Tag: placement

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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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IEP Goals Determine Services & Placement

If you’ve read or listened to our past posts and podcasts, or have otherwise been educating yourself on the special education process, hopefully by now you understand that special education is supposed to follow a particular procedural flow. This is not only the method supported by best practices, but also the method required by federal law.

To recap, assessment data provides the present levels of performance and baselines necessary to formulate educationally appropriate IEP goals for an individual learner. The goals describe what the IEP is supposed to make happen. Once the enormous milestone of developing the IEP goals has been achieved, then it’s time to figure out what services are going to be necessary and where they can be delivered in order for each goal to be met. This is where things can suddenly go off the rails.

It does no good to articulate sensible outcomes in measurable terms if effective services aren’t put into place to actually work on them and make them happen. Goals are just hopes if you don’t have a plan for the services you will need to meet them, and hope is not a strategy. But, this is often where things can get tricky in developing an IEP.

There are two common reasons for why things can go wrong at this stage: 1) everybody means well, but they don’t know what they’re doing; or, 2) something fishy is going on. In the first instance, it’s usually a matter of training. In the second instance, somebody is gaming the system in pursuit of an agenda in which the student is ancillary, but not the point.

In many instances, where this process gets tripped up actually starts with the development of the IEP goals. When the IEP goals are improperly written and/or necessary goals are excluded altogether, determining what services are necessary to deliver appropriately ambitious educational benefits to each student becomes compromised.

I’ve had many parents come to me over the years saying things like, “My kid needs more speech and language. He doesn’t know word meanings, can’t follow instructions, and can’t express himself, but he’s only getting 20 minutes of speech per week.” They look at increasing the service minutes in speech as though that’s going to somehow magically translate into working on all areas of his speech/language needs, when the real issue is that there is only one speech goal in the IEP for articulation and the rest of their child’s speech/language needs have no goals.

Because there are no goals for anything else, the number of speech/language service minutes is limited to how much time is reasonable to pursue the one goal that is there for articulation. 20 minutes per week to work on nothing but articulation isn’t automatically off-base.

What these parents really mean, when they say their kids need more speech and language services, is that the IEP is not targeting all of their speech/language needs. If that’s true, then the IEP team has to go back and look at the data to determine what other areas of speech and/or language should also be targeted by explicit intervention, then write goals to those specific areas of intervention need.

Once those new goals are written, the IEP team can then look at how many service minutes will be necessary to meet each goal. In addition to service minutes, which are expressed in terms of frequency and duration, the location of where the services will be delivered has to be determined.

It isn’t automatic that related services, like speech/language or occupational therapy (OT), get delivered in a pull-out setting. The location of services, like all other parts of an IEP, must be individualized to the unique needs of the student.

Pull-out services require the student to be removed from the classroom, often during instruction, and can interfere with learning. It’s a balancing act to find the right time to pull a student out of the regular class routine to go participate in direct pull-out services.

Push-in services bring the intervention into the student’s classroom and make it part of the classroom experience. Sometimes, this can be small group instruction with a reading specialist when the general education class is broken into small reading groups as a normal matter of instruction. This weaves the special education into the general education situation so that students with reading challenges are facilitated in participating with everyone else.

Embedded services are much like push-in, but they are intertwined with the instruction throughout the entire school day as a matter of instructional design for the classroom. An example of this would be embedded speech/language instruction and Applied Behavioral Analysis (ABA) in the program design of a school specifically for students with autism who cannot successfully function and learn on an integrated campus.

In this example, because it can be reasonably expected that all of the students in such a special school will need these supports according to the research and evidence-based practices, they are woven into the instructional design of the program. They are part of how the instruction is delivered on a continual basis.

In such cases, the integration of speech/language and ABA have to be used to describe the placement rather than parsed out as individual related service minutes, because they are part of the placement design that makes that particular placement appropriate for certain students. In this instance, they are not discrete services provided outside of or in addition to what is otherwise happening in the classroom.

Which leads into the next phase of the process, which is placement. Placement is the last decision to be made by the IEP team. There’s a really good reason for this. Placement is supposed to be determined by what is the Least Restrictive Environment (LRE) in which the services can be delivered such that the goals are met.

Special education is a service, not a place. The whole point of the IEP is to meet the IEP, but it is discrimination on the basis of handicapping condition to automatically remove kids from the general education setting for instruction just because they have disabilities. Unless removal to a more restrictive setting is the only way for the goals to get met, it’s not the LRE.

LRE is relative; what is restrictive for one student may be empowering for another. A student with autism who can nonetheless function in the general education setting with push-in ABA supports, for example, would be inappropriately placed in a school for students with autism.

Sometimes parents mistakenly think a special school is better because it’s focused on the specific types of needs their child has. But, it’s only better if the student cannot otherwise be successful in a less restrictive setting. Restrictiveness of setting is directly related to the severity of the student’s needs and the intensity of instruction necessary to meet the IEP goals.

Sometimes, creating an appropriately hybridized placement offer for a student who needs some pull-out services, but can otherwise participate in general education the rest of the school day, is such a difficult thing to coordinating in a particular school’s pre-existing culture that special ed staffs find it more convenient to put kids in more restrictive settings. This gives special ed staffs more control over the quality of the instruction and allows them to prevent their kids from being harmed by discriminatory general education practices, but it segregates their students on the basis of handicapping condition.

Sheltering students with disabilities from abuse by sequestering them from bigots inadvertently reinforces discriminatory practices that keep people with disabilities from equally accessing the world at large. Preventing the abuse of students with disabilities through diversity appreciation instruction, as well as proactive, research-based Positive Behavioral Interventions and Supports (PBIS) on a schoolwide basis, makes far more sense.

The LRE laws exist for this reason. Rather than sequester students with traits in common to prevent them from being bullied by the rest of the students, it is more appropriate to teach all of the students how to get along with each other. Appropriate programming results in general education students looking out for their peers with special needs rather than picking on them and mocking them. It facilitates unity in the school community.

Because LRE is relative to each student, no parent should go into the IEP process demanding a placement because somebody else’s kid got it and they’re doing great there. Somebody else’s kid is not your kid. You don’t base IEP placement decisions for your child off of what somebody else needs or gets; you base it on your own child’s unique, individual learning needs as targeted by the IEP goals.

Most school districts will tell you that the “continuum of placement” for special education is whatever they already have. That’s only partly accurate. What the school district already has is part of the continuum of placement, but if the placement the student needs doesn’t already exist within the district, the placement has to be outsourced or created.

It’s appropriate for the school district to describe the types of placements it already has. These can include, but are not limited to: general education placement with push-in supports; pull-out to a special education class and/or therapies for part of the school day for targeted specialized support, with placement in general education for the rest of the school day; full-time placement in a special education class; and placement for all or part of the day in a non-public school.

But students are not limited to the types of placements already put in place within a school district. Sometimes, the closest appropriate school is so far away that the child and a family member live in a nearby apartment or other local housing arrangement during the week and go home on weekends, with their local school district funding the housing and travel expenses as related transportation services in the student’s IEP. There’s caselaw around this issue in favor of students (see, for example, Ojai vs. Jackson).

There is no master list of all the “types” of placements that can be offered to a special education student. Like every other part of an IEP, placement is supposed to be tailored to the student, only with the LRE requirements relative to what services it will take to meet the goals in mind. Sometimes, IEP teams have to get creative to meet highly unique individual student needs.

Other times, the types of supports a student needs are relatively common such that there are entire classrooms that provide those kinds of supports to all of their students. Resource Specialist Program (RSP) services are the most commonly delivered special education services. These are the least intensive forms of special education services provided.

Most students on IEPs have relatively mild learning disabilities that make RSP support a useful tool in helping them maintain grade-level performance. They are usually mostly in the general education setting with some special education supports and plenty of them go on to college and successful careers.

Many of these students glide through the K-12 system with an IEP that no one knows about but their families and teachers. Most of their peers have no idea and their closest friends realize it’s no big deal and don’t care.

Further, it is becoming less stigmatizing to be on an IEP than it used to be, so students are being more forthcoming with their peers about their special education statuses, just as matters of fact, without judgment entering the picture. If only the adults could follow their lead.

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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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Parents Who “School-Hop” Risk Making Things Worse

Image credit: Alan Levine

One of the situations I commonly encounter in working with students with special needs and their families in the public education system is a phenomenon that I’ve come to refer to as “school-hopping.” Sometimes, parents who do not understand why their children are struggling assume that the problem is with the school, and, very often, there is a problem at school. But, quite often, the real issue is that the school is responding poorly to a disability-related need experienced by the student, so it’s not just that there is something wrong at the school, there’s something wrong with how it is responding to a special need that requires unique accommodations.

Put another way, there are two problems to resolve: 1) how to address the student’s unique needs in an educationally appropriate and legally compliant way, and 2) how to address the internal problems at the school that are preventing this from happening. Parents will sometimes jump from a charter school to a district-run independent study program to a home-school group to a … you name it … trying to find the right fit for their child.

The problem with doing that is, unless a parent knows what specifically to ask any school to do for their child, they’re just rolling the dice with every school change and hoping this one will finally be the one that fits. The whole purpose of special education is to impose structure on how education is tailored to each individual student. That way, it shouldn’t matter so much where they are so long as the supports and services described by the student’s individualized program are being delivered in that setting.

The guidance to the school site personnel as to how to do this comes in the form of a legally enforceable document called an Individualized Education Program (IEP). An IEP is created by a team of individuals described by federal law (34 CFR Sec. 300.321) according to specific criteria, also described by federal law (34 CFR Sec. 300.324). What the IEP says it what the responsible public education agency must do for the student for whom it is written.

It doesn’t matter how many times a student with special needs changes schools if the IEP that follows them is garbage. Even when a student changes to an entirely different public education agency, the incoming IEP is what informs the new school team as to how to support the newly incoming student with special needs. If the IEP does not describe appropriate supports and services, then the new school is legally obligated to implement the garbage that the IEP describes, instead.

My point, here, is that changing schools under these kinds of conditions tends to just make things worse. Every school change means at least some part of a kid’s file, if not the whole thing, gets lost in transit between one public education agency and the next. Assessment reports and old IEPs disappear from the record with frequent moves and school changes, so those items aren’t there to inform a records review like they normally would as part of a new assessment conducted by a new education agency.

That makes it very hard for the new school to know where to begin with a new student with special needs. The parents are hoping the new school will somehow magically fix everything but each successive new school gets put further and further at a disadvantage as to where to even begin every time a new change in schools happens and records have to be shuffled around again.

I have yet to figure out why so many people start at the end rather than the beginning when it comes to individualized student planning. Placement – that is, the type of classroom setting(s) in which a special education student receives instruction – is determined by the IEP team as the last matter of properly conducted IEP planning for very important, logical reasons. There are a whole lot of other decisions that have to be made, first, before a placement determination can be made.

IEPs start out with identifying a student’s present levels of performance, which seek to answer the questions, “What can the student already do?” and “What does the student still need to be taught relative to the grade-level standards and/or developmental norms?” On the basis of the answers to those two questions, goals are written that target measurable, annual outcomes.

The goals describe what the IEP is supposed to make happen. Until you know that, you don’t know what all you need to actually educate the student.

For this reason, the IEP team next determines what services are necessary to see the goals met. On the basis of the frequency, duration, and location of the services necessary to meet the goals, in combination with the student’s right to experience the least amount of segregation away from the general education population as possible, educational placement is then determined.

Parents who school-hop interfere with how the federally mandated process is supposed to work, usually without realizing the harm they are doing. Until the IEP describes goals in each area of unique student learning need in meaningfully measurable ways, it doesn’t matter where the student goes to school; following a bad IEP in a new, good setting will still go wrong.

That said, I’ve seen plenty of situations where changing schools, even moving to entirely new school districts, has saved a kid’s life. The challenge, though, was to get the IEP as good as we could get it before the student changed schools so the new, receiving school had something worth implementing once the student started attending there.

And, in California, where I do most of my work, whether a special education student moves during the school year or summer break has bearing on what is enforceable in terms of a transfer IEP. This added layer of complexity, which isn’t the same in all the other States, makes the timing of everything that much more imperative when it comes to changing to a different school district or charter school. Parents who school-hop in California can do even more harm than they realize because of the odd State laws about transfer IEPs.

What’s often more heartbreaking are families that are school-hopping because their child has never been offered an IEP and when they’ve asked about it, they’ve been shot down by school personnel who insist that their child would never qualify. In reality, it can be the case that the school personnel are just waiting for the family to pick up and move the student, again, at which point whether or not the student needs an IEP won’t be that particular school’s problem, anymore. There are unfortunately those in public education who will facilitate eliminating a problem rather than solving it, even if it comes at the expense of a child.

Parents who school-hop can call unnecessary attention to themselves as easily exploited by school staffs who would rather see them move along to the next school than stick around and insist that the current school do its job. At some point, school-hopping parents have to figure out that the school-hopping isn’t working and, instead, they need to stand in one spot, dig in their heels, and get a decent IEP from whatever agency is responsible right at that moment. That might mean filing a lawsuit just to get an initial assessment, but if that’s what it takes, that’s what it takes.

Without a legally enforceable IEP document that describes something worth enforcing, no placement can be made to work. Federal law mandates that the education rendered to a special education student be in conformity with that student’s IEP (34 CFR Sec. 300.17). If the IEP is garbage, then the school is legally obligated to implement the garbage until such time as the IEP can be made more appropriate.

As a parent, your number one objective when it comes to advocating for your child with special needs is to make sure that the services and supports provided are actually appropriate to your child’s needs. Just having a document that says “IEP” at the top of it doesn’t magically bestow educational benefits onto anybody. The contents of the document matter and, as a parent, you need to know how to look out for language in an IEP that could undermine your child and any exclusions of language that are important to meeting your child’s needs from the IEP. More harm can be done by what is left out of an IEP than what is put into it.

Once you understand why placement is the last decision that should be made by an IEP team, you can understand why changing placement when things aren’t going right doesn’t always make sense. Unless you’ve got an amazing IEP and the people at the school site just aren’t implementing it as written, there’s a really good chance your problem is with the plan more than the placement.

Plans of any kind fail for only one of two reasons: 1) design flaws, or 2) implementation failures. Design flaws can sometimes only be identified when you try to implement the plan and something goes wrong. If you never implement the plan according to its design, you’ll never know if the design was flawed or not because you weren’t following it in the first place. If the design is great, but no one is following it, what’s the point?

This analysis of plan success and failure came to me by way of my training in Applied Behavioral Analysis (ABA), which, by the way, is a science, not a treatment methodology. There are a lot of ABA-based treatment programs out there, but those programs are not what actual ABA is. They are based on ABA, some with more scientific rigor than others. The actual science of ABA can be applied to anything that behaves, including animals, plants, and computers.

From the absolute, parsimonious perspective of ABA as a science, everything is based on objectively identified behaviors, only, which are framed in quantifiable terms and rendered into emotionally neutral pieces of data. Further, not only is data taken on how the individual responds to efforts at changing its behaviors, data is taken on the fidelity with which those implementing the plan are actually adhering to it.

Taking data on the fidelity of the implementation of the program design is one of the most critical pieces of the science that often gets left out of school-based ABA-type programs. It’s my assumption that this is for political and/or preemptive legal defense purposes because no school district that I know of wants data taken on the degree to which their staffs are actually adhering to any part of the IEP.

That’s way too much accountability on the record and way too much risk of it capturing somebody doing it wrong that could then be used to prove a denial of a Free and Appropriate Public Education (FAPE) in hearing by the parents and achieve an order for compensatory education to make up for the lost instruction. Even though the science is abundantly clear that ABA data collection methods, when followed according to the science, are the most accurate, reliable, and valid data collected in the public education system for special education students (Drasgow, Yell, & Robinson, 2001; Kimball, 2002; Yell & Drasgow, 2000), I have yet to see that degree of scientific rigor applied to any part of a student’s IEP in the public schools, whether it’s through their measurable annual goals or any behavior plans that their IEP might contain.

As parents, your primary goal has to be the quality of the IEP’s design because, if it doesn’t describe what your child actually needs, it doesn’t matter where you try to implement it and no placement will just magically fall in love with your child and imbue them with knowledge through emotional osmosis. Hope is not a strategy. Pursuing a scientifically informed, legally compliant IEP is a strategy that gives you way more likelihood of having a meaningful say in the quality of your child’s education, regardless of where they attend school.

References:

  • Drasgow, E., Yell, M.L., & Robinson, T.R. (2001). Developing legally correct and educationally appropriate IEPs. Remedial and Special Education 22(6), 359-373. doi: 10.1177/074193250102200606
  • Kimball, J. (2002). Behavior-analytic instruction for children with autism: Philosophy matters. Focus on Autism and Other Developmental Disabilities, 17(2), 66-75. https://doi.org/10.1177%2F10883576020170020101
  • Yell, M. & Drasgow, E. (2000). Litigating a free appropriate public education: The Lovaas hearings and cases. The Journal of Special Education, 33(4), 205-214. doi: 10.1177/002246690003300403

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The Basics of Special Education Assessments

Most people new to special education are quickly blindsided by the processes and procedures that have to be followed. Many parents new to the process don’t exactly understand that customizing school for their children with special needs is what special education is supposed to do. Often they will say that they don’t know what special education will be able to do for their children, in large part because they don’t understand what special education actually is or how it works.

There is a huge need to demystify the special education process for those who don’t fully understand it. The process starts at the very beginning with a referral for assessment, but before I launch into a discussion of special education assessments, I first want to map out the special education process in general so the role that assessments play in that process becomes clear.

Because special education can only be given to students who meet specific eligibility criteria, a process had to be developed to determine who meets those criteria. The basis for a referral for a special education assessment is “suspected disability.” If the parents, teachers, or other involved professionals have a reason to suspect that a disability might be responsible for why a student is struggling in school academically, communicatively, socially, physically, and/or behaviorally, it’s enough to trigger the assessment process.

Sometimes, special education assessments end up ruling out disabilities and identifying other challenges that are interfering with student learning that require solutions other than special education. It is never a bad thing when a child who is struggling in school gets help, regardless of what types of help may be needed.

Federal law mandates that public education agencies conduct a process called “child find” in which they actively seek out and identify those students who can be suspected of possibly needing special education (34 CFR Sec. 300.111). A great many special education lawsuits have been filed over the years on behalf of students who were never identified through “child find,” but should have been.

I have worked as a paralegal on several cases in which there was enough evidence to suspect a disability was responsible for a student’s struggles but it failed to trigger the “child find” process. When students who are eligible for special education are denied eligibility, including from a failure to conduct “child find” that denies them the chance to be found eligible in the first place, they are usually due compensatory education to make up for the education they should have gotten but didn’t. “Child find” failures are no small things, but they occur systematically everywhere.

Very often, children of color, children from households with low incomes, children in single-parent families, and children who have immigrated here from other countries are the ones most often missed by “child find.” In many instances, they are instead blamed for their challenges and end up funneled into the juvenile justice system, thereby greasing the wheels of the School-to-Prison Pipeline.

It often takes a parent referral to see a student properly identified for special education. Struggles over homework, tears shed over grades, disciplinary problems at school, and other obvious signs of trouble will prompt many parents to look into their options for help from their local schools and some will stumble upon some basic information about special education and the referral process. If it makes enough sense to them, they will write a letter requesting that their child be tested for learning problems that might require special education, which triggers the assessment process.

Depending on what State parents are in, the laws vary as to whether their local education agencies are legally obligated to act on their referrals for special education assessment. Some States give parent referrals equal weight to those made by school personnel and other States do not. The federal laws leave it up to the States to decide, by default making it such that education agencies can decline parent referrals for assessment with Prior Written Notice (PWN) explaining why the referral is being declined (34 CFR Sec. 300.503).

California law, however, gives parent referrals equal weight to those made by education agency personnel (EDC 56029) and mandates that an assessment plan be provided to parents for their consent within 15 calendar days of any referral for assessment being made (EDC 56043(a)). States can add protections to the IDEA, they just can’t reduce them to anything below the minimum standards of the IDEA. Not all States provide the same kind of protection of parent referrals that California provides.

Even when a parent referral is accepted, many school districts will still limit assessment in a way the parents don’t realize is happening in order to prevent students from being found eligible for special education and thereby prevent special education expenditures and a host of additional legal obligations. For far too many families, just getting that initial evaluation can become a legal battle, but then the question becomes whether the assessment they got was any good.

I want to focus on what happens once the assessment process actually gets going, though. Eventually, most families of eligible children who are pushing for appropriate services will get an initial assessment that is used by the IEP team to determine whether the student is eligible for special education or not. If the student is found eligible, re-assessments will then occur at least once every three years, or triennially, to update the data available to the IEP team for ongoing IEP development.

The purpose of special education assessment is to determine 1) if the student is eligible for special education and, if so, 2) what the content of the student’s IEP should be. Needless to say that if the data gathered by the assessment is inaccurate, incomplete, or incompetently interpreted, things can go horribly wrong. And, they do. A lot of special education litigation arises over education agency failures to competently assess in all areas of suspected disability.

For example, if a child is verbal but can’t read people’s facial expressions or tone of voice, there still needs to be a speech-language evaluation that looks at not only articulation, receptive language, and expressive language, but also at pragmatic (social) language. Pragmatic language includes the ability to read nonverbal body language, facial expressions, and tone of voice.

Children with autism tend to be very literal with words and miss the nuances that tone of voice, facial expression, and body language can contribute to conveying someone else’s communicative intent, so they may misunderstand sarcasm or idioms and cliches. They can similarly struggle to make their own faces match what they are trying to say in a way that makes sense to most other people. Students with other types of handicapping conditions can also have similar challenges for various reasons related to their disabilities.

This isn’t all people with autism, of course, but pragmatic language deficits are commonly occurring features of autism. It stands to reason that any child assessed for autism should also have a comprehensive speech-language evaluation that includes pragmatics. I’ve lost count of the number of students on the autism spectrum I’ve represented over the last 28+ years who have had huge problems with interpersonal communication but had never had their pragmatic language tested until I asked for it. It’s one of those obvious things that shouldn’t have to be specifically requested, but I often end up having to request it, anyway.

And, this example goes to why it’s important that parents understand the critical nature of assessments and getting them done correctly the first time around, if at all possible. What happens if assessments are bad is that whatever IEPs are produced from them will also be bad. This can include an inappropriate denial of special education eligibility altogether at the initial IEP, as well as students being found eligible but then given weak IEPs that don’t actually address their needs.

Simply giving a student a document that says “IEP” on it does not magically bestow educational benefits upon that student. The contents of the document matter and they should be informed by scientifically valid data in all areas of suspected disability and unique learning need. The IEP is supposed to be the blueprint by which the special education student’s education is delivered according to that student’s unique learning profile, which can only be ascertained through valid and sufficiently rigorous assessments that include teacher and parent input.

What tests should be administered to a given student depends on the student. Just as the special education program developed for each student must be individualized, so must the assessments conducted to inform that program. If a student doesn’t present with any evidence of hearing loss, it makes no sense to test in the area of hearing. However, if a student reports that the words swim on the page when the student attempts to read, an assessment of visual processing is entirely in order.

Similarly, if the primary areas of concern are social and classroom participation but the student’s grades are otherwise fine, you can conduct all the IQ and academic achievement tests in the world, but they will fail to give you relevant data about the actual source of the problem. At best, academic achievement testing may tell you the degree to which the social/behavioral challenges are interfering with classroom participation and work completion, but social/emotional and behavioral assessments are necessary to get to the bottom of social and classroom behavioral challenges, including lack of participation.

It is not uncommon for individuals with autism and/or anxiety disorders who are otherwise verbally and intellectually intact to do well in their academics, at least in the lower grades, but have a truly difficult time being a member of a classroom and/or being socially integrated with the rest of the students. School is supposed to teach more than academics; it’s also supposed to give students the opportunity to learn and rehearse social skills that will ultimately allow them to become gainfully employed and fully functional within society in adulthood.

The thing to understand, here, is that a student does not automatically have to be struggling academically to need special education. A student needs to be struggling in any aspect of school as a result of a disability to such a marked degree that individualizing the student’s educational experiences is necessary in order for the student to have opportunities to learn that are equal to the opportunities given to same-grade peers who do not have disabilities.

Our students with anxiety and depression will often miss a lot of school due to psychosomatic illnesses. This prevents them from accessing education altogether, but is not directly reflective of a specific challenge with academics. Very often, these kids can handle the academics okay, but they can’t handle all the other people at school. That’s a different special education problem to solve than accommodating dyslexia or an auditory processing disorder.

I can tell you that, as an educational psychologist and behavior analyst, there are student-specific lines of inquiry that an individualized assessment of each student should pursue. No two assessments should look exactly alike from one student to the next. The federally mandated requirement placed on schools is to assess in all areas of suspected disability and unique student need on an individualized basis (34 CFR Sec. 300.304).

That means social/emotional functioning, pragmatic language, and behavior are probably going to feature more prominently in an assessment of a student suspected of autism or certain types of social/emotional disorders. Measures of cognition and academic achievement, analysis of classroom work samples, parent and teacher interviews, and classroom observations are going to be more useful in troubleshooting a potential learning disability. Physical therapy, occupational therapy, and adaptive physical education evaluations are going to be important for a student with an orthopedic impairment that impacts how the student navigates the school campus.

There is no “one-size-fits-all” assessment procedure in special education. There should be no “one-size-fits-all” anything in special education. The whole point of it is individualized instruction, which can only be individualized to the student if the IEP is informed by individualized assessment data.

The importance of individualizing assessment cannot be overemphasized, and I have an example from my past to drive that point home: Many years ago, a couple of years or so after I first became a paralegal, I was working a due process case in which, between the testimony of the school psychologist and the district’s director of special education, it became clear that the only reason the school psychologist had used a particular verbal IQ test on our 7-year-old language delayed client with Down’s Syndrome was because the district kept those tests in bulk in the supply closet, and it would take longer than the 60-day assessment timeline to order a more appropriate test through the district’s purchase order process, as overseen by the special education director.

It is my recollection that the administrative law judge who tried the case had his own blistering line of questioning after those facts made it onto the record. He basically eviscerated the special education director for sneaky, underhanded abuses of the system to save a buck at the expense of assessment accuracy. The judge ended up ordering the school district to fund an outside assessment done by an expert who used the right kinds of tests.

The dad had already paid to have the outside expert assessment done, so we had it as evidence of how to do it right in hearing, plus the outside expert testified credibly as to his methods and findings. The district ended up having to reimburse the dad for the outside assessment and there was a huge training initiative throughout that district’s special education department shortly after that hearing decision was published. Heads rolled and policies changed for the better, but it took exposing what was really going on in a hearing to effect significant changes.

The function that assessments serve in the special education process is to set it all in motion and inform all the other steps that will follow. An IEP must include a statement of a student’s present levels of performance at the time the IEP was written, thereby establishing baselines. An IEP must also include annual, measurable goals that target learning outcomes to be achieved in one year’s time from the date the IEP is written that move the student forward from those baseline positions in each area of unique learning need.

There is no way to realistically identify the target outcomes to be met with one year’s worth of work in each area of unique student need without valid assessment data to inform that analysis. How much is realistic for an individual student to learn in a year’s time comes down to a combination of variables that should have all been measured and described by the assessment data.

Goals target the outcomes intended by a student’s IEP. What services are included in an IEP, including the frequency, duration, and location of those services, are determined on the basis of what will be necessary to meet the IEP goals. Placement is the last decision made by an IEP team and is determined by what is the least restrictive setting or combination of settings that allows the services to be delivered such that the goals are met without unnecessarily segregating the student away from the general education population.

You can’t decide where a special education student can be most appropriately educated until you first determine what you’re going to have to do in that setting or combination of settings. What needs to be done is determined by what you want to make happen. You don’t know what to make happen until you understand where things already stand and what you are still missing. You don’t know what is already intact and available, or what is missing, without first doing an assessment.

So, everything in the IEP process depends on the assessments being done right in the first place, or the entire IEP process falls apart from the outset. If an assessment is done badly, there aren’t adequate baseline data to inform an IEP’s present levels of performance or inform decisions about how aggressive each measurable annual goal should be in terms of its targeted outcomes. Further, if it’s done badly, there’s no guarantee there’s enough data to identify all the areas in which goals are actually needed.

“What can the student already do in a given area of need?” and “What is realistic to expect from this student after one year’s worth of work in this given area of need?” are the two key questions that have to be answered by special education assessment reports. That’s because those two very questions have to be answered when crafting a new IEP.

If you can’t get that far with the data from the assessments, you’re off to a really, really bad start. If you can’t lay a proper foundation, your whole construct will fall down. Competent, reasonably thorough assessment is the very foundation of a sound IEP, so it is important for parents to take this step of the IEP process very seriously and hold everyone else on the team to their respective professional standards.

Federal law mandates the application of the peer-reviewed research and the professional standards of any experts involved to the delivery of special education (34 CFR Sec. 300.320(a)(4)). That includes during the special education assessment process. Any standardized tests used must be administered and scored according to the instructions provided by the producers of each test, which must be scientifically valid for the purposes for which they are used (34 CFR Sec. 300.304(c)(1)). The enforceable law does not skirt the applicable science, and there is no legally justifiable reason why any publicly funded education agency and/or any of its contractors should be skirting it.

This can be difficult for many parents who have no background in science or law. However, an interesting phenomenon is starting to occur on a societal level that is worth noting.

Millennials are becoming an increasingly represented generational cohort among parents of children with special needs. They use their smartphones ubiquitously to call BS on a host of issues by looking up the truth, and collaborate with each other to address shared concerns. Special education advocacy today is becoming something entirely different than what it was when I started 28 years ago.

When I was a young, beginning advocate, I represented a number of housewives who could bake some mean cupcakes but would nearly faint at the presentation of a bell curve graph and deferred to their husbands on any big decisions. Now, I’ve got young moms and dads taking their own behavior data, charting it, and presenting it to their kids’ IEP teams with a written list of questions, concerns, and requests, all based on their own common sense with no formal prior exposure to the applicable sciences or law.

Where things get interesting is how school district administrations are currently configured. Many of the old-timers that I’ve been dealing with over the last two decades or more have retired and run off with their pension money before there isn’t any pension money to be had, anymore. Millennials are now starting to take the retired old-timers’ vacant job positions and, where that has happened, I’ve found that I don’t have such an uphill battle when making scientifically research-based requests in conformity with the regulations on behalf of my students and their families.

The biggest challenges I’m seeing now are Millennial parents armed with knowledge attempting to advocate for their children to public education agencies still run by the old-timers. The old-timers run things according to cronyistic politics, by and large, which has no scientific support whatsoever. In fact, cronyistic politics have been supported by a great deal of science as being impediments to the implementation of effective educational programming (Coco, G. & Lagravinese, R. “Cronyism and education performance,” Economic Modeling, Feb 2014, 38 443-450; Shaker, P. & Heilman, E. “The new common sense of education: Advocacy research versus academic authority,” Teachers College Record, Jul 2004, 106:7 1444-1470) and the impetus behind the mishandling of education dollars that take money out of the classroom that could otherwise fund effective instruction and undermine a community’s investments in education (Eicher, T., García-Peñalosa, C., & van Ypersele, T. “Education, corruption, and the distribution of income,” Journal of Economic Growth, Sep 2009 14:3 205-231).

When knowledgeable parents go up against cronyistic old-timers, the old-timers resort to their familiar bag of power-mongering tricks. But, trying to intimidate a mom who was educated under the Common Core to use math and science to solve real-life problems is a world apart from trying to intimidate a housewife whose science and math skills are limited to following recipes in a cookbook and balancing a checkbook.

I’m watching old-timers retire in droves nowadays because their weapons of choice against parents aren’t effective anymore and the courts are increasingly relying on the applicable science to inform how the law applies to each special education student on an individual basis. Law is supposed to be evidence-based, as is science. Education science allows special education law to be as black-and-white as possible. Everything else, particularly in a cronyistic system, is subjective opinion and hearsay. The environment no longer reinforces the old-timers’ behaviors like it used to, and their behaviors are starting to become extinct.

So, parents going forth into special education, especially those of you who know how to use your smartphones to look things up and fact-check, fall back on the science and lean on it hard, starting with the assessment process. When you are first given that assessment plan to sign, don’t sign anything until you understand what it means and the language of it is clear.

Very often, assessment plans will say vague things like “social/emotional evaluation by psychologist,” which can sound a whole lot like a mental health evaluation by a clinician to a lay person. In reality, what it usually means is rating scales filled out by parents, teachers, and sometimes the student that are scored and interpreted by a credentialed school psychologist, not a licensed clinician. Rating scales scored and interpreted by a school psychologist is not the same thing as a mental health evaluation by a licensed clinician.

But, how is a parent unfamiliar with the process supposed to know that? Would any reasonable layperson just assume this language meant a mental health evaluation by a clinician? I’ve seen this happen more than once involving youth with significant mental health issues for which consideration was being requested by the parent of the rest of the IEP team of residential placement via the student’s IEP. The parents would be given an assessment plan that said “social/emotional evaluation by psychologist,” think they were getting an evaluation to explore residential placement, and only find out 60 days later that they had been given the run-around while their child continued to fall apart. Residential placement is the most restrictive placement possible through the special education system, but it is possible for those students whose needs are that dire.

In these cases, the students’ needs were absolutely that dire and the responsible school districts attempted to delay the costs of residential placement by first doing rating scales by their school psychologist as part of a 60-day evaluation process, who then recommended a mental health evaluation, sometimes including a residential placement evaluation but sometimes not, thereby triggering a new 60-day assessment timeline. If a residential placement evaluation was not included with the mental health evaluation, the mental health evaluation could then conclude that the student should be considered for residential placement, triggering yet another new 60-day evaluation timeline.

Or, worse, the mental health evaluation could be silent on the issue of residential placement, leaving it to the parents to know to keep asking for such an evaluation; but, by this point, most parents erroneously conclude that residential placement isn’t an option so they drop it. There are youth in immediate crises who need instant mental health services, and their school districts are stalling the process by adding an unnecessary layer of assessment that gives it another 60 to 120 days before it has to act on the data (i.e., foot the tab for services).

Each of the students from my caseload who have shared this experience, in different school districts mind you, ended up either hospitalized and/or incarcerated at some point before finally getting the help that they needed. In most of those cases, the issue had to be forced with lawsuits that ultimately resulted in confidential settlement agreements. In each instance, the unnecessary delays in receiving immediate help contributed to self-injurious behavior, attempted suicide, and unlawful conduct that could have otherwise been avoided.

In my first case like this, I actually took it to due process myself back in the day when advocates could do that in California, and prevailed. In that case’ decision, the hearing officer made it clear that it defies the entire purpose of the IDEA, which requires that children with qualifying disabilities be identified and served via IEPs in all areas of need as quickly as possible, to subject our most vulnerable children to double or triple the amount of assessment time of a normal special education evaluation before getting the help they need.

I don’t know of any authority that has come out since then that contradicts this interpretation, though it was a long time ago and I’m not an attorney, but I think most people will agree, that it was not likely Congress’ intent to make our most severely impacted students suffer without appropriate supports and services for months longer than it takes other special education students to get what they need. These include, but are not exclusively, students with tendencies towards violence, running away, property destruction, self-injurious behaviors, and other non-social behaviors that require a great deal of expert intervention. These are not the students who should be waiting twice to triple the time to get the services they need to keep themselves and everyone else safe and focused on learning at school.

If it looks like a critical area of need is being excluded from your child’s assessment, don’t sign the assessment plan until the public education agency adds what is missing. If the agency refuses to add it, note on the assessment plan that you are consenting to what is offered, but you still think the assessment is deficient based on what they are excluding, which you should list in your note. That way, the record is clear that you aren’t delaying the other testing by withholding your consent, but you’re also not agreeing it was appropriate to leave out what you requested.

If the matter ever goes to hearing, the fact that you documented your disagreement with the exclusions on the actual assessment plan will become part of the evidence and the agency will have to explain its refusals of your requests to a judge or hearing officer. I’ve seen agencies change their minds after parents have written such feedback on assessment plans because the agencies don’t want to have to explain those documents to judges or hearing officers down the line.

Often, the best way to prevent litigation is to prepare for it. The parents who understand the value of making the record in the right way are the most successful self-advocates out there. But, there are still enough cronyistic old-timers still entrenched in the system who think they can still get away with intimidation tactics, lies, and subterfuge. It’s getting harder and harder for them to get away with these behaviors, and parents who push for the truth from the very beginning, starting with the assessment process, have a greater chance of getting appropriate services for their children than not.

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Podcast: Placement & the Least Restrictive Environment

On January 1, 2009, we originally published “Placement & the Least Restrictive Environment”. Throughout this school year, KPS4Parents is recording many of our past text-only articles as podcasts so that busy parents, educators, and interested taxpayers can download them and listen to them at their convenience.

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

Click here to download the podcast “Placement & the Least Restrictive Environment.”

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Podcast: Why Placement Isn’t Where You Start

On December 11, 2008, we originally published ““Why Placement Isn’t Where You Start: Understanding the IEP Process.” As we move through the school year, KPS4Parents is recording many of our past text-only articles as podcasts so that busy parents, educators, and interested taxpayers can download them and listen to them at their convenience.

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

Click here to download the podcast, “Why Placement Isn’t Where You Start: Understanding the IEP Process.”

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KPS4Parents Interviewed by LRP

I was recently approached by John Haughey, writer and editor for LRP Publications, for our input regarding a due process decision arising from a case in Chicago. For those of you unfamiliar with LRP, it is the publication powerhouse that supplies information regarding special education law, policy, and practices to public education agencies and the attorneys who represent them.

LRP maintains, through its website http://www.specialedconnection.com/, the most comprehensive database of special education due process decisions from around the country, as well as state and federal appeal cases. With a subscription rate for full access at around $2500 per year, only the well-financed generally have access to this otherwise difficult to access public information.

Even so, many attorneys who represent students with special needs and their families will choke down this subscription fee for access to case decisions that provide appropriate authorities for their own work. Other products of LRP Publications are reviews of special education decisions and articles that discuss the subtle or not so subtle nuances of special education law.

Which brings me to the Chicago case about which Mr. Haughey, who is a very nice man, asked to interview me. KPS4Parents very much appreciates the opportunity to lend perspective from the child and parent side of the issue to LRP’s work. For many who work with families of children with disabilities, and who are leery of LRP because of its strong affiliation with the public education agencies and their attorneys, we hope you appreciate that LRP was actively reaching out to hear the child and family side of the issue.

While the way our comments were reported doesn’t provide the full context in which what was quoted was said, we stand behind what Mr. Haughey wrote of our input. Unfortunately, because this article is copyrighted by LRP Publications and you have to be a subscriber to their site to see it, we can’t give you access to the whole thing. However, LRP was kind enough to agree to let us audio record my interview with Mr. Haughey and we were given consent to quote Mr. Haughey’s quotation of me from his article.

The Chicago case was one in which a special education student was awarded compensatory education in the form of placement in a private school for children with learning disabilities at public expense after his school district was found to have denied a free and appropriate public education, or FAPE, to him. In this case, it seems, the school district had placed so much of an emphasis on placing this student in the least restrictive environment, or LRE, that it had failed to consider whether he could actually receive educational benefit in a general education setting.

I was one of several people from around the country interviewed for Mr. Haughey’s article. Also interviewed were a public school principal in Wisconsin and a special education attorney in New Hampshire. While I had the benefit of reading the decision issued by the Illinois Hearing Officer, I did not have access to the transcript of the hearing or the evidence, so I have to take the decision at face value. That said, I know from personal experience that hearing officers are extremely challenged to get all the fact exactly right, so I was still left with some unanswered questions after reading the decision.

It was an interesting read, nonetheless, and what I want to focus on here is the case as represented by the hearing decision. I offer our sincere respect to the family involved in this case, particularly considering that the case reflected in the decision is probably not exactly reflective of the case the family attempted to have tried. I also offer our most emphatic support of the student in this case because it was this young man’s life about which this case resolved. He is the one who will have to live with the consequences of what this case did and did not yield on his behalf. So, to the extent that I’m about to talk about this case as though the decision is 100% reflective of the facts, and I’m about to use it as a generic example for the benefit of others, please do know that we very much understand that this was really about one boy and his right to learn to read, write, and do math and very much appreciate that this family stuck its neck out in an effort to effect change.

The decision in the case at issue here reflected a number of shortcomings that the LRP article, which was brief, did not go into. One of the issues was that the assessment data fell far short of the mark and this young man’s IEP teams were without the data necessary to make informed decisions regarding what was or was not a legitimate offer of a FAPE based on his unique learning needs. So, there was this first undermining of the process that ultimately made it impossible for the rest of the process to be properly executed.

The decision doesn’t specifically speak to whether the parents’ participation was meaningful in the IEP process, but I would argue that an IEP meeting denies meaningful parental participation if the information necessary – that is, data that explains what the student’s needs are – is not made available to the parents so that they can make informed decisions. Likewise, most parents are clueless regarding what data is necessary and how that data should be used. They are left to trust the judgment of school officials who may or may not understand their obligations under the law to special education students.

What was implied by this decision was that the school officials believed it was more important to place a child with an above-average IQ in the general education setting regardless of what his actual learning needs were than to examine the full continuum of placement. The decision suggests, and LRP’s article comes right out and asserts, that there was an emphasis placed on the LRE requirements more so than on what constituted a legitimate offer of a FAPE. I have to question this interpretation to a certain degree. That’s not exactly what I got out of reading this decision.

Yes, it’s true that, according to the decision, the District asserted that it only offered placement in the general education setting because it perceived that setting to be the LRE and that the student didn’t require a more restrictive placement. That may have actually been true.? Where the District may have fallen down was not necessarily?where the services were being provided but whether the proper services were being provided at all. The decision doesn’t address this consideration.

If you go back and look at our blog posts of the past and read the articles regarding the IEP process, you quickly come to understand – if you didn’t already know this – that services and placement are the last things discussed by the IEP team. What drives the selection of services and placement is the goals. The goals describe your intended outcomes of intervention and services and placement are the vehicles by which the goals are meant to be achieved. To the extent that the child can receive services such that his goals can be achieved in the general education setting, placement in the general education setting with non-disabled peers should occur.

In the Chicago case, it was not clear from the decision that there was any examination of what services could have been provided in the general education setting that could have seen the child benefit from his education. The decision reflects that only accommodations and modifications were made in the general education setting, not that services were pushed in or provided as supplemental supports.

Now, that said, this had apparently been going on for a while. As a result, the student had failed to receive educational benefit for years. By the time his case got to hearing, he was due compensatory education to make up for the years of lost educational opportunity and, at that point, the only real way to provide him with that kind of remedial support was to put him in a very restrictive setting, that being a private school for children with learning disabilities.

There very well may have been a time when placement in general education with appropriate supports and services would have rendered educational benefit and prevented all of this from ever happening. But, we’ll never know. The decision doesn’t speak to what would have been a FAPE for him in the past. It only speaks to the harm done by the District’s inappropriate offers of only accommodations and modifications in the general education setting for this student and the fact that compensatory education is now due to the student as a result of that harm.

This brings me to the next consideration: the use of the term “LRE.” As we’ve stated in blog articles before, the LRE?- the least restrictive environment – is the setting in which the student can receive educational benefit with the most exposure to typical peers and the typical school experience as possible. It’s relative to the student’s unique needs. This was the aspect on which I was quoted by Mr. Haughey in his article for LRP Publications.

Mr. Haughey wrote that I said, “LRE is relative — relative to the needs of the child,” which is true. Mr. Haughey went on to write: “Zachry advises parents to ask these questions in determining if the general ed placement is appropriate for their child: ‘Is it going to achieve the outcome you are looking for Are we leveling the playing field, or are we putting him on a completely different playing field?'” ?This advice actually was intended for the entire IEP team, not just parents.

Mr. Haughey also wrote that I said that parental pressure often can allow institutional bias for mainstreaming to go unchallenged, but did not include the context in which my statement to that effect was actually couched. This is something I want to clarify before my words are used to fuel the anti-parent bias that already pervades the public school community, and which some attorneys who represent public education agencies actually exploit for their own financial gain.

It is true, and I’ve written in our blog on this before, that most parents really do not understand the special education process. That’s one of the reasons we publish our blog in the first place. It’s also true that far too many professionals in special education really do not understand the special education process, either, which is another huge reason we publish our blog.

People on both the school and the parent sides tend to put placement before everything else, treating special education as a place rather than a service, even though placement is only one aspect of a special education student’s program and the last thing the IEP team should consider. So, again, we have this case out of Chicago and the attention that LRP is giving it that both focus on the placement more than anything else and I can’t help but wonder about the message this is sending to the folks in the public education community. Does this reinforce the false notion that placement is the only really important thing to talk about and that present levels of performance and goals are just procedural fluff?

It is also true that there are a great many parents out there who, in the process that parents follow in coming to terms with being told that their children have handicapping conditions, are in a stage of denial and, in their ignorance, think of special education as a place rather than a service to help their children learn. These parents view special education as a label – a “Scarlet Letter” – that will brand their children as though it is somehow advertised who and who is not on an IEP.

That isn’t to say that there aren’t insensitive clods in the public education system who have no sense of student confidentiality, but for the most part, public school employees do not go around blabbing students’ personal business to the other kids. Generally speaking, kids with learning disabilities and other “hidden” handicaps blend in with everyone else and no one knows they’re on IEPs unless they tell their peers themselves.

So, the parental fear of the child being labeled is often a rather irrational one. But, it’s also a natural stage of the process that every parent goes through. Sometimes it’s a fleeting moment before the parent moves to the next stage towards acceptance and proactive involvement, but sometimes parents get hung up at this stage for a while – or even indefinitely.

Like the stages of grief, how long a particular person spends at each stage of the process depends on that person’s individual growth and development as a human being. It’s unfair and inaccurate for school personnel to presume that all parents are in denial. Most parents of children with special needs experience at some point a great deal of relief of finally understanding what is going on with their child so they can start constructively coming up with a game plan. They get past the denial at some point.

But, while parents are in that denial phase, they are often resistant to the application of the term “special education” to their children, particularly if they are in denial at the time that their children are found eligible for special education services. They envision the proverbial “retard room” from their childhood educational experiences and can take any identification of eligibility for special education as a condemnation of their children’s potential. This is truly unfortunate. Within this context, it is true that parental pressure often can allow institutional bias for mainstreaming to go unchallenged, as Mr. Haughey reported.

Sometimes, however, it is the student’s bias that’s the problem, which Mr. Haughey and I discussed during the interview, as well. Sometimes the student doesn’t want to be placed in a more restrictive setting out of embarrassment, but is also embarrassed in the general education setting by not being able to keep up with peers. In a situation like this, you’re damned if you do and damned if you don’t. That’s a really hard problem to overcome and usually comes down to the parents telling the student, “Look, this is the way this is going to go down and you’re just going to have to deal with it,” regardless of what the placement determination turns out to be.

In other instances though, and from what I could gather from reading the Decision in the Chicago case such was the situation there, the parents don’t really care so much about where services are provided so long as their kids get the help they need. The Chicago case seemed to me to be about a family asking for help for their son and not getting it, and the denials for help by the District being based on an inappropriate application of the LRE requirements.

Truthfully, what I suspect but would need evidence to know for sure, is that the District probably didn’t want to pay for the intensive remedial services this student needed and used the LRE as an excuse to deny them. Otherwise, no one at the District had a clue about what LRE really means and requires. Special education noncompliance tends to arise out of ignorance, petty politicking, or a combination of both. As with any due process case, we’ll never really know all of the truth about this situation, but we appreciate the opportunity to examine it and hope that my analysis provokes thought on the part of others to make the special education system better.

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California SLPs Sometimes Confuse Legal Requirements

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Placement & the Least Restrictive Environment

We’ve mentioned placement and Least Restrictive Environment (“LRE”), in previous postings. Today’s posting focuses specifically on these aspects of special education.

 

As discussed previously, placement is the last decision made by an Individualized Education Plan (“IEP”) team and is that setting in which a student’s measurable annual goals can be met using the services determined necessary by the IEP team and which is the least restrictive when compared to all other possible educational settings in which the goals could be met using the services determined necessary. In other words, once you’ve figured out goals and services, the IEP team has to examine all of the possible settings in which the services could be provided and the goals met, then pick the one that is the least restrictive.

 
“Least restrictive” is a relative term specific to the individual child. What may be least restrictive for one child may not be least restrictive for another. The language found at 34 CFR ? 300.114 states that:  “To the maximum extent appropriate, children with disabilities … are educated with children who are nondisabled;”  and “Special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”

What this means in plain English to parents is that if your child’s needs can be met in the regular education setting with push-in supports, the regular education setting is the LRE. The public schools cannot segregate special education students from the regular education setting purely on the basis that these students have disabilities. The needs created by their respective disabilities have to be so severe in nature or so unique to serve, that the necessary services cannot feasibly be pushed into the regular education setting and met with success.

So, how do you know when it’s time to consider pull-out options or alternative placements to the regular education setting? It all depends on the child.

Let’s say, for instance, that you have a teenage daughter with significant social anxiety. She’s become a recluse and refuses to go to school at all and refuses to go places with the family except at night with a hoodie pulled over her head. Her IEP includes a behavioral goal targeting attendance, since this is an area of measurable need that requires specific attention in her IEP.

Clearly, regardless of how academically capable she might be, you’re not going to successfully place her on a comprehensive high school campus in a whole bunch of different classes throughout the day and passing in the halls between classes, much less lunch and PE.  A very small class with pushed-in mental health services on a continuation school campus may be more appropriate.

 

 

As another example, let’s say you have an 11-year-old son with delayed cognition, impaired attention, and mild autistic like behaviors, most of which involves perseverative thought, ritualistic behaviors, and inappropriate dialoging skills. While it would be possible to push an appropriate curricular program into the regular education setting, the reality is that the inattention could easily make the regular education setting highly distractible to this young man and his behaviors could require constant adult redirection. It could quickly become an exercise in frustration for everyone involved and derail not only this young man’s receipt of an education, but also that of his classmates. But, if you don’t know for sure that this is what will happen, you should at least try it. Then, at least, if things don’t work out, you know you that your decision to move the child to a more restrictive setting is informed and everyone knows that a less restrictive setting proved unsuccessful.  You should never presume the worst automatically when considering placement options.

 

A young man like this might actually benefit from spending at least part of his day in either a Resource Specialist Program (“RSP”) or a Special Day Class (“SDC”) setting. Perhaps, his day would end up being divided among the regular education, RSP, and SDC settings. That’s the thing about placement: you can mix and match components to come up with the most appropriate combination for each individual child. But, this requires flexibility on the part of the public education system and special education placements designed with this mix-and-match type of planning in mind.

 

It has been my unfortunate experience in many situations that placements have been offered by public education agencies based on what they already have in place rather than that necessarily serves as the LRE for a particular student. In fact, almost one year ago, we launched web site devoted to this very issue regarding the schools located in San Luis Obispo County, CA, http://www.slocoesdc.info.

 

This web site was inspired by the cases of children coming from tiny rural K-8 districts in SLO County that only offered placement up to RSP. Students of these tiny districts who needed more intensive placements than RSP usually had only one other choice: a Severely Handicapped SDC operated by the San Luis Obispo County Office of Education (“SLOCOE”). Of course, this wasn’t appropriate if the students weren’t severely handicapped.

 

There were no in-between placements being offered or created to meet the needs of students who needed more than RSP but not so restrictive a level of intervention as a Severely Handicapped SDC. While neighboring districts offered Learning Handicapped SDCs, SLOCOE did not and neither did these children’s home K-8 districts. Some of these children would have been most appropriately placed in a Learning Handicapped SDC but were not placed in these classrooms due to inter-agency politics, even when these Learning Handicapped SDCs were operated on the same campuses as the Severely Handicapped SDCs to which they were being bused every day.

 

When http://www.slocoesdc.info failed to facilitate productive discussions between local schools and parents to address this serious placement issue, KPS4Parents filed a compliance complaint with the California Department of Education (“CDE”) against San Luis Obispo County Special Education Local Plan Area (“SLOSELPA”) alleging that the full continuum of placements was not being made to all the children served by public education agencies within SLOSELPA’s jurisdiction, as is required by State law. The matter remains pending at this time and, according to our last conversations with CDE, its Focused?Monitoring and Technical Assistance?(“FMTA”)?Unit is working with SLOSELPA to address this concern.

 

The point, here, is that placement and the LRE requirements are complex issues that involve constantly changing needs that public education agencies have to address from one school year to the next. Creating cookie-cutter solutions isn’t the answer. There are people working in public education who actually think that placement is (or should be) driven by the IQ score of the student. There remains entrenched in some public education agencies the mentality that actually educating children with special needs is an unachievable goal and an utter waste of time and resources and, as such, warehousing such children and minimizing their expense to the public agency is the most prudent form of administrative stewardship that can be exercised.

 

There are sometimes teachers and other school site staff who just don’t want to have to work as hard as the situation actually requires. So long as they go through the motions and enough kids leave their classrooms knowing at least something more than they knew when they first arrived, these “educators” believe they have earned their paychecks and no one can expect any more of them than that. 

 

I once had a student we represented enrolled in a mainstream computer class where she was receiving a “C” as her grade. She was, however, bombing out all of her other mainstream classes. Thinking that maybe the computer teacher had found some way to get through to her somewhat, we invited him to this young lady’s IEP meeting so he could share his insights with the rest of us. Unfortunately, once he got to the meeting, he admitted that he gave “Cs” to all of the special education students who enrolled in his class because they at least showed up and he didn’t know what else to do with them. The young lady’s special education case carrier, who was also her RSP teacher, was horrified. 

 

There wasn’t much need for me to stick around after that. The school site special education team jumped all over the situation, reassessed this young lady to figure out what was going on, and developed a much more appropriate IEP after that.

 

Reassessment is often a perfectly appropriate way to respond to a failed placement. If a special education program fails, it’s because there was a variable that either wasn’t known or was ignored as was, therefore, left unaddressed. In many instances, the variable simply was not identified, making reassessment or additional assessment necessary.

 

Everything in special education is dependent upon thorough, accurate assessment data. It’s the foundation upon which present levels are identified, goals are written, services are selected, and placement is chosen.? Assessment conducted in an effort to ascertain why a child is not responding to intervention should include observations and analyses of the settings in which the child is succeeding and not succeeding. That way, when the IEP team sits down to revise the IEP, it has data about all kinds of things that will help in determining what placement is the LRE.