left to the discretion of local education agencies – meaning, really, top administrators and board members, who are all politicians – get to decide what is and is not practicable as a matter of local governance. In those LEAs, “practicable” just means “if the LEA wants to.”

This, of course, neglects the fact that 34 CFR Secs. 300.320-300.324 vests the authority in IEP teams, which include the parents, to make determinations as to what is educationally necessary and, therefore, the obligation of the LEA to provide to each given special education student. If that authority is vested in the IEP team, then no one from the LEA on the IEP team should have to go get the approval or permission of a superior outside of the IEP meeting, particularly when that superior has no direct knowledge of the student’s unique needs or the IEP team’s discussions about them. Whether or not something is practicable should be an IEP team decision, not an internal policy issue, yet the research that has been done suggests its a call to be made by top administrators, not individual IEP teams that include the students’ parents.

Further, 34 CFR Sec. 300.321(a)(4)(iii) mandates that each IEP team include at least one LEA representative who is “knowledgeable about the availability of resources of the public agency.” Usually, this is an upper-level administrator from the main office who not only knows what resources the LEA has, but has also been granted the authority to commit the LEA’s resources to a student’s IEP. This can come in the form of committing existing resources to the IEP as well as procuring those materials and services that are not already available through the LEA.

I’ve been in IEP meetings during which such an administrator fills out and submits online requisitions for use of existing assets, as well as online purchases and purchase orders through their LEA’s internal automated workflow system, during IEP meetings as the team agrees to things that are needed but not already on hand. It’s not that uncommon and it goes a long way towards doing it right the first time.

Again, there should be no going to someone else outside of the IEP process for permission or approval. In one fairly recent meeting I attended, the school district’s administrator on the IEP team shared her screen with the rest of us so we could all look at our options on Amazon together as an IEP team and make the purchasing decision right there. Then, “click,” it was ordered and the student had his accommodations the next day. Easy peasy.

The law does not provide for the IEP team’s authority to be displaced by or shifted to an uninvolved third party. If no one on the IEP team from the LEA knows whether the LEA already has the necessary resources available or will need to purchase stuff it doesn’t already have, it’s not a real IEP team.

Because these decisions are IEP team decisions, and not the decisions of removed administrators who are motivated by factors other than the individual needs of each special education student, deferring to top administrators to determine what is or is not “practicable,” opens the door for a litany of procedural and substantive errors that will quickly create due process claims against the LEA. It behooves no one for LEAs to play this game, but plenty of them do.

Competent people have no motivation to do sketchy stuff and lie about it, so when you encounter this kind of behavior, it’s because you’re dealing with people who don’t know what else to do and/or are crooked through and through. What we are all now going through as a nation under the current presidential administration is a reflection of the crap I’ve been dealing with for nearly 30 years in special education local governance. None of this is new to me, it’s just now happening on a national scale. Maybe everybody outside of the special education community will finally believe me about this crap, now.

More often than not, what is deemed by an LEA as not being practicable is likely better framed as being something for which the LEA is simply not willing to expend the necessary funds. While it is unlawful under the IDEA to use fiscal considerations to determine the contents of a student’s IEP, it happens all the time. The language of IEPs are often deliberately kept vague and weak so that they are difficult to enforce or so that it is otherwise difficult to say that the education rendered failed to conform with the IEP.

I’m seeing this happen in a way with 1:1 behavioral aide support services, right now. I’ve got families barely holding it together, stuck at home with their severely impacted children who have serious behavioral challenges arising from their disabilities. They’d give anything for in-home 1:1 behavioral services, right now.

And, that’s the thing: they should already be getting it under the existing laws. On August 24, 2020, (the day before this post), the California Office of Administrative Hearings, which tries special education due process cases within the State, issued an order making clear that students who require in-person services in order to access and benefit from their educations, including during distance learning, must receive such services according to medically acceptable safety procedures regarding COVID-19.

Behavioral services are medically and educationally necessary, the California Department of Education (CDE) has advised that in-home services during the shutdown may be necessary in order for LEAs to comply with their IDEA requirements under the law, and, now, OAH has ordered a school district to provide in-home services as a matter of stay-put during the shutdown. This is huge! This settles the argument once and for all.

I know of at least one student who is currently getting in-home behavioral services through his health insurance, which is the only reason he was able to participate in distance learning during the last half of the Spring 2020 semester. The same agency currently serving this student through his health insurance had previously served him as a Non-Public Agency (NPA) under his IEP in the public school setting. Same people, different funding source, different willingness to send personnel to his house for in-home, 1:1 behavioral aide services.

His school district has offered to provide an aide online during distance learning, like somehow that’s going to produce the same educationally substantive outcome of getting him to engage in the online instruction in the first place and remain engaged throughout each lesson. The boy needs an in-person 1:1 aide in order to access the instruction at all. How is he supposed to access online aide support when he needs in-person aide support to access any kind of online services?

And, he’s one of many students on my caseload with similar needs; he’s just the only one I know of currently living the experience of having the in-person 1:1 aide support during shutdown and being met with educational success because of it. Everybody else is asserting the need for it, but not getting it, and due process cases are popping up everywhere now, including among my students for whom I never thought litigation would realistically come to fruition.

The legal authorities favor special education students on this issue, and school districts in California are now having to weigh the risk of litigation from unionized employees against the risk of litigation from parents of students with special education needs as this whole debacle clatters forward in the absence of unified leadership across the State’s public education system. Many districts are still clinging to outdated paint-by-numbers procedures and fill-in-the-blank on standardized documents and forms, aiming for procedural compliance without thought to the substantive considerations … like providing 1:1 aide support via Zoom to a student who needs in-person support in order to access instruction via Zoom in the first place.

It’s like they think conforming with the IEP in any way complies with procedure, even if it entirely fails to meet the instructional purpose it’s supposed to serve from a substantive standpoint. The real tragedy, here, is that these paint-by-numbers bureaucrats don’t understand how to act according to the substantive needs of the student; they just want to know which form they are supposed to use.

This significant subset of the public workforce may have memorized many of the procedures for the job and can usually find the right form to use, but don’t ask them to actually engage in deductive reasoning, creative problem-solving, troubleshooting, or solution-seeking. They simply can’t. They don’t think that way. And, the human resources department didn’t recruit for people who can think for themselves on purpose.

The middle management jobs require drones who respond to authoritarian hierarchies of leadership and do not question the orders they are given, if the system is going to function according to its bigoted design. And, that is how it has been functioning for the last few decades following the passage of federal civil rights laws, including disability-related laws that first started passing in the early 1970s, up through the Americans with Disabilities Act (ADA) in 1990.

Those laws were necessary because the public education system, among others, was actively discriminating against children with disabilities, including denying them even enrollment. The public education system was already discriminating against students with disabilities or the laws would not have become necessary.

When the laws passed and the public education system was ordered to comply, those individuals who had been philosophically opposed to accommodating learners with disabilities were still employed by the public education system, by and large. They didn’t all leave. Many stayed and have been sabotaging it from within this entire time. And, they recruit people who are too incompetent to realize they’re being used and/or too afraid of losing their jobs to dare question what is really going on, so they can maintain positions of authority and control according to their own fascist belief systems rather than their mandates under the law.

One of the most powerful things to come out of the current state of affairs in this country is the cracks in the publicly funded systems that people like me have been squawking about to no avail for decades, but which can no longer be denied by the masses. As we move forward to rebuild a better America in the wake of the destruction currently happening all around us perpetrated by people with way more authority than they can responsibly handle, it is painfully obvious that we have a disturbingly large swath of the adult population that “pass” as competent adults but who actually are not.

These individuals occupy a great many niches of society, including in the public sector. Their approach to leadership, when they are allowed into offices that require more of them than what they possess, is destructive. It can ruin a child’s future through educational malpractice at the local level or fan the flames of a global pandemic and domestic terrorism at the national level until it ravages the entire nation.

These individuals place cronyism over science because they are not smart enough for the science and, frankly, they’re not smart enough to cover the tracks of their cronyism. They have simply had the power of money behind them and those without money have had to tolerate their malarkey as a matter of survival. But, now that tolerance doesn’t even achieve survival for those without, so they aren’t motivated to tolerate the malarkey anymore. Look out Marie; here comes the guillotine.

Society has finally had its fill of incompetent bullies acting like they are better than the rest of us to the detriment of us all and for no other reason than to stroke their own egos and line their own pockets. We have become aware that they are too dimwitted to realize the harm in what they are doing and too selfish to have any sense of compassion or empathy for the people they hurt.

These individuals are emotionally still children, trapped in their bodies for decades without maturing, thinking their chronological age and changing external appearance are all of what earns them respect as adults, and often unable to fully engage in adult-level problem-solving and critical thinking tasks, but able to develop academic and/or professional skills that can otherwise allow them to “pass” as competent.

These are high-functioning individuals with significant impairments in judgment who engage in intuitive rather than deductive reasoning. Intuitive reasoning is age-typical in young children. It’s indicative of an impairment in adulthood. It co-occurs with egocentric thought, in which the individual is incapable of engaging in perspective-taking and appreciating the experiences and viewpoints of others.

An egocentric person is the center of their own personal universe. Everyone else is just an object in orbit around them who may or may not serve a useful purpose at times and is only accessed when the egocentric person thinks an individual is useful.

The egocentric person recognizes his/her/their own agency – that is, the ability to act upon the world to produce intentional outcomes – but they struggle to appreciate the agency of others. They tend to only perceive other people relative to their own thoughts and feelings and fail to consider that other people have their own thoughts and feelings that are each different from one person to the next.

Egocentric people tend to assume that whatever they are thinking and feeling is what everybody else is also thinking and feeling, and/or that everyone else’s decisions are made with the egocentric person in mind. The egocentric person struggles with perspective-taking, which requires that they first understand the agency of others and that everyone is preoccupied with their own thoughts and feelings, not making the egocentric person the focus of their every decision.

Errors of omission and thoughtless, inconsiderate acts by others are perceived by egocentric people as deliberate efforts to cause harm or offense to the egocentric person. Because egocentric people assume that whatever they want and need is automatically understood by everyone else, which is because they assume everyone else is thinking and feeling the same things they are, if everyone else fails to deliver according to an egocentric person’s expectations, the egocentric person attempts to force the desired response to present itself.

Because they lack the emotional intelligence to navigate many types of complex situations involving other people, whatever cognitive abilities they may actually have don’t do them much good. They make errors in judgment when it comes to how they interact with other people; how well they can do math, design a building, or research historical biographies just doesn’t matter in that moment.

When people like this become employed within the public sector and have to make policy decisions, they are incapable of putting themselves into the shoes of their constituents and engaging in legitimate representation and advocacy for services that meet the of needs of those they have been hired to serve. Because of their egocentrism, the job is a means to a self-serving end. Also because of their social/emotional developmental impairments, their ability to actually engage in adult-level problem-solving as required by their positions is equally limited.

Because they can’t actually meet the performance requirements of the job, they find ways to socially engineer their ways to the top, including taking credit for the accomplishments of their subordinates while sycophantically leeching onto the coattails of those who have grifted their way up the food chain before them. They all keep each other’s dirty little secrets about not actually being able to do their jobs and abusing their positions of authority to the benefit of the highest bidder, be the currency money, power, or both.

Eventually, an emperor emerges from the mix, some traveling salesmen weave him a in invisible robe from gold thread that, allegedly, can only be seen by competent people, and, as he’s parading down the street in this magical garment, a child points out that he’s actually just a naked guy played for a fool by a couple of con artists who have since skipped town with a fortune in gold thread. I’m paraphrasing the parable, here, of course.

The problem is that a public institution can become such a hopelessly dysfunctional system that it’s really better to take it down the way the Attorney General (AG) of the State of New York is trying to take down the National Rifle Association (NRA), right now. When the corruption runs as deep in a public agency as New York’s AG asserts is the case with the NRA, it’s better to scrap everything and start over with all new people and a new method of operating that conforms to the appropriate standards.

Sometimes the well becomes so hopelessly poisoned that it’s just time to dig a new well. I think America is at that crossroad in a very broad and general sense. We are at the tipping point of a crisis of conscience.

Who do we want to be? The cronyistic incompetents who stab each other in the back over superficial slights, engage in power grabs like reality TV show contestants, and are utterly detached from and incapable of living up to the responsibilities of the job? Or, the hard-working, methodical, responsible adults who understand and are humbled by the responsibilities before us, know that our efforts to do things right will pay off in the long run but we’re going to have to struggle in the short term to clean up the messes we’ve collectively made?

So many people who came before us fought and died so that we could have the freedoms and legal tools to save our democracy, right now. I have been fighting this fight since the 1990s, but I have also lived the reason for this fight as a twice exceptional student who was never identified for any kind of services or accommodations for my processing disorder when I was a K-12 student. During the 1970s and 1980s, when Section 504 and what is now known as the IDEA were new, they were not being implemented by the overwhelming majority of public schools in the United States at the time, and certainly not in Louisiana and Arkansas, where I grew up.

I was briefly put on Ritalin in my early elementary years. But, who wasn’t, back then? I was later diagnosed with “minimal brain dysfunction” in junior high as the result of a quest for a reason why I couldn’t walk in heels (there was great social pressure on females in the Deep South at the time to wear pumps with everything, including jeans). I had to do physical therapy to stretch out my hamstrings and heel cords from all the years of toe-walking I’d done (which, by the way, toe-walking can be a neurological soft sign of autism).

My vestibular sense and my proprioception were jacked. My reflexes were/are abnormal. I can distinctly remember having visual processing issues that made it such that my brain couldn’t piece together what I was looking at to make a picture of the world that made any sense. Abstract shapes would slowly resolve into a singular whole that then made sense, but I can remember having to wait for that visual resolution to occur at the brain level before I could start understanding what was happening around me. My eyes could see, but there was lag time between when I looked at something unfamiliar and my brain was able to put the shapes together in a cohesive way that I could understand. My last recollection of that happening to me was around 8 or 9 years old. I can remember it happening a lot prior to then.

I also had very bad vision, so it could have been that my brain didn’t get the requisite practice at piecing together the parts of what I saw into a cohesive whole until I got glasses and could actually see everything clearly. I don’t have ADHD; I have ADH – Oooh, shiny! I also have mild hearing loss due to a condition that runs in my family. My dad and many of my cousins have hearing aids. I haven’t gotten to that point, yet, but it’s coming, eventually and that’s okay. Worse things could happen; hearing aides don’t ruffle my feathers in the least. I’m just not spending the money until I have to.

The point is that I had a mixed bag of processing issues as a kid that was somewhat offset by my processing speed, but not enough to make me academically successful. I know what it’s like to have my potential wasted by people who don’t understand my needs as a developing child. The adults in my life cared, but were at a loss as to what to do because the science just wasn’t that good or well known at the time, and certainly not where I grew up. They couldn’t begin to abide by the relatively new civil rights and special education regulations; the science behind it was way beyond them. They didn’t know any of that.

But, that was a long time ago. We don’t have those same excuses, now. Adults like me who used to be those struggling students decades ago are everywhere now in public education advocacy, rights, and reform efforts. We know first hand why it’s so important for the public education system to engage in person-centered planning for every student, not just those identified as having something “wrong” with them.

We also understand why it is so important to identify those who do have exceptional needs, and meet those needs, so these students have equal access to learning as that given to their peers without exceptional needs. We understand why it is so important to address the disabilities of our twice-exceptional students while simultaneously nurturing their gifts. Last year, Kodi Lee brought the point home to the lay public, which had not had any similar prior exposure to twice-exceptional people, and certainly not one so impactful.

No matter how impaired someone may present, the public learned to never assume that such a person’s presentation accurately captures all of who that person is. Kodi humbles people in the kindest, most innocent, and inadvertent way, which is what makes him so powerful. He isn’t trying to ram a message down anyone’s throat. His existence is the message; he lives it for the rest of us to observe and copy.

Kodi is a powerful living metaphor to not judge a book by its cover, which has been a recurring lesson born over the last few years of these talent competitions happening around the globe that he simply drove home with an exclamation point. The cultural norms surrounding public opinion of people with disabilities have tipped strongly in the direction of inclusion by the display of capability and superior abilities by contestants with a wide variety of impairments in these competitions.

Leave it to the entertainment industry to be the agent of change. If we live in a shallow culture in which life imitates art, then art should model appropriate behavior, such as inclusion. I’ll say this for Simon Cowell: he made inclusion marketable and profitable by allowing talented people to be defined by their acomplishments rather than their limitations. At the end of the video clip of Kodi Lee’s first audition for America’s Got Talent, after winning the Golden Buzzer, the judge who had awarded it to him, Gabrielle Union, told him straight to his face, “You just changed the world!” and she wasn’t lying.

This is part of the brave new world that is to come as we rebuild our public education system to meet the needs of today’s students in the 21st Century, including the flexibility to rapidly adapt to changing lifestyles, national emergencies, job market demands, and advancing technologies. All of these things will continue to collectively alter how we teach and manage the teaching process according to best practices, and continue to engage in ongoing research to continually improve those processes and their supporting administrative procedures.

Which circles us back around to the issue of stay-put and the recent stay-put order from OAH, linked to above. While the order is limited to California, it is germane to a federal district court case being tried in the Central District of California in which the plaintiffs, which include parents of children with extreme special needs who are not getting the 1:1 in-person services required by their IEPs, are suing the State over school shutdowns and attempting to get a federal court injunction that allows school districts to decide whether to reopen or not.

Not surprisingly, the case originates out of Orange County, California, which has a large extreme right population relative to the rest of the State and is, not coincidentally, also a COVID-19 hotspot within the State. COVID deniers abound and are having a deleterious impact on local governing decisions as they impact public health. For a lawsuit disputing the legality of school shutdowns over a legitimate public health crisis to emerge from this climate is not exactly a shock.

Not also surprising is the rampant special education violations and related scandals that have plagued Orange County for decades. Egocentrism is confused with personal civil liberties, and the welfare of others is beyond comprehension, resulting in extremist beliefs and behaviors. It is not shocking to me that school board members who have been actively violating special education and civil rights law convinced a bunch of parents who they were actively screwing over to join them in a federal lawsuit against the State to force the schools to reopen in order for their kids to access services.

If you read the plaintiffs’ complaint compared to the legal authorities I’ve already cited previously in this post, it’s plainly evident that these people don’t know what they are doing. I spoke with the State’s lead attorney on the case last week and shared the arguments I’ve now presented in this post with her.

While the judge has yet to decide the case, and, in fact, today is the filing deadline on briefs regarding the exhaustion requirements under the IDEA and the California Department of Justice (CADOJ) is on it, the nature of the questions the judge asked the parties to brief in his last minute order inclines me to believe that once those questions have been answered, we’ll have a federal district court decision on the matter that will apply to every school district in California.

The CADOJ’s arguments must naturally rely in part on the arguments I’ve asserted herein. The federal district court judge will likely defer to the OAH stay-put order that was just issued yesterday, given that OAH has the authority to try special education cases and is, therefore, authoritative on how the law applies to the rights of special education students, special education students must exhaust their due process rights through OAH before filing in federal court (generally speaking), and it is proper for the federal court to defer to OAH’s judgment, which will mirror the arguments I’ve been asserting this whole time and which CADOJ will also be asserting. They are aware of yesterday’s stay-put order, as well, just in time to meet their filing deadline.

Things are about to get a whole lot more okay for a lot of kids on my caseload. Whether their LEAs capitulate and provide the services or we end up going to hearing with the right kinds of legal authorities backing us up, either way, the rule of law is working slowly but surely and the application of the peer-reviewed research to the delivery of special education, now that reform is unavoidable, is about to enjoy a new era of advancement in the education of all students, not just our students with the most demanding needs.

It’s always darkest before the dawn. An extinction burst of escalated behaviors always comes before a maladaptive behavior finally becomes extinct. We are riding out one heck of an extinction burst on the part of incompetent people whose cronyism and transactional relationships have defined their realities and ours, and who cannot function in a more advanced, emotionally intelligent society that is moving increasingly towards meritocracy in which actual ability and earned achievements promote social status. Hucksterism has become obsolete. The Patriarchy is now rightly seen as a pack of egocentric ghoulish caricatures, not as dignified elites worthy of worship by everyone else.

These moments will pass and we will have the power to make something new and better once we get to the other side. This latest stay-put order and, hopefully, the upcoming federal court decision, are incredible first steps in the right direction.

Regression, Compensatory Education, & Quarantine

Photo Credit: Dan Gaken

One of the many populations of individuals directly negatively impacted by the current quarantine is the special education population. Among those students are those whose impairments are significant enough that any significant disruption in their school routines will cause them to regress, which is to lose learning they had previously acquired.

Regression happens for students such as these during lengthy breaks, like summer, which is why we give them Extended School Year (ESY). By extending the school year through periods of normal breaks, we prevent them from losing ground. When kids regress from disrupted instruction, once the instruction resumes, that time has to be spent on recoupment, which means re-teaching what was forgotten. That means time spent re-teaching previously known information instead of adding onto it with new information. For kids already behind in the first place, this puts them even further behind.

Compensatory education can be used to make up for regression and can take different forms. Sometimes its intensive services over a summer break so the student is where they should have been by the time school starts back in the fall. Other times, it’s supplemental services being provided outside of the regular school day in addition to the instruction being provided during school, though that can be pretty tough on a lot of kids. Sometimes, it takes putting the student into a more restrictive, but more intensive instructional placement for a period of time so they can catch up in their learning before being returned to the public school setting with services in place that will prevent them from regressing again.

Compensatory services can be provided in other contexts, as well, regardless of whether regression has occurred or not. When families find it necessary to take their Local Education Agencies (LEAs) to due process to achieve remedies for the deprivation of educational benefits, compensatory education is the likely remedy, though the form it takes varies from case to case.

From a procedural standpoint, if an IEP calls for a specified number of service minutes for a particular intervention and not all of those services minutes are provided as they should be, a minute-for-minute compensatory remedy is due simply as a matter of procedure. The regulatory procedures require that IEPs be implemented as written and, if they aren’t, whatever services that weren’t provided according to their mandatory statements of frequency and duration remain due to the student.

An Individualized Education Program (IEP) is a legally binding contract that obligates LEAs to deliver on it as written, so if they don’t, they have to make up the services minutes to which they committed themselves as described by the affected student’s IEP. When compensatory minutes are ordered following a state-level compliance complaint or due process case on the basis of procedural violations, the compensatory services are minute-for-minute as described by the IEP because the number of service minutes the student should have received are documented in the IEP, which the LEA is legally obligated to implement as written as a matter of procedure.

However, compensatory education can also be ordered by a judge in due process on the basis of substantively inadequate IEPs. In such instances, a student’s IEP does not contain services that it should, so they can’t be enforced as a matter of procedure. When necessary services are left out of an IEP such that the student suffers a deprivation of educational benefit, or when services in the IEP are not delivered as the result of a procedural violation and the student then regresses, now you’re talking about substantive harm.

Failing to follow the rules and owing something previously promised is one thing, but causing further loss of learning by failing to implement the IEP as written such that regression occurs is a much bigger issue. Failing to teach necessary instruction because it was left out of the IEP is just as big of an issue, if not bigger.

When special education students are deprived of educational benefits by their LEAs, how much of what kind of services they get to make up for those deprivations has to be figured out on a case-by-case basis. Judges rely on expert testimony and evidence, usually assessment reports, to figure things out when these cases go to hearing. How well a student’s attorney argues the case has a lot to do with how much compensatory education that student will get for any sustained allegations of substantive harm.

Those are the basics of how and when compensatory education can be ordered. Compensatory education can also be negotiated as conditions of settlement to prevent any kind of regulatory and/or judicial intervention. I’ve even had situations in which procedurally owed compensatory service minutes are written into IEPs at IEP meetings without lawyers and lawsuits even coming up in the conversation. This latter action has usually occurred when there was a temporary lack of a qualified provider and the service minutes had to be made up once the position was filled.

All of this is based on how things were before the quarantine and, at least for right now, no waivers of the Individuals with Disabilities Education Act (IDEA) have been authorized by Congress. Parents and educators are still waiting to find out if any waivers will be passed in the near future (sign our petition to ask Congress to not authorize waivers), but for now, the law still stands as it always has.

Any child whose IEP is not currently being implemented as written, right now, is going to be owed compensatory minutes purely on the basis of procedure. If a kid’s IEP calls for 30 minutes per week of speech/language services and that kid has been in quarantine for six weeks without those services, that kid is now due 180 minutes of back-due speech/language minutes, and that number will continue to grow for so long as that kid continues to go without those speech/language services.

Dealing with procedurally required compensatory services along these lines is going to be burdensome enough on LEAs after people adjust to quarantine and new ways of doing things are put into place, as well as once the quarantine is over. Both state and federal education agency officials have already started talking about how they’re going to tackle that.

Dealing with kids who are due compensatory remedy because they were deprived of educational benefits during quarantine because necessary services weren’t in their IEPs in the first place and/or they regressed in the absence of services that were written into their IEPs but not provided, is going to be a whole other thing that is likely to burden our due process mechanisms and take money out of the classroom, virtual or otherwise, to pay lawyers. The substantive compensatory education claims are going to be significant and the reality is that an ounce of prevention is worth a pound of cure.

Compensatory remedies are never as effective as the instruction students receive as a matter of a Free and Appropriate Public Education (FAPE). For one thing, IEPs are based on present levels of performance when they are written. Those present levels establish where the student was performing at the time the IEP was written and the IEP goals target learning outcomes for a year down the road, relative to the baselines established by the present levels.

When kids regress from lack of instruction, their present levels of performance move backwards, not forwards. When kids fail to learn for lack of appropriate IEP goals and, thus, a lack of appropriate IEP services, further deficits are induced on top of the deficits that were already there as a result of their disability. When these same kids sit at home not getting appropriate special education, they fall further behind and no amount of compensatory services will ever restore them to where they should have been had their services been appropriately provided in the first place.

Many special education students were facing IEP implementation failures and/or poorly constructed IEPs before the quarantine. Now, many more are joining them in the “Deprivation of Educational Benefits Club,” as they sit at home without adequate services to see their IEP goals met and/or without adequate IEP goals to drive the provision of necessary services. Further, because their learning environments have dramatically changed, many of these children now have new needs specific to learning at home that are not addressed by their IEPs.

Behaviors in response to parents’ attempts at instruction top the list. Parents without any kind of training in delivering specialized instruction are attempting to nonetheless do so without the support of behaviorists that would otherwise be provided to credentialed special education teachers. Most parents give up in exasperation because they have to decide between the lesser of two evils: behavioral regression or academic regression.

Recoupment of academics is usually a lot easier to achieve than remediating a big behavior problem. Remediating a behavior problem requires the student to unlearn maladaptive strategies and replace them with adaptive ones that have to be taught.

Remedial academics just involves new learning; kids generally don’t have to unlearn something inaccurate, first. At worst, they’ll have to be retaught something they learned previously but forgot, before they can pick up with new stuff, again.

Parents who have the means, right now, are working their health insurance to get online speech/language services, consultations with specialists like Occupational Therapists (OTs), and online social skills groups. They are paying out of pocket for online tutors and classes to give their kids some kind of academic routine. Many of those out-of-pocket costs are going to be recoverable as a matter of compensatory education.

There are two ways that compensatory education gets funded:

  • If it is agreed-to or ordered first, it is provided thereafter at the expense of the LEA. Either the LEA pays for it directly or the parents pay for it and the LEA reimburses them, as agreed to by the parties or as ordered by the judge in due process.
  • If it is not agreed-to or ordered first, parents pay out of pocket for the services, then request reimbursement after the fact. If that’s the case, either their LEA will agree to reimburse them, usually via a confidential settlement agreement, or the parents will have to file for due process and prove to a judge that they had to pay out-of-pocket for the services because the LEA failed to provide them, they were educationally necessary, and their child would have likely regressed or otherwise been denied a FAPE without them.

That’s something that some families should seriously think about, right now. Not everyone is out of work. Not everyone is without resources. If savings or lines of credit can be used to provide services in the home, now, while waiting for the local LEA to get its act together, parents can sit on their reimbursement claims until the dust settles. Due process claims come with a two-year statute of limitations. A denial of a FAPE that began on March 1, 2020 will remain viable until February 28, 2022, for example.

Families that have the means to privately fund what their children with special education needs are not currently getting should do so just because it needs to be done, regardless of whether they can recover those monies from their local LEAs or not. But, because the taxpaying public has already paid the LEAs to render a FAPE but they aren’t, parents should still keep their receipts in case they are able to recover their out-of-pocket later. The focus should be on keeping your kids moving forward in their learning and preventing regression. You can worry about the money later, given that you’ve got two years to act on your reimbursement claims.

However, for families that do not have the means to pay out-of-pocket for now, there is a tremendous need for immediate intervention. As LEAs scramble to come up with solutions, one that seems obvious to me but which might not occur to others is to open up the provision of related services by private providers that are not currently licensed as Non-Public Agencies (NPAs).

There are more qualified providers that are not licensed as NPAs than there are providers that are licensed as such. The barriers to entry into the NPA arena are ridiculous and multitudinous, plus they get paid at Medicaid rates, which is usually less than what it costs to deliver the services, so providers can’t keep their doors open by operating as NPAs.

Most NPAs are also set up to do business with other agencies and private insurance, which offsets the shortfall created by their NPA business. In many states, becoming an NPA is more of a marketing expense to get the agency’s name out there in front of people, build up a trusted reputation as a provider, and then dump the NPA status to carry on with private insurance and other agency contracts in exchange for payments that actually keep their doors open.

While NPA licensing requirements may have been created to keep the sketchy people out, they actually achieve keeping most of the really good people out, too. Now is the time to reform that process so that we have more providers that can reach into the homes via whatever safe means possible of the special education students who are currently being denied a FAPE and regressing at this very moment.

In-person services can be provided with adequate Personal Protective Equipment (PPE) and safety protocols. Not every special education student is able access instruction online. Those who can, should, but that still takes a lot of skill and expertise to facilitate. When you’ve got a kid at home with a parent refusing to participate and no in-home behavioral services to facilitate their participation, the parent sits there helpless as the parent/child relationship suffers and no learning occurs.

By relaxing the NPA licensing rules and letting non-NPA providers that are otherwise qualified with the proper professional certifications, such as Speech-Language Pathologists (SLPs) and OTs who are medically certified, a great many students can still receive services at home who otherwise wouldn’t due to LEA staffing limitations.

The goals that were determined to be educationally necessary by each child’s respective IEP team are still educationally necessary. The services determined necessary to see those goals met in a year’s time are still necessary.

The only thing that has changed is placement, and now IEP teams need to figure out how to deliver services in the current placement such that the goals are still met. This is the same line of inquiry every IEP team has to pursue when normally making placement decisions. Placement is driven by what learning environment is the Least Restrictive Environment (LRE) in which the services can be delivered such that the goals are met. That’s best practices according to educational science, plus it’s the law.

Now that placement changes have been forced on everyone because of quarantine, it’s time to back up the conversation to that point, again, where services necessary to see the goals met in the current placement have to be identified. That said, new goals may actually be needed to address how the student functions in the home learning environment. New evaluations may be needed to inform what those goals should look like.

One thing is certainly clear from all of this: the next time the IDEA gets reauthorized, it will need to include language that describes how it will be implemented during a national crisis. The absence of any such language automatically puts LEAs out of compliance when disaster hits, which benefits no one; leaves students stranded without a contingency plan, deprived of a FAPE and actively regressing with each passing day; and creates compensatory education claims that will become a greater burden on the public education system than serving these students appropriately during a crisis in the first place.

What About Kids with FAPE Claims that Pre-Date Quarantine?

As much as special education in general is all up in the air in most quarantined school districts, with unlawful conduct being perpetrated by school officials who have never believed in the IDEA seeing this as an opportunity to get rid of its obligations while still collecting federal special education dollars, there is a subpopulation within special education that is even more affected by this than others. That subpopulation is made up of the students whose educational and civil rights were already being violated by their local education agencies (LEAs) prior to the quarantine.

There is huge debate going on right now about Betsy DeVos, the Trump Administration’s appointed Secretary of Education, and the waiver power she does and does not have under the law to exempt school districts from delivering a Free and Appropriate Public Education (FAPE) to students with disabilities. Congress has now asked her to testify as to what parts of the IDEA she thinks needs to be waived and we don’t know how it will vote on the matter.

More and more comes out on this topic each day. The Council of Parent Advocates and Attorneys (COPAA), the national nonprofit professional organization that advocates and, where necessary, litigates on a national level on topics like these has published its own policy statement about the current situation, which can be found on the COPAA website.

Currently, there are no waivers of the IDEA in place. The only exemption right now is that LEAs that are not providing distance learning options to their general education students don’t have to provide education to their special education students, either. Until there are actual Congressionally approved waivers, nothing has changed with respect to implementing the IDEA for those special education students served by LEAs that are currently providing distance learning to their general education students.

Nonetheless, I have four families with students in one particular school district that is currently providing distance learning to its general education students and something half-baked in terms of online options for its special education students. All four of these families received generic Prior Written Notices (PWNs) over this last weekend advising that it’s impossible to implement IEPs under the current circumstances, even though it very often is possible and the administrator sending these things out has a decades-long history of throwing money at lawyers to defend her decisions instead of actual services for students. Three of those families already have due process cases filed or about to be filed.

Just like everything in special education, PWNs are supposed to be individualized to each student, but she sent the same PWN to the families of everybody in her district in special education, telling them all that implementing their IEPs under the circumstances is impossible with no examination of each student’s unique, individual situations. She may have finally dug herself into a hole that she can’t get back out of.

This administrator made unilateral decisions on behalf of her district outside of the IEP process during a time when the IDEA has not been waived in any kind of way, in part or in whole. It’s a systemic violation of the law memorialized in writing on district letterhead to the family of every special education student in her district. She may have well just created a class action lawsuit against her employer.

Children with disabilities from low-income, single parent, immigrant, and non-white households were already getting the short end of the stick when it comes to special education. Being white and affluent doesn’t necessarily protect you, but it does increase your odds of avoiding at least some FAPE violations.

That said, the aforementioned administrator sending out PWNs that break the law on her employer’s behalf worked most of her career for an affluent school district where the only way to get a decent IEP was to sue the crap out of her district. Her department would play to the egos of affluent parents and tell them special education was a welfare service and they would be better off privately paying for services, thereby collecting federal IDEA dollars without actually having to spend them on services.

Now she’s working for a district in an economically depressed community with a largely Latino population and is preying on low-income, non-English speaking, families of color. Maybe she thinks they aren’t going to stand up to her taking advantage of the pandemic to bring in IDEA dollars without having to deliver on IDEA obligations. She’s wrong.

I already had cases that were pending due process on my caseload when this pandemic hit. The students involved in those cases were already being under-served, if served at all, and now they’re sitting at home with even more nothing. One student’s parent has an elderly parent in a nursing home she can’t visit and is working from home (or at least trying to) while her adult autistic child who is still eligible for special education has one meltdown after another because of the sudden disruption in routine and her inability to go out and do anything (trips into the community were being used as reinforcers as part of her behavior program, as well as community-based instructional opportunities, before all of this hit).

This parent is understandably furious. All that she’s gotten so far from her daughter’s teachers is a useless Google classroom link that takes her to a page full of nothing to do with her daughter’s IEP goals. And, while her daughter’s IEP makes clear that she requires “highly trained staff” to meet her goals, all she’s got right now is her frustrated mom and useless downloaded worksheets that her mother doesn’t know how to teach to her and she doesn’t know how to complete. There is no support from the teaching staffs to help this parent engage her daughter in the distance learning option, such as it is, that they’ve been given.

This student is from the same district mentioned above that is sending unlawful F-You letters on PWN forms to its special education families. I have three other students in this district, two of them already with litigation pending for violations that occurred before the quarantine. They were already being denied a FAPE before quarantine, and they sure as hell aren’t getting a FAPE now.

I’ve already written about the impact of the quarantine on special education before to some extent, but I want to hammer a particular point once again: Many special education students are at risk of significant regression, which is the loss of previously learned knowledge and skills, during lengthy breaks from instruction. These students are eligible for Extended School Year (ESY) services for this very reason; summer breaks, and sometimes winter breaks, are just too long for them to go without services or they have to make up for lost ground once they return to school, which makes them unavailable for learning anything new.

The impact of the current situation on these students in particular stands to compound an already egregious denial of FAPE. If they were already being denied a FAPE before this all happened, additional regression on top of that will create deficits that will never be overcome.

As of right now, no IDEA waivers have been permitted. Congress is waiting for Mrs. DeVos to tell it what waivers she wants to push through in response to the pandemic and mass quarantines. There is significant fear that the waivers Mrs. DeVos will request will include exemptions from implementing all or part of the IDEA.

The consequences to students if Mrs. DeVos is successful in getting IDEA waivers are obvious. What is not quite so obvious is what becomes of federal special education dollars to school districts if she manages to get any or all of the IDEA waived. While some school districts may be ready to embrace reduced duty and accountability, do they realize that IDEA dollars are tied to complying with the law? Does Mrs. DeVos intend to use IDEA waivers to not only reduce accountability for the public schools, but to also reduce their special education funding? How many school districts are willing to walk away from special education dollars in order to get out of having to implement IEPs?

Parents of children with disabilities, their extended families, their friends, and any taxpayers who otherwise get it need to act on this right now. You need to reach out to your representatives in Congress to tell them that any IDEA waivers are unacceptable. There is a way to deliver a FAPE to most special education students right now; it just takes cleverness and ingenuity, things most government agencies are not particularly known for. Clever problem-solving is generally unaccepted in institutions built on political corruption.

So, here’s your call to action: Contact your Congressional representatives and tell them that no IDEA waivers are acceptable or necessary. Look up your Senators here, and your Representatives here. You can also use our easy-to-use form letter generator or sign our online petition. If you are listening to this as a podcast rather than reading it as a blog, you can find the links in the text-only portion of this post.

It shouldn’t be necessary to have to fight to keep civil and educational rights in place for our nation’s children, but it is. Many LEAs are pushing compulsory education laws by threatening families with truancy proceedings if they don’t participate in distance learning options, but then are looking for any and all excuses to not actually deliver a real education, particularly to their special education students.

These distance learning options are all about keeping those Average Daily Attendance dollars coming in, I assure you. LEAs can’t live without that money and its based on attendance, which is why they are threatening to criminally prosecute parents who don’t implement their half-assed distance learning options for truancy. But, to actually deliver a real education in exchange for those dollars seems too much to ask, and it’s a thousand times worse for students with special needs.

It may quickly become the case that the only way for families of special education students to protect themselves against unjustified truancy charges, which are tried by local superior court judges who know nothing about how special education is actually supposed to be delivered, is to file for due process and make the record that the education being offered to those special education students during quarantine is inappropriate to their needs and they are unable to access learning as a result.

Parents should not feel forced to make their kids do something that will not help or just make things worse out of fear of being criminally prosecuted for truancy if they don’t. The sad reality, however, is that so long as they log or call in every day to whatever distance learning platform has been made available to them, even if their kids aren’t learning anything, they will not be prosecuted for truancy because those logs will be used as proof of attendance so schools can get their Average Daily Attendance dollars. That still does nothing to ensure their receipt of a FAPE, though.

Now is the time to reach out to advocates and attorneys if your child with special education needs isn’t getting appropriate instruction and related services while sheltering in place. You can find people to help you by searching online for “special education advocates near me” and “special education attorneys near me.”

Just be careful of the con artists out there, though. There are lawyers who will claim to represent families but then cut backroom deals with the attorneys representing the LEAs in which they convince the family to sign settlement agreements that short-changes their kids and eliminates their claims against the LEAs. There are also lay advocates who mean well, but don’t know the applicable science or law.

You should be leery of lawyers who have been in practice for years but have no litigation history. If they could actually litigate, they’d do it. But, if they can’t, they’ll get a few thousands dollars in fees for selling out their clients via backroom deals cut with school district lawyers and administrators. There are sleazy people on both sides, so parents do have to be choosy about who represents them.

Your state should have some kind of online database of due process decisions that you can search by an attorney’s name. If no due process decisions come up with that attorney’s name, and they’ve been in practice for years, that’s a red flag. If you search the decisions by attorney name and the results produce only cases that the attorney has lost, that’s another kind of red flag.

The good lawyers’ caseloads already get impacted by this time of the school year, but this situation just takes it to a whole different level, so parents should find someone fast if they think they even might need the help. One source that helps parents find advocates and attorneys is COPAA. It has guidelines to parents for choosing a special education attorney and/or advocate, as well as a searchable directory of COPAA members by location.

You will note that I am not listed. I am not a COPAA member and with good reason. As much as I appreciate what COPAA does on a national level, particularly with respect to its amicus briefs, it has no membership options for paralegals. This isn’t about bashing COPAA because there are things about it that I genuinely love, but there’s also things about it that I find wholly unacceptable.

I’m speaking to my truth, not disparaging an organization that I am, here, deliberately telling parents they should check out as a valuable resource. My issues with COPAA are mine, but I’m sharing them here for the benefit of those who search the database I’ve referred them to, don’t find me on it, and wonder why.

If I go to the COPAA conferences, I can only attend the workshops for parents and other advocates, where I spend the whole time either biting my tongue or correcting the presenters because they’re disseminating misinformation, and I never learn anything I didn’t already know. I’m not allowed to attend any of the attorney sessions, even though I totally could use the MCLEs for my paralegal status.

I can’t even subscribe to the COPAA listserv for attorneys, even when it contains information that would benefit my supervising attorneys for me to have access to it. My supervising attorneys are not even allowed to share it with me, even if it pertains to a task they are delegating to me. Until COPAA makes a space for me and people who work in the profession as I do, I can’t justify the expense of a COPAA membership or its conferences.

Besides, when I’ve gone to the conferences, I’ve walked through the tables and booths between sessions and, every year, there sits a table set up by a non-public school that broke one of my student’s arms during an unlawful restraint several years ago. When this issue was raised with COPAA the first time I saw this bunch at a conference, they ignored my supervising attorney on that case and continued to take money from these child abusers for the table space each year after that. I’m not okay with that.

Given the poor instruction options available to me at the COPAA conferences, the presence of known child abusers at the conferences, and the overwhelming evidence I’ve observed that far too many people only attend it so they can drink to excess and cheat on their spouses for a week, I don’t find the COPAA conferences worth the thousands of dollars in fees, hotel and travel costs, and lost billable time to be worth it. Plus, they hold it in the middle of the busiest time of the school year, which makes no sense at all. I’ve always got way too much work happening when the conferences are held to attend, anyway.

So, while I don’t have a high opinion of the COPAA conferences, I have a very high opinion of the brilliant legal minds that write COPAA’s amicus briefs and I’ve agreed with every one of them I’ve ever read 100%. Nothing is perfect and COPAA is a good resource for many. The actual work COPAA does, aside from its annual conferences, is stellar and I can look past the conferences for the sake of the bigger picture, which is legally protecting children with disabilities from educational and civil rights violations.

COPAA has taken on the U.S. Department of Education with bold, accurate words in legal proceedings that make my heart want to burst with pride in our profession. That’s what matters to me about what COPAA does. That is, in my opinion, the most important thing COPAA does.

If you are looking for an attorney or advocate, the COPAA membership directory can be a good resource for many parents. Just know that there are a lot of other professionals out there who are really good at their jobs who are not members, there are members who aren’t that good at their jobs, and there a non-members who haven’t signed up because they’re crooked and don’t want to get caught by those of us who are doing this work for the right reasons. Like everything else in life, it’s a mixed bag.

Being on the COPAA membership directory doesn’t automatically mean someone is good and not being on it doesn’t mean someone is bad. It’s just a list of people who work in this field and pay membership fees to COPAA, but it’s the only national directory of advocates and attorneys that I know of and it’s foolish to not regard it as a valuable resource. Just take it for what it is and don’t think that hiring a COPAA member automatically means you don’t have to put much thought into it.

As I stated before, the membership directory page includes links to COPAA’s guidelines for finding a qualified attorney or advocate, which is pretty sound advice. Regardless of whether an advocate or attorney is a COPAA member or not, COPAA’s guidance as to how to vet attorneys and advocates is still good.

If you are the parent of a child with special needs who is not receiving a FAPE while in quarantine and your LEA is providing alternative learning options to its general education students, as of the time of this writing, there are no waivers of any part of the IDEA and it is still fully in force. This isn’t about kicking your LEA while it’s down; this is about protecting your child from being kicked by his/her LEA while your child is down. LEAs have millions apiece of taxpayer dollars intended to pay for the education of our children and that damn sure better be what it’s spent on, regardless of the situation.

Students who were already being denied a FAPE before the pandemic are now further compromised. How this is going to play out in litigation remains to be seen. If the rule of law is followed, there are no exceptions to providing a FAPE right now. Any FAPE violations that were already going on before quarantine have not been made better by it and families in those situations very likely need to consult with a qualified special education attorney sooner rather than later, if they haven’t already.

This is a difficult time for everyone, but the true measure of a society’s health is how well it takes care of its most vulnerable members during times of crisis. While some fascist LEA administrators may see this as an opportunity to finally carry out their bigoted agendas and terminate special education like they’ve been wanting to since 1975, those of us who still prefer democracy to fascism have to stand up and enforce the laws that have been part of the fabric of our country for the last 45 years.

As soon as one civil rights law falls, all the rest of them fall, the tenuous thread that our democracy is holding onto right now will snap, and we will find ourselves suddenly living in a real oligarchic regime. The moment it becomes okay to violate the civil and educational rights of children with disabilities, it will become okay to violate everyone else’s rights, too. Every protected class – women, minorities, LGBTQ+ individuals, low-income families, single-parent households, etc. – will lose rights one by one thereafter until no one has freedom anymore, except the wealthy oligarchs.

While I am focused on the individual needs of the children and families involved, I can’t help but appreciate the over-arching ramifications for democracy at large. We protect everyone’s rights, or we protect no one’s. True democracy means everyone is equal, including special education students.

And, regardless of whether IDEA waivers get approved, no one is contemplating waivers of Section 504 of the Rehabilitation Act or the Americans with Disabilities Act (ADA). If the IDEA is no longer enforceable, those laws still are and Betsy DeVos has no control over them. So, if she manages to get IDEA waivers passed by Congress, families will still have recourse under 504 and the ADA, which can have harsher ramifications than the IDEA on LEAs.

The IDEA diminishes “equal access to education” but expects no expense to be spared in the pursuit of that watered down version of equal access; the ADA says “equal access” must be 100% equal, unless it creates an undue burden on the responsible party, which it has to prove. We’ve not had civil rights litigation under 504 or the ADA since either of them passed that sets a precedent for what we’re dealing with right now, but I can promise you that what special education students are getting at home during quarantine doesn’t come close to equal access to education as that being given to their non-disabled peers.

These are uncharted waters and only time will tell how this is going to play out, but it’s up to those of us who do this work and the families we serve to do everything we can to protect our children with special needs. Please contact your Senators and Representatives, tell them that no IDEA waivers should be granted, and let’s all keep the pressure on until we have an answer. In the meantime, nothing has changed and the law is still enforceable, so we need to enforce it.

While many courts have moved to a work-from-home model (I recently watched a federal court trial in which Google was accused of aiding and abetting the Taliban that allowed me to see into the homes of three federal court judges and the Plaintiffs’ attorney), some state special education hearing offices have closed down, ceased operations except to issue continuances and stays, and are accruing a backlog during quarantine that is going to explode with new cases from all the FAPE claims arising from school district misconduct currently going on. Parents may need to use this time to find an attorney, start organizing their evidence, and file to preserve their timelines, even if they aren’t going to get in front of a judge right away.

For families that were already facing due process before the quarantine, if their states are operating their complaints and due process hearings according to a work-from-home model, which Texas is doing, then there should be some kind of mitigation in place to prevent that huge of a backlog. If three federal court judges on a panel can hold a trial to determine if Google was complicit in the Taliban’s use of its technologies to engage in acts of terrorism from their homes, special education due process cases can be tried the same way.

If you have a due process case that was pending before the quarantine, then you’ve likely already been communicating with your attorney about what is going on. If you haven’t, yet, do it now. You need your attorney looking into what due process mechanisms remain intact in your state and what the procedures currently are. Any competent attorney will have already done this, but may be so overwhelmed by the sudden explosion of casework that is starting to happen that they haven’t had a chance to talk with you about it, yet. Don’t overwhelm them by stalker dialing ever 5 minutes, but do reach out and make an appointment to discuss how all of this impacts your case.

There is never a good time to participate in litigation. For most parents, “litigation” and “good time” generally don’t go together. But, this is definitely a worse time to be pursuing due process in a system that was already glutted with cases. The sooner you act, the better.

Positive Behavioral Interventions and Supports in Special Education

In memory of Cedric Napoleon

I wasn’t going to write on this topic quite yet, but I’m working on a case right now that has me upset over public agency mismanagement and misconduct that has resulted in the physical abuse of our nonverbal student with severe special needs and God only knows how many other students within this public education agency. It reminded me of a lot of things, including our organization’s founding and the protective purpose KPS4Parents has always served as student and family advocates.

I maintain my list of topics to write about as draft posts on the backend of our site, sometimes just as a title, sometimes with a brief description, as the ideas come to me and, when I go to write, I have them more or less organized in my head in the order I want to write them. But, sometimes, like now, something happens that makes one of the topics leap up to the top of the list.

I am currently providing paralegal support to an attorney on a case in which our student has gone for years without behavioral interventions in her IEPs after previous years of successfully benefitting from such IEP interventions. She has regressed to the point where she was behaviorally 10 years ago, before receiving any appropriate behavioral interventions at all.

The educational neglect in this case rises to the level of physical abuse. The school district’s bumbling ineptitude at the expense of our student’s welfare has been nothing short of galling. Our student is now sitting safely at home waiting for her case to be either adjudicated or settled but without the benefit of any instruction or related services until it’s resolved.

Which takes me back to the founding of KPS4Parents and the event that was the last straw that compelled our founder, Nyanza Cook, to start KPS4Parents. In 2002, I was a lay advocate in private practice helping families of students with special needs, and Nyanza hired me to help her with her step-son’s case, which is a story unto itself for another day. It’s how we met and these were the early days. It was the context we were in at the time.

Nyanza hails from Killeen, Texas near Fort Hood, the largest U.S. Army base in the continental United States. While diversity has been tolerated, if not embraced, within the U.S. military in many instances, outside of the military base in the rural areas of Texas, diversity is not so much appreciated. Killeen Independent School District (KISD) has historically operated separate schools for students with “behavioral problems,” most of whom have been African-American or Latino. The quality of special education in KISD has been historically abysmal, particularly for students of color, which is how it’s misconduct led to our organization’s founding.

In 2002, a young man named Cedric Napoleon was attending a Special Day Class (SDC) at one of KISD’s special schools for students with “behavioral problems.” Cedric was a foster child living with his foster mother, Toni Price. He had experienced severe trauma in early childhood, including deprivation of food for days that led to a food hoarding behavior and other behavioral challenges. He was in special education under the Emotional Disturbance (ED) category and his SDC was supposed to be configured specifically for students with ED issues.

Also in the classroom at the time was Nyanza’s nephew. On one fateful day in March 2002, Cedric was suffocated to death by his classroom teacher during a prone restraint. He was not being violent towards others, trying to run out of the classroom, or hurting himself when she restrained him. He was being non-compliant and she took it as an affront to her authority. She pinned him face down on the floor out of hostile rage and when he said, “I can’t breathe,” she replied, “If you can speak, you can breathe.” He expired shortly thereafter as Nyanza’s nephew and his classmates watched on in horror.

That night, Nyanza got a hysterical phone call from family members gathered at her parents’ house in Killeen. They knew she was talking about starting a special education advocacy organization and had been advocating for her step-son in California. They put her nephew on the phone with her and all he could say in a dazed voice was, “They killed him, Auntie. They killed him.” He was terrified to return to school after that, and never did. His life has been one of despair and tragedy ever since.

The day Nyanza’s nephew witnessed Cedric’s murder in his classroom by his teacher, he was already there because he had his own ED issues. To add the trauma of witnessing Cedric’s murder to his own pre-existing special education needs, in the place that was supposed to help him overcome his pre-existing special education needs and at the hands of the person who was supposed to help him, was just too much.

More than one life was destroyed that day. Cedric’s classmates witnessed his murder in that ED SDC and were affected for life in ways that could only lead to more suffering for them. The District’s students most vulnerable to trauma were severely traumatized by one of the most grotesque abuses of their trust possible. They witnessed their teacher kill a classmate for daring to defy her authority.

Nyanza called me that night as soon as she got off the phone with her family and told me what they had told her. She and I agreed that when teachers were murdering our babies in plain sight of our other babies (we have an it-takes-a-village mentality, which makes all babies our babies), we couldn’t stand idly by. The death of Cedric Napoleon was the final straw that compelled Nyanza to go through with starting our organization, she asked for my help, I said “Yes!” without hesitation, and we had our paperwork in order by June of 2003.

In Cedric’s case, to make matters worse, once his life had ended, so had his foster mother’s legal authority to act on his behalf as a parent. She could not pursue justice for him because she lacked the legal authority and the foster care system did little to nothing about it. Cedric’s killer was never tried for murder. She was never subject to any disciplinary action by the public education system in Texas.

On May 19, 2009, Toni Price finally got her chance to do something about what had happened to Cedric. The Education and Labor Committee of the U.S. House of Representatives was being presented with a report of the findings of an investigation the Committee had previously ordered to have done by the Government Accountability Office (GAO) regarding the use of seclusion and restraints in public schools. There had been a fairly recent similar study conducted of private schools that produced shocking and horrifying disclosures as bad as Cedric’s or worse, and the Committee had wanted to know if these problems were also pervasive in our nation’s public schools.

The GAO report started circulating among those in my professional circle online shortly after the hearings and ultimately found its way to me. I remember reading through it and getting to the section describing what happened to Cedric and going, “Wait a minute. I’ve heard this story before … OMG! This is the kid from Nyanza’s nephew’s class!” I immediately forwarded the report to Nyanza and either called or texted her to follow up. At some point we ended up on the phone and she was flabbergasted to see Cedric’s story spelled out in the report. It was the same student she had told me about back in 2002.

In the course of conducting its investigation, out of all of the cases of problems with seclusions and restraints that GAO examined, Cedric’s stood out as particularly horrifying, in no small part due to the fact that his killer had never faced any serious consequences for killing him at the time of the investigation. The investigators searched for this teacher when their investigation revealed that she had faced no consequences and, shortly before the date of their presentation to the Committee, found that she had relocated to Virginia and was running an SDC on a public school campus that was only a 45-minute drive away from where the Committee was convening to hear the presentation of their report.

There was no effort to conceal the outrage that several Committee members expressed over the fact that this woman had not only killed an ED student in the ED SDC where she was supposed to be helping him get better, but that she faced no consequences and was able to get credentialed in at least one other state because the fact that she had killed a student didn’t follow her on her record. They openly referred to Cedric’s death as a murder.

The Committee’s disgust is exposed during the hearing (click here for video of the full 2-hour hearing), and I share that disgust. It is disgusting; disgust is the only healthy response to what this woman did. Rep. Rob Andrews (1:22:22 – 1:28:16 of the hearing video), Rep. Lynn Woolsey (1:53:02 – 1:54:18 of the hearing video), and Rep. George Miller, Committee Chair (1:55:21 – 1:57:44 of the hearing video) had particularly candid things to say and there was bipartisan heartsickness over the whole thing.

The only reason Cedric’s killer was found was because of the GAO’s investigation. Had it not conducted it, a known killer would have been allowed to remain as a fox in a henhouse, circulating among the same types of individuals upon whom she had preyed before. Their parents had no idea they were sending their vulnerable children off to a child killer each school day. Even now, almost 11 years later, the thought still makes me shudder with horror.

The Committee’s take on the situation was influenced in no small part by the testimony of various witnesses produced by the investigators in support of its findings. Among those asked to testify was Toni Price, Cedric’s foster mother. Her testimony was compelling; even now, it still makes me cry.

Toni argued for a national, if not global, directory of teachers found guilty of child abuse for education agencies to use for screening teaching applicants, and she did so from the most informed position possible. She spoke as the primary caregiver of a child with mental health needs killed by the person entrusted to address them every day at school, but with no legal recourse to do anything about it, leaving advocating for that child and protecting others like him to no one. Only the fluke of a Congressional investigation at the right time on the right topic exposed what happened, and Toni took the opportunity to say what needed to be said.

Which brings me back to the topic of this post and podcast, which is the use of Positive Behavioral Interventions and Supports (PBIS) in special education. Subsequent to the May 2009 hearing, GAO began gathering additional information and the U.S. Department of Education began promulgating guidance and technical information regarding PBIS. In 2012, the U.S. Department of Education produced the Restraint and Seclusion Resource Document.

In February 2019, after 10 years of collecting data on the use of seclusion and restraints in our public schools, GAO produced another report and another hearing was held during which the last 10 years’ worth of data collected and analyzed were presented to the Committee. Witnesses gave testimony, provided additional evidence, and answered questions. You now can look up the CRDC data for your own school district on the CRDC site.

Shortly thereafter, the U.S. Department of Education announced an initiative to address the inappropriate use of seclusions and restraints in our public schools. Just this last December, four members of the U.S. House of Representatives proposed a bill, HR 5325, referred to as the “Ending Punitive, Unfair, School-based Harm that is Overt and Unresponsive to Trauma Act of 2019” or the “Ending PUSHOUT Act of 2019,” which seems like way too poor of a word choice for a name just to create an acronym, but the body of the bill still nonetheless prohibits seclusions and restraints and includes other regulations pertaining to behavioral interventions.

HR 5325 is still a bill pending before the Education and Labor Committee of the U.S. House of Representatives. It was introduced just last month, so obviously nothing has happened with it, yet. Congress has been a little busy lately and the last time the Committee tried to pass legislation to address seclusion and restraints in 2009, it passed in the House only to never see the light of day in the Senate. That’s likely to happen again, now, with our current configuration of Congress, but the effort still needs to be made.

What GAO reported in the most recent hearing was that there wasn’t enough data in, yet, regarding the efficacy of Education’s efforts to promulgate PBIS technical information and guidance among the public schools or the degree to which the schools that availed themselves of it found it beneficial. In controlled research situations in which implementation fidelity was maintained, PBIS was proven to work, but how well public schools actually implement it with success in the absence of researcher oversight and fidelity checking remains to be seen.

What seems to be the case, and the whole reason this issue is before the House Education and Labor Committee, again, is that there is an obvious need for federal oversight and regulation, here. There is a lack of consistency from state to state as to how behavioral interventions are to be implemented in schools. Some states have regulations regarding seclusions and restraints in schools and others do not. Even those states that have laws in place don’t provide for adequate enforcement of those laws.

The lack of built-in accountability has made it possible for horrible situations to happen. And, they continue to happen. The only way the public school system is held accountable in situations like these is when individual families take legal action. Hence, the case I’m now working on that has made these issues spring to life for me, once again, much to my deep disappointment.

Educator and support staff training, or a gross lack thereof, more specifically, is often at the heart of these cases. But, so is the lack of teacher accountability and the degree to which educators tend to cover up each other’s tracks, even if it means a child dies in the process.

The fear of talking usually goes to fear of losing their jobs, fear of reprisals from their co-workers, fear of being held accountable for the actions of others, fear of getting in trouble for the same thing for which someone else is getting in trouble because they’ve done it, too, and has to come with a tremendous amount of internal conflict. Only sociopaths could smoothly walk that rocky landscape without being troubled by the experience.

The willingness of school administrators to let something as horrible as student traumatization, physical injury, and/or death by the hands of teaching staff and aides in the learning environment get swept under the rug and hope nobody notices, if not actively seek to conceal it, is repugnant. There is a lack of professional integrity in the public education system that can reach sickening proportions, and these cases are examples.

So, I really don’t have an upbeat ending for this post and podcast. I’m pretty not okay with what I’m still seeing going on with respect to seclusion and restraints in public schools in California, which is supposed to be the most progressive state in the country. It’s particularly bad in rural communities far away from specialists and adequate facilities, particularly when those communities are mostly made up of low-income households.

In some cases, like the one I’m working on now, the student has experienced nothing short of absolute barbarism. It shouldn’t take people like me helping to hold the public education system accountable after the fact. The answer is prevention. In the absence of any guidance in the student’s IEPs as to how to address her behaviors, she was repeatedly secluded and restrained by teachers and aides who didn’t know what else to do.

This was all just up until a few weeks ago, which is why she’s now safely at home but without any instruction or related services until her attorney, in collaboration with me as his paralegal and the experts we’re bringing onto the team, can get this mess cleaned up. It just sickens my heart that after all the years that I’ve been doing this work – 29 years this coming June, mind you – this is where things are still at. In the most progressive state in the Union, we’re still secluding and restraining non-verbal students who are struggling to communicate their wants and needs. It puts bile in the back of my throat.