Tag: IDEA

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Double Disability Whammy During Distance Learning

One of the issues that I haven’t seen discussed anywhere else, but am seeing first hand every day, is the impact that the shutdown has had on my students with disabilities whose parents also have disabilities. Given that so many learning disabilities, physical impairments, Autism spectrum disorders, and mental health conditions run in families, it’s not surprising to find children on IEPs whose parents also have disabilities. It would be shocking for a professional in this field to not see that phenomenon.

The shutdown negatively impacted students and their families from all walks of life. Students on IEPs were hit more hard only because they were already at a disadvantage and largely under-served before the pandemic hit. All shutdown did was magnify the pre-existing inequality.

To that end, parents with disabilities who were already getting jerked around by their local education agencies have been disadvantaged and exploited even further during school shutdowns. I’ve got two cases on my caseload, right now, that immediately come to mind. One is in California and the other is in Missouri, and in both cases I’ve had to serve as both a reasonable accommodation for the parent with disabilities as well as do my normal job of advocating for the student with disabilities.

In both cases, a bunch of goons from the respective school districts tried to railroad learning disabled parents who struggle to understand the relevant documents, saying one thing verbally, putting something else in writing, and hoping these learning disabled parents didn’t notice. The parents’ federally protected rights as per the Individuals with Disabilities Education Act (IDEA) to informed consent and meaningful parent participation in the IEP process are additionally compromised by violations of the parents’ rights under Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA).

Here’s what I need everybody reading or listening to understand: The states involved here are Missouri, a red state practically overtaken by domestic terrorists bent on sedition, and California, a blue state with mostly progressive leadership. This is a non-partisan issue. There is no political party that seriously cares about people with disabilities, even though disability cuts across every swath of human existence that there is. It’s beyond dysfunctional, but that’s our profoundly sick society, for you.

So, what do we do about this? Well, on an individual basis, the steps of effective advocacy remain the same: get the truth on the record, request remedy, and file complaints if the local education agencies don’t abide. The number one protection parents with disabilities have under the ADA relevant to this issue is their right to communicate via their preferred form of communication. Reasonable accommodation isn’t limited to wheelchair ramps, and honoring a learning disabled person’s communication preferences is just as important as honoring the communication preferences of someone deaf or blind.

For parents with disabilities, it is important going in from the outset that you make clear in writing that you require reasonable accommodations from your local school district, including what your communication preferences are. It doesn’t hurt to add language like, “These accommodations under Section 504 and the ADA are necessary to insure my protected rights to informed consent and meaningful parent participation in the IEP process pursuant to the IDEA.”

If you have been keeping your need for accommodations to yourself for fear of being judged by the school district members of your child’s IEP team, something is seriously wrong. If you fear that people employed specifically to educate humans with disabilities are going to give you grief because you are a human with disabilities, either you’re insecure, working with a-holes, or both. You do yourself and your child no favors by not putting your local education agency on notice about your need for accommodations; if they treat you poorly, that’s on them for violating your rights as well as those of your child.

It’s stronger to go in asking for reasonable accommodations as your legal right given that you are there to protect your child’s right to reasonable accommodations. If you acquiesce on one, you’re acquiescing on the other. You have to believe that all people with disabilities are equal in power and voice to people without disabilities, including yourself. You are not setting a good example for your child to become a strong self-advocate in spite of disabilities when you fail to advocate for yourself.

Aside from what individual parents with disabilities do on a situation-by-situation basis on the ground, at this point, the only mechanisms available that have any chance of broadly changing anything are judicial and political. Parents need to sue over the civil rights violations that undermine their advocacy for their children so that public education agencies are held to account under every letter of the law that applies. All parents of children with disabilities need to unionize and collectively bargain for improved special education laws and access to special education resources.

In theory, parents with disabilities involved in the IEP process for their children may be able to concurrently file 504/ADA claims in federal court purely on the basis of the discrimination against themselves while filing for due process under the IDEA to assert their children’s claims. However, there’s a kicker that my colleagues who are licensed members of the bar should weigh in on, here.

With respect to informed parental consent and meaningful parent participation in the IEP process, the related civil rights claims may have to toll while due process is being pursued because a special education hearing officer has no jurisdiction with respect to 504/ADA but administrative remedies under the IDEA have to be first exhausted before related civil rights claims can be pursued. Basically, you have to do everything you can with due process before you can go on to federal court on related civil rights claims.

The reason civil rights claims often must toll pending due process is because the hearing officer in the due process case may order something to correct the special education violations that inadvertently cures the civil rights violations at the same time. This makes it unnecessary to get that same outcome from a federal court judge and, thus, a waste of judicial resources to try the same thing in two different venues. However, if the civil rights claims can stand alone on their own with no related due process claims associated with the same body of facts, it’s possible to go forward on civil rights claims while other claims are being adjudicated via due process.

Again, this is a tricky question of law and I defer to my colleagues who are licensed members of the bar to speak to the particulars of 504/ADA claims versus IDEA claims, as well as the order in which issues are tried and by whom. The point is that there is recourse, one way or another.

Parents with disabilities should not feel compromised in the IEP process. No parent should fear that a body of public servants educated, trained, and employed to support the needs of individuals with disabilities in the school setting will use that knowledge to exploit the parent’s disabilities to the detriment of the student. The very idea is reprehensible, but it happens every day.

Institutionalized biases have a lot to do with it. Even people employed to educate students with disabilities will regard a parent’s disabilities as character flaws, more often than not. It’s a learned, knee-jerk reaction that all of us have been raised with to one degree or another our entire lives. It’s why people with disabilities are often also plagued with self-loathing and related mental health disorders. Most people with disabilities aren’t born with self-loathing and mental health disorders; they are acquired from the experiences of being rejected by everyone else and seeing a world that is basically designed to exclude them from participation. Things that can be acquired can also be let go and replaced.

During distance learning, these issues became even more painfully apparent as schools shut down and children with special needs had to stay at home and participate in distance learning. Setting aside the degree of forgiveness due to actual teachers for not being given appropriate tools and support from their respective agencies to handle the situation, something cohesive should have been in place within the first few weeks, but I’ve still got school districts pulling ridiculous stunts and we’ve got partial campus re-openings going on around here, right now.

We’re now more than a year into this thing and, not only have they not gotten their acts together, they’re actively making excuses as to why the broke the law 40 million different ways before now. If they invested half the energy they’ve spent on making excuses and lying to the public into actually solving the problem, it would have been solved by now.

The politics of it all is at the heart of this issue, unfortunately. This is just as serious as domestic terrorism, because it’s actually one of many expressions of that terrorism. When parents with disabilities are terrified of the people to whom they send their children with disabilities every day, often with the threat of criminal prosecution for truancy if they don’t, they are being manipulated through fear to acquiesce on issues that, under the law, require their consent.

It is important for those of us who are working in the civil rights arena to recognize that we will find the students with disabilities we serve also among other marginalized populations that may have a stronger degree of activism already underway. For example, if a child with disabilities and African-American heritage is being jerked around, it may be more effective to bring a representative from the NAACP to an IEP meeting than a disability advocate. Likely, the best solution would to bring both.

This is an issue that child and family advocates need to address because it is vast, pervasive, and significant. When it comes to dumping the instructional responsibilities for a child with disabilities onto a parent with disabilities, the civil rights claims can easily multiply. I have had three cases this year involving parents with disabilities who were getting played by their local school districts until I said something. One case is resolved and the other two, which I mentioned at the beginning, remain active.

In every case, not only were the parents with disabilities being inappropriately burdened like all other parents during shutdown, they were not offered any reasonable accommodations to do so. In my mind, this is an enormous class-action issue that could result in entire state departments of education, which are ultimately responsible to the federal government for complying with the IDEA in exchange for federal special education dollars, getting nailed to the wall for failing to ensure local education agencies provided reasonable accommodations during shutdown to parents with disabilities who were attempting to instruct their children at home or who simply could not, resulting in a deprivation of educational benefits to their children.

I am very curious to get parent, advocate, and attorney input on this issue. If you have experienced anything like this, either as a parent or professional, and have ideas on how to lawfully resolve these issues with the least amount of trauma to the involved children and their families, we’d love to hear from you. For those employed within the system who want to do the right thing but are being prevented by others within the system, your feedback is appreciated as well.

The news is replete with evidence that far too many public servants can’t be trusted to uphold the rules of democracy. Because the IDEA is so dependent upon the application of science to the lawful implementation of special education, it tends to be those who disregard science and law who pose the biggest threat to our children with special needs.

Given how many Far Right conservatives there are employed within public education, the fact that the domestic Far Right is the greatest terrorism threat that our country faces, and that neither science nor the rule of law mean much to the Far Right, it’s not that hard to see why we need to get the Far Right out of our public school system. The Far Right is why civil rights laws are necessary in the first place. They’re not going to do the right thing because it’s the right thing to do. They don’t even understand what that means. They’re going to do whatever serves their selfish motivations.

People who follow the extremes at either end of any social spectrum, including politics, tend not to have fully functional prefrontal cortices, based on my observations. They lack the deductive reasoning skills to understand the big picture. They lack the perspective-taking skills to see things from anyone else’s point of view. They are egocentric in thought and grossly emotionally under-developed. They are prone to extreme actions and reactions based almost entirely on their own wants and needs.

In the special education setting, if you and your child’s needs don’t align with the agenda of people with this mindset, you don’t even exist to them. You’re like a person with a numbered ticket at the deli counter. They’re going to interact with you briefly and smile to your face, then forget you exist five minutes later. You’re a thing, not a person, to people like this. They don’t think of anybody as another “person.” Everybody else are just things to conveniently access when they serve a useful purpose to people who think this way. That is why holding them accountable after the fact is more effective than logical or emotional appeals made in an effort to prevent something bad from happening.

All of this is, of course, disordered thought. So, basically, what this comes down to is a bunch of mentally ill, self-serving individuals getting paid six-figure annual incomes at taxpayer expense to manifest their untreated and unaccommodated symptoms at the expense of their constituents. What we’re really looking at is the symptoms of untreated mental health disorders being manifested as public policy to the detriment of individuals who are not in denial about the fact that they have disabilities attempting to advocate for their children with disabilities.

The most apparent difference that I can see between the two sides of the issue is that the people within public education responsible for this situation don’t think there is anything wrong with themselves; they think they are the chosen ones and everyone else exists just to give them an excuse to collect a paycheck. When the special education community finally addresses the degree to which schizoaffective, personality-disordered administrators and the like are behind the egregious abuses of disability-related laws it experiences, and we use our science to heal ourselves, we’ll be able to actually use the science to heal our children and help them build productive futures for themselves.

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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.

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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.

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Special Education Still Has to Be Individualized During Quarantine

During these unprecedented times of both urgency and delay, I’m finding that the ways in which I share relevant information with our audiences depends on the nature of the information that needs to be shared. Nuanced issues in which science and law become inextricably intertwined and live on as continuing issues, whether we’re in quarantine or not, remain appropriate for our Patreon patron-supported video channel, The Nexus of Special Education Science and Law, while time-sensitive updates and guidance to our audiences as to how to respond to various developments as they happen are more appropriate for our blog and corresponding podcast, Making Special Education Actually Work.

The reality is that producing the videos are way more involved than producing blog posts and podcasts. If we’re going to invest our limited resources into making a video, it has to address an issue that will remain an issue for some time to come and live a long and purposeful life before having to be replaced with a more current version. This is why our most involved video productions are only for our patrons on Patreon.

That’s fine for what it is. It’s highly technical stuff for a highly technical audience. Similarly, we have a podcast specifically for serious lay advocates to build their representation skills, but that is again highly specialized for a specific audience and patron-supported by its paying subscribers.

For information that is too time-sensitive to take days to be made into a decent video around my busy caseload and needs immediate attention from all our audience members for the sake of the general good, our regular blog posts and podcasts through Making Special Education Actually Work are much faster methods of getting the word out, and a great deal of that content is free. So, with all that in mind, today I find it necessary to use Making Special Education Actually Work serve as our most immediate method of getting the following information to the front lines as soon as possible. Some of my worst fears are being realized across my caseload and, presumably, across the country.

It’s necessary for me to remind everybody that special education is individualized to the unique needs of each student. Now, suddenly, hundreds of thousands of special education students have experienced radical changes to their educational programs that each require an individualized response. How they continue to make progress towards their IEP goals while sheltering in place must be individualized just like all the rest of their respective IEPs.

The scope of this issue is unprecedented. Suddenly, every kid in America on an IEP in a quarantined community needs an IEP meeting to modify their respective IEPs to fit the current circumstances. Conforming to the IEP timelines under the circumstances is going to be incredibly challenging for school districts and they may end up engaging in the educational equivalent of triage, figuring out who is at most risk of regression and allocating resources to those students first before moving on to the kids who are likely to recover lost educational benefits by way of compensatory services later on and aren’t at risk for as great an amount of regression as those that require the most immediate attention.

Chances are, the kids with the most costly and involved programs are going to be the ones most at risk of regression if their services get interrupted, so starting with those students is probably the most logical place to begin. These are also the cases in which local education agencies are most at risk of doing something that denies a Free and Appropriate Public Education (FAPE), simply because the needs of our most severely impacted students are so significant and any small exclusion can create significant harm, even if accidental.

The most severely impacted students tend to be a relatively small number and figuring out how to deliver individualized services to them that can be reasonably calculated to achieve their respective IEP goals can be resolved first, when the most flexibility among the available resources is necessary. Then, students with less intensive needs can follow, stepping down to the students with the least demanding special education and related service needs at the end of the process.

Trying to shoe-horn a student with severe special needs into a solution using whatever is left over after everyone else has picked the resources clean is discriminatory. Solving the hardest problems first also creates conduits through which other solutions can be implemented, making it easier to solve the more numerous less challenging tasks, and makes them even less challenging to solve. Local education agency dollars previously spent on facilities may need to be reinvested in technology, additional personnel, and plenty of Personal Protective Equipment (PPE), to keep up with the federal mandates to provide a FAPE to every eligible student.

How much leniency the various triers of fact will be willing to give to local education agencies in special education due process hearings and appeals over the two years that follow this pandemic will depend on the unique factors of each situation, including the reasons for any delays that occurred, as well as the unique needs of the student for which individualized responses were necessary but for which resources were not readily available. Regardless of how much leniency is reasonable under the circumstances, the expectation is still that a FAPE will be provided to each eligible student, in accordance with both Section 504 of the Rehabilitation Act, and the Individuals with Disabilities Education Act (IDEA).

Congress did not build any specific contingency plans into the IDEA or Section 504 with respect to implementation during times of emergency, and certainly none that make it acceptable to suspend the protections offered by either Act. There is nothing that says these civil rights laws, or any other civil rights laws that protect people with disabilities, cease to be in force under any circumstances. They are in force at all times, even times such as now.

Anything less is humanity devolving into the Lord of the Flies, and there is absolutely no need for that, but advocates for people with disabilities are having to argue for equality in health care, right now, which is reprehensible! At this moment, the shortages of medical supplies in the areas most severely impacted by COVID-19 are forcing health care providers to decide who lives and who dies, just like in a war zone. The elderly and disabled are the least likely to receive life-saving care, at this point, and it’s unacceptable that our health care providers are being put in the position to have to think this way. Whether or not a person has autism should not determine whether or not they receive life-saving care.

We’re going to lose tens to hundreds of thousands of Americans unnecessarily because of the poor federal response to this situation since it first began. Disability and/or a complex medical history doesn’t automatically make a person unemployed or unemployable. We are losing great minds and true talents to this disease among younger individuals who were compromised by pre-existing conditions. Further, we’re losing people of all ages who had no pre-existing conditions at all, making the unfair distribution of resources in favor of those without disabilities even less justified.

The fact that we are having to actively enforce civil rights law through litigation and formal complaints with respect to access to healthcare during a global pandemic is disheartening. It means that, now more than ever, we can’t neglect the other areas in which civil rights violations against people with disabilities are also occurring, which includes special education. There has to be a unified voice on behalf of individuals with disabilities across all domains to stand firm on the civil rights protections that are already on the books and expect everybody else to also play by the rules. This is no time for anarchy.

With respect to individualized instruction and specialist services, I have to point out that very few students with significant special needs are going to benefit from online instruction. As medical supply production starts to ramp up, now that various industries are retooling their assembly lines to produce enough masks, gowns, latex gloves, etc., to keep all necessary personnel adequately protected and safe, it’s going to have to be accepted as fact that some students simply require in-person services in order to receive educational benefits under the current circumstances, and the staffs who need to provide such in-person services will require adequate protection to stay well and prevent the spread of disease.

Given the immediate shortage of PPE, it’s understandable that this time right now can probably best be used to lay the administrative foundation for how in-person special education services will be deployed once the protective equipment becomes available. But, it also means that many students will be due compensatory service minutes for any time lost, particularly if they are already showing signs of regression by the time in-person services finally start.

Given that states are deciding to close down their schools through the end of the Summer 2020 break and start again in the Fall of 2020, this is going to be a long-term temporary period of interim special education and related services that will have to be tailored to each individual student affected, just as it was supposed to have been done for each student in their normal school settings. If school districts move quickly and strategically enough, they can get something in place and make up lost service minutes before way too many compensatory service minutes are owed to each student.

The good news is that the only things that should have to be changed, provided the goals already tackle every area of unique student learning need and are written in a measurable manner, are services and placement. The goals shouldn’t change. The learning outcomes that the IEP has been pursuing shouldn’t suddenly become inappropriate because of a forced change in placement in response to a national emergency. The quarantine has nothing to do with whether a student’s IEP goals target appropriate learning outcomes.

If you are a parent doing an IEP meeting (by phone or video conference, please!) and somebody from the school suggests eliminating a goal or putting it on hold, don’t go for it. Your child didn’t suddenly experience a reduction in the need to learn what that goal targeted. If they’re trying to get rid of it, it’s because they are struggling to come up with an inexpensive way to teach or provide therapy to it and they don’t want to have to pay what it’s going to cost to legitimately pursue it, which is not cool. It’s also totally unlawful.

It is my sincere hope that public education agencies will respond to the needs of their special education students timely enough to prevent regression and the need for compensatory services as much as possible. The faster and smarter they move on this, the less responsible for compensatory education they will be. If the education agencies go straight to each child’s IEP goals and ask, “Given the limitations with which we are currently faced, what services are going to have to be delivered either in home or in some other 1:1 instructional situation in order to still see these goals met?” they’ll cut to the chase and be as efficient as anyone can be under the circumstances.

IEP teams don’t have to start over at the beginning. They just have to go back to the point where they are trying to decide what services are necessary to meet the goals and how they can be delivered in the placement options currently available. When this conversation was last had for each student on an IEP, the placement options were more plentiful, so that conversation fit what was then the context. But, the context has now changed, so IEP teams need to return to the services and placement portion of the IEP process to address the fact that placement options are now very limited and a fair amount of creativity is going to be needed to work around the limitations that are now imposed by this quarantine.

The current situation also requires school nurses to come up with health care plans to go into each student’s IEP and tailor them on a case-by-case basis for students with unique needs that may require hands-on support for medical equipment, physical positioning, hand-over-hand instruction, and other close contact instructional methods and support services for which PPE will be critically necessary. It is important to include guidance to anyone having to implement an IEP in person as to how to conform to appropriate safety practices in the health care plan section of each special education student’s IEP.

Now is the time for strategic thinking. It’s all hands on deck for those of us who have critical thinking and problem-solving skills, and some of us are way better at things like that than others. I gladly defer to those who can understand things that are way beyond me, like sophisticated mathematical models. We need to defer to those who come up with the most effective and efficient methods of meeting public agency obligations regardless of their titles or training. We need to be working collaboratively rather than competitively. All of us who are trying to make public education work, regardless of the roles we each individually play, have to keep the timbers of the system from being rent apart, right now.

I know one of my students is, thankfully, already receiving in-home instruction from a credentialed special education teacher supported by a Board Certified Behavior Analyst (BCBA) for three hours a day, using safety protocols as per the Centers for Disease Control (CDC). However, I also know another one of my students is sitting at home having one meltdown after another while her mother pointlessly tries to access Google Classroom in the absence of any special education instructional or behavioral support services.

These students need specialist supports and services from experts with advanced degrees. Almost no parents knows how to deliver this kind of highly specialized instruction. When it comes to specialist-provided related services, like speech/language services or occupational therapy (OT), parents are even more at a loss.

The educational needs of most special education students, because of their increased risk of regression during lengthy breaks from effective instruction, are as significant to their development as is their medical health. Particularly when you are talking about students with developmental disabilities, disruptions in routines and services are likely to lead to educational losses that will take time to recoup; the longer the period of disruption, the longer the period of recoupment.

Recoupment comes at the cost of new learning. Time spent relearning lost knowledge is time not spent learning new information. Regression and recoupment always mean a student falling even more behind same-grade peers, even after lost learning is recovered. Further, developmental windows of childhood development narrow and close as time goes on. When children miss developmental milestones because they are kept in deprived environments, it stunts their developmental growth and it is very difficult to overcome the knowledge deficits later in life.

There are adults everywhere today who are maxed out at Concrete Operations, according to Piaget’s Stages of Cognitive Development, and that’s enough to get them by for the most part, but they don’t understand big picture concepts and tend to subscribe to magical thinking when it comes to things they can’t deduce from direct observation of physical objects and phenomenon.

Adults like these may be very accomplished at things that involve the manipulation of tangible items, such as using tools to make and/or repair things, or representations of tangible items, such as visual computer models. But, try to get them to explain the differences between democracy and fascism, or love and need, and they can’t do it. These are abstract concepts that require a fully functional pre-frontal cortex, which they don’t have.

And, that is the kind of thing that has me worried about all the students doing some kind of home school thing during this quarantine. We have inexpert parents, the older bunch of which were raised during a time prior to the Common Core and without the types of cognitive stimulation that come with it.

I’m middle aged and I can remember that, in my early adult years, adult literacy was still a big deal. Illiterate but employed adults bemoaned the idea of employers requiring a high school diploma for a job like carpenter, cook, truck driver, or factory worker, which were the types of jobs that large numbers of Americans were pursuing and occupying at the time. A high school drop out could make a truly comfortable living plucking chickens at the local chicken plant, back when I was a teenager and young adult, especially if working the graveyard shift. That was $20 per hour back in the late 1980s.

So, when I say that there are parents out there who are ill-equipped to home school their children right now, I’m not just whistlin’ “Dixie.” There are still a fair number of people my age or close to it who grew up surrounded by adults with a gross under-appreciation of the value of education and now have school age kids or grand-kids for whom they are responsible. They may appreciate the value of a good education, but since they never got one, they don’t have the knowledge necessary to home-school their children.

And, that doesn’t even begin to take into account all of the dysfunctional parents with actively manifesting mental health issues, which can include drug and alcohol addiction, who are now stuck at home with their poor kids and expected to teach them skills they never mastered, themselves. How many of them are actively using in front of their kids to deal with the stress of this situation? How many of them have lost income because of the current circumstances, can’t afford to re-up, and are now experiencing withdrawals while stuck at home with their kids?

You add special needs on top of an already weak family system and then put that family unit through a quarantine made necessary by a global pandemic, and something bad is bound to happen. For a lot of these families, their kids going to school every day is good for everybody involved. It gets the kids away from toxic adult behaviors and around more appropriate role models during the majority of their waking hours, while giving their parents a break that can facilitate peaceable interactions later when the whole family unit is together. For those kids from difficult situations at home who also have special needs, school-based specialist services and individualized instruction can be their lifeline to a better future and they need that lifeline now more than ever.

To the degree parents can be effective parts of an IEP implementation team under the current circumstances, parent counseling and training as related services are going to become increasingly necessary. Whether it’s done online, in person, or a hybrid delivery model of both, the parent has to be trained on how to implement those portions of the IEP for which he/she can assume responsibility during quarantine, which is an IEP team decision. 34 CFR Sec. 300.34 lists parent counseling and training as a related service that can be provided by an IEP.

Qualified personnel will have to make up the balance of the IEP services that cannot be delivered by a parent in consultation with special education and related service personnel. It is not educationally appropriate to delegate 100% of the implementation of an IEP to an inexpert parent. Specialist personnel are still required in some capacity and that has to be determined on a student-by-student basis, just as with any other aspect of an IEP.

While the IDEA does not include a contingency plan specifically for pandemics, it does have rules that provide structure as to the outcomes public agencies are expected to achieve and the mechanisms by which they can be achieved, even as they adapt to ever-changing situations. Public education agencies are just having to rely on these rules and tools to respond in a way never before anticipated. The fact that we can keep these institutions going under the current circumstances speaks to the construction of the enforceable laws, the tenacity of the American people, and the collective belief of our majority in preserving our institutions.

This is not the worst that things could be, as bad as it is for some people, right now. The majority of us will survive the virus, though those of us who survive are likely to lose people we know before it’s over. It’s up to those of us who are not willing to descend into anarchy to continue enforcing the laws that make us who we are, even under these distressing circumstances. We’re needed now more than ever. Human lives, whether they are disabled or not, are worth more than money, and we need to make sure that message remains resoundingly clear in the times ahead to come.

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Prior Written Notice Requirements for Denying Parent Requests in Special Education Matters

Photo credit: Mary Cullen, instructionalsolutions.com

Prior Written Notice (PWN) pursuant to 34 CFR Sec. 300.503 gets a fair amount of general discussion among special education stake-holders, but, in today’s post/podcast, I want to look at it more in-depth. Today’s discussion looks more closely at the regulatory requirements and the types of special education contexts in which PWN becomes necessary.

I pulled a couple of examples from old case files that I can use to illustrate a number of points. These are old, closed cases from school districts where I currently have no active casework that happened years ago, but one of them involves bad players that I know are still out there.

The first one involved a student of an independent study charter school that had contracted with a third-party provider to deliver its special education and related services. Charter schools are often the worst at special education compliance, and online and independent study charters are usually the worst of the worst; for more information about that, see our prior post, “California Charter Schools & Special Education.” This case was no exception.

To put this example PWN into context, first I have to explain what was going on at the time. Our autistic student with high cognition also had debilitating anxiety that, combined with his autistic perseverative thoughts, could spiral his behaviors out of control, requiring intensive Board Certified Behavior Analyst (BCBA) services.

This student also needed interventions to address his anxiety, for which the parents, through me as their advocate from our agency, had requested a referral for a mental health evaluation as part of the IEP process. At the time, what we were requesting was provided by the local County Behavioral Health (CBH) agency under contract with the local Special Education Local Plan Area (SELPA), of which the chartering school district was a member.

So, while we were requesting a referral to the local CBH, it was under the auspices of an IEP-related assessment for the determination of IEP goals and services. In response, the third party special education contractor, using the local SELPA’s PWN form, replied with the following:

  1. Description of action proposed or refused by district: In a letter dated [DATE] and received by the charter on [DATE] the parents requested the school refer [STUDENT] to [CBH]
  2. Explanation of reason for proposal or refusal: Parents can make individual referrals themselves without the involvement of the school.

The PWN goes on to explain how parents can make their own community-based referral outside of the IEP process to the local CBH. In an effort to try and make it look like it was complying with the law by replying with official forms and filling in the blanks with words, what the charter’s third-party contractor actually did was commit a substantive violation of a Free and Appropriate Public Education (FAPE).

First of all, the request was for an IEP-related mental health evaluation and possible IEP goals and services. Going through the community-based referral process does not tie any mental health services provided to IEP goals and the delivery of a FAPE. Regardless of what our student may have or have not received by way of community-based mental health supports, none of that alleviated the IEP team from the mandated responsibilities of assessing for and providing any needed special education-related mental health services.

Further, the charter’s response on official SELPA forms was issued by its third-party contractor, which had no direct legal obligation to our student to offer and deliver a FAPE. The third-party contractor issued PWN on behalf of the charter, which was supposed to be acting on behalf of its chartering district, the latter of which being the entity that was actually legally responsible for FAPE but had no idea any of this was going on.

What this was really about was the charter’s third-party contractor not wanting any other entities involved over which it couldn’t exercise any kind of control. Because CBH would have been directly funded by SELPA and the State, the charter’s third-party special education contractor couldn’t lord payment over its head to control how it conducted itself like it did with its contracted teaching personnel and service providers.

If anything, it put the third-party contractor’s questionable conduct in the path of scrutiny to have an outside agency like the local CBH get involved. The third-party contractor denied the referral and pushed it back onto the parents in order to prevent CBH from becoming part of this student’s IEP and implementation teams. It was out of fear of accountability that the third-party contractor denied the referral and pushed it back onto the parents to pursue through community-based resources outside of the IEP process.

Measurable annual mental health IEP goals with the local CBH as the responsible provider would have likely meant CBH personnel in the home, where additional special education services of all kinds were needed but not being provided. Having CBH come on board to provide mental health services under this student’s IEP would have created outside, impartial witnesses to all of the other special education violations going on with this student’s case at the hands of the charter’s third-party contractor.

Adding CBH to this student’s IEP would have made the chartering district answerable for making sure the mental health goals were implemented as written, which would have required CBH to actually do its job, putting the third-party contractor’s scam operation at risk of exposure. Needless to say, this case ultimately went to a lawyer who filed for due process, the matter settled, and I can’t talk about what happened after that.

Prior to and at the time of settlement, this kid was in no way ready to enter the brick-and-mortar school setting, which is far less restrictive than being educated at home. This was one of those situations where the independent studies charter school kept insisting that the student’s living room was the general education setting because that’s how it was for all of their students, without regard for the fact that the only reason his living room was the Least Restrictive Environment (LRE) for him was because he couldn’t handle a traditional classroom.

If this student had been enrolled in a traditional school district at the time, but still was receiving instruction at home, it would have been regarded as one of the most restrictive placement options possible. His in-home placement was light years from a general education classroom in a brick-and-mortar setting, which everybody knew he couldn’t handle. It was a technicality that in-home instruction was the norm for independent studies charters, such as his. His situation wasn’t about family educational choice; it was about individual educational need.

Educating him at home was an accommodation. His parents would have preferred to send him to school, in all honesty, but they made the choice to home-school because of his demanding special needs. He needed intensive autism and mental health services to get to the point where he was able to access the world outside his home with success.

The charter was effectively trying to turn him into a well-educated hermit, which often seems to be the case with students with these types of needs in independent study programs. Bringing the instruction to students who are challenged to function successfully outside of the home may seem to be prudent, but if it doesn’t include related services meant to increase the student’s independence and access to less restrictive learning environments, it’s not a FAPE.

Preventing the provision of such services in order to avoid accountability is a despicable breach of ethics, as well as a monstrous denial of FAPE. First, in this case, the denial to refer for IEP-related mental health services as requested by the parents interfered with meaningful parent participation in the IEP process, in addition to violating procedure with respect to referrals for evaluations and reevaluations.

Secondly, it denied a FAPE because it meant the student’s IEP was informed by insufficient assessment data. As a matter of FAPE, the student had a federally protected right to assessment in all areas of suspected disability and learning need. That right was denied when the charter’s contractor chose to deny the mental health assessment referral and push the burden back onto the parents to pursue through community-based resources unrelated to the IEP process.

Further, the contractor’s efforts to circumvent the IEP process not only undermined meaningful parent participation in the IEP process as promised by federal law, it also meant that the student’s IEP was not reasonably calculated to render meaningful educational benefits in all areas of unique student need, which also denied a FAPE. As such, the student was being deprived of meaningful educational benefits in the areas of mental and emotional health, which was negatively impacting his behavior and, thus, access to education, which also denied a FAPE.

So, just on the basis of this misuse of an official PWN form, the charter’s third-party contractor made the record of its efforts to circumvent the IEP process, indirectly on behalf of its charter school client’s chartering district, thereby denying a FAPE in at least four different ways:

  1. Denial of meaningful parent participation in the IEP process
  2. Failure to assess in all areas of suspected disability
  3. Failure to design IEPs that are reasonably calculated to render meaningful educational benefits in all areas of unique student need
  4. Failure to deliver meaningful educational benefits in all areas of unique student need

The point I want to get across is that, just because you get a PWN on official paperwork, it doesn’t mean the education agency has actually followed the law. It’s not just the matter of complying with procedure by sending something out titled “Prior Written Notice.” What is written in the notice matters, and is regulated by federal law.

In my second example, also from years ago, and also ultimately settled after the family brought in an attorney, the situation was different. Our student had lived with his parents in the attendance area of a school district near the Southern border of California. Shortly before I became involved, this child’s mother had passed away, leaving his father alone to provide all of the in-home support his autistic son with demanding needs required while holding down a job as a traveling engineer.

As difficult as it was, the most sensible thing to do under the circumstances was for the student to live most of the week with his grandmother in another community far to the north in the San Joaquin Valley. The student’s grandmother, his late mother’s mother, was available to be a full-time primary caregiver and his uncle, his late mother’s brother, was available to help with any kind of important decision-making, such as with IEPs and regional center services. The student’s father shared his educational decision-making authority with his mother-in-law and brother-in-law so that they could take on these serious responsibilities.

In anticipation of the student moving to his grandmother’s and becoming a student of the local school district, his uncle went to enroll him and shared with the District the student’s IEP. The IEP from his incoming school district included a significant amount of Non-Public Agency (NPA) services that were provided during and outside of the school day because of the intensity of the student’s needs.

These services were not typical for most IEPs, but IEPs are supposed to be individualized. Based on the evidence it had at the time, the IEP team at his previous school district had determined that these services were necessary based on his unique circumstances to provide him with a FAPE.

The receiving school district nearly had a fit when it saw this student’s incoming IEP. It utilized every procedural tactic at its disposal to argue that it didn’t have to implement the incoming IEP as written. That’s one of the issues that was addressed by the settlement, so I can’t talk about it, here, which is a bummer because the legal arguments around this issue were total fireworks.

The bigger point that almost got lost over the arguments over procedure, which was likely the District’s intent by arguing over procedure, was what the student substantively required as a matter of FAPE. The receiving school district simply had no intention of paying for NPA services and insisted on stripping out all of the individualized supports described by the student’s IEP, which had him placed in a general education setting with age-typical language and behavior models, and placing him in a Special Day Class (SDC) for students with autism.

This student was mainstreamed with a 1:1 NPA behavior aide to keep him involved in the instruction and facilitate his language, social, and classroom behavior skills development. The receiving school district proposed to put him in a full-time classroom filled with other students with needs like his own and no models of age-typical language and behavior. He was being successful in his previous placement with the configuration of services described by his IEP.

The receiving school district had never met the student, much less assessed him, and therefore had no educational or legal basis to place him in a more restrictive setting. Regardless of whether procedure required the receiving school district to implement the incoming IEP as written or not, it was still obligated to offer and provide a substantively appropriate FAPE. It had no data to inform its offer of services and placement, and certainly nothing that suggested his needs had changed such that a more restrictive placement was educationally necessary.

After articulating the request for the receiving school district to implement the incoming IEP as written, this was the District’s response, crafted with the assistance of its attorney, as I understand it:

Description of the Action Proposed or Refused by the District

The [District] and [County Office of Education (COE)] are refusing to provide BCBA supervision of the BIP dated [Date]. The District and [COE] are denying the request for 1:1 instructional aide support to be provided by a NPA. The District and [COE] are also denying in home support, parent training, and direct speech and language services provided in the home. The District and [COE] continue to offer a [COE] operated special day classroom located at [Campus] as an interim placement for 30 days …

Explanation Why the District Proposes or Refuses to Take Action

… you requested that [Student] be provided with a BCBA to oversee the BIP. The District and [COE] offered 60 minutes per month of consult behavior intervention services to address the implementation and training of the BIP … to be provided by a [COE] program specialist with … required training for Functional Behavioral Assessments (FBA) and BIP … the District and [COE] feel that the program specialist would be able to implement the strategies and recommendations of the BIP.

… you requested that a NPA provide the direct 1:1 instructional aide services. At the meetings, you indicated that the NPA instructional aide is essential to the successful implementation of the current IEP. The District and [COE] recommend intensive individualized services daily … Intensive individualized services are provided by [COE] instructional aides … The District and [COE] feel that [COE’s] trainings, in addition to the support and oversight provided by the program specialist, provide enough knowledge for [COE] to successfully support [Student] and fully implement the current IEP.

The District and [COE] are refusing to provide these additional services and continue to recommend 360 minutes per month of direct speech and language services and 30 minutes per month of consult speech and language services. Given that the in home services that are being requested are now embedded in the categorical program in a way that his prior placement in a non-categorical program did not provide, in home services are not needed.

So, that’s a lot, but here again is an example of a school district complying with procedure by sending a PWN, but, in doing so, making the record regarding its substantive denials of a FAPE. As stated previously, the receiving school district had conducted absolutely no assessments that indicated that this student needed to be placed in an SDC instead of supported in general education with push-in supports. This was an LRE case.

Basically, what the receiving school district was doing was making a placement decision on the basis of what it was willing to spend rather than what was necessary to educate the student in the LRE. The only guidance it had as to what the student required was the incoming IEP. It had no idea whether what it was offering as a 30-day interim placement would completely derail this kid or not (which it would have).

The language that jumped out at me that really chapped my hide were the statements about what “the District and [COE] feel” is best in the absence of any evidence. Basically, this was the District and COE admitting to basing their decisions on opinions rather than the facts that the regulations require.

It’s a violation of both the IDEA and Section 504 of the Rehabilitation Act to to change the type of placement a student with disabilities receives without first assessing to determine that student’s current placement needs. Placement decisions are based on what is the LRE in which the services can be rendered such that the goals are met. There was no data demonstrating that an SDC placement was suddenly the LRE for our student, after he had been successfully placed in general education with push-in supports under the IEP he already had.

Like I said, this case was ultimately settled and it happened several years ago. But, these kinds of things continue to go on all the time. I’m only citing old cases, here, because I don’t want to talk about anything currently being litigated or potentially litigated. The regulations for PWN have been the same for a long, long time, so there’s not some recent change in the law that would make older cases irrelevant.

As a parent, if you get a PWN in the mail denying a request you’ve made, don’t assume that the explanation you’re being given is a good one. Just because it’s on official letterhead or official form doesn’t automatically make it proper.

Really, it all boils down to 34 CFR Sec. 300.503(b)(2), which requires any PWN to include, “An explanation of why the agency proposes or refuses to take the action.” The explanation as to why a parent request is being denied better be a good one, or all the District accomplishes is using a procedural requirement to document its substantive denials of a FAPE on the record. If that’s the case, it’s evidence that parents can use in due process to achieve appropriate educational outcomes for their children with special needs.

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Referring Your Child for Special Education

Photo by Juliane Liebermann on Unsplash
CREATE & DOWNLOAD YOUR OWN PARENT REFERRAL LETTER

The decision to refer a child for assessment to determine if they qualify for special education isn’t one to take lightly. Do you err on the side of caution and assess, even if only to rule out the possibility of a special education need, or hope whatever is causing the child problems in school will somehow work itself out?

For a variety of reasons, it is often the case that general education staffs in a public school are hesitant to refer a child for special education evaluation, or don’t even know that they are required to do so if a child presents with signs of suspected disability. Many don’t know how to distinguish the signs of possible disabilities from other factors, so they don’t even realize what they are really looking at.

The implementing regulations of the Individuals with Disabilities Education Act (IDEA) make clear that parents also have the authority to refer their children for initial special education evaluations. Referral is the first step to determining if a child is eligible for special education and, if so, what an individualized educational program (IEP) will look like for that child.

Referral triggers an initial evaluation that is supposed to be conducted in all areas of suspected disability and unique student need. That evaluation is supposed to be sufficiently comprehensive to inform the IEP as to the student’s potential eligibility for special education and the student’s unique learning needs.

There are two prongs that have to be satisfied in order for a student to become eligible for special education: 1) the student has to have a disability, and 2) the disability has to create a negative educational impact of some kind that makes specialized instruction necessary that wouldn’t otherwise be provided to a general education student. It’s possible to meet the first prong, but not the second one.

If it turns out that the student has a disability, but not to such an extreme degree that specialized instruction becomes necessary, the student may still be eligible for accommodations pursuant to Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA). Unless the instruction has to be modified or supplemented in some way in order for the student to access and benefit from the instruction, an IEP may be overkill.

There are those kids who need just a smidge of help, not a full-blown program of individualized instruction. There are those kids who just need a smidge of special education. Some kids need more, and yet others need a whole lot more. What each kid needs can only be determined by competent, comprehensive-enough assessments.

The federal regulations leave the door open for a local education agency (LEA) to deny a parent referral for initial evaluation, but the denial must conform to the Prior Written Notice (PWN) requirements described by the federal regulations. If the parent referral is declined, the PWN is required to explain why, and it better be a really good reason or the LEA can set itself up for a lawsuit.

States have the authority to add protections for students that the IDEA does not require, however. For example, in California, State law simply states that an assessment plan must be remitted to the parents whenever a referral is received. There is no caveat that says, “Unless it’s from the parents, in which case the LEA can decline it with a PWN.” There is no option for declination. It’s a black-and-white matter of, “When a referral comes in, an assessment plan goes out within 15 calendar days.” California law lists parents as the first party authorized to make referrals for special education assessments.

Every school year, families totally new to the special education process find themselves bewildered and dazed as they try to navigate the system. It’s a journey unto itself just to come to the conclusion that special education may even be necessary, but it’s only the beginning.

CREATE & DOWNLOAD YOUR OWN PARENT REFERRAL LETTER

Federal law mandates that each State require its public schools to have a system of “child find,” which must actively seek out, identify, and refer those student who may need special education. But, I have shouldered my fair share of “child find” cases over the years where kids went on failing year after year but being administratively passed from grade to grade without ever being referred for special education, only to prove to have disabilities and be due compensatory education.

Parents and taxpayers cannot rely on “child find” to help the kids who need special education. The burden often falls on the shoulders of parents who start doing research and discover they can refer their children for assessment, but then it becomes about learning how to do it, and then learning about what comes after that. It’s involved and exhausting.

So, we thought that anything we can do to streamline the process and help parents advocate more effectively and efficiently would be a valuable thing to add to the growing body of online resources out there to help families of children with special needs. Our first tiny contribution along these lines is a free tool for parents to create a referral letter for their children. Now that we have the means to create tools like this, we’ll be adding more in the future.

Honestly, it was exciting to find out that our site would support this kind of functionality without a whole lot of work. This opens up a lot of doors for us to help a lot of people who we otherwise wouldn’t be able to serve.

The referral letter we created is basic, sticks to language that is legally applicable throughout the United States, and flexible enough to account for each student’s unique circumstance. We will be creating additional customizable downloads like this for other special education situations in the future. We’ll announce them here, though the blog and our social media, when we add them to our site.

Once you’ve created and downloaded the PDF, just print and sign it. Then you can remit it to your LEA by some method that give you proof of delivery. We like Certified mail – you get a tracking number so you don’t need a return receipt and it’s the least expensive method we’ve found for getting proof of delivery on correspondence that trigger timelines or are otherwise important enough to need to remember when they were received.

Be sure to keep a copy of the signed version for your records, along with the proof of delivery. If mailing it Certified isn’t convenient, you can also print and sign it, then make a copy of the signed letter, and walk both copies into your child’s school. Have the person at the counter stamp yours received with the date and, if possible, their initials, and leave the original with the person at the counter. You can also deliver it this way to the LEA’s administrative offices.

So long as you have proof of when it was received, you’ve preserved your evidence. We wish you the best in your endeavors to advocate for your child and hope this tool proves to be useful to you.

CREATE & DOWNLOAD YOUR OWN PARENT REFERRAL LETTER
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The Fundamental Flow of IEP Creation

Image credit: Justin Lincoln

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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Podcast: Emotions Part 3 – Administrators

On November 15, 2008, we originally published  Emotions Part 3   Administrators  as the third in a series of text-only blog articles. As we begin to move into the new school year, KPS4Parents will be recording many of our past text-only articles as podcasts so that busy parents, educators, and interested taxpayers can download them and listen to them at their convenience.

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

Click Here to download the podcast,  Emotions Part 3   Administrators.

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Podcast: Emotions Part 2 – School Site Staff

On November 14, 2008, we originally published  Emotions Part 2   School Site Staff as the second in a series of text-only blog articles. As we begin to move into the new school year, KPS4Parents will be recording many of our past text-only articles as podcasts so that busy parents, educators, and interested taxpayers can download them and listen to them at their convenience.

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

Click Here to download the podcast,  Emotions Part 2   School Site Staff.

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Writing IEP Goals for Behavioral Issues

Update (4/11/13):  The link below to our former Ning community no longer works. We have moved our IEP goal-writing forum to https://kps4parents.org/main/community-outreach/iep-goal-forum/.

Writing IEP goals for behavioral issues can pose a particular challenge. Unlike academic goals, which should be tied to State standards for academic performance and more easily lend themselves to measurable language, behavioral goals aren’t tied to a pre-described set of criteria of what students should learn; at best, they relate to rules about what students should not do at school.

Behavior has been poorly dealt with in our school over the decades since mandatory schooling was first implemented back during the Industrial Revolution. Mandatory schooling itself was used as a behavioral intervention to address a huge juvenile delinquency problem that arose after child labor laws were passed that prevented parents from putting their children (as young as 6) to work in the factories. This left large numbers of unsupervised children roaming the squalid, poverty-stricken streets of the inner city factory workers’ neighborhoods. Suffice it to say that they often came up with some pretty inappropriate ways of keeping themselves occupied.

Child advocates at the time pushed for mandatory schooling to take these trouble young people and convert them into quality citizens of a growing young nation. As seems to be the case with every age, innovations in business and industry were applied to the concept of large-scale public education and the current system was designed to emulate the assembly line. Teachers were regarded similarly as workers on an assembly line, passing students from one grade to the next (except those that failed QC). More and more so, teachers were increasingly women looking for less dangerous work than what was available to them in the factories. Being that the women at the time had fewer rights than men and were often not knowledgeable in the ways of self-advocacy and the assertion of their rights, they were often more easily exploited as workers than male teachers. So, just as the workers on the assembly lines of the factories began to engage in collective bargaining and organized labor unions, teachers began to do the same. At the time, these unions served to protect workers and teachers alike from exploitation. Today, it’s a different political climate.

Nonetheless, taking the lead from the business world, the assembly-line nature of public education began pushing children through the system, many of whom who were already causing problems because of their behaviors. I mean, it was their behaviors that led to mandatory schooling in the first place. The response to their behaviors by the adults responsible for educating them was fairly typical for the times: spare the rod and spoil the child. It was highly punitive. Children were punished for inappropriate behaviors but there was no effort to systematically teach them the appropriate behaviors they should have engage in, instead. In other words, the interventions at the time focused on the structures of the behaviors – that is, what the child had actually done – as opposed to the functions of the behaviors – that is, why the child had done it. This left many, many children with unresolved issues and no means to see them addressed, causing the perpetuation of troubling conditions.

In defense of the educators at the time, these children’s parents were often even less capable in rendering proper guidance to their children. Factory workers often worked 14 to 16 hour days before going home to horrible living conditions in a crammed up tenement with their ten kids and were in no position to offer effective parenting and guidance at the end of the day to that many children. They were dependent upon the public school personnel to help them during the daytime with their children’s needs.

Fast forward to today and you still have an assembly-line type system in the general education setting. In fact, unless something is “wrong” with you such that you require special education, you aren’t entitled to an education tailored to the way you actually learn. Behaviors are still largely dealt with in a reactionary fashion with punitive responses to inappropriate behaviors after they have already occurred, though there is a burgeoning movement to finally implement positive behavioral interventions on a school-wide basis rather than on a child-by-child basis. Even still, all schools maintain disciplinary records for each student, which speaks to the culture of public school administration and its perception of children who behave inappropriately at school. If there still weren’t such a punitive mindset, they would be called behavioral records or something else non-judgmental.

Just because a kid does something that’s inappropriate doesn’t automatically mean that the kid wanted to do something bad or wrong; very often it’s the situation that the child just doesn’t know what else to do, is engaging in trial and error to try to meet a want or need without thinking things through (which may not even be possible depending on the stage of childhood development the kid happens to be in at the time), or is crying out for help in whatever ways will be heard. Behavior is largely a function of communication; the trick is being able to understand the message.

So what does all of this have to do with writing behavioral goals? Well, a lot. It’s difficult to write behavioral goals for many people because they are still caught up in the antiquated punishment model of behavioral intervention, which evidence shows may curtail a specific behavioral incident in the short-term, but does nothing in the long-term to prevent problem behaviors from developing again or growing worse and more sophisticated over time. Because so many people in public education have been trained to look at behaviors as challenges to their authority rather than signs of things that need to be addressed, it’s hard for them to conceptualize the proper formatting of behavior goals. Parents usually have no formal training in this area either and get caught up in the momentum of the punitive mindset, not necessarily sure that the schools’ approach is appropriate but not knowing what else to suggest.

The thing with behavior goals is that they have to describe what a student is supposed to do in order to determine that the goal has been met. But, most people still think in terms of what the student should not be doing and will write things like “By 12/10/09, [Student] will decrease vocal outbursts in the classroom by 90% as measured by observation,” which is a poorly written goal on an uncountable number of levels. What the goal should do is describe and target the appropriate replacement behavior. So, it could read something like, “By 12/10/09, [Student] will use his break card to request time away from noisy distractions, take his work to a pre-designated quiet area, and complete his work with no more than one verbal prompt per occasion in 4 of 5 consecutive occasions within a 2-week period.”

Now, here in this example, it’s implied that the reason the child was engaging in noisy outbursts because he was becoming overwhelmed by noisy distractions presented by others. This is significant! Most behaviors are engaged in to either get something or get away from something, regardless of whether those behaviors are good or bad. Behaviors serve specific functions to the individuals who engage in them. Purists in the field of behavioral sciences tend not to really classify behaviors as good or bad, but more in terms of appropriate or inappropriate to the circumstance, adaptive or maladaptive, or successful and unsuccessful. Reinforcers are those things that occur once a behavior has been engaged in that increase the likelihood of the behavior being engaged in again. Consequences are those things that occur once a behavior has been engaged in that are likely to decrease the likelihood of the behavior being engaged in again. Consequences are not automatically presumed to be punishment.

Think about it. If you’re at a restaurant and want fettuccine alfredo, you don’t say, “Give me a t-bone steak, please.” You ask for the fettuccine alfredo. If you were to ask for a t-bone steak, and the waiter brought you a t-bone steak instead of fettuccine alfredo, the consequence of receiving a t-bone steak would decrease the likelihood of you asking for a t-bone steak the next time you wanted fettuccine alfredo. Getting the t-bone wasn’t punishment. It was just the natural consequence of you asking for something other than what you really wanted.

But, what if you don’t know the name of the dish you want? You can describe it to the waiter (“Yes, I’ll have those flat noodles with the creamy sauce and that spice that’s usually only used in snickerdoodles and spice cakes,”) and hope he understands, or you can just order something else that really wasn’t what you wanted just to avoid the embarrassment of not knowing the name of your favorite dish in front of your dinner companions and the waiter. At that point, though, your behavioral priority became avoiding embarrassment rather than getting the food that you wanted. When cast in that light, inappropriate behaviors start to make more sense.

With our example goal here, the only way we could have known why the child was engaging in the inappropriate behavior of verbal outbursts in the classroom was to have conducted an appropriate assessment of the child’s behavior. This assessment, in this example, would have revealed that the child – who has ADHD and an auditory processing disorder – was getting auditory overload whenever the noise level in the classroom increased during busy activities and, being highly distractible to boot, was incredibly challenged to remain on task. The verbal outbursts were the result of his frustration at not being able to concentrate and being so caught up in the moment of being overwhelmed and lacking in coping skills that it didn’t occur to him to ask his teacher to let him do his work some place more quiet. We’re talking about a child with compromised learning skills, here, not a 45-year-old adult with years of experience at effectively solving problems.

The goal describes the desired outcome, but what probably also needs to be in this child’s IEP is a positive behavior support plan that spells out what his issues are and how to deal with them. The only purpose the goal serves is to measure whether or not he acquired the replacement behavior over the course of the goal’s annual period. In our example goal above, the use of the break card has to be explained somewhere.

Sometimes IEP teams unnecessarily knock themselves out trying to write a succinct enough goal that captures all of the relevant elements without it becoming the world’s longest run-on sentence when something like a particular strategy must be employed. My favorite solution to problems like this is to develop a separate protocol that gets attached to an IEP as another page of the document and then have the goal refer to it.

For example, our example goal being used here refers to a break card but doesn’t make clear what that is or how it should be used. The goal could be re-written to read: “By 12/10/09, [Student] will use his break card according to the protocol found on page 12 of this IEP to request time away from noisy distractions, take his work to a pre-designated quiet area, and complete his work with no more than one verbal prompt per occasion in 4 of 5 consecutive occasions within a 2-week period.” Then page 12 of the IEP could be a one-page description of the protocol. In the alternate, if a positive behavior support plan is also attached to the IEP and the break card system is described in it, then the goal could reference the positive behavior support plan.

The important thing is that the goal has to be customized to fit the unique circumstances of the child involved. We get a lot of hits on our web site from people looking for pre-written goals, but I’m telling you that this is totally the wrong way to go about it. You’re not going to find canned goals that fit a particular circumstance involving a particular child, particularly when it comes to behavior. The goal has to target the specific area of need as identified in the present levels of performance and describe in measurable terms exactly what the student has to do in order to demonstrate mastery of the targeted skill. The goals of any child’s IEP have to be tailored to his unique needs and you don’t get a customized outcome with “off-the-shelf” goals. Rather than looking for pre-written goals that will fit a specific child, look for examples of goals and learn to understand the process and the logic behind how goals are written.

With behavior goals, target the acquisition of the desired behavior rather than dwell on reducing the undesired behavior. Gather baseline data on how often the child engages in the desired behavior at the time the goal is written and the degree to which he is expected to engage in it at the conclusion of the goal, which should be an increase over how often he engages in it at the beginning.

For example, if the baseline is that the student does not currently use a break card system to appropriately remove himself from a noisy and distracting environment to a quiet place where he can complete his work, then our example goal above represents a marked improvement. If the child begins using his break card system to escape the noisy, distracting environments and completing his work in a quiet area, then he’s not standing in the midst of the chaos yelling his head off.

By engaging in the appropriate replacement behavior, he inadvertently ceases to engage in the inappropriate behavior. Once he realizes that he is being met with a more beneficial outcome by using the break card system than he was by yelling out in class, he’ll have no reason to go back to yelling out in class. Over time, the skill can be refined to the point that the student is able to afford himself the trust of his teacher to excuse himself at his own discretion, without the need for overt signals to the teacher like break cards, to a quiet area to do his work and no one will think anything of it. A behavior goal in this area of need will eventually no longer be necessary.

I’ve seen kids overcome behavioral challenges in a year or less with good behavioral supports. I’ve also seen kids fall deeper and deeper into a hopeless pit of despair in the absence of good behavioral supports. And the degree of disability has little to do with it. It’s all about the quality of the behavioral interventions, including the goals. As long as the goals target the desired behaviors, are written in a measurable way that relates directly to relevant and accurate present levels of performance, and work in tandem with any behavioral protocols and/or a positive behavioral support plan in the IEP, you should be met with success.

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