Friday, November 6, 2009

Fast Fact Friday: Automaticity

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

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!

Tuesday, November 3, 2009

Tip of the Day: IEE Assessors

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.

Wednesday, October 28, 2009

Specific Learning Disability - Eligibility for Special Education

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.

Tuesday, October 27, 2009

Tip of the Day: Take the Copy of the Safeguards

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.

Monday, October 26, 2009

Web Resources for Special Education

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

Friday, October 23, 2009

While We Were Away

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

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).

Monday, October 12, 2009

Due Process Cases: What is Mediation All About?

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?

"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.

Friday, October 9, 2009

Learning Disabilities Awareness Month

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

"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

Friday, September 4, 2009

Fast Fact Friday: The 5 Day Rule

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).

Tuesday, September 1, 2009

Senator Kennedy's Inspiration and Call to Action for Advocates

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.

Monday, August 31, 2009

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

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.

Monday, August 10, 2009

Back To School: Preparing for the New Year

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.

Friday, August 7, 2009

Autism on 20/20 Tonight


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

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

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!

Thursday, August 6, 2009

Related Services: Medical Services

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).


Friday, July 31, 2009

Breaking Down the IEP: Frequency, Location and Duration

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

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

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.

Thursday, July 30, 2009

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

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.