Episodes
Tuesday Mar 03, 2020
Advocate's Insider: Revisiting the "Pyramid of Retaliation" in the 21st Century
Tuesday Mar 03, 2020
Tuesday Mar 03, 2020
Introduction
Welcome to Advocate's Insider, an online publication of KPS4Parents. KPS4Parents is a non-profit special education and disability resource organization. My name is Anne Zachry, and I'm our organization's CEO, as well as the host of this patron podcast. I have been a special education and disability resource lay advocate since 1991, a paralegal to attorneys representing individuals with disabilities since 2005, and an educational psychologist and behavior analyst since 2013.
Advocate's Insider is a patron-only program intended to assist special education and disability resource advocates around the United States develop their advocacy skills and increase their chances of achieving appropriate outcomes for the individuals with disabilities whose rights they work to protect. The content published on Advocate's Insider is based on my own experiences and those of my colleagues regarding special education and disability resource advocacy in the public sector.
None of the content on Advocate's Insider should be considered as formal legal advice. If you require formal legal advice, please seek the counsel of a qualified attorney.
If you are a parent, educator, or activist looking to improve your knowledge and approaches to advocating for individuals with disabilities from a technical standpoint, then Advocate's Insider is an appropriate resource for you. Professional and volunteer advocates alike can always stand to improve their skills, and we seek to add to the body of resources available in this unique, specialized field.
Patron proceeds generated by Advocate's Insider are used to support our public education efforts via social media. Your patronage is genuinely appreciated and is used to help individuals with disabilities and their families throughout the United States through education and technical assistance.
If you are listening to this podcast, please be aware that there is a text-only transcript on the PodBean post for this podcast that includes hyperlinks to online resources that can serve as additional useful information and to illustrate the points I'm making. Whenever such a resource comes up in the course of the podcast, you'll hear a sound like a bell that cues you to where in the transcript you can find each link.
Today is March 2, 2020
This is Volume 1, Episode 2
The title of today's episode is, "Revisiting the 'Pyramid of Retaliation' in the 21st Century."
Many years ago, rumor has it that there was a professional development conference for conservative public education administrators and their attorneys run by an organization that provides guidance to these individuals by way of professional publications, conferences, and trainings. This population of individuals has generally asserted since the passage of the Education of All Handicapped Children's Act (EAHCA) in 1975, which ultimately became the Individuals with Disabilities Education Act (IDEA), that the Act in any form places too onerous of a burden on the public education system.
These were the individuals who were successful in establishing the Rowley Standard in 1982, limiting the definition of "meaningful educational benefits" as a legal matter of FAPE, to a "basic floor of opportunity," and with the explicit understanding that true equal access was unachievable and, therefore, expecting it was unrealistic. They hobbled the Act by way of appealing to a Supreme Court made up of individuals who knew nothing of educational psychology, human development as a science, and what was legitimately achievable with the right resources in a classroom. The language from the resulting case law of that era described FAPE as not being the "Cadillac" of an education, but "a serviceable Chevy."
That is, until the Endrew F. decision in 2017, which raised the standard of defining "educational benefits" as a matter of FAPE as "appropriately ambitious" in light of each student's unique circumstances, meaning as close to grade-level or developmental norms as possible, depending on the age of the student. In the period of time that has passed since the Act was enacted in 1975 to now, a lot has changed. Further, the current version of the Act requires the application of the peer-reviewed research to the design and implementation of IEPs on an individualized basis for each special education student. We're now basically talking about a serviceable Prius instead of a Tesla.
Not only has the peer-reviewed research revealed what is achievable when done right, society is evolving into a more feasible construct of individuals collaborating with each other towards common goals rather than competing with each other over resources. The turmoil our species is currently experiencing is, in my opinion, a matter of social and behavior analytic psychology that was both inevitable and predictable.
Piaget's Stages of Development is also a model that works for me to express the concepts that I'm trying to communicate, here, so bear with me as I go down the rabbit hole of a particular theorist's lingo. The real divide in our species, today, isn't between conservatives and liberals, though it can look that way on the surface as a result of correlations mistaken for causative relationships by those who are not skilled at discerning correlation from causation. That is something mastered with respect to physically observable phenomenon at the Piagetian Stage of Concrete Operations, and on an abstract level necessary for adult-level problem-solving and critical thinking at Formal Operations.
Mastering the discernement between correlation and causation using things you can see, touch, manipulate, and operate, on a physical level, gives you metaphors and analogies that help you understand abstract concepts later on, which is why Concrete Operations must always be sufficiently mastered before you can think at the level of Formal Operations. For example, the idea that making decisions on the basis of emotions is like building a house out of smoke, but making decisions on the basis of facts is like building a house out of bricks is driven home by the references to physical equivalents that illustrate the abstract concept being explained about adult-level decision-making.
Formal Operations are triggered by the last brain growth spurt of childhood, the onset of which occurs at puberty. This is why teenagers suddenly think they know everything; a part of their brain has come online that allows them to think abstractly and start putting two and two together to arrive at four on their own, which hadn't occurred to them before. It's purely the result of a part of the brain that wasn't previously being used coming online and suddenly adding a way of thinking that the child didn't have before.
Teens also start to see through all of the BS being put out there by the adults around them and can stop trusting what adults say if exposed to too many assertions that contradict what can be observed, which has more to do with where the species is developmentally, right now, than with individual development, per se, though it's fair to conclude that individual development is inextricably intertwined with the development of the species as a whole. This becomes particularly troublesome when their parents have not achieved Formal Operations, themselves. That's a topic worthy of detailed discussion of its own, but I'll save that for another time.
Bottom line with respect to today's topic is that developmentally intact teenagers have adult cognitive hardware but lack the experience to inform it's proper use. Each developmental stage is bled into from the one before it, with some skills emerging at the higher level at the same time that skills at the lower level become mastered. Formal Operations creeps up on those who achieve it, slowly coming online and eventually freaking them out as they proceed through adolescence. Some folks never finish the stage. Some folks never make it to Formal Operations in the first place. These considerations go to today's topic.
Everybody moves forward through the same stages in the same order, but not at the same pace. Everybody's developmental profile is unique as a result of genetic, experiential, and environmental factors. No two people have identical brains or developmental profiles, just like fingerprints and retinal patterns. We're that way by design; it's the design that works to give our consciousnesses living machines to occupy and act upon this physical reality as it currently exists, which is also ever-evolving.
Darwin explained that environmental factors drive the development of physical and mental traits in each species over the course of its evolution. Skinner took that realization one step further and determined that environments drive the development of specific behaviors in individuals over the course of their lifetimes. We do what we do because it's the most successful way we know how to act upon our individual environments, whatever they may be. We are physically configured as we are because, on the average, how we are built has become the most efficient design to date to act upon the types of environments in which we live.
The evolution of a species can only occur over extended periods of time and is driven by reproduction; each new birth is an opportunity to improve upon the design. There is trial and error involved. Not every design change works out, hence fatal genetic disorders and traits that make one more vulnerable to unsafe or unhealthy environmental factors that increase the chances of death. It's a process.
The evolution of an individual follows a predictable path but at a pace in each area of development unique to that individual. It, too, is a process. Certain ways of thinking have to be mastered before a person can master more complex types of thinking. What we learn and master is connected to what we already knew and had mastered at the time.
Knowledge is cumulative and we make sense of new information by associating it with the things we already know. We become more skilled at assimilating new information in with what we already know as we age, if we develop in a healthy way. Not everybody develops in a healthy way, however.
Regardless of whether someone is doing harm out of incompetence or malice, it doesn't change that harm is being done. Nonetheless, the people engaging in harmful behavior are doing their best to function successfully in the environments in which they are doing harm. They're doing what they think they have to do, and that's a hard pill to swallow, sometimes. This is where their thought processes took them and, in their minds, it was the right course of action for them to take at the time. Sometimes, with the benefit of hindsight, they will see the error of their ways, but in the moment, what they had to do seemed very clear to them.
It's hard to be empathetic of someone abusing their authority under the color of public office to intimidate a parent, for example, because they are panicking over mistakes they've made and for which they could be held accountable and they are trying to protect their own interests without regard to how their behaviors impact other people. These are individuals who lack perspective-taking abilities and are socially/emotionally underdeveloped.
Very often, their cognition may be a little higher than their social/emotional functioning, but often not by much. It's been my experience that there are a lot of people who have learned how to socially engineer situations up to a point, but when it comes right down to it, they have weak abstract reasoning skills and are knee-jerk emotional decision-makers. Deductive reasoning escapes them, but they understand what forms need to be filled out for anything you might need and what their respective timelines are.
It's important to understand that cognitive development can only speak to so much of a person's overall development. It's one piece of a very complex puzzle and it's critical to other areas of development, but not the single most important consideration. All of it together is the most important consideration; each area of development is worthy of its own detailed exploration when you're trying to get to the bottom of what is going on with a student with special needs, and it's no different when we examine the behaviors of the adults involved in the IEP process.
Cognition, communication, social/emotional functioning, sensorimotor development, and physical development are all areas that have to be considered when looking at an individual's overall development. Nobody is evenly developed across each domain. Each domain has subcategories of developmental areas that make it up, which each develop at their own respective rates.
The unspeakable millions of developmental factors, which could each be measured if we devoted enough time to measuring them, emerge at their own respective paces, creating a unique portrait of each person. If graphed, no two profiles would be identical.
It is entirely possible for someone to have intact cognition and communication skills, but have social/emotional development that is way below the norm. That accounts for most of the men I dated when I was younger and a fair number of my redneck relatives. It also accounts for a fair number of the individuals responsible for denying a FAPE to my students over the years.
I've come to realize over the years that far too many people entrusted with great responsibilities lack the cognitive hardware to conceptualize those responsibilities and, as a result, fail to properly attend to them. When it comes out that they did something wrong, they play victim and/or try to cover it up. When what logically should have happened is pointed out relative to what they actually did, they become angry and defensive rather than remorseful and conciliatory. This causes them to do foolish, awful things to other people, who are more collateral damage in the pursuit of a self-serving purpose than the intended targets, but harm is harm.
The individuals in public education who have been undermining the Act since it passed in 1975 concocted elaborate strategies to undermine its legal protections afforded to students with disabilities and their parents. In the Rowley years, these strategies were playbook consistent from one school district to another. And one day during the Rowley era, at some gathering of what today would be considered Alt-Right individuals employed in public education administration and their attorneys, the "Inverted Pyramid of Retaliation" was born.
I've included a graphic of the Inverted Pyramid of Retaliation in the text-only portion of this post, which I borrowed from Wrightslaw and its article: "Retaliation: A Primer." I won't belabor everything that Wrightslaw has shared on this subject. You can read its article for more information. It was actually originally published by a chapter of the Learning Disabilities Association (LDA) in Sacramento after it was leaked from the aforementioned Rowley era professional development conference of school administrators and their lawyers to this parent and child advocacy group.
The outrage on the part of the involved public school administrators and their attorneys on having their conference "infiltrated" (the pyramid strategy could have just as easily been disclosed by a horrified a whistleblower from the inside) was intended to drown out the outrage of parents and taxpayers who were disgusted by this behavior. It was a black eye on the public education system when it came out that public servants and their taxpayer-funded attorneys were organizing like this against their constituents.
But, it only got traction among parents of students with special needs and their advocates and attorneys, at the time. It was still a time when disability rights was considered a special interest issue instead of a basic human rights issue. All of this political drama was relatively fresh when I first started as a lay advocate in 1991.
So, now, here I am in 2020 and I am still dealing with this. Last month, a new family came to us looking for help. Their child had been assessed for special education eligibility, but their school district determined that he did not qualify. It didn't sound right to the parents, so they went looking for help and found us. In early February, shortly after disagreeing with the school district at an IEP meeting in late January, their school district suspended their son, who had never gotten into trouble before, after another child aggressed against him and he responded defensively; the other student who initiated the incident was not suspended.
We were hired and I gave notice of representation of February 11. I reviewed the initial evaluation report, which was a tragedy of errors, and requested IEEs on February 12. On the pretense of sharing a possible homework solution with the mom, the male school psychologist who had produced said tragedy of errors scheduled a meeting with the mom on February 18. When she arrived at the school, the male principal of the school greeted her at the door and escorted her to the school psychologist's office where he and the male RSP teacher were waiting for her. The female special education program coordinator assigned to that campus was nowhere to be seen.
Once they had the mom alone in the room with them, the school psychologist proceeded to describe his "sure fire" homework solution, which turned out to be a behavioral strategy for kids who refused to do homework as a matter of poor parent/child relations, not anything to address the fact that her 5th grader can't read with comprehension and doesn't understand the reading material being assigned to him as homework.
The school psychologist already knew this was the concern about homework from conducting the evaluation and participating as an IEP team member. He already knew his "sure fire" method for getting homework done wasn't applicable to this family's situation.
It was a trap. The school psychologist tricked the mother into coming into his office, whereupon she was alone with three men suddenly pressuring her into signing the IEP document to which she had already signed her disagreement.
Take this in for a minute: three men who are public servants acting under the color of public office, lured a woman into a situation in which she was alone with them in a room wherein they attempted to coerce her into acquiescing on a matter of consent. That's pretty rapey. It's entirely inappropriate. I nearly ruptured a blood vessel when she told me what had happened, afterwards.
There is no way, as a behavior analyst, I can follow the events as she described them and not just crawl in my skin. Any woman who has ever had the misfortune of being sexually assaulted and/or harassed knows the feeling all to well when that unspoken threat of male dominance is being made.
I've already filed a Uniform Complaint with the District. I am beyond outraged. Just as the world starts to finally become more feminist, a bunch of knuckle-dragging throwbacks pop up and do something as outrageous and idiotic as this. I haven't even met this family face-to-face, yet, and a whole "Jerry Springer shit show" is already going down.
I have it on good authority that there may very well be a female contingent within this same school district that is sick and tired of the good ol' boy politics in this district's outdated male-dominated cowboy culture that will be quietly cheering us on and greasing the wheels in our favor from within if we push the issue. They may have felt powerless to do anything, but I'm not them. I don't answer to the school district. If they think I can do something as an outsider bringing on the accountability, it's my understanding that they are unlikely to stand in my way.
I can exclaim the Emperor is wearing no clothes. And, just to be sure people know I'm not making it up, I can describe his Imperial junk in detail so they know I am seeing the same exact things that they are seeing. On the record. To which I can later testify as a fact and expert witness if any of it ever goes to trial.
The school district has screwed itself so badly, so this is just a process playing out for me. It's not that difficult of a fight. These bozos are their own worst enemies.
I don't know how the dad hasn't come out of his skin and throttled the sorry lot of them. I have to give him credit for holding it together and taking the higher road. I just have visions of how my dad would react if he found out three guys had ganged up on my mom like that and it always boils down to me and my sister having to come up with bail money or take a trip to the emergency room.
It's not like my dad is uncouth. He's a retired engineering professional. But, it that was my mom, my dad would likely either transform into a gladiator and take heads, or stroke out from the effort of restraining himself and walking the higher road.
It takes an enormous strength of character for any couple to stand firm in the face of that kind of inappropriate threatening behavior. I'm nothing but impressed with how this family is handling this situation. Talking about getting to know each other right away. We've still not met in person and yet we've handled something of this magnitude, so far, as a team, with dignity and professionalism.
IEEs are now agreed-to and pending. The school district now has just under 60 days to investigate the Uniform Complaint that we filed. We've asked the district to revisit the gender sensitivity training, if any, provided to its staffs. I've made the record as an expert and advocate for the family as to the overarching big problems with its initial evaluation of their child and indicated my willingness to testify as a fact and expert witness to all of its shortcomings, if the matter were to go to hearing. That was articulated in the request for IEEs at public expense that I submitted and which were subsequently granted.
The LEP conducting the psychoeducational IEE is a former school psychologist of this same district. She left because of the cowboy culture, worked for five more years for the local county office of education, before getting her license and going into private practice conducting IEEs. She's amazing. I cannot wait to see what she has to say about this case, once she sees that initial psychoeducational evaluation. I already know in advance she will be just as appalled as I was when I first saw it. I also know she will throw down for this kid and figure out what is really going on. She rocks. I also got a great SLP to do the speech/language IEE.
Now, it's just a matter of getting the IEEs done and reconvening the IEP team to review their results, revisit the question of eligibility, and create an appropriate IEP for the student, presuming he qualifies. Once we have valid data, if it indicates that he's eligible, we can use it to develop an appropriate individualized program of instruction for him. After that, the question becomes whether the district should have figured this out on its own a long time ago and, if so, if the parents want to pursue compensatory remedy via due process.
Given the egregiousness of what has already gone on and been documented thus far, while it's never impossible that a case like this will go to trial, it is very highly unlikely to go to trial because of the misconduct it would expose to a trier of fact. Certainly with respect to meaningful parent participation in the IEP process, there is an enormous FAPE claim arising from the February 18 informal meeting outside of the IEP process; without the mom's representation aware of the meeting or present, three men from the school district attempted to pressure her into signing a legally significant IEP document to which her disagreement had already previously been documented and confirmed by her signature.
There is no way that can be construed as meaningful parent participation in the IEP process. It was meant to circumvent the IEP process and deny meaningful parent participation. The total ewwey creep factor aside, it was procedurally noncompliant, and a procedural violation of the parent's right to meaningful participation in the IEP process is an automatic denial of FAPE, regardless of the appropriateness of the IEP produced without the parent's meaningful participation.
That's a critical thing to understand in a situation like this. It potentially creates more than one type of legal claim, and whether or not the IEP is any good isn't part of the legal analysis when it comes to the denial of FAPE arising from a denial of meaningful parent participation in the IEP process.
The point in the "meaningful parent participation" claim arising here is that the parent was prevented from participating meaningfully in the IEP's construction such that the IEP document asserts things she and her husband do not believe to be true, accurate, or appropriate. Further, she had her rights regarding informed consent to the IEP document infringed upon by the school district, by way of its idiot goon squad that tried to pressure her into signing the IEP outside of the IEP process after luring her to the school to talk about a homework solution they already knew in advance to be inapplicable to her child's situation.
Regardless of whether this student turns out to be eligible for special education or not, because the initial evaluation process is part of the IEP process, the parents have a protected right to meaningful participation in the IEP process for so long as the IEP process continues to be open and ongoing. They did not consent to the initial IEP that stated their son was not eligible for special education. They disagreed with that assertion and withheld their consent to it, as is their right.
Until that dispute gets resolved, which involves IEEs at this point, the IEP process is still open and ongoing, they continue to have a protected right to meaningful parent participation in the IEP process. The school district has no excuse for the stunt it pulled with having three of its male personnel lure the mom into a room alone under false pretenses and then use it as an opportunity to pressure her to sign a legally significant IEP document outside of the IEP process. As you can probably tell, my blood still starts to boil whenever I think about it. It's hard for me to not perseverate on it, these days, honestly.
I'd like to think that these kinds of things are rare, but I'm in Southern California, supposedly one of the most progressive places on Earth, and, yet, here we are dealing with this kind of barbaric behavior from public servants against their own constituents, targeting children with disabilities and their mothers. Gross! Just so gross! I can only imagine what must be going on in the Midwest, inner cities, and rural Deep South. If it's this bad here, and it's always worse in those places, the probabilities churn my stomach.
These strategies used by old-timers in public education to undermine parent advocacy efforts are not extinct, yet. But, we can't allow them to continue to be reinforced or they will continue. The school district cannot achieve its intended ends of intimidating parents and getting them to acquiesce on matters of consent to legally significant documents that affect their children's development and future, or it will succeed at undermining the intent of the Act and harming children systematically without consequence. It's already happening here, obviously, or this family wouldn't have become caught up in it.
Your support of our Patron podcast channel helps us spread the word and educate others on how to handle these difficult kinds of situations. If you want to share your love for families like the one I'm helping in the case I've described in today's podcast, please accept our appreciation for becoming a patron and please also share this Patron podcast channel with other advocates, whether parents, volunteers, or professionals, who you think would benefit from the information we share in Advocate's Insider.
Thank you for supporting our patron-only content and helping us benefit individuals with disabilities and their families throughout the United States. Please subscribe as a patron supporter to get automatic access to all the episodes of Advocate's Insider. If you have any questions about special education and disability resource advocacy, please email us at info@kps4parents.org or post a comment to this podcast.
All content is copyrighted by KPS4Parents, which reserves all rights.
Sunday Feb 16, 2020
Advocate's Insider: Straddling the Line Between Science and Law
Sunday Feb 16, 2020
Sunday Feb 16, 2020
Introduction
Welcome to Advocate's Insider, an online publication of KPS4Parents. KPS4Parents is a non-profit special education and disability resource organization. My name is Anne Zachry, and I'm our organization's CEO, as well as the host of this patron podcast. I have been a special education and disability resource lay advocate since 1991, a paralegal to attorneys representing individuals with disabilities since 2005, and an educational psychologist and behavior analyst since 2013.
Advocate's Insider is a patron-only program intended to assist special education and disability resource advocates around the United States develop their advocacy skills and increase their chances of achieving appropriate outcomes for the individuals with disabilities whose rights they work to protect. The content published on Advocate's Insider is based on my own experiences and those of my colleagues regarding special education and disability resource advocacy in the public sector.
None of the content on Advocate's Insider should be considered as formal legal advice. If you require formal legal advice, please seek the counsel of a qualified attorney.
If you are a parent, educator, or activist looking to improve your knowledge and approaches to advocating for individuals with disabilities from a technical standpoint, then Advocate's Insider is an appropriate resource for you. Professional and volunteer advocates alike can always stand to improve their skills, and we seek to add to the body of resources available in this unique, specialized field.
Patron proceeds generated by Advocate's Insider are used to support our public education efforts via social media. Your patronage is genuinely appreciated and is used to help individuals with disabilities and their families throughout the United States through education and technical assistance.
If you are listening to this podcast, please be aware that there is a text-only transcript on the PodBean post for this podcast that includes hyperlinks to online resources that can serve as additional useful information and to illustrate the points I'm making. Whenever such a resource comes up in the course of the podcast, you'll hear a sound like a bell that cues you to where in the transcript you can find each link.
Today is February 16, 2020
This is Volume 1, Episode 1
The title of today's episode is, "Straddling the Line Between Science and Law."
You would think after as many years as I've been working in special education and disability resource advocacy, people would run out of things that can shock me. You'd think I've seen it all by now, but every school year, somebody in a school district or charter school somewhere does something that just makes my jaw drop before it ultimately makes me hang my head in sorrow and disgust. If you are working in special education and disability resource advocacy, whether professionally or not, the work is the work, and you are likely seeing things that defy belief, as well.
If there is even the slightest silver lining to the current state of the American Presidency, it's that now people don't think I'm making things up when I tell them the things I see coming from publicly funded schools, regional centers, and other agencies when I attempt to achieve appropriate services for people challenged by disabilities. There was a time when only other people who worked in special education and disability rights were experienced enough with these things to believe the people with incredible tales of woe involving various agencies coming to us.
In 2012, I had a student on my caseload whose unresolved issues had gotten to the point that due process was the only way to see them resolved. That never makes me happy, but I'm prepared to go there if I have to. That's why I became a paralegal.
The special education attorney in my student's local area was buried alive in casework. My student wasn't the only one in this Central California county that was getting shafted by his school district, and there were viable due process cases all over the place. The special education attorney recruited his best friend, a criminal defense attorney who was accustomed to addressing issues of disability and behavior when they got really out of control, to take lead on the case with my special education attorney colleague remaining of counsel. I provided paralegal support to my criminal defense colleague, with the hard questions of fact and law being run up the ladder to our colleague acting as of counsel.
Among the three of us, I thought we put on a heck of a case. The problem was that it was pre-Endrew and the judge misinterpreted the meaning of Rowley. The judge determined that because our 19-year-old adult post-secondary student had experienced educational benefits in the area of behavior, the fact that he had been reading at the second grade level since second grade didn't matter because he had received "some educational benefits" that were not "de minimus," which is to say, not trivial. His benefits in behavior were not trivial, that's true. But he received no educational benefits in reading, which was the claim we asserted. The case settled upon appeal, but it was an uphill battle to reach a resolution. My criminal defense colleague decided to never do a special education case again, citing the greater dignity and decorum of the criminal courts.
Our student went on to fulfill a lifelong goal of being in a university marching band, blended in as typical, and developed a self-confidence that nothing else could have possibly given him, propelling his emotional growth and development. These fights are worth it, but they do take their toll on us.
It's been reported that mothers of adult children with autism often have cortisol levels on par with combat veterans returning from active duty. I think those of us who professionally advocate for individuals with disabilities on a regular basis experience something similar.
We may be able to go home at night and not worry about a midnight meltdown that lasts for hours disrupting our sleep, but we've also got multiple cases going at once in which everybody is suffering and no one situation is more worthy of our attention than the others. They're all horrible and they all need immediate help. Juggling that kind of a caseload will keep you up all night with worry, even if there isn't a meltdown going on in the next room over.
There is a saying that I abide by. It's one of several. It came from a book called The Soul: An Owner's Manual. The saying goes something to the effect that, "Making decisions based on emotions is like trying to build a house out of smoke; making decisions based on facts is like building a house out of bricks." The point was to provide a concrete metaphor for an abstract concept.
The author was a psychologist in Ojai, California who also went by the title of "guru," so I took his book to mean he was teaching critical thinking skills to the "woo-woo" people up in Ojai. The way he framed it was actually quite brilliant, which is why it resonated with me so strongly. He was totally right and using that metaphor truly put it into proper context.
Emotions are ethereal and ever-changing; they can't support weight, block the elements, or remain in one place. Bricks are solid, can withstand the tests of time, and stay where they are put. Which one truly makes the better building material? And, why would any responsible adult ever knee-jerk their way through life according to their fluctuating emotions rather than methodical, practical, fact-based decision-making?
It's truly difficult to apply that knowledge to real life. I don't think any of us ever fully succeed, but it's the goal. Aim for perfection and be satisfied with excellence. Don't beat yourself up for getting it wrong; just work that much harder to do it right the next time. The point is to be strategic rather than hysterical.
This issue is one of locus of control. Locus of control goes to the degree to which a person believes they have control over their own lives or think that life is something that just happens to them. Someone with a strong internal locus of control takes ownership of their actions and is capable of goal-driven behaviors. Someone with a primarily external locus of control never sees the connection between their own behaviors and the consequences they experience. It's their perception that everything happens to them, not because of them.
Learned helplessness and victim mentalities arise from having a primarily external locus of control. Fear-based thinking is driven by a primarily external locus of control. Impairments that limit a person's ability to predict what should logically happen next promote thinking governed by an external locus of control. Unpredictable caregiver behaviors undermine childhood development such that children are prevented from developing an internal locus of control.
This translates to so many aspects of the work I do, I don't even know where to begin. One place that's as good to start as any is in the development of Positive Behavior Support Plans (PBIPs). So many of the badly written PBIPs I encounter are heavily weighted on reactive strategies and light on preventative strategies.
This is because so many people in public education still look at student behavior through the lens of the outdated disciplinary models of behavior management that were implemented when the public education system was created during the Industrial Revolution. We still have people in public education just waiting for their opportunity to punish the kids they don't like, most of whom are disabled, because they can't perceive it as anything but willful misconduct and defiance of their authority.
Because these types of school personnel don't understand established scientific concepts, like locus of control, they assume the students involved in every disciplinary action being willfully defiant and understand the consequences of their actions. It doesn't occur to such staffs that their students may be reacting to some external trigger and/or compromised by disability. These staffs can't conceptualize an abstract emotional concept like this because they are functioning at such a reduced social/emotional level, themselves, and such thinking is beyond their ability to understand.
You have to understand that, when you encounter someone like this, this is a person who has likely achieved developmental norms in cognition and communication, but not social/emotional development. They can't mentally conceptualize Positive Behavioral Interventions and Supports (PBIS) as a framework because it requires them to step outside of their own egocentric mindsets and see things from someone else's perspective, which they can't do.
Because they have otherwise normal cognition and communication skills, it's easy to assume they must be able to conceptualize these kinds of abstract relationships. It's true that one has to have the cognitive ability to think abstractly at all in order to achieve commensurate social/emotional development, but if one's social/emotional development is impaired, those cognitive abilities are not going to overcome the social/emotional deficit.
That kind of thinking requires fully functional Formal Operations from a Piagetian standpoint, and the social/emotional development of people with these kinds of challenges never get that far. If you encounter someone like this, you may be dealing with someone with an underdeveloped or damaged prefrontal cortex of the brain and/or some kind of personality disorder.
These will be the strongest resisters to PBIS in the public school setting. Because they are egocentric in thought with respect to social/emotional functioning, they take all inappropriate student behaviors as a personal affront to their authority, because they assume everything always has to do with them. These are the adults who end up in positions titled things like, "Dean of Discipline." The title of "Dean of Douchebaggery" would be equally applicable, in most cases.
I once had a high school student on my caseload who was impacted by ADHD and emotional problems. It made him a follower. The other kids would set him up to do something inappropriate while they watched him get in trouble, purely for their own entertainment. He was so desperate to be accepted by his peers because of his emotional problems, and so poor at predicting the consequences of his own behavior because of his ADHD, by time I got involved, his high school was trying to expel him for getting busted by the campus's Resource Officer, a cop, for having cigarettes in his pocket six blocks away from campus.
The school site administration was acting like he was incorrigible and that was just the final straw. They weren't even his cigarettes. He was holding for the kid who was giving him a ride to school. None of his prior "offenses" were for anything violent or destructive.
Getting a citation for being a minor in possession of tobacco was on par with the kinds of things that kept tripping him up. He wasn't supposed to do it and it was dumb, but it wasn't like he was beating up kids for their lunch money. He was a sweet young man who just wanted to be accepted and couldn't judge when he was being played or when a suggestion that he do something was a bad one.
I remember sitting in an IEP meeting with his mom, the special education director from the District's head office, the District program coordinator assigned to his campus, and a table full of scowling mean old ladies from the school site. I articulated the parent's concerns that they were failing to appreciate the degree to which our student's disability was a factor in his behavioral challenges and the fact that the history they had with him was the result of other kids setting him up as an act of bullying. The parent was further concerned that the school site staffs were not using scientifically valid, evidence-based behavioral interventions and, in doing so, were failing to abide by his IEP.
The special education director then explained the District's obligations and dedication to using PBIS in the development and implementation of IEPs for students with behavioral needs. That obviously wasn't happening and she was explaining to the school site staffs that they had no choice. But, then the highest-ranking mean old lady from the school site asked, "But, when do we get to punish him?"
The look of outrage and horror that spread across the special education director's face - the moment she realized that I hadn't been making it up when I had complained to her about this situation and asked her to come to the IEP meeting - was one of those things you just don't forget. When someone who has historically fought you on things suddenly realizes they're on the wrong side of the issue and jumps fence right before your eyes to come to your side of the issue, it gets burned in your memory. The shock on the program coordinator's face was equally impressive.
Clearly, the mean old ladies weren't listening to us and were so wrapped up in their own emotionality that the fact-based logic of what we presented fell on deaf ears. Further, because they were too inexpert to recognize the impact of this kid's disabilities on his social/emotional functioning, they took everything he did to be an affront to their authority rather than evidence of a mental disability worthy of their compassion. They had no compassion. People that egocentric don't. They were incapable of empathy.
After the meeting, the special education director and program coordinator and I discussed the situation further in the high school parking lot. They couldn't apologize enough, and that wasn't usual for them, in my experience. Normally, the three of us had a tense understanding of each other that involved haggling over disagreements, but this was a horse of another color. We bonded in our mutual outrage and it ended up improving our working relationship for the remainder of the time the special education director was still with that district.
The school site staff didn't just disrespect me, they had disrespected the special education director and her office. All the school site staff could see was the District's special education director agreeing with me, the outside agitator, and another instance of some muckety-muck from the District offices coming over to their campus and telling them what to do.
What ultimately became apparent later was that the school site's administration had come to view that campus as their own personal fiefdom and resented "those people from the District" coming over and calling them on the carpet for doing something messed up. This kind of dynamic is evidently not that uncommon in school districts. It can become part of an unhealthy culture that develops within a school district over time and leads to intra-agency turf wars.
What started out with a battle by the family to get appropriate behavioral interventions at school turned into a battle between the District offices and the high school campus administration over who was right and what the school site was required to do. The school site cadre of mean old ladies were mad that the District offices wouldn't cronyistically collude with them to adhere to outdated approaches proven not to work and cover for them, and the District was trying to convince the mean old ladies at the school site to implement PBIS so the District wouldn't get sued.
The school site personnel lost sight of the fact that the campus was just one of many that was part of the District, and if the campus team broke the law, the whole District was in trouble. The District offices had a legal obligation to enforce the regulations at the school site.
The special education department from the District and I were both approaching the matter from the standpoint of fact and law, but the staffs at the high school were coming at it from the standpoint of indignation, offense, and vengeance. I and the special education department were trying to build a house with bricks in a place that only supplied smoke.
34 CFR Sec. 300.320(a)(4) requires the application of the peer-reviewed research to the design and implementation of special education on a per-pupil basis, to the degree that it's practicable to do so. I've gotten to where my strategy of choice to force the issue is to write a request letter on behalf of the client asking for interventions according to specific articles that I will cite, if not attach, and conclude by requesting that, should the school district decline the request, that it please be sure to include in its explanation in its PWN as to why the requested intervention/method is not practicable.
I've never gotten a PWN that explained why what we had requested was not practicable. Nobody knows what that means. I wrote a paper on it in grad school as part of my culminating comprehensive exams. There is no professional standard for what is or is not "practicable," nor is there any regulation or case law that further clarifies its meaning. Perry Zirkle has published on the topic, reaching the same conclusion. I actually cited his research in my grad school paper.
While many school districts have taken "not practicable" to mean, "whatever we don't want to do," I find it powerful to put them on the spot and explain why something isn't practicable, which they evidently can't do. By framing it within the context of a specific request for a specific student according to the peer-reviewed research, which is included to substantiate the request, then asking for an PWN that explains how the application of that science isn't practicable if they decline to honor the request, I find it far more often the case that the request is simply honored.
If I can frame a procedurally compliant request in a scientifically valid manner, there is no credible argument against it. I don't ask for anything that couldn't realistically be done in the first place. It might not be something that has been done before, but it's not impossible to do it. Sometimes, people just balk because you're asking them to change how they do things, not because what you're asking for doesn't make sense.
When you make the folks at the school district stop and think about why they really object, and they realize they can't put that into a PWN without looking like jerks, then they really look at what you're asking for, realize you're spoon-feeding them the solution, and they have no good reason to say, "No." They usually come around after that.
If you can bring yourself to ignore minor inappropriate behaviors on the part of school district personnel when their feathers get ruffled and reinforce them with verbal thanks and praise when they finally do the right thing, you can get your student served with the right services sooner than if you have to fight. This approach is non-emotional and fact-based. I stick to the evidence-based science and the legal framework for the special education process. It's facts and law. Building with bricks, not smoke.
A non-emotional request is more likely to produce a non-emotional response, though not necessarily. Sometimes, pointing to the facts that justify a request also results in putting damning information on the record that makes somebody at the publicly funded agency look bad. Sometimes that person is the one to whom you must submit your request. Sometimes requests built with bricks are met with response of nothing but smoke.
In cases like that, due process may become unavoidable, but at least you will have made the record in a sensible way that will lend itself to supporting your testimony in hearing. I had that happen recently, and it was quite unexpected.
From 2013 to 2017, I assisted a family of a little boy with autism who was non-verbal. He likely has some form of childhood apraxia in addition to his autism. When I first got involved, he was learning more from his in-home ABA program than he was at school. Turns out, his teacher just assumed that his cognition was commensurate with his expressive language and treated him like he was incapable of learning. He was receiving glorified day care, not special education.
The next three years were about new assessments and the development of a data-driven IEP. By the time this student and his family moved to another state in the summer of 2017, he'd had one full year under his belt of an appropriately designed and implemented IEP to inform the development of the IEP that followed him out of state. The 2016-17 IEP was the first real data-driven IEP he had that targeted all of his unique areas of special education and related service need. By the time we reconvened in June 2017 to review it and craft the next annual IEP, we had a rich body of valid data to inform the new IEP's development.
In December 2019, I got a phone call from his mom. They were going to due process against their local school district, which was claiming that the IEP that had followed him from California in 2017 was too aggressive and its present levels described our student as being more capable than he actually was. Not that anyone from the out-of-state school district had attended the June 2017 annual IEP meeting during which that IEP had been created and was in any position to contest its validity, or anything.
I gave the student's attorney access to the audio recording of that IEP meeting and all of the supporting documents. I testified as a percipient and expert witness, certified specifically as an expert in IEP design, as to how the June 2017 IEP came about. The documentation pretty much spoke for itself, but it helped to have me speak to its veracity.
There was no way to say that the present levels of performance in that IEP were made up to appease parents in denial about how impaired their child was, which is what the out-of-state district was basically arguing. There were hard numbers to back up every bit of it. By the time the family moved away, they had a rock solid IEP based on real facts, not opinions. I had advocated relentlessly for three years to get us to that point.
I'd say more about the case, but it's still being tried. All I can speak to is what I already know from the past. The point I want to make is that, if I had not successfully advocated for a technically tight and substantively appropriate IEP based on that child's individual needs, he wouldn't have an example of what has already proven to work for him on record in his due process case, right now.
None of us ever hope that one of our cases will go to hearing, but we do hope that our work product helps the student when it shows up in evidence and that our testimony doesn't undermine the student's chances of getting what they need. I felt very fortunate that this student moved after we had finally gotten his IEP on track and he had something worth implementing to take with him. His last IEP from California will make it a lot easier for the judge to figure out what the school district owes him, presuming he wins.
The marriage of science and law that special education is supposed to be can be traced back to litigation in the early 1970s, with two cases: PARC v. Pennsylvania and Mills v. Board of Education. The outcomes achieved by these two important pieces of litigation ultimately resulted in the requirements in the implementing regulations of the IDEA for measurable annual IEP goals, the application of the peer-reviewed research to the degree practicable to the design and implementation of IEPs, using standardized measures according to their instructions from the producers of the tests, using only properly qualified assessors, and a host of other requirements that are necessary in order for the IEP produced to be technically sound according to evidence-based practices.
The science is written into the law. The problem is that most attorneys are not also education researchers or educational psychologists, and most education researchers and educational psychologists do not also work in special education law. There are few people like me who are trained in both professions who can bridge that gap, and it's up to us to help experts and attorneys understand their respective roles in this nexus where science and law collide. That's what I hope I've done in this episode and will do in the future episodes to come.
Thank you for supporting our patron-only content and helping us benefit individuals with disabilities and their families throughout the United States. Please subscribe as a patron supporter to get automatic access to all the episodes of Advocate's Insider. If you have any questions about special education and disability resource advocacy, please email us at info@kps4parents.org or post a comment to this podcast.
All content is copyrighted by KPS4Parents, which reserves all rights.
Friday Feb 14, 2020
California Charter Schools & Special Education
Friday Feb 14, 2020
Friday Feb 14, 2020
Every state has its own rules and regulations regarding charter school organization, configuration, and authorization. In California, charter schools are public schools that take Average Daily Attendance (ADA) dollars away from the school districts their students would otherwise attend. It is unlawful for charter schools in California to charge tuition to their students for this reason.
Like all other public schools in California, charters are obligated to abide by the same standards of compliance as any traditional local education agency (LEA) with respect to civil rights and special education law. While charters often like to think of themselves as "schools without rules," that really isn't true.
The truth is that some regulations are made easier for charter schools in California, while others are exactly the same as those that school districts are required to follow. The problem is that a lot of charter operators and their contracted vendors either don't know that, or they know it but don't care.
Understanding the charter rules for a single state, much less all states and territories, is confusing enough. Recognizing the abuse of those rules can be even harder for parents of students with special needs who require accommodations as a matter of civil rights, which can include an Individualized Education Program (IEP). In my experience, trying to enforce procedure in California's charter school universe usually ends in inter-agency political backstabbing and lawsuits.
To understand charter school compliance versus the climate of charter school politics in California, one needs examples. The one that most recently prompted my return to this issue was recently covered by The Camarillo Acorn in its February 7, 2020 article, "Online charter school faces laundry list of violations."
Online charter schools are even more challenged to comply with education law than brick-and-mortar charter schools. That said, for the chartering LEA in this particular case, Pleasant Valley School District (PVSD), to squawk about a lack of legal compliance on the part of the school to which it issued a charter, that being Peak Prep Pleasant Valley, is a grievous instance of the pot calling the kettle "black."
I can imagine Peak Prep's violations must be pretty egregious for PVSD to make a fuss about them in the media, and there is truly a fuss to be made as you can see from the article. But, the reality is that the Doctrine of Unclean Hands, at least as I understand it as a lay person, may preclude PVSD from saying a whole lot, which is possibly why it's addressing this situation in the media rather than a courtroom. So basically, black pots throwing stones at black kettles in glass houses, to mix metaphors.
I've had four cases from my advocacy caseload in the last couple of school years that have required due process filings, and three of them have been in PVSD. I have an active caseload that averages 20 students throughout the State, mostly in Southern California, at any given time. These are raw statistics; take them for what you will. But, to think these amoral jamokes are concerned about anything with this charter situation other than going down with the ship is foolish.
Read the article and you'll see there isn't a single, solitary concern expressed by PVSD for the welfare of students, parents, and community members. The only sentiment expressed is on behalf of allegedly overworked and underpaid district administrators who don't have time to clean up messes made by their charters. Not that imposing on district personnel to do what a granted charter requires of the charter school's staff is okay, but I get the same arguments from PVSD in response to asking it to give a kid with disabilities a Free and Appropriate Public Education (FAPE).
This district gets itself into enough trouble on its own. A visibly non-compliant charter that won't get its act together, for which the district is ultimately responsible as the chartering LEA, can only shine a stronger spotlight of scrutiny upon the chartering district. In California, the chartering LEA is ultimately responsible for the conduct of its chartered entities.
In special education in California, if you have to file a compliance complaint or due process request for a charter school student, you have to name the complaint against the chartering LEA, not the actual charter school. This is because the LEA is ultimately responsible for the charter school's procedural compliance with special education law and providing FAPE to its special education students, regardless of how the charter school configures its special education services.
In California, when it comes to special education, charters can either be "schools of the district" for the purposes of special education, in which case the chartering LEA delivers all special education, or charters can be "LEAs" for the purpose of special education and take care of it themselves. Even if they organize themselves as LEAs for the purposes of special education, there is supposed to be oversight by the chartering LEA to make sure its obligations are met, but I've never seen that happen proactively. It's always a knee-jerk fit of hysterics on the part of the chartering LEA that had no idea what the charter school people were doing until a complaint came over the transom.
Based on the sordid history of charters in California thus far, I'd think that any school board reviewing a charter application that claims to organize the school as an LEA for the purposes of special education would exercise ten times the scrutiny as it would if the charter application sought to remain a school of the district for special education purposes. In my experience, the charters organized as LEAs for special education are only organized that way to keep the eyes of their chartering LEA out of their business.
Organizing the charter as an LEA for the purposes of special education is, in my experience, an effort to reduce oversight, not increase compliance. I've heard more than one charter operator claim over the years that they didn't want to be taken down by a non-compliant school district's special education department, so they chose to do it themselves, but then they have fewer resources than their chartering LEAs and can't actually deliver.
These are the charters that tell parents to take their kids with special needs back to their districts of residence instead of ponying up the resources to actually deliver on functioning as an LEA for the purposes of special education. Nothing prevents a charter from going to its chartering LEA and saying, "We have a unique situation and need your help," to address unusually demanding special education services, such as full-time nursing support for a medically fragile student, for example, but I've never seen a charter organized as an LEA for special education purposes do anything of the sort.
When you as a parent are jumping ship to a charter school because your kid with special needs is already getting shafted by your district of residence, this really doesn't help you out. Parents changing schools to avoid having to litigate their children's special education cases often find themselves tumbling over the edge of the frying pan and falling into a blazing fire. It's usually a lateral move at best, and a downgrade at worst. See our previous post, "Parents Who 'School-Hop' Risk Making Things Worse," for more on that.
However, PVSD seems to be the one shining the light on Peak Prep, here, which in my experience, usually means there is a fair amount of misdirection going on. By acting as the accuser, PVSD is diverting eyes away from its initial decision to charter Peak Prep in the first place. The last thing any school district wants, including this one, is an official inquiry into how they conduct their business, so when a charter draws this kind of attention, it's usually not good for the LEA that issued the charter.
But, it's not like Peak Prep's organizers' questionable history was unknown or that the quality of the charter application wasn't apparent at the time it was made. To quote PVSD's superintendent, "... the cast of characters is not new by any stretch .... The same group has done this before. They should and do know better." I say the same thing to myself every time I help an attorney draft language for a due processing pleading against PVSD on behalf of a child with disabilities.
The District's hypocrisy, here, is absolutely wretch-worthy, for sure, but this whole public display over proper education agency conduct is critically informative, and voters should be paying close attention to it. While the PVSD/Peak Prep situation is just one more log on the blazing fire of charter school politics in California, it's also a loud message for voters in Camarillo who are looking at the school board and wondering what it thought it could gain for the local community by chartering an online charter school in the current charter climate. Based on the behaviors of other districts, chartering online schools is about generating charter fees from students in other communities, not improving the options for local families.
There are two directions in which this story takes my mind, both of which are relevant and equal in importance. First, there is the litigation of the charter school wars that played out in the Santa Clarita Valley a couple of years ago. But, also, there is a privately owned outfit based out of the San Diego area that claims to help charter schools comply with special education law. In my experience, that's not actually what they do. When we start getting into the history of this issue, you will see San Diego come back up again later in this discussion.
First, I have to point out what happened in the Santa Clarita Valley, citing the publicly available evidence, but also sharing some first-hand information. That matter involved Acton-Agua Dulce Unified School District (AADUSD) as the chartering LEA and Albert Einstein Academy for Letters, Arts, and Sciences (AEALAS) as the charter school, which has no website because it went out of business due to fiscal insolvency at the end of the 2017-18 school year.
During the period of the Santa Clarita Valley charter school debacle, one of the students on my caseload was an AEALAS student, and nothing in the articles I can find online will ever come close to describing the hell that student and his family went through. All of the articles online are about fiscal mismanagement, which aren't untrue, but none of them speak to the horrific special education violations that were going on. We had to involve an attorney who, over several years, had to file for due process against AADUSD for AEALAS's improper conduct on multiple occasions.
The Santa Clarita Valley story is revealing and opens up many lines of inquiry for voters of all stripes. These issues affect the lives of our children, families, communities, and public education officials throughout the State. One of the most informative articles I've seen on that whole mess is, "How a tiny California school district sparked calls for a charter crackdown," by CalMatters.org.
Rather than belabor all of it here, I encourage you to read the article. The infographic it includes is incredibly helpful. While it doesn't go into details about the special education issues per se, they aren't left ignored. The charter's inadequacies with respect to special education planning briefly identified in the article played out into absolute travesties in real life, before AEALAS ultimately closed down.
For example, none of the articles mention the AEALAS official who drank too much at his place of worship one night early during the school's first year, and basically told everyone there, most of whom were AEALAS charter school families, that our student's special education program was going to bankrupt the charter school and close its doors in the first year. This prompted the other charter parents from the same place of worship to send anonymous hate mail (signed with simply "Albert Einstein parents") to our student's family telling them they should pull out so his special education program wouldn't cost all their kids their charter school. So, way to go, religious people, for scapegoating a handicapped child to cover corrupt charter administrative fiscal mismanagement.
Clearly, no one had explained to the drunken administrator's constituents that categorical special education dollars can only be spent on special education costs, and none of that money could be spent on general education students in the first place. Our kid came with extra money above and beyond the ADA dollars that all students bring to a charter or LEA on a per-pupil basis, specifically to defray his special education costs.
What was really happening was that AEALAS was financially mismanaged from the start. That's why it couldn't get chartered by the six districts and two county offices of education to which it had applied before AADUSD granted it a charter. So they targeted a kid with costlier than normal special education needs, blamed the lack of funding on him, and sicced a pack of misinformed, emotionally underdeveloped adults on him and his family. It was an act of misdirection to make the charter's supporters think AEALAS was otherwise financially solvent all but for our student's special education program, when the evidence is pretty clear that it never was financially solvent at all.
Our anti-bullying efforts had to start with the adults at AEALAS, not the students. A non-public agency (NPA) bowed out early on and refused to do further business with AEALAS because the assistant principal at that time refused to abide by the scientifically designed behavior plan created for our student by the NPA, preferring instead to tackle him to the ground and scream in his face (our student was 7 at the time). He then attempted to treat the NPA's professional staffs in much the same way when they tried to get the charter to use positive behavioral intervention strategies, instead.
After the NPA's Board Certified Behavior Analysts (BCBAs) tried to explain the science of what they were trying to do, the assistant principal became verbally abusive of them and physically threatening. He scared the crap out of them, actually. They took the matter to their NPA's ethics committee, which wrote a letter withdrawing from service on the basis of AEALAS's ethics violations, of which the NPA refused to be a part. I've never seen anything like it before or since in my entire career.
The real issue was cost. An NPA-designed and -implemented behavior program isn't cheap, though it's a heck of a lot cheaper than a lawsuit, and the taxpayers had already funded it. AEALAS was just woefully fiscally mismanaged; it was all about playing games with taxpayer monies provided for the purpose of educating children - a point that keeps getting lost in all the inter-agency infighting that's going on.
Also helpful, and linked-to in the CalMatters.org article, is a report published by the California State Auditor in October 2017, in which the players in the Santa Clarita mess featured prominently, titled, "Charter Schools: Some School Districts Improperly Authorized and Inadequately Monitored Out‑of‑District Charter Schools." I mean, they don't even wait until the opening summary of their report; they call it all out in the title.
You would think that other school districts in the State would have taken better notice of these developments and the outcomes they've produced. Maybe, however, that's one compelling reason why PVSD is reacting so strongly, now. If so, I have to give PVSD some credit for dealing with the situation within less than a year of issuing the charter, even if it does add to the smarmy politics of the issue.
These things, among many others, need to be sorted in public education. Ideally, PVSD wouldn't have issued a charter to an outfit capable of performing this poorly in the first place, but second best is admitting your mistake before it's too far gone, which PVSD appears to be doing, now.
Secondly are my concerns about the bad things creeping out the San Diego area with respect to charter school non-compliance with special education law. These charter violations place chartering LEAs in violation, whether the LEAs realize it or not.
In the PVSD/Peak Prep matter, one of the players in the current matter from the charter school was previously employed by another charter school that was shut down last year following charges filed against the owners of its parent organization, A3 Education, for pocketing $50M in taxpayer funds by the San Diego district attorney's office. For more information on that, see "How an alleged charter school conspiracy netted $50 million."
And, here's where it gets super creepy/interesting, depending upon your point of view. If you look on the Peak Prep website, it opens up by telling you that enrollment is closed. I would imagine so, because another page on the site lists all of the schools shut down by the court-appointed Receiver following the A3 lawsuit.
Now, supposedly, Peak Prep has nothing to do with A3, which is the company busted in the $50M charter scam. But, the Peak Prep Pleasant Valley principal, Shalen Bishop, is listed as the principal of University Prep, which is one of the schools listed as closed on the Peak Prep site. It and the other schools listed are A3 schools.
So, if that case isn't related to Peak Prep, why is that information on their site? That creates a link between shenanigans in the San Diego area to what's happening in PVSD. This supports PVSD's superintendent's previously quoted statement about this particular "cast of characters" having done this before and knowing better.
But, it gets richer. Also in the San Diego area is a privately owned company called Special Education Assistance and Technical Support (SEATS). SEATS doesn't have a website. The closest thing I could find was the LinkedIn profile for the wife of the husband/wife team that own and operate SEATS. There are also some job listing sites that come up when you do a search for SEATS, indicating that the agency is looking to hire resource specialists and speech-language pathologists.
But applicants be warned, SEATS reportedly does not cover travel time or mileage to dispatch their special education staffs all over Kingdom Come to serve students in independent studies and online charters. Even if a school is virtual, if a special education student of such a school still needs 1:1 specialist support to participate in instruction, or otherwise needs specialist services in person, the law requires the school to meet the needs of the child, not expect the child to warp themselves to fit the charter school's pedagogy. The whole point of special education is to individualize the program to meet the unique needs of the student.
SEATS has a reputation for making special education service decisions on the basis of how much they are willing to spend rather than individual student need. They also have a reputation of short-paying their vendors and speaking to them disrespectfully in IEP meetings and/or screaming at them outside of the meetings if they dare to recommend anything SEATS hadn't already approved for expenditure in advance of the meeting.
Needless to say, none of SEATS's employees are in a union of any kind. It's also not a coincidence that the teachers' unions in California are backing current efforts in Sacramento to take on this whole charter mess. Most of the charters in California, virtual or otherwise, do not have unionized certificated personnel, which has contributed to high turnover rates and disclosures among professionals about what they have been experiencing.
In the course of developing this post, I spoke with a colleague still employed by a virtual charter and she's just waiting for the State to come after her employer. All of the virtual charters are apparently starting to freak out because of all the accountability that is now coming their way. While she needs a job, she is also morally outraged by what she sees on a daily basis.
The stress of working for this charter is affecting her health and she has no union to turn to, but she also recently had to take her local school district to due process on behalf of her own child with special needs and it's not like they're going to hire her to work for them, after that. I've received similar feedback regarding work-related stress from former contractors of SEATS over the years that mirror what my colleague at the virtual charter was expressing to me the other day.
SEATS alleges to help charter schools comply with the special education regulatory requirements, but I've seen them mostly help charter schools try to dodge the special education regulatory requirements. SEATS personnel have been alleged to tell families that the charter school they chose cannot support their children's special education needs because they don't offer "those" kinds of services, so the families need to go back to their regular school districts.
The owners of SEATS once emailed me while they were on a cruise to tell me that the charter school in the case we were discussing didn't have the money to pay for the services we were requesting. Forget that the charter was paying SEATS to make sure they were provided.
As best as I understand it, SEATS basically tells its charter school clients, "Give us your entire special education budget for the year, and we'll make sure you don't get in trouble." However, the owners pay themselves out of that money, they have multiple charter clients, and they go on a whole lot of trips and cruises while kids with disabilities go without special education services that SEATS is supposed to provide, but "can't" because their charter clients don't have the money to pay for them.
From what I've seen, it's not that SEATS is trying to keep charter schools from making mistakes; it's that SEATS is participating in and profiting from the same charter money scams that are going on all over the State to hide mistakes, if not outright corruption, from authorities. They simply occupy the special education niche within this whole shameful legislative disaster.
One of the other charter systems being scrutinized, now, is the Inspire chain of charter schools. I had a student on my caseload a year or two ago who was an Inspire student. His online/independent study program was chartered by none other than AADUSD. Inspire also has programs chartered in the San Diego area, where the A3 $50M matter was tried. Now Inspire is under scrutiny for, among other things, lack of transparency, and I'm not the least bit surprised.
Like most of my other special education students accessing in-home instruction through independent study and/or online instruction, my Inspire student's situation wasn't about school of choice. The brick-and-mortar setting wasn't accessible to this student because of his disabilities, making his living room the Least Restrictive Environment (LRE) in which he could receive and benefit from instruction. He had previously been in an independent study charter that used SEATS for special education and, when that didn't work out, they went to Inspire.
When things get so extreme that instruction in the home is the only way for a student to access education in a regular school district, you get a doctor's note stating that it's medically inadvisable for the student to attend a regular school and the IEP placement can be changed to home/hospital. The only placement more restrictive is a 24/7 residential facility with a school on its grounds. But, because every kid's living room is the general education classroom in an online or independent study program, it's not considered restrictive at all.
Because the general education "classroom" and special education "classroom" are the same thing in an online or independent study program, trying to write an IEP for a kid in such a program is generally a nightmare of technicalities and questions of procedure. Then there are the fights over where special education and related services will be provided.
Even though school districts will hire staffs to provide in-home services as needed to facilitate access to instruction, almost every online and independent study program I've ever encountered refuses to send anyone to the home for any special education purpose other than assessment, and even then, sometimes not. So, even if you've got a kid whose disabilities make it impossible to get them to participate in instruction and they need in-home BCBA support to overcome that behavioral challenge, most independent and online charters won't even think of sending over a BCBA or will only do it upon threat of complaints or litigation.
These online and independent study programs will try to get IEP services pushed out into the community rather than into the student's home, which mostly has to do with the insurance costs and the related liability of sending teachers and specialists into people's homes. They'll try to make the parents drive their kids to meet teachers and specialists in the community when these kids are only in home instruction because getting them out of the house is often so hard. One of my past clients would drive to the next town over with their kid to accommodate the fact that SEATS wouldn't pay their special education teacher mileage or time to drive to their community.
Instead of individualizing the instruction, online and independent study schools tend to use their pedagogy as their excuse for not tailoring the IEP to the individual student, as required by law. So, the bottom line to all of this is that parents of children with special needs in California need to think long and hard about whether a charter school is appropriate for those children, particularly an online or independent study charter.
It's not that charter schools, even the online and independent study ones, in theory, are a bad idea. It's that they are improperly regulated in California, so they are becoming something other than what they were intended to be. In no small part, this is because certain elements out there don't want their kids going to school with "those other kids," and are trying to twist the charter system into a system of segregation.
Whoever happens to be "other" relative to the parents practicing such bigotry and teaching it to their kids, with the help of the dysfunctional charter system for profit, depends on the parents. Sometimes it's racism. Sometimes it's religious extremism. Other times it's socio-economic classism. Sometimes it's people who don't want to be criminally prosecuted for not sending their kids to school and couldn't possibly care any less than they already do about education.
There are enough people out there who don't want to abide by public education's true intent and will try to twist the system to fit their ill-intentions to do obvious harm. Such has been the case with charter schools in California, which is finally prompting a louder call for more appropriate regulations. The concern for many is all kinds of vendors profiting from the existing dysfunctional system without delivering actual educational outcomes, which circles us around back to SEATS.
The situation with Peak Prep Pleasant Valley speaks to the running concerns I've had for years about how SEATS is funded. PVSD is asserting that Peak Prep violated the California Education Code and the State's labor laws by giving away its control of "hiring and termination decisions" to a third party contractor, called Educational Staffing Services (ESS). It is further asserting that Peak Prep "engaged in fiscal mismanagement" by giving over its administrative operations to yet another 3rd party contractor, Accel Schools, which is owned by the same guy who signed the contract between Peak Prep and ESS as ESS's CEO.
According to PVSD, Peak Prep gave Accel control of its funds and failed to complete requested financial documents. PVSD can't see how Peak Prep is using its funds because its operating budget is "obscured by a lump sum payment in exchange for the program services, all delivered by Accel." This is, to the best of my understanding, the same model as how SEATS gets funded.
Like Peak Prep giving its money to Accel in a lump sum, which then shows up in its budget as a single line item with no detail on how that money was spent, SEATS's clients are giving it lump sums that represent their entire special education budgets for the school year. I have to wonder just how many details they are sharing with their charters and how many of those details the charters are sharing with their chartering LEAs about where that money is going. I have reason to suspect that it's paying for cruises rather than special education services.
To be fair to vendors and contractors who serve charter schools in California, it's honest to say that the laws are a mess and even the most well-intended vendor is at risk of getting into trouble over finances just because of how poorly regulated charter schools are in California. Rabbi Mark Blazer, who spearheaded the failed AEALAS endeavor in the Santa Clarita Valley, was quick to point out "bad charter policy" in California, and he's not wrong that California's charter policies are bad.
It's just that most of the charters out there, in my experience, see the bad policies and weak regulations as exploitable opportunities for profit. The children and families horribly affected by their actions are just collateral damage, not the intended targets. Students are just a means to a financial end to these people. The harm done is all the same regardless of intent, and it's far-reaching.
A whole bunch of very crooked people have now stolen way too many taxpayer dollars in California that were invested by the public into education. California has created a charter school system that is more about moving money around, mostly into the pockets of the wrong people, than educating students. While Betsy De Vos may find that acceptable, most Californians - heck, most Americans - do not.
A system like this entices the least savory people on the planet to parasitically attach themselves to it wherever there is an exposed spot, such as the loophole-laden charter laws in California, and suck the system dry before it realizes how much it has hemorrhaged. The cases making it to media make that clear. The chief perpetrator in the $50M A3 scandal is an Australian national.
The unspeakable number of dollars spent on litigation, whether its families suing to get special education services or school districts suing each other over ADA dollars, takes funding out of the classroom and creates overworked and underpaid certificated personnel. This is a voter issue that isn't getting enough attention, but with the election coming up later this year, Californians will have the chance to hold the State and their local school boards accountable and elect or re-elect officials who will clean up these messes in a timely, responsible way.
Sunday Jan 12, 2020
Positive Behavioral Interventions and Supports in Special Education
Sunday Jan 12, 2020
Sunday Jan 12, 2020
In memory of Cedric Napoleon
I wasn't going to write on this topic quite yet, but I'm working on a case right now that has me upset over public agency mismanagement and misconduct that has resulted in the physical abuse of our nonverbal student with severe special needs and God only knows how many other students within this public education agency. It reminded me of a lot of things, including our organization's founding and the protective purpose KPS4Parents has always served as student and family advocates.
I maintain my list of topics to write about as draft posts on the backend of our site, sometimes just as a title, sometimes with a brief description, as the ideas come to me and, when I go to write, I have them more or less organized in my head in the order I want to write them. But, sometimes, like now, something happens that makes one of the topics leap up to the top of the list.
I am currently providing paralegal support to an attorney on a case in which our student has gone for years without behavioral interventions in her IEPs after previous years of successfully benefitting from such IEP interventions. She has regressed to the point where she was behaviorally 10 years ago, before receiving any appropriate behavioral interventions at all.
The educational neglect in this case rises to the level of physical abuse. The school district's bumbling ineptitude at the expense of our student's welfare has been nothing short of galling. Our student is now sitting safely at home waiting for her case to be either adjudicated or settled but without the benefit of any instruction or related services until it's resolved.
Which takes me back to the founding of KPS4Parents and the event that was the last straw that compelled our founder, Nyanza Cook, to start KPS4Parents. In 2002, I was a lay advocate in private practice helping families of students with special needs, and Nyanza hired me to help her with her step-son's case, which is a story unto itself for another day. It's how we met and these were the early days. It was the context we were in at the time.
Nyanza hails from Killeen, Texas near Fort Hood, the largest U.S. Army base in the continental United States. While diversity has been tolerated, if not embraced, within the U.S. military in many instances, outside of the military base in the rural areas of Texas, diversity is not so much appreciated. Killeen Independent School District (KISD) has historically operated separate schools for students with "behavioral problems," most of whom have been African-American or Latino. The quality of special education in KISD has been historically abysmal, particularly for students of color, which is how it's misconduct led to our organization's founding.
In 2002, a young man named Cedric Napoleon was attending a Special Day Class (SDC) at one of KISD's special schools for students with "behavioral problems." Cedric was a foster child living with his foster mother, Toni Price. He had experienced severe trauma in early childhood, including deprivation of food for days that led to a food hoarding behavior and other behavioral challenges. He was in special education under the Emotional Disturbance (ED) category and his SDC was supposed to be configured specifically for students with ED issues.
Also in the classroom at the time was Nyanza's nephew. On one fateful day in March 2002, Cedric was suffocated to death by his classroom teacher during a prone restraint. He was not being violent towards others, trying to run out of the classroom, or hurting himself when she restrained him. He was being non-compliant and she took it as an affront to her authority. She pinned him face down on the floor out of hostile rage and when he said, "I can't breathe," she replied, "If you can speak, you can breathe." He expired shortly thereafter as Nyanza's nephew and his classmates watched on in horror.
That night, Nyanza got a hysterical phone call from family members gathered at her parents' house in Killeen. They knew she was talking about starting a special education advocacy organization and had been advocating for her step-son in California. They put her nephew on the phone with her and all he could say in a dazed voice was, "They killed him, Auntie. They killed him." He was terrified to return to school after that, and never did. His life has been one of despair and tragedy ever since.
The day Nyanza's nephew witnessed Cedric's murder in his classroom by his teacher, he was already there because he had his own ED issues. To add the trauma of witnessing Cedric's murder to his own pre-existing special education needs, in the place that was supposed to help him overcome his pre-existing special education needs and at the hands of the person who was supposed to help him, was just too much.
More than one life was destroyed that day. Cedric's classmates witnessed his murder in that ED SDC and were affected for life in ways that could only lead to more suffering for them. The District's students most vulnerable to trauma were severely traumatized by one of the most grotesque abuses of their trust possible. They witnessed their teacher kill a classmate for daring to defy her authority.
Nyanza called me that night as soon as she got off the phone with her family and told me what they had told her. She and I agreed that when teachers were murdering our babies in plain sight of our other babies (we have an it-takes-a-village mentality, which makes all babies our babies), we couldn't stand idly by. The death of Cedric Napoleon was the final straw that compelled Nyanza to go through with starting our organization, she asked for my help, I said "Yes!" without hesitation, and we had our paperwork in order by June of 2003.
In Cedric's case, to make matters worse, once his life had ended, so had his foster mother's legal authority to act on his behalf as a parent. She could not pursue justice for him because she lacked the legal authority and the foster care system did little to nothing about it. Cedric's killer was never tried for murder. She was never subject to any disciplinary action by the public education system in Texas.
On May 19, 2009, Toni Price finally got her chance to do something about what had happened to Cedric. The Education and Labor Committee of the U.S. House of Representatives was being presented with a report of the findings of an investigation the Committee had previously ordered to have done by the Government Accountability Office (GAO) regarding the use of seclusion and restraints in public schools. There had been a fairly recent similar study conducted of private schools that produced shocking and horrifying disclosures as bad as Cedric's or worse, and the Committee had wanted to know if these problems were also pervasive in our nation's public schools.
The GAO report started circulating among those in my professional circle online shortly after the hearings and ultimately found its way to me. I remember reading through it and getting to the section describing what happened to Cedric and going, "Wait a minute. I've heard this story before ... OMG! This is the kid from Nyanza's nephew's class!" I immediately forwarded the report to Nyanza and either called or texted her to follow up. At some point we ended up on the phone and she was flabbergasted to see Cedric's story spelled out in the report. It was the same student she had told me about back in 2002.
In the course of conducting its investigation, out of all of the cases of problems with seclusions and restraints that GAO examined, Cedric's stood out as particularly horrifying, in no small part due to the fact that his killer had never faced any serious consequences for killing him at the time of the investigation. The investigators searched for this teacher when their investigation revealed that she had faced no consequences and, shortly before the date of their presentation to the Committee, found that she had relocated to Virginia and was running an SDC on a public school campus that was only a 45-minute drive away from where the Committee was convening to hear the presentation of their report.
There was no effort to conceal the outrage that several Committee members expressed over the fact that this woman had not only killed an ED student in the ED SDC where she was supposed to be helping him get better, but that she faced no consequences and was able to get credentialed in at least one other state because the fact that she had killed a student didn't follow her on her record. They openly referred to Cedric's death as a murder.
The Committee's disgust is exposed during the hearing (click here for video of the full 2-hour hearing), and I share that disgust. It is disgusting; disgust is the only healthy response to what this woman did. Rep. Rob Andrews (1:22:22 - 1:28:16 of the hearing video), Rep. Lynn Woolsey (1:53:02 - 1:54:18 of the hearing video), and Rep. George Miller, Committee Chair (1:55:21 - 1:57:44 of the hearing video) had particularly candid things to say and there was bipartisan heartsickness over the whole thing.
The only reason Cedric's killer was found was because of the GAO's investigation. Had it not conducted it, a known killer would have been allowed to remain as a fox in a henhouse, circulating among the same types of individuals upon whom she had preyed before. Their parents had no idea they were sending their vulnerable children off to a child killer each school day. Even now, almost 11 years later, the thought still makes me shudder with horror.
The Committee's take on the situation was influenced in no small part by the testimony of various witnesses produced by the investigators in support of its findings. Among those asked to testify was Toni Price, Cedric's foster mother. Her testimony was compelling; even now, it still makes me cry.
Toni argued for a national, if not global, directory of teachers found guilty of child abuse for education agencies to use for screening teaching applicants, and she did so from the most informed position possible. She spoke as the primary caregiver of a child with mental health needs killed by the person entrusted to address them every day at school, but with no legal recourse to do anything about it, leaving advocating for that child and protecting others like him to no one. Only the fluke of a Congressional investigation at the right time on the right topic exposed what happened, and Toni took the opportunity to say what needed to be said.
Which brings me back to the topic of this post and podcast, which is the use of Positive Behavioral Interventions and Supports (PBIS) in special education. Subsequent to the May 2009 hearing, GAO began gathering additional information and the U.S. Department of Education began promulgating guidance and technical information regarding PBIS. In 2012, the U.S. Department of Education produced the Restraint and Seclusion Resource Document.
In February 2019, after 10 years of collecting data on the use of seclusion and restraints in our public schools, GAO produced another report and another hearing was held during which the last 10 years' worth of data collected and analyzed were presented to the Committee. Witnesses gave testimony, provided additional evidence, and answered questions. You now can look up the CRDC data for your own school district on the CRDC site.
Shortly thereafter, the U.S. Department of Education announced an initiative to address the inappropriate use of seclusions and restraints in our public schools. Just this last December, four members of the U.S. House of Representatives proposed a bill, HR 5325, referred to as the “Ending Punitive, Unfair, School-based Harm that is Overt and Unresponsive to Trauma Act of 2019” or the “Ending PUSHOUT Act of 2019," which seems like way too poor of a word choice for a name just to create an acronym, but the body of the bill still nonetheless prohibits seclusions and restraints and includes other regulations pertaining to behavioral interventions.
HR 5325 is still a bill pending before the Education and Labor Committee of the U.S. House of Representatives. It was introduced just last month, so obviously nothing has happened with it, yet. Congress has been a little busy lately and the last time the Committee tried to pass legislation to address seclusion and restraints in 2009, it passed in the House only to never see the light of day in the Senate. That's likely to happen again, now, with our current configuration of Congress, but the effort still needs to be made.
What GAO reported in the most recent hearing was that there wasn't enough data in, yet, regarding the efficacy of Education's efforts to promulgate PBIS technical information and guidance among the public schools or the degree to which the schools that availed themselves of it found it beneficial. In controlled research situations in which implementation fidelity was maintained, PBIS was proven to work, but how well public schools actually implement it with success in the absence of researcher oversight and fidelity checking remains to be seen.
What seems to be the case, and the whole reason this issue is before the House Education and Labor Committee, again, is that there is an obvious need for federal oversight and regulation, here. There is a lack of consistency from state to state as to how behavioral interventions are to be implemented in schools. Some states have regulations regarding seclusions and restraints in schools and others do not. Even those states that have laws in place don't provide for adequate enforcement of those laws.
The lack of built-in accountability has made it possible for horrible situations to happen. And, they continue to happen. The only way the public school system is held accountable in situations like these is when individual families take legal action. Hence, the case I'm now working on that has made these issues spring to life for me, once again, much to my deep disappointment.
Educator and support staff training, or a gross lack thereof, more specifically, is often at the heart of these cases. But, so is the lack of teacher accountability and the degree to which educators tend to cover up each other's tracks, even if it means a child dies in the process.
The fear of talking usually goes to fear of losing their jobs, fear of reprisals from their co-workers, fear of being held accountable for the actions of others, fear of getting in trouble for the same thing for which someone else is getting in trouble because they've done it, too, and has to come with a tremendous amount of internal conflict. Only sociopaths could smoothly walk that rocky landscape without being troubled by the experience.
The willingness of school administrators to let something as horrible as student traumatization, physical injury, and/or death by the hands of teaching staff and aides in the learning environment get swept under the rug and hope nobody notices, if not actively seek to conceal it, is repugnant. There is a lack of professional integrity in the public education system that can reach sickening proportions, and these cases are examples.
So, I really don't have an upbeat ending for this post and podcast. I'm pretty not okay with what I'm still seeing going on with respect to seclusion and restraints in public schools in California, which is supposed to be the most progressive state in the country. It's particularly bad in rural communities far away from specialists and adequate facilities, particularly when those communities are mostly made up of low-income households.
In some cases, like the one I'm working on now, the student has experienced nothing short of absolute barbarism. It shouldn't take people like me helping to hold the public education system accountable after the fact. The answer is prevention. In the absence of any guidance in the student's IEPs as to how to address her behaviors, she was repeatedly secluded and restrained by teachers and aides who didn't know what else to do.
This was all just up until a few weeks ago, which is why she's now safely at home but without any instruction or related services until her attorney, in collaboration with me as his paralegal and the experts we're bringing onto the team, can get this mess cleaned up. It just sickens my heart that after all the years that I've been doing this work - 29 years this coming June, mind you - this is where things are still at. In the most progressive state in the Union, we're still secluding and restraining non-verbal students who are struggling to communicate their wants and needs. It puts bile in the back of my throat.
Tuesday Dec 31, 2019
Tuesday Dec 31, 2019
Special education is heavily regulated to protect the rights of eligible students to individualized educational planning, but complying with the regulations is easier said than done. The operational design of most public schools is over 150 years old and based on the mass production mentality of a factory, having been created during the Industrial Revolution. By contrast, the applicable special education laws were first passed in the 1970s, accounting for only the last 1/3rd of the current American public education system's history.
Trying to implement the individualized educational planning called for by special education law in an environment created for the purpose of mass instruction is like trying to build a custom piece of furniture on a moving assembly line. In the early days of special education, this meant removing students from the general education setting to special education classes, effectively choosing to build a custom piece of furniture in a specialized workshop rather than on the pre-existing assembly line.
The problem, however, is that pieces of furniture do not have civil rights. It's one thing to segregate inanimate objects according to how they are constructed. It's another thing to segregate human beings according to whether they need changes in how they are instructed due to disability.
Because special education students have legal protections against being segregated out of the general education setting simply for having a disability, integrating individualized educational planning into a mass instruction environment becomes that much more complicated for special education students who are educated with their general education peers for all or part of their school days. The complexities of individualizing educational programs for each student are seemingly infinite, given all of the relevant disability-specific considerations plus all of the ecological factors involved in each instructional setting.
However, science - specifically research conducted by educational psychologists and their colleagues - has been attempting to keep up with the demands created by various types of unique student needs, including disabilities of all kinds. While it all hasn't been figured out for every situation by any stretch of the imagination, there is still a wealth of information from education research that never makes its way into the classroom, much less into individual IEPs.
That's a problem because Title 34, Code of the Federal Regulations, Section 300.320(a)(4) mandates the application of peer-reviewed research to the design and delivery of special education on an individualized basis, unless it's not practicable to do so. No one has yet defined what "practicable" actually means, so it's still up for debate.
The history of how all this science ended up being codified within the implementing regulations of the Individuals with Disabilities Education Act (IDEA), has been summarized in our last blog post, "The Fundamental Flow of IEP Creation," so I won't repeat it here. You can review the impact of PARC v. Pennsylvania in that post to inform references to it, here.
The point is that the applicable science has always been written into any serious redress to the educational needs of students with disabilities after having been deprived educational benefits by the public school system. In PARC v. Pennsylvania, a psychologist with extensive experience working with children with intellectual disabilities and an attorney committed to representing the interests of children with intellectual disabilities were jointly appointed by the federal court to serve as special masters to oversee the implementation of appropriate interventions to students with intellectual disabilities in Pennsylvania's public schools as part of the settlement that was negotiated between the parties. The settlement included federal court oversight by way of the court-appointed special masters.
The historical foundations of the requirements for measurable annual goals in IEPs pursuant to 34 CFR Sec. 300.320(a)(2) and the application of the peer-reviewed research to the delivery of special education as mentioned previously can be traced directly back to PARC v. Pennsylvania. There has never been a time when the law did not expect the delivery of special education to be informed by anything other than evidence-based practices developed from the peer-reviewed research.
From the moment the first laws were created to provide special education to all eligible children in the United States, science was built into its design. Federal Supreme Court case law has established that Congress expected procedural compliance with the IDEA to all but guarantee compliance with the substantive requirements of the law when it authored and passed what is now the IDEA. Specifically, the case law states, "...the Act's emphasis on procedural safeguards demonstrates the legislative conviction that adequate compliance with prescribed procedures will in most cases assure much, if not all, of what Congress wished in the way of substantive content in an IEP." (Board of Educ. v. Rowley, 458 U.S. 176 (1982))
Congress intended for the applicable science to guide the special education process for a number of good reasons. First, using science means using what everybody can agree actually works under a given set of unique circumstances, to the degree such is known. There is evidence - proof - that under the explicit conditions that were tested, a particular method of intervention works or doesn't.
Because every special education student presents as a highly unique individual such that their learning needs do not conform to conventional instruction, they require highly individualized instruction that is tailored to each of them, respectively. There is no one-size-fits-all method of intervention proven to work in special education contexts. What is proven to work is writing up a unique program of instruction for each individual student. That is the evidence-based applicable science, that is the bottom line requirement of the applicable federal law, and this has been known and federally regulated since 1975.
This, therefore, begs the question as to why so much of special education is based on subjective opinions, ballpark estimations (often underestimations), and fad theories about learning rather than science. There's been a lot of research into why the research isn't being promulgated for use in public education and politics has a lot to do with it.
Applying the research means upgrading facilities, retraining teachers and their support staffs, buying new materials, and paying for more specialists. Further, it's often necessary to purchase all of the research materials necessary to inform any kind of evidence-based program design and hire someone who knows how to translate the research into a data-driven educational program. For highly paid top agency administrators who get compensated on the basis of how much money they don't spend rather than how many students they do get educated, applying the research means spending money, and that's no way to get a raise in that kind of institutional culture.
Another concern of many public education agencies is accountability. When using evidence-based practices in the delivery of special education, one can't ignore the body of research that supports that the data collection and analysis methods used in Applied Behavioral Analysis (ABA) are the most reliable methods of data collection and analysis used in any special education context (Drasgow, Yell, & Robinson, 2001; Kimball, 2002; Yell & Drasgow, 2000). The problem for some education agencies is that valid data collection means all their missteps will be captured by the data. If they aren't actually implementing the IEP as written, the data will reflect that, exposing the agency to legal consequences.
People often mistake ABA for a treatment for autism, but this is not the case. It is true that behavioral interventions using ABA can be effective at addressing behavioral challenges with students who have autism, as well as any other human beings with behavioral challenges, but it can also be used as an instructional methodology and as a tool to determine if learning has occurred and, if so, how much. That is, it is excellent at measuring progress towards a clearly defined outcome, such as a measurable annual IEP goal.
The Antecedent-Behavior-Consequence (ABC) data collection methods used in ABA naturally lend themselves to measuring progress towards IEP goals. This is how it works: a stimulus (Antecedent) is presented to which the student responds with a specific Behavior, which immediately results in an outcome (Consequence) that either increases the likelihood of of the behavior happening again (reinforcement) or it doesn't (absence of reinforcement or punishment).
Most people in special education are at least familiar somewhat with using this approach to dealing with inappropriate behaviors. You don't want to deliver a reinforcing consequence when an inappropriate behavior occurs. Instead, you want to reinforce a more appropriate replacement behavior that still meets the student's needs; the behavior was happening for a reason and you can't leave its function unaddressed or a new behavior will just develop around it. Treat the cause, not the symptom.
You only resort to punishing the undesired behavior when reinforcing the desired behavior is not sufficient at extinguishing the undesired behavior. Presenting reinforcement for doing what is expected and withholding reinforcement for doing what is not expected is usually a pretty powerful strategy for positive behavioral interventions.
When using ABC data collection and analysis on the fly during instruction, your thought process is a little different. When you're looking at whether a student is learning from the instruction you are providing, especially when working with students who have significant impairments that limit their expressive communication skills, sometimes it's the raise of an eyebrow, the turn of a head towards you with eye contact, or the smile or grin that tells you whether or not you're getting through. There is still an Antecedent (the delivery of your instruction and/or check for understanding), a learning Behavior (the student's response to your instruction and/or check for understanding, whether verbal or not), and a Consequence (praise for learning or encouragement for trying) that increases the likelihood that the student will remain engaged and continue to participate in the instruction.
When using ABA-based data collection methods to measure for IEP goals, so long as the goals are written as math word problems based purely on observable learning behaviors, it's pretty straight forward. Take for example this goal, which is purely made up for illustrative purposes: "By [due date], when given 10 calculation problems using multiplication of double digit numbers per trial, [Student] will calculate the 10 problems with at least 80% accuracy per trial in at least 9 of 10 consecutive trails within a semester, as measured by work samples."
This is easy. There are 10 problems per trial. The student needs to get at least 8 out of 10 problems right per trial (measure of accuracy) in at least 9 out of 10 consecutive trials (measure of consistency) within a semester (measure of time) in order to meet the goal. Nothing is left to guesswork. Everything is represented by an increment of measure.
What ruins a goal out of the gate is basing any part of it on internal thoughts and feelings experienced by the student. Never start a goal with language like, "... when feeling anxious or angry ..." or "... when presented with a non-preferred task ..." You can't trigger the onset of measurement based on something you can't observe. You only know what the student is thinking or feeling once they express it in some way.
There is no way to get in front of the student's expression of their thoughts or feelings to prompt their behavior in an appropriate direction because there is no way to know what the student is thinking or feeling before they act. Other people's thoughts and feelings, including those of special education students, cannot be observed or known by other people. No credential in special education imbues special education personnel with clairvoyance. By the time you know what the student is thinking or feeling, it's too late to influence how they act on those thoughts or feelings; you only know because they've already acted.
The same goes for preference. Preference cannot be observed and it can vary from day to day, or even moment to moment, for a lot of special education students. What is preferred at one time will often not be preferred at others. Eventually it is possible to have a good idea of what is not preferred by a student, but then confirmation bias can enter the picture and you see what you expect to see, not realizing you're prompting it according to your preconceived expectations.
What makes more sense is to write goals that do not target what are referred to in ABA as "private events," but rather to expected behaviors. For example, a common behavior targeted in the IEPs of students with challenging behaviors is work refusal, which is to say non-compliance with task demands. A teacher will assign a task and, if the student is non-compliant, they will either passively sit there and just not perform the task; do something else passive instead, like doodle or read a book; engage in distracting or disruptive behavior, like play on their phone or talk to their neighbors; or engage in outburst behaviors, possibly accompanied by leaving the room (eloping).
It's usually pretty easy to figure out if there is a pattern to the types of tasks assigned and when non-compliance occurs such that preference can seem easy to identify. But, trying to rely on that for the purpose of measurement is like trying build a house on shifting sands because someone's preferences can change so quickly.
The language that I see most commonly used in goals that work around the issue of private events reads more or less like this: "By [due date], when assigned a task, [Student] will either initiate the task, ask for help, or request a 2-minute break within 60 seconds of the task being assigned in at least 8 of 10 consecutive opportunities as measured by data collection."
This makes things easy. Regardless of whether the student has a personal preference or not for the task being assigned, they will either start the task, ask for help with the task, or take a short break and get it together before they come back to the task.
Some students have processing speed delays that interfere with their ability to get started right away. They need extra time to process the instructions so they understand what you want them to do. Sometimes that extra little break is all they need to get there independently. It just takes them a little longer to think it through and make sense of what you want from them before they know what to do and can start. Other students get emotionally overwhelmed and just need to go get a grip before they tackle the expectations being placed on them. Yet others take longer to stop one activity and transition to another one. That short little break can buy them the time they need to process the mental shift of set and orient themselves to the new demands being placed on them. Other times, students just don't understand the expectation being placed on them and need clarification.
In any event, if there's a problem, the goal provides a solution; otherwise, the student just needs to perform the task as assigned. Further, the language of this example goal can be modified for a student to provide for alternative acceptable responses and/or a different response time.
With respect to measurability, there is no guessing about what anybody is thinking or feeling in a goal formatted this way. Measurement is triggered by the delivery of a task demand (the assigned task) and is based on whether any of the described acceptable outcomes occur within 60 seconds. All of the elements of the goal are measurable.
Further, a goal written this way follows the ABC format of ABA. First an Antecedent is presented (the task demand), then one of three acceptable Behaviors (task initiation, request for help, request for break) occurs, then an appropriate Consequence (completion of the task, delivery of help, or receipt of a short break) is immediately forthcoming. Everything that needs to be measured can be observed. The observable criteria are easily represented in increments of measure. It's black-and-white without making any assumptions about a student's thoughts, feelings, or preferences.
So, having said all of this, how does this get us to the point of the article, which is how parents can successfully advocate for the application of the peer-reviewed research to the design and implementation of their children's IEPs? Well, first, I needed to be clear as to what I mean by applying the peer-reviewed research, hence everything I just got through explaining.
Parents first need to understand what they are asking for and how it impacts the design and implementation of their child's IEP. Further, any professionals reading this for the purpose of further developing their skill set may not have all the background information necessary to make sense of all of this, either.
A foundation first had to be laid. Having now done that, parents need to keep the information I've just shared in mind when participating in IEP meetings and reviewing IEP documents for appropriateness.
If you live in a consent state like California, I usually suggest signing only for attendance at the meeting and taking the document home for review before signing agreement to any of it. In California and other states, you can give partial consent to an IEP and the education agency has to implement the consented-to portions without delay while the non-consented-to portions remain subject to IEP team discussion and negotiation.
Anything that can't be resolved via the IEP process must go to due process for resolution, whether you are in a consent state or not. Just because you are not in a consent state doesn't mean that an education agency won't change the language of an IEP at your request. An IEP meeting would likely be called to discuss your concerns and, if you back them up with facts and logic, the education agency isn't going to have a good reason to say, "No." Not everyone is outlandishly unreasonable in special education; there are some definite bad apples, but they don't account for the entire barrel. Due process is your only resort if your efforts to resolve things at the IEP level are not met with success and your child is increasingly compromised because of the unresolved matters.
If you are unfortunate enough to have to rely on due process to see things resolved, the fact that your denied requests were supported by facts and logic will only help your case once you get in front of a hearing officer. Understanding the underlying arguments of what makes something legitimately measurable and the federal requirement that special education be delivered according to what science has already proven works makes you a far more informed IEP participant than at least some of the other people at the table.
As a parent, the more you can support your requests and arguments with peer-reviewed research, the better. Once you frame your requests according to the proven science and make it as black-and-white as possible, you eliminate all kinds of silly arguments. This means not only asking for goals that are truly measurable, though that goes a long way towards solving and preventing a lot of problems, but also understanding the nature of your child's disability(ies) and what the research says can be done to teach to learners with such needs.
Gathering the necessary research data to inform a request for a particular assessment, service, curriculum, methodology, technology, or placement requires accessing the peer-reviewed literature and understanding what it means. A lot of it is really dry and technical, as well as expensive. This isn't a burden parents should have to take on, but if it's one that they can take on, it will only help them become better advocates for their children. Google Scholar can be a good place to start.
In truth, it should be education agency personnel doing this research, but if parents want to see the science applied, they may have to push for it, themselves. Parents can also submit published research articles to their local education agencies that appear to apply to their children's educational needs and request that the approaches used on those articles be used as part of their children's special education programs, including being written into their children's IEPs. If the local education agency declines to honor any request, 34 CFR Sec. 300.503 obligates it to provide Prior Written Notice (PWN) explaining why to the parents.
Conversely, if the education agency proposes a particular approach and the parents are unsure about it, the parents can request an explanation of the peer-reviewed research that underpins the education agency's offer. Either it honors the request or it provides PWN explaining why it won't. If it's the latter, it better be one heck of a good explanation or it will only reveal that the education agency has no research-based explanation for its recommended course of action, giving the parents a good reason to dispute it.
If what you are asking for as the parent is backed up by facts, logic, legitimate measurement, and credible research that all directly apply to your child, and the education agency still says, "No," then you will either end up with no PWN because the agency doesn't want to put the denial in writing, which violates the law and only makes your case stronger in hearing, or you will end up with a PWN full of malarkey that won't stand up in due process. If what you are asking for makes total sense and the education agency won't do it or something else equally or more appropriate, the education agency will have some explaining to do in hearing.
So long as what you are asking for is necessary for your child to receive an appropriately ambitious amount of educational benefits (meaning as close to grade level or developmental norms as possible), there's not a lot of good reasons for a public education agency to turn down your request. It's illegal for the public education system to use fiscal considerations to determine what should be in a special education student's IEP.
Just be sure to submit all of your requests for changes to your child's IEP in writing. It is the education agency's receipt of your written request for changes that triggers the PWN requirement. In the instance of requesting assessments, many states allow for a public education agency to decline to conduct assessments for special education purposes upon parent request, but the agency must provide PWN when doing so. For more information on special education assessments, see our previous post, "The Basics of Special Education Assessments."
If it doesn't decline a parent's written request for assessment, the education agency must provide the parent with an assessment plan to sign that authorizes the agency to conduct the requested assessments. State law regulates the provision of assessment plans; in California, local education agencies have 15 calendar days to get an assessment plan to the parent, regardless of who made the referral for assessment. Submitting the request for assessment in writing is not only important for triggering the PWN requirement if the request is declined, it's also important in establishing when a state-mandated timeline starts counting down.
You as a parent can encourage the application of science in special education by insisting upon it. If you live in California or another consent state, you can use your authority to withhold your consent to anything that looks sketchy in an IEP being given to you for your signature. You can consent to instruction in the areas targeted by IEP goals but not to using the language of the goals for the purpose of measuring progress if they aren't actually written in a measurable way. You can consent to everything in an IEP except a change in placement. If you can't resolve all of the issues you have with an IEP this way, those left unresolved become due process issues.
Even if you are not in a consent state, you can still make the record in writing that you disagree with the sketchy portions of your child's IEP, explain why using math and science, and request appropriate changes. The local education agency will likely call an IEP meeting and change those things it's willing to change and give you PWN on those things it is not willing to change. The things left unresolved at that point are due process issues.
Understanding how to use math and science to solve everyday problems is a solid skill to have, but not everybody has it. It's a skill necessary to developing a sound IEP for any special education student. Parent education can be provided as a related service under a student's IEP if the purpose of the parent education is to help the parents understand their child's disability and/or to help them be equal participants of the IEP team. There is absolutely nothing wrong with parents asking to be trained on how to write measurable annual goals and the IEP process in general as part of parent training as a related service under their child's IEP. Parent training is specifically named as one of many possible related services that can be provided to a student with an IEP by 34 CFR Secs. 300.34(a) and 300.34(c)(8)(i)).
If you're distrustful of the quality of instruction you might get from parent training through your child's IEP, you may have to result to self-education by reading everything you can find about your child's disability, as much of the peer-reviewed research about instructing learners with the types of needs your child has as you can digest, and simplified reports of the research findings in trusted publications from credible sources. You may need to periodically consult with experts for hire, but what you invest in informing yourself you may save many times over by preventing yourself from getting duped.
The bottom line is that parents can protect their children's right to evidence-based special education planning and implementation the more they understand how to use measurement and evidence in the planning and implementation processes. By knowing what to look for, they know what request when they don't see it. Informed parents can monitor the situation for education agency compliance.
In those areas where parents have not yet mastered the knowledge necessary to know whether an approach is appropriate for their child or not, they are encouraged to ask questions like, "Can you explain to me how this fits my child?" and "How can we measure whether this works in a meaningful way?" By shifting the burden back onto the education agency to explain how and why its recommendations are supported by the peer-reviewed research and written in an appropriately measurable manner, parents rightly shift the burden of applying the science to the appropriate party.
Parents are not, and should not, be required to become experts in order to participate in the IEP process. But, for the sake of protecting their children's educational and civil rights, and their own rights to meaningful parent participation in the IEP process, it behooves parents to become as knowledgeable as possible. It's more difficult to get tricked or misled the more you know, and the more dry and technical you can keep things, the less hysterical drama you're likely to experience in dealing with your local education agency.
References:
- Drasgow, E., Yell, M.L., & Robinson, T.R. (2001). Developing legally correct and educationally appropriate IEPs. Remedial and Special Education 22(6), 359-373. doi: 10.1177/074193250102200606
- Kimball, J. (2002). Behavior-analytic instruction for children with autism: Philosophy matters. Focus on Autism and Other Developmental Disabilities, 17(2), 66-75. https://doi.org/10.1177%2F10883576020170020101
- Yell, M. & Drasgow, E. (2000). Litigating a free appropriate public education: The Lovaas hearings and cases. The Journal of Special Education, 33(4), 205-214. doi: 10.1177/002246690003300403
Thursday Nov 07, 2019
The Fundamental Flow of IEP Creation
Thursday Nov 07, 2019
Thursday Nov 07, 2019
Image credit: Justin Lincoln
Trying to piece together the actual special education process from the implementing federal regulations of the Individuals with Disabilities Education Act (IDEA) is a lot like trying to create origami from paper shredder cuttings. However, it's been done and, when laid out in proper order, the special education process totally makes sense.
When followed as intended, the special education regulations are a marriage of law and science. It is further assumed that procedural compliance with the regulations is likely to result in the provision of the Free and Appropriate Public Education (FAPE) promised to each special education student by the IDEA. The specific language comes from what is known in special education circles as "The Rowley Decision," which specifically states, "the Act's emphasis on procedural safeguards demonstrates the legislative conviction that adequate compliance with prescribed procedures will in most cases assure much, if not all, of what Congress wished in the way of substantive content in an IEP. "
In order to understand why the regulations require the things in special education they do, it helps to first understand the history of the language in the regulations. Prior to Congress enacting the Education for All Handicapped Children Act (EAHCA) in 1975, which ultimately became the IDEA during a later reauthorization, there were no laws that specifically promised any kind of education to children with special needs.
Prior to the EAHCA, children with disabilities were routinely denied enrollment into the public schools. In the beginning, it was an accomplishment just to get a public school to open its doors to a child with special needs, and there was nothing that made it mandatory to educate the child according to any particular standards once the doors had been opened.
Then, in 1971, disability advocates took the matter of the Pennsylvania Association for Retarded Citizens (PARC) vs. the Commonwealth of Pennsylvania to the U.S. District Court. The settlement and resulting consent decree produced much of the language that is now found in the implementing regulations of the IDEA, particularly with respect to FAPE and individualized educational program development.
In PARC v. Pennsylvania, a class of individuals who all had intellectual disabilities (IDs), which at the time were described as "mental retardation," were being denied access to public school on the basis of their diagnosed "mental retardation." They were either languishing without any education or receiving privately funded education at their parents' personal expense. PARC filed a class action lawsuit on behalf of itself and the child members of the class, sued for injunctive relief, settled with the Commonwealth of Pennsylvania, and obtained a consent decree overseen by the U.S. District Court, which it later enforced through the Courts to compel Pennsylvania to enroll children with IDs into its public schools and provide them with appropriate programs.
Quoting page 8 of the May 5, 1972 Opinion, Order and Injunction from PARC v. Pennsylvania, "The lengthy Consent Agreement concludes by stating that '[every] retarded person between the ages of six and twenty-one shall be provided access to a free public program of education and training appropriate to his capacities as soon as possible but in no event later than September 1, 1972 ...' To implement the agreed upon relief and assure that it would be extended to all members of this class, Dennis E. Haggerty, Esq., a distinguished member of the Pennsylvania Bar who has devoted much of his energy to the welfare of retarded children, and Dr. Herbert Goldstein, an eminent expert in the education of retarded children who is Professor and Director of the Curriculum Research and Development Center in Mental Retardation at the Ferkaus Graduate School of Humanities and Social Sciences, Yeshiva University, were appointed Masters at the expense of the Commonwealth ... Next, the Consent Agreement charges defendants with the duty within 30 days, to formulate and submit to the Masters a plan to locate, evaluate and give notice to all members of the plaintiff class ... Finally, and perhaps most importantly, the Agreement states that: 'The defendants shall formulate and submit to the Masters for their approval a plan to be effectuated by September 1, 1972, to commence or recommence a free public program of education and training for all mentally retarded persons . . . aged between four and twenty-one years as of the date of this Order, and for all mentally retarded persons of such ages hereafter. The plan shall specify the range of programs of education and training, there [sic] kind and number, necessary to provide an appropriate program of education and training to all mentally retarded children, where they shall be conducted, arrangements for their financing, and, if additional teachers are found to be necessary, the plan shall specify recruitment, hiring, and training arrangements.'" [emphasis added; internal citations omitted]
Here, we see the language of FAPE (34 CFR Sec. 300.17), the marriage of law and science in the creation of the program design, the precursor to the federal "child find" requirements (34 CFR Sec. 300.111), and language that effectively describes creating what amounts to an IEP. PARC v. Pennsylvania laid the foundation for what ultimately became the IDEA, which specifically mandates that the peer-reviewed research be applied to the delivery of special education to the degree it's practicable to do so (34 CFR Sec. 300.320(a)(4)).
The appointment of the masters in PARC v. Pennsylvania is important to note because it marks from the outset the need to combine the efforts of legal professionals and psychologists to come up with evidence-based approaches to special education instruction that conform with the regulations. While there have been many efforts over the years by those of a particular ilk within the public education system to minimize the science and place undue emphasis on legal maneuvering, they have never been successful at eliminating the science.
Now, we are seeing the courts rely more and more on the dry, neutral facts of science rather than the hysterical budget shielding that typically goes on in special education. As more and more people become more fluent with using math and science in everyday life, the public is increasingly expecting to see science rather than politics in the delivery of public instruction.
It has always been the intent of the applicable law to use the applicable science in the delivery of special education. The arguments for relying on facts and evidence in designing and implementing IEPs are too compelling to be overcome by cronyistic politics altogether. Politically speaking, the science has never carried as much weight in special education as it does now, which is tragic in that it's taken this long but it's also inevitable. The truth is the truth and no amount of political spinning changes what a child's unique learning needs actually are or what research has proven actually works.
So, that being the case, when we look at the logical flow of how an IEP is supposed to go together, it's important to understand how the law and science become inextricably intertwined as the IEP process goes forward. To start, a child cannot be found eligible for special education without first being assessed. Assessment determines if the child has a qualifying disability and, if so, what to do about it.
Competent special education assessment is a highly scientific process. People with special credentials and licenses are brought in to collect expert data, analyze it, and provide expert opinions to the IEP team as to why a child is struggling in school and what can be done about it. This process can become compromised by internal public education agency politics, however. See our previous blog post, "The Basics of Special Education Assessments," for more information about this step of the process.
In an ideal world, a child's initial assessment for special education is thorough and competent. It measures all of the student's unique learning needs and assesses in all areas of suspected disability. The data it produces is then used with input from teachers and parents to create an IEP, presuming the child is eligible for an IEP. This is where things can get really messy.
There are two ways things can go badly at this stage:
- The assessments were poorly done and now there isn't good data to inform the development of the IEP, or
- The assessment data is fine but the IEP offered to the student doesn't match what the assessment data says the student needs
Parents need to understand what is supposed to happen at this stage of the process or they can be quickly bamboozled by seasoned bureaucrats with their own agendas. The information gathered by the IEP team about the student's learning strengths and needs is supposed to result in measurable annual goals that describe what the IEP is supposed to make happen in each area of unique learning need.
Where things often break down is in translating all of the baseline data into measurable annual goals that target appropriate learning outcomes in every single area of unique learning need. That's a tall order. It's one thing to measure what already is, but it's another thing to use that data to project where things should be in a year.
IEP teams often struggle to identify all the areas in which goals are needed, much less write the goals they come up with in a measurable manner. In my experience, the average special education professional would fail the 4th grade under the Common Core if their IEP goal-writing skills were used to measure their abilities to apply math and science to solving everyday problems.
A lot of the guidance given to special education professionals during the 1980s and 1990s about IEP goal-writing was a bunch of preemptive legal defense hooey that was utterly devoid of any kind of valid science or math. These approaches provided teachers with formulas and supposed hacks that they usually didn't understand and usually used incorrectly in the field.
There was no sincere effort that I ever observed back in the day to teach special education professionals the technical nuts and bolts of goal-writing, and I still assert now that the training being done is grossly inadequate. A half-day workshop for continuing education units is usually about it for most special ed staffs, and most of what such a workshop instructs is usually garbage.
These are the workshops that taught teachers to write the measurement for every goal as "... with 80% accuracy in 4 out of 5 trials ..." even if it makes no sense. For example, it's highly inappropriate when used here: "By [annual due date], [Student] will cross the street safely with 80% accuracy in 4 out of 5 trials as measured by observation."
First, try to make the math work, which you can't. Then ask yourself what an 80% accuracy rate of crossing the street safely must look like, however it might be calculated, and whether it could possibly be educationally appropriate. It's supposed to be a free and appropriate public education and there's nothing appropriate about being run over in the street like a bug as a result of participating in publicly funded instruction.
My brief advice to school district administrators is to not let your attorneys develop your employee training for any aspect of special education that requires scientific rigor. And, unless you are qualified yourself in the applicable sciences, if you are an administrator, don't think of developing that training yourself, either. Use actual experts; don't be a chump.
Doing sound assessments only to toss the science and math out the window when it comes time to write the IEP makes no sense whatsoever. But, there is a political game that sometimes get played with parents in which public education agencies will deliver a decent assessment, but then offer a garbage IEP and act like the garbage IEP is what the data and law say the agency can do for the student. It's a lie.
In reality, the IEP is based on how much the education agency is willing to spend on the student, but the agency's administrators can't admit that, so they try to run a con on the parents in which they use valid assessment data to argue for a garbage IEP. They're effectively gaslighting the parents because the data doesn't support the IEP at all, but the parents are usually too confused to understand what is really happening and just let it go, thereby allowing the education agency to get away with shortchanging a kid.
The parents get an assessment report that describes their kid, but then they get offered an IEP that is weak relative to the kid's actual needs and they figure that's the most the schools must be able to do for them. In truth, their kid is getting robbed. If the IEP doesn't match the assessment data, something is really wrong. This can be particularly the case with IEP goals.
The data can make clear what the areas are in which goals are needed, but then only a few goals get put into the IEP by school personnel. This is a problem because the services that are offered to a special education student are supposed to be driven by what is necessary to meet the goals. If you don't have goals in each area of need, there's nothing to compel all of the services that are needed. Missing goals mean missing services. Schools that want to prevent spending on services can accomplish this by leaving goals out of IEPs.
Goals describe what the IEP is supposed to make happen. Services describe what it takes to meet the goals. This includes service frequency, duration, and location. For example, a student may receive 30 minutes per week of individual speech/language services to address their communication goals.
Accommodations are tools and strategies that make access to the grade-level content possible for a child with special needs. They are not the same things as modifications. Modifications actually change the learning expectations for the student to something less rigorous than the grade-level standards so that the instruction is accessible to the student.
For example, the accommodation of being able to dictate one's answers rather than write them down doesn't change the nature of the material being studied or the questions that have to be answered. The only thing that changes is how the response is produced, but a grade-level response is still expected.
In another example by contrast, a student with developmental delays may participate part of the time in general education math where students are calculating the hypotenuses of triangles, but the work is modified to cutting out different sized triangles for the student with developmental delays. In this example, the instruction has been scaffolded towards the grade-level expectations by modifying it to the student's level of learning.
Before one can understand what a hypotenuse is, one must first understand what a triangle is, so instruction on triangles in general lays a foundation for the eventual instruction of the calculation of hypotenuses. Scaffolding towards the grade level standards and developmental norms is a critical method used in special education as per the peer-reviewed research to adapt the instruction to learners who cannot perform at grade level because of their disabilities. There still has to be a way to measure their learning and push them as close to grade level as possible.
Once goals, services, and accommodations are identified, the IEP team then determines the student's educational placement. This is usually not a specific classroom or campus; it's the type of classroom and/or campus required. Placement is decided at the end of the process because it is impossible to know where is the best place to deliver the services and accommodations such that the goals are met if the goals haven't been written and services and accommodations haven't yet been determined.
In addition to these critical steps, an IEP can also include an Individualized Transition Plan (ITP), which is basically a plan within a plan that describes what will be done for a teenager or young adult with an IEP to prepare them for life after high school. Students exit special education either by graduating with a regular diploma or aging out, usually at age 21 or 22, The ITP is supposed to be the driving force of their IEPs from at least age 16 forward, though nothing prevents IEP teams from starting younger.
Another component that an IEP may include is some kind of Behavior Intervention Plan (BIP). They can go by a variety of names, but they're all basically the same thing, and usually loosely based on Applied Behavioral Analysis (ABA). This is another science that gets grossly watered down in special education, sometimes to the point of becoming ineffective if not harmful.
Good ABA is a wonderful thing, but there are way too many programs operating these days that are "ABA-based," meaning they aren't fully adhering to the science and only have borrowed those parts from it that they find most easy to use. They take a fluid science, try to turn it into something formulaic, and ruin the whole damn thing. It's right up there with crossing the street safely with 80% accuracy in 4 out of 5 trials.
To be clear, when I talk about ABA in this blog/podcast, I'm talking about the actual science, not some hokey fly-by-night scam trying to take advantage of the autism community. I have plenty of colleagues who operate completely legitimate, scientifically rigorous ABA programs that save and change lives for the better, and they are just as disgusted as I am by the charlatans ruining the good name of a credible science for the sake of making a buck off of autism. These charlatans who have corrupted the legitimate science are the ones with whom the autism community takes such issue when they complain about ABA.
There is no way to have a conversation about the IEP process and the degree to which science plays a role in it without discussing ABA. ABA is the most reliable method of data collection currently used in special education, even when not done that well. This is because the field is dominated with people teaching their students to cross the street safely with 80% accuracy in 4 out of 5 trials as measured by observation. Even shoddily done ABA-type data collection is usually better than that.
It's my argument that, if the science has to be applied to the degree it's practicable to do so, and ABA-type data collection is the most reliable, then IEP goals should be based on ABA-type data collection methods. If IEP goals were actually written according to scientific method like they were supposed to have been from the start, we would naturally default to ABA-type methods of data collection because that's the only thing that will work.
This becomes particularly important for IEPs with BIPs. Real ABA, not the half-baked version that is peddled by some agencies, should be used to develop measurable annual goals and any BIP in an IEP. This will allow for legitimate measurement of actual progress. Here, it's not exactly about the instructional approaches of ABA so much as how to accurately measure learning. By using ABA-based teaching and measuring approaches, it's a lot easier to tell if a student is actually learning anything or not, which is the whole point of measurable annual goals and measurable BIP criteria.
When you understand that there is a logical order to the sequence of the special education process that the law describes from what it has taken from science, the parts of an IEP start to make more sense. An IEP is not an arbitrary document. It's an enforceable contract that describes what a public education agency is supposed to do to tailor the instruction to a student with special needs. It includes what it includes for logical reasons.
Congress organized how IEPs are supposed to go together based on the advice of attorneys and psychologists who worked very hard to come with with a marriage of law and science that will work so long as the public education system pays equal attention to both the science and the law. There needs to be more training for professionals in the special education community as to the scientific origins of IEP design and the scientific rigor actually necessary to deliver special education according to Congress' intent.
Parents need to understand the importance of the science, as well. They are the most important members of any IEP team and if they don't understand what the data means, they can't give informed consent to anything.
Parent education is a related service that can be added to an IEP to help the parents understand their child's special needs as well as help them better participate in the IEP process (34 CFR Sec. 300.34(a)). If you feel as a parent like you don't have enough information to be an equal member of the IEP team, it's your right to request parent training as a related service so that your rights to meaningful parent participation in the IEP process and informed consent are honored.
Saturday Oct 26, 2019
Parents Who "School-Hop" Risk Making Things Worse
Saturday Oct 26, 2019
Saturday Oct 26, 2019
Image credit: Alan Levine
One of the situations I commonly encounter in working with students with special needs and their families in the public education system is a phenomenon that I've come to refer to as "school-hopping." Sometimes, parents who do not understand why their children are struggling assume that the problem is with the school, and, very often, there is a problem at school. But, quite often, the real issue is that the school is responding poorly to a disability-related need experienced by the student, so it's not just that there is something wrong at the school, there's something wrong with how it is responding to a special need that requires unique accommodations.
Put another way, there are two problems to resolve: 1) how to address the student's unique needs in an educationally appropriate and legally compliant way, and 2) how to address the internal problems at the school that are preventing this from happening. Parents will sometimes jump from a charter school to a district-run independent study program to a home-school group to a ... you name it ... trying to find the right fit for their child.
The problem with doing that is, unless a parent knows what specifically to ask any school to do for their child, they're just rolling the dice with every school change and hoping this one will finally be the one that fits. The whole purpose of special education is to impose structure on how education is tailored to each individual student. That way, it shouldn't matter so much where they are so long as the supports and services described by the student's individualized program are being delivered in that setting.
The guidance to the school site personnel as to how to do this comes in the form of a legally enforceable document called an Individualized Education Program (IEP). An IEP is created by a team of individuals described by federal law (34 CFR Sec. 300.321) according to specific criteria, also described by federal law (34 CFR Sec. 300.324). What the IEP says it what the responsible public education agency must do for the student for whom it is written.
It doesn't matter how many times a student with special needs changes schools if the IEP that follows them is garbage. Even when a student changes to an entirely different public education agency, the incoming IEP is what informs the new school team as to how to support the newly incoming student with special needs. If the IEP does not describe appropriate supports and services, then the new school is legally obligated to implement the garbage that the IEP describes, instead.
My point, here, is that changing schools under these kinds of conditions tends to just make things worse. Every school change means at least some part of a kid's file, if not the whole thing, gets lost in transit between one public education agency and the next. Assessment reports and old IEPs disappear from the record with frequent moves and school changes, so those items aren't there to inform a records review like they normally would as part of a new assessment conducted by a new education agency.
That makes it very hard for the new school to know where to begin with a new student with special needs. The parents are hoping the new school will somehow magically fix everything but each successive new school gets put further and further at a disadvantage as to where to even begin every time a new change in schools happens and records have to be shuffled around again.
I have yet to figure out why so many people start at the end rather than the beginning when it comes to individualized student planning. Placement - that is, the type of classroom setting(s) in which a special education student receives instruction - is determined by the IEP team as the last matter of properly conducted IEP planning for very important, logical reasons. There are a whole lot of other decisions that have to be made, first, before a placement determination can be made.
IEPs start out with identifying a student's present levels of performance, which seek to answer the questions, "What can the student already do?" and "What does the student still need to be taught relative to the grade-level standards and/or developmental norms?" On the basis of the answers to those two questions, goals are written that target measurable, annual outcomes.
The goals describe what the IEP is supposed to make happen. Until you know that, you don't know what all you need to actually educate the student.
For this reason, the IEP team next determines what services are necessary to see the goals met. On the basis of the frequency, duration, and location of the services necessary to meet the goals, in combination with the student's right to experience the least amount of segregation away from the general education population as possible, educational placement is then determined.
Parents who school-hop interfere with how the federally mandated process is supposed to work, usually without realizing the harm they are doing. Until the IEP describes goals in each area of unique student learning need in meaningfully measurable ways, it doesn't matter where the student goes to school; following a bad IEP in a new, good setting will still go wrong.
That said, I've seen plenty of situations where changing schools, even moving to entirely new school districts, has saved a kid's life. The challenge, though, was to get the IEP as good as we could get it before the student changed schools so the new, receiving school had something worth implementing once the student started attending there.
And, in California, where I do most of my work, whether a special education student moves during the school year or summer break has bearing on what is enforceable in terms of a transfer IEP. This added layer of complexity, which isn't the same in all the other States, makes the timing of everything that much more imperative when it comes to changing to a different school district or charter school. Parents who school-hop in California can do even more harm than they realize because of the odd State laws about transfer IEPs.
What's often more heartbreaking are families that are school-hopping because their child has never been offered an IEP and when they've asked about it, they've been shot down by school personnel who insist that their child would never qualify. In reality, it can be the case that the school personnel are just waiting for the family to pick up and move the student, again, at which point whether or not the student needs an IEP won't be that particular school's problem, anymore. There are unfortunately those in public education who will facilitate eliminating a problem rather than solving it, even if it comes at the expense of a child.
Parents who school-hop can call unnecessary attention to themselves as easily exploited by school staffs who would rather see them move along to the next school than stick around and insist that the current school do its job. At some point, school-hopping parents have to figure out that the school-hopping isn't working and, instead, they need to stand in one spot, dig in their heels, and get a decent IEP from whatever agency is responsible right at that moment. That might mean filing a lawsuit just to get an initial assessment, but if that's what it takes, that's what it takes.
Without a legally enforceable IEP document that describes something worth enforcing, no placement can be made to work. Federal law mandates that the education rendered to a special education student be in conformity with that student's IEP (34 CFR Sec. 300.17). If the IEP is garbage, then the school is legally obligated to implement the garbage until such time as the IEP can be made more appropriate.
As a parent, your number one objective when it comes to advocating for your child with special needs is to make sure that the services and supports provided are actually appropriate to your child's needs. Just having a document that says "IEP" at the top of it doesn't magically bestow educational benefits onto anybody. The contents of the document matter and, as a parent, you need to know how to look out for language in an IEP that could undermine your child and any exclusions of language that are important to meeting your child's needs from the IEP. More harm can be done by what is left out of an IEP than what is put into it.
Once you understand why placement is the last decision that should be made by an IEP team, you can understand why changing placement when things aren't going right doesn't always make sense. Unless you've got an amazing IEP and the people at the school site just aren't implementing it as written, there's a really good chance your problem is with the plan more than the placement.
Plans of any kind fail for only one of two reasons: 1) design flaws, or 2) implementation failures. Design flaws can sometimes only be identified when you try to implement the plan and something goes wrong. If you never implement the plan according to its design, you'll never know if the design was flawed or not because you weren't following it in the first place. If the design is great, but no one is following it, what's the point?
This analysis of plan success and failure came to me by way of my training in Applied Behavioral Analysis (ABA), which, by the way, is a science, not a treatment methodology. There are a lot of ABA-based treatment programs out there, but those programs are not what actual ABA is. They are based on ABA, some with more scientific rigor than others. The actual science of ABA can be applied to anything that behaves, including animals, plants, and computers.
From the absolute, parsimonious perspective of ABA as a science, everything is based on objectively identified behaviors, only, which are framed in quantifiable terms and rendered into emotionally neutral pieces of data. Further, not only is data taken on how the individual responds to efforts at changing its behaviors, data is taken on the fidelity with which those implementing the plan are actually adhering to it.
Taking data on the fidelity of the implementation of the program design is one of the most critical pieces of the science that often gets left out of school-based ABA-type programs. It's my assumption that this is for political and/or preemptive legal defense purposes because no school district that I know of wants data taken on the degree to which their staffs are actually adhering to any part of the IEP.
That's way too much accountability on the record and way too much risk of it capturing somebody doing it wrong that could then be used to prove a denial of a Free and Appropriate Public Education (FAPE) in hearing by the parents and achieve an order for compensatory education to make up for the lost instruction. Even though the science is abundantly clear that ABA data collection methods, when followed according to the science, are the most accurate, reliable, and valid data collected in the public education system for special education students (Drasgow, Yell, & Robinson, 2001; Kimball, 2002; Yell & Drasgow, 2000), I have yet to see that degree of scientific rigor applied to any part of a student's IEP in the public schools, whether it's through their measurable annual goals or any behavior plans that their IEP might contain.
As parents, your primary goal has to be the quality of the IEP's design because, if it doesn't describe what your child actually needs, it doesn't matter where you try to implement it and no placement will just magically fall in love with your child and imbue them with knowledge through emotional osmosis. Hope is not a strategy. Pursuing a scientifically informed, legally compliant IEP is a strategy that gives you way more likelihood of having a meaningful say in the quality of your child's education, regardless of where they attend school.
References:
- Drasgow, E., Yell, M.L., & Robinson, T.R. (2001). Developing legally correct and educationally appropriate IEPs. Remedial and Special Education 22(6), 359-373. doi: 10.1177/074193250102200606
- Kimball, J. (2002). Behavior-analytic instruction for children with autism: Philosophy matters. Focus on Autism and Other Developmental Disabilities, 17(2), 66-75. https://doi.org/10.1177%2F10883576020170020101
- Yell, M. & Drasgow, E. (2000). Litigating a free appropriate public education: The Lovaas hearings and cases. The Journal of Special Education, 33(4), 205-214. doi: 10.1177/002246690003300403
Monday Apr 15, 2019
Fee Shifting in Special Education
Monday Apr 15, 2019
Monday Apr 15, 2019
Photo credit: 401kcalculator.org
I've had several cases in the last few years that have made apparent to me an unseemly practice that is evidently being used by some school districts: fee shifting. Fee shifting occurs in special education when a school district passes the costs of students' needs onto other agencies by unscrupulous means.
There are two types of fee shifting that I have repeatedly encountered over the years. One takes the form of the School to Prison Pipeline in which the behaviors of students with disabilities are criminalized and prosecuted rather than addressed through positive behavioral interventions via the Individualized Education Program ("IEP") process. The other takes the form of the misidentification of students, usually those with Autistic Spectrum Disorders ("ASDs") and/or Attention-Deficit Hyperactivity Disorders ("ADHDs"), as children with serious mental health disorders who are then referred to their local County mental health agencies for treatment of disorders they don't actually have and neglect of their actual conditions.
One of the eligibility categories for special education is "Emotional Disturbance" ("ED"), which is meant to address the needs of students with mental and emotional health disorders. While emotional problems will surely occur among students with other disabilities whose needs go unmet, this is a response to circumstance, not an innate disorder unto itself. In both of the fee shifting scenarios I've repeatedly seen over the years, the emotional challenges my law enforcement-involved and/or misidentified students have are largely the consequences of not getting support for their actual handicapping conditions.
That isn't to say that none of my students are legitimately ED, but many of them didn't start out that way. Post-traumatic stress disorder ("PTSD") can arise from traumatic experiences in and out of school, but still can qualify a student as ED. What breaks my heart are the kids with other conditions who acquire PTSD from repeated neglect and/or abuse in response to their original conditions, particularly at school.
One school district in which I have been supporting students has a history of misidentifying little boys with ASDs as having mysterious mental health disorders that their local County mental health agency can't quite seem to identify according to diagnostic criteria. This same mental health agency openly admits that it doesn't diagnose or treat ASDs.
This is made further evident by their assessment reports because they clearly have no idea what they are looking at and render non-specific diagnoses, like, "Unspecified emotional disorder of childhood and adolescence." This is basically a catch-all term for "We have no idea what is going on with this child," when the ASD is plainly obvious to anyone who knows autism. In one of my cases, the student had already received a DSM-5 autism diagnosis and the County mental health agency still missed it.
For our children and youth that end up in our local juvenile hall, the moment they are incarcerated, they usually immediately cease to be students of their districts of residence, which is based on where their parents live, because California law causes students' local education agencies to change whenever they are placed outside of their local communities by the courts. For example, in Ventura County, California, it is the Ventura County Office of Education ("VCOE") that operates the schools in juvenile hall. So, the moment a student is locked up, that student ceases to be a student of the district where that student's parents live and becomes a student of VCOE.
That creates huge complications for students who were in the process of being assessed when they became incarcerated or for whom referral for assessment was made while they were incarcerated but they get released before the 60-day assessment timeline has run. Switching local education agencies while mid-assessment is a bureaucratic nightmare. The procedures may have to be started all over again.
We hope and pray as advocates when working with criminal justice-involved students that we can get them through the 60-day assessment timeline before they "reoffend" and get locked back up again, once again disrupting the timeline and potentially starting it over with VCOE. Unless we've involved an attorney and litigation is pending, this can quickly turn into a vicious loop.
Most of the local school districts will partner with VCOE to finish any assessments that have been started in one location or the other because it is usually anticipated that the student will return home in a matter of weeks or months, at which point, the student will live within the attendance area of the school district, again, which will resume responsibility. Nonetheless, making this work takes Herculean effort and with as many kids as there are passing through the system, the time necessary to provide Herculean effort to each of them isn't really available. It most often happens when people like me and my colleagues show up.
The motivation for fee shifting is obviously money. Special education is grossly underfunded, but like all the rest of public education, it's also poorly managed. High paid administrators strip resources out of the classroom and then give themselves raises to reward themselves for how smart they've been about saving their school districts' money. Every teacher who buys supplies for their classrooms out of their own pockets each school year knows exactly what I'm talking about.
What money the public schools get should be mostly spent on students. School district administration exists to support the instruction, not usurp its funding, but some statistics reflect that there is usually one administrative position for each teaching position, and I have yet to meet a teacher who has a personal secretary, so that's obviously not how administrative resources are being used.
Fee shifting schemes very often target children from low-income households that can't afford to hire attorneys to hold their local schools accountable. There are not enough attorneys who represent low-income parents of students with special needs to meet the demand, even though they can recover their fees from the offending school districts upon prevailing in hearing or as a condition of settlement. Those who take on these cases have overflowing caseloads that they can barely manage.
Because of this, it is often children from single-parent households, families of color, immigrant families, and families with parents who also have disabilities that are targeted by these fee-shifting schemes. This means that children with disabilities who were already disadvantaged by their actual disabilities and socio-economic situations are then further abused by a system in which their needs get misidentified in order to shove them off onto other agencies. The interventions they receive, if any, once they get shifted to the wrong agency are inappropriate to their needs, and nothing in that breaks the cycle of poverty.
Basically, fee shifting happens in special education because public education agency administrators get away with it far more often than they get caught, and they avoid getting caught most frequently by targeting children from families who they think won't fight back. When parents do try to advocate for their children to get appropriate interventions in these situations, they are met with resistance from public education agency administrators and their lawyers. Public education may be underfunded, but a school district is far better financially equipped to wage war against a low-income parent than a low-income parent is usually equipped to fight back.
The consequences of this dynamic disproportionately fall on children of color, who are already marginalized by institutionalized biases that incline them to more likely live in poverty. But, affluent children of color get targeted in affluent school districts simply because of their color, which is made worse if they also have handicapping conditions, particularly those that affect behavior, or have been educationally neglected for so long that they have developed psychological problems around school that eventually lead to problem behaviors.
All behavior is communication, so what is a kid who has behavioral challenges at school trying to communicate? Is it that the curriculum is too demanding? The instruction doesn't make sense? There are other things going on in that kid's life that are taking a higher priority than school, such as homelessness and/or hunger? Is the child the victim of abuse? Is it something else? What is really going on?
There are a million reasons why a child may behave inappropriately at school, and disordered thought brought on by trauma, impairment, and/or duress is frequently involved, which is paired with the fact that we're talking about children who are not mature enough to reason like adults. Without proper assessment, how can we know what the appropriate response is to a student's challenges?
Many people also don't understand that the costs to taxpayers caused by fee shifting are greater than the costs of doing the job right in the first place. For the price of one student's tuition and board for a 4-year Harvard undergraduate education, you can incarcerate one youth in California for one year. Even if you had to put such a student into residential psychiatric treatment for a year as a matter of special education, that's a quarter to one-third the cost of incarceration for the same amount of time and with a much higher likelihood of success.
It's not just about how much money is spent; it's also about how many benefits the money buys for students, families, and taxpayers. Getting more benefits for less taxpayer dollars seems like the most reasonable outcome to pursue, but many public agencies have this "not out of my budget" mentality that takes performing their mandates right out of the equation and makes it about how little money actually gets spent.
Those students with ASDs and/or ADHDs who are initially misidentified as having mental health disorders will very likely develop mental health disorders and the behaviors that go with them. This is a consequence of being surrounded in their programs by people with legitimate mental health disorders who model inappropriate behaviors and treatment programs that are inappropriate to their actual ASD- or ADHD-related needs. Poor social role models in addition to a lack of ASD-specific instruction on social pragmatics and behavior, paired with therapeutic techniques that are ineffective in the treatment of ASDs, compound to ruin lives, tear families apart, and undermine the cohesiveness of communities. Similar programming deficits improperly impact students with ADHDs.
It's the students in juvenile hall and Department of Juvenile Justice ("DJJ") facilities who are often in most need of mental health services as a matter of special education, but are least likely to get anything sufficient to their needs. The lack of adult mental health treatment facilities resulting in our jails and prisons taking the overflow is already a known problem in this country. What is less commonly known is how early the process of shifting mental health costs onto the criminal justice system actually starts with diverting kids out of special education services, very often those meant to address mental health issues and/or behaviors, and into the School to Prison Pipeline.
I certainly don't endorse the idea that fee shifting is behind every special education violation. Fee shifting is behind some special education violations. Violations occur for a plethora of reasons; fee shifting is just one of many ways things can go wrong. But, parents, advocates, and educators need to be aware of practices that can create fee shifting, even if by accident.
In truth, a great many school-site professionals have no idea what their employers' legal obligations are to students with disabilities and just do what they're told in exchange for a paycheck and benefits. They care about their students, but they are often largely in the dark about what they can actually do to meet their students' needs and they are unaware of the resources they are supposed to be making available to these students per the law.
They can't incur the costs of intervention if they don't provide intervention, so if they don't know about interventions, they won't make them available, thereby avoiding the costs of intervention. It's often those who hold higher positions within the public education agency who are aware of the agency's obligations but decide not to promote certain things among their staffs in the name of cost control that undermines the learning of children with disabilities.
It is in this climate that a School to Prison Pipeline develops. School site staff are unfamiliar with the actual rules of special education, particularly "child find." Alternative methods of intervention will often be tried without success under the premise that having to refer a kid to special education is tantamount to failure and all other options must first be exhausted.
It's actually the other way around. You at least rule out disability by conducting comprehensive assessment on the basis of suspected disability. Assessment will otherwise identify that there is a disability and why it's causing so many problems. If it's not a disability, assessment will prove that; competent assessment will explain what is actually going on, which will help parents and educators decide together what can nonetheless be done even if the student doesn't qualify for special education.
The bottom line is to figure out what is really going on so the parents and educators can find the right solutions, whether they are special education or something else. You don't make kids languish in a hokey, half-baked rip-off of Response to Intervention ("RtI") for years until they psychologically break and then prosecute them for truancy when their school anxiety becomes so great that the thought of going to school makes them sick every morning.
Every year, we get new kids on our caseload who are hugging porcelain or sitting on it for extended periods every morning because the school-related anxiety rips their digestive systems apart. And, in almost every case, truancy proceedings are involved for untreated symptoms that are causing health-related absences. Panic attacks are treated as criminal acts.
Students and parents can be fined and placed on probation for truancy; public education agencies want their average daily attendance ("ADA") dollars and they don't get them if kids aren't there. They use their local District Attorney's ("DA's") office to prosecute kids with disability-related absences and their parents, which ushers kids with disabilities into the School to Prison Pipeline and away from quality education.
Some school site administrators will refer students to truancy proceedings without even asking themselves if there may be a disability involved that warrants immediate special education assessment, instead. They either can't grasp or don't care about the harm they are doing. They are eliminating costs and headaches from their own agencies, and that's evidently as far as their analyses go.
It is very important that parents and advocates in these situations choose their actions carefully to make sure that any assessments that are needed to figure out what is really going on and what to do about it are actually done. If they are done poorly, skewed to support the argument the public education agency has been asserting all along, or are missing vital components, the parents will likely have grounds to disagree and request outside assessments, Independent Educational Evaluations ("IEEs"), at public expense, which is to say at the cost of the public education agency.
Basically, the district has to pay for outside second opinions if the parents disagree with the district's assessments for any reason, which the law does not require the parents to explain. The only way that the public education agency can decline requests for IEEs is to send Prior Written Notice ("PWN") declining the request (basically a letter to the parents explaining why the request is denied), filing for due process, and proving to a judge that the education agency's assessments are good such that second opinions aren't necessary.
Sometimes it's not second opinions so much as getting additional testing done that the education agency failed to perform when it should have. Those are still IEEs. The point is that, in any situation in which you suspect fee shifting may be happening, assessments - good assessments - will tell you what is really going on with enough detail that a group of reasonably intelligent adults with intact ethics and morals can figure out something that will make sure a kid learns, regardless of what type of obstacles may be in the way.
It is my hope that, by shining light on public education agency administration "fee shifting," the public becomes informed and more diligent about holding public servants accountable to spending taxpayer dollars on services that actually benefit the public in conformity with the law. This is something to be taken up town-by-town, county-by-county, and state-by-state by voters who expect public agency accountability to the taxpaying public and further expect agencies to legitimately serve the purposes for which they were created and funded. It's also something important for parents and advocates to understand when pursuing appropriate outcomes for individual students.
See our original post at: https://kps4parents.org/fee-shifting-in-special-education/
Sunday Feb 17, 2019
The Return of our Blog (and Podcast)
Sunday Feb 17, 2019
Sunday Feb 17, 2019
Photo Credit: Christian Schnettelker
In 2008, I launched our first blog, writing about special education regulations, case law, education research, and my experiences over my career as a lay advocate, which started in 1991, and paralegal, which I also became in 2005.
Over the years that our blog was online, the laws changed, new case law was published, new research came out, and I was eventually faced with the daunting challenge of curating all of our old blog articles and updating them according to all the things that had changed over time.
Then our web host changed us to a new server early last year and we had to overhaul our site, so I took our blog down until I could get to it, again. Coming back to all that old blog content and updating it was easier said than done. Also, in the last few years, a lot of other things changed with our evolving organization.
In 2011, I went back to university and, in 2013, graduated with a master’s degree in Educational Psychology. During that time, I took a required course called, “Instructional Design,” in which I and my classmates had to each create an instructional product based on a teaching need. Basically, it was how to turn a lesson plan into something that could be sold as a product or otherwise used to promote the goals of an organization.
Given that I was already the CEO of KPS4Parents and had an organization that could truly do something with an instructional product, I figured it made no sense to simply create one for a grade and the Learn & Grow Educational SeriesSM was born. We now have approximately 30,000 learners around the world following our online instructional content via social media and will be launching in-person classes in our local area later this Spring that we hope to expand to locations around the world over the next few years.
This has caused us to rethink how we are organized because Learn & Grow is a food security and sustainable living curriculum, which can certainly be related to children with disabilities, but it’s not specifically targeting the same outcomes that we target as special education advocates. It makes more sense to turn KPS4Parents and its special education advocacy services into a division of a new parent organization with Learn & Grow as another division unto itself, so we’re in the process of making that happen. This pending reorganization also has bearing on how we communicate with our respective online audiences, including the followers of this blog.
My specific master’s degree program was called “DLI&E,” which stood for “Development, Learning, Instruction, and Evaluation.” I also took additional coursework in Applied Behavioral Analysis (“ABA”), which is a much richer science than most people in special education realize and is in no way limited to behavioral interventions for students with Autistic Spectrum Disorders (“ASDs”), though it certainly can benefit such students when properly used. The data collection methods used in ABA are the most reliable identified to date for measuring individual student progress, which goes to how instruction can be delivered and progress towards goals can be measured.
I pursued this particular course of study because it spoke to all the important facets of special education intervention in the pursuit of a Free and Appropriate Public Education (“FAPE”) for every student I had ever represented and of those I intended to represent going forward. It was the right thing for me to do, student loan debt notwithstanding.
Human development throughout the lifetime, the science of how people learn and remember things, the instructional practices that have been proven to work, and evaluating the efficacy of educational program designs are all germane to my work advocating for students with special needs. A significant but often underappreciated part of the implementing regulations of the Individuals with Disabilities Education Act (“IDEA”) has been in my corner, that being 34 CFR § 300.320(a)(4), which is part of the regulation that defines what constitutes an Individualized Education Program (“IEP”) and states that an IEP must contain: “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 …” [Emphasis Added]
My DLI&E program was all about applying the peer-reviewed research to the provision of quality education, and the knowledge I gained from that course of study about how to comply with 34 CFR § 300.320(a)(4) has been priceless. What still threatens to get in my way at times is the language, “to the extent practicable,” because what is or is not practicable has not been litigated nor has it been clarified in the professional literature as to how such a determination is supposed to be made. This was the topic of the first paper I wrote for my culminating experience from graduate school and nothing much has changed in this regard since I wrote it in late 2013.
Effectively, whether the applicable science is considered practicable or not comes down to school district policy and administrator and/or school board opinion, which can quickly turn it into a matter of politics rather than law and science. This is entirely distasteful to me, but the things I find distasteful in life are not the point, here.
The point, here, is that the regulations attempt to promote the use of methods proven to work according to evidence-based practices, which is to say, “facts,” and the rule of law is supposed to be evidence-based, itself. Applying the law to the facts is the basis of the entire American system of government. The real fight that has been going on in special education in the United States since it was created in 1975, and which continues at the national level today on a wide variety of topics, is that of the People to keep our system of government adhering to the process of applying the law to the facts for the benefit of the People.
To date, I’ve not had a school district come back at me with a Prior Written Notice (“PWN”) pursuant to 34 CFR § 300.503 that says it is denying an evidence-based request because doing so is not practicable. Most of the PWNs I get when my requests for evidence-based interventions are being denied are full of Orwellian doublespeak that don’t say much of anything at all.
In my experience, when public officials use their letterhead to say a whole lot of nothing, politics are driving the process and not science or law. Also in my experience, arguing against these types of public agency responses requires the same approach as dealing individually with someone challenged by a personality disorder: stick to the facts and the rules, and don’t get sucked into an emotional tantrum being thrown by someone who doesn’t understand or care about facts or rules.
So, with all of this in mind, I’ve decided that instead of trying to go back and update old articles going back as far as eleven years to fit the current times, I’m just going to start over with our blog. In 2008, I wasn’t an educational psychologist and behavior analyst. In 2008, Endrew had not altered the legal meaning of FAPE.
The landscape continues to shift as civil rights for all people continue to come under attack and historically disenfranchised persons, including those with disabilities, increasingly stand up to those attacks. American democracy is facing an unprecedented crisis in the face of open attempts to turn us into a fascist state based on misinformation campaigns intended to divide us as a people so that an elite minority can hoard resources at the expense of everyone else.
This is basically what I’ve been dealing with in special education since I became an advocate in 1991, so none of this is new to me; it’s just finally coming to a head on a national scale with global impact. At least, now, no one thinks I’m making things up when I tell them what I experience in special education because they see similar behaviors happening within the American government on a daily basis.
Being or becoming disadvantaged is no longer a “special interest” issue; almost every member of the general public is in the crosshairs of losing rights in one way or another, now. For those of us who have been giving a voice to exploited and neglected people with unheard voices for our entire careers, we suddenly now find ourselves arm-in-arm with people who previously thought they had nothing in common with us.
When being targeted is the one thing most of us have in common, why we are each being targeted becomes less relevant to the conversation. The ones doing the targeting become the minority and the rest of us become a unified majority. And, while there are definite threats to democracy in this country, right now, the true greatness and strength of American democracy is in its people and most Americans are standing up to the unfounded fear-mongering being promoted by those who are on the brink of losing their power over the rest of us.
The fact that people of color, people from the LGBTQA+ community, people with disabilities, people of various religious beliefs, people of low socioeconomic status, people who speak languages other than English, and people who have come here from other countries are all being targeted by the same minority of individuals makes clear that we have never been “special interests.” We’ve been the majority of the People all along and have more in common than the things that make us different.
So, while this blog is devoted to special education practices and solutions, it is within this larger landscape that we bring it to you as a piece of the puzzle. We encounter mixed issues of ethnicity, primary language, socioeconomic status, and disability. We encounter single parents and same-sex parents who face discrimination when they attempt to advocate for their children with special needs. We also encounter politically conservative parents who are shocked to see how they are treated once they attempt to advocate for their children with disabilities, finding themselves grappling to reconcile their conservative political beliefs against the violations of their children’s civil rights.
While the unmet needs of children with disabilities is the common thread from each of our families to the next, there is great diversity among the families we serve in every other regard, and that can’t be ignored. Being sensitive to all of the challenges that each family faces includes appreciating the unique gobsmacking epiphanies that each family experiences as it seeks appropriate special education interventions for its eligible children, which varies according to which “isms” are being applied to each family.
It is the fact that “isms” of one or more kind are being applied to all of our families that unifies them, regardless of what otherwise makes them different. So, while we have to individualize our support for each of our families, individualization is what special education is all about and both science and law give us guidance as to how to make that happen.
Please look forward to our future posts as we build a new repository of advocacy guidance, policy updates, research developments, and other news that can help you as a parent, professional, and/or self-advocate to navigate the bureaucracy of special education in the United States. We are thinking of every family of children with special needs as we bring this content to you and look forward to re-engaging our audience with fresh new material.
See the original blog post on our website at: https://kps4parents.org/the-return-of-our-blog