Special Education and Disability Rights Blog

An Explanation of Related Services under the IDEA

2012-01-03T16:56:00.000-08:00

Resource of the Week: OSEP's IDEA Website

2011-12-08T11:51:00.000-08:00

The US Department of Education, Office of Special Education Programs has created a website intended to be a "one-stop shop" for information and resources about IDEA 2004 and its implementing regulations. The website includes information about IDEA divided into specific topics, as well as access to the statute and the regulations. It is also a great tool for finding the IDEA "Q&A" documents released by the Department of Education in regards to the changes and language in the regulations.

OSEP's IDEA 2004 Website can be found at http://idea.ed.gov/explore/home

Resource of the Week: The Advocacy Institute

2011-12-01T11:29:00.000-08:00

The resource we've selected for this week's post really counts as a multitude of resources all rolled into one site. The Advocacy Institute is a comprehensive source of information for parents and advocates in the special education community, providing training opportunities, online publications and written resources, and consultative assistance for advocates and families. Their website can be found at http://www.advocacyinstitute.org/

Specifically, here are a couple of their online resources that are available:

The Advocate Academy provides training opportunities for special education advocates. The Academy's trainings are offered in a webinar modality on various specific topics, and advocates wishing to participate can either access live webinars or purchase previous webinars from their archives.

The Advocacy Institute's Reports and Publications include online articles and resources on a variety of topics of interest to the special education community including topic briefs, reports on special projects, and guides for parents and advocates regarding their rights.

Resource of the Week: COPAA's "Find an Attorney / Advocate"

2011-11-24T11:18:00.000-08:00

The Council of Parent Attorneys and Advocates is a national organization with members who are parents of students with special needs, Advocates and Attorneys who represent students with disabilities, and "other" providers, etc who advocate for students. In addition to many other resources and information available on their website, COPAA has an online directory to assist parents (both within COPAA's membership and members of the public) with finding and Attorney or Advocate in their area.

Often, Parents need to seek the assistance of a special education attorney or educational advocate to represent them in IEP meetings or in legal disputes with their school district. An advocate or special education attorney can help parents through the process and provide representation when there is a dispute over placement and/or services.

COPAA's online directory is a great tool to assist parents with locating representation when they need it. You can go to the Find an Attorney / Advocate directory at this link: http://www.copaa.org/find-a-resource/find-an-attorney/

Resource of the Week: Wrightslaw

2011-11-17T11:38:00.000-08:00

Wrightslaw is a well-known online source of information about special education law and advocacy, and is considered by many to be the first "go-to" place for parents and advocates to locate information about a variety of important topics.

Wrightslaw.com is a very extensive resource. The website includes articles and briefs on an significant number of topics, updates on current events and news, a newsletter, and an online "law library." In addition, you can find information about Wrightslaw's various publications and other materials, including books and DVDs.

Check it all out at www.wrightslaw.com.

COPAA Webinar on Section 504

2011-11-11T09:20:00.001-08:00

On Tuesday, November 15th, Mandy and I will be giving a live presentation as part of COPAA's current webinar series. Our presentation is entitled Expanding Your Arsenal with Section 504 and we will be covering a variety of issues that arise under Section 504, with a focus on practical application of advocacy strategies. We are very excited to be a part of COPAA's training endeavors through this webinar!

Here are the details:

What: Expanding Your Advocacy Arsenal with Section 504; Webinar Presentation by Carolina Watts and Mandy Favaloro

When: November 15th at 2:00pm Eastern/ 11:00am Pacific

How to register: Go to www.copaa.org/conference-training/webinars to sign up for the live webinar. COPAA members get a discounted rate for registration. At a later date, COPAA also makes prior presentations available for purchases through webinar archives.

Resource of the Week: WOSEP

2011-11-10T11:44:00.000-08:00

The Women's Organization of Special Education Professionals is a group of attorneys, advocates, therapists, providers and educators in the southern California area who provide services and assistance to students with disabilities and their families. The organization hosts twice-yearly networking events, and provides an online resource for the community that includes information about various events in the area as well as a directory. WOSEP's online directory is a place to locate special education attorneys, educational advocates, speech therapists, occupational therapists, behaviorists, educational therapists, and other providers all in one go-to location online.

Check out WOSEP's general webpage here: http://www.wosep.com/ and the online directory here: http://wosep.com/wosep/directory.php

Resource of the Week, a New Series

2011-11-10T09:00:00.000-08:00

In order to continue our efforts to use this blog as a means to provide information that will be helpful to our readers in the special education community, we will be starting a new weekly post in which A2Z will share resources that we find useful. These may be online resources, information about books / printed publications, information about parent support or training, or anything else we think is a worthy resource for parents, advocates, providers, educators and others in the field. We hope you find this information helpful!

Eligibility under the Category of Speech or Language Impairment

2011-10-27T13:04:00.000-07:00

The category of "speech or language impairment" (commonly referred to as "SLI") accounts for the second highest numbers in terms of students served in special education. (Source: Digest of Education Statistics: 2010). A speech or language impairment is, most simply put, a disorder in the area of communication. While there are diagnostic criteria used by licensed pathologists and psychologist to diagnose a child with a Language Disorder, the eligibility criteria, like all categories, is set by the IDEA and state law and does not rely on exactly the same standards.

IDEA Definition:

IDEA defines a speech or language impairment as a communication disorder, such as stuttering, impaired articulation, a language impairment, or a voice impairment, that adversely affects a child's educational performance. 34 C.F.R. section 300.8. State laws will have more specific criteria for how to determine if a child presents with such an impairment and qualifies for special education and related services.

Example of State Criteria:

In California, the Education Code sets forth the following criteria for eligibility under the category of SLI:

(c) A pupil has a language or speech disorder as defined in Section 56333 of the Education Code, and it is determined that the pupil's disorder meets one or more of the following criteria:

(1) Articulation disorder.
(A) The pupil displays reduced intelligibility or an inability to use the speech mechanism which significantly interferes with communication and attracts adverse attention. Significant interference in communication occurs when the pupil's production of single or multiple speech sounds on a developmental scale of articulation competency is below that expected for his or her chronological age or developmental level, and which adversely affects educational performance.
(B) A pupil does not meet the criteria for an articulation disorder if the sole assessed disability is an abnormal swallowing pattern.

(2) Abnormal Voice. A pupil has an abnormal voice which is characterized by persistent, defective voice quality, pitch, or loudness.

(3) Fluency Disorders. A pupil has a fluency disorder when the flow of verbal expression including rate and rhythm adversely affects communication between the pupil and listener.

(4) Language Disorder. The pupil has an expressive or receptive language disorder when he or she meets one of the following criteria:
(A) The pupil scores at least 1.5 standard deviations below the mean, or below the 7th percentile, for his or her chronological age or developmental level on two or more standardized tests in one or more of the following areas of language development: morphology, syntax, semantics, or pragmatics. When standardized tests are considered to be invalid for the specific pupil, the expected language performance level shall be determined by alternative means as specified on the assessment plan, or
(B) The pupil scores at least 1.5 standard deviations below the mean or the score is below the 7th percentile for his or her chronological age or developmental level on one or more standardized tests in one of the areas listed in subsection (A) and displays inappropriate or inadequate usage of expressive or receptive language as measured by a representative spontaneous or elicited language sample of a minimum of fifty utterances. The language sample must be recorded or transcribed and analyzed, and the results included in the assessment report. If the pupil is unable to produce this sample, the language, speech, and hearing specialist shall document why a fifty utterance sample was not obtainable and the contexts in which attempts were made to elicit the sample. When standardized tests are considered to be invalid for the specific pupil, the expected language performance level shall be determined by alternative means as specified in the assessment plan.

(Source: Title 5, California Code of Regulations, Section 3030(c))

Other states also have criteria that is based on sub-dividing this category into specific impairments that include fluency disorders, voice disorders, articulation disorders and language disorders. For a sampling, see these state's websites:

Minnesota
Wisconsin
Georgia
Oregon
Idaho

Things to keep in mind:

SLI is not just about articulation. Many school districts are good at identifying the students who strictly fall within the "articulation" category of impairment, but have more difficulty when it comes to adequately and comprehensively assessing students to identify the more subjective and complex language disorders. This is something you should look out for starting with the assessment plan itself - be proactive and make sure your school district is also looking at the broader language and communication issues including receptive language, expressive language, pragmatics / social language, etc.

Eligibility under the category of SLI versus the need for speech and language services:

Here in California, a problem that we often face is the misunderstanding amongst school district speech therapists regarding how to apply the eligibility criteria. The eligibility criteria has a lot of specificity of the criteria in terms of how far below the mean a student's scores must fall. School districts often mistakenly assert that this criteria is what must be met for a student to receive speech and language therapy as a related service. In other words, even if a student is already eligible, or is being made eligible, for special education under another category, such as Autism or SLD, a school district may say that they cannot receive speech therapy as a related service if they do not also meet the criteria for eligibility under the category of SLI. This is a mistaken analysis, as these are two entirely separate issues. One issue is whether a student is eligible under SLI as their category of eligibility. The other is whether they require speech therapy as a related services to meet their unique needs arising from their disability. Once a child is eligible for special education and related services under any category, the school district is obligated to offer and provide a program that meets their unique needs and provides them and educational benefit.

Other Resources:

The American Speech and Hearing Association (ASHA) is a go-to source of information regarding speech and language impairments and related issues. Their article about eligibility for special education can be found on their website (click here).

Why I hope Everyone Sees "Wretches and Jabberers"

2011-10-17T11:23:00.000-07:00

A couple of nights ago, I was perusing available movies on "On Demand" and saw that "Wretches and Jabberers" is now available! I believe it is also now available on DVD. Back on May 12, 2011, I attended a small screening in Glendale of the movie as part of the nationwide event "100 Cities, One Night for Autism." What a great night, and what an amazing movie!

I find it difficult to describe the effect this movie has on the audience. It is of course, as so many reviewers have said, all at once funny, moving, educational, inspiring. But a list of adjectives can't really sum up the experience of watching as Larry Bissonnette and Tracy Thresher go on a journey that takes them physically around the world, and emotionally through experiences that change both them and those they meet.

In my humble opinion, this is a movie absolutely everyone should see. There is something utterly beautiful about the unfiltered look into the world from Larry and Tracy's perspective. It isn't just a movie about Autism... It's about communicating with the world, making connections with other people, being understood, being accepted and loved... I encourage all of you reading this to go out and see it soon - and share it with others!

Eligibility under the Category of Autism / Autistic Like Behaviors

2011-09-23T11:02:00.000-07:00

The national organization Autism Speaks reports that it is currently estimated that one in every 110 children is diagnosed with Autism, and that the prevalence rate is increasing by 10-15 percent per year. (Source: What is Autism? www.autismspeaks.org) With those numbers, leading some people to refer to an "Autism epidemic" it is no wonder that eligibility for special education under the category of Autism is sometimes a hot topic.

The IDEA definition of Autism:

Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three, that adversely affects a child's educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences.

34 C.F.R. section 300.8(c)(1). The IDEA also notes that students who exhibit the characteristics of Autism after age 3 can also be eligible if the other criteria is met.

State Criteria for Autism Eligibility:

State special education laws have their own specific criteria for eligibility under the Autism category. Many states have criteria that is focused not on whether there is an actual diagnosis of Autism, but whether there is the presentation of characteristics associated with Autism, and because of these needs the child requires special education and related services. Here are some examples:

California defines this category as "Autistic Like Behaviors." Just this label itself is helpful for broadening the availability of special education and related services under this category to include students who may not have an actual medical diagnosis of Autism. In California, defines Autistic Like Behaviors as follows:

A pupil exhibits any combination of the following autistic-like behaviors, to include but not limited to:
(1) An inability to use oral language for appropriate communication;
(2) A history of extreme withdrawal or relating to people inappropriately and continued impairment in social interaction from infancy through early childhood;
(3) An obsession to maintain sameness;
(4) Extreme preoccupation with objects or inappropriate use of objects or both;
(5) Extreme resistance to controls;
(6) Displays peculiar motoric mannerisms and motility patterns.
(7) Self-stimulating, ritualistic behavior.

Title 5, California Code of Regulations, section 3030(g).

Another list, with more thorough explanations, is found in the Wisconsin education laws, which specifically require that two or more of the behaviors be exhibited:

1. The child displays difficulties or differences or both in interacting with people and events. The child may be unable to establish and maintain reciprocal relationships with people. The child may seek consistency in environmental events to the point of exhibiting rigidity in routines.

2. The child displays problems which extend beyond speech and language to other aspects of social communication, both receptively and expressively. The child’s verbal language may be absent or, if present, lacks the usual communicative form which may involve deviance or delay or both. The child may have a speech or language disorder or both in addition to communication difficulties associated with autism.

3. The child exhibits delays, arrests, or regressions in motor, sensory, social or learning skills. The child may exhibit precocious or advanced skill development, while other skills may develop at normal or extremely depressed rates. The child may not follow normal developmental patterns in the acquisition of skills.

4. The child exhibits abnormalities in the thinking process and in generalizing. The child exhibits strengths in concrete thinking while difficulties are demonstrated in abstract thinking, awareness and judgment. Perseverant thinking and impaired ability to process symbolic information may be present.

5. The child exhibits unusual, inconsistent, repetitive or unconventional responses to sounds, sights, smells, tastes, touch or movement. The child may have a visual or hearing impairment or both in addition to sensory processing difficulties associated with autism.

6. The child displays marked distress over changes, insistence on following routines, and a persistent preoccupation with or attachment to objects. The child’s capacity to use objects in an age—appropriate or functional manner may be absent, arrested or delayed. The child may have difficulty displaying a range of interests or imaginative activities or both. The child may exhibit stereotyped body movements.

Wisconsin Administrative Code; PI 11.36(8).

As each state has their own criteria, it is important to identify what the applicable standard is for your state specifically. Remember that assessments should be done in all areas of suspected disability, and should provide the IEP team with enough information to make determinations of eligibility and need for special education and related services. Thus, when a school district is assessing for a possible eligibility under the category of Autism, that assessment should be looking at the applicable list of characteristics and behaviors, even if the assessor does not "diagnose" under the DSM-IV (see below).

Diagnosis versus Eligibility:

Diagnosis of Autism under the DSM-IV is different than a determination of eligibility under the category of Autism or Autistic Like Behaviors. Different standards, and sometimes different procedures, are used. Thus, if a child does not have a diagnosis by a qualified professional of Autism, this should not necessarily stand in the way of eligibility if the school district does a proper assessment. Here is a little bit more about diagnosis:

DSM-IV Criteria for Diagnosing Autism:

I. A total of six (or more) items from heading (A), (B), and (C), with at least two from (A), and one each from (B) and (C):

(A) Qualitative impairment in social interaction, as manifested by at least two of the following:

Marked impairments in the use of multiple nonverbal behaviors such as eye-to- eye gaze, facial expression, body posture, and gestures to regulate social interaction.
Failure to develop peer relationships appropriate to developmental level.
A lack of spontaneous seeking to share enjoyment, interests, or achievements with other people, (e.g., by a lack of showing, bringing, or pointing out objects of interest to other people).
A lack of social or emotional reciprocity.

(B) Qualitative impairments in communication as manifested by at least one of the following:

Delay in or total lack of, the development of spoken language (not accompanied by an attempt to compensate through alternative modes of communication such as gesture or mime).
In individuals with adequate speech, marked impairment in the ability to initiate or sustain a conversation with others.
Stereotyped and repetitive use of language or idiosyncratic language.
Lack of varied, spontaneous make-believe play or social imitative play appropriate to developmental level.

(C) Restricted repetitive and stereotyped patterns of behavior, interests and activities, as manifested by at least two of the following:

Encompassing preoccupation with one or more stereotyped and restricted patterns of interest that is abnormal either in intensity or focus.
Apparently inflexible adherence to specific, nonfunctional routines or rituals.
Stereotyped and repetitive motor mannerisms (e.g. Hand or finger flapping or twisting, or complex whole-body movements).
Persistent preoccupation with parts of objects.

II. Delays or abnormal functioning in at least one of the following areas, with onset prior to age 3 years:

(A) Social interaction.
(B) Language is used in social communication.
(C) Symbolic or imaginative play.

III. The disturbance is not better accounted for by Rett's Disorder or Childhood Disintegrative Disorder.

Source: Diagnostic and Statistical Manual of Mental Disorders; Fourth

Qualifications to Assess:

The qualifications for being able to diagnose a child under the DSM-IV criteria and being able to assess a child for special education eligibility may be different. Generally, if a school psychologist or other assessor for the school district is using the term "diagnose" you should ask for information about their qualifications to do so, and about whether they were evaluating in order to ascertain a "diagnosis" or a disability as defined in educational criteria.

Meaning of "Adverse Effect on Educational Performance"

The IDEA requires consideration of whether the student's Autism "adversely affects educational performance." This in turn becomes something up for interpretations, and given that many states have also not clearly defined the meaning of either "adverse effect" or "educational performance," it becomes the subject of dispute between parents and school districts. The term "adverse effect" has been noted not to require evidence of a "significant impact" on educational performance in some cases, while others have noted that it requires more than "slight impact" on educational performance. The term "educational performance," which seems pretty straightforward, can actually be even more tricky. Again, this is an area where you will have to investigate your state laws to see how "educational performance" is defined.

What may be included in "educational performance?" The obvious answer is academic skills / achievement. However, it could possibly also include non-academics such as behavior, social skills, communication skills, interactions with peers, etc. If you think about this, it makes perfectly logical sense. Ask any teacher what children are expected to learn and do in class, and the list will undoubtedly include appropriate classroom behaviors and learning to get along with others. Look at your state's educational content standards, and there are likely to be ones related to communication and listening skills. Take a look at your child's report card carefully, and you'll notice "citizenship" or "effort" scores that are likely related not to what academic skills were performed, but how your child behaved and interacted in the classroom. All of these things are part of the educational environment and expectations for kids, and there is an argument to be made that this makes them part of what should be considered in "educational performance."

Eligibility under the category of "Developmental Delay"

2011-09-22T12:57:00.000-07:00

Understanding the eligibility category that is designated on your child's IEP is important because it enables you to come from the same "starting place" as an IEP team. With so many categories and "labels," it can definitely be confusing, particularly for parents who are new to the "system." For preschool aged students, understanding the longer term relevance of the category designated is also important.

The IDEA allows for eligibility under the category of "Developmental Delay," which is a unique category with different rules than the other categories, and only applies to a particular age group.

Developmental Delay as an eligibility category is an option.

States can choose to recognize DD as an eligibility and create guidelines for determining eligibility under this category. Then, if the state has set forth DD as an option, individual school districts can choose whether to adopt DD as a category. The state cannot force the District to adopt DD for eligibility purposes, but if the state itself doesn't adopt DD, then the school districts are not allowed to use that category. (The 1997 amendments of the IDEA changed the provisions related to Developmental Delay to make the adoption of this category in the discretion of both the SEA and the LEA, rather than solely in the discretion of the SEA). If the state chooses to adopt DD as an eligibility category, then a school district that chooses to use this category must apply the state's definition of DD and the state's determination of age range. A district cannot deviate from the definition of developmental delay or the age range adopted by the state. 34 C.F.R. section 300.111(b)(3).

Definition of Developmental Delay

The IDEA: Developmental delay includes a student who is experiencing developmental delays as defined by the state and as measured by appropriate diagnostic instruments and procedures, in one or more of the following areas: physical development, cognitive development, communication development, social or emotional development, or adaptive development. 34 C.F.R. 300.8(b)(1).

Of course, as stated above, the states have the power to define "developmental delay," including adding details to the definition above, or setting the specific date range that is covered by this category. Included below is a list of the details / criteria from California's definition of DD, since that is the one I am familiar with, as well as a few others I've been able to locate.

State: California
Legal Citation: Title 5, California Code of Regulations, section 3031
Age Range: through age 4 years and nine months
Criteria: There are three ways to meet the criteria. (1) Child must be functioning at or below 50% of his / her chronological age level in any one of the identified skill areas (gross or fine motor, receptive or expressive language, social or emotional development, cognitive development, visual development); or (2) Child must be functioning between 51% and 75% of his / her chronological age in any two of the identified skill areas (see above); or (3) Child has a disabling medical condition or congenital syndrome which the team determines has a high predictability of requiring intensive special education services (i.e. "at risk" category).

State: Maryland
Legal Citation: COMAR 13A.05.01.03B(69)
Age Range: school districts have the option of utilizing the DD category for students age 3 to 5, or for students up to any age not exceeding 9.
Criteria: There are three ways to meet the criteria - (1) Child has 25% or greater delay in adaptive, cognitive, communicative, emotional, physical or social development as measured and verified by appropriate diagnostic instruments and procedures; or (2) Child has atypical development or behavior, which is demonstrated by abnormal quality of performance and function in one or more of the specified areas, and which interferes with current development and is likely to result in subsequent delay; or (3) Child has a diagnosed physical or mental condition (elsewhere defined in the statute) which has a high probability of resulting in a developmental delay, including students with sensory impairments inborn errors of metabolism, microcephaly, fetal alcohol syndrome, epilepsy, Down Syndrome, and other chromosomal abnormalities.

State: Wisconsin
Legal Citation: Wisconsin Administrative Code, PI 11.02 (11)
Age: through age 5 or "below the age for compulsory education"
Criteria: (1) First, all other suspected areas of eligibility must be ruled out; (2) Child must demonstrate delays in development that significantly challenge the child in two or more of five specifically identified "major life activities" including: physical activity in gross motor skills; cognitive activities; communication; emotional activities; and adaptive activities; and (3) These delays must be documented via quantitative and qualitative measures.

What's Important to Know about the Developmental Delay Category

It's important to realize that based on the IDEA and your state's regulations, there may be a "cut off date" for eligibility under the DD category. Some school districts interpret this to mean that a child is to be automatically exited from special education at that age. This isn't an accurate interpretation or appropriate approach. Rather, if a child's sole category of eligibility has been under DD, then the school district should reevaluate before the "cut off age" in order to determine if the child meets the criteria in another area. Remember - school districts are obligated to assess a child in all areas of suspected disability, so the reevaluation should be sufficient to identify other possible areas in which the child may have needs that require special education and related services.

May 12th Screening of Wretches and Jabberers movie!

2011-05-09T10:54:00.000-07:00

Wretches and Jabberers
100 Cities: One Night for Autism

On May 12, 2011, at 7:30pm, screenings of the movie Wretches and Jabberers will be taking place in many different locations as part of "100 Cities: One Night for Autism." The movie is about two men with Autism who embark on a global quest to change attitudes about disability and intelligence. The film follows these two men as they explore local cultures, reunite with old friends, make new friends and acquaintances, and tackle public perceptions about Autism.

Here in the Los Angeles Area, the law firm Newman.Aaronson.Vanaman will be one of the hosts for the 100 Cities: One Night for Autism screening event. NAV will play host to the screening taking place in Glendale, California. It is a great opportunity to spend an evening with others in the special education community, enjoy a great, and inspiring, movie, and show your support for Autism Awareness! We really hope to see you there!

Here's the Info:

Wretches and Jabberers
Host: Newman.Aaronson.Vanaman
Where: Glendale Mann Exchange 10
128 North Maryland Avenue
Glendale, CA 91206
When: Thursday, May 12th at 7:30 pm

Online Ticketing at either of these two cites
(be sure you choose the Glendale screening specifically) -
www.movietickets.com
www.screenvision.com

p.s. leave a comment here on the blog if you plan to attend!

Call to Action: Save the Lanterman Act!

2011-03-16T15:52:00.000-07:00

The following is a message from the ARC and UCP CA's collaborative efforts to save the Lanterman Act in California. Please make phone calls to your state legislators today to try and save the important programs that the Lanterman Act provides to children and adults with disabilities here in California!

Action Alert: The Arc and UCP CA Collaboration

Dear Friends,

Our community's overwhelming turnout in the Capitol and numerous calls and visits to legislators, asking them to save the Lanterman Act, paid off. The Legislature so far has rejected most of the developmental services service cuts that the Brown administration proposed.

But the fight continues. We need your advocacy again -- this morning.

Here's where we stand. The Legislature's budget committees, with both Democrats and Republicans voting for us, reduced the size of the cut to community services for people with developmental disabilities by $386 million. We are all working to sustain our system within these remaining cuts but we are asking you to help us fight the Brown administration's process for achieving $174 million of the cuts in state funds.

The administration wants $174 million to come from purchase-of-service "standards," or "best practices" as the Legislature has started calling them. This idea has been rejected repeatedly by the legislature and opposed by every community advocacy group in years past. While standards and best practices sound good they are actually cost cutting measures to that will change service: (1) eligibility, (2) duration, (3) frequency, (4) rates, (5) provider qualification, etc. for everyone, establishing standard arbitrary limits as opposed to our current method of determining needs through the person centered IPP or IFSP.

The Legislature is in recess and will vote soon on the state budget and bills to cut spending to balance the budget. One of the bills, AB 98, would direct the administration (specially, the Department of Developmental Services) to develop "best practices" and recommend them to the Legislature by May 15. There are two calls I'm asking you to make before then to help head off that threat -- one to each of your two local state legislators, your state senator and assemblymember.

If you don't know who they are, go to http://capwiz.com/thearc/state/main/?state=CA&view=myofficials , enter your ZIP code, scroll down to "state senators" and "state representatives," and click on their names.

If you already have talked to staff members in your legislators' local or Capitol offices, call those staff members again. Otherwise, call their Capitol offices.

Here is what you might say to each of them

Ask to talk to someone about the developmental services budget.

Write down the staff member's name.
Introduce yourself, give them you address, and tell them why you care. For example, if you're the parent of someone with a developmental disability, say so.
Tell them that you are against Section 1 of Assembly Bill 98, the developmental services budget "trailer bill" (they'll know what that means). That's the section about "best practices." Ask that the legislator try to get it removed from the bill.

Even more important, whether or not Section 1 stays in the bill, ask the legislator to make a statement when the bill comes up for discussion today. Ask that the legislator say, when the Department of Developmental Services presents its recommendations for "best practices to the Legislature on May 15, the Legislature should consider the community organizations' alternatives for ways to make savings in the budget while doing less damage to the IPP than the administration's recommendations would likely do. The idea is to serve notice now that the Legislature will consider our community's recommendations equally with the administration's.

I know this is complicated. I wish I could make it simpler. I think that, if you stick to the five things I've suggested, your legislators will get the message. We've been working hard here in Sacramento to get this message to them since the Assembly Bill 98 came out yesterday.

If you want to read the bill for yourself, go to www.leginfo.ca.gov/pub/11-12/bill/asm/ab_0051-0100/ab_98_bill_20110314_amended_sen_v98.html . Section 1 starts on page 5.

Thank you for your advocacy.

Greg

Greg deGiere

Public Policy Director

The Arc and United Cerebral Palsy in California

1225 Eighth Street, Suite 350

Sacramento, CA 95814

Mental Health Services Update

2010-12-01T15:29:00.000-08:00

On November 29, 2010 the California Legislature urged the California Court of Appeal to directly take up California School Boards Association v. Commission on State Mandates, which would otherwise first have to come up on appeal from a trial court.

In the amicus curiae letter, submitted by the California Office of Legislative Counsel, legislative counsel Diane F. Boyer-Vine and Chief Deputy Jeffrey A. DeLand, attorneys for the California Legislature, assert four key points:

1. As a recipient of federal IDEA funding, California is obligated by federal law to provide necessary mental health services to students with exceptional needs.

2. California counties' statutory obligation to provide mental health services is a state mandate that the Legislature is constitutionally directed to either fully fund or suspend each fiscal year.

3. The suspension of a mandate "in a manner prescribed by law" requires that the mandate be identified by the Legislature for suspension in the annual budget act and cannot result from the governor's statement in a veto message.

4. The governor's statement of suspension of mental health services mandates must be declared invalid without further delay, to avoid continuing confusion and harm to local governments and to students with exceptional needs

This lawsuit, filed by the CSBA and two school districts on November 9, was the second filed against Governor Schwarzenegger since he cut the funding for the services on October 8. The lawsuit alleges that the Governor overstepped his authority by vetoing funding for a state school program that provides mental health services to students and that eliminating the program requires a two-thirds legislative vote under Proposition 1A. The school districts involved in the lawsuit are Los Angeles Unified School District and Manhattan Beach Unified School District.

Breaking Down the IEP: Special Factors

2010-11-04T15:11:00.000-07:00

In addition to the information that must be considered when developing any IEP document, and in addition to the required IEP content, the IDEA requires the IEP team to take into consideration "special factors" in specifically designated circumstances. Those situations give rise to additional information that often must be addressed and included in the IEP document.

Under 20 U.S.C. section 1414(d)(3), Special Factors to be considered by the IEP Team include the following:

Behavior needs and behavioral interventions

"In the case of a child whose behavior impedes the child's learning or that of others, [the IEP Team shall] consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior." 20 U.S.C. section 1414(d)(3)(B)(i).

In consideration of this special factor, the IEP team first has to determine whether the child's behavior impedes his/her learning or that of others. This determination can be based on data from a variety of sources, including teacher input, observational data, or an assessment in this area, such as a Functional Behavior Assessment (FBA). A child's behavior can be determined to "impede" learning based on a number of reasons. If the child's behavior results in removal from class because of disciplinary reasons, this may "impede" his/her learning because he/she is not available in the classroom to recieve instruction. If the child's behavior is disruptive, it may impede the learning of others because they lose instructional time. The team's determination with regards to this issue should be clearly documented within the IEP, so that information regarding what behaviors specifically exist and how they impede the learning of the child or others is clear to all of those developing and implementing the IEP.

Once the determination is made that behaviors exists that impede the learning of the child or others, then the IEP team is mandated to consider the use of strategies and supports to address that behavior. The IDEA refers to "positive behavior interventions and supports" as well as "other strategies."

Language Needs

"In the case of a child with limited English proficience, consider the language needs of the child as such needs relate to the child's IEP." 20 U.S.C. section 1414(d)(3)(B)(ii)

Instruction in Braille

"In the case of a child who is blind or visually impaired, [the IEP Team shall] provide for instruction in Braille and the use of Braille unless the IEP team determines, after an evaluation of the child's reading and writing skills, needs and appropriate reading and writing media (including an evaluation of the child's future needs for instruction in Braille or the use of Braille), that instruction in Braille is not appropriate for the child." 20 U.S.C. section 1414(d)(3)(B)(iii)

Communication needs

The IEP Team shall "consider the communication needs of the child, and in the case of a child who is deaf or hard of hearing, consider the child's language and communication needs, opportunities for direct communications with peers and professional personnel in the child's langauge and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the child's language and communication mode." 20 U.S.C. section 1414(d)(3)(B)(iv)

Assistive Technology

The IEP Team shall "consider whether the child needs assistive technology devices and services." 20 U.S.C. section 1414(3)(B)(v).

Assistive Technology services under the IDEA means any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device. See 20 U.S.C. 1401(2); 34 CFR 300.6. Assistive Tecnology devices are pieces of equipment or other items utilized to maintain or to improve the child's functional capabilities and enable them to access their learning environment and the curriculum. An AT device can be something high-tech, like advanced computer softward or devices, or something as low-tech as a pencil grip.

The IEP team is required to consider the child's unique needs and make a determination regarding whether the child requires AT. If the child does require AT, this must be documented within the IEP. It may not be necessary for the District to write in the exact device name, but enough information should be included to specify what type of device is to be used and what purpose it will serve, as well as what services will be provided to the child (including frequency and duration) related to the device.

News: Stipulated TRO Issued In AB 3632 Case

2010-11-03T12:00:00.000-07:00

Educationally-related mental health services to continue, despite Governor's veto and suspension of mandate

A class action lawsuit was filed last week by the collaborative forces of various public interest law organizations in Los Angeles in response to the Governor's line item veto of funding for mental health services and suspension of the AB 3632 mandate.

More information about this issue:
Our previous blog posts: News: AB3632 Suspended... Mental Health Services in State of Chaos: Part 1... Mental Health Services in State of Chaos: Part 2...
Press Release about the Class Action (on Disability Rights California's webpage)
Public Counsel's story about the class action (on Public Counsel's webpage)
The complaint filed in the class action

As part of the class action litigation, Plaintiffs sought a Temporary Restraining Order (TRO) against various defendants. The Plaintiffs sought an order to require the state department of education (CDE) to take certain actions to monitor and track changes in local policies and practices related to mental health services, exercise its authority under the law to compel local education agencies (i.e. school districts) to ensure that students receive mental health services without delay or interruption, and disburse federal IDEA funds including those specifically delineated for mental health services on the same basis as they were disbursed prior to the Governor's actions on October 8th. Additionally, as to the "local" defendants, including the LA County Department of Mental Health, Plaintiffs sought a TRO requiring the continued provision of mental health services, including assessments, attendance at IEP meetings, and providing services and funding residential placements, at the same level as was previously provided in accordance with the procedures existing prior to the Governor's veto.

State Department of Education (CDE) Action and Agreement to Disburse Funds

On October 29, 2010, Jack O'Connell, State Superintendent of Schools, announced that CDE would be releasing $76 million in federal IDEA funds reserved for state level activities to county offices in order to fund educationally-related mental health services through county mental health agencies. Thus, these funds would be available to ensure the continuation of services mandated by federal law for students with disabilities.

In announcing this action, O'Connell stated "I refuse to let the Governor's misguided action prevent severely disabled students from getting the mental health care they need from qualified providers... The Governor's veto does not override federal law; School districts must still implement the IEP... yet most districts don't have the expertise to provide psychiatric and medical management of necessary medications and other mental health services..." See California Department of Education News Release; October 29, 2010 http://www.cde.ca.gov/nr/ne/yr10/yr10rel122.asp

Stipulated TRO for Provision of Services by LA County DMH

Yesterday, November 2, 2010, the federal judge in the U.S. District Court for the Central District of California signed a stipulated Temporary Restraining Order in this matter. Because of the assurances of disbursement of reserved funding by the CDE, funding would be available to LACDMH to provide services in accordance with the practices and procedures for distribution of funds existing before October 8, 2010. Thus, the stipulated TRO provided that LACDMH would "resume and continue to provide and monitor educationally-related mental health services... attend IEP meetings and authorize services, and complete assessments..." either until the "reserved" funding runs out or until January 14, 2011, whichever occurs first.

What does this mean?

The issue regarding funding for educationally related mental health services in California is by no means resolved. However, locally in Los Angeles County, the process for providing these services through a student's IEP will theoretically return to the same practices and procedures as before the veto by the Governor, and the subsequent chaos of the past few weeks, occurred. At least for the time being - the "reserved" funding will not last forever, and the long term problem still requires a resolution. For students and families throughout California, Mr. O'Connell's action is a step in the right direction towards ensuring stability in the provision of much needed services during this time of confusion. It means that funds will be disbursed for the provision of services through the counties. Additionally, CDE has continued to remind local school districts of their ultimate responsibility to provide students with a FAPE, and the CDE has agreed to issue directives regarding these obligations in an attempt to ensure and oversee compliance. Within the context of the class action, the Plaintiffs involved have agreed to inform CDE of any information that they obtain regarding non-compliance by a local school district of its obligation to provide or pay for related mental health services when a non-educational agency fails to do so.

For more information, please check out the following links:

Order on Stipulated TRO (as related to local defendants)

Stipulation and Notice of Withdrawal (as related to agreement with state defendants)

Breaking Down the IEP: Postsecondary Goals & Transition Services

2010-10-26T15:07:00.000-07:00

For a student who is 16 or older, or who will turn 16 while this IEP is in effect, the IDEA requires that the written IEP document include:

"(aa) appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills; (bb) the transition services (including courses of study) needed to assist the child in reaching those goals; and (cc) beginning not later than one year before the child reaches the age of majority under State law, a statement that the child has been informed of the child's rights... that will transfer to the child on reaching the age of majority..."
20 U.S.C. section 1414(d)(1)(A)(VII).

"The big picture"

Transition planning is arguably one of the most important parts of the special education process. When enacting the IDEA, Congress recognized that:

Disability is a natural part of the human experience and in no way diminishes the right of individuals to participate in or contribute to society. Improving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent living and economic self-sufficiency for individuals with disabilities.

20 U.S.C. section 1400(a)

The very first "purpose" of the IDEA as contained in the statute states:

to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.

20 U.S.C. section 1400(d)(1)(A).

Thus, the IDEA places importance on educating students with disabilities so that they are prepared for "further education, employment, and independent living," and in order to allow them to enjoy "full participation, independent living and economic self-sufficiency" in society. Without appropriate transition planning, these purposes could not be met.

When does this apply?

The requirement that the IEP document contain postsecondary goals and transition services begins at age 16. This means that the IEP that will be in effect at the time that the child turns 16 will need to meet these requirements. It is not OK for the District to wait until the next IEP review taking place after the child's 16th birthday to add postsecondary goals and transition services to the IEP.

What are postsecondary goals?

Postsecondary goals are measurable goals related to the student's prospective outcomes for after high school - how and where the student will live, work, engage in the community, and receive further education. Postsecndary goals should be based upon transition assessments and take into consideration the student's strengths and weaknesses. In developing postsecondary goals for the IEP, the student's preferences and long-term plans become more relevant and important to consider. The IDEA specifies that transition planning be "results-oriented," so it is appropriate for post-secondary goals to look forward to the results or outcomes that the student desires and which are appropriate for that individual students. Goals can be related to further education, empolyment, independent living, community participation, etc. Setting clear and measureable postsecondary goals will allow the IEP team to determine what transition services, related services, and specialized education will be necessary to achieve those goals.

What are transition services?

The IDEA defines transition services as

"A coordinated set of activities and services for a child with a disability that
(1) is designed to be within a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability or to facilitate the child's movement from school to post school activities, including postsecondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;
(2) is based on the individual child's needs, taking into account the child's strengths, preferences and interests; and includes (i) instruction, (ii) related services, (iii) community experiences, (iv) the development of employment and other post-school adult living objectives, and (v) if appropriate, acquisition of daily living skills and provision of a functional vocational education."

News: AB 3632 Mandate Suspended; Mental Health Services in a State of Chaos

2010-10-22T15:12:00.001-07:00

Governor’s Line Item Veto Suspends AB 3632 Mandate for Mental Health Services in California

On October 8, 2010, Governor Schwarzanegger signed the state’s budget for fiscal year 2010-2011, while using his line item veto to cut billions of dollars to state funded programs. Among the programs affected are mental health services provided to students with disabilities under what is known as the AB 3632 Mandate. The Governor used his veto to eliminate approximately $133 million in funds apportioned for the state to reimburse County Mental Health agencies for mandated services they have already funded. At the same time, the Governor suspended the AB 3632 mandate going forward.

AB 3632 was enacted in 1984 in order to assign County Mental Health departments the financial responsibility for funding mental health services required pursuant to students’ IEPs. Under AB 3632, County Mental Health departments also funded residential placements for students who were eligible under the category of “Emotionally Disturbed” and required residential placement in order to receive an appropriate special education program.

The Governor’s action has been called “unconscionable” by many, and leaves school districts, SELPAs, County Mental Health departments, providers, residential treatment facilities, and IEP teams in a complete and utter state of chaos. Parents and students are unfortunately likely to be immediately and negatively impacted.

Suspending AB 3632 services does not eliminate mental health services or residential placements, but instead returns the responsibility for these state mandated services to the local education agencies (school districts). However, as each County Mental Health department and each School District reacts to the chaos individually and decides what action to take, there will almost certainly be disruption in services for many students.

Please read more in depth information on this blog at:

Mental Health Services in State of Chaos in California: Part 1 - What Happened? (http://a2zeducationaladvocates.blogspot.com/2010/10/mental-health-services-in-state-of.html)

Mental Health Services in State of Chaos in California - Part 2: What Happens Next? (http://a2zeducationaladvocates.blogspot.com/2010/10/mental-health-services-in-state-of_22.html)

Already, litigation on this issue has begun. On October 21, 2010, in Los Angeles, a class action lawsuit was filed in federal court by Public Counsel, Disability Rights California, Mental Health Advocacy Services, and Gibson, Dunn & Crutcher, in order to "preserve lifeline services for more than 20,000 students." (You can find read the press release on Disability Rights California's website (http://www.disabilityrightsca.org/) as well as the complaint filed in federal court).

Mental Health Services in State of Chaos in California - Part 2: What Happens Next?

2010-10-22T12:43:00.000-07:00

On October 8, 2010, Governor Schwarzanegger used his line item veto to cut billions from the state budget for fiscal year 2010-2011, including $133 allocated to County Mental Health agencies for AB 3632 services. Please read Part 1 in this Series on this blog for more information about the suspension of the AB 3632 mandate.

The Governor has made it clear that he intended to suspend the mandate for AB 3632 (mental health services) in California. AB 3632 allocated responsibility for the provision of mental health services pursuant to a child's IEP, as well as residential placements for emotionally disturbed students, to county mental health agencies.

Mental health services under AB 3632 included

individual or group psychotherapy
collateral services
medication monitoring
intensive day treatment
day rehabilitation
case management services

Title 2, California Code of Regulations, Section 60020(i).

Outpatient services are provided at a clinic or public DMH agency, or may be located on a school campus in some circumstances. "Intensive day treatment" and "day rehabilitation" services are intensive mental health services provided in community based or residential treatment program settings.

Additionally, residential placements were funded under the AB 3632 mandate for students who were eligible under the category of "emotional disturbance" and who required a residential educational placement in order to receive an appropriate special education program. (*note: residential placements for students under other categories of eligibility were already the responsibility of the school districts / local education agencies).

Residential placement is an out-of-home placement in a residential treatment facility with a school program certified as a Non Public School (NPS) and appropriate mental health and day rehabilitation services as part of the program. *Residential placements are on the "continuum of placement options" under the California Education Code.

The Governor's suspension of the mandate has caused chaos, confusion, and controversy throughout the state. Because mental health services are mandated by federal law (the IDEA) to be provided as part of a student's IEP if they are required for that student to access an educational benefit, the suspension of the California-specific AB 3632 mandate does NOT eliminate mental health services for students who require them. Nor does the Governor's action mean that residential placements will, as a matter of course, no longer be available for students in California.

The State of Chaos for County Departments of Mental Health

On October 12, 2010, the Executive Director of the state Mental Health Directors Association sent a memo to all County Mental Health agencies regarding the current state of AB 3632 services. The memo addresses questions arising from the suspension of the mandate, such as whether the Governor actually had the legal authority to suspend a mandate. Additionally, it indicated that there was uncertainty about factors such as the date on which the suspension was effective (October 8th or retroactive to the start of the fiscal year), whether / how counties will ever be reimbursed for the costs incurred from 2004 forward for providing services, and how funding will be accessed / provided for transition of services to school districts.

The Memo set forth "Issues/Actions" for counties to consider, discussing the pros and cons of each action. Subsequently, County Mental Health agencies across the state have each interpreted / implemented these "actions" individually, giving rise to a true state of confusion across California.

It appears to be fairly consistent that most County Mental Health agencies in Southern California are no longer accepting any new IEP referrals from school districts, stating that they do not have the legal right or responsibility to be involved in the IEP process. Los Angeles County Department of Mental Health (LACDMH) and San Diego County Department of Mental Health have reportedly taken this position. Additionally, counties that have taken this action are in most cases refusing to attend IEP meetings or participate any further in cases in which the DMH assessment had already occurred but the IEP meeting had yet to be held.

Reportedly, County Mental Health agencies have also been communicating with school districts, SELPAs, and contracted-residential placement staff, with inconsistent statements made. In some reports, Counties have indicated that students already in residential placements will continue to be funded through the end of this year, but in other reports, Counties have indicated that students will no longer be funded in residential placements effective immediately.

What is truly the "unknown" is what action County Mental Health agencies have taken / are taking to work with SELPAs and school districts to determine how to effectively transition students' services to the school districts.

The State of Chaos for School Districts / Local Education Agencies

Related services and appropriate placements (even residential placements) must be provided to a student as part of a Free Appropriate Public Education in order to meet the child's unique needs and provide them with educational benefit. If mental health services are required as a part of FAPE, they must be provided. It has always been the case that even though California allocated funding-responsibility to county mental health agencies under the AB 3632 mandate, the state education agency (CDE) through the school districts / local education agencies remained ultimately responsible for ensuring that the child was provided with a FAPE. See 20 U.S.C. sections 1400(8), 1401(22); 1412(a)(11)&(12); 34 C.F.R. sections 300.341, 300.360; California Education Code section 5600 & 56031; California Government Code sections 7570 et seq.

As courts have stated;

When disputes between agencies over funding arise, the school district must "ensure that the placement is at no cost to Parent, as provided for in 20 U.S.C. section 1412(a)(10)(B)(i). In other words, if there is to be a fight over payment, it is to be between the [school district] and [the other public agency], not between the parent and the [agency]."

School Board of Lee County Florida v. E.S., 561 F. Supp. 2d 1282 (M.D. Fl. 2008).

"Compliance with duties under the IDEA is a serious matter... Thus, it is not surprising that Congress would impose a duty on local education agencies to continue services to students if local a mental health agency refused to do so."

County of Tuolumne v. Special Education Hearing Office, James G, et al, 45 IDELR 15 (C. Ct. App. 2006) (citing 20 U.S.C. section 1412(a)(12)(B)(ii)).

All related services necessary for a child to benefit from special education / required for the child to make progress towards IEP goals, are the responsibility of the child's school district. Provision of an appropriate placement, including, when required, a residential placement, is also the responsibility of the child's school district. These responsibilities fall within the general duty of the school district to make a FAPE available to each child within its jurisdiction.

Thus, school districts in California are now left with the obligation and responsibility to continue to provide mental health services and residential placements, even though just a few weeks ago the funding responsibility fell on another agency. School districts are not permitted to refuse to provide services pursuant to an IEP, or to refuse to include services that are necessary in the IEP when it is developed, simply because a funding source is not identified. If the county mental health agency refuses to fund services, or ceases funding previously funded services, for any reason (such as the current suspension of the mandate), the school district must assume responsibility.

On October 18, 2010, the California Department of Education, Special Education Division, issued a memorandum to all SELPAs, County Offices of Education, the Advisory Committee on Special Education, Nonpublic School Administrators, and "Interested Individuals, Agencies and Organizations" addressing the present issues. In that memo, CDE called the Governor's actions "unconsionable" and indicated that the suspension of the mandate had created a "state of chaos" in California.

The intention of the memo was to "remind all special education local planning areas (SELPAs), county offices of education (COEs), and local education agencies (LEAs) [school districts] of their responsibility to provide mental health services to students with disabilities." The CDE cited to California Government Code sections and the IDEA. It stated "If a public agency other than an educational agency fails to provide or pay for the special education and related services... the LEA (or State agency responsible for developing the child's IEP) must provide or pay for these services to the child in a timely manner." (quoting 34 C.F.R. section 300.154(b)(2).

Despite this reminder, and the clear legal mandate from the federal law, a state of confusion has definitely ensued, and many school districts are reportedly telling parents that residential placements will no longer be offered, IEP meetings will not be held to discuss needed mental health services, etc.

The State of Chaos for Parents, Students and the Community

Many strange things have happened since the Governor's actions on October 8th. Some parents have been told by school districts (or by residential school staff, who were told by school districts or mental health agencies) that all residential placements would cease to be funded immediately. Other parents have reported that they have heard that the school districts won't continue to fund the residential placements if the child can "survive" outside of that setting. IEP meetings that were scheduled to review assessments by County Department of Mental Health professionals, and thus to determine necessary mental health services, are reportedly being canceled across the state.

School districts and IEP teams in California are so used to having the AB 3632 mandate, that they have forgotten the fact that residential placements and mental health services are not something "special" or "unique" to California. Thus, some school districts are understandably confused about how to make the determination of necessary services and placement under the genre of "mental health."

The community as a whole is certainly affected by the chaos, and litigation on these issues will likely be plentiful. It will take the collaborative efforts of non-profit legal services offices and the community of special education attorneys, advocates and parents, likely working with school districts, mental health agencies, etc, to address this issue in the long term. On October 21, 2010, in Los Angeles, a class action lawsuit was filed in federal court by Public Counsel, Disability Rights California, Mental Health Advocacy Services, and Gibson, Dunn & Crutcher, in order to "preserve lifeline services for more than 20,000 students." (You can find read the press release on Disability Rights California's website, as well as the complaint filed).

Here are some final points to keep in mind if you are being told that services are going to stop, that placement is going to end, etc:

1. Most importantly, remember that ANY change to your child's IEP, including the placement and services he/she receives, cannot be done unilaterally / outside of the IEP process. At the least, an IEP meeting should be held and/or you should be given prior written notice of any proposed changes, after which you have the right to disagree with the proposal. You shouldn't sign an "administrative addendum" or other IEP document that is simply sent to you stating that residential placement is no longer available.

2. If a service is listed in an IEP already (i.e. outpatient mental health services, residential placement), that service / placement is, by definition, related to the student's education. No matter what agency was funding them before, services that were not related to a child's education and necessary for the child to make progress should not have been listed in the IEP. Thus, the school district's should not be able to argue that they are not responsible for mental health services or residential placement because those things were not "educationally related."

3. If a school district has made a referral for assessment by County Mental Health under AB 3632, and now that assessment will not go forward because of suspension of the mandate, the obligation to evaluate the child in this area falls back onto the District. The school district is obligated to evaluate a child in all areas of suspected disability, and the referral can be argued to be indication that the district acknowledges this as an area of suspected disability / an area that needs to be assessed.

4. A district's unilateral determination to stop services or placement due to the lack of funding through the department of mental health may give rise to a compliance issue, which can be addressed through a compliance complaint filed with the CDE, or to due process issues, which can be addressed by requesting a due process hearing with the Office of Administrative Hearings. Likely, there will be an influx of these types of cases in the coming weeks.

Finally, this is certainly all confusing and chaotic, and school districts, mental health agencies, providers, and parents are left to figure out on a case by case basis what will happen next. If you are impacted by this and fear that services will be eliminated, you should consult with a special education attorney for assistance.

Mental Health Services in State of Chaos in California: Part 1 - What Happened?

2010-10-20T12:35:00.000-07:00

The Individuals with Disabilities Act (“IDEA”) requires that students with disabilities be provided with a “free appropriate public education,” which includes provision of related services necessary for a child to benefit from his or her special education. Related services includes “mental health services,” and since “FAPE” must be provided at “no cost to parents,” this obligates the educational agency to fund mental health services required to allow the student to benefit from their education.

In California, prior to 1984, concerns arose that the federal mandate for provision of appropriate mental health services as a part of a student’s IEP was not being implemented effectively. The mental health needs of students with disabilities were largely ignored, sometimes until more extreme interventions, like the juvenile justice system or hospitalization, were required. There was also a concern regarding the lack of coordination of services between school districts and other public agencies. Based on these concerns, the state legislature enacted what is known as AB3632, assigning the responsibility for mental health services to the state department of mental health, through the county departments of mental health. Thus, AB3632 assigned responsibility for mental health goals on a child’s IEP, mental health services, and even residential placements for seriously emotionally disturbed students, to an agency other than the local educational agency (i.e. school district) even though these components of the IEP are related to the student’s receipt of FAPE.

Over the past several years, much talk has occurred regarding the funding for AB3632 services. It has almost always been known to be an “underfunded” mandate. Counties estimate an amount in the hundreds of millions in terms of the money that has been spent on mandated services that has not been reimbursed by the state in accordance with the provisions of AB3632.

Enter Governor Schwarzenegger.

In 2005, the Governor’s budget proposed to suspend the AB3632 mandate. Advocacy groups, school districts, and even county mental health agencies argued against suspension noting that confusion and chaos would ensue if the obligation to fund and provide mental health services suddenly was shifted back to school districts without an appropriate transition. It was noted that school districts were not prepared to take on this obligation, that they did not employ the appropriate mental health professionals to provide these services, and that there was an “institutional disincentive for school districts to identify children as having complex and potentially costly mental health service needs if schools become the only agency responsible for meeting those needs.” See “AB3632,” Adolescent Mental Health Policy News, California Adolescent Health Collaborative, April 2005 (www.californiateenhealth.org).

In 2010, the issue arose again. In May 2010, a proposal to revise the AB3632 mandate was contemplated in the California General Assembly. Again, advocates argued that “suspension of AB3632 would most likely result in complete disarray and gaps in services for children as shifts in responsibility for and funding of the services occur.” See Letter to Honorable Dave Jones, AB3632 May Revision Proposal – Oppose, Disability Rights California (www.disabilityrightsca.org).

On October 8, 2010, Governor Schwarzenegger utilized his “line item veto” to veto approximately $133 million within the state budget package for reimbursement to County Mental Health for “back claims” of amounts owed to them for providing mandated AB3632 services. At the same time, Governor Schwarzenegger stated that he was “suspending the AB3632 mandate.” Thus, effectively as of that date, county Mental Health is no longer required to provide mental health services to students pursuant to their IEPs, and school districts will now be required to provide these services and placements. No additional funding was allocated in the budget to cover the expenses that will be occurred in order to meet these obligations. (*there is debate regarding whether the Governor could use a "line item veto" to effectively eliminate an entire mandate, which will likely be one subject of litigation in the coming days, weeks and months. Meanwhile, what we know is that in fact, the Governor's intention with this action was to suspend the mandate).

The action has been called by many “unconscionable” and certainly creates a state of chaos for school districts, county mental health agencies, parents, and students. See, e.g., “Governor’s proposal puts kids’ mental health services at risk,” Michael C. Watkins (www.santacruzsentinel.com); “CDCAN Report #190-2010” (www.cdcan.info/node/1357). It is uncertain what the Governor could have possibly believed he was accomplishing by this action. Ultimately, it will not save the state any money to cut out of the budget funding for “mental health services” through AB3632 specifically, as these services are still mandated to be funded. The financial burden will simply shift to the already over-burdened school district, and the state as well as local educational agencies will also likely incur expensive legal fees because of issues arising out of this state of chaos.

Stay tuned to the blog for more information. Tomorrow's postings will cover "What happens next after the Governor's veto?"(the all important question, with somewhat speculative answers).

Removing "Mental Retardation" from Federal statutes

2010-09-29T10:30:00.000-07:00

The U.S. House of Representatives has approved a bill (unanimously!) to strike the words "mental retardation" and "mentally retarded" from many Federal statutes, replacing those terms with the words "intellectual disability" and "individual with an intellectual disability." Read the full text of the bill here.

Within the context of special education laws, the bill will mean that wherever "mental retardation" is referred to (for example, when discussing eligibility categories), that term will be stricken and replaced with "intellectual disability." The same applies to section 504 of the Rehabilitation Act.

The law is called "Rosa's law" and is named for a child with Down Syndrome from Maryland. You can read about Rosa's story, including the inspirational testimony of her brother Nick in a hearing before representatives of the Maryland General Assembly, in this press release from Senator Barbara Mikulski's office, or in ABC News' story about the law and the family that inspired it.

This is only one step, albeit an important one, among many that will be needed to stop the R word. Changing the designation in laws may not stop the use of the R word as a derogatory slang or insult, but it is certainly a step in the right direction in terms of societal awareness.

Call to Action on the Truancy Bill: Part 3

2010-09-28T14:15:00.000-07:00

Truancy Bill Part 3: Sample Letter

Please read Part 1 and Part 2 for more information on this topic, including contact information and instructions for contacting the Governor's office.

Below is a sample letter for parents, advocates, etc to utilize in order to contact the Governor's office about this issue. You can (and should) personalize this letter prior to sending it.

INSERT YOUR CONTACT INFORMATION

INSERT THE GOVERNOR'S CONTACT INFO (See Part 2 of this series)

DATE

Re: SB 1317 / Please Veto

Dear Governor Schwarzenegger:

I am writing to request that you veto SB 1317, the truancy bill authored by Senator Leno. There are already serious penalties for parents who neglect their children, a concept which includes failure to ensure that the child is educated. Since this bill comes into play with a student who has missed 10% of the year to date, depending on the time of year, it could be applied based on a small number of absences. It is vague in defining parent fault: it applies to a parent "who has failed to reasonably supervise and encourage the pupil's school attendance." It does not set forth any exception for parents who are not currently encouraging school attendance for very good reasons. It could easily be interpreted to make absences that do not fall within the narrow excuse categories recognized by law, regardless of the reasons for those absences, a serious offense capable of wreaking financial havoc through large fines and separating families by jailing parents. Students miss school for many reasons, some obviously bad and some of which may represent the best choices in bad circumstances. Their out of school activities range from committing juvenile offenses to caring for sick siblings to watching TV to receiving intensive educational services for 30-40 hours per week at their parents' expense. This bill treats very different types of "truancy" the same. It could easily worsen the problems that lead to absences.
While the theory seems to be that prosecutors will use discretion wisely, it is not realistic to expect that they will be able to investigate reasons for truancy in each case, and this bill does not require them to. Alternatives to punishment are optional. Though the bill does not apply to home schoolers who intend to home school and provide appropriate paperwork from day one, it would greatly endanger parents forced into informal homeschooling by absence of appropriate special education services or by bullying midway through the school year. Districts in special education disputes would attempt to apply it to students who are in tutoring programs that are not certified as schools. This bill would empower administrators who refuse needed services or who dismiss complaints about bullying and harassment without adequate investigation. It would allow oppositional teenagers to create massive legal problems for their parents. It would terrify parents who have good faith, reasonable beliefs that their child needs to be removed temporarily from school until problems are discussed and addressed, and could frighten them out of taking steps which are necessary for their children's progress and even safety.
Please work this budget year on protecting school funding, and figuring out how parents and teachers can work together to do more with less. Please veto this measure which would instead pit schools and parents against each other.

Sincerely,

YOUR NAME

Call to Action on the Truancy Bill: Part 2

2010-09-28T14:00:00.000-07:00

Truancy Bill Part 2: How to get involved and make yourself heard on this issue

Please read Call to Action on the Truancy Bill: Part 1 for information about why this bill would be unjust for parents of students with disabilities.

Contacting the Governor: For this "call to action," Parents, advocates, attorneys and others in the special education community are encouraged to send a letter (see sample in Part 3) by either email or fax, or call one of the office numbers below to provide your input.

1. Email: http://gov.ca.gov/interact#email

2. By fax or phone call to Governor's office in Sacramento:

Governor Arnold Schwarzenegger
State Capitol Building
Sacramento, CA 95814
PHONE: 916-445-2841
FAX: 916-558-3160

3. By fax or phone call to District office across CA

Fresno Office
2550 Mariposa Mall #3013
Fresno, CA 93721
PHONE: 559-477-1804
FAX: 559-445-5328

Los Angeles Office
300 South Spring Street
Suite 16701
Los Angeles, CA 90013
PHONE: 213-897-0322
FAX: 213-897-0319

Riverside Office
3737 Main Street #201
Riverside, CA 92501
PHONE: 951-680-6860
FAX: 951-680-6863

San Diego Office
1350 Front Street
Suite 6054
San Diego, CA 92101
PHONE: 619-525-4641
FAX: 619-525-4640

San Francisco Office
455 Golden Gate Avenue
Suite 14000
San Francisco, CA 94102
PHONE: 415-703-2218

Part 3 of this posting will include a sample letter for your use, courtesy of the California Association of Parent Child Advocacy.

Call to Action on the Truancy Bill: Part 1

2010-09-28T13:20:00.000-07:00

Truancy Bill Part 1: Why the call to action is necessary

Over the past couple of months here in California, Senator Leno's "Truancy Bill" has been a big topic in the world of public education. The bill's well-intentioned point is to "improve efforts to fight truancy," and as an effect of those efforts, hopefully do something to prevent kids from becoming juvenile delinquents. As noble as this sounds, and as much as we need to combat truancy issues in our schools, as written, the serious negative consequences for truancy (including jail time for parents or hefty fines) could be applied in circumstances involving students with disabilities in a harmful and unjust manner.

Take for example some of the following scenarios:

* Parents disagree with the school district's offer of placement and services because they believe that the child requires intensive 1:1 instruction or an ABA (applied behavioral analysis) based program. They remove their child from school for part or all of the school day, providing appropriate notice as required under special education laws, and place their child in a private program at their own expense. Case law recognizes the importance of allowing Parents the opportunity to fund private placements and services, and take the financial risk of seeking reimbursement for those programs, rather than requiring Parents to leave their child in a "potentially inappropriate" setting. This right would be virtually stripped if those Parents would face jail time as a penalty for invoking this process.

* Child with a disability has serious anxiety and depression, and refuses to go to school. Although not physically "sick" in a traditional sense, the child's health and well-being may be affected if he/she attends school with such extreme levels of anxiety, and Parents keep the child home until alternatives can be agreed upon or supports can be put into place. Parents will not be able to make these decisions about their child's welfare under this bill.

* Child with a disability has social/emotional and/or behavioral difficulties that include school refusal. Parents are doing everything they can to attempt to get the child to school or encourage school attendance, but school district officials don't believe they are doing enough. Those Parents may face the penalties called for under this bill.

* Child with a disability has been seriously harassed or bullied by other students because of his/her disability, and Parents have reported the bullying to school officials, who have done nothing in response to prevent the bullying from occurring. Parents do not feel the school is a safe environment because of the physical harm being caused to the child. These Parents would not be able to keep their child home until safety is ensured. Effectively, school personnel who "ignore" such reports of bullying would be empowered to do so.

These are hypotheticals based on scenarios that special education attorneys, advocates and parents see and experience on a regular basis. There is no language in the bill to provide an exception for such scenarios, and the language that is included is vague and easy to misinterpret, misapply, and even abuse. Most alarmingly, perhaps, is the lack of clarity as to what constitutes a "chronic" truancy problem giving rise to the penalties it imposes. Because these penalties are triggered by missing 10% of the school year to date, without further clarification, interpretation could lead to imposition of penalties for a very small number of dates depending on the time of the school year. (For example, 30 school days, or approximately 6 weeks, into the year, a child who had missed only 3 days would be considered chronically truant.)

The current state of this bill is that it has passed the state Senate and House, and is awaiting the Governor's action on it. Thus, this "call to action" is for Parents, advocates, etc in the special education community to contact Governor Schwarzenegger and request that he veto SB1317, the "truancy bill."

Parts 2 and 3 of this posting will include contact information and a sample letter.

Stop the R word

2010-09-27T19:30:00.000-07:00

Here's a little disclaimer / warning about this post before you proceed with reading it. First off, it is about a topic of controversy, and portrays some events that may be upsetting. Secondly, this post is from a much more personal standpoint than the posts on this cite normally are, and it is based primarily on my opinion about this topic and the reasons for that opinion.

I want to share a story that I recently encountered, told to me by someone very close to me who witnessed this happen. It is a story many people will familiarize with.

This person lives in a small town, where he works in a retail store. He happens to have an adult brother with Autism who also has co-existing cognitive delay. He was at work one afternoon when a well-known local came walking in exclaiming:

"You better lock up the store, there's a bunch of retards coming this way!"

He continued to talk in this manner, very loudly, warning the staff to close up shop to prevent these "retards" from coming in. Minutes later, the group of individuals he was referring to came into the store. My friend, the retail sales associate, saw that it was a group of students from the local high school out for a shopping trip as part of their community-based instruction. Many of those students were teenagers he knew from his work with a youth group at a local church.

What was amazing to me was that this one single retail employee in that establishment was the sole person who had seemed to be upset by the comment. Maybe it is because he grew up with a brother with a developmental disability, and so has greater sensitivity, but I would have hoped that a larger slice of society would react negatively to someone actually stating that a store's doors should be closed to a group of citizens because they happen to have disabilities.

Replace the R-word with the N-word in this story, and think it over again. Replace it with "fags" or "queers." Consider the point from that perspective - Anytime you label a group of people in a derogatory manner based on their race, disability, sexual orientation, etc, and actually proclaim that this group of people should be barred from entrance to a public business establishment, that is truly offensive no matter what the identifying "characteristic" (for lack of a better term) of the group is.

The "R-word" has become a term of insult in our society. Through use, derogatory words become part of the vernacular of our everyday language. Our "native language" within our society is developed through use. The vernacular is changing continuously as words are added through their common use. Think of how many times you may have heard the phrase "that's so retarded" or "you're such a retard" in context of something that has nothing to do with actually having an intellectual disability. Such phrases are used to insult someone, by drawing an disparaging comparison to a person who is considered "less than" because of an intellectual disability. This implies that to be "retarded" or "a retard" is something unpleasant, bad, appalling; something to be shunned. Through this use, the "R-word" becomes an insult. It becomes, or has become, a "bad word."

Words really do have power. "Sticks and stones may break my bones, but words will never hurt me" may have been drilled into us as kids, as a mantra to ward off the affects of verbal bullies, but it never seemed to me to have much truth. Words do have power, and words have the ability to hurt. Name calling, derogatory comments, racial remarks, insults, etc can all humiliate a person or cause emotional trauma.

Not only does an insult hurt the person you are insulting, but when the words used are derogatory to a larger group of people, based on their race, disability, religion, sexual orientation, ethnicity, nationality, etc, words perpetuate hate. We use the "R-word" to mean something bad, even despicable, and then when we refer to the actual group of people that the word "retarded" was intended to include, it is now associated with hate, with shunning those people from society.

Here's what I think is the best way to explain this:

Words/speech are the first rung of the "ladder of prejudice," leading to a cycle of hate that perpetuates further and further discrimination. In the first phase, or "rung," people in society engage in derogatory speech against a group of people based on their race, disability, religion, etc. As discussed above, through use this hate speech becomes a part of the accepted vernacular of that society. The next step, and natural progression if you really think about the link here, is avoidance. The words we've used have become derogatory; they carry the connotations of something bad or even dirty. So we as a society avoid the people that these words describe. The third rung is more overt discriminatory acts. At this phase, we have as a society developed the accepted behavior of avoiding certain people, so it is natural that society would accept actual segregation. This is the "not in my backyard" phase. Let's just put "those people" somewhere else; institutions, segregated neighborhoods (concentration camps?). The fourth rung is violence, and here we hope it is no longer behavior that is acceptable to the community at large, but yes, society as a whole has a part in this phase. Violence and physical attack may be engaged in by a small minority of people, but it happens because of the "no one cares anyway" attitude. If society has labeled, insulted, shunned, and segregated certain people, who would believe those people to be protected? The final rung, the extreme, is "extermination." And before you jump to exclaiming that would never happen here, in the U.S., consider the broader meaning and applicability. We aren't just talking about genocide (although that certainly is caused by prejudice and discrimination). Consider the practice of sterilization. Historically, here in the U.S., involuntary sterilization of women with intellectual and developmental disabilities was actually considered acceptable at one time, partly in order to prevent such persons from reproducing more disabled persons.

These theories are commonly discussed in Sociology articles, textbooks and classrooms. You can read another explanation of the "Ladder of Prejudice" or the "Cycle of Hate" on the Stop the R-Word Campaign website, or in this excerpt of a Sociology textbook.

So when I heard about the situation I started this post with, the incident my friend witnessed and experienced, I thought back to these concepts from my college Sociology classes and from law school discussions about equal protection. I thought about what we learn from elementary school onward about how segregation, discrimination, etc is not acceptable. We're "taught" that, but we have so far to go before it is reality. This "incident" is a perfect example of the cycle of hate, in my opinion. Here was a person using a derogatory word to try to insult and make fun of persons with disabilities, in order to marginalize them and shun them from society. He even went so far as to assert that the doors of a public establishment should be shut to them. Sounds like all of the first three "rungs" to me - speech, avoidance, segregation. Degrade people, shun them, separate them from society.

At the end of this, I am writing this because I believe that this isn't just about being overly politically correct, or about anyone being overly sensitive. It is about real prejudice and real hate speech that goes on every day in our society. Maybe for people who don't see, as I do, first hand examples of how non-inclusive our world still can be for people with disabilities, it doesn't seem like a big deal. But I think everyday of a little boy I once knew whose father fought everyday for one simple goal that was never realized, which was for the child to be able to go to his neighborhood school. And I know that discrimination, even segregation, still happens.

So I pledge that I will not use the words "retard" or "retarded" to mean "stupid." I will be careful with my words, and I will try to remember to pay attention when other people use these words, and to ask them to stop.

(Note: the original "R-Word Pledge" can be found here. I hope you will take it too.)

Fast Fact Friday: Temporary Disabilities

2010-09-24T10:00:00.000-07:00

Various circumstances could cause a student to have a disabling condition that is temporary in nature, the most common being broken limbs.

Can a student be eligible for special education and related services if he/she has a "temporary disability?"

Students with temporary disabilities may be protected under section 504 if those disabilities substantially limit one or more major life activities for an extended period of time. Thus, students with temporary disabilities may be entitled to a FAPE under section 504. Because section 504 eligibility focuses on a student's ability to access educational opportunities, factors beyond merely academics must be considered as well. A student with a serious illness, for example, may be unable to access the educational environment without physical accommodations if that student has difficulties walking, climb steps, etc.

It is less likely that a temporary disability would give rise to eligibility under IDEA, however, because of the statutory scheme for eligibility. The IDEA requires that a student have a disability specifically under one of the identified 13 disabling conditions, and that the student require special education and related services because of the disability. A student with a broken arm, for instance, may require accommodations to access the educational environment but it would be difficult to demonstrate that the student required specialized instruction or services.

Fast Fact Friday: Low Incidence Disability

2010-09-10T10:00:00.000-07:00

Broadly defined, a "low incidence disability" is one in which the rate of occurrence is extremely small. California, for example, specifically defines "low incidence disability" as "a severe disabling condition with an expected incidence rate of less than one percent of the total statewide enrollment in kindergarten through grade 12." California Education Code section 56026.5.

Some examples could include:

Blindness
Visual Impairment
Deafness
Hard of hearing
Deaf-blindness
Severe cognitive delay
Serious physical disability / impairment
Significant / complex health related conditions
Multiple disabilities
Autism

In some instances, designation of "low incidence" may attach certain funding resources that are not otherwise applicable for services and equipment. Further, states may have specific data collection requirements related to students with low incidence disabilities.

Some low incidence disabilities may present unique challenges related to providing staff who are trained and qualified to assess those particular students and provide them with instruction and services. However, these students have the same right to a free appropriate public education under the I.D.E.A. as any other eligible student.

The fact that a student is categorized as having a "low incidence" disability cannot be the basis of a determination that he/she should be removed from the regular educational environment. Rather,

"the process for determining the educational placement for children with low-incidence disabilities is the same process used for determining the educational placement for all children with disabilities. That is, each child's educational placement must be determined on an individual case-by-case basis depending on each child's unique educational needs and circumstances, rather than by the child's category of disability." Comments and discussion to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46586 (2006).

Fast Fact Friday: Special Factors

2010-09-03T10:00:00.000-07:00

In addition to the "required content" for Individualized Education Plans, the I.D.E.A. sets forth five "special factors" that IEP teams are required to consider in development of the special education student's program:

1. Positive Behavioral Interventions - "in the case of a child whose behavior impedes the child's learning or that of others, consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior;"

2. Language Needs - "in the case of a child with limited English proficiency, consider the language needs of the child as those needs related to the child's IEP;"

3. Braille - "in the case of a child who is blind or visually impaired, provide for instruction in Braille and the use of Braille unless the IEP team determines after an evaluation... that instruction in Braille is not appropriate for the child;"

4. Communication mode - "consider the communication needs of the child, and in the case of a child who is deaf or hard of hearing, consider the child's language and communication needs, opportunities for direct communications with peers and personnel in the child's language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the child's language and communication mode;"

5. Assistive Technology - "consider whether the child needs assistive technology devices and services."

34 C.F.R. section 300.324(a)(2).

Fast Fact Friday: Special Education Assessment Plan

2010-08-27T10:00:00.000-07:00

A school district are required to provide notice to parents when it proposes to initiate an evaluation or re-evaluation of a special education student, pursuant to the "prior written notice" requirements of the I.D.E.A. Specific to evaluations, the notice must "describe any evaluation procedures" is proposes to conduct. 20 U.SC. section 1414(b)(1). Because of this requirement, and because of timelines and other issues that are impacted by when a parent gives consent to assess, districts must develop ways to provide the required information and obtained written consent to its proposal to assess. This is commonly referred to as a "special education assessment plan."

California law specifies:

If an assessment for the development or revision of the individualized education program is to be conducted, the parent or guardian shall be given, in writing, a proposed assessment plan...

California Education Code section 56321(a)

As assessment plan must

Be Understandable - that is, it should be in "language easily understood by the general public" and should be provided in the native language or other mode of communication of the parent / guardian
Explain the purpose of the assessments proposed
Explain the areas to be assessed
Describe / explain the types of assessments that the district proposes to conduct
Provide information regarding procedural safeguards

See 34 C.F.R. section 300.503; 20 U.S.C. section 1414(b)(1); California Education Code section 56321(b)(1)-(4).

Opportunity for California Parents to Provide Input Regarding State Compliance

2010-08-26T11:52:00.000-07:00

Announcement and Call to Action for California Families

from the Matrix Parent Network and Resource Center

The U.S. Department of Education will be visiting the California Department of Education in order to take a look at our state's compliance with the provisions of the I.D.E.A. (including both Part B and Part C) on September 27th.

It is important for California families / parents to get involved and provide input into this review! Contributing to this process is easy, as there are surveys available online for Parents to anonymously give information. These surveys will be available through September 3, 2010 online, so don't delay in participating in this important opportunity!

For more information and for links to both surveys, click here go to the the information page provided by the Matrix Parent Network and Resource Center.

You can also find information about this on the webpage of the California Association of Family Empowerment Centers, here.

End-of-the-School-Year Checklist for Parents

2010-04-29T14:20:00.000-07:00

1. Review your child's IEP document

Is the IEP ready to be "in place" for the start of the next school year? Is it clearly documented and is the District ready to implement it?
Do you understand the program that will be in place or do you have questions? Now is a good time to ask questions about the program, as there will likely be limited availability of anyone who can answer your questions during the summer.
Have you signed the IEP to indicate consent and / or provided a written response?

* Note that because of scheduling difficulties over the summer, it may be easier to request an IEP meeting now if you have any concerns about your child's program for next year.

2. Meet with teacher(s)

Attend parent-teacher conferences or otherwise arrange for communication with your child's current teacher to get an update on your child.
If possible, and if next year's schedules are already known to the school / district, find out who will be your child's teacher next year. You may be able to communicate with them now more easily than during the summer if you want to speak with them in advance.

* This is a good time to ask the current teacher questions like "If you were getting my child as a student for the first time, what would you like to know about his/her needs?" This will be helpful information to share with next year's teacher.

3. Get an update on your child's progress

Make sure you have progress reports by the last reporting period of the school year (i.e. when grades come out). As applicable, obtain both a progress report on IEP goals and a report card with grades. Ask for data sheets if applicable.
Carefully review report cards, progress reports. Did you child make expected progress? Is he/she meeting his/her IEP objectives / making progress towards annual goals? Are his/her grades or anything on his/her report card a concern?

* If needed, request an IEP meeting now to discuss your child's progress, changed needs, or lack of expected progress so that the team can evaluate whether changes need to be made to the program for the following school year. The end of the year is a good time to reflect on "how did this program work?" and "what changes should we make?"

4. Organize records

Organize IEPs, assessments, correspondence, report cards, etc into a 3 ring binder so that all documents are easily accessible. (Click here for our tips on organization of school documents)
The end of the school year is a great time to make sure your child's records are organized. Update your binder or organizational systems with all of the documents from this school year, and go ahead and make a place for next school year's info now so you'll be ready in the fall.

* In some cases, the end of the year may be a good time to do a records request to the school district and obtain copies of your child's file.

5. Review information regarding ESY (Extended School Year)

Does the IEP offer ESY and if so, do you fully understand what is offered? (Read here for one school district's view on how ESY determinations are made)
Make sure you know when, where and what will be provided.
Are there any forms that you need to submit for enrollment for ESY?
Make sure you find out whether or not your child will be receiving related services (speech, OT, etc) during the summer, and how those will be scheduled. If you are going to opt out of the classroom / instructional portion of the District's ESY offer, ask whether the services will still be available.

* If ESY was not offered, decide if there is a dispute about this, and if you need to put the District on notice that you believe ESY is necessary. Contact a special education attorney or advocate if needed.

6. Sign up for summer activities

Don't forget that summer is also about fun and taking a break from school!
Find out what camps, sport and other activities are available in your community. (www.mysummercamps.com has a directory of summer camp programs for kids, including a listing specific to kids with special needs)
If your child participates in school-year extra-curricular activities, like sports or clubs, make sure that you are aware of anything that carries over into the summer.
Research how to sign up for activities so that you can make sure your child will be able to participate. Get copies of any applicable policies and procedures, and find out about the time commitment and schedule.
Consider whether your child needs reinforcements, behavior support, or other supplementary aids or supports to participate.

* Help your child maintain continuity by gathering contact information for your child's school friends to use for play dates and activities during the summer.

Fast Fact Friday: Attorney or Advocate at IEP Team Meetings

2010-03-19T08:00:00.000-07:00

Is a parent permitted to bring an advocate or attorney to an IEP meeting?

Yes! Parents are permitted, at their own discretion, to bring to the IEP meeting any individual with "knowledge or special expertise regarding the child." 20 U.S.C. 1414(d)(1)(B)(vi); 34 C.F.R. section 300.344.

This can include an advocate, friend, relative, attorney, other professional, caseworker / social worker, therapist, etc.

It is important to note that if the parent invites the individual, it is the parent who has the ability to make the determination as to whether the person has "knowledge or special expertise." The District can't, therefore, prevent parents from bringing an advocate or an attorney to the meeting! Even if there isn't already a dispute, and even if the District has not invited their own attorney, the parent has the explicit right to include any individual he/she deems to be an appropriate IEP team member, including their attorney or advocate.

This provision goes towards the ability of parents to meaningfully participate in the IEP process. Parents can choose to bring an educational advocate or special education attorney to assist them in participating and will help to ensure that they fully understand the offer. If they are denied the right to bring such persons to an IEP meeting, they may in turn be denied the ability to give informed consent to the program.

Fast Fact Friday: 504 Plans

2010-03-05T12:29:00.000-08:00

A 504 plan is for a student who needs modifications and accommodations to their school program but does not qualify for an IEP. Modifications can include a change in student’s instructional level or a change in content. Accommodations can include extra time on testing, having a scribe or note taker and preferential seating. A student who qualifies for a 504 does not require special education or related services to benefit from a general education curriculum.

News Alert: Stay Put Awarded to Preschooler with Autism and Apraxia

2010-02-26T17:16:00.000-08:00

Today, Mandy Favaloro of A2Z Educational Advocates won a stay put order from the U.S. District Court for the Central District of California in a factually complicated case involving a preschooler with Autism and Apraxia. The victory is a small victory, in that it means only that the child continues to recieve the disputed services during the time that our case is going forward, and does not determine what the ultimate outcome will be. But it is a significant victory in this case nonetheless, not only for this family, but on the bigger issue of stay put in general.

Stay put means that a school district must maintain a student in their "current educational placement" during the pendency of a dispute (at the administrative and subsequent judicial levels) between parents and the school district. "Then current educational placement" refers to that which was in place, agreed upon and implemented (usually) prior to the dispute arising.

In the 9th Circuit (and in some, but not all, other circuits), case law establishes that stay put acts as an "automatic injunction." In other words, when a case is pending, it is a given that the child will continue in his / her current program. Parents filing for an order determining stay put need only establish what the student's current program is, and are not required to establish all of the factors that would be considered ordinarily when a party to an action is seeking injunctive relief.

Sounds simple, right? And in many cases it can be. A child is in a general education class, which has been written into her IEP, consented to by the parents, and implemented. The District proposes to change Child's placement to a special education class, and parents disagree. When parents file for a due process hearing, it is "automatic" that the child should continue in the general education classroom during the pendency of the dispute.

Not all cases are so simple, and determining what makes up a child's "current educational placement" can in fact involve many different factors. Such was this case, and the daunting challenge facing Mandy and the A2Z team has been to effectively piece together rules and holdings from various cases in order to establish the totality of what should be stay put for this particular child.

This case is complicated, in part because the IEP "in dispute" is the child's initial IEP when he transitioned to the school district at age 3. It is complicated because there has never been a fully agreed upon and implemented IEP. Parents agreed upon some parts of the initial IEP and a subsequent IEP, but not all, and District implemented some, but not all, of what parents consented to. It is complicated by the fact that now, there is a decision from an ALJ in an underlying due process case, a decision that finds in favor of parents on some issues and the district on others; a decision that is being appealled by parents now, but only partially. The fact that the decision ordered reimbursements for specific services funded by the parents in the past throws another kink into the analysis, as does the fact that the order for prospective services is less clear than the order of compensatory remedies.

So what is stay put and how do we determine it in such a complicated case? Here are the issues and what we can learn from this case:

(1) Unilateral Placement (i.e. private school specifically) at Parents Expense Does Not Automatically Prevent Parents from Accessing Stay Put

In this case, stay put includes a program that is funded in part by parents and in part by the District. Because parents did not win on their unilateral placement argument (specifically as to the private school itself) at the due process level, and are appealing that finding, there is no requirement that the District would have to now pay for the private school during the pendency of the dispute. It is important to note that, contrary to the District's assertion, Parents did not ask for District funding for the private placement as part of stay put. His "status quo" at the time of the appeal included placement in the private school at parent expense. It is also important to note that the fact that parents decided to maintain that status quo while they appealed the finding regarding the private school of the ALJ did not prohibit them from receiving other services funded by the district as part of stay put.

(2) Continuation of Agreed Upon and Implemented Services is Necessary

The basic principles of stay put require that those components of the program to which the District and parent have agreed, and have been "in place" prior to this dispute, must continue to be provided. Here, there were services from the child's initial IEP which had been agreed upon and implemented, and those services must continue. The District argued that because the ALJ did not agree with Parents regarding the private school (unilateral placement) that they sought, and yet Parents chose to continue in that program, the Student was no longer entitled to services. The Court disagreed, and said that inherent in the stay put provision is the requirement that the District continue those services that were already agreed upon and in place.

(3) "Otherwise agree" includes that which is ordered by an ALJ (and not appealled by parents)

Stay put typically includes the program identified in a child's previously agreed upon IEP, unless parents and the district "otherwise agree." This court found that "where the due process hearing officer 'agrees with the child's parents that a change of placement is appropriate, that placement must be treated as an agreement between the State and the parents' for purposes of stay put." (citing 34 C.F.R. 300.518(d)). Further, "an order for reimbursement predicated on a finding that a previous IEP was substantively inappropriate 'constitutes a change in the child's current educational placement for purposes of interpreting [stay put].'"

Here, the ALJ's order included specifically identified reimbursements for services funded by parents as a result of their dispute with the district's offered program. The school district attempted to argue that no "agreement" had occurred because the ALJ disagreed with parents on some aspects of what they sought (like the private school).

The Court found that the District's argument completely ignored the fact that the District is "required to provide those special education and related services that are not in dispute," and further stated:

The IDEA's implementing regulations require only that the ALJ agree with the
parents that "a change of placement is appropriate," not that
all changes are appropriate, in order to establish an agreement between the
State and the parents for the purposes of stay put."

Ultimately, the court ruled in parents favor and ordered that the District fund the services, while parents continue to fund the private school placement. The services that make up this child's stay put include a combination of those agreed to from the initial and subseuqent IEPs (and thereafter implemented by the District) and of those that the parents previously funded and were awarded reimbursement for in the ALJ's decision. As to the latter, the stay put order specifically identifies the service providers, as they were identified specifically in the reimbursement order by the ALJ, meaning that in this case, the student's stay put will continue to include his current providers specifically.

Mandy did an outstanding job piecing together cases and rulings to make a strong and effective argument in this very complicated stay put case. As this is her very first District Court case as an attorney of record for parents, I think she deserves much props for this outcome. It stands to show that with zealous and dedicated advocacy, coupled of course with a situation where the law is in Parents favor (and someone with the legal savy to be able to show that it is in their favor, even when it's complicated), a positive result CAN happen for students and parents!

A redacted copy of this decision will shortly be posted on A2Z's website.

Misconceptions about IEPs, and how they impact parents and students

2010-02-24T13:39:00.000-08:00

I'm a frequent twitter user, and follow many people who tweet about special education issues. On "HootSuite," an application that both enhances and simplifies use of twitter, I have an ongoing search set to track tweets with certain words in them, including "IEP." This search gets all kinds of results, from informational posts to parents simply talking about their kid's IEP meetings.

Today, I saw this tweet:

"My son is in an IEP in middle school, if I don't get him out of IEP b4 HS he will be put in classes that will not help succeed."

This statement makes me sad, because it is representative of such a large and persistent problem when it comes to special education. I have no idea the circumstances behind this post; no information about this child's disability or his current program. But what I do know is that I have heard this statement before.

There are two problems I see illuminated by this mom's statement, one having to do with the realities of special education that lead her to feel this way; the other having to do with the misunderstanding behind it.

Let's address the misunderstanding first: Special education is not a place! Rather, special education is a combination of services, specialized instruction, accommodations, and supports that a student needs in order to receive an educational benefit. A child is not "in" special education, but rather "receives" special education. True, there are many instances in which the combination of services, supports, and specialized instruction that a child requires can best be provided in a separate classroom setting or even a specialized school, but that is an individual decision for each child based upon his/her IEP. It is not and should not ever be the assumption that a child on an IEP will be "placed" in special classes.

Even when you are talking specifically about placement, rather than more broadly about special education, the concept includes more than simply where a child will receive instruction. In California, the legal definition of "specific educational placement" incorporates this notion: "Specific educational placement means that unique combination of facilities, personnel, location or equipment necessary to provide instructional services to an individual with exceptional needs, as specified in the individualized education program, in any one or a combination of public, private, home and hospital, or residential settings." Title 5, California Code of Regulations, Section 3042(a).

The assumption that a child will be in certain classes simply because he/she is on an IEP also flies in the face of the idea of "least restrictive environment." (For a good overview of the relationship between special education and "inclusion" read this article by the Maryland Coalition for Inclusive Education). The legal presumption of where a child will be placed is actually the opposite of this statement. The presumption is that a child with a disability will be placed in general education / educated with typical peers, and that removal to special classes or specialized schools will only happen if the child's disability is such that education in general education cannot benefit the child, even with the full range of supplementary supports and services in place. In other words, the school district should make efforts to include a child in "regular" classes before considering specialized settings; these efforts should include the full range of services and supports that could assist the child in the regular setting. Assuming that simply because a child is on an IEP, he/she will be in certain special education classes at any point in the child's educational career is not an assumption that any district, parent or IEP team should make, because it ignores the fact that special education (a service, not a place) could be provided in the regular education setting.

As to the realities of this statement: Unfortunately, in many places the reality may be that a child on an IEP, particularly a child with certain categories of disabilities, will likely be "warehoused" into specialized classes and taken off of the "diploma track" in high school. I have faced this reality in some of my cases. I know of parents with students in middle school who feel the same way as the mother who tweeted this post. They are looking into the future of their child's program, and the only options they see within special education are specialized classes with "functional skills based curriculum," separated both from the general education students and from the general education curriculum standards. They go and view these classes and see what is "taught" there. And they come away with the conclusion that if their child goes into those classes, he/she will never learn the skills necessary to have any chance of succeeding in further education, employment, etc after high school.

This comes up with two sets of kids particularly. The most obvious are the students labeled as "severely disabled." In lower grades, many school districts are doing a good job of developing "inclusive schools" where even the students who need to be in specialized settings for some or most of their instruction are included within the general education setting for part of their day, even part of their academics. In high school, the argument is made that this is not possible, it's more difficult, it will no longer benefit the student. High school general education classes are fast paced, standards and testing driven, and students move from class to class all day long. Students with "significant" disabilities are unfortunately moved into "self-contained" programs at this stage, where they are in the same specialized classroom setting for the full school day. The argument also becomes that at this stage, these students need to learn "functional skills," and rather than incorporating these while keeping instruction in academics aligned with general education standards, these classes focus solely on functional skills. These students are not likely those whose parents will decide to "exit" them from special education, but they are still faced with the reality of little to no options other than these specialized classes.

The second set of students affected as a group are those that are what I will call "on the cusp" of needing an IEP. These are the students who have long-standing disabilities; high functioning Autism, ADHD, learning disabilities, etc, but who have received great interventions and services and have made such progress that they no longer require intensive supports. I've seen IEPs ignore the fact that a student really can learn general education content, and place them in a very restrictive special education setting simply because that is what is available at that school / grade level. The misconception is at its worst here: the thought is that if the child requires specialized instruction at all, he/she must therefore need a specialized setting. The fact is, the system simply isn't doing a good enough job of providing the full range of options for these kids, of implementing research based instructions and services that support the students in general education settings and learning general education curriculum, without removing them to specialized settings. If a parent is weighing the benefits of special education against the risk of having the child removed from classes that would prepare him/her for college or other post-secondary education, what is that balancing going to favor?

What is the result of a parent's belief, be it misconceived or based in reality, that a child should be "taken off of an IEP" before high school in order to be able to be placed in academically challenging classrooms, rather than in specialized programs that will "not help [them] succeed?" Unfortunately, it would seem that the result would be kids in high school not getting the services that they need. Imagine being the parent in this catch-22: On the one hand, you want your child to learn academics, to be successful and to go to college. The "track" that your child will be put on if he/she remains on an IEP and goes only to these special classes may not accomplish those things. On the other hand, your child still has a disability, still needs services and supports, but you are told that the option for special education in HS is to place the student in a special class. You, as the parent, may not be given the full benefit of understanding that special education is not a place, that your child should be educated in the general education setting to the maximum extent possible with appropriate supplementary supports and services, and that your child's IEP should include a transition plan, geared towards outcomes that may include post-secondary education. That parent is faced with an impossible choice, and so the child that is "on the cusp," let's say, in terms of needing an IEP may be exited from special education.

What a parent holds onto by keeping their child on an IEP in high school is the right to a transition plan. Special education is premised on the idea of preparing students for productive lives after high school: to live as independently as possible, and to be contributing members of the community. This comes most sharply into effect when the Individual Transition Plan (ITP) becomes a part of a student's IEP at age 16.

Transition services are defined as "a coordinated set of activities for a child with a disability... designed to be within a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability to facilitate the child's movement from school to post-school activities...; based on the individual child's needs taking into account strengths, preferences and interests; and includes instruction, related services, community experiences, the development of employment and other post-school adult living objectives, and when appropriate, acquisition of daily living skills and functional vocational evaluation."

Is the system doing what it is supposed to do if students are exited out not because they no longer need supports and services, but because their parents (or even school district staff) are under the impression that an IEP equals placement in a special classroom? Congress recognized that meaningful parent participation is essential to effective implementation of the IDEA, and at the heart of meaningful parent participation is the fact that parents must be given information about what their rights are, what programs are available, what the district is obligated to provide. If parents aren't being informed, or worse, if districts themselves are misinformed about LRE and other requirements and truly are making this the choice for high school kids, then right at the critical moment of special education, right when transition planning that is so key to the "big picture" of what special education is all about comes into play, students are being denied the services and supports they need to succeed in later life.

Parents are faced with difficult, sometimes impossible, choices. No one can make those choices for them, but as their advocates and attorneys, as school district staff charged with providing students an appropriate education and including their parents in the decision making progress, and as a community of professionals, parents and providers, we can educate parents and continue to fight to put an end to the misconceptions about special education. Only when special education truly no longer is a "place" but a service in all school districts, and only when parents and the community at large understand this, will parents be empowered to fight for appropriate services to continue, rather than eliminating services and supports rather than risk placement in an inappropriate setting.

Fast Fact Friday: How often does the school district have to reassess my child?

2010-02-19T17:04:00.000-08:00

Generally a school district reassesses a student once every three years unless parents agree to waive the assessments. A school district cannot assess more than once in the same area in a year unless the Parents agree. Parents can always request new assessments or ask for reassessments at any time. A school district must then either issue an assessment plan in 15 days or provide Parents with written notice of why they will not conduct an assessment.

Due Process Cases: Insufficiency of Complaints

2010-01-26T15:45:00.000-08:00

When parents disagree with the IEP proposed for their child, with the denial of eligibility for special education, with evaluations conducted by the District, etc, they have the right to present a complaint to initiate "due process" in order to resolve their dispute. The 2004 amendments to IDEA added language specifying the contents of a complaint that is filed to initiate due process. Additionally, language was added that allows school districts (or the responding party) to assert that the complaint was not sufficient; i.e. that it does not include all of the required information. Hearing officers / ALJ's are charged with determining the sufficiency of the complaint. Specifically, the IDEA states that "a party may not have a due process hearing until the party, or the attorney representing the party, files a notice that meets" these requirements. See 20 U.S.C. section 1415(b)(7)(B).

This places a burden on the filing party, which especially affects unrepresented parents who may be unfamiliar with the requirements and technical aspects of the process. If parents need assistance with this process, it is advisable that they seek out a special education attorney.

What information is required for a complaint to be "sufficient"?

IDEA (at 20 U.S.C. section 1415(b)(7)(A)(ii)) requires the following to be included in the complaint:

Name of the child
Address of the residence of the child
Available contact information if the child is homeless
Name of the school the child is attending
The Issue / Problem presented: "Description of the nature of the problem of the child relating to such proposed initiation or change..."
The Facts: "including facts relating to such problem..."
The Proposed Resolution of the Problem

What is a "Notice of Insufficiency?"

Many school district attorneys now have a practice of filing a document, sometimes referred to as Notice of Insufficiency" to assert that the parents' complaint was not sufficient / does not contain all of the required information. Most often, these filings will allege that the complaint did not specify sufficient facts related to the problem, or did not clearly identify what the specific problem is.

An assertion that a complaint is not "sufficient" usually comes down to something subjective, and is not a clear-cut case of required information being totally left out. It usually involves how the information is presented / explained as to the facts, the issue or the proposed resolution.

Here are some examples of arguments we have seen regarding insufficiency of a due process complaint:

Not enough facts to explain why the proposed IEP would not meet student's unique needs
Issue regarding inappropriateness of goals not clear enough for District to determine what areas Parents believed were not addressed
Issues relating to violations of procedural safeguards do not include sufficient facts to clarify basis for the allegations
Proposed resolutions do not include information regarding specific amounts sought for reimbursement, compensatory hours, etc
Proposed resolutions are not clear as to what prospective program parents are seeking

Sufficiency requirements in many states have increased exponentially the burden on parents filing for due process, and made it much more difficult for parents to go through this process unrepresented, thereby decreasing access to due process. Here in California, this has been the subject of much discussion among the parent-advocacy community. Some school district representatives have a practice of sending out a Notice of Insufficiency on every case, and we have even had one tell us she would be filing such a Notice even though she had admittedly not yet even reviewed the complaint's contents.

In at least one state, action has been taken to attempt to alleviate some of this burden. Click here to access the state of Ohio's information about a settlement agreement reached on this issue. What is informative in the "order of settlement" is the language in regards to what "sufficiency requirements" should mean:

[The IDEA] does not require a due process complaint to reach the level of sufficiency and detail of a complaint in a court of law.
That the purpose of the sufficiency requirement is to ensure that the other party will have an awareness and understanding of the issues forming the basis for the complaint, and
That due process complaints should be construed in light of Schaffer vs. Weast... and Escambia County Board of Education vs. Benton...
IHO's will be instructed that the standard in Schaffer and Escambia for reviewing the sufficiency of a due process request is a minimal pleading standard and is lower than the standard for reviewing complaints in court.

Ohio also now posts redacted copies of decisions / orders determining sufficiency of complaints, in compliance with the terms of this settlement.

What happens next?

If the responding party files a Notice of Insufficiency, the ALJ / Hearing Officer should rule on whether or not the complaint is sufficient. As stated, this often comes down to a subjective issue - it isn't usually the case that a child's name or address, for example, was left out. Therefore, the ALJ has to look at the complaint itself and determine if there is enough information in the "facts," "issues," and "resolution" to give the responding party notice of the basis for the complaint. If a complaint is not sufficient, the hearing will not go forward until a sufficient complaint is filed, meaning that either the case will be dismissed and have to be refiled, or that the filing party will be allowed by the ALJ / Hearing Officer to amend the complaint.

Can Parents file a Notice of Insufficiency?

Yes. If a school district files a request for due process, the the parent is the "responding party." The school district's complaint is also subject to sufficiency requirements in terms of what information must be included. If a parent / parent's representative believes that the information is not sufficient, he/she can also alert the ALJ / Hearing Officer and ask for a determination of sufficiency.

What about forms, etc for filing for Due Process?

The IDEA requires state educational agencies to develop "model forms to assist parents and public agencies in filing a due process complaint." 34 C.F.R. 300.509. Thus, many school districts / local educational agencies have forms that they provide parents to fill out when a parent disagrees and wishes to file for due process. The state educational agency may also provide such a form. Presumably, such a form would contain boxes or lines for each of the required areas, thereby guiding parents to ensure that all required information is included. Note that just because a school district or state agency provides a form, does not mean that a parent must utilize the form to file a request. Rather, any document that comports with the requirements under IDEA should initiate the process.

Here are some useful links to examples from various state educational agencies:

Connecticut
Illinois
Kentucky
Maine
Maryland
Michigan
Missouri
Neveda
New Jersey
Texas
Vermont

*note: the links in this list provide a sampling of state pages directly related to due process request forms. For a comprehensive list of state special education department websites in general, check out the list provided by the Council of Parent Attorneys and Advocates at this link.

Parents can seek out additional information from a special education attorney or experienced advocate, their state educational agency, or their local school district.

Fast Fact Friday: Automaticity

2009-11-06T11:45:00.000-08:00

Automaticity is one of those words that exists in the special education world, but outside that community most people have never heard of it. Generally, automaticity refers to the ability of the brain to perform a skills or complex task or behavior easily and with little attention, effort or conscious awareness.

Skills and tasks become automatic with training, repetition and practice. Once automaticity is achieved, the brain can accomplish these tasks quickly and easily, without utilizing a lot of working memory.

The clearest example of achieving automaticity is in the area of reading. When a child is first learning to read, he/she must actively engage the brain to decode the words, deciphering the sounds, blending them together, etc. The process of actually decoding the word and "sounding it out" is laborious. As the child has extended periods of practice, and good instruction in reading, decoding and word recognition become automatic, meaning that the child is able to read more quickly, and to engage the brain to think about the meaning of the word rather than using all of the brain power to sound out or decode the word. Automaticity is necessary to improve fluency.

Networking Event

2009-11-06T10:28:00.000-08:00

The Women's Organization of Special Education Professionals (WOSEP) is holding their semi-annual tea this Sunday. Details can be found on www.wosep.com.

WOSEP is an organization of professionals in the special education community in Southern California. Members include psychologists, speech therapists, occupational therapists, and other providers, as well as advocates and attorneys. WOSEP provides networking opportunities, including the semi-annual tea, for members to get to know each other in person, share information about their various specialties and practices, and socialize. WOSEP also provides a directory of resources available to the public on its website.

November's tea will be hosted by WOSEP member Pam Clark of the Help Group. Come out and join us for a great afternoon of socializing and networking!

Tip of the Day: IEE Assessors

2009-11-03T15:56:00.001-08:00

This is actually more than one tip and again this tip of the day came to me as I was reviewing a file and after speaking with an assessor last week. In this case, the Parent had requested an IEE and the District provided a list of names and the Parent picked one and the assessment was completed.

The problems started, however, when the District sent the assessor the "file" which was only a few pages of an IEP. Which brings us to the first tip:

Even if the District is paying for the assessment and has told you they will provide the assessor the file - bring all relevant paperwork with you and leave them with copies.

The next problem occurred because the assessor was not invited to the IEP. Now under the law so long as there is someone there qualified to review the assessment findings the assessor does not need to be there but tip #2:

Always at least REQUEST (in writing, of course) that the independent assessor be invited to the meeting to review their assessment.

They may say "no" but then you're in the same position as before but now if you have a question at the meeting that the district personnel can't answer you have a reason to ask for another IEP.

Specific Learning Disability - Eligibility for Special Education

2009-10-28T13:00:00.000-07:00

Eligibility for special education and related services under the category of Specific Learning Disability (SLD) involves perhaps the most complicated rules and analysis of any category under the IDEA. The understanding and acknowledgment of what constitutes a learning disability is changing as awareness, research, and information becomes more prevalent. Not only does research about learning disabilities in general effect the understanding of eligibility, but also research and developments about evaluation procedures and interventions can have an impact.

SLD is the only category under the IDEA that has specific evaluation procedures, beyond the general requirements for special education evaluations, that attach to the determination of eligibility. These specific evaluation procedures will be more thoroughly covered in a subsequent blog post.

IDEA's Definition of SLD Eligibility Under IDEA:

"In general, the term 'specific learning disability' means a disorder in 1 or more of the basic psychological processes involved in understanding or in using language, spoken or written, which disorder may manifest itself in the imperfect ability to listen, think, speak, read, write, spell or do mathematical calculations." 20 U.S.C. section 1401(30).

The team may determine that a child has a specific learning disability IF:

"(1) the child does not achieve adequately for the child's age or to meet State-approved grade-level standards in one or more of the following areas, when provided with learning experiences and instruction appropriate for the child's age or State-approved grade level standards:
(i) oral expression
(ii) listening comprehension
(iii) written expression
(iv) basic reading skill
(v) reading fluency skills
(vi) reading comprehension
(vii) mathematics calculation
(viii) mathematics problem solving

(2) (i) the child does not make sufficient progress to meet age or State-approved grade-level standards in one or more of the areas identified in (1) above when using a process based on the child's response to scientific research-based intervention; or (ii) the child exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade level standards, or intellectual development, that is determined by the group to be relevant to the identification of a specific learning disability, using appropriate assessments... and

(3) the group determines that its findings are not primarily the result of
(i) a visual, hearing, or motor disability
(ii) mental retardation
(iii) emotional disturbance
(iv) cultural factors
(v) environmental or economic disadvantage; or
(vi) limited English proficiency"

34 C.F.R. section 300.309

Thus, to simplify this, under the IDEA's definition, the determination is going to be based on whether the child is not making adequate or sufficient progress relative to his/her age and to grade level standards, in one of the specified skill areas, even given appropriate learning experiences and instruction or given research-based interventions.

Role of State Laws and Regulations:

Each state individually sets forth guidelines that further explain the process for determining eligibility under the category of SLD. The IDEA states that "a state must adopt... criteria for determining whether a child has a specific learning disability..." 34 C.F.R. section 300.307(a). States are prohibited from requiring the use of the "severe discrepancy" model, must allow the use of a response to intervention model, and may allow the use of other research-based procedures. 34 C.F.R. section 300.307(a). The individual school districts are required to use the criteria adopted by the state.

Discrepancy Model:

Prior to the 2004 changes to the IDEA, the "severe discrepancy model" was the primary method utilized to determine eligibility under the category of SLD.

The severe discrepancy model looks at whether there is a severe/significant discrepancy between a child's intellectual ability and that child's achievement in a specified academic area. Whether a discrepancy is "severe" is determined by the standard used in that district / state, and is typically based upon a difference of 1.5 standard deviations.

For example:

Child is given a general ability measure or IQ test and his/her overall ability / full scale IQ is found to be a 100.

Child is also given a standardized measure of academic achievement, and cluster scores in areas related to reading are found to be broad reading - 80, reading comprehension - 72, basic reading skills - 75.

The difference or discrepancy between ability and achievement in the area of broad reading would be 20 points, in the area of reading comprehension would be 28 points, and in the area of basic reading would be 25 points. On standardized measure wherein 100 is the mean, two and a half standard deviations is 22.5 points, so this child has a "severe discrepancy" in reading comprehension and basic reading skills.

Although states can no longer require the use of a severe discrepancy model, they can still adopt this model, and define it, as one option for school districts to utilize. Therefore, in some areas, the discrepancy model is still widely used.

It is important to note that the discrepancy model relies upon a comparison of the child's achievement academically to his/her own ability level, rather than merely to grade- or age- level expectations. However, even if a state allows for use of the discrepancy model, the state's procedures must be consistent with the definition of an SLD under the IDEA, see above. Under that definition, it is necessary to look at whether the child is achieving adequately / sufficiently to meet age or grade-level standards, not necessarily to meet expectations based upon their own IQ.

Response to Intervention Model:

Response to Intervention (RTI) is still a relatively new model in terms of special education eligibility. The idea behind RTI, though, is based in the finding that students who are provided with appropriate, research-based instructions should learn to read, write, do math, etc. This is similar to the idea behind the requirements of No Child Left Behind that students be provide with research based instructions. Basically, the IDEA's recognition of RTI as an appropriate process to take into consideration when making an eligibility determination is a recognition that there should be a determination that the child has learning difficulties even though he/she has been provided with research-based interventions within the general education setting before he/she is determined to have a disability.

The main components of an RTI program include (1) provision of scientific, research-based instruction and interventions within the general education program; (2) monitoring progress with specific measurement tools that are scientifically based; (3) adjustments to interventions and instruction provided based on the measurement of student progress.

RTI can take into consideration instructional curriculum that is already being used in the classroom, without the need for addition instruction / intervention prior to an eligibility determination. For example, if the District-wide curriculum for reading is a "research-based program," that has built-in periodic progress measurements, the consideration of RTI may look at the student's progress within that instructional program.

The District is not permitted to halt or delay the assessment timelines due to the utilization of the RTI model, as will be discussed more thoroughly in a subsequent blog post.

Stay tuned for Part 2 on this topic, which will cover Consideration of Other Factors, Specific Diagnoses vs. Eligibility, and Issues related to Highly Intelligent Students with SLD.

Tip of the Day: Take the Copy of the Safeguards

2009-10-27T13:17:00.000-07:00

As I sit here pouring through IEPs that indicate parents were offered the procedural safeguards and had no questions and having flashbacks to testimony in hearings (apparently asking a question - even if unanswered by a district IEP team member means you participated - but I digress) I thought that it would be great if the actual procedural safeguards were attached to the IEP.

So here's my tip - and I know it means one more piece of paper that you don't want - but take the procedural safeguards and attach them to your copy of the IEP. Or note on the copy the date you received it, what meeting, and who gave it to you (I actually like this option better). Even better if you have the person who gave it to you intial and date it. Why is this important? Well as I sit here pouring over documents that indicate parents had no questions about procedural safeguards and wondering if I can track down a copy from two years ago, I thought how easy it would be if it was already with the document. But why? Well these "safeguards" get updated occasionally (likely when the district gets in trouble about something) so sometimes the copy you can get tomorrow is not the copy they would have given you in December 2007 and maybe, just maybe, it didn't include a safeguard or had wrong information, that has since been corrected. And you never know if that could be helpful.

Web Resources for Special Education

2009-10-26T17:34:00.000-07:00

Check out my new Squidoo lens all about resources for special education and disabilities on the web! It covers websites that provide useful information, twitter-users who tweet about special education, and interesting books on Amazon. Hope you find it helpful!

http://www.squidoo.com/specialedwebresources

While We Were Away

2009-10-23T16:59:00.000-07:00

As you may have noticed the posts were sparse for there for awhile. Unfortunately, it is not because we all took a vacation to somewhere fabulous but rather we had a lot on our collective plate. In addition to the back to school rush that we deal with every September (the typical failure of the school districts to implement agreements or have service providers available), we've been dealing with cases at three different levels of the court system, which has made for some pretty late nights/early mornings, beyond normal caffeine consumptions, and just not enough time to blog (and sometimes shower).

At the administrative level we had a six-day hearing for a preschooler with autism and apraxia (the school district thinks it is impossible by the way to have both). The school district claimed the LRE for this student was a class with no typical peers because he was not potty-trained at the time of the last IEP. The school district also refused to offer more than 60 minutes per week of LAS or describe the frequency and duration. Parents have been providing a private placement and private services for a year now so we we're arguing for appropriate services and reimbursement for the unilateral placement and related services. We had quite a lot of expert witnesses in this case (all the more reason to get behind COPAA's efforts to support the IDEA Fairness Restoration Act), a lot of evidence and just got done filing our closing brief and reply brief.

In district court we have a case pending, and had briefs due this past month, regarding the unilateral placement of a student who is twice-exceptional in a school that is not certified as a NPS. The school district in that matter offered a placement at a NPS without specifying the school and parents enrolled him in a private school. We are appealing a decision from the administrative level that found that the school district's failure to offer a specific placement was proper.

In the Ninth Circuit we also had a case pending, and the inevitable briefs due, regarding a student with CP who the school district kept segregated from any district school. The student has since passed and we are litigating the issue that Parents still have claims for reimbursements for services provided. We are also appealing the district court's decision to impose attorneys' fees on this matter on Parents' attorneys for moving forward with litigation after the death of the student.

As you can see we've been busy busy but we are excited about the possibility of (hopefully) making some good law on some of these cases and moving forward in the next few months.

We hope to keep any future hiatuses to a minimum and we thank you for hanging in there with us.

Fast Fact Friday: Statute of Limitations

2009-10-23T15:50:00.000-07:00

Under the IDEA there is a two-year statute of limitation for filing a due process complaint. What this means is that a due process complaint must allege a violation that occurred not more than two years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the due process complaint. See 34 C.F.R. 300.507(a)(2). It is up to a hearing officer or ALJ to make the decision as to whether the parent should have known about the alleged action that forms the basis of the complaint. See Analysis of Comments and Changes to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46706 (2006).

Under the IDEA there are several exceptions to the two-year statute of limitations. It does not apply to a parent if the parent was prevented from filing a complaint due to: 1) Specific misrepresentations by the district that it had resolved the problems forming the basis of the complaint; or 2) The district's withholding of information from the parent that the IDEA required it to provide. See 34 CFR 300.511(f). The Department of Education declined to define the term "misrepresentations" as used in that section. See Analysis of Comments and Changes to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46706 (2006).

If a state law has set an explicit time limitation for requesting a due process hearing, the IDEA defers to the state's law. See 34 CFR 300.507(a)(2).

Due Process Cases: What is Mediation All About?

2009-10-12T12:00:00.000-07:00

Mediation is a voluntary alternative dispute resolution process in which an impartial third party ("mediator") helps the parties to resolve their dispute but does not and cannot impose a solution.

Mediation Under the IDEA:

States are required to "ensure that procedures are established and implemented to allow parties to disputes involving any matter, including matters arising prior to the filing of a complaint... to resolve such disputes through a mediation process." 20 U.S.C. section 1415(e)(1).

States must "ensure that the mediation process (i) is voluntary on the part of the parties; (ii) is not used to deny or delay a parent's right to a due process hearing...; (iii) is conducted by a qualified and impartial mediator who is trained in effective mediation techniques." 20 U.S.C. section 1415(e)(2).

What to Expect:

A mediation session usually happens fairly shortly after the 30 day "resolution period" contemplated for in the IDEA, or in some states may even be available during that time period. Note that in some instances, parties may not have both a resolution session and a mediation. Mediation is voluntary, so the parties can decide not to attend / participate. Unless each side is clearly not going to attempt to reach an agreement, mediation is worth your time to attempt to reach a settlement.

At the start of the mediation, an effective mediator should describe the process to parents and their representatives. Typically, a mediator will let the parties know that mediation is confidential, and that what is discussed in mediation can't be put into evidence at a subsequent hearing. A mediator should also explain any rules for the process, explain whether all parties will remain in one room or "caucus" separately, and answer any questions.

Sometimes, it is helpful for the parties to give a brief statement that provides an overview of their position and of what they are seeking in a settlement agreement. This is both for the benefit of the mediator - who needs this information to effectively guide communication - and is for the other side - who needs to hear what your position is and how strong you are in it.

A mediator's role is essentially to help with the communications between the parties. While there are many theories of effective mediation techniques, in terms of whether the mediator is simply relaying information or is more involved in helping to brainstorm solutions, a good mediator will always be able to effectively communicate each party's position and offer to the other side.

Many special education disputes are resolved through mediation. Ideally, mediation also allows for the two sides to communicate and air their disputes so that parents and the district may have a chance in the future of a productive relationship.

Due Process Cases: What is a Resolution Session?

2009-10-12T09:00:00.000-07:00

"Informal Dispute Resolution" can refer to many different things in the context of special education cases. Many school districts may have their own informal dispute resolution ("IDR") processes, in which a parent can meet with or speak with someone about their disagreements without having to file for a due process hearing or go to a mediation. Even in the context of a due process case, there is an opportunity to "informally resolve" the issues between the parents and the district.

Definition of "Resolution Session"

A resolution session is a process by which parties meet without a neutral third party and attempt to resolve their dispute.

Rules / Statutory Basis

The Resolution Session and Informal Resolution Period were created in the 2004 changes to IDEA;

"Prior to the opportunity for an impartial due process hearing... the local educational agency shall convene a meeting with the parents and the relevant member or members of the IEP Team who have specific knowledge of the facts identified in the complaint
(i) within 15 days of receiving notice of the parents complaint;
(ii) which shall include a representative of the agency who has decision-making authority on behalf of such agency;
(iii) which may not include an attorney of the local educational agency unless the parent is accompanied by an attorney; and
(iv) where the parents of the child discuss their complaint, and the facts that form the basis of the complaint, and the local educational agency is provided the opportunity to resolve the complaint, unless the parents and the local educational agency agree in writing to waive such meeting or agree to use the mediation process in lieu of the resolution session"

20 U.S.C. section 1415(f)(1)(B)

Any agreement made in the resolution session must be in writing, is enforceable, and can be voided by either party within 3 business days of execution. 20 U.S.C. section 1415(f)(1)(B)(iii)&(iv).

What to Expect:

An informal resolution session is to be held within 15 days after parents filed for due process. The statute allows for a 30 day "resolution period" meaning that although the resolution session must occur within the first 15 days, the district has an opportunity to try to resolve the dispute within 30 days before the time period for the hearing and a decision commences. If a district files for due process against a parent an informal resolution session does not have to be held and the 30 day period does not toll.

A school district representative will most likely contact the parents prior to the deadline to schedule a resolution session (sometimes referred to as an "informal"). Parents are required to attend the resolution session, unless the parties both agree in writing to waive it. If the school district doesn't agree, and parents still refuse to participate, then all of the applicable timelines stop until parents agree to go to the informal.

Whether attorneys or advocates attend the resolution session with parents is a case-by-case determination. There are pros and cons of having and attorney or advocate there, but many parents feel that they would be easily bullied if they went alone. The law anticipated that attorneys would not be involved in this process, and therefore parents cannot get reimbursed for an attorney's time spent attending the resolution session.

A resolution session is sometimes convened with only the parents and a district representative, like a special education director. However, sometimes the school district will have many participants, including members of the IEP team.

Even if a district does not typically settle cases at this level, the informal resolution process can be helpful to the overall settlement negotiations in a case. Often, the fact that a "decision-maker" has been forced to immediately get involved in the case, to meet with the parents first-hand, and to familiarize themselves with the facts contained in the complaint, can be very effective. Sometimes, if a subsequent mediation is held, it may be much more productive because it is not the first time the parties meet, and the "decision-maker" will at least have already read the complaint.

Learning Disabilities Awareness Month

2009-10-09T12:30:00.000-07:00

October is Learning Disabilities Awareness Month here in the U.S. In 1985, President Ronald Reagan issued a proclamation designating Learning Disabilities Awareness Month, and stating

"Awareness of learning disabilities is one of the most important advances in education in recent years. As more and more Americans become aware, our citizens with learning disabilities will have greater opportunity to lead full and productive lives and to make a contribution to our society."

Increased awareness - better educational programs - greater opportunities! That's the idea, and we can all play a role in making it a reality. For Learning Disabilities Awareness Month, we encourage all of our readers to participate; here are some ideas:

Increase your own awareness - educate yourself about different types of learning disabilities, programs that are appropriate to remediate learning deficits, etc. Check out LD Online, the Learning Disabilities Association, and the National Center for Learning Disabilities as good starting place. Or go to your local library and check out books on learning disabilities. Each of the websites listed above has "recommended books," and I recommend Overcoming Dyslexia - even though there are more current books out there, it provides a very comprehensive overview.
Talk to your child. If you have a child with a learning disability, this may be a great time to talk to him or her about his/her disability. Understanding your own learning needs is the first step to learning to self-advocate! There are children's books and other resources available that can help open the door for communication about these issues. Check out, for example, I Wish I Could Fly Like a Bird, a great story that teaches children to understand and accept differences. This is also a great book to share with your child's teacher as a way to introduce the topic of learning disabilities and other differences to classmates. And if you have a child who is non-disabled, this book is a great tool to increase his/her awareness of learning differences as well.
Share with your family and friends. Awareness happens because people who know and care about the issue talk about it with others. Talk to your friends about learning disabilities. Share your personal stories and insight and help them to understand why awareness matters.
Find local events. Find your local Learning Disabilities Association chapter, parent support groups for parents of students with learning disabilities, or other community groups. Many groups may be having local events to promote awareness throughout October that you can get involved in.

Throughout October, we will be posting various blog articles about Learning Disabilities, particularly focusing on special education issues related to students with learning disabilities. Check back later for more information and updates, and feel free to leave a comment if there are particular issues related to this topic you want us to talk about!

Fast Fact Friday: Alternative Dispute Resolution

2009-10-09T11:38:00.000-07:00

"Alternative Dispute Resolution" encompasses many processes by which parties resolve disagreements without going through a trial. There are many benefits to ADR in general, which include saving time and money for the parties, and possibly achieving better and more participant-oriented results. ADR has grown increasingly popular in all kinds of cases, due in part to the realization that it could lead to faster results than if parties waited to go through a hearing or a trial in an over-burdened court or hearing system.

In special education, ADR includes the following:

Informal Dispute Resolution processes established within the procedures of the local school districts, allowing for parents and the district to discuss disagreements and possible solutions without filing for due process
Resolution Sessions under IDEA 2004, which are held within 15 days of when a parent files for due process, and include parents and district representatives, possibly IEP team members
Mediation, a voluntary process in which a neutral third party mediator, assigned through whatever system is established in your state, meets with the parties to try to help them resolve their disagreement and reach a settlement
Settlement negotiations and written settlement offers, which may occur at any point during the case between the parties and which allow for the parties to attempt, independently of a third party, to reach a negotiated settlement

Fast Fact Friday: The 5 Day Rule

2009-09-04T12:53:00.000-07:00

We are entrenched in preparation for a due process hearing this week, so I thought a quick overview of one of the "rules" for a hearing would be appropriate as a Fast Fact Friday.

The IDEA's "5 day rule" for disclosure of evaluations states that:

"(A) Not less than 5 business days prior to a hearing conducted pursuant to paragraph (1), each party shall disclose to all other parties all evaluations completed by that date, and recommendations based on the offering party's evaluations, that the party intends to use at the hearing.
(B) A hearing officer may bar any party that fails to comply with subparagraph (A) from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party."

The requirement to disclose evaluations and recommendations is mandatory for both parties. For parents and their representatives, this means that any independent educational evaluations, private assessments, expert observations / reports, etc that you have obtained and will be relying upon in the hearing must be provided to the school district and/or their legal representatives 5 business days prior to the start of the hearing. This will most likely require advanced planning and communication with any experts / evaluators to make sure that any pending evaluation reports will be available to you in enough time to meet this requirement.

The remedy / punishment for failing to meet this requirement is discretionary for the hearing officer. The hearing officer is permitted by statute to bar introduction of the "relevant evaluation or recommendation." This does not mean that the hearing officer must bar the evidence. Note that the statute allows for barring not only the evaluation (i.e. the report) but also the recommendation, which could be interpreted to mean that the hearing officer can bar testimony from that expert about their recommendations for the student's program (i.e. their expert opinion).

Senator Kennedy's Inspiration and Call to Action for Advocates

2009-09-01T10:00:00.000-07:00

Last year, I was volunteering for the Obama Presidential Campaign as a Precinct Captain in my neighborhood, and also with the national call team. I was pretty fired up about the election as a whole, and watched and read the news every day avidly. Among all of the great moments, two moments at the top of my list of "important moments" both involved Ted Kennedy. The first was the day of the announcement during the primaries that Kennedy was endorsing Obama. The second was the speech given by Kennedy at the convention.

I guess, for me, those two moments were inspiring because I have always been such an admirer of Senator Kennedy, especially (as a student of rhetoric) in terms of his skill as an orator. I remember hearing that he was endorsing Obama and feeling so proud that I was involved in something he too believed in. I remember listening to the speech and comparing it to all of those I had read and heard from the earlier days in his career, and thinking about how admirable it is to see a person who is so consistent with his passion, devotion and message throughout his life.

I studied Speech Communications in my undergraduate studies at the University of Georgia. We studied various forms of rhetoric, reading speeches given in the context of social movements, from the Woman's Suffrage Movement to the Civil Rights Movement and beyond, orations given during political campaigns, and in moments of national crisis or disaster. Ted Kennedy was one of the great orators of our time. Now we can debate as to what was the greatest speech of his life, which speech was most moving, inspiring, or most important. There are many to choose from; the most notable perhaps being "The Dream Never Dies" speech from the 1980 DNC, in which Kennedy talked about all of the issues he had championed throughout his career, and ended with the rousing words "the work goes on, the cause endures, the hope still lives, and the dream shall never die." Then of course, there is the emotional and inspirational speech given at Bobby Kennedy's funeral, when he spoke of the hopes of his brother for a better world, saying the moving words "Those of us who loved him and who take him to his rest today, pray that what he was to us and what he wished for others will some day come to pass for all the world."

If you study the speeches and interviews of Ted Kennedy, it is statements like these that sum him up so well. These statements speak to the hope that he envisioned for America, the dreams and causes he believed in and fought for, and the endurance of those hopes.

For me, one of the speeches I love is not from a great moment like a funeral or a convention. It was an interview in the early 1970's in which Kennedy talked about why he believed Health Care Reform was necessary. He spoke frankly about his families struggles with medical issues, and talked about the fact that they were fortunate to have access to quality health care when they needed it. He talked about Health Care as being a right, not a privilege, and about his vision for an America in which any family would have access to the medical care they needed.

This is why I admired Ted Kennedy as a Senator, a leader. He saw issues that affect us at our most fundamental levels and looked for ways to make the world a better place. He championed the causes of the disadvantaged, and inspired others to do so likewise.

As a disability advocate, I owe much to this inspiration, and his work. Senator Kennedy introduced the Americans with Disabilities Act in 1990, prohibiting discrimination against persons with disabilities in the workplace, and requiring reasonable accommodations and accessibility which literally opened the doors to people with disabilities in places like theaters, shops, museums, hotels and restaurants. He was instrumental in the Family Opportunity Act, opening up access to Medicaid for families of disabled children, even if they were not in the "low income" status; the Help America Vote Act, requiring polling places to provide a machine that ensured access and privacy for voters with disabilities; and the Mental Health Parity Bill, which required mental health and substance abuse coverage to be on par with other coverage. Other important disability legislation included the Fair Housing Act Amendments, the Air Carriers Access Act, the Civil Rights Commission Amendments, the Comprehensive Services and Developmental Disabilities Amendments, the Crime Victims and Disabilities Awareness Act, the Employment Opportunities for Disabled Americans Act and countless others.

And of course, as an advocate in the special education field, I must be eternally grateful for Senator Kennedy's work on the Individuals with Disabilities Education Act (IDEA) and No Child Left Behind. He passionately believed, in his own words, that "all children deserve a quality education." He was an original co-sponsor of the Education for All Handicapped Children Act in 1975, which later became the IDEA, recognizing the fundamental importance of ensuring that students with disabilities were given the right to a free appropriate public education. He was also an original co-sponsor of the Handicapped Children's Protection Act, allowing for prevailing parents to recover attorneys fees, which was an important early step in ensuring a level playing field. Senator Kennedy remained committed to the cause of special education, sponsoring and negotiating the re-authorizations of the IDEA throughout the years, and he continued even through the last year to push for legislation that would promote a fair and level playing field and hearing process to protect the rights of children with disabilities.

A lifetime of work on these important issues does not come to a halt now. Now the burden is on us, the advocates and attorneys, the parents and loved ones of persons affected by disabilities, the teachers and educators, the law makers, and the community as a whole. Perhaps none of us can live up to what he has accomplished on behalf of persons with disabilities. But we must now strive to ensure that the cause goes on, and that the dream doesn't die.

Back to School: Help I need a placement! (and other concerns)

2009-08-31T14:29:00.000-07:00

It's back to school time around here, with some school districts starting back this week and many starting immediately after Labor Day. As expected, it is a busy time for all of us advocates and attorneys. Here are some of the concerns we hear all too often from parents as school starts back:

1) Where is my kid going to school?!

One of the common back-to-school disasters happens when a kid doesn't have a placement. Knowing where your kid will be in school when the year starts out seems like a pretty basic question, regardless of if your kid is on an IEP. How, you may ask, could not having a placement possibly happen?! Here are some examples based on real-life scenarios:

Scenario A: Child has been in an SDC for the past couple of years and now has "aged out" of that particular class. Parents disagreed with the offer of placement for the next school year, as the new SDC is substantially different and won't meet their kids needs. The school year starts, and parents and district are still in dispute. A problem arises because there is no "stay put" placement, since the child aged out of the previous classroom. Where does the kid go for the first day of school?

Scenario B: Child's specialized program, which the IEP team offered for this school year in the most recent IEP last spring, closed down over the summer based on an "administrative decision" and probably due to budgetary concerns, and no staff was available at that time to hold an IEP meeting.

Scenario C: Family moved into a new school district over the summer, and did not take the IEP document in to the school district because the office was closed, or they didn't know where to take it, or whatever the reason. On the first day of school, parents show up with the kid and the IEP, but the District does not have a placement readily available that is comparable to what the child previously received.

Scenario D: Child had significant emotional problems during the previous school year, to the point that he/she was unable to attend school due to anxiety. Parents requested assessments and an IEP at the end of the year, which have not yet been completed. Because there is no IEP, there is no offer of an appropriate placement, but because of the significant anxiety, child's doctor says he/she cannot return to school without a different program in place.

There are many scenarios which could lead to an issue about placement at the start of the school year. Advocates and parents (and districts) are often scrambling around at the last minute to locate an option that can be implemented. Here are a few tips on dealing with this:

Make lots of phone calls! In these circumstances, talking to a live person about the urgency of your concerns may get you further than starting off by sending a letter documenting all of the ways the district is out of compliance. That's not to say that you won't need to ultimately document all of your concerns, but starting out with a personal call may be the best first step.

Consider alternatives, but don't compromise your ultimate position. It's likely that what you are facing is a situation where there is a placement dispute that you may need to deal with further down the line through additional IEP meetings and due process complaints. In the meantime, you may have to be willing to accept some other alternative so that your child can go to school. Even if it isn't the best case scenario, this may be a situation where something is better than nothing, so you may need to consent to the placement being offered while documenting that you don't believe it is appropriate and you want to have an IEP meeting to discuss placement.

Try to anticipate these disputes. Although school is not in session and timelines for things like holding IEP meetings or conducting assessments may be different, parents can still pursue due process and all of their related rights during the summer. If you can anticipate that there will be a placement problem in the fall, try to resolve it early on. And if you have to file for due process, do so early in the summer so that the issue may be addressed in mediation, and so that you will have time to file for stay put before the school year starts if you have to.

Don't keep the kid out of school unless there is not any other option, or unless the child will be harmed in some way by going to school. Ultimately, it is the parent's choice, not the advocate's / attorney's. Parents have many factors that they have to weigh in these situations. If there is no placement in place, and the District offers something inappropriate for the start of the school year, you have to balance the advantages / disadvantages of keeping your child at home versus advantages / disadvantages of sending your child to an inappropriate placement. These are tough decisions! But ultimately, refusing to allow your child to attend the school at all, barring some clear indication that the child would be harmed, may work against you in later disputes.

2) I just got a call from the school - and they don't have an aide for my child!

This happens more often than you would think. It's the week before school, or even the day before, and parents get a phone call to say "we don't know if your child can start on the first day because we can't find an aide."

Is the aide support called for in your IEP to be provided by District staff or through a Non-Public Agency? If the aide is to be provided through an NPA, you may be able to do some of the "leg-work" yourself. Start calling around to see if any of the NPAs in your area have an aide available, then let the school know what you found out. Sometimes it is just a matter of getting the information to the right people.

Remind the District that compliance with the IEP is mandatory. If the District is saying that your child can't attend school because they don't have an aide (or other support) in place yet, document that statement in writing and also document your concerns regarding the fact that your child will lose educational benefit if he/she doesn't start the school year with all of the other kids.

Show up the first day anyway! Refusing to let your child attend school because they can't comply with the IEP is basically excluding your child from class because he/she has a disability. If school starts and there is still no aide in place, show up the first day with your child and a copy of your child's IEP and remind the District that they are obligated to implement the program called for in the IEP document. If they refuse to let your child attend class, you can follow this up with a letter documenting what happened.

3) My kid's IEP calls for transportation, but no bus showed up this morning to take him to school!

These situations arise when the school district's transportation schedule isn't all worked out before the school year starts. Sometimes, parents find out beforehand that their kid isn't on the bus schedule. Sometimes parents wait and wait the first morning, and no bus shows up. Other transportation mishaps can also happen the first week of school, like the wrong bus picking up the child, or the bus taking the child to the wrong school location.

Be patient and remember that mistakes happen. While you should document your concerns about the failure to implement transportation (which is a related service) pursuant to your IEP, you should also give the district an opportunity to correct this problem. Bus schedules are complicated, and some transportation guru who isn't part of the IEP process is working hard somewhere to map everything out and make sure the schedule covers every kid that is being transported. Make a phone call and let the school and district staff know that this happened, and that you expect the issue to be resolved immediately so that transportation is provided. Get an estimate as to when you can expect your child's bus schedule to be fixed. If multiple days go by, you may want to request that the district reimburse you for transportation you have had to provide yourself when the IEP wasn't being implemented.

4) My child is in general education, and his teacher didn't even know he had an IEP!

The start of the school year involves a lot of planning for school staff and teachers. They are busy getting their classrooms set up, creating lesson plans, studying new curriculum that will be used, organizing supplies, meeting parents, etc. If you find out that your child's teacher doesn't even know your child has an IEP, doesn't know what accommodations must be implemented, etc, it can be a very upsetting discovery! Reserve your frustration for the school district and the administrator involved in your child's IEP, not the teacher. Talk to the teacher frankly about your child's disability and why you think the IEP is important. Then make sure you let the school district know of the problem, and of your concerns regarding the fact that no one made sure the teacher had the IEP so that it could be implemented.

Ultimately, back-to-school can be a busy, stressful time for everyone involved. There are things you can do to prepare, and to help to ensure that everything will be implemented as needed for your child. But that doesn't guarantee that there won't be any back-to-school problems! Remember to stay calm, and to communicate with your child's school about the issues. Patience and persistence will help you get through whatever happens!

And one more thing- if you already have an attorney/advocate, give them a call as soon as you know these kinds of things are happening! All to often we get a phone call after-the-fact, when most likely there may have been something we could have done in the moment to help things get resolved faster! That being said, don't expect miracles! Ultimately, the District has the power to either comply with the IEP or not, to make resources available or not, or to come up with alternatives to ensure the child is educated even if disputes are happening.

Back to School: Get Ready with Organized School Records

2009-08-13T16:11:00.000-07:00

The start of the 2009-2010 school year is fast approaching, and as parents prepare, this is a great time to get all of those IEP documents, assessments, and other school records into order. Organizing your child's files is a great way to ensure that you start the school year out right. With organized files, you are able to find documents quickly, access information regarding your child's needs, and track changes in your child's program. Ultimately, you become a better and more effective advocate for your child. Here's out tips for how to do it:

Records to Gather:

All of your child's IEPs, including annual IEPs, triennial / three-year reviews, and any addendums or amendments
Any assessments conducted by the school district, including protocols and notes from those assessments
Any assessment plans or written correspondence related to the district's assessments
Any assessments, evaluations or other reports that you have obtained privately / independently
Progress reports, report cards, and results from periodic classroom assessments
Statewide or districtwide assessment / testing results
Correspondence to and from your child's school, teachers, providers, etc
Discipline records or reports regarding your child's behaviors
Other relevant documentation regarding your child's unique needs and special education program
Copy of your "parent rights" that you recieve from the school district

* You have a right to review your child's records from the school district. Make a request in writing in order to review the records or obtain copies.

Supplies Needed:

Three-ring binders - you will need at least one large binder (more if your child is older / has a lot of records) for older records and one medium to large one to organize this year's documents as you receive them
Dividers with labels. Color-coded ones work well.
Inserts with pockets for loose documents
Hole-punch
Pen or marker
Colored paper

Organizing Your Records from Previous School Years:

1. If your child is older, and has many years worth of documents, start by dividing up the documents by elementary school years, middle school years, high school years.
2. Separate the documents in piles by the following categories:
a. IEPs
b. Assessments / Evaluations, Independent Reports
c. Progress Reports, Report Cards, Statewide Testing Results
d. Discipline records, behavior notes, behavior logs, etc
e. Correspondence, communications and emails
f. Other documents
* If your child has applicable medical needs, or other areas, you can add additional categories as needed
3. Within each category, put the documents into chronological order
4. Make labels for each section of your binder using the file dividers. The labels should correspond to the above categories. i.e. Make labels for "IEPs" "Evals" "Progress" "Behavior" "Correspondence" "Other"
5. Put documents into sections in chronological order, using a single colored sheet of paper between each separate document.
* Dividing records by category has the benefit of enabling you to easily find information in your child's files and track changes in IEPs, etc from year to year. Other methods could include dividing by school year; or simply putting all documents in chronological order with an index.

Tips for Setting Up a System for Current School Year:

1. Start with labels for your second binder that match the categories discussed above. Throughout the school year, you can add documents to these categories as you receive them, which will make it easy to transfer them into your archiving binder when the year is over.
2. Add an additional divider labeled "Notes." In that section, add blank paper or some format to use as a log or journal throughout the year. Make notes of any phone conversations, meetings or other discussions with teachers and staff regarding your child's educational program.
3. Insert a folder that can be used for forms and other communications that you need to sign and return.
4. Use either the front pocket of the binder or an insert to hold a contact list with teachers, providers, IEP case carriers, district administrators, your advocate, and others who are important to the development and implementation of your child's IEP.
5. Add additional dividers according to your needs.
6. If you can print out a school calendar, put a copy of it at the very beginning of this binder.

Remember that the goal here is to make this system easy for you to utilize and access, so organize in a way that works best for you!

Back To School: Preparing for the New Year

2009-08-10T13:59:00.000-07:00

Summer is almost at an end, and soon it will be time for students, teachers and parents to gear up for school year 2009-2010! Most parents, whether of typically developing kids or kids with disabilities, are a little anxious as the school year approaches. What will this year's teacher be like? Will my child make new friends in the classroom? How will the curriculum expectations change? How will my child adjust to a new setting, like middle school? What will the homework expectations be? As parents of students with disabilities get ready for another school year, these questions also lead to questions and concerns about IEPs, assessments, progress reporting, instructional programs, related services, and other issues.

Here is a list of questions for parents to ask themselves as the school year approaches. Thinking about these things ahead of time and getting organized will help parents get this year off on the right track.

Is there an IEP “in place” for the start of the school year?

The school district is required to have an IEP in place at the start of the school year for each child within the district who is eligible for special education and related services. An IEP is “in place” if the District has made an offer of a free appropriate public education (FAPE), and is ready and able to implement the goals, services, accommodations and placement called for within that offer. If you had an IEP meeting in the spring that was not “finalized,” it should be reconvened before the school year starts, to ensure that a program is in place for your child.

Is the IEP signed / have you provided written consent?

If you agree with what the IEP team developed and the District offered in terms of goals, services and placement, you should make sure that you have signed the IEP form indicating your agreement and consent, and that this signature has been provided to the District. You don't want to be in a position of dealing with lack of implementation at the beginning of the school year because the District doesn't have your signature. If there are portions of the IEP that you don't agree with or consent to, or if you have additional concerns that have not been addressed, you should indicate this either in a letter or on the signature page of the IEP. Contact a local special education attorney or advocate to assist you with responding to the IEP if necessary.

Do you understand the IEP and the program that will be provided?

The IEP document should be clear enough for you to fully understand what goals will be addressed, how those goals will be measured, and what special education and related services will be provided. Frequency and location of the services should be specific. Additionally, the District should have included you in any team that made placement decisions, and should have provided you with adequate information about what placement will be offered / provided. Review the IEP document before the school year starts. If there are portions you don't fully understand, ask! If at all possible, discuss these questions with the case carrier, teacher or administrator prior to the start of the school year, so that when the year starts, you are fully informed about what your child will be recieving in his/her special education program.

Does your child’s teacher need additional information regarding your child’s needs?

Don’t assume that the (new) teacher has been given all of the relevant information. Although the school district must provide the teacher with information regarding the IEP so that it can be fully implemented, parents can be proactive in making sure the teachers have enough information. Most teachers will be open (and even grateful!) to friendly and courteous communication from you in regards to your child’s disability, IEP, and the accommodations he/she requires in the classroom. Share this information with your teacher at "open house" or "back to school night." Or, if appropriate, try to contact the teacher directly. Some parents I have worked with like to make a one page "cheat sheet" related to their child at the start of the school year. Remember that IEPs are often lengthy documents, and teachers have a lot of other information to review too. A single page of information about who your child is and what they need may be an efficient, friendly way to introduce yourself and your child to the new teacher.

What information came out of your child’s ESY program that should be shared with the team?

Did your child attend an ESY program or receive other instruction or services over the summer? Consider whether your child’s needs have changed over the summer in such a way that the District may need to reconsider what it has offered and will provide. For example, if your child attended an intensive remediation program that was private or outside of the school district, he/she may have made such progress that the goals written last year are not longer appropriate. Progress (or regression) may be an important consideration in many areas after a summer program, including both academics and non-academics. If you believe this information impacts the IEP, go ahead and let the District know in writing that another meeting needs to be convened to consider current data and make appropriate adjustments. Share information from the program, including progress reports and other data, when appropriate.

Are you aware of how progress will be reported to you during the school year?

Progress reporting is an important part of how you as a parent will be involved in the ongoing development of your child’s program. If you are not fully aware of your child’s progress, or lack thereof, you cannot effectively advocate for changes in the IEP when they are required. The IEP document is required to contain a statement of how progress will be measured and of when you will be provided periodic progress reports on your child’s goals. Check the IEP and make sure this is clear, and mark it on your calendar so that you can know when to expect reports.

What other things do you need to discuss with your child's teacher?

There are some things you will want to know about the new school year regardless of whether or not your child has an IEP. What school supplies does your child need? What are the schoolwide and classroom rules? Will there be any big projects this school year that you should plan on in advance? What are the homework expectations and policies in this class? Most importantly may be the question of how you will communicate with the teacher, and how information you need will get home to you. Will there be notes placed in your child's backpack? Are phonecalls / emails appropriate? These are things you should think about and gather information regarding. I often think that one of the biggest hurdles for parents involved in the special education system is communication. While many districts, administrators and teachers are great at communicating, too often there are limits and attitudes about communication with teachers in the special education world that would not necessarily even come up within the general education world. Remember that your child is a student first, and a special education student second. If you approach the start of the year as would any parent in the general education community in regards to opening the doors of communication with your child's teacher, those doors will possibly stay open for productive, two-way communication.

Have appropriate arrangements been made for transportation, medications, etc?

If your child's IEP calls for transportation to be provided as a related service, make sure that arrangements are in place for transportation to be implemented, and that you know the schedule, drop off / pick up place, and other relevant information. If your child is taking regular school district transportation, you also need to find out all of the relevant details regarding that. Otherwise, if you are arranging for transportation privately or are taking your child to school yourself, make sure you know the whens, wheres and hows of drop off, pick up, etc.

Medications may also require some advance planning and arrangments. Make sure all medication and prescription information is up to date, and see your child's pediatrician before school starts if needed. Fill out and return any necessary forms for the school nurse related to medication dosage and administration. If your child's teacher also needs to be made aware of any medication information, including possible side effects, share this information as appropriate.

Do you have organized records and a system in place for gathering documents related to your child's education?

Having everything organized is a great way to start the year off right. We recommend that parents organize their child's documents by category; IEPs, assessments, correspondence / communications, progress reports, other; and then chronologically within the category. There are other ways to do it: you could organize everything in one place chronologically with an index, or you could have a separate folder / binder for each school year. Go to the back to school section at the local discount store or supply store and get a three ring binder and some dividers, and then decide what system will work best for you.

The National Center for Learning Disabilities has a great checklist for what you should have within your child's records. You can print it out at their website. Your records should be in a system that is easily updated so that as the year goes by, you can add progress reports and other documents as appropriate. It is also a good idea to have a designated place for forms that you need to review, fill out and return to the school.

What can you do to prepare your child?

Back to school time is a transition, and can be stressful for any child, particularly for some children with disabilities. In most circumstances, there are many things parents can do to make the transition less stressful. "Priming" your child for the school year can be a great strategy - talk to your child about what to expect, focusing on the positive aspects. Let your child tour the school if needed or if it is a new setting. Work with your child's providers, if possible, to develop strategies like social stories to help the child get ready for the new year. Most importantly, be a good listener and listen to any concerns or worries your child has about school.

The website "Additude" has a great article on preparing your child with ADHD for going back to school, and their tips would be applicable to many kids with other diagnoses as well.

Remember that the IEP process is a team process, and truly successful implementation of an appropriate education can only come through team effort as well. If everyone does their part to get the school year started on the right track, there is a much greater opportunity for building success and meaningful progress for the child, as well as productive cooperation between parents and teachers throughout the year.

Autism on 20/20 Tonight

2009-08-07T12:29:00.001-07:00

Watch 20/20 tonight, and be inspired by Carly, and
by her family's determination to help her find her voice.

You can read more about Carly on at "Carly's Voice"

Fast Fact Friday: Individual Services Plan

2009-08-07T11:05:00.000-07:00

There are certain circumstances where a Parent of a student with special needs may decide to place their child in a private placement even if they believe the school district is providing an appropriate placement.

A parentally-placed private school child with a disability is, under the law a child "with disabilities enrolled by their parents in private, including religous schools or facilities that meet the definition of elementary school or secondary school," who have not been referred to that placement by the LEA. See 34 CFR 300.130. When you have privately placed your student, generally speaking, you are not entitled to services for that student.

School districts do, however, have an obligation to allocate some special education funds to parentally-placed private school children. If the school district decides to provide a student with any services they must develop an individual services plan, which describes the specific special education and related services to be provided to each private school student. See 34 CFR 300.132(b). These service plans are to be developed, reviewed, and revised consistent with the procedures governing IEPs. See 34 CFR 300.137(c)(1). In preparing service plans and providing services, the district must consult with private school representatives. See 34 CFR 300.137(c)(2). In particular, the district must ensure that a representative of the private school attends these meetings, or in the alternative, uses other methods to secure the involvement of such individuals such as individual or conference phone calls.

IEPs are generally more comprehensive than the more limited services plans developed for parentally placed private school children with disabilities designated to receive services. A services plan should reflect only the services offered to a parentally placed private school child with a disability designated to receive services and must, to the extent appropriate, meet the IEP content requirements or, when appropriate, for children aged three through five, the IFSP requirements as to the services that are to be provided. See Questions and Answers on Serving Children with Disabilities Placed by Their Parents at Private Schools, 106 LRP 57733 (OSEP 2006).

What to Expect When You're Expecting an IEP

2009-08-07T09:00:00.000-07:00

With the start of school looming in the not-so-distant future it's time to get prepared for those IEP meetings - you know the ones you requested at the end of the school year and will be happening sooner than you know it once school is back in session. So here's some pointers for what you can expect when you're expecting an IEP and what to avoid.

Preemptive Strikes

If you requested an IEP at the end of the school year the District may have already scheduled an IEP or may be contacting you shortly to do so. As with many IEPs the District may only schedule a few hours for the meeting. If you think the meeting is going to take longer or, especially in this scenario, the IEP is to review reports from the school district, which you have not received a copy of yet, make a request for two IEP dates. As soon as school starts, if not sooner, send a follow-up letter requesting a second IEP date in the event that the meeting does not finish in the allotted time - indicate that if you have a chance to review the District's reports ahead of time then you likely won't need the second meeting. This will have one of two results: 1) the district will make sure you get the reports ahead of time; or 2) they won't be shocked when you ask to have more time to review the reports and come back a week later to finish the IEP. (Well in all honesty there is a third option where someone moans and whines about coming back again to finish the IEP - in that circumstance let them know that you value their time but you did indicate that you would need the reports ahead of time so they should really talk to the person in charge.)

Another issue that you may need to take a stand on before the meeting even happens is attendance of IEP members. Under the law required IEP team members need to be present or have been excused ahead of time. Required members include the core team members as well as anyone who may have done an assessment, for example. Many a time a school district will wait until the meeting to give you a form to sign to have the member leave or just say they have to leave. If you think you need all the members there the whole time or there is someone in particular whose input you think is necessary - let the district know in writing beforehand that you expect that person or persons to be in attendance the whole time or -again - they can schedule another meeting the following week to ensure full audience/IEP team member participation.

What Not to Say and How Not to Say It

I have clients ask me all the time what they shouldn't say at an IEP meeting. Generally speaking you should feel free to share any information you think is important about your child.

What you should not say is that you want what is "best" for your child. That's the most dreaded four letter word a client could say. As harsh as it may be and even if the district members of the IEP team freely toss it around,your student is not entitled to the "best" and therefore don't ask for it. And if you say it once you can't take it back - someone, somewhere at some point will remember that. (If only there was a citronella collar for parents that would spray them in the face every time they said "best" like with a barking dog.)

Also don't yell at the IEP team. I realize that this is emotional and that now that you can't say you want what is best you're feeling a little frustrated and that someone may be looking at you like you asked for your child to take a shuttle to the moon instead of an extra half hour of speech but above all else it is best if you keep your cool. Why? Well for starters every member of the team may not remember why you yelled but they will remember that you did and that can hurt your creditability later on if you need to go the next level (such as a due process hearing). Second, if you do decide to litigate a matter you don't want the impression that it was done for any other purpose other than to get what is appropriate for your child, and not to retaliate against the school district. Which brings us to a whole other list of things not to say - that you will make them pay, that you will sue someone personally, etc. Basically, you need to be the Mother Theresa, Gandhi, Dalai Lama, Martin Luther King of the IEP team. Find a way to get your point across and still get along with everyone or at least be civil.

Finally, know when it is best to say nothing at all. If the district is digging themselves a shallow grave - let them do it. This is probably the hardest part of any IEP meeting and can probably best be demonstrated with a real-life example. If you are tape recording an IEP meeting and several members of the team indicate that they don't have the power to make a decision in this matter and that you will need to speak to someone at the "district' (which apparently they are not a part of), just ask for clarification ("So, just to clarify you can't offer my student a NPS, speech and language, etc.") and when they affirm it is best to be quiet at this point. Why? Well, if you've been paying attention you would know that this is clearly a big no-no on the part of the IEP team and someone at the "district" may be more willing to be cooperative after you share this snippet of information.

Don't Sign Anything

I've said this before (I'm sure) but don't sign anything at the meeting that you haven't fully had the chance to read - and this goes for more than the IEP itself. What could they possibly ask you to sign, you ask, well here are a few: an invitation to the IEP meeting (that you never received), an assessment plan (for an assessment they will be presenting that you never agreed to or participated in), or an excusal of IEP team members (who you want there). Note that most of these are items that you had to agree to before the IEP meeting, not once you are sitting there ready to go.

My Favorite Thing To Say

And no it is not supercalifragilisticexpialidocious. It may, however, make you sound precocious. Anyway, I have found it is a way to disagree with what someone is saying and yet make them feel in control of the situation. Here's the setup: An IEP team member is rattling off about how your child does not need some related service, let's say speech and language. You, however, have their own report which indicates that the student has needs in the area of pragmatics. What to say: "Correct me if I'm wrong, but couldn't a speech therapist address pragmatics, and doesn't your report indicate that is an area of concern?" And now what can they say? The trick, of course, is to not ever say anything that is wrong and therefore never be corrected.

If after reading this you are under the impression that these types of scenarios could never happen - then it is likely you're a first-timer or early on in the process and would benefit from learning about what is legally mandated to be in an IEP. You should then see the posts labeled "Breaking Down the IEP" - a series of posts that walks you through the nuts and bolts of what goes in an IEP. The most beneficial thing a parent (or teacher, or any other IEP participant) can do is to educate themselves about IEPs, special education programs, and the rights and responsibilities of parents and districts. The more you know, the better you can advocate for your child!

Related Services: Medical Services

2009-08-06T13:13:00.000-07:00

Under the IDEA "medical services" that are eligible "related services" are those specific "services provided by a licensed physician to determine a child's medically related disability that results in the child's needs for special education and other related services." 34 CFR 300.34(c)(5). Therefore, if the medical services is necessary for diagnostic purposes it is required under the IDEA.

The Supreme Court has adopted a bright line rule on this issue as well, finding that medical services that can only be delivered by a physician are not related services and that health care support services, which can be administered by a person other than a physician are related services under the IDEA and therefore the responsibility of the school district. See Irving Independent School District v. Tatro, 555 IDELR 511 (1984), affirmed in Cedar Rapids Community School District v. Garret F. by Charlene F., 29 IDELR 966 (1999).

The Department of Education clarified in the 2006 IDEA Part B regulations that school districts are responsible for "providing services necessary to maintain the health and safety of a child while the child is in school, with breathing, nutrition, and other bodily functions (e.g., nursing services, suctioning a tracheotomy, urinary catheterization) if these services can be provided by someone who has been trained to provide the service and are not the type of services that can only be provided by a licensed physician." See Analysis of Comments and Changes to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46571 (August 14, 2006). Thereofre, a medically fragile student, for example, would be eligible for health care related services that are supportive services the child needs to receive during the day in order to be able to attend school and thereby benefit from his or her education and should be noted in the child's IEP.

The Department of Education also clarified what type of medical services would not be related services. Specifically the DOE clarified that the optimization of a surgically implanted device's functioning, maintenance of the device or replacement of the device that requires the expertise of a licensed physician or an individual with specialized technical expertise beyond that typically available from school personnel (e.g., mapping of a cochlear implant) was not a related service. See id.; see also 34 CFR 300.34(b)(1). This does not limit, however, the right of the student with a surgically implanted device to receive other related services that are necessary for the child to receive a FAPE. It also does not limit the responsibility of the district to monitor and maintain devices that are need to maintain the health and safety of the child while he or she is being transported to and from school or is at school. Nor does it prevent the routine checking of a external component of a surgically implanted device to make sure it is functioning properly. See 34 CFR 300.113(b).

One related health service that a school district would likely responsible for would be vision therapy, if it was necessary to assist the child's educational needs and did not require administration by a physician. The decision about whether a student requires a related service such as vision therapy is, of course, a case-by-case determination for what is required for a FAPE.

For example, in Dekalb County Sch. Dist., the 11th Circuit ruled that a district's IEP for a student with a visual condition, which had not manifested itself in poor educational performance, prevented him from receiving FAPE. The court upheld an order to the district to pay for the student'svision therapy services. The evidence showed the student's significant visual problems would become much worse and interfere significantly with his ability to benefit from special education without the therapy. Therefore, the district was required to provide vision therapy in order to offer the student FAPE. See Dekalb County Sch. Dist. v. M.T.V. by C.E.V. and C.T.V., 45 IDELR 30(11th Cir. 2006). In Eugene Sch. Dist., however, it was determined that a student eligible for special education with Emotional Disturbance did not require vision therapy to benefit from his education as his above-average performance in reading comprehension undermined the parent's position that he required vision therapy to make academic progress. See Eugene Sch. Dist. 4J, 35 IDELR 52 (SEA OR 2001).

Breaking Down the IEP: Frequency, Location and Duration

2009-07-31T15:03:00.000-07:00

The IEP document must include a statement of the special education, related services and program modifications to be provided to the student. In regards to those components, the statute includes an additional requirement that designates specific details about the services that must be included.

The IDEA requires the written IEP document to include:

"the projected date for the beginning of the services and modifications... and the anticipated frequency, location and duration of those services and modifications."

20 U.S.C. section 1414(d)(1)(A)(VIII).

When will the services and modifications described in the IEP begin?

The projected start date describes when the IEP will be "in effect" for this student. In many instances, an IEP can begin to be implemented right away. However, in some instances, the IEP team may be meeting for the purposes of determining services that are to begin at a later date, for example the following school year.

In any event, the IEP document needs to specifically state when the services are to begin. The District is required to implement that IEP consistent with the start date and in a manner that does not delay the provision of FAPE to the student.

What will be the frequency and duration of the services?

This is the "how often and how much" portion of the IEP. Once services are identified as necessary for the child, the IEP team needs to determine how often the child will recieve those services and how much time will be provided for each service. This determination should be individualized, and based on the child's identified unique needs, not based on a policy or district administrative decisions. For example, how often a child should recieve speech therapy should be based on his/her unique needs in the areas of speech, language and communication, how those needs impact his/her ability to access the curriculum, how these needs impact his/her functional skills, interactions with peers, etc, and other individual factors like attention span, or how the child generalizes skills. It should not be based on a district determination that all children with this disability recieve 2 times per week of speech therapy.

Whatever the IEP team determines, the IEP document must include a statement that is specific as to the frequency and duration of the services, so that all of those involved in developing and in implementing the IEP fully understand exactly what is to be provided.

What will be the location of the services?

Location can relate to several different considerations. Location may mean whether the service is to be provided within the child's classroom setting or whether the service is to be provided in a separate setting, like a therapy room, clinic setting, or counseling office. Location may mean whether the service will be provided at the school the child attends or at a private or non-public agency's office, like the office of a private speech pathologist or occupational therapy. Finally, location may mean the actual school that the child will attend and where the child will recieve services, although this definition of location causes much debate.

The IEP document is required to specifically identify the location of the services. Although there are many different things the IEP team should consider in determining location and how it should be described, the team should avoid generalized statements like "a district school location" and try to include specific information that gives the parents and other team members enough detail to understand what is being provided.

Importance of this information

"The amount of services to be provided must be stated in the IEP so that the level of the agency's commitment of resources will be clear to the parents and other IEP team members." Appendix A to 34 C.F.R. part 300, at Q35. This required content serves the purpose of clarifying the District's implementation duties, so that all persons working with the child understand what is to be provided and at what rate. It also serves the purpose of providing parents with enough information to meaningfully participate in the development of the IEP and fully consider the appropriateness of what is being offered. A parent may agree, for example, that her child requires speech therapy, but without knowing how much speech therapy is offered, it would be impossible for the parent to know if the IEP was appropriate.

The requirement that the IEP document location of services is a cause of much debate. Location in terms of in-class versus out-of-class (or the "push-in" model versus "pull-out" model) may be debated between parents and educators. In recent years, more emphasis has been placed on providing "push-in" services within the classroom setting or other natural environments. While this model is supported by the idea of providing services in the least restrictive environment, parents often feel that their child cannot fully benefit without more individualized services outside of the classroom setting.

Location in terms of the physcial school site is also a debate. In many cases, judges have agreed with school districts that the specific school site is an administrative decision, and that therefore failure to designate the specific school is not a FAPE violation, depsite the requirement that the IEP designate the "location" of services and program modifications to be provided. In some specific cases, however, the failure to identify a specific school has been found to deny student a FAPE. See, for example, A.K. v. Alexandria City School Board, 484 F.3d 672 (4th Cir 2007).

As with any component of the IEP, if the team determines that a specific location is requried to provide the student a FAPE, then that location needs to be specifically identified. In any case, some information describing the location of the services, along with the frequency and duration of the services, must be provided to conform to the statute and allow parents to meaningfully participate in the process.

Breaking Down the IEP: State- and District-wide Assessments

2009-07-31T12:00:00.000-07:00

The IDEA requires that the written IEP document include:

"a statement of any individual appropriate accommodations that are necessary to measure the academic achievement and functional performance of the child on State and districtwide assessments...; and if the IEP team determines that the child shall take alternative assessment on a particular State or districtwide assessment of student achievement, a statement of why (AA) the child cannot participate in the regular assessment; and (BB) the particular alternative assessment selected is appropriate for the child."
20 U.S.C. section 1414(d)(1)(A)(VI)

What are state and district-wide assessments?

A lot can be written and discussed about the topic of state-wide and district-wide assessments, especially in regards to "high stakes testing." Because this blog post is focused on what is required content in the IEP related to such assessments, only a brief overview is provided: State-wide assessments are standardized measures utilized by school districts throughout the state to determine a child's academic achievement within a particular grade level. These assessments are determined by state law or the state department of education, and are utilized to measure a school's performance. Some states mandate specific tests that are used as part of the determination of whether a child moves from grade to grade, or whether a student earns a diploma. Because performance on these tests has such an impact, these tests are referred to as "high-stakes testing." District-wide assessments are standardized measures utilized within a local education agency / school district, as determined by district policy. These measures may be given at the end of the year, or periodically throughout the year. Sometimes, they are directly tied to the curriculum a school district is using. Periodic or yearly district-wide assessments are used for a variety of reasons, such as determining a child's progress, determining which students require intervention within the general education program, etc.

What individually appropriate accommodations are necessary and how should they be documented?

The IEP document must include individually appropriate accommodations based on the particular student's unique needs that are necessary on district-wide or state-wide testing. Accommodations should be those which the child needs in order to have an equal opportunity to participate in the assessment, and so that the assessment measures the child's academic achievement with minimal impact by that child's disability. If, for example, a child is extremely distracted in a large group setting, a separate testing area may be necessary.

The IEP document should be specific about these accommodations, avoiding generic language that is not easily interpretted by anyone reviewing and implementing the accommodations. It should specifically spell out what accommodations are needed and how those accommodations will be provided / implemented.

Will accommodations affect how the tests are normed or graded?

Another issue that could be discussed in length, but will only be discussed for purposes of this post briefly, is the issue of how accommodations affect the norming or grading of an assessment measure. This is a question that parents should ask during an IEP team's discussion of accommodations. Accommodations that seriously change what is actually being measured are actually modifications, and these may mean that the test is not "normed" or even that it is not reported for purposes of the school district's accountability reporting. If you want to see what your child knows as compared to same-grade peers, normed assessments may give you a good indication, assuming that appropriate accommodations have been given to give your child a fair chance. In any event, this is a discussion that impacts the parents ability to fully participate and understand what accommodations are appropriate, and so this discussion should be held when the IEP team is determining what to document about accommodations.

What are alternative assessments and how are they to be documented in the IEP?

Alternative assessments are related to the provision of alternative curriculum standards that are modified, rather than based upon grade level curriculum standards. If a child is recieving alternative curriculum rather than general education curriculum with modifications, accommodations and supports, then the IEP team may determine that the child should participate in alternative assessment measures, rather than the standardized district-wide or state-wide testing. Again, this is an issue that can and should be discussed in length elsewhere. For purposes of this blog, it is important for IEP participants to understand what should and must be documented with regards to this issue.

The IEP document must include a statement of why the student cannot participate in the regular district-wide or state-wide assessment. This statement should be specific to the child and based on the individual child's unique needs, rather than a generic statement. A statement, for example, that "because of Child's autism, the statewide testing is not appropriate," is not a clear statement of why the child cannot participate. This statement would seem to indicate that no child with autism could participate, which is certainly not the case for any disability. Therefore, the statement should include specific information regarding that particular child, and why the child cannot participate. Specific information will be useful down the line because as the child's needs change and he/she makes progress, it will be easier to reevaluate whether the regular standardized measure is now appropriate.

The IEP document also must specify what particular alternative assessment was selected and why that particular alternative assessment is appropriate for that specific student. Again, this statement should be based on the child's individual needs, rather than generic language about an assessment measure. It is interesting to consider that the IDEA requires such a statement, given that most districts utilize one alternative assessment measure that is used for all students who cannot participate in regular testing. The language of the required content in regards to alternative assessments implies that the IEP team is to make an individualized determination and to document a clear explanation of how that determination was based on the child's individual needs.

Fast Fact Friday: School of Residence

2009-07-31T10:00:00.000-07:00

The terms "neighborhood school," "school of residence," or "home school" are often used interchangeably by school districts, parents and others. A child's "school of residence" is the specific school site that he or she would attend if not disabled. "School of residence" is determined by a district procedure that is used to determine what school each child in the district is assigned to, usually it is determined geographically according to the address of the parents. This is the school you would enroll your child in if there wasn't an IEP in the mix.

There is no absolute requirement that children attend their school of residence, even if they are fully included in a general education setting. The choice of appropriate placement depends on the child's unique needs as determined by the IEP team. Some school districts have policies that require all kids with IEPs who are placed in general education to be placed in their home school. Although this may be beneficial to some kids, there are parents who have concerns about the lack of an individualized decision in these situations. On the other hand, many parents may be in a school district that does not have such a policy, but instead may have a practice of grouping kids with IEPs at particular school sites that have inclusion support and other services. Parents in those districts may be concerned about the fact that their child then cannot be included in their "neighborhood school" with kids from their community.

Ultimately, parents have to be included in any team that is making placement decisions about their child. A child's school of residence is one placement consideration on the continuum of available options, and parents should think about the positive benefits of placement in the neighborhood school and discuss these benefits with the team.

Breaking Down the IEP: Explanation of Non-Participation in Regular Education

2009-07-30T09:00:00.000-07:00

Many of the other required content components of a written IEP document are directed at how a child can and will participate in the general education curriculum and regular education environment.

To recap: PLOP must state how a child's disability affects his/her involvement and progress in the general curriculum. Goals must be included that enable the child to be involved in and progress in general curriculum. The statement of special education and related services must include those services that are required to enable the child to progress in general education curriculum as well as to participate in activities with and be educated with non-disabled peers. Supplementary aids and services must be included that allow the child to participate in general education to the maximum extent appropriate. Even supports necessary for staff can be related to a child's participation in general education.

After all of that effort to include components geared towards inclusion in general education, it logically follows that if a child is still unable to participate in general education to any extent, that should also be documented.

The IDEA requires that the written IEP document include:

"an explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and in activities[]."

20 U.S.C. section 1414(d)(1)(A)(V)

Look to your state's education code as well, as there may be additional language requiring documentation of a child's non-participation in general education. California law, for example, required the District to "document its rationale for placement in other than the pupil's school and classroom in which the pupil would otherwise attend if the pupil were not handicapped. The documentation shall indicate why the pupil's handicap prevents his or her needs from being met in a less restrictive environment even with the use of supplementary aids and services." Title 5, California Code of Regulations, section 3042(b).

In any event, the IEP document must include at a minimum an explanation that describes the extent to which the child will not participate in a regular class and activities. This can be done a number of ways. The IEP document may include a percentage of time, that indicates for X% child will be placed in general education classes, and for X% child will be placed in a special education setting. The IEP document may list specific time periods, subjects or classes, such as "child will participate in a general education class / setting for homeroom, math, science, social studies, computers, lunch and recess; child will participate in a special education classroom for language arts and reading." The IEP document needs to be clear so that those developing and implementing it understand how much the child is not to participate in the general education setting. It is also good practice to indicate the explanation, or justification, for removal from that setting.

The requirement refers not only to a regular classroom, but also to regular activities. Therefore, the extent to which the child will not be able to participate in regular education activities should also be documented in the IEP. This may include extracurricular and nonacademic activities in some cases, or may indicate recess, assemblies, etc.

These requirements are built into what is to be included in the IEP document in order to prompt the IEP team to fully consider LRE. If the IEP team needs to document an explanation for the child's nonparticipation in a general education setting, the theory is that it will give more careful consideration to the determination that the child should be removed from that setting.

Remember, like all required content, this statement should give parents enough information to fully participate in the development of the IEP. Parents need to understand when, why and how a child will be removed from the least restrictive environment in order to fully consider such an option.

Related Services: Services for Parents

2009-07-29T18:16:00.000-07:00

Although not often included within an IEP document there are related services provided for under the law that are specific to Parents. The 2006 IDEA Part B regulations made it clear that while the 2004 statute did not include these services, the Department of Education believed that retaining the parent services were necessary in order to provide parents with counseling and training necessary to support the implementation of their child's IEP. See Analysis of Comments and Changes to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46573 (2006).

There are five types of related services that an IEP team may find are appropriate for parents:
1) Counseling and guidance of parents regarding hearing loss and the related service of audiology. 34 CFR 300.34(c)(1).
2) Parent counseling and training. 34 CFR 300.34 (c)(8) This includes assisting parents in understanding the special needs of their child, providing parents with information about child development, and helping parents to acquire the necessary skills that will allow them to support the implementation of their child's IEP.
3) Planning and managing a program of psychological counseling for children and parents. 34 CFR 300.34 (c)(10).
4) Group and individual counseling with the child and family. 34 CFR 300.34 (c)(14).
5) Counseling of parents regarding speech and language impairments and the related service of speech pathology. 34 CFR 300.34(c)(15).

A parent may be eligible to receive sign language training in order to have the necessary skills to implement the child's IEP. See 34 CFR 300.34(c)(8). Although not automatically provided to parents of a student who is deaf or who has speech deficits, it is required when an IEP team decides that such training is needed for the student to benefit from special education. See Letter to Dagley, 17 IDELR 1107 (OSEP 1991); see also Letter to Anonymous, 19 IDELR 586 (OSEP 1992).

Hearing officers have also found that a LEA has to reimburse parents for private evaluations of students finding that the assessment was required to help parents acquire the necessary skills that will allow them to support the implementation of the child's IEP. See Hawaii Dep't of Educ., 102 LRP 3706 (SEA HI 2000) (finding that the state education department had to reimburse parents for testing and evaluations of their child performed by a private evaluator).

Parent training can also be provided in the home setting. In re: Student with a Disability, a hearing officer determined that an IEP for an 8-year old with Autism was not sufficient because it did not include parent training. In that case the IHO cited New York state regulation that mandated parent counseling and education for the purpose of enabling parents to perform appropriate follow-up intervention activities at home for children who were classified as autistic. The IHO concluded that the evidence overwhelmingly pointed to the need for training to enable the parent to perform follow-up ABA therapy in their home. Furthermore, the IHO disagreed with the district's position that simply informing the parent that she could come to school and observe ABA instruction was sufficient to satisfy its IDEA requirements. See In re: Student with a Disability, 102 LRP 8600 (SEA NY 2000).

Under some circumstances, transportation services are also available to parents when a student is placed at a residential placement. The IDEA does not set a minimum on the number of parents visits that a LEA is expected to fund to the residential facility. If a state or district policy on the number of trips does exist, however, it must allow for a case-by-case determination of how much visitation is necessary given the student's unique needs. A district may be required to fund a number of visits to a placement in order for parents to participate in other related services. In New Prairie United School Corporation, the court found that the district was obligated to fund either 12 parental visits to the school annual or 12 visits home, where parental visitation allowed for parents to participate in a family therapy program and training. See New Prairie United Sch. Corp., 30 IDELR 346 (SEA IN 1999). In Aaron M. by Glen M. and Lindy M. v. Yomtoob, the court found that parents were entitled to six trips per year to son's out-of=state residential placement in order to learn skills and strategies to work with their son. See Aaron M. by Glen M. and Lindy M. v. Yomtoob 38 IDELR 122 (N.D. Ill. 2003).

Breaking Down the IEP: Statement of Program Modifications

2009-07-29T09:00:00.000-07:00

In addition to special education, services and supplementary aids and supports that are provided directly to the child, as discussed in the previous report, the written IEP document also includes those supports that are provided to school personnel. These modifications and supports may be critical to the child's ability to progress in his/her program and to the determination of the child's least restrictive environment, and this factor should not, therefore, be glossed over by the team or in the document.

The IDEA requires the written IEP document to include:

"a statement of the program modifications or supports for school personnel that will be provided for the child (aa) to advance toward attaining the annual goals; (bb) to be involved in and make progress in the general education curriculum... and to participate in extracurricular and other nonacademic activities; and (cc) to be educated and participate with other children with disabilities and nondisabled children in the activities described in [the IDEA]."
20 U.S.C. section 1414(d)(1)(A)(IV)

Program Modifications

Modifications generally involve changes to the program in terms of what a child is expected to produce or demonstrate within the curriculum. A change in the child's instructional level (i.e. reducing the grade level of what is presented) or a change in the content (i.e. reducing the amount or changing what is presented) can be program modifications. Likewise, if the format or performance criteria for tests and other curriculum-based achievement measures is substantially changed, so that what is being expected / tested is actually different, that would be considered a program modifications.

Modifications can be distinguished from reasonable accommodations. Accommodations can also be important to a child's individualized plan, but do not involve substantial alteration of what is expected in terms of performance and achievement within the curriculum. Accommodations may involve differences in how material is presented, how homework is given, how a test format looks, the setting, timing, etc. Accommodations in a classroom may involve preferential seating, repeated directions and reminders, etc, to assist the child in having an equal opportunity to learn.

Supports for School Personnel

These supports include "services that are provided to the teachers of a child with a disability to help them to more effectively work with the child." Comments to 1999 regulations, at page 12,593. These services could include collaboration and communication with other providers or supports provided within the classroom. "Supports for school personnel could also include special training for the child's teacher... [such training] would normally be targeted directly at assisting the teacher to meet a unique and specific need of the child, and not simply to participate in an inservice training program that is generally available within a public agency." Comments to 1999 regulations at page 12,593.

There is a difference, therefore, in training that is provided to everyone, versus training that is provided to this particular teacher based on this particular child's needs. However, even if the teacher is attending an inservice that is available to others, there may be an argument for having this documented in the IEP. The team needs to remain focused on the unique needs of this child, and if the teacher requires additional inservice training to meet those needs, training he/she would not require if this particular child were not to be placed in his/her classroom, then this is an appropriate part of the IEP document.

Relationship to Child's Goals and Individual Program

Program modifications and supports for personnel that should be included in the written IEP are those that are necessary for the child to make progress towards annual goals and towards general education curriculum. The IEP team needs to consider the child's individual goals, and how those goals will be met. Does the teacher require training, support or assistance to be able to provide the research-based specialized instruction that the team has determined to be appropraite? If so, that may need to be added to the IEP.

Relationship to General Education Curriculum and Least Restrictive Environment

The relationship between program modifications and supports for personnel to a child's access to the general education curriculum is so important that the IDEA specifies that the general education teacher participating in the development of the IEP must be involved in the determination of such modifications and supports, as well as any supplementary aids and services provided to the child. See 34 C.F.R. section 300.324(a).

Modifications to the program may be required in order for the child to be involved in and progress in the general education curriculum, and the necessity of such modifications should not be considered evidence that general education curriculum isn't appropriate. Rather, the IEP team needs to decide, and document, what modifications are appropriate on an individual basis so that the child can access the general education curriculum in a manner that is appropriate to his / her unique needs and learning difficulties while still allowing for progress.

A school district may state that if a child requires program modifications, rather than merely accommodations in the classroom, then it is not appropriate for that child to be in a general education classroom. This position is not consistent with the IDEA's preference for least restrictive environment, or with the statute's requirement that the written IEP document include a statement of program modifications that allow for the child to be involved in the general education curriculum and to be educated and participate with nondisabled peers.

Likewise, the IEP team needs to fully consider, and clearly document, supports for personnel that are required in order for the child to access general education curriculum and to access the Least Restrictive Environment. Maybe the general education teacher needs some in-service training related to the child's disability or to behavioral strategies or communication strategies so that the child can be in the general education classroom; if the training is required specifically to meet your child's individual needs, this in-service should be documented as a support for the personnel. Perhaps the teacher needs additional assistance in the classroom, even if the child does not individually require a 1:1 aide; if so, this support should be documented in the IEP. Even something like consultative time from the child's related services providers may be considered an important support for the teacher and staff. It is important that the general education teacher be an active participant in these discussions, and that the IEP document clearly indicate what supports will be provided.

Breaking Down the IEP: Statement of Special Education and Related Services

2009-07-28T10:00:00.000-07:00

Inherently, an Individualized Education Plan should include documentation of the program to be offered to the student. The IDEA requires the written IEP document to include:

"a statement of the special education and related services and supplementary aids and services based on peer-reviewed research to the extent practicable, to be provided to the child, or on behalf of the child...(aa) to advance appropriately toward attaining the annual goals; (bb) to be involved in and make progress in the general education curriculum... and to participate in extracurricular and other nonacademic activities; and (cc) to be educated and participate with other children with disabilities and nondisabled children in the activities described [in the IDEA]."

20 U.S.C. section 1414(d)(1)(A)(IV).

Description of special education and related services

"Special education" includes the specially designed instruction or other specialized program to be provided to the child in order to allow that child to make progress in general education, advance towards goals, and participate in activities with peers. Specially designed instruction is a hot topic, because often when discussing instruction, issues of specific curriculum or methodologies arise.

For purposes of the IEP document, the IDEA requires a specific statement of the special education to be provided to the child. While "methodology" and specific "curriculum" may be generally within the discretion of the District, if a student requires a specific program in order to receive FAPE, it may be necessary for that program to be described in the IEP document. In any event, the IEP should contain some description of what is to be provided.

Related services include those specific services that are included in a child's program in order to meet the child's needs and provide him/her educational benefit. If a related service is required in order for the child to receive a FAPE, it should be described in the IEP document, along with details about when and how this will be provided, as will be discussed in a future post. Related services include those services listed in the IDEA, such as speech therapy, occupational therapy, etc.

The US Department of Education has clarified that

"the amount of services to be provided must be stated in the IEP, so that the level of the agency's commitment of resources will be clear to parents and other IEP team members. The amount of time to be committed to each of the various services to be provided must be (1) appropriate to that specific services, and (2) stated in the IEP in a manner that is clear to all who are involved in both the development and the implementation of the IEP."

Appendix A to 34 C.F.R. part 300, at Q.35.

The IEP document needs to state with specificity what services will be provided to the child. Some school districts believe that if a services is just a "part of their program" it doesn't have to be listed, but this isn't necessarily true and does not comport with what the statute requires. If the child is to be provided APE, for example, to meet his or her needs, the IEP document should state so, even if every other child in that class also happens to be provided with APE as part of the program.

Description of supplementary aids and services

Supplementary aids and services include related services, accommodations and supports, consultative services for teachers, etc. The statute specifies that supplementary aids and services to be provided to the child or on behalf of the child should be described in the IEP document. Examples of supplementary aids and services provided on behalf of the child may include training for a teacher or aid in a particular program or about a particular disability.

The phrase "supplementary aids and services" is also referred to within the language regarding Least Restrictive Environment, and it is important therefore to remember that within the requirement for a description of supplementary aids and services, the statute specifies that such supports be provided to "be involved in and make progress in general education curriculum." The presumption for Least Restrictive Environment requires that an IEP team consider the "full range of supplementary aids and services, that if provided would enable the child to participate in the general education environment," before moving that child to a more restrictive setting. See Questions and Answers on the LRE Requirements, OSERS, OSEP-95-9. Therefore, when discussing this portion of the IEP's required content, the team needs to document specifically what supports are required to ensure that the child be placed in the LRE and continue to receive an educational benefit there.

Supplementary aids and services is defined broadly as including any "aids, services and other supports that are provided in regular education classes or other education-related settings to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate." 20 U.S.C. section 1401(29). Any supplementary aids and services used to support the child in the LRE must be described in the written IEP document.

"Based on peer-reviewed research to the extent practicable"

The written IEP document includes a statement of special education and related services "based on peer-reviewed research to the extent practicable." The only guidance as to what "to the extent practicable" means is found in the Analysis of Comments and Changes to 2006 IDEA Part B regulations:

"The phrase to the extent practicable generally means that services and supports should be based on peer reviewed research to the extent that it is possible, given the availability of peer reviewed research."

71 Fed. Reg. 46565 (Aug. 14, 2006)

The Education Department explained that peer-reviewed research refers to "research that is reviewed by qualified and independent reviewers to ensure that the quality of the information meets the standards of the field before the research is published." Analysis of Comments and Changes to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46664 (2006).

Although the substantive issues related to instruction and services based upon peer-reviewed research, and what that means in terms of what should be provided to an individual child, is a different topic altogether, peer-reviewed research is relevant to the discussion of required content for the written IEP. Because the statute specifies that an IEP is a written document that includes a statement of special education and related services based upon peer-reviewed research to the extent practicable, the written document should in fact address whether research supports the program offered by the school district. The decision of whether to write in a specific methodology into the IEP document is an IEP team decision. However, regardless of what methodology is utilized, the IEP document itself should document that it is based upon peer reviewed research, where applicable.

Relationship to Goals, General Education, and Progress

The requirement is that the IEP document special education and related services that will enable the child to make progress towards goals, participate and make progress towards general education curriculum, and be educated with and participate in activities with disabled and non-disabled peers. The IEP team must consider the goals that have been developed for the child, the child's unique needs related to his or her disability, and the child's needs related to how he/she will progress in general education curriculum, when determining what special education, related services, and supplementary aids and supports must be provided. To be clear, the IEP document should specify how the services, instruction and support will enable the child to meet his/ her goals and make progress towards general education curriculum.

This portion of an IEP's required written content may be the most complicated, and the most difficult to get right. Ultimately, if the IEP team remains focused on the child's needs, and how those needs relate to the services, instruction and supports being offered, then the document will be able to reflect clearly what will be provided and how that program provides FAPE. It is important, as with all portions of the IEP, that the District remember that ultimately, the IEP document needs to be clear enough to be understood by all of those involved in developing it and anyone potentially involved in implementing it. If sufficient details are included so that everyone can fully understand the special education and related services being offered, and parents can fully consider all aspects of the program, then a good clear IEP has been written.

Fast Fact Friday: Core Academic Subjects

2009-07-24T10:40:00.001-07:00

The IDEA refers to the No Child Left Behind for a definition of the term "core academic subjects." See 20 U.S.C. section 1401(4). No Child Left Behind provides the following definition:

CORE ACADEMIC SUBJECTS- The term core academic subjects' means English, reading or language arts, mathematics, science, foreign languages, civics and government, economics, arts, history, and geography.

20 U.S.C. section 7801.

The relevance of defining core academic subjects is that under the IDEA and NCLB, a special education teacher who teaches core academic subjects to students with disabilities must be "highly qualified" in the subject he/she teaches. To meet the requirements, the teacher must be "highly qualified" as a special education teacher, meaning that he/she meets the certification, education and licensing requirements under the IDEA and state law, plus meet the requirements to be considered "highly qualified" in the subjects themselves. This does not apply to teachers who are exclusively teaching students who are assessed using alternative achievement standards.

Special education teachers in self-contained classroom settings may be teaching multiple subjects to their students. The IDEA addresses this situation by setting specific standards relevant to any special education teacher who teaches two or more core academic subjects exclusively to students with disabilities. Those teachers meet applicable standards if they either (i) meet the requirements of NCLB for highly qualified teachers; (ii) for teachers who are "not new," demonstrate competence in all of the core academic subjects in which the teacher teaches in the same manner; or (iii) for teachers who are new and are "highly qualified" in math, language arts or science, demonstrate competence in other core academic subjects in which the teacher teaches. 20 U.S.C. section 1401 (10)(D).

Students with disabilities need to learn and progress in core academic subjects, and the purpose of incorporating these requirements into the IDEA was to ensure that students with disabilities have the same right to competent, qualified instruction in the core academics as their non-disabled peers.

Related Services: Counseling

2009-07-24T10:40:00.000-07:00

Under the IDEA Counseling is a related service, defined as services provided by qualified social workers, psychologists, guidance counselors, or other qualified personnel. See CFR 300.34(c)(2).

Related services include psychological counseling when it is required for a student to receive FAPE. See 34 CFR 300.34(c)(10). A school district, however, may be required to provide psychological counseling services even in situations where counseling is not needed primarily for educational purposes. In Doe v. Anring, the court found that psychotherapy and group therapy were required to assist the student to benefit from special education and were therefore "related services" under federal law. See Doe v. Anrig, 558 IDELR 278 (D. Mass. 1987).

If a student has emotional and behavioral disorders they may be entitled to receiving counseling services for therapeutic as well as educational benefit. If a student is emotionally or behaviorally disturbed, the connection between improving emotional difficulties, coping skills or social skills and increasing a student's ability to benefit from special education is fairly clear. In Sacramento City Unified School District, the student in question had intellectual abilities in the high average range but his classroom performance was below his ability. He displayed little to no behavior issues within the confines of the structured classroom setting but out of the classroom his behaviors included physical abuse of other children. The court found that he qualified for special education and related services, including counseling. See Sacramento City Unified School District, 509 IDELR 171 (SEA CA 1987).

Psychotherapy can either be a related service or a medical service, for which the LEA would not be responsible. The distinction is drawn based on the identity of the provide and the relation of the therapy to the child's educational needs. Typically, services that can only be provided by a psychiatrist are classified as medical services. If the psychotherapy services can be provided by other professionals, such as social workers, psychologists or guidance counselors, then those services will be considered related services if they are required to assist a child benefit from his or her special education.

Breaking Down the IEP: How Progress Will Be Measured

2009-07-23T14:00:00.000-07:00

A student's IEP goals must be clearly measurable and must address that student's unique needs arising from his / her disability. Goals are the central part of an IEP; they set standards for what the child will learn and achieve under the proposed program. Essential to a parents understanding of the child's progress and the appropriateness of the program, therefore, is how progress will be reported. The IDEA requires a statement within the written IEP document regarding this.

Specifically, the IDEA requires:

"a description of how the child's progress towards meeting the annual goals... will be measured and when periodic reports on the progress the child is making toward meeting the annual goals (such as through the use of quarterly or other periodic reports, concurrent with the issuance of report cards) will be provided."
20 U.S.C. section 1414(d)(1)(A)(III).

How will progress be measured?

This is closely related to the discussion of how goals should be written so that they are measurable. The starting place for determining how progress will be measured is within the goal itself - make sure it is clear what accuracy level the child will be expected to achieve to meet the goal; include a reliability indicator, such as 3 out of 4 trials, if appropriate, and make sure that the specific skills themselves are clear.

Determining "how" progress will be measured also involves deciding how information regarding progress will be gathered. Will there be specific data collection that indicates specifically how a child performed on the skill for each trial? Will classroom work samples be sufficient to track progress on a skill? Should the teacher utilize an assessment measure to indicate the child's achievement level to determine progress? The IEP team needs to consider how information will be collected, and make sure this is clear in the IEP. Although observational information may be useful for future IEP meetings, a subjective measurement of progress should be avoided as a sole indicator whenever possible.

Examples:

Child's annual goal = read 50 new sight words from a 2nd grade high frequency word list with automaticity as measured by teacher collected samples

Progress measured by: teacher samples
Teacher indicates directly on list of high frequency words the words that student reads, and adds these up. The list itself is a record of student's progress.

Child's annual goal = remain on task for at least 10 minutes during a teacher-directed desktop assignment or activity, with no less than 2 verbal prompts in 3 out of 4 trials as measured by data collection charts.

Progress is measured by:
Data collection chart
Date: 06/12
Lesson: Math
Time on task: 6 minutes
prompts: 3

When will progress be reported?

The IEP document needs to specifically identify when "periodic reports on the progress" towards the child's annual goals will be produced and provided to parents. These periodic reports can be concurrent with the issuance of report cards, but should include specific information related to the child's specific goals. Because the IDEA now only requires short term objectives for students who are provided with alternative assessment measures, it may be difficult to quantify a child's progress towards the ultimate goal for the periodic report. If objectives are included in the IEP, the periodic report can tell parents whether or not the child has met the objective for that time period. If not, then information about how the child has progressed should still be made availalble.

Providing sufficient information within a periodic report of progress goes back to the goals itself being measurable. If the goal has a clearly measurable, objective standard that can be quantified or recorded in some way, then the child's current level on that same objective standard can be reported for a periodic report.

Example:

Child's annual goal = read 50 new sight words from a 2nd grade high frequency word list with automaticity as measured by teacher collected samples

Periodic Report for First Reporting Period

periodic reports on the progress the child is making toward meeting the annual goals (such as through the use of quarterly or other periodic reports, concurrent with the issuance of report cards) will be provided

Relationship to Other Procedural Safeguards

School districts are obligated to revise a child's IEP as appropriate "to address any lack of expected progress toward the annual goals and in the general education curriculum, where appropriate." 20 U.S.C. section 1414(d)(4)(A)(ii)(1). This means that if during the time period covered by an annual IEP, the student is not making expected progress, the District should convene the team to discuss whether adjustments to the goals or the program are required. It is important that the goals themselves are clearly measurable, and that there are reporting periods clearly identified for when progress will be reported, so that if the child is not making progress, the team, including parents, are aware of this. If the IEP does not clearly establish how and when progress will be measured, the team may not be aware until the next annual IEP that the child is not making adequate progress. This may cause a loss of educational benefit, in that the District thereby did not revise the IEP as appropriate to meet the child's needs and enable him/her to meet the annual goals.

Ultimately, an important purpose of making sure that the goals are measurable and that progress is reported periodically is to ensure meaningful parent participation in the process. Parents cannot fully participate in ongoing discussions regarding their child's program or annual IEP meetings if they do not know whether or not the child is making expected progress. If parents are fully informed regarding their child's progress, or lack thereof, under the special education program being provided, they are more able to understand the appropriateness of the program being offered, and to ask for additional services or supports when needed.

Related Services Hiatus

2009-07-22T16:38:00.000-07:00

Due to some circumstances beyond my control - namely that I stayed up late baking a fabulous rainbow birthday cake - I'm going to have to delay the post by one day. Check back tomorrow for a post on Counseling.

Breaking Down the IEP: Measurable Annual Goals

2009-07-22T16:00:00.000-07:00

The IDEA requires the written IEP document to include measurable annual goals to address the child's unique needs. Goals are based upon the child's present levels of performance, and should drive the child's services. Therefore, goals are often consider the "core" of the student's IEP.

Specifcially, the IDEA requires:

"a statement of measurable annual goal, including academic and functional goals, designed to (aa) 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 (bb) meet each of the child's other educational needs that result from the child's disability."
20 U.S.C. section 1414(d)(1)(A)(i)(II).

What are Annual Goals?

OSEP and the Appendix to the IDEA 1999 regulations both have defined annual goals as "statements that describe what a child with a disability can reasonably be expected to accomplish within a 12-month period, in the child's special education program." Letter to Butler, 213 IDELR 118 (1988); Notice of Interpretation, Question 4, Appendix A to 34 C.F.R. part 300 (1999 regulations).

What needs should be addressed?

Proper and complete identification of a child's unique needs is key to writing good goals for the IEP. Evaluation data, input from persons working with the child, and information about what the child should be able to do at this grade level, all may be relevant when developing proposed annual goals. If the team has considered all relevant information and drafted clearly stated and sufficiently comprehensive PLOP, then identifying areas that need to be addressed in annual goals will be much easier. By definition, goals should address a child's unique needs related to the following:

(1) IEP must include both academic and functional goals

As discussed in the previous posts, IEP teams are now explicitly required to address both academic and functional areas when developing a program for the child. "Educational benefit" has long been defined as including both academic and non-academic areas. Since ultimately the IEP must be reasonably calculated to provide educational benefit to the student, it logically follows that all components of educational benefit should be considered when determining what goals are necessary, even if those areas are not strictly related to academic progress.

Academic goals relate to what the child will be expected to learn and accomplish in the coming year in the areas of reading and language arts, math, social studies and history, and science.

Functional goals related to what progress the child will be expected to make in the coming year in areas, skills and activities that are non-academic and related to the child's day to day functional skills, like behavior, communication, independent living skills, social skills, etc.

(2) "Enable the child to make progress in the general education curriculum"

The IDEA specifically states that goals must be included for each child with a disability to meet the child's needs arising from the disability in order to enable that child to make progress in general education curriculum. There is nothing in the statute that indicates that this provision only requires to students who are in a general education classroom, or to students with a certain level of general intelligence and ability, or that it does not apply if the student has a "severe" disabilty.

The decision of what progress towards general education curriculum would be appropriate is of course an individualized decision based upon factors related to that individual child. Certainly, not every child will be able to meet grade level standards. However, every child can be given the opportunity to make progress in general education curriculum appropriate to their individual strengths and needs. Because this debate is a frequent issue in IEP meetings, it has been addressed more thoroughly in a previous blog post.

(3) "Meet other educational needs that arise from the disability"

The term "educational" is broader than merely academics. Educational benefit can include both academic and non-academic areas. It is important to remember this framework when considering the need for goals to "meet each of the child's other educational needs."

Other educational needs may include speech, language or communication deficits, social skills difficulties, behavioral needs, recreation and leisure, independent living, motor skills, etc. Focus on the "big picture" of what an educational program should be accomplishing, and utilize assessment data, PLOP, and input from team members to determine what areas need to be addressed.

Remember that the IDEA says "each of the child's other educational needs," not "the most important needs." The IEP team needs to make sure that the goals are attainable and appropriate, and it therefore may not be appropriate to have a huge amount of goals. However, when the District says "we only write goals to address the most important areas," or "we have to prioritize and pick only some areas of need to address," this isn't exactly conducive with the IDEA's language. Instead, the IEP needs to include a goal for each area of educational need a child has that arises from that child's disability.

What does it mean for goals to be "measurable?"

To be measurable, a goal must be written clearly with sufficient information to allow an objective person to understand what skill is being addressed and exactly what should be accomplished in order for the child to reach the goal. IEP teams should be wary of goals that are vague or that contain broad generalized statements about "improving" in an area or "increasing" a skill, without specifying what that means. A goal that says that the child will "improve" in his/her skills in a specific area provides little more information than what area of need is being addressed. Ask yourself how the child will improve, how it will be demonstrated, and what specific skill is being addressed.

If the IEP team has developed clear statements of the child's PLOP, writing measurable goals will be much easier. The PLOP can be used to establish clear baselines as a "starting place" for the proposed goals. If the baseline is clear, it is easier to determine how to write an annual goal that will ensure progress and will be measurable. For example, if the PLOP indicates that the child's current fluency rate is at 50 words per minute, the IEP team has enough information to draft a goal that would be at a higher rate, and has specific enough data to make that goal measurable (i.e. the child will read at a rate of 100 words per minute).

Avoid goals that are subjective, because these will not be clearly measurable by whomever is implementing the IEP. A good point of reference is to think "if I had to take this IEP to a new school district who had not been involved in this meeting, would they know how to implement this goal and measure it?"

Examples:
Measurable Goal: Child will engage in a conversation with a peer for 5 minutes, demonstrating at least two conversational turns and remaining on topic.
Vague / Not Measurable: Child will improve conversational skills with peers.

Measurable Goal: Child will demonstrate ability to read 50 new grade level sight words with 90% accuracy in 3 out of 4 trials.
Vague / Not Measurable: Child will increase reading of sight words.

What is the relationship between goals and services, instruction & the provision of FAPE?

IEP goals should drive specialized instruction and related services. The goals establish what the child is expected to learn and accomplish within the special education program. Once the goals have set forth a roadmap for the child, the IEP team must consider what specialized instruction and related services will be required to get there.

An IEP that is found to have insufficient or inappropriate goals will in many cases be found to deny a student FAPE. This is because when the IEP goals are not based on the child's needs, the program itself likely will not be able to meet the child's needs and provide educational benefit. Goals, therefore, have vital importance to the development of an overall appropriate program for an individual child!