Making Special Education Actually Work
School Personnel, Conspiracy Theories, & Child Welfare

School Personnel, Conspiracy Theories, & Child Welfare

January 18, 2021
School Personnel, Conspiracy Theories, & Child Welfare Christine Priola, OT, on the right in the Vice President's Office of the Senate during the January 6, 2021 insurrection at the Capitol in Washington, DC

 

On January 6, 2021, a group of people, radicalized by false propaganda generated by the 45th President of the United States and his co-conspirators, attacked the United States Capitol with the intent to kidnap and/or murder members of Congress and the Vice President. This is an event that will live in infamy for so long as America remains a nation, and be blamed for it if it does not.

 

I've been working in special education advocacy, helping parents protect their children with disabilities from physical, emotional, and educational abuse/neglect by the public sector, primarily the public school system, since 1991. By now, you would think there's nothing new for me to see when it comes to all the ways that adults can do wrong by those among us with disabilities. Clearly, I was wrong.

 

These recent events at the national level have left me with a whole new set of concerns that I believe are important to talk about, right now. Not the least of these concerns is the fact that a profoundly mentally ill president, along with his pathologically self-serving sycophants, exploited the suffering of some Americans with mental illness and the unfounded sense of entitlement experienced by other Americans with mental illness.

 

In the end, it's a bunch of people with mental health issues frenzying like piranha at the smell of blood in the water and taking down the rest of us with them. The inmates are literally running the asylum, right now, and the survival of us all rests on the shoulders of those of us intact enough to realize what is happening, and equipped to deal with it.

 

For the last 30 years, it's been my observation - and one I've repeatedly shared - that there are individuals employed within the public education system who believe children with disabilities are expendable and unimportant. In a sea of deprived students in general, special education students are uniquely further deprived because of their disabilities.

 

It's been my observation that these individuals see their constituents - in this case, our children - as a means to their own personal financial ends, and nothing more. When the costs of educating these constituents increases due to disability, they become a hated burden to those looking to profit off them.

 

It's not like the public education system is doing that great by any of our kids, right now. It's just that problems that impact education in general tend to have a magnified effect on our kids with special needs. Public school officials will say things like, "My heart is bleeding for your child. I wish there was something I could do," when there's totally something they could do. They just don't want to pay for it, which is unlawful.

 

Special education laws would have not become necessary back in the 1970s if it were not for the fact that people who do not believe in science or law were already employed in positions of authority within the public education system and engaging in unconstitutional conduct towards children with disabilities at that time. The public schools would refuse to enroll these students at all or, even if they did, let them languish in general education classes until they dropped out.

 

In spite of compulsory education laws, back in the day, it was totally okay to drop out of school if you couldn't keep up with the instruction and nobody would come after you for truancy. This was what happened to a lot of people with relatively mild challenges, like learning disabilities, who ended up reaching adulthood functionally illiterate and unable to find gainful employment except as factory workers, coal miners, and all the other dangerous jobs that don't require academic skills, in spite of their normal intelligence.

 

I provided adult literacy instruction to this population at a local vocational/technical college as a young adult in Arkansas. I've met these people. I've seen this play out, first hand.

 

This has led to a class of individuals who have increasingly lost the ability to support themselves, as robots take over dangerous jobs that don't require real thinking. While the laws that passed in the 1970s were the right place to start, it's foolish to think that enough has changed since then that the system isn't still biased against kids with special needs. If things had changed, I'd have worked myself out of a job a long time ago.

 

The public education system is biased against any kid who isn't white, male, and expected to inherit property upon reaching age of majority. It was created in its present form during the Industrial Revolution and hasn't changed much since.

 

For the longest time, public education agency administration was male dominated while the teaching staffs were female dominated, putting men in authoritarian control over women employees. Teachers unions grew out of the very real discrimination and abuse of women in the public education workplace by their male "superiors" around the same time that unions gained popularity among the laborers working ot inher dangerous jobs in factories and mines.

 

Students, however, have no collective bargaining power. Even though they are the reason the system exists, they are the last individuals served by it. They get whatever leftovers are left after public agency administrators bleed their agencies dry with undeserved six-figure annual salaries while teachers are buying classroom supplies with their own money. Students are just an excuse for politicians to pay themselves.

 

So, the idea that discrimination and abuse do not manifest in the public education sector is plainly inaccurate. There are mountains of evidence to the contrary, my caseload being only one such mountain. The judicial and legislative history of special education law is not the total point, here, but it's relevant in that it establishes that bad actors in public education have made it necessary to regulate public education to control for their inappropriate behaviors.

 

The evidence of bad faith in public education has been documented in the courts long enough that I don't have argue it, here. That's a done deal. So, when someone tells me they are worried about child welfare at the hands of government officials, I have to say, "Me too! That's why I'm a child and family advocate."

 

However, now when someone tells me they are worried about pedophiles in public education, I have to do a double-take and ask, "Why?" That's only because of the whacky Q-Anon and similar conspiracy theories, now going around about Satanic cannibals molesting and trafficking children.

 

It's not that human trafficking isn't real or horrible. It's that there is zero proof that it's being perpetrated by the people these conspiracy theorists are targeting.

 

There is proof, however, that the 45th President was pals with a known, convicted pedophile and wished this pedophile's co-conspirator well when she, too, got arrested. He's also been accusing of raping a 13-year-old who was made available to him by this same duo of pedophiles, but these conspiracy theorists are not going after him. They think he is the champion of their cause, which defies logic in every possible way.

 

Even if the allegations of child rape cannot be sustained against #45, he's sexually assaulted plenty of women and bragged about it on the record. How he's become the champion of a human rights cause given his history of sexual assault and his policies regarding the children of lawful asylum-seekers at our borders is beyond me.

 

We have all seen news stories of the occasional teacher, aide, specialist, or administrator who gets busted for sexual relations with their students. It's not that pedophiles are not employed within public education; we know some have slipped in and we do a poor job of screening them out, often only finding them after the harm has been done.

 

The more important point is that a ring of cannibalistic pedophiles do not run public education. The average school district administrator doesn't come anywhere near actual children. They don't appear to care for the company of children; they just want to exploit them for public dollars.

 

While I don't doubt that there are people employed in public education administration who would gladly traffic in humans if they thought they could turn a profit and get away with it, that's a whole lot of work to make happen within the public education system and not get exposed. It's easier to milk the broken system as it is without taking on that risk. They can get rich by lazier means than selling their students into slavery.

 

As soon as someone gets caught engaging in pedaphilia with students in the public education setting, most school districts are the ones that call the cops. If school district administrators come to an accused educator's defense, it's either because the educator was wrongfully accused or because the administrators don't want to be held accountable for the fact that they let a pedophile come work for their public education agency, so they're trying to convince everyone that they didn't.

 

It's not that public education isn't being run by a pack of corrupt jackals. By and large, like local police departments, local school districts get away with as much as they do because they only answer to their local constituents, most of whom don't know how to monitor and audit a school district on an ongoing basis for compliance issues. Jackals are in gross abundance.

 

Even the most ethical educators can be corrupted once they are promoted into administration, and I suspect most of that is economics. Once they start getting that six-figure annual salary, they start buying nice houses and cars, putting their kids through college, and going on expensive vacations. That quickly creates debt.

 

If you have a six-figure income, you can pay that debt, but if you lose that income and can't replace it fast enough, you're quickly screwed. This is how good educators get pulled into the Dark Side of the Force when they accept promotions into administration. It's the rare pure soul that sees what's really going on and refuses to be manipulated that way before it's too late.

 

The overarching problems I see in public school administration are about money, not pedophilia or cannibalism. I've yet to encounter cannibalism, actually, but it's only January 2021, so let's see if this year tops last year for the most disgusting conduct to be revealed among public servants for the whole world to see.

 

What prompts me to discuss this, now, is the recent resignation of Christine Priola, an Occupational Therapist (OT) from Cleveland Metropolitan School District, one day before she participated in the January 6, 2021 insurrection against the American government. Ms. Priola occupied the Capitol building with other insurrectionists and was photographed in the Vice President's office as part of the occupation.

 

In her resignation letter, Ms. Priola, who is currently out on bail pending trial, stated she was leaving her job as an OT for the District's special education department for three specific reasons:

 

  • She refused to take the Corona virus vaccine before returning to in-person learning;
  • She disagreed with paying union dues because she believes that money is funding abortions; and
  • She's embarking upon a fight against child trafficking by government agencies.

 

So, I'm going to pick these apart one by one, first, and then get into the rest of it.

 

First, it's unclear if Ms. Priola is an anti-vaxer opposed to vaccines in general, is against the current Corona virus vaccine because it was rushed to market so quickly and she questions its safety and efficacy, or just resents being told she has to take a shot before she can go back to work. Maybe it's a combination of those things.

 

We don't know why she was opposed to the vaccine, so I can't automatically lump her onto the science-denying anti-vaxer wagon with this limited amount of information, though her overall behaviors incline me to suspect that she could be an anti-vaxer. Because she's an OT, which is a scientific discipline that functions within the medical and educational realms, I don't want to assume too much, here. However, science is a fact-based discipline and Ms. Priola has not be operating according to facts.

 

When we look at her second objection, the total absence of logic casts an unfavorable light on the first objection, even further. How union dues, which pay for the administrative overhead of each union's operations, somehow funds abortions makes no sense.

 

The district may withhold those dues from educators' paychecks, but there is an audit trail that shows where that money goes. If you're worried about where the money is going, you do a request for public records asking for the accounting details and turn them over to a grand jury if you find that the money is being misappropriated.

 

The rule of law already provides a remedy for the misuse of public funds. You don't raid the Capitol with the intent of hanging the Vice President to death to resolve issues such as these.

 

The idea that the rule of law had collapsed to the point that it was ineffective cannot be argued, here. Ms. Priola did nothing on record to resolve the issue with where her union dues were going before resorting to the violent overthrow of the government and an effort to assassinate the Vice President.

 

The government already had a legal remedy that she chose not to access and the "remedy" she opted for instead did not fit the situation. This strongly suggests disordered thought. It also, however, goes to the degree to which legitimate remedies to harm done are often inaccessible to everyday Americans because they can't afford to lawyer up every time the government shirks its responsibilities and hurts people. When the appropriate options are closed off to people, they are only left with the inappropriate ones.

 

This is where peaceful protests for changes to the rules become such an important part of democracy, none of which involves insurrection or execution. Insurrection as a more expedient option to litigation speaks to the degree to which the legal system is often unavailable to most people because of the associated costs, but it's not a valid excuse for what Ms. Priola has done. Ease of access to remedy may have made it less likely that she wouldn't have done something literally insane, but that's speculative at this point.

 

The third justification for resigning given by Ms. Priola was that she's embarking upon a fight to protect children from abuses by government employees. On it's face, I can't take issue with that because I've been fighting to protect children with disabilities - the same students Ms. Priola served as an OT - from abuses within the public education system for the last 30 years.

 

Very often, though, I'm protecting them against people like Ms. Priola who are so divorced from science and, therefore, reality that they engage in violations that require me to file complaints with regulators. Again, the rule of law provides a remedy. The difference between Ms. Priola's efforts to protect children and mine is that I use science and law to protect my babies. She's trying to kill the members of Congress most likely to help her protect children from the real predators.

 

I've never had to violently overthrow a government agency or hang anybody to protect a child from government employees. Has the rule of law let my babies down, before? Yes, in hugely significant ways. Has the rule of law protected my babies when I've pursued enforcement of it? Yes, more often than it has not. It's not a perfect system, but insurrection on behalf of the people responsible for undermining it is not going to fix anything.

 

And, it's not like I haven't seen evidence of child trafficking in government agencies. I have, just not in public education. Specifically, I've been working on a separate justice project with our organization's founder, Nyanza, to address the egregious over-incarceration of African-Americans in Oklahoma that dovetails with what may be State-sponsored child trafficking.

 

Based on the publicly available research data we've gathered to date, it appears there may be an orchestrated mechanism in place in which officials in the State of Oklahoma incarcerates people of color and remove their children from their homes through the Child Protective Services (CPS) system, only to place these children in privately owned foster care facilities and/or adoption agencies that operate for profit.

 

It appears that at least some of the foster care and adoption agencies in Oklahoma that participate in this dynamic are owned, at least in part, by State officials responsible for passing and enforcing the laws of Oklahoma, from which they profit. It should be noted that Oklahoma's CPS system was found to have been responsible for the death, rape, and maiming of many children processed through this system via a federal class action lawsuit that resulted in a consent decree that is not being properly enforced.

 

CPS employees have come out as whistleblowers to advise that the "proof" of compliance with the consent decree is falsified information and Oklahoma isn't taking this federal court consent decree as anything other than one more thing to lie about. It should also be noted that all of the individuals involved in these behaviors appear to be Republicans, or they were at the time the data we collected were gathered.

 

From what we've seen so far in our data, it appears that Oklahoma lawmakers and judges are incarcerating people so they can steal their children and sell them for profit. If true, that's a legitimate State-sponsored human trafficking ring that needs to be shut down immediately. But, it isn't a Satanic group of Hollywood actors and Democrats eating and raping children.

 

While this possible human trafficking ring has not been investigated as such to my knowledge, thus far, it's one of those things that can't last forever without someone getting caught. Nyanza and I are working to get enough evidence together to get the situation investigated, and she's been filing documents this whole time, but that's how you address these things. We are availing ourselves of the mechanisms of our imperfect, but better than anarchy, democracy to fix this heinous problem. Whatever is responsible for Oklahoma's ridiculous incarceration and CPS numbers is a problem that needs to be fixed, regardless of what it is.

 

This is painful because we know of families suffering horribly because of what is currently happening until this gets resolved, but justice can take time. I've learned that lesson from 30 years of working cases from IEP meetings all the way up to the 9th Circuit Court of Appeals, and you don't always win. But, you always make a difference, even when you lose on some technicality. I've had cases where we lost on an issue, but just barely. The involved districts knew the next time they pulled the same stunt, they wouldn't necessarily get lucky again, and have changed their practices as a result.

 

What I've learned from relying on the rule of law to address failures of the system is that you have to look at things in the aggregate. It becomes a measure of how many things I've prevailed on versus how many things I have not, and I've prevailed on more things than I haven't. Overall, my work is highly effective. On a day-by-day basis, it's a mixture of resolution and being obstructed by law-breaking public servants.

 

You have to get to the point where you can identify when it's time to negotiate and when it's time to collect evidence and file a complaint of some kind. We have processes and procedures already to address all of the concerns raised by Ms. Priola's resignation letter, none of which involve insurrection and execution of elected officials.

 

So, having said all that, now I have to turn to the issue of people who think like Ms. Priola who are still employed in public education. I first have to say that she may be in the minority, but we don't know how large or small that minority is because they have not been outspoken within the public education context, thus far.

 

Further, because I have been dealing with disordered thought on the part of school district personnel that results in harm to children for the last 30 years, I'm willing to believe that people whose thinking is as impaired as Ms. Priola's appears to be are still deeply rooted in special education, right now. Whether their disordered thought makes them vulnerable to Q-Anon and similar propaganda or not isn't anything I can answer. But, Ms. Priola's departure from science in spite of her scientific training is consistent with much of what I see in special education when things go wrong.

 

What this really comes down to is a concern that I've had for years and have spoken about with colleagues, but we haven't really figured out the most appropriate way to address it. What is happening now and the national dialogue around it may have finally opened a door to deal with this issue, and that issue is the societal impact of having so many members of our population who are apparently incapable of logical thought when it comes to abstract concepts like justice, democracy, and fascism. And, it circles back around to the quality, or lack thereof, of our public education system.

 

One of the tools I regularly use, or request that it be used, in special education is a standardized assessment called the Southern California Ordinal Scales of Development (SCOSD). The history of what led to the SCOSD's creation is a story unto itself, but suffice it to say that it is a scientific way of measuring all the different domains of development according to Piaget's stages of development.

 

The SCOSD breaks development down by subtest into cognition, communication, adaptive abilities, social-affective functioning, and motor skills. It is possible for an individual to function at a higher developmental level in one area than other areas. Each person's outcome on the measure paints a picture of their relative strengths and weaknesses across the developmental domains. When working with children and young adults with developmental disabilities, this becomes important to designing effective programs for each of them.

 

What I've come to realize from the data I've seen produced by the SCOSD over the years is that it is possible for someone to have age-typical cognitive and communication skills, but then have below age-typical social/emotional functioning. What this means is that their emotional development is delayed while their abilities to acquire academic and job skills are intact. They can emulate adult behavior, but their motivations are child-like because of their delayed social/emotional functioning.

 

When otherwise intelligent people get whipped up into an emotional frenzy over things not supported by any credible evidence, this disconnect between intelligence and social/emotional functioning is apparent. When otherwise intelligent people argue against evidence that they did something incorrectly, this same disconnect is again apparent.

 

This disconnect is what I've been fighting over the years more than anything else. Any reasonably intelligent and socially/emotionally intact person would not engage in the kinds of crap I encounter in the public education system. Most of what I encounter in the public education system is the consequence of ineptitude, not a cabal of cannibals.

 

If any kind of cabal exists in public education, it's the same one currently running the American Presidency into the ground. All of this makes me think of the right-wing folks in Orange County, California, who started a non-profit membership organization, self-described as a "brotherhood," of school district officials who would all pay membership dues and then use that money to finance legal battles against parents of children with disabilities.

 

It also makes me think of Lozano Smith, a law firm that infamously (within special education circles) got eviscerated by a federal court judge after trying to lie, cheat, and steal in a special education due process appeal. The firm, the responsible attorneys, and the district it was representing all got sanctioned for jerking everybody, especially the court, around with their lies.

 

All of the firm's attorneys were ordered to participate in additional ethics training, in addition to the reprimand and sanctions meted out by the court. At the time, Lozano Smith had over 200 attorneys on staff statewide throughout California. Shortly thereafter, most of them jumped ship and went to different firms or started their own firms. It's quite reminiscent of what we are seeing in Washington, DC, right now, as cabinet members and other high-ranking personnel turn their backs on the outgoing President in the wake of all the destruction and death he has caused.

 

Lozano Smith is still around, but I haven't encountered them in the field in several years. The last big thing I saw from them was in 2013 when my colleague, David Grey, prevailed on a case at the 9th Circuit against two school districts engaging in the same violation of the Americans with Disabilities Act (ADA). At least one of the involved districts filed an appeal to the U.S. Supreme Court, but it was shot down; the Supreme Court declined to try the case.

 

When the Supreme Court appeal was first filed, Lozano Smith, which had been uninvolved at that point, wrote an amicus brief that looked like something that could have been produced by Sidney Powell and Rudy Giuliani. It made nearly hysterical arguments about how the 9th Circuit's interpretation of the ADA would undo decades of precedent within the public education system, as though decades of an established practice of discrimination should be maintained.

 

The point is that the conservative "fringe" has never been the "fringe." To quote Stephen Colbert, "Lunatic fringe? There were tens of thousands of people in that murderous mob. The day after the riot, a poll found that 45% of Republican voters backed the attack on the capitol building. That’s not a fringe! That’s almost half the outfit! If you wore a suit that was 45% fringe, you’d be arrested for public indecency! But at least we’d be able to see through your pants to know you don’t have any balls!“

 

Based on how scholars look at the political spectrum, conservatives have gone further and further to the right towards radicalization as the left has remained predominantly centrist. The far right looks at centrist politics and mischaracterizes them as the "radical left." Democracy is not the radical left.

 

Conservatism is no longer part of democracy in this country; it's become a movement towards dictatorship in which 45% of the population believes it needs to be led by the nose by a demagogue. When left to think for themselves, these individuals run towards authoritarianism, thinking these leaders understand their needs and will fight for them, rather than exploit them to help take over and then kick them to the curb when they no longer serve a useful purpose.

 

It's my suspicion that, once the people who participated in the insurrection realize that the 45th President will let them rot in jail for taking up his cause while he claims to have nothing to do with any of them, his base will finally get the backstabbing that has been coming their way this entire time and will realize he's not in their corner like they thought. We can at least hope getting stabbed in the back will have this effect.

 

We're going to have to watch the prosecuted go through this epiphany over time as we try each of their cases one by one. The stories we're going to hear from these people are going to reveal legitimate unmet needs, impaired problem-solving skills, and exploitation of those factors by Republican terrorists looking to radicalize them.

 

Those of these defendants with the mental wherewithal to realize they've been played and the emotional stability to own it will turn on those who exploited them, as have many former allies of #45, such as Michael Cohen. Those who don't have the emotional stability to own the fact that they made a mistake in judgment will continue to assert they've done nothing wrong and describe themselves as political prisoners rather than criminal insurrectionists and traitors.

 

In the minds of the insurrectionists, as they've reported themselves, they were responding to the call of their President to defend democracy. If that's what you're really doing, defending democracy isn't bad. But democracy relies on the rule of law. You defend democracy by participating in it and putting its mechanisms into constructive use, not trying to overthrow it.

 

If our democracy is not working for all of the people - and people of color, indigenous people, LGBTQ+ people, women of all stripes, and people challenged by disability can attest that it has not for a very long time - we need to fix it. What boggles the mind is that now that groups made up mostly of white males in this country are finally beginning to experience the lack of undemocratic entitlement and advantage they've historically known, their response to advocate for themselves is to engage in insurrection. This means that what they want is nothing a true democracy would ever give them, and that tells you all you really need to know about them.

 

There is absolutely a silver lining in all of this, and I rely on Applied Behavioral Analysis (ABA) to inform that determination. In ABA, there is a term that I've discussed in previous posts called "Extinction Burst," and that's part of what we are looking at with the current state of things. In an Extinction Burst, a behavior that had previously been reinforced is no longer being reinforced, and the organism tries to force reinforcement to come by escalating its behavior.

 

Think of it this way: If, every day, you put money in a vending machine and a candy bar comes out, the candy bar reinforces the behavior of putting money into the machine. But if, one day, the candy bar gets stuck and won't come out of the machine, what do we do? Walk away sad? No! We beat on the machine in an effort to make the candy bar dislodge and come out.

 

That's an Extinction Burst. If the candy bar dislodges and comes out, it reinforces the behavior of beating up the machine. If beating the machine doesn't work, then you walk away sad. After than, you're less likely to use the machine again. If you stop using the machine altogether, the behavior of putting money into it becomes extinct.

 

What is happening in this country with the radicalized right is an Extinction Burst. Behaviors engaged in by the right wing that were previously reinforced are no longer being reinforced. The behaviors of the 45th President, his co-conspirators, and his followers over the last five years, leading up to January 6, 2021, and what may still yet happen as the 46th elected President takes office, have been an extended Extinction Burst.

 

The most important thing about an Extinction Burst when you're trying to extinguish an inappropriate behavior is that you cannot allow it to produce the reinforcement being sought. If you want someone to give up on the candy machine, there can be no way to beat the machine until candy comes out.

 

We want the radical right to give up on trying to destroy democracy, so we cannot allow their behaviors to result in the reinforcement they are seeking, which, here, is to remain in power regardless of the will of the people. This includes holding them accountable according to the letter of the law. That's what I've been doing in my niche of governmental accountability for the last 30 years and it's the only way to preserve democracy going forward.

 

The other silver lining, here, is that in spite of all their efforts to overthrow democracy, it's our democracy that will ultimately prevail. When we apply the rule of law to what they have done, democracy will have the opportunity to defend itself.

 

What saddens and scares me the most is the number of people whose developmental weaknesses and mental health conditions are being exploited by the right wing to radicalize them into becoming domestic terrorists while convincing them they are upholding American principles through their terrorism. When we talk about the mental health problems in this country, we tend to point to homelessness and addiction issues, like this is the only way they can hurt us.

 

As an advocate for people with disabilities, I am torn between being sad for and fearful of these individuals. On the one hand, we absolutely need to hold them accountable under the law. But, we prove the point that the system is skewed towards specific demographics when mentally ill right wing radicals suddenly get criminal consequences and nothing to address the real-world problems that they couldn't solve that propelled them into radicalism.

 

In the end, once again, it's people with disabilities being used as political pawns by self-serving, undeserving, overpaid public officials looking to line their own pockets with taxpayer dollars as part of a grift. This is something I know all too well in special education.

 

I'm willing to believe, in light of the evidence thus far, that decades of special education failures have produced an entire class of emotionally disturbed adults who are still vulnerable to the manipulations of public officials and that Ms. Priola and many of her compatriots are among them. I'm also willing to believe, in light of the evidence thus far, that the people manipulating them are just as mentally ill; they just have money and power.

 

I will never pretend to have all the answers, here, but I do know a thing or two that can help. All of us do. We need to weave our efforts together to repair the fabric of our country and make it stronger than it was in the first place. It's not impossible. This country's founding was far more difficult than its current preservation and we can do this.

Podcast Interview: Catherine Michael, Attorney at Law & Author

Podcast Interview: Catherine Michael, Attorney at Law & Author

November 6, 2020

Catherine_Bio_Pic.JPG?w=1060&h=1413&a=tCatherine Michael, attorney & author

On November 4, 2020, I interviewed attorney and author, Catherine Michael, of Connell, Michael, Kerr, LLP, a special education law practice with offices in Indiana and Texas (https://cmklawfirm.com). Catherine's book, The Exceptional Parent's Guide to Special Education, will become available on December 1, 2020 and can be pre-ordered at https://amzn.to/38euWaD.

The following is the transcript from the interview (transcribed using Otter):

Anne Zachry 00:00

First of all, thank you so much for being on this podcast with me, I don't get to interview folks very often, and it's always fun when I get to. And it's always very informative, because I think having all of us who do this kind of work, you know, talking these things through out loud, and just speaking to what's going on and how we think that's going to affect the the students that we work for, and the families that depend on us, I just think it's a really constructive use of time. So I really appreciate you being here. If you could, just introduce yourself and give us just your background, your history of how you've come into this line of work and what it is that you do now.

Catherine Michael 00:33

Oh, yeah, absolutely. So, my name is Catherine Michael. I'm the managing partner of a law firm called Connell Michael Kerr. And we work in a multitude of states and have attorneys licensed in in several states as well. And what I do is, and for the past 20 years, I've worked in education, law or representation of children. And, and a lot of that involves filing educational due process cases against schools, personal injury, tort actions against schools, and sometimes group homes, residential facilities, and also advocating for children with special needs, for instance, the legislatures in several states, and at a national level. And, you know, I got into this line of work. My background had been in hospital risk management. And I got into this, because we were seeing a lot of children who had really substantial issues, whether they had a diagnosis of cancer, and we're now getting cranial radiation or having a tumor removed. And we saw how uncooperative schools were. And back then it was really quite shocking to me that we would find a school district who wouldn't want to provide a child a homebound program or a school district that would claim that cancer is not a disability, and this child doesn't need to be eligible.

Anne Zachry 01:51

Oh, my gosh!

Catherine Michael 01:52

That was really - Right! That was really fascinating to me, because as someone who had not worked in education, at that point, and was working with hospital systems, that was really shocking, because I think all of us believe that our procedures, tools are supposed to be very pro child, they are there to ensure educational services for children. And, you know, the first case I took was a child who had cancer, and was just really, really surprised how hard it was to get that young man a program. And thereafter started taking cases involving children who had learning disabilities, and really finding how substantial a need this was. And it had a snowball effect and has kept me in it to this day.

Anne Zachry 02:36

Well, yeah. And a lot of us come into this, who are professionals from these paths where we encounter these challenges. And we're like, "Wait a minute, what?" And then we see how the system is constructed, how it's been designed, and what the rules actually are. And so I would imagine coming from a medical scenario, I mean, in the medical realm, you bought insurance billing rules, and all those kinds of things until there's somewhat of a similarity in that you've got this compliance standard that has to be met, in order for things to happen. And when you look at what those rules are in special education, and, you know, and you understand what the intent may have been. But then, and you and I spoke briefly of this before we started the interview, that enforcement is really the question here. So if you could speak about that, that would be ...

Catherine Michael 03:29

Yeah, enforcement is a huge issue. And I think that because there is so little enforcement of the laws on the books, we've have found that basically schools have run amok. And so for parents who are listening, the main law is the Individuals with Disabilities Education Act, and that is a federal law, which means that every state has to follow it. They can't have a state law that restricts any of the rights under a federal law. And every state in the United States has basically what we call "codified" that law into their own state laws, the only thing that they can do is add additional rights for parents. For instance, the state of Michigan actually extended how long the student can be in special ed. So it is age 22 under the federal law. Michigan made it 26. Other states change, for instance, when a parent requests an independent educational evaluation. California, basically has that if a parent request an independent educational evaluation, that the school gets a reasonable time to respond. Other states like Indiana say a school has to respond within 10 days. So there's some of these minor changes in the law that are that are supposed to in some states like Indiana or Michigan, give those parents additional rights. But also the way these laws are designed, is that the only enforcers of them are parents. That means the parents are basically their own private attorneys general; that parents are the equivalent of the cops on the road with the radar to catch the speeding cars. Your State Department of Education is not going to be looking over your child's IEP and saying, "Wow, your child has a lot of issues and they only have one goal," or "They're not receiving any direct speech services," or "They're not receiving any direct special educational services," or "Your child shouldn't be in a special education room all day long; that there's something called the 'least restrictive environment,' which says we need, to the maximum extent we can, have them with their general education peers.' So what I think a lot of parents don't realize is, your State Department of Education isn't doing that. Your federal Department of Education isn't doing that. No one has that obligation to enforce these laws, other than the parent bringing a private action called an educational due process complaint. So schools have all of these laws under IDEA. And just to give, you know, for parent, I'm sure if if you're listening to this podcast, you probably have a basic overview of it. But IDEA has requirements for what's called a free appropriate education. And that basically encompasses that your child is going to have an IEP, that has challenging ambitious goals, in light of their circumstances, that has related services. Related services would be counseling, social work services, parent training, speech therapy, occupational therapy, physical therapy. The least restrictive environment: That if your child needs a one on one aide in order to be in a general education environment, they're supposed to do that versus moving your child to a resource room. If your child needs a therapeutic day placement or residential placement, that's also to be provided by the school. There are all sorts of procedural safeguards. If a school refuses your request, let's say for a one on one aide, or a specialized program for dyslexia, they actually have to provide you written notice saying what data they're relying upon to deny this, everything they've considered, and they have to provide this to you in writing. So there are all these laws on the books, okay. And regardless of where you live, when we say IDEA, it's that federal law, this applies to you, and it applies to your child in a public school. And as you know, going back again, but the only enforcer of this law, the only enforcer who can actually call a school to tap on it is you as a parent and that mechanism, as I said a second ago, it's what's called an educational due process complaint. And that's a complaint that is filed with your State Department of Education, a state appoints a hearing officer to determine if that program is in place. And you know, something we discussed before we started as well is that most parents have no idea that they have these rights. And that most of these laws are right now not being enforced. There are some states where there is less than one due process case a year. So when schools are developing these IEPs, being that there's no real enforcement mechanism, other than in some states like the timeline, they have to have it a yearly meeting, we're seeing really horrible consequences of that, I think across the states.

Anne Zachry 08:27

Well and then now that with school closures and shutdowns, that certainly hasn't improved things at all. And so what are you seeing?

Catherine Michael 08:36

It hasn't.

Anne Zachry 08:36

What are you seeing now, that's different than before the shutdown started?

Catherine Michael 08:40

I think the biggest problem I'm seeing is a complete lack of services. And that is where school districts, for instance, that have gone entirely virtual, have students who are just not able to access the services, they may be so cognitively impaired, they're not able to do a computer program

Anne Zachry 09:01

Right.

Catherine Michael 09:01

In some of those cases, I'm seeing schools basically just throw up their hands and say, "Well, you know, when we come up with a program, we'll let you know." And that's really contrary to law. And there are a lot of things that parents need to be doing right now. That is one of the biggest problems. The other one is where parents whose children are getting, for instance, speech therapy. The school's saying, "Sorry, we can't provide that right now." And in fact, they really can. I mean, virtual speech therapy has been done for years and it's something that should be being done.

Anne Zachry 09:35

Right.

Catherine Michael 09:36

And then lastly, I mean, we're seeing schools where kids are coming back to school, but we'll have a school that that, you know, I think for good reason has a mask mandate, but they don't understand that there are clearly going to be children who cannot wear masks, right?

Anne Zachry 09:52

Right.

Catherine Michael 09:52

They are too cognitively impaired or they have really significant health issues. And I've definitely seen a lot of those issues crop up, which is really quite shocking to me. Because some of these situations, you know, quite honestly, when we look at a child who for instance, has a tube down their throat, the fact that a school would even argue with a parent as to whether they're going to try and put a mask on this child is shocking.

Anne Zachry 10:21

Right.

Catherine Michael 10:21

They'll tell a parent that a child can't come to school. So that I think has been another one of the really big issues.

Anne Zachry 10:28

Yeah. And we've what we've run into out here in California is it's hit or miss, it depends on the school district as to whether they're going to do the right thing or not. And but we have some school districts that are just flat out refusing to do any in-person services at all, under any circumstances, even though we have the governor's order that came out in April that said that any student that required in-person services in order to continue to learn and to receive educational benefits, just as a matter of FAPE, that those in-person services still had to be provided and the people who would do it would be considered essential infrastructure workers. But we have districts saying that, "Oh, no, there's something else that came out in July that says we don't have to do that." And it doesn't say that at all. And so they're just waiting until they get court ordered to actually do it before they'll comply. They're waiting for somebody to pull that trigger. They're not willing to assume the risk. It's a risk management decision. They don't want to assume the liability of choosing to do it, and then have somebody gets sick and say, "You made me go to work, and then then I got COVID." And then they're going to turn around and sue the school district as the employer. And so what we're seeing is that a lot of it has to do with human resources issues, and unionized employees and, you know, rightfully insisting on safe ways of getting things done, and satisfaction not being achieved at that level, which then impairs the system's ability to carry out its mandate, because the workers it relies upon, there's no agreement as to how they're going to do it. Until they get court ordered, they're just not gonna. And so that's what we're seeing out here. And it's weird. And I've also got OCR complaints and state compliance complaints as well pending because the due process system is now so flooded that, you know, the attorneys I work with can't file anything new until March. And so it's like, Okay, well, we got to find other avenues to still somehow enforce all of this and a compliance investigation, or an OCR investigation has a 60 day timeline. So at least that's something.

Catherine Michael 12:27

Yeah, well, and I think that is, again, part of the big problem, here. It's just when we have schools that they know that the consequences to them are going to be really minimal, that's why we'll often see them wait for court orders versus getting creative. So when I say getting creative, we're seeing two are not able to serve, for instance, cognitively impaired kids, they have problems where they are not able to get the personnel in and not keep them safe. They can actually pay for a private therapeutic day placement, they can offer a parent sort of what we would call a continuum of services and placements ...

Anne Zachry 13:02

Right.

Catherine Michael 13:03

... which is one of the requirements of federal law. And they can actually say to a parent, look, we do not have the infrastructure right now, or we don't have the ability to serve this child, here are four or five private placements that we can contract with, if that's something you're interested in. So and we see that happen in some places, and we don't see it happen in others.

Anne Zachry 13:22

We're seeing that also with non-public agencies being able to provide in-home services like behavioral services.

Catherine Michael 13:28

Yeah.

Anne Zachry 13:28

Yeah, same thing.

Catherine Michael 13:30

Yeah, I'm actually a big fan of that happening. When I see school districts that are really willing to think outside of the box to say, "Well, we have an absolute obligation to serve these kids. How do we do it?" Right? Where they're actually looking at it more along the lines of: "This is our job, this is our role, how do we perform it, even if we don't have the personnel right now?"

Anne Zachry 13:52

Right.

Catherine Michael 13:52

And so when I, certainly when I see school districts going above and beyond like that, and situations where, you know, you can see how difficult it is. I mean, I'm looking at those districts and saying, you know, at least they're making these attempts, but, you know, the, the problem we see over much of the country is school districts basically saying if a parent, if, after all this is done, brings a due process, our worst case scenario is we're just going to have to provide compensatory education. So I'm seeing some school districts, really, you know, as I said a moment ago, not provide anything.

Anne Zachry 14:29

Right.

Catherine Michael 14:29

And so, you know, if you're a parent who's listening to this, and you're saying, you know, my school district may be providing part of the program, or not any of it. I mean, the thing you need to be doing right now is documenting it.

Anne Zachry 14:41

Yes!

Catherine Michael 14:42

Because you are absolutely going to have a claim for those compensatory hours that your child should have been getting. So if your IEP had your child receiving 124 minutes a week of what we would call sort of direct special educational services like we would expect to see it you're talking about a child with a specific learning disability, who is getting some of that one on one reading intervention or math intervention, those are the minutes that are going to be ordered. If you have a situation where your child's not receiving that, or they were in a resource room, and we're talking about full time special ed placement, they're not able to access a computer, what you're going to want to do is just really document those hours that you're missing. Email the school, your child's school, and ask, you know, again, if your child's not receiving anything, what options are available? You know, if they don't have the infrastructure, are they going to offer a private therapeutic day placement or a home based placement at this point? And that's, you know, sending it for instance, a registered behavior technician, or if your child has autism, a BCBA, or you know, another individual who's trained in that, you know, behavior modification into the home to work on the child's behavioral goals, social skills goals, academic goals. What is the school able to do at this point? And you're certainly going to want to ask those questions. And you're going to want to push because, again, it's their absolute duty to be providing this right now. To the extent that they are unable, there are rural areas where, you know, there are no ABA centers are out there ...

Anne Zachry 16:14

Right.

Catherine Michael 16:15

... no spec ial day placements, there are no private placements, quite honestly. And we have schools that are saying, you know, "We don't have enough staff," you know? It's really a very, very problematic situation for families in those places. And that's where the parent just really needs to be documenting to the best extent they can you know, what skills their child is losing how many minutes that their child isn't receiving, what they're doing, any costs that they are right now incurring. Like for instance, for parents who are having to go out and buy educational items, these are all things that you're going to want to keep track of as a parent so that as things return to normal, you can sit down initially with your school at an IEP meeting and say, we need to plan for the compensatory services, number one. Number two, here are the costs that I had to privately pay that I'm asking to be reimbursed for,

Anne Zachry 17:05

Right! Well, and I don't know how other states are doing it, but in California, one of the things that we had a Senate bill pass over the summer, that now requires all IEPs to have a contingency plan and emergency plan for his schools shut down for emergency reasons for 10 or more days. And so now, and hindsight being 2020, obviously, that should something else ever arise, like another pandemic, or whatever that would, or, you know, a natural disaster that would require a school closure for 10 or more days, that there is already a backup plan of what to do for each kid ...

Catherine Michael 17:40

Yes.

Anne Zachry 17:40

... on IEP. And so I don't know that other states have codified anything like that. But California has. And I think that's very valuable. And the same body of law that produced that I believe, also produced a requirement that there's going to have to be an analysis of how much compensatory education every special ed kid in California is due, because it's assumed that everybody will have suffered in some kind of way, and that everybody will have ...

Catherine Michael 18:04

Yeah.

Anne Zachry 18:04

... lost services. And so it's, the IEP teams are now legally beholden to calculate that, once things, you know, once the shutdown is over. That ...

Catherine Michael 18:12

Yeah.

Anne Zachry 18:12

... varies from community to community. And I, we now have like, I'm in Ventura County, where districts are not intending to open until January, at the soonest. And then you know, you go down into other counties, and they've already got campuses partially opened down in Orange County. And so and some campuses are reopening for their most severely impacted students who desperately need that in-person support. And so the families have to sign all kinds of waivers and everything, but then they can go back and they've got all of these empty classrooms that they can spread everybody out. Because not it's just a small number of students. And then those kids can get that individualized support. But that is like, you know, how much of this was working on social skills? And if they're all spread apart, can we really do that? You know, and so it's, it's still the challenge of how do we work on the goals. And what I've seen too, is some kind of distance learning program where, you know, the parents are expected to be the one-on-one aide and help their students login. And they do some kind of something on the internet, but it doesn't have anything to do with anybody's goals. It's just something to do. It's just to give them a sense of routine in the absence of, you know, an actual plan, and then they get very confused. And then eventually, the goals get worked in because enough people you know, make a fuss about it, then it starts to happen. And now you switched everything up on them again. Now, the instruction is a whole new novel experience, and you're transitioning them again, into something new that is unfamiliar. And so it just seems to me that it's very disruptive. And it's disheartening to see that there's this little coordination. I mean, as many milestones have been achieved, and as many things that have been accomplished with making some of the system work, this piece of it falling down is a real disappointment, you know? And ...

Catherine Michael 19:53

Yeah!

Anne Zachry 19:53

... and it's disheartening, but I think that parents need to know that there are people like you and me out there who understand it, and we're trying to fight it, we're trying to help them. And it's not a lost cause; that there is help out there. If you could share about your practice, once again, that would be very helpful.

Catherine Michael 20:12

Yeah, so my law firm is Connell, Michael, Kerr, and I am licensed in Michigan, Indiana, and Texas. And our website is www.cmklawfirm.com, and I also have recently, and I believe it's due out either in December or January, I'm not sure on the date. But I do know that we're having pre-orders. That's the Exceptional Parent's Guide to Special Education, where I basically have, you know, put all of my advice on how parents should navigate this system in one place. Everything that I go over with parents in consultations, how the process works, I've put that together and created that as a book. And so that will be due out, again, it's either in December or January, but parents can get it through Amazon, Kindle, I believe Barnes and Noble, a couple of the others. But I know that should be available shortly. And I'll send a link for that as well. (Note: It will become available on December 1, 2020, at https://amzn.to/38euWaD.)

Anne Zachry 21:08

Very cool. Yeah, we'll include the link with our post so that people can access that. That's a good thing to know.

Catherine Michael 21:14

Yeah. Because I, you know, I think the thing that parents need to remember is that they actually have power. When, you know, when I use the term, private attorney general, that parents are basically acting as though, you know, that is the main message I want to impart to families is that most accountability is going to come from families standing up together and saying,"No, we are entitled to appropriate services for our children," and doing their research and coming to unders tand the system and asking for the things they're supposed to be getting.

Anne Zachry 21:47

Right.

Catherine Michael 21:47

And it's only by asking for it, and schools really being held accountable that we're going going to see the system change. And I think a lot of parents, right, and this is all of us, right? It's difficult to challenge people that we want to like us and parents often want the teachers to like them, they want school staff to like them. And most people who go into teaching are very, very good people, but they're not taught the education laws, they're not ...

Anne Zachry 22:11

Exactly.

Catherine Michael 22:12

... in a lot of situations, we find, you know, teachers don't know how to design the school for an IEP, they don't ... You know, I had a teacher in a due process hearing last week, they they didn't know that parent training, or counseling could even be part of an IEP. So it's really important for parents to take the horse by the reins, and learn how to navigate the system and start asking these things in a way that's diplomatic and kind. But at the same time is assertive enough that your child is going to get what they need, because quite honestly, you are your child's only advocate in the system.

Anne Zachry 22:48

Right.

Catherine Michael 22:48

And unless you're asking for these things, the schools simply aren't going to provide them. And in many, many situations,

Anne Zachry 22:55

it's just a sad reality of it. But I mean, this also goes to the fact that in a democracy, we're of the people, for the people, and by the people, and the parents are the people, the students are the people and we shouldn't be afraid to take ownership of that responsibility. It's what we all agreed we wanted to live under. That's ...

Catherine Michael 23:13

Yeah.

Anne Zachry 23:13

... the model we've chosen. And so I think, for me, what makes me upset most about the way it's designed, it's not just that it forces parents into litigation, because that's what the rules require, in order to resolve the dispute. It's the attitude that parents get from the school district personnel when they actually exercise that right. And the "How dare you?" and "Oh, you think you're ..." you know, whatever. And all of a sudden, the parent becomes the bad guy for simply exercising a right and following the rules, because that's the only mechanism available to them, not because they want to. Nobody wants to do that. But if they do, you know, as someone who works with families, if somebody comes to me and says, "I cannot wait to go to court," I'm like, "Well, okay, I hope you find somebody to help you with that, because it's not going to be me," You know, it's that you shouldn't be eager to go to court. It should be the last resort. And so when parents are forced into that corner, and that's the only option they have left, and they exercise that right, and then they catch grief for it, like somehow they're the bad guy, I think that's what bothers me the most. Because it's like you ...

Catherine Michael 24:18

Yeah.

Anne Zachry 24:18

... said, you know, that the parents can be made out as, "Oh, they're just this this disgruntled person and they just aren't happy with anything. They're sad about being the parent of a special needs child." I've heard that one a lot. "They're having a hard time coping and they they're angry and they need someone to take it out on, so they're suing the school district." No, you broke the law and you harmed their child. That's why they're suing you. You know, it's frustrating.

Catherine Michael 24:46

Yeah, and, to that end, like, I want, you know, schools as well as parents to I you know, I would so love if we could even stop thinking of due process as litigation or suing or something like that, because these parents cannot get damages under IDEA claims.

Anne Zachry 25:04

Exactly.

Catherine Michael 25:05

What you can get, right? You can recover your attorneys fees. But in these cases, I mean, if we look at them in their most simplistic nature, it's simply the parents asking their state Department of Education to appoint an independent hearing officer to make a decision as to the appropriateness of their child's program.

Anne Zachry 25:23

Right.

Catherine Michael 25:23

A parent doesn't need, although I certainly wouldn't recommend it, but a parent doesn't need an attorney. So, you know, I will often hear from schools that, you know, this is the litigious parent who filed a suit. And I'm thinking, number one, this person hasn't filed a suit against you. Right? A suit, you know, traditionally is a claim we would file in civil or federal court.

Anne Zachry 25:46

Right.

Catherine Michael 25:47

This is an administrative action that they filed with an administrative agency. It's not even ... so, and then we hear, you know, "a litigious parent." Parent's not asking for money, you know. They may be asking for what we call an "in lieu of FAPE" type of agreement where they can actually get the funds to place their child in an appropriate program.

Anne Zachry 26:05

Right.

Catherine Michael 26:06

But I think that is a mindset that we really need to have get schools over and also get parents again, thinking that if you have a problem with Social Security, or you had a problem with your child's Medicaid, you file an administrative action to get that corrected. Right? You file with, you know, your federal Social Security office, "Here, I need to get this adjudicated," or somebody who's disabled. We don't think about it the same way.

Anne Zachry 26:31

No, not at all.

Catherine Michael 26:32

I think if we could ... right? And so to me, that has always been fascinating as somebody who does this, when, you know, I have one that's in a hearing right now, where the, you know, the parents, quite honestly only asking for an appropriate IEP, and then assorted related services for her child. And now, you know, when the school's attorney is speaking to us, they're saying, you know, this is simply a litigious parent. And I'm thinking, you know, she's not asking for a dollar.

Anne Zachry 27:00

Right.

Catherine Michael 27:00

Just write an appropriate program. So I really want to even reframe how parents think about these things. Again, schools are basically performing a government function.

Anne Zachry 27:14

Yep.

Catherine Michael 27:14

When we ask for the enforcement of these laws, it's an administrative action. And you're asking, you know, someone from your state simply to make that decision. Certainly, they can be appealed to federal court. And there's all you know, all of the things that you and I often see.

Anne Zachry 27:31

Yeah. Which Yeah, I've gone all the way to the Ninth Circuit on some of these things and it's just like, "Are you kidding me?" And something that you had said before we got started, as well as that how much money school districts are sometimes willing to throw in attorneys that they would never throw at services, I mean, hundreds of thousands of dollars in legal fees to fight over a $7500 education service.

Catherine Michael 27:50

Yeah. And you know, I've even seen that when a parent requests an independent educational evaluation. In most states, those can go for around $3500. Some states that we're looking at California and New York, it can be higher. So I've seen schools go through an entire due process, arguing that their evaluation is appropriate, where they spent triple, quadruple, what it would have cost them to provide the parents the evaluation. And when you look at that, you're really what you're seeing is a school district saying, "We want to make this process so hard on parents that they don't even bother to ask." And they talk to their friends and they're like, "Yeah, this is what happened." And that's not the role of a government entity, right? We shouldn't have government entities making it so difficult for individuals to get their, you know, their legal rights met.

Anne Zachry 28:23

Right. Right.

Catherine Michael 28:38

They don't even want to start that process. And that's why I think it's really important for parents to feel empowered, and to realize that what they're asking for is supposed to already be being provided to their child. And again, it becomes their job to enforce that. And you can do so in a diplomatic way.

Anne Zachry 28:55

Exactly.

Catherine Michael 28:56

There are a lot of you know, yeah. And there are a lot of things you can do even outside of due process. But I don't want parents to be afraid of due process.

Anne Zachry 29:03

Right.

Catherine Michael 29:03

And, I want to reframe their thinking on that topic.

Anne Zachry 29:07

I think that's a really healthy perspective. I wish we could reframe the thinking of the folks from the school district who come in and deliberately try to make it toxic in those instances where they do. And you know, when it isn't always that case, you're right. I have been in situations where we've had to file for due process. And it's almost one of these things where everybody in the IEP team knows that it was coming, and nobody's surprised by it. And they're waiting to see what happens. And it's almost like the administration is hoping the parent will file because then they can go to the school board and say, "Look, now will you listen to me?" And because, sometimes it's not that the department doesn't want to do it, it's that their hands are tied by, you know, whoever holds the purse strings, who's not part of the IEP process, even though the team is the one vested with the authority to make those decisions. So, the politics that are going on behind the scenes become a toxifying effect. And ...

Catherine Michael 29:59

Right.

Anne Zachry 29:59

... then you Have the attorneys that these individuals will hire and certain individuals, you know, birds of a feather flock together, and you'll find people who are like minded in their view of these things. And I know that for from what I've seen the socioeconomic status of the community where the school district is, can have an influence over whether they will comply or not. In a school district where they don't have the money to throw at lawyers, they'll go ahead and pay for the service, they're not going to fight over it ...

Catherine Michael 30:27

Yeah.

Anne Zachry 30:27

... because they can't afford to. But you get into an affluent community, especially when you're talking Southern California where you got these little pockets of nouveau riche and their big McMansions. And they're feeling all special because they have money and the school district people will tell them, "Oh, well, you don't want to go through public special education services. That's like a welfare service. You would do much better if you pay privately for the services yourself. You'll get much better results than what we can give you because ours is publicly funded." And so they play that ...

Catherine Michael 30:58

Yeah.

Anne Zachry 30:58

... that mind trip on these wealthy parents whose identities are all wrapped up in their their newly accomplished wealth, and they play on that and these parents are taken for a ride, because then these parents are paying out of pocket hundreds of thousands of dollars for all of these specialists who were hovering, like vultures just waiting because they know it's coming. So you've got, you know, you've got all of these parties that are financially invested in enabling that mechanism to play out the way that it does. And then you have parents who suddenly realize after, you know, they've broken the bank, and they don't have all that money anymore, because it went all to private school and residential placement costs and things and to come to find out that they could have gotten all of that from the school district. But there's ...

Catherine Michael 31:40

Yeah.

Anne Zachry 31:40

... only a two year statute of limitations and they've been paying out of pocket for the last 10 years. And so not until they're bankrupted by it that they realize the error in their judgment, and then they can't go back and fully recover. And it just there's all of these different games being played by people who seem to be similarly motivated to not serve, while taking public dollars to hold a public service position. And I think that this is as much a taxpayer issue as it is a parent issue, because like you said, we've already paid for these services to be provided. Those are our tax dollars. And in those are the laws that our Representatives passed in order to provide for these children. And yet, this is what we have instead. And so I think ...

Catherine Michael 32:22

Yeah.

Anne Zachry 32:22

... that one of the parent advocates that I met a few years ago said she went up to Sacramento with a group of parents and sat down with state assembly members or state Senate, I'm not sure who all she met with. It was state officials, representatives. And said, you know, "When you take into account all of the people in California who have disabilities, and their immediate family members, like their parents, or you know, a spouse, do you consider them a constituency?" And he said, "No, the number is too small." And she said, "Well, okay, what about all the people who are employed to support all of these people with disabilities and their families and their extended families? When you add all those people in, does that become a constituency to you?" And he said, "Yes ..."

Catherine Michael 33:08

Yeah.

Anne Zachry 33:08

"... at that point, now you're talking about a significant number of people." And so what that really communicates is all of this divisiveness that we've been seeing in our culture where, you know, we've got people being pitted against each other for different ways of thinking about things and the things that make them unique from each other. And disability is no stranger to that experience. And what we're starting to realize is that the people who are trying to divide us are a minority. And they're easily identified, we all have a common group of individuals who are all trying to pit us against each other and turn us into special interest groups, when really we're just the majority. And if we all ...

Catherine Michael 33:49

Yeah.

Anne Zachry 33:49

... weave ourselves together and collectively advocate for each other, then we're a constituency. And I think that ...

Catherine Michael 33:57

Yeah.

Anne Zachry 33:57

... that is where we have to start thinking about these things now that it's not, "Oh, my disability rights versus your LGBTQ+ rights." It's not my "My race rights versus your gender rights." You know, it's not a "versus." It's no, everybody. Everybody has equal rights. And that's the whole point.

Catherine Michael 34:16

Yeah.

Anne Zachry 34:16

And so I think that our dialogue needs to shift in that direction. I know that I had this conversation in an IEP meeting the other day with a team, I had to file an OCR complaint. I'm like, "Look, this pandemic is not the apocalypse, you know? Zombies are not at the door."

Catherine Michael 34:32

Right.

Anne Zachry 34:32

"Democracy has not fallen, the rule of law still applies. And at no point did public health usurp civil rights, they are equally important. So what are you guys gonna do?" And they're just like "Uhhh!" because they don't know. I mean, but they understood why I filed a complaint. They weren't mad at me. They're probably ... they're actually they're like waiting to see what comes of it because maybe now they'll be given permission to do their jobs. You know?

Catherine Michael 34:56

Right.

Anne Zachry 34:56

Nobody was angry about it. It was like "Okay, well, yeah,. That logically makes sense. We'll just have to see what happens." And so I'm not necessarily, in my situations ... and of course, I have relationships with a lot of these people, because I see the same people in IEP meetings for different kids over the span of decades. So we all know each other. So it's not like ...

Catherine Michael 35:17

Yeah.

Anne Zachry 35:17

... you know, I'm going into a novel situation, and then some stranger coming in and telling them what to do. Because that can be, you know, people can become defensive and adversarial when that happens. So I have rapport, but, you know, even still, you know, the fact that I can say something like that, and everybody's like, "Yeah, you know what, you're right. We still are not empowered to do what you're asking us to do." And so that that, to me, is very frustrating, because I know that there's people who want to do the right thing, and they can't; they're not being allowed to.

Catherine Michael 35:45

Yeah.

Anne Zachry 35:46

And I think that parents need to understand that too, that, you know, not everybody's the enemy, but you got to be paying real close attention these days. I mean, would you agree, I mean, the parents just need to be ...

Catherine Michael 35:56

I would.

Anne Zachry 35:56

... very discerning about who they can trust?

Catherine Michael 35:58

Well, absolutely. I think it's, again, it's being discerning. And it's also it's being educated as to what your child needs are, what you're asking for. And then also, you know, again, understanding that you are going to be the only one who really has your child's true best interests at heart. That's not to say that there aren't, you know, within school systems there are really dedicated teachers, dedicated administrators who are doing their very, very best to ensure children are being educated appropriately. But at the end of the day, and I don't necessarily like that expression, but it really does come down to, you are always going to know your child best. And it is going to be up to you to enforce these laws.

Anne Zachry 36:43

Right.

Catherine Michael 36:43

You know, you may have a great teacher one year and not another. And again, the school's interest isn't going to be the same as yours, right? Theirs is going to be on their budgeting, the union, you know, everything going on, your interest is going to be on "Is my child getting an appropriate program?"

Anne Zachry 36:51

Exactly. Right. And, I mean, in terms of checks and balances, that's why the parents are such an important part of the team, and are afforded so many rights and the protected right to meaningful parent participation and ...

Catherine Michael 37:11

Right!

Anne Zachry 37:12

... informed consent. I mean, all of those privileges and rights are there, because that's meant to be a check and balance against the rest of the system. And so, you know, if they if the parents are being bamboozled, and they are signing documents that they don't actually understand, then those enforceable rights are not being honored. And, you know, it's parents have to understand that they have recourse and they need to educate themselves as to what what that is.

Catherine Michael 37:36

Right.

Anne Zachry 37:36

And ask! I mean, my favorite thing is when parents say, "Okay, well, what are my rights under this circumstance?" and put it back on the school people ... ... to explain what their rights are, you know? And I think that that's a good strategy, because it is the burden of the school district to explain to parents what their rights are. They're supposed to be able to do that. And so you know, if they've put you the parent on the spot, the parents should feel comfortable saying, "Well, you know, what, I need to turn this around to put you on the spot for a minute, because I don't understand my right. And I'm not sure what I can do here." If you're savvy enough to know, in some states, you know, how the rules play out are different. In California, all you have to do is give 24 hour written notice, minimum, and you can audio record your child's IEP as a parent. You can't video record, but you can audio record, and the school district can't say no, but they also have to record as well so that there's a backup copy. And you know ...

Catherine Michael 37:42

Yes!

Anne Zachry 38:23

... just for authenticity reasons. So different states have different rules about audio recording, but, you know, I audio record every IEP meeting. One, because I have ADHD myself, and I don't want to miss anything. And so it's just a ... it's more of a safety net, because I very rarely have to go back and listen for ...

Catherine Michael 38:23

Yeah. Yeah.

Anne Zachry 38:38

... my own account. But just to know that I can make me less anxious during the meeting, but also because, you know ... ... it ends up getting introduced into evidence if we do have to go to a due process hearing. And it's been a very powerful tool.

Catherine Michael 38:44

Well, yeah. Right. And you can be clear as to what you asked for, why you asked for it, what the school's response was.

Anne Zachry 38:58

Exactly,

Catherine Michael 38:59

I think that can be extremely helpful.

Anne Zachry 39:01

And if, you know, when you go into an IEP meeting and you do have the, you know, you've legally made it okay to audio record - given written notice or whatever is required - and you're doing it lawfully, and then you go in and say, "I don't understand my rights under the circumstance, please explain them to me," and then the explanation they give you is either going to be a good one, or it's going to be a bad one. And if it's a bad one ... ... you know, the backup, you know, it's like, "Okay, well, I didn't get the right answer, but I got proof that they don't know what they're talking about. And I'm not crazy." And so it becomes evidence and I think the parents and, certainly as an advocate, when I go into the to the IEP process, I'm trying to solve the problem for real in the moment but I'm also making the record along the way in case it doesn't get resolved ...

Catherine Michael 39:24

Yeah. Right.

Anne Zachry 39:28

... and so that by the time we arrive at due process, the trail ... the evidence trail is clear. If when they say no their explanations are, you know, are whatever they are. And, going back to what you had said earlier about prior written notice one of the things that I've noticed out here is that I would say, a good third of the time when I get a prior written notice, in response to something I've submitted for a family, it won't make a lick of sense. It will say prior written notice according to 300.503, blah, blah, blah ...

Catherine Michael 40:14

Right.

Anne Zachry 40:14

... and have all that legalese at the top of it, and then they ... it's like a form and they'll populate the form with a bunch of gibberish that's just nonsense. It doesn't even explain why they said, "No." There's no real explanation. I'm like, "Okay, well go ahead and make the record that this is what you're sending out on a PWN form, and this is what you're going to represent as PWN," ... because substantively, it is embarrassing. And just because you put "PWN" at the top, and you cite the code that you're supposed to be following, the fact that you didn't is reflected the document itself. And it just, it blows my mind what people will put into writing because they think they're so clever. And it's like, "Okay." And so one of the things that I think is really valuable, that's helpful for parents to know, too, is that the regulations, it's 34 CFR section 300.320(a)(4) mandates the application of the peer reviewed research to the design and delivery of special education. When you have a bad IEP, you can say, "I want to understand the science that underpins this IEP. What peer reviewed research did you rely on to inform ..."

Catherine Michael 40:34

Yeah.

Anne Zachry 41:20

... you know, and of course, they don't have anything. And then when I ask for something specific, and I know, I can reasonably anticipate that they're going to balk at it, because it's something they've not done before. And it's going to require them to create something new. I will cite the science that backs up the request that I am making and say specifically, the regulations require you to apply the peer reviewed research to the degree that it's practicable. So if you're not going to do this, when you send your prior written notice, please explain what it is about the science that is not practicable.

Catherine Michael 41:20

Yeah. Yeah.

Anne Zachry 41:23

And then they're, they're stumped, because they don't know how to reply to that. And again, it goes back to the fact that they don't actually have access to the peer reviewed research. I'll go ahead and ...

Catherine Michael 42:02

Yeah.

Anne Zachry 42:02

... spend $70 on an article just to make my point, because I can ...

Catherine Michael 42:06

Yeah.

Anne Zachry 42:06

... you know, but I shouldn't have to do that. And that's the problem, is that we have this paywall between our educators and the science that would tell them what to do. And what is the politics behind that? Why is there a paywall between our educators and the research that will tell them how to teach our kids right? How is that not part of the public domain? Why do teachers not have access to that? And then, especially when you have a legal mandate that requires it, you know?

Catherine Michael 42:31

Oh yeah, and ...

Anne Zachry 42:32

It blows my mind.

Catherine Michael 42:34

It goes to the fact that, yeah, that because the laws are not enforced, right? We're just not seeing, for instance, when we look at health care, right, we have, you know, standards of care, best practices, we see checklists for everything with the doctors getting weekly reports on different new procedures, medications, right? We don't see that in education, because, again, there's so little penalty. We're not seeing teachers, sort of, you know, given a weekly mailer, you know, here are some of the programs that we're seeing coming out. Here are some of the best practices for working with a specific learning disability, you know, can you update off on how you're implementing this in your classroom? We don't see that because, again, there's so little importance level. Yeah, I really haven't felt the need to do that.

Anne Zachry 43:23

Yeah, well, and I'm thinking we're overdue for a reauthorization of the IDEA. And one of the things that I would like to see in there is beefing up of that enforcement arm because they're supposed to be what 10 year audits or something like that? That we have some kind of audit procedure in California that every once in a while somebody pulls the short straw and ends up getting audited. And of course, every time they go through there and examine all the IEPs, it's just a disaster, but then nothing ever gets fixed.

Catherine Michael 43:48

Right.

Anne Zachry 43:48

And so it doesn't change anything. It's like, Oh, they just documented that it's a disaster and moved on to the next one. And nothing got rectified. And we need to speak to that. I mean, is we're looking at all of these broken systems that are just cracked open and expose raw and wide for the whole world to see now that there's no covering up that our social programs are flawed, and that we need to overhaul them. And we need to bring them kicking and screaming into the 21st century with best practices and not just best practices in teaching, but in best practices in operational standards, and efficiency, and ... ... and security and privacy. And I know I worked in IT for a few years in these huge enterprise class computing environments like Walmart and Sanyo, and Volkswagen and all of these big huge computing environments, where you have these global wide area networks in these supply chain automated pieces. Back in the day, I'm talking like 25-30 years ago, this technology has been around for a long time. And if you look at the degrees of efficiency, and the cost savings and the reduction in overhead that is experienced by the industries that adopt all of this ISO standards and these automated supply chain things and and the internal and the way they automate their internal business operations, that California is starting to head in that direction with respect to individualized person centered planning. That there is a pilot program that's being developed. And I don't know when exactly it's going to be deployed. But I know Ventura County as part of it, where, whether you're Department of Rehab, or you're special ed, or you're county mental health, or you're welfare, or you're food stamps, or you're Medicaid, or whatever, it's one individualized plan, one caseworker, and your plan calls out to all the different funding sources. So the consumer is not having to chase after the funding, the funding is following the consumer through a single individualized plan, which is only common sense. But it was only achievable by marrying all of these computer systems together, that all of these disparate agencies were working autonomously with, and making them able to talk to each other. And so now we're getting to the point where we can stitch all of our our computing resources together to create this inter woven supply chain so that we can streamline how we deliver public services and do it more cost effectively. But then what that also means is that there are no there are no dark shadows to hide in where funds can be misappropriated. There will be such a stringent degree of accountability that the cronyism and the back scratching that has gone on will no longer be enabled. It won't be possible. And so that also will free up a lot of resources. And that is another aspect of increasing the efficiency and the fiscal responsibility of the system and the fiscal management of it. And so there are people who financially benefit from the system being antiquated and broken right now. And they don't want those kinds of changes coming in. Because there goes all of their opportunities to exploit. We're starting to see that public service is going through this transformation that private industry went through when this happened decades ago, as these technologies come in. And as the public pushes for a greater accountability. And as we repair and we overhaul our systems, we're going to be using the most modern tools we have. And so I think that we can be encouraged that the future does hold a lot of potential for a lot of corrective action, and a lot of prevention of things like this happening again in the future. But we are not there yet. And I think it takes ... it's going to take all of us pushing for those reforms. Because as much as each parent needs to advocate for their child on a child by child basis, and not be afraid of the due process mechanisms, if that's what it takes, you know, but not think that it's like, you know, the panacea, like it's going solve every problem, we also need to be pushing collectively as a community of people for reforms that will fix the system in a way where these are no longer the problems we have to deal with. And that we have to repair the broken system, not only on a kid by kid basis, but we also have to make it better than it was in the first place. And so that the next time catastrophe comes, we're better prepared to roll with it. I mean, sadly enough, this was long overdue, where the system needed to be confronted on its failures. But I think that parents can take hope that we're part of history right now we're part of fixing it, we're part of making this better for our kids with special needs, because all of its going to have to be reformed, we can't just tape it back together and go back to the way it was. So I think that ...

Catherine Michael 44:23

Yeah. Right.

Anne Zachry 44:54

... you know, there's, there's a lot of encouragement in what's going on here, there's a lot of opportunity, and we don't need to be so terrified of the changes that are coming. And we need to really embrace them, because it's our opportunity to make it better, I think. And it's going to take people like you and me going in there and one kid at a time, you know, saying, "No, this is ... these are the rules, and this is how they apply to this one child. And this is ..." " ... the individualized program, and and the individual person matters. You know, it's like every vote matters, every child matters. And whether that child has a disability or not, should not be a defining criteria of whether that individual matters or not, it shouldn't even be a question.

Catherine Michael 48:39

Right! Yeah.

Anne Zachry 48:55

And so I think that what we're doing is a very powerful thing. This is a very prescient area of civil rights law right now. And, you know, I think that, you know, regardless of how things play out with what other people do, what people like you and I are doing, we're on the right side of history with this, you know? We're enforcing civil rights. We're ...

Catherine Michael 49:13

Yeah.

Anne Zachry 49:13

... we're enforcing democracy. It's we are of the people, for the people by the people doing the work to make sure the people are protected. And I think that families need to understand that they're not alone, that there are folks like that, like us out there. And we're not that rare, you know, and the fact that you're licensed in multiple states goes to the fact that you recognize the degree to which there's not enough representation in some places, and that you're making it ...

Catherine Michael 49:36

Yeah.

Anne Zachry 49:36

... happen anyway. And so that's really powerful. I think the parents need to ... and I know that there are other attorneys who are licensed in multiple states as well. One of the attorneys I work with here in California is also licensed in Alaska. And let me tell you, going out into the middle of Alaska in the middle of nowhere ... ... and enforcing special ad law is not an easy thing to do. You're coming in on a like a bush plane and landing in, you know, somebody field, you know, and going to a one room ...

Catherine Michael 49:53

Yeah! Right.

Anne Zachry 50:04

... school house to say," Okay, this kid needs speech and language. How are you gonna make it happen?" and they still got to do it. And so, you know ...

Catherine Michael 50:09

Yeah.

Anne Zachry 50:09

... parents need to understand that even under the most bizarre and difficult circumstances it can be made to happen. There's always a way.

Catherine Michael 50:17

Right.

Anne Zachry 50:17

You know, and that it's not a hopeless situation. So I think that talking about this with you has been very enlightening and very encouraging. And I think that you've given us a lot of really good information. I do want to remind everybody that I'm going to include a link to your book with all of our, you know, the stuff below on the ... because what we'll do is we we do the podcast, but we also do a corresponding text only post ...

Catherine Michael 50:39

Great!

Anne Zachry 50:40

That way, all the links for everything are embedded in the transcript ...

Catherine Michael 50:44

Yeah.

Anne Zachry 50:44

... so we'll have all of that and then ...

Catherine Michael 50:47

Oh, that would be fantastic!

Anne Zachry 50:49

Yeah, and that way folks know how to get ahold of you. And this has been a really good discussion, I really appreciate you doing this with me.

Catherine Michael 50:56

You know, you've done a great job, as well, at trying to keep parents aware of their rights and helping them feel empowered. And I think that's the biggest thing that they need to know is that they have a lot of power in their hands. They just need to know that there are lots of us on their side trying to help them along the way.

Anne Zachry 51:13

Right. And it means the world to us to be able to do it. It's such an honor to be able to be part of making somebody's life something that you know that they're they're happy and they're fulfilled and they're not living in misery ...

Catherine Michael 51:26

Yes!

Anne Zachry 51:27

... or in crisis, you know, that that we can help people turn those kinds of corners with the kind of work that we do. I mean, it's an honorable thing that we do and I'm proud of what we do. So thank you, and thank you for doing this and for sharing your information with us and hopefully we'll get to do something like this with you again soon.

Catherine Michael 51:44

Yeah, I would love it. And thank you again, so much and for all that you do.

Fascist Trends in Special Education Non-Compliance

Fascist Trends in Special Education Non-Compliance

October 22, 2020

"Fascism" is a scary word that is far too often slung as an insult by people actively engaging in it who don't understand what it actually is. In today's post/podcast, I want to talk about what fascism actually is and how it shows up in all aspects of public agency functioning, but particularly how to recognize it in special education.

Unfortunately, these days, there are no better angels to appeal to within many public agencies, including public education agencies. It's not that the entire barrel of apples is spoiled, but enough of it is that the good apples either leave or go bad, too.

Bureaucrats accustomed to gaming the system for their own financial gain at the expense of children with special needs have historically engaged in some pretty unscrupulous behaviors over the years, but they just could not resist the opportunity to exploit the pandemic to advance their self-serving agendas. They've become experts at seizing upon opportunities to escape/avoid their job responsibilities while still collecting their government paychecks.

For far too many individuals, employment in public service has become a form of welfare fraud, only public agency employees get more free government money and perks in exchange for nothing than actual welfare recipients, who have to perform for the pennies on the dollar they receive by comparison. In California, for example, the average special education director is paid around $125K per year plus benefits with support administrators each being paid around $100K per year at taxpayer expense, regardless of whether their students receive educational benefits or not.

So, how does that relate to fascism? And why is it such an inflammatory word when it simply describes a frame of thought?

My theory is that either the people who find the terms "fascist" and "fascism" inflammatory are engaging in fascist behaviors and don't want to be called out on them, or they don't actually understand what fascism is and that they are actively engaged in it, thereby simply taking it as an insult. So, before we start talking about the fascists that have been employed in local government over the last 100 years, lets first arrive at an understanding of what these terms actually mean.

Before we can talk about what fascism is, we first need to talk about what our democracy is supposed to be. The most basic summary of American democracy is that it is a system governed by the rule of law, which is created by legislators elected to represent the interests of their constituents wherein the majority rules. Being ruled by laws of which no one is above, rather than a dictator or an authoritarian regime, is an essential element of a democracy.

Another essential element of a democracy is the belief that every person, regardless of what makes them unique, is afforded equal rights under the law. The fact that we need laws like the IDEA, Section 504, and the ADA make clear that, if left to their own devices, our public schools cannot be trusted to afford equal rights to their students with special needs. They have to be regulated or they can devolve into little fascist regimes of their own, depending on the communities in which they are located.

The last 29+ years of working in this field has convinced me that even those laws are not enough. Fascists who have been within the system since before these laws were passed made these laws necessary in the first place to ensure that democracy is afforded to every child in the public education system. One of the most historically significant pieces of litigation in IDEA history is PARC v. Pennsylvania, in which it was determined that denying children with disabilities equal access to education is unconstitutional

The fact that our federal government has been kidnapping and locking up babies coming to our borders through the the legal asylum-seeking process with their parents speaks to the degree to which the rights of any child in this country are not honored in general, much less when children have disabilities. Recent feedback from the American Association of Pediatrics has described this conduct as institutionalized "child abuse."  The American Federation of Teachers has called this conduct "crimes against humanity" (see https://youtu.be/3lMhuv3EXLI).

A government that disregards child welfare at all, much less to this degree is monstrous, hence today's discussion of fascism.

fascism
[ˈfaSHˌizəm]

 

 
NOUN
fascism (noun)
  1. an authoritarian and nationalistic right-wing system of government and social organization.
    synonyms:
    authoritarianism · totalitarianism · dictatorship · despotism · autocracy · absolute rule · Nazism · rightism · militarism · nationalism · xenophobia · racism · anti-Semitism · chauvinism · jingoism · isolationism · neo-fascism · neo-Nazism · corporativism · corporatism · Hitlerism · Francoism · Falangism
    antonyms:

Source:  https://www.bing.com/search?q=fascism

So, basically, anything undemocratic is fascism. Denying children with disabilities equal access to education has already been determined to be unconstitutional. If it's unconstitutional, is undemocratic. If it's undemocratic, it's fascist. Ergo, denying children with disabilities equal access to education is fascist.

 

Nazis are fascists. They do not believe that all people have equal rights and individuals with disabilities top their list of people who don't deserve to live, much less be given equal access to anything. All fascism includes biases against other humans on the bases of observable physical traits and/or behaviors.

 

In Hitler's Germany, it was the medical community that turned its back on individuals with disabilities, using science without ethics to justify mass killings and inhumane experimentation that were legitimized as "medical procedures." After Hitler purged the country of somewhere between 6,000 and 7,000 Jewish doctors, more than 7% of all remaining German medical doctors joined the Nazi party, a much higher percentage than in the general population at that time. By 1942, more than half of Germany's medical doctors and professionals with PhDs in related fields had joined the Nazi party.

 

Doctors working for Hitler's Nazi State rather than patient welfare then embarked upon many of the most unethical human experiments conducted in modern history. Using Mendelian genetics to guide their decision-making processes, they saw extermination as the correct solution for developmental disabilities like Autism and Down's Syndrome, which they regarded as genetic defects. This abandonment of the Hippocratic Oath to do no harm facilitated the Holocaust.

 

Murder and dismemberment in the name of science were visited upon every class of individuals captured by the Nazis, including people with disabilities, during the Holocaust. At the time, there were no international laws governing the behaviors of doctors. After the war, following the Nuremberg Trials, the Nuremberg Code was created in 1947, which established a set of research ethics for human experimentation.

 

In the early 1970s, when the special education and related civil rights laws were created, these ethical standards had long been established as a matter of law, but not necessarily common practice. The concept clearly did not generalize from the medical community to the education community, and much hell has been raised by school district officials and their lawyers about public education agencies not being liable for educational malpractice.

 

In my opinion, educational malpractice should be a criminal offense, complete with jail time and fines. Acts of unconstitutional conduct carried out under the color of public office cannot be tolerated in our democracy, whether we're talking about extrajudicial killings by police or denials of a Free and Appropriate Public Education (FAPE) as a result of malice and/or neglect.

 

These laws only became necessary, and were finally enacted in the 1970s, because the intrinsic educational and civil rights of children with disabilities were being denied all over the United States. Professional ethical standards alone were not enough to protect students with special needs. Just as with the Nazi doctors and the Nuremberg Code, laws had to be created after the fact to hold people accountable for their unethical treatment of individuals with disabilities, including school-aged children, here in the United States.

 

The laws that protect students with disabilities have always been difficult to enforce. In no small part, this is because the fascists already employed within the public education system who viewed children with disabilities as second class citizens continued to undermine these laws from within their public education agencies after these laws passed.

 

As a more visible example of what I'm talking about, consider one of the most famous "Karens" in our social awareness, Kim Davis of Broward County, Kentucky. While she got elected to serve the public, taking an oath to abide by the rule of law and fully knowing that the Constitution requires a separation of church and state, she refused to issue marriage licenses to same-sex couples following the landmark federal lawsuit Obergefell v. Hodges, because her religious beliefs require her to engage in discrimination on the basis of sexual orientation.

 

This is fascism. She denied equal Constitutional rights under the law, refused to abide by the rule of law, and abandoned the separation of church and state in favor of her religious beliefs, which clearly do not align with the Constitution or democracy in general. She then claimed that she was being persecuted for her religion when she was put in jail for refusing to do her government job according to the rule of law.

 

This kind of behavior has been going on since the laws that protect children with disabilities were passed in the 1970s through to today. And, now, we have the consequences of this pandemic impacting an already unconstitutionally dysfunctional system and exposing all of its flaws for the whole world to see.

 

The thing about hard times is it quickly reveals who the fascists are. They are the ones advocating for a return to the previous status quo in which they were the beneficiaries of inequities while actively denying the existence of the obvious inequities in our publicly funded systems.

 

It has become the norm that agencies created by our democratic rule of law and funded with taxpayer dollars routinely violate those laws and misappropriate those dollars at the expense of the very constituents these agencies were created and funded by the taxpayers to serve. This has to stop or democracy is truly dead in this country.

 

Such is often the case in special education, just as a matter of routine. But, now this pandemic has really shown everyone's true colors and there is little that is beautiful to behold. Just as peaceful protests against police brutality are being met with more police brutality, parents advocating for remedies to address their children's special needs are being met with more frequent and egregious violations now that the circumstances have changed in response to the pandemic.

 

Clearly, public safety is of paramount importance and I will never dispute that plain fact. But, public safety does not require the end of democracy, and I'm not talking about masks. Don't be an idiot; wash your hands, wear a damn mask, and socially distance yourself from other people.

 

Public safety is equal in importance to the constitutional rights of children with disabilities, not greater. These children have a protected legal right to equal access to public education. Further, special education students have a protected right to individualized educational program designed and delivered according to the peer-reviewed research (34 CFR Sec. 300.320(a)(4)).

 

Local government agencies performing according to their legal mandates is democracy in action. This pandemic is not so apocalyptical that certain classes of individuals suddenly cease to have legally protected rights. Fascism denies their rights, not a virus. Local education agencies refusing to perform according to their legal mandates is fascism in action.

 

Further, as I've previously reported here, none of the applicable federal laws have been waived as a result of the pandemic. States and local governments do not have the legal authority to waive the federal requirements; they can only describe with State law how the federal laws will be implemented within the State, and local education agencies can, at most, create policies about how they will individually comply with the State's implementation requirements of the federal regulations.

 

No local school district has the legal authority to refuse to abide by the laws, particularly those that regulate its purpose and existence. Nothing could be more undemocratic - more fascist - than that.

 

And, yet, here we are with our most vulnerable children languishing and regressing developmentally with every passing moment because a bunch of "tax-fattened hyenas," to quote the great Berke Breathed, saw fit to use the pandemic as an excuse to not expend public dollars on the members of the public for whom those dollars were intended, while continuing to collect six-figure annual salaries in exchange for nothing. This isn't just a civil rights issue. Just like police reform, it's a taxpayer issue.

 

What this pandemic has done, among other things, is expose every crack in every system throughout all our systems of governance. And, those cracks are the consequences of systemic non-compliance with regulatory mandates, as well as failures of those mandates to adequately describe courses of action that prevent non-compliance.

 

There is no proactive oversight of local education agency compliance with special education and related civil rights law; the burden falls to the shoulders of largely uninformed and/or unempowered parents to file complaints or litigate in order for the law to be enforced, which means it usually is not. It's a matter of "When the cat is away, the mice will play."

 

Without proactive oversight and enforcement, public agencies are adrift at sea, inventing their own ways of doing things while often unaware of their legal obligations. There is no real quality control in special education. There's just school district lawyers who jump in after the train has already wrecked to argue that it really didn't for ridiculous dollars per hour at taxpayer expense.

 

It's one thing to point this stuff out. It's another thing to do something about it. My thought process is that the IDEA is overdue for reauthorization. Presuming democracy is preserved with the upcoming election and we haven't descended into dictatorship, there is going to be a lot of public agency and legal reform coming down the pike for the next 10 years, at least.

 

Historians, anthropologists, sociologists, and psychologists will all be looking at the last four years and what led up to the current state of affairs in our nation under a microscope for the next 100 years, at least. The data they will be generating will inform vast improvements to our social systems and create systems for ongoing improvement as our society evolves and encounters new challenges, so long as the rest of us make sure that happens.

 

Right now, one of the most powerful things that parents of children with special needs can do is vote for the candidates they believe will take action to make sure that our publicly funded government agencies actually perform according to the regulatory requirements and achieve the purposes for which they exist, including the application of valid science to the delivery of services intended to benefit the public good. Maybe then we can finally become the democracy we're supposed to be.

Intro Trailer: Making Special Education Actually Work

Intro Trailer: Making Special Education Actually Work

September 10, 2020

This is our brief introductory trailer to our podcast, Making Special Education Actually Work

See our original posts with links to other content at https://kps4parents.org/blog.

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Public Education Version 2.0 and the Power of Stay-Put

Public Education Version 2.0 and the Power of Stay-Put

August 26, 2020
Photo Credit: Matthew Cipican

 

I'm pained to open with the platitude that these are unprecedented times. We all already know that and belaboring it for the purpose of a proper opening paragraph seems to belittle the magnitude of the moment.

 

The truth is that I've been having a hard time coming up with the right place to start the next conversation on this blog. I had developed a publishing schedule for Making Special Education Actually Work just before the pandemic hit and the schools in California, where we are headquartered, shut down.

 

All of that went out the window the moment the shutdown started and I've since published some bits about how to respond to the situation based on what was known at the time of each publication, but how things have continued to play out, or not, from one school district to the next has been nothing short of pandemonium. Some of my kids have done so much better with distance learning that they never want to leave their houses again. Others have regressed so greatly since the shutdown started that it's going to take years to undo the damage that has been done and catch them up to the degree its possible to do so.

 

Each kid, as a unique individual learner, has experienced the shutdown differently, but all of them are experiencing the same procedural violation at the hands of their Local Education Agencies (LEAs): Failure to implement the Individualized Education Program (IEP) as written. Or, framed in the language of the regulations, failure of the education rendered to conform with each student's respective IEP.

 

In California, the State has already assumed that compensatory remedy will be due to most, if not all, of its special education students because of the shutdown. None of the laws changed. There are permissible, though narrow caveats, in the law that provide for extenuating circumstances.

 

While the implementing regulations of the Individuals with Disabilities Education Act (IDEA) mandate the application of evidence-based science to the design and delivery of special education on a child-by-child basis, it is only to the degree that the application of the science is practicable. LEAs bear the burden of proving that the delivery of a special education service is not practicable before denying it and giving notice of such via a Prior Written Notice (PWN).

 

The real dispute, it seems, is over what is realistically practicable given the circumstances, but that first requires us to operationally define what we mean by practicable, and that's a problem. There is no legal authority or professional standard for what defines "practicable" within the context of 34 CFR Sec. 300.320(a)(4).

 

I know this because the operational definition of "practicable" was one of the burning questions I had when I went back to graduate school in 2011 and had answered by the time I graduated in 2013. The truth is that there is no operational definition in the scientific literature or the case law as to what is meant by the term, "practicable."

 

Even Perry Zirkel was stymied by this question and ultimately concluded that most courts interpreted the definition of "practicability" as something to be left to the discretion of local education agencies - meaning, really, top administrators and board members, who are all politicians - get to decide what is and is not practicable as a matter of local governance. In those LEAs, "practicable" just means "if the LEA wants to."

 

This, of course, neglects the fact that 34 CFR Secs. 300.320-300.324 vests the authority in IEP teams, which include the parents, to make determinations as to what is educationally necessary and, therefore, the obligation of the LEA to provide to each given special education student. If that authority is vested in the IEP team, then no one from the LEA on the IEP team should have to go get the approval or permission of a superior outside of the IEP meeting, particularly when that superior has no direct knowledge of the student's unique needs or the IEP team's discussions about them. Whether or not something is practicable should be an IEP team decision, not an internal policy issue, yet the research that has been done suggests its a call to be made by top administrators, not individual IEP teams that include the students' parents.

 

Further, 34 CFR Sec. 300.321(a)(4)(iii) mandates that each IEP team include at least one LEA representative who is "knowledgeable about the availability of resources of the public agency." Usually, this is an upper-level administrator from the main office who not only knows what resources the LEA has, but has also been granted the authority to commit the LEA's resources to a student's IEP. This can come in the form of committing existing resources to the IEP as well as procuring those materials and services that are not already available through the LEA.

 

I've been in IEP meetings during which such an administrator fills out and submits online requisitions for use of existing assets, as well as online purchases and purchase orders through their LEA's internal automated workflow system, during IEP meetings as the team agrees to things that are needed but not already on hand. It's not that uncommon and it goes a long way towards doing it right the first time.

 

Again, there should be no going to someone else outside of the IEP process for permission or approval. In one fairly recent meeting I attended, the school district's administrator on the IEP team shared her screen with the rest of us so we could all look at our options on Amazon together as an IEP team and make the purchasing decision right there. Then, "click," it was ordered and the student had his accommodations the next day. Easy peasy.

 

The law does not provide for the IEP team's authority to be displaced by or shifted to an uninvolved third party. If no one on the IEP team from the LEA knows whether the LEA already has the necessary resources available or will need to purchase stuff it doesn't already have, it's not a real IEP team.

 

Because these decisions are IEP team decisions, and not the decisions of removed administrators who are motivated by factors other than the individual needs of each special education student, deferring to top administrators to determine what is or is not "practicable," opens the door for a litany of procedural and substantive errors that will quickly create due process claims against the LEA. It behooves no one for LEAs to play this game, but plenty of them do.

 

Competent people have no motivation to do sketchy stuff and lie about it, so when you encounter this kind of behavior, it's because you're dealing with people who don't know what else to do and/or are crooked through and through. What we are all now going through as a nation under the current presidential administration is a reflection of the crap I've been dealing with for nearly 30 years in special education local governance. None of this is new to me, it's just now happening on a national scale. Maybe everybody outside of the special education community will finally believe me about this crap, now.

 

More often than not, what is deemed by an LEA as not being practicable is likely better framed as being something for which the LEA is simply not willing to expend the necessary funds. While it is unlawful under the IDEA to use fiscal considerations to determine the contents of a student's IEP, it happens all the time. The language of IEPs are often deliberately kept vague and weak so that they are difficult to enforce or so that it is otherwise difficult to say that the education rendered failed to conform with the IEP.

 

I'm seeing this happen in a way with 1:1 behavioral aide support services, right now. I've got families barely holding it together, stuck at home with their severely impacted children who have serious behavioral challenges arising from their disabilities. They'd give anything for in-home 1:1 behavioral services, right now.

 

And, that's the thing: they should already be getting it under the existing laws. On August 24, 2020, (the day before this post), the California Office of Administrative Hearings, which tries special education due process cases within the State, issued an order making clear that students who require in-person services in order to access and benefit from their educations, including during distance learning, must receive such services according to medically acceptable safety procedures regarding COVID-19.

 

Behavioral services are medically and educationally necessary, the California Department of Education (CDE) has advised that in-home services during the shutdown may be necessary in order for LEAs to comply with their IDEA requirements under the law, and, now, OAH has ordered a school district to provide in-home services as a matter of stay-put during the shutdown. This is huge! This settles the argument once and for all.

 

I know of at least one student who is currently getting in-home behavioral services through his health insurance, which is the only reason he was able to participate in distance learning during the last half of the Spring 2020 semester. The same agency currently serving this student through his health insurance had previously served him as a Non-Public Agency (NPA) under his IEP in the public school setting. Same people, different funding source, different willingness to send personnel to his house for in-home, 1:1 behavioral aide services.

 

His school district has offered to provide an aide online during distance learning, like somehow that's going to produce the same educationally substantive outcome of getting him to engage in the online instruction in the first place and remain engaged throughout each lesson. The boy needs an in-person 1:1 aide in order to access the instruction at all. How is he supposed to access online aide support when he needs in-person aide support to access any kind of online services?

 

And, he's one of many students on my caseload with similar needs; he's just the only one I know of currently living the experience of having the in-person 1:1 aide support during shutdown and being met with educational success because of it. Everybody else is asserting the need for it, but not getting it, and due process cases are popping up everywhere now, including among my students for whom I never thought litigation would realistically come to fruition.

 

The legal authorities favor special education students on this issue, and school districts in California are now having to weigh the risk of litigation from unionized employees against the risk of litigation from parents of students with special education needs as this whole debacle clatters forward in the absence of unified leadership across the State's public education system. Many districts are still clinging to outdated paint-by-numbers procedures and fill-in-the-blank on standardized documents and forms, aiming for procedural compliance without thought to the substantive considerations ... like providing 1:1 aide support via Zoom to a student who needs in-person support in order to access instruction via Zoom in the first place.

 

It's like they think conforming with the IEP in any way complies with procedure, even if it entirely fails to meet the instructional purpose it's supposed to serve from a substantive standpoint. The real tragedy, here, is that these paint-by-numbers bureaucrats don't understand how to act according to the substantive needs of the student; they just want to know which form they are supposed to use.

 

This significant subset of the public workforce may have memorized many of the procedures for the job and can usually find the right form to use, but don't ask them to actually engage in deductive reasoning, creative problem-solving, troubleshooting, or solution-seeking. They simply can't. They don't think that way. And, the human resources department didn't recruit for people who can think for themselves on purpose.

 

The middle management jobs require drones who respond to authoritarian hierarchies of leadership and do not question the orders they are given, if the system is going to function according to its bigoted design. And, that is how it has been functioning for the last few decades following the passage of federal civil rights laws, including disability-related laws that first started passing in the early 1970s, up through the Americans with Disabilities Act (ADA) in 1990.

 

Those laws were necessary because the public education system, among others, was actively discriminating against children with disabilities, including denying them even enrollment. The public education system was already discriminating against students with disabilities or the laws would not have become necessary.

 

When the laws passed and the public education system was ordered to comply, those individuals who had been philosophically opposed to accommodating learners with disabilities were still employed by the public education system, by and large. They didn't all leave. Many stayed and have been sabotaging it from within this entire time. And, they recruit people who are too incompetent to realize they're being used and/or too afraid of losing their jobs to dare question what is really going on, so they can maintain positions of authority and control according to their own fascist belief systems rather than their mandates under the law.

 

One of the most powerful things to come out of the current state of affairs in this country is the cracks in the publicly funded systems that people like me have been squawking about to no avail for decades, but which can no longer be denied by the masses. As we move forward to rebuild a better America in the wake of the destruction currently happening all around us perpetrated by people with way more authority than they can responsibly handle, it is painfully obvious that we have a disturbingly large swath of the adult population that "pass" as competent adults but who actually are not.

 

These individuals occupy a great many niches of society, including in the public sector. Their approach to leadership, when they are allowed into offices that require more of them than what they possess, is destructive. It can ruin a child's future through educational malpractice at the local level or fan the flames of a global pandemic and domestic terrorism at the national level until it ravages the entire nation.

 

These individuals place cronyism over science because they are not smart enough for the science and, frankly, they're not smart enough to cover the tracks of their cronyism. They have simply had the power of money behind them and those without money have had to tolerate their malarkey as a matter of survival. But, now that tolerance doesn't even achieve survival for those without, so they aren't motivated to tolerate the malarkey anymore. Look out Marie; here comes the guillotine.

 

Society has finally had its fill of incompetent bullies acting like they are better than the rest of us to the detriment of us all and for no other reason than to stroke their own egos and line their own pockets. We have become aware that they are too dimwitted to realize the harm in what they are doing and too selfish to have any sense of compassion or empathy for the people they hurt.

 

These individuals are emotionally still children, trapped in their bodies for decades without maturing, thinking their chronological age and changing external appearance are all of what earns them respect as adults, and often unable to fully engage in adult-level problem-solving and critical thinking tasks, but able to develop academic and/or professional skills that can otherwise allow them to "pass" as competent.

 

These are high-functioning individuals with significant impairments in judgment who engage in intuitive rather than deductive reasoning. Intuitive reasoning is age-typical in young children. It's indicative of an impairment in adulthood. It co-occurs with egocentric thought, in which the individual is incapable of engaging in perspective-taking and appreciating the experiences and viewpoints of others.

 

An egocentric person is the center of their own personal universe. Everyone else is just an object in orbit around them who may or may not serve a useful purpose at times and is only accessed when the egocentric person thinks an individual is useful.

 

The egocentric person recognizes his/her/their own agency - that is, the ability to act upon the world to produce intentional outcomes - but they struggle to appreciate the agency of others. They tend to only perceive other people relative to their own thoughts and feelings and fail to consider that other people have their own thoughts and feelings that are each different from one person to the next.

 

Egocentric people tend to assume that whatever they are thinking and feeling is what everybody else is also thinking and feeling, and/or that everyone else's decisions are made with the egocentric person in mind. The egocentric person struggles with perspective-taking, which requires that they first understand the agency of others and that everyone is preoccupied with their own thoughts and feelings, not making the egocentric person the focus of their every decision.

 

Errors of omission and thoughtless, inconsiderate acts by others are perceived by egocentric people as deliberate efforts to cause harm or offense to the egocentric person. Because egocentric people assume that whatever they want and need is automatically understood by everyone else, which is because they assume everyone else is thinking and feeling the same things they are, if everyone else fails to deliver according to an egocentric person's expectations, the egocentric person attempts to force the desired response to present itself.

 

Because they lack the emotional intelligence to navigate many types of complex situations involving other people, whatever cognitive abilities they may actually have don't do them much good. They make errors in judgment when it comes to how they interact with other people; how well they can do math, design a building, or research historical biographies just doesn't matter in that moment.

 

When people like this become employed within the public sector and have to make policy decisions, they are incapable of putting themselves into the shoes of their constituents and engaging in legitimate representation and advocacy for services that meet the of needs of those they have been hired to serve. Because of their egocentrism, the job is a means to a self-serving end. Also because of their social/emotional developmental impairments, their ability to actually engage in adult-level problem-solving as required by their positions is equally limited.

 

Because they can't actually meet the performance requirements of the job, they find ways to socially engineer their ways to the top, including taking credit for the accomplishments of their subordinates while sycophantically leeching onto the coattails of those who have grifted their way up the food chain before them. They all keep each other's dirty little secrets about not actually being able to do their jobs and abusing their positions of authority to the benefit of the highest bidder, be the currency money, power, or both.

 

Eventually, an emperor emerges from the mix, some traveling salesmen weave him a in invisible robe from gold thread that, allegedly, can only be seen by competent people, and, as he's parading down the street in this magical garment, a child points out that he's actually just a naked guy played for a fool by a couple of con artists who have since skipped town with a fortune in gold thread. I'm paraphrasing the parable, here, of course.

 

The problem is that a public institution can become such a hopelessly dysfunctional system that it's really better to take it down the way the Attorney General (AG) of the State of New York is trying to take down the National Rifle Association (NRA), right now. When the corruption runs as deep in a public agency as New York's AG asserts is the case with the NRA, it's better to scrap everything and start over with all new people and a new method of operating that conforms to the appropriate standards.

 

Sometimes the well becomes so hopelessly poisoned that it's just time to dig a new well. I think America is at that crossroad in a very broad and general sense. We are at the tipping point of a crisis of conscience.

 

Who do we want to be? The cronyistic incompetents who stab each other in the back over superficial slights, engage in power grabs like reality TV show contestants, and are utterly detached from and incapable of living up to the responsibilities of the job? Or, the hard-working, methodical, responsible adults who understand and are humbled by the responsibilities before us, know that our efforts to do things right will pay off in the long run but we're going to have to struggle in the short term to clean up the messes we've collectively made?

 

So many people who came before us fought and died so that we could have the freedoms and legal tools to save our democracy, right now. I have been fighting this fight since the 1990s, but I have also lived the reason for this fight as a twice exceptional student who was never identified for any kind of services or accommodations for my processing disorder when I was a K-12 student. During the 1970s and 1980s, when Section 504 and what is now known as the IDEA were new, they were not being implemented by the overwhelming majority of public schools in the United States at the time, and certainly not in Louisiana and Arkansas, where I grew up.

 

I was briefly put on Ritalin in my early elementary years. But, who wasn't, back then? I was later diagnosed with "minimal brain dysfunction" in junior high as the result of a quest for a reason why I couldn't walk in heels (there was great social pressure on females in the Deep South at the time to wear pumps with everything, including jeans). I had to do physical therapy to stretch out my hamstrings and heel cords from all the years of toe-walking I'd done (which, by the way, toe-walking can be a neurological soft sign of autism).

 

My vestibular sense and my proprioception were jacked. My reflexes were/are abnormal. I can distinctly remember having visual processing issues that made it such that my brain couldn't piece together what I was looking at to make a picture of the world that made any sense. Abstract shapes would slowly resolve into a singular whole that then made sense, but I can remember having to wait for that visual resolution to occur at the brain level before I could start understanding what was happening around me. My eyes could see, but there was lag time between when I looked at something unfamiliar and my brain was able to put the shapes together in a cohesive way that I could understand. My last recollection of that happening to me was around 8 or 9 years old. I can remember it happening a lot prior to then.

 

I also had very bad vision, so it could have been that my brain didn't get the requisite practice at piecing together the parts of what I saw into a cohesive whole until I got glasses and could actually see everything clearly. I don't have ADHD; I have ADH - Oooh, shiny! I also have mild hearing loss due to a condition that runs in my family. My dad and many of my cousins have hearing aids. I haven't gotten to that point, yet, but it's coming, eventually and that's okay. Worse things could happen; hearing aides don't ruffle my feathers in the least. I'm just not spending the money until I have to.

 

The point is that I had a mixed bag of processing issues as a kid that was somewhat offset by my processing speed, but not enough to make me academically successful. I know what it's like to have my potential wasted by people who don't understand my needs as a developing child. The adults in my life cared, but were at a loss as to what to do because the science just wasn't that good or well known at the time, and certainly not where I grew up. They couldn't begin to abide by the relatively new civil rights and special education regulations; the science behind it was way beyond them. They didn't know any of that.

 

But, that was a long time ago. We don't have those same excuses, now. Adults like me who used to be those struggling students decades ago are everywhere now in public education advocacy, rights, and reform efforts. We know first hand why it's so important for the public education system to engage in person-centered planning for every student, not just those identified as having something "wrong" with them.

 

We also understand why it is so important to identify those who do have exceptional needs, and meet those needs, so these students have equal access to learning as that given to their peers without exceptional needs. We understand why it is so important to address the disabilities of our twice-exceptional students while simultaneously nurturing their gifts. Last year, Kodi Lee brought the point home to the lay public, which had not had any similar prior exposure to twice-exceptional people, and certainly not one so impactful.

 

No matter how impaired someone may present, the public learned to never assume that such a person's presentation accurately captures all of who that person is. Kodi humbles people in the kindest, most innocent, and inadvertent way, which is what makes him so powerful. He isn't trying to ram a message down anyone's throat. His existence is the message; he lives it for the rest of us to observe and copy.

 

Kodi is a powerful living metaphor to not judge a book by its cover, which has been a recurring lesson born over the last few years of these talent competitions happening around the globe that he simply drove home with an exclamation point. The cultural norms surrounding public opinion of people with disabilities have tipped strongly in the direction of inclusion by the display of capability and superior abilities by contestants with a wide variety of impairments in these competitions.

 

Leave it to the entertainment industry to be the agent of change. If we live in a shallow culture in which life imitates art, then art should model appropriate behavior, such as inclusion. I'll say this for Simon Cowell: he made inclusion marketable and profitable by allowing talented people to be defined by their acomplishments rather than their limitations. At the end of the video clip of Kodi Lee's first audition for America's Got Talent, after winning the Golden Buzzer, the judge who had awarded it to him, Gabrielle Union, told him straight to his face, "You just changed the world!" and she wasn't lying.

 

This is part of the brave new world that is to come as we rebuild our public education system to meet the needs of today's students in the 21st Century, including the flexibility to rapidly adapt to changing lifestyles, national emergencies, job market demands, and advancing technologies. All of these things will continue to collectively alter how we teach and manage the teaching process according to best practices, and continue to engage in ongoing research to continually improve those processes and their supporting administrative procedures.

 

Which circles us back around to the issue of stay-put and the recent stay-put order from OAH, linked to above. While the order is limited to California, it is germane to a federal district court case being tried in the Central District of California in which the plaintiffs, which include parents of children with extreme special needs who are not getting the 1:1 in-person services required by their IEPs, are suing the State over school shutdowns and attempting to get a federal court injunction that allows school districts to decide whether to reopen or not.

 

Not surprisingly, the case originates out of Orange County, California, which has a large extreme right population relative to the rest of the State and is, not coincidentally, also a COVID-19 hotspot within the State. COVID deniers abound and are having a deleterious impact on local governing decisions as they impact public health. For a lawsuit disputing the legality of school shutdowns over a legitimate public health crisis to emerge from this climate is not exactly a shock.

 

Not also surprising is the rampant special education violations and related scandals that have plagued Orange County for decades. Egocentrism is confused with personal civil liberties, and the welfare of others is beyond comprehension, resulting in extremist beliefs and behaviors. It is not shocking to me that school board members who have been actively violating special education and civil rights law convinced a bunch of parents who they were actively screwing over to join them in a federal lawsuit against the State to force the schools to reopen in order for their kids to access services.

 

If you read the plaintiffs' complaint compared to the legal authorities I've already cited previously in this post, it's plainly evident that these people don't know what they are doing. I spoke with the State's lead attorney on the case last week and shared the arguments I've now presented in this post with her.

 

While the judge has yet to decide the case, and, in fact, today is the filing deadline on briefs regarding the exhaustion requirements under the IDEA and the California Department of Justice (CADOJ) is on it, the nature of the questions the judge asked the parties to brief in his last minute order inclines me to believe that once those questions have been answered, we'll have a federal district court decision on the matter that will apply to every school district in California.

 

The CADOJ's arguments must naturally rely in part on the arguments I've asserted herein. The federal district court judge will likely defer to the OAH stay-put order that was just issued yesterday, given that OAH has the authority to try special education cases and is, therefore, authoritative on how the law applies to the rights of special education students, special education students must exhaust their due process rights through OAH before filing in federal court (generally speaking), and it is proper for the federal court to defer to OAH's judgment, which will mirror the arguments I've been asserting this whole time and which CADOJ will also be asserting. They are aware of yesterday's stay-put order, as well, just in time to meet their filing deadline.

 

Things are about to get a whole lot more okay for a lot of kids on my caseload. Whether their LEAs capitulate and provide the services or we end up going to hearing with the right kinds of legal authorities backing us up, either way, the rule of law is working slowly but surely and the application of the peer-reviewed research to the delivery of special education, now that reform is unavoidable, is about to enjoy a new era of advancement in the education of all students, not just our students with the most demanding needs.

 

It's always darkest before the dawn. An extinction burst of escalated behaviors always comes before a maladaptive behavior finally becomes extinct. We are riding out one heck of an extinction burst on the part of incompetent people whose cronyism and transactional relationships have defined their realities and ours, and who cannot function in a more advanced, emotionally intelligent society that is moving increasingly towards meritocracy in which actual ability and earned achievements promote social status. Hucksterism has become obsolete. The Patriarchy is now rightly seen as a pack of egocentric ghoulish caricatures, not as dignified elites worthy of worship by everyone else.

 

These moments will pass and we will have the power to make something new and better once we get to the other side. This latest stay-put order and, hopefully, the upcoming federal court decision, are incredible first steps in the right direction.

Example of a Request for a Better IEP Offer During the COVID-19 School Closures

Example of a Request for a Better IEP Offer During the COVID-19 School Closures

May 11, 2020

Photo Credit: Mike Cohen

 

I know that everyone in special education is scrambling to try and make things work during these unprecedented times, but a lot of parents and advocates are struggling to find the language necessary to move things in the right direction and keep entire IEP teams from coming apart at the seams. Our kids who require expert behavioral interventions appear to be losing the most ground.

 

I want to speak to the families and advocates working with students who have behavioral needs by sharing the language of a communication that I recently had to submit on behalf of one of our families. It's altered, of course, to protect the identity of the student, but I think a lot of parents and advocates may be able to recycle this language to fit their own situations.

 

Because so many families are in this same boat without an oar, we all need to share resources with each other so that we can be effective IEP team members. It shouldn't be on us to keep school district people from spinning out, but humans are humans regardless of who employs them and, particularly if you're a parent dealing with this on behalf of your kid, it in the best interests of your child to be the anchor that keeps the rest of the IEP team from drifting off course.

 

Just to put things into perspective, this student is in a Special Day Class (SDC) with embedded mental health and behavioral supports, including a Positive Behavioral Intervention Plan (PBIP) in his IEP that identifies his target behaviors as: Refusing to follow staff directions by either not responding, putting his head down, making statements such as "this is stupid," "why do I have to do this?" or engaging in a different activity. Not surprisingly, this is what he is now doing at home during his school closure instead of participating in the online instruction.

 

Below is a copy of the email exchange that includes the language you can hopefully repurpose if you are having to argue similar points on behalf of your own children or clients. The first bit is an email that the parent and I received from the student's special education teacher/case manager. The second bit is the reply I sent, which has now been forwarded to the district's main office and we're awaiting Prior Written Notice (PWN).

 

For more information about PWN, please see the ad-free early release of our informative Quick Fix video on Patreon by clicking here. This video will be released on YouTube for free, but with ads, in a couple of weeks and run for 30 days on YouTube before retiring to our Quick Fix Video Archive on Patreon, but for the $2.99 monthly pledge to our Quick Fix Video Archive on Patreon, you have immediate and indefinite ad-free access to that information plus all of our other Quick Fix Videos.

 

Because we've already published content on PWN, I'm not going to belabor it, here. I'm just going to get right into these emails and the language I hope at least some of you are able to repurpose and tweak to your own situations.

 


So, here is the email that I and the parent received:

 

Good morning,

I hope ALL is well and you guys are staying safe and well.

I was hoping you could help me with [Student's] participation in our weekly Google Meets. He declined the meeting again for tomorrow  

I really need to speak with him at least once a week.

Thank you VERY much for your help.

Be Well,
[Case Manager]

 


Now, here is what I wrote in response:

 

[Case Manager],

We would appreciate the District's help with this, as well.  Behavior modification is supposed to be embedded in [Student's] specialized instruction as part of his placement, but that component is not being implemented in the home and no one who lives there is specifically trained, credentialed, or certified in the necessary expert disciplines.  The District is responsible for FAPE, even now.  The fact that [Student] is not receiving the behavioral interventions necessary to afford him equal access to education as that given to his peers without disabilities is directly reflected by his refusal behaviors in the absence of his social/emotional and behavioral supports from his SDC.

The parent is not in any position to implement an expert level of positive behavioral interventions to facilitate [Student's] participation on her own.  She is relying on the public agency funded by the taxpayers to deliver these interventions under a federal mandate to provide him with a FAPE, that being the District, to come up with these solutions.  The parent requests an offer of appropriate behavioral interventions as part of a prospective offer of FAPE that addresses these immediate concerns or an offer of compensatory services that will be provided to remediate this behavioral and academic regression once school starts back in the Fall and the campuses are re-opened.

We understand that these are difficult times, but regardless of the difficulties, [Student] still has a legal right to a FAPE and he isn't getting it.  You asking his mother for help to facilitate his compliance with online learning given his unique circumstances inclines us to worry that the District doesn't know what to do and is grasping at straws.  Any IEP team member that actually understands the complexity of [Student's] needs would already know that [Student] requires supports beyond what an average lay person would know to provide.

While [Student's] mother absolutely wants to be part of the solution, she cannot be expected to deliver any kind of home instruction on par with what [Student] was previously receiving in the SDC, which was a step down in restrictiveness from his previous placement, and in which he had been participating for only a few months before the campuses all shut down.  There is an overtly apparent need for an increased level of support to [Student] in the immediate present to avert significant behavioral and academic regression during the shut-down.  

The lack of an appropriate response from the District right now will create a significant compensatory education claim that [Student's] family will have to pursue in order to make him as whole as possible.  We're not looking for a lawsuit, but if that is the only procedural mechanism the family has left to protect [Student], I will refer them to a qualified attorney.  It is the District's burden to offer and render a FAPE.  We remain ready to collaborate with the rest of the IEP team to come up with an appropriate solution, here, and avoid the need to involve attorneys.  We would much rather sort this out than have to litigate.  We want to see [Student] appropriately served as quickly as possible.

[Student's] family will participate in IEP implementation during the shut-down to the degree they are able, with the full understanding that they do not have the training, experience, or professional expertise needed to competently support [Student] behaviorally and academically at home on their own.  If his mother tells you that something that needs to be done is something they cannot do, they will expect the District to propose viable solutions to each such task.  

[Student] continues to require the expert services from which he was previously benefitting in the SDC and the effects of the absence of those expert services is apparent to all of us.  We understand that these difficult times call for out-of-the-box thinking.  So long as there is a viable plan for how to deal with this situation in place, whether it's through the immediate increase and/or modification of how current IEP services are provided, a plan for compensatory services upon the campus reopening, or a hybrid combination of these two options, the family can trust that everything will come out okay in the end, but we can't leave things so open-ended.  That lack of predictability is part of what is causing [Student] to experience increased school-related anxiety and avoidance behaviors.  

The District has a legal obligation to make a firm offer of FAPE based on [Student's] present levels of performance in the immediate moment, as well as plan ahead for the next 12 months via the IEP process.  We're not asking for anything other than what the regulations already promise and we're willing to be creative about how we achieve that as an IEP team given the unique circumstances.  We await the District's PWN in response to the request made herein.

Kindest regards,
Anne M. Zachry, M.A. Ed. Psych.


 

So, there you have it. What I see in all of this is a case manager who hasn't been given the tools and authority to do what needs to be done. I'm not frustrated with the case manager. I feel bad for him because he's being expected to somehow pull this off without the support of his employer.

 

I wish I had the PWN to include, here, because I think it would be equally informative. That may become a future post topic. In the meantime, if you think you can recycle this language to create your own request letter to address similar issues with your own children or clients, please feel free. It isn't the work product of an attorney and I'm not putting this out there as formal legal advice. It's just a tool that might be useful to some people, but if it helps even one family, it's worth sharing.

USDOE Preserves the IDEA

USDOE Preserves the IDEA

May 1, 2020

 

It’s now official: There will be no waivers of the Individuals with Disabilities Education Act (IDEA) during any time of sheltering-in-place and resultant school closures. Thanks to the efforts of many people, most notably the Council of Parent Advocates and Attorneys (COPAA), a national non-profit professional and volunteer organization of advocates and attorneys, working with the United States Department of Education, (USDOE), Secretary Betsy De Vos determined that no part of the IDEA should be waived at this time.

 

This is important because it’s no secret that most students, just in general, are going to regress in their learning because of the sudden school closures, putting them behind relative to the grade-level standards. Special education students are even more vulnerable to regression, but only special education students have a legal right to assert demands for compensatory education to make up for regression.

 

This suddenly creates inequity in favor of the special education students with respect to compensatory education, when is an unexpected turnabout. It's usually the other way around that the general education students have advantages over the special education students. What was originally meant to level the playing field for kids with special needs has now become an unfair advantage over the general education students with no enforceable right to compensatory education. That's something that needs to be addressed and rectified.

 

The degree to which a court may reduce the amount of compensatory education due to a special education student in light of the need for sheltering in place remains to be seen. In my lay opinion, there is an obvious need for some leniency. None of this was within any public education agency’s control and its commendable how so many educators stepped up their game during this crisis and continue to give us their best.

 

There is no way I could possibly diminish from that. It moves me in my heart and gives me faith that we can all somehow pull it together for all of our students, regardless of how each of them learns, if we all just collectively put forth the effort.

 

There is also the matter of the “snapshot rule.” In special education litigation, it is commonly known among attorneys and paralegals that an IEP cannot be judged with the benefit of hindsight. It has to be judged according to what was known or should have been known during the time at issue. This requires the trier of fact to look at the period at issue as a “snapshot” of what was known or should have been known during that time.

 

Given the unprecedented unique nature of the sudden school closures, and the pre-existing lack of a contingency plan in the event of something like it, what was known or should have been known by public school officials will require an unprecedented degree of scrutiny. This is because unforgivable errors are being, and will continue to be, hidden among the forgivable ones, and a few bad apples are already seeking to exploit the situation to get away with things for which they would otherwise normally be more likely to get caught.

 

So, how the law will be applied to the facts in the months and years to come ahead is something only time will tell. Given how conservative our Supreme Court has become, there is still cause for concern as to how the law will be enforced. The innovations that are happening around the country in response to campus closures are inspiring and shaping our understanding of what is realistically practicable.

 

This is important because the federal regulations require the public schools to deliver special education according to the peer-reviewed science to the degree that it is practicable to do so. Those who are innovating in public education, right now, are establishing the education community’s professional standards with respect to practicability in many regards.

 

In the effort to determine what was reasonable, given what was known or should have been known in light of the evidence, the innovations being reported around the country by clever educators should have shown up in the research of any educator searching the internet for solutions. This goes to what should have been known.

 

I am the last person to advocate for litigation unless there is just no other way to resolve the problem. I’m thinking about these things from a preventative standpoint, considering the consequences of what will happen if IEP teams don’t work together to figure things out, now. I am trying to think ahead and consider what can be done to prevent worst-case scenarios.

 

My motivation is envisioning what the worst-case scenarios would look like. That prompts me to consider what would have to go wrong to arrive at those outcomes, then backwards-chain the process to basically reverse engineer it and come up with preventative strategies that will hopefully steer things in a better direction. So, I don’t want to be all doom and gloom, here.

 

I am happy to celebrate the champions in all of this, but we still have a lot of work to do. Everything we do right now to prevent regression will be heartache we spare everyone in the near future when school starts back up, again, in the Fall. I want to encourage everyone impacted by school closures to do everything they can to prevent educational regression in their students.

 

The generational Cohort Effect of this pandemic will be something that affects our species for generations to come. How history remembers our responses to these sudden changes in our world depends on our collective decisions in the present.

 

We're going to have children who have lived in trauma for one reason or another throughout this period who will be re-entering our school system in need of supports that they would have not otherwise needed. Our kids already in the special education system are going to have more demanding needs upon their return. The more wisdom we can exercise today, the less regret we will have tomorrow.

Regression, Compensatory Education, & Quarantine

Regression, Compensatory Education, & Quarantine

April 14, 2020

 

Photo Credit: Dan Gaken

 

One of the many populations of individuals directly negatively impacted by the current quarantine is the special education population. Among those students are those whose impairments are significant enough that any significant disruption in their school routines will cause them to regress, which is to lose learning they had previously acquired.

 

Regression happens for students such as these during lengthy breaks, like summer, which is why we give them Extended School Year (ESY). By extending the school year through periods of normal breaks, we prevent them from losing ground. When kids regress from disrupted instruction, once the instruction resumes, that time has to be spent on recoupment, which means re-teaching what was forgotten. That means time spent re-teaching previously known information instead of adding onto it with new information. For kids already behind in the first place, this puts them even further behind.

 

Compensatory education can be used to make up for regression and can take different forms. Sometimes its intensive services over a summer break so the student is where they should have been by the time school starts back in the fall. Other times, it's supplemental services being provided outside of the regular school day in addition to the instruction being provided during school, though that can be pretty tough on a lot of kids. Sometimes, it takes putting the student into a more restrictive, but more intensive instructional placement for a period of time so they can catch up in their learning before being returned to the public school setting with services in place that will prevent them from regressing again.

 

Compensatory services can be provided in other contexts, as well, regardless of whether regression has occurred or not. When families find it necessary to take their Local Education Agencies (LEAs) to due process to achieve remedies for the deprivation of educational benefits, compensatory education is the likely remedy, though the form it takes varies from case to case.

 

From a procedural standpoint, if an IEP calls for a specified number of service minutes for a particular intervention and not all of those services minutes are provided as they should be, a minute-for-minute compensatory remedy is due simply as a matter of procedure. The regulatory procedures require that IEPs be implemented as written and, if they aren't, whatever services that weren't provided according to their mandatory statements of frequency and duration remain due to the student.

 

An Individualized Education Program (IEP) is a legally binding contract that obligates LEAs to deliver on it as written, so if they don't, they have to make up the services minutes to which they committed themselves as described by the affected student's IEP. When compensatory minutes are ordered following a state-level compliance complaint or due process case on the basis of procedural violations, the compensatory services are minute-for-minute as described by the IEP because the number of service minutes the student should have received are documented in the IEP, which the LEA is legally obligated to implement as written as a matter of procedure.

 

However, compensatory education can also be ordered by a judge in due process on the basis of substantively inadequate IEPs. In such instances, a student's IEP does not contain services that it should, so they can't be enforced as a matter of procedure. When necessary services are left out of an IEP such that the student suffers a deprivation of educational benefit, or when services in the IEP are not delivered as the result of a procedural violation and the student then regresses, now you're talking about substantive harm.

 

Failing to follow the rules and owing something previously promised is one thing, but causing further loss of learning by failing to implement the IEP as written such that regression occurs is a much bigger issue. Failing to teach necessary instruction because it was left out of the IEP is just as big of an issue, if not bigger.

 

When special education students are deprived of educational benefits by their LEAs, how much of what kind of services they get to make up for those deprivations has to be figured out on a case-by-case basis. Judges rely on expert testimony and evidence, usually assessment reports, to figure things out when these cases go to hearing. How well a student's attorney argues the case has a lot to do with how much compensatory education that student will get for any sustained allegations of substantive harm.

 

Those are the basics of how and when compensatory education can be ordered. Compensatory education can also be negotiated as conditions of settlement to prevent any kind of regulatory and/or judicial intervention. I've even had situations in which procedurally owed compensatory service minutes are written into IEPs at IEP meetings without lawyers and lawsuits even coming up in the conversation. This latter action has usually occurred when there was a temporary lack of a qualified provider and the service minutes had to be made up once the position was filled.

 

All of this is based on how things were before the quarantine and, at least for right now, no waivers of the Individuals with Disabilities Education Act (IDEA) have been authorized by Congress. Parents and educators are still waiting to find out if any waivers will be passed in the near future (sign our petition to ask Congress to not authorize waivers), but for now, the law still stands as it always has.

 

Any child whose IEP is not currently being implemented as written, right now, is going to be owed compensatory minutes purely on the basis of procedure. If a kid's IEP calls for 30 minutes per week of speech/language services and that kid has been in quarantine for six weeks without those services, that kid is now due 180 minutes of back-due speech/language minutes, and that number will continue to grow for so long as that kid continues to go without those speech/language services.

 

Dealing with procedurally required compensatory services along these lines is going to be burdensome enough on LEAs after people adjust to quarantine and new ways of doing things are put into place, as well as once the quarantine is over. Both state and federal education agency officials have already started talking about how they're going to tackle that.

 

Dealing with kids who are due compensatory remedy because they were deprived of educational benefits during quarantine because necessary services weren't in their IEPs in the first place and/or they regressed in the absence of services that were written into their IEPs but not provided, is going to be a whole other thing that is likely to burden our due process mechanisms and take money out of the classroom, virtual or otherwise, to pay lawyers. The substantive compensatory education claims are going to be significant and the reality is that an ounce of prevention is worth a pound of cure.

 

Compensatory remedies are never as effective as the instruction students receive as a matter of a Free and Appropriate Public Education (FAPE). For one thing, IEPs are based on present levels of performance when they are written. Those present levels establish where the student was performing at the time the IEP was written and the IEP goals target learning outcomes for a year down the road, relative to the baselines established by the present levels.

 

When kids regress from lack of instruction, their present levels of performance move backwards, not forwards. When kids fail to learn for lack of appropriate IEP goals and, thus, a lack of appropriate IEP services, further deficits are induced on top of the deficits that were already there as a result of their disability. When these same kids sit at home not getting appropriate special education, they fall further behind and no amount of compensatory services will ever restore them to where they should have been had their services been appropriately provided in the first place.

 

Many special education students were facing IEP implementation failures and/or poorly constructed IEPs before the quarantine. Now, many more are joining them in the "Deprivation of Educational Benefits Club," as they sit at home without adequate services to see their IEP goals met and/or without adequate IEP goals to drive the provision of necessary services. Further, because their learning environments have dramatically changed, many of these children now have new needs specific to learning at home that are not addressed by their IEPs.

 

Behaviors in response to parents' attempts at instruction top the list. Parents without any kind of training in delivering specialized instruction are attempting to nonetheless do so without the support of behaviorists that would otherwise be provided to credentialed special education teachers. Most parents give up in exasperation because they have to decide between the lesser of two evils: behavioral regression or academic regression.

 

Recoupment of academics is usually a lot easier to achieve than remediating a big behavior problem. Remediating a behavior problem requires the student to unlearn maladaptive strategies and replace them with adaptive ones that have to be taught.

 

Remedial academics just involves new learning; kids generally don't have to unlearn something inaccurate, first. At worst, they'll have to be retaught something they learned previously but forgot, before they can pick up with new stuff, again.

 

Parents who have the means, right now, are working their health insurance to get online speech/language services, consultations with specialists like Occupational Therapists (OTs), and online social skills groups. They are paying out of pocket for online tutors and classes to give their kids some kind of academic routine. Many of those out-of-pocket costs are going to be recoverable as a matter of compensatory education.

 

There are two ways that compensatory education gets funded:

 

  • If it is agreed-to or ordered first, it is provided thereafter at the expense of the LEA. Either the LEA pays for it directly or the parents pay for it and the LEA reimburses them, as agreed to by the parties or as ordered by the judge in due process.
  • If it is not agreed-to or ordered first, parents pay out of pocket for the services, then request reimbursement after the fact. If that's the case, either their LEA will agree to reimburse them, usually via a confidential settlement agreement, or the parents will have to file for due process and prove to a judge that they had to pay out-of-pocket for the services because the LEA failed to provide them, they were educationally necessary, and their child would have likely regressed or otherwise been denied a FAPE without them.

 

That's something that some families should seriously think about, right now. Not everyone is out of work. Not everyone is without resources. If savings or lines of credit can be used to provide services in the home, now, while waiting for the local LEA to get its act together, parents can sit on their reimbursement claims until the dust settles. Due process claims come with a two-year statute of limitations. A denial of a FAPE that began on March 1, 2020 will remain viable until February 28, 2022, for example.

 

Families that have the means to privately fund what their children with special education needs are not currently getting should do so just because it needs to be done, regardless of whether they can recover those monies from their local LEAs or not. But, because the taxpaying public has already paid the LEAs to render a FAPE but they aren't, parents should still keep their receipts in case they are able to recover their out-of-pocket later. The focus should be on keeping your kids moving forward in their learning and preventing regression. You can worry about the money later, given that you've got two years to act on your reimbursement claims.

 

However, for families that do not have the means to pay out-of-pocket for now, there is a tremendous need for immediate intervention. As LEAs scramble to come up with solutions, one that seems obvious to me but which might not occur to others is to open up the provision of related services by private providers that are not currently licensed as Non-Public Agencies (NPAs).

 

There are more qualified providers that are not licensed as NPAs than there are providers that are licensed as such. The barriers to entry into the NPA arena are ridiculous and multitudinous, plus they get paid at Medicaid rates, which is usually less than what it costs to deliver the services, so providers can't keep their doors open by operating as NPAs.

 

Most NPAs are also set up to do business with other agencies and private insurance, which offsets the shortfall created by their NPA business. In many states, becoming an NPA is more of a marketing expense to get the agency's name out there in front of people, build up a trusted reputation as a provider, and then dump the NPA status to carry on with private insurance and other agency contracts in exchange for payments that actually keep their doors open.

 

While NPA licensing requirements may have been created to keep the sketchy people out, they actually achieve keeping most of the really good people out, too. Now is the time to reform that process so that we have more providers that can reach into the homes via whatever safe means possible of the special education students who are currently being denied a FAPE and regressing at this very moment.

 

In-person services can be provided with adequate Personal Protective Equipment (PPE) and safety protocols. Not every special education student is able access instruction online. Those who can, should, but that still takes a lot of skill and expertise to facilitate. When you've got a kid at home with a parent refusing to participate and no in-home behavioral services to facilitate their participation, the parent sits there helpless as the parent/child relationship suffers and no learning occurs.

 

By relaxing the NPA licensing rules and letting non-NPA providers that are otherwise qualified with the proper professional certifications, such as Speech-Language Pathologists (SLPs) and OTs who are medically certified, a great many students can still receive services at home who otherwise wouldn't due to LEA staffing limitations.

 

The goals that were determined to be educationally necessary by each child's respective IEP team are still educationally necessary. The services determined necessary to see those goals met in a year's time are still necessary.

 

The only thing that has changed is placement, and now IEP teams need to figure out how to deliver services in the current placement such that the goals are still met. This is the same line of inquiry every IEP team has to pursue when normally making placement decisions. Placement is driven by what learning environment is the Least Restrictive Environment (LRE) in which the services can be delivered such that the goals are met. That's best practices according to educational science, plus it's the law.

 

Now that placement changes have been forced on everyone because of quarantine, it's time to back up the conversation to that point, again, where services necessary to see the goals met in the current placement have to be identified. That said, new goals may actually be needed to address how the student functions in the home learning environment. New evaluations may be needed to inform what those goals should look like.

 

One thing is certainly clear from all of this: the next time the IDEA gets reauthorized, it will need to include language that describes how it will be implemented during a national crisis. The absence of any such language automatically puts LEAs out of compliance when disaster hits, which benefits no one; leaves students stranded without a contingency plan, deprived of a FAPE and actively regressing with each passing day; and creates compensatory education claims that will become a greater burden on the public education system than serving these students appropriately during a crisis in the first place.

What About Kids with FAPE Claims that Pre-Date Quarantine?

What About Kids with FAPE Claims that Pre-Date Quarantine?

April 6, 2020

 

 

As much as special education in general is all up in the air in most quarantined school districts, with unlawful conduct being perpetrated by school officials who have never believed in the IDEA seeing this as an opportunity to get rid of its obligations while still collecting federal special education dollars, there is a subpopulation within special education that is even more affected by this than others. That subpopulation is made up of the students whose educational and civil rights were already being violated by their local education agencies (LEAs) prior to the quarantine.

 

There is huge debate going on right now about Betsy DeVos, the Trump Administration's appointed Secretary of Education, and the waiver power she does and does not have under the law to exempt school districts from delivering a Free and Appropriate Public Education (FAPE) to students with disabilities. Congress has now asked her to testify as to what parts of the IDEA she thinks needs to be waived and we don't know how it will vote on the matter.

 

More and more comes out on this topic each day. The Council of Parent Advocates and Attorneys (COPAA), the national nonprofit professional organization that advocates and, where necessary, litigates on a national level on topics like these has published its own policy statement about the current situation, which can be found on the COPAA website.

 

Currently, there are no waivers of the IDEA in place. The only exemption right now is that LEAs that are not providing distance learning options to their general education students don't have to provide education to their special education students, either. Until there are actual Congressionally approved waivers, nothing has changed with respect to implementing the IDEA for those special education students served by LEAs that are currently providing distance learning to their general education students.

 

Nonetheless, I have four families with students in one particular school district that is currently providing distance learning to its general education students and something half-baked in terms of online options for its special education students. All four of these families received generic Prior Written Notices (PWNs) over this last weekend advising that it's impossible to implement IEPs under the current circumstances, even though it very often is possible and the administrator sending these things out has a decades-long history of throwing money at lawyers to defend her decisions instead of actual services for students. Three of those families already have due process cases filed or about to be filed.

 

Just like everything in special education, PWNs are supposed to be individualized to each student, but she sent the same PWN to the families of everybody in her district in special education, telling them all that implementing their IEPs under the circumstances is impossible with no examination of each student's unique, individual situations. She may have finally dug herself into a hole that she can't get back out of.

 

This administrator made unilateral decisions on behalf of her district outside of the IEP process during a time when the IDEA has not been waived in any kind of way, in part or in whole. It's a systemic violation of the law memorialized in writing on district letterhead to the family of every special education student in her district. She may have well just created a class action lawsuit against her employer.

 

Children with disabilities from low-income, single parent, immigrant, and non-white households were already getting the short end of the stick when it comes to special education. Being white and affluent doesn't necessarily protect you, but it does increase your odds of avoiding at least some FAPE violations.

 

That said, the aforementioned administrator sending out PWNs that break the law on her employer's behalf worked most of her career for an affluent school district where the only way to get a decent IEP was to sue the crap out of her district. Her department would play to the egos of affluent parents and tell them special education was a welfare service and they would be better off privately paying for services, thereby collecting federal IDEA dollars without actually having to spend them on services.

 

Now she's working for a district in an economically depressed community with a largely Latino population and is preying on low-income, non-English speaking, families of color. Maybe she thinks they aren't going to stand up to her taking advantage of the pandemic to bring in IDEA dollars without having to deliver on IDEA obligations. She's wrong.

 

I already had cases that were pending due process on my caseload when this pandemic hit. The students involved in those cases were already being under-served, if served at all, and now they're sitting at home with even more nothing. One student's parent has an elderly parent in a nursing home she can't visit and is working from home (or at least trying to) while her adult autistic child who is still eligible for special education has one meltdown after another because of the sudden disruption in routine and her inability to go out and do anything (trips into the community were being used as reinforcers as part of her behavior program, as well as community-based instructional opportunities, before all of this hit).

 

This parent is understandably furious. All that she's gotten so far from her daughter's teachers is a useless Google classroom link that takes her to a page full of nothing to do with her daughter's IEP goals. And, while her daughter's IEP makes clear that she requires "highly trained staff" to meet her goals, all she's got right now is her frustrated mom and useless downloaded worksheets that her mother doesn't know how to teach to her and she doesn't know how to complete. There is no support from the teaching staffs to help this parent engage her daughter in the distance learning option, such as it is, that they've been given.

 

This student is from the same district mentioned above that is sending unlawful F-You letters on PWN forms to its special education families. I have three other students in this district, two of them already with litigation pending for violations that occurred before the quarantine. They were already being denied a FAPE before quarantine, and they sure as hell aren't getting a FAPE now.

 

I've already written about the impact of the quarantine on special education before to some extent, but I want to hammer a particular point once again: Many special education students are at risk of significant regression, which is the loss of previously learned knowledge and skills, during lengthy breaks from instruction. These students are eligible for Extended School Year (ESY) services for this very reason; summer breaks, and sometimes winter breaks, are just too long for them to go without services or they have to make up for lost ground once they return to school, which makes them unavailable for learning anything new.

 

The impact of the current situation on these students in particular stands to compound an already egregious denial of FAPE. If they were already being denied a FAPE before this all happened, additional regression on top of that will create deficits that will never be overcome.

 

As of right now, no IDEA waivers have been permitted. Congress is waiting for Mrs. DeVos to tell it what waivers she wants to push through in response to the pandemic and mass quarantines. There is significant fear that the waivers Mrs. DeVos will request will include exemptions from implementing all or part of the IDEA.

 

The consequences to students if Mrs. DeVos is successful in getting IDEA waivers are obvious. What is not quite so obvious is what becomes of federal special education dollars to school districts if she manages to get any or all of the IDEA waived. While some school districts may be ready to embrace reduced duty and accountability, do they realize that IDEA dollars are tied to complying with the law? Does Mrs. DeVos intend to use IDEA waivers to not only reduce accountability for the public schools, but to also reduce their special education funding? How many school districts are willing to walk away from special education dollars in order to get out of having to implement IEPs?

 

Parents of children with disabilities, their extended families, their friends, and any taxpayers who otherwise get it need to act on this right now. You need to reach out to your representatives in Congress to tell them that any IDEA waivers are unacceptable. There is a way to deliver a FAPE to most special education students right now; it just takes cleverness and ingenuity, things most government agencies are not particularly known for. Clever problem-solving is generally unaccepted in institutions built on political corruption.

 

So, here's your call to action: Contact your Congressional representatives and tell them that no IDEA waivers are acceptable or necessary. Look up your Senators here, and your Representatives here. You can also use our easy-to-use form letter generator or sign our online petition. If you are listening to this as a podcast rather than reading it as a blog, you can find the links in the text-only portion of this post.

 

It shouldn't be necessary to have to fight to keep civil and educational rights in place for our nation's children, but it is. Many LEAs are pushing compulsory education laws by threatening families with truancy proceedings if they don't participate in distance learning options, but then are looking for any and all excuses to not actually deliver a real education, particularly to their special education students.

 

These distance learning options are all about keeping those Average Daily Attendance dollars coming in, I assure you. LEAs can't live without that money and its based on attendance, which is why they are threatening to criminally prosecute parents who don't implement their half-assed distance learning options for truancy. But, to actually deliver a real education in exchange for those dollars seems too much to ask, and it's a thousand times worse for students with special needs.

 

It may quickly become the case that the only way for families of special education students to protect themselves against unjustified truancy charges, which are tried by local superior court judges who know nothing about how special education is actually supposed to be delivered, is to file for due process and make the record that the education being offered to those special education students during quarantine is inappropriate to their needs and they are unable to access learning as a result.

 

Parents should not feel forced to make their kids do something that will not help or just make things worse out of fear of being criminally prosecuted for truancy if they don't. The sad reality, however, is that so long as they log or call in every day to whatever distance learning platform has been made available to them, even if their kids aren't learning anything, they will not be prosecuted for truancy because those logs will be used as proof of attendance so schools can get their Average Daily Attendance dollars. That still does nothing to ensure their receipt of a FAPE, though.

 

Now is the time to reach out to advocates and attorneys if your child with special education needs isn't getting appropriate instruction and related services while sheltering in place. You can find people to help you by searching online for “special education advocates near me” and “special education attorneys near me.”

 

Just be careful of the con artists out there, though. There are lawyers who will claim to represent families but then cut backroom deals with the attorneys representing the LEAs in which they convince the family to sign settlement agreements that short-changes their kids and eliminates their claims against the LEAs. There are also lay advocates who mean well, but don't know the applicable science or law.

 

You should be leery of lawyers who have been in practice for years but have no litigation history. If they could actually litigate, they'd do it. But, if they can't, they'll get a few thousands dollars in fees for selling out their clients via backroom deals cut with school district lawyers and administrators. There are sleazy people on both sides, so parents do have to be choosy about who represents them.

 

Your state should have some kind of online database of due process decisions that you can search by an attorney's name. If no due process decisions come up with that attorney's name, and they've been in practice for years, that's a red flag. If you search the decisions by attorney name and the results produce only cases that the attorney has lost, that's another kind of red flag.

 

The good lawyers' caseloads already get impacted by this time of the school year, but this situation just takes it to a whole different level, so parents should find someone fast if they think they even might need the help. One source that helps parents find advocates and attorneys is COPAA. It has guidelines to parents for choosing a special education attorney and/or advocate, as well as a searchable directory of COPAA members by location.

 

You will note that I am not listed. I am not a COPAA member and with good reason. As much as I appreciate what COPAA does on a national level, particularly with respect to its amicus briefs, it has no membership options for paralegals. This isn't about bashing COPAA because there are things about it that I genuinely love, but there's also things about it that I find wholly unacceptable.

 

I'm speaking to my truth, not disparaging an organization that I am, here, deliberately telling parents they should check out as a valuable resource. My issues with COPAA are mine, but I'm sharing them here for the benefit of those who search the database I've referred them to, don't find me on it, and wonder why.

 

If I go to the COPAA conferences, I can only attend the workshops for parents and other advocates, where I spend the whole time either biting my tongue or correcting the presenters because they're disseminating misinformation, and I never learn anything I didn't already know. I'm not allowed to attend any of the attorney sessions, even though I totally could use the MCLEs for my paralegal status.

 

I can't even subscribe to the COPAA listserv for attorneys, even when it contains information that would benefit my supervising attorneys for me to have access to it. My supervising attorneys are not even allowed to share it with me, even if it pertains to a task they are delegating to me. Until COPAA makes a space for me and people who work in the profession as I do, I can't justify the expense of a COPAA membership or its conferences.

 

Besides, when I've gone to the conferences, I've walked through the tables and booths between sessions and, every year, there sits a table set up by a non-public school that broke one of my student's arms during an unlawful restraint several years ago. When this issue was raised with COPAA the first time I saw this bunch at a conference, they ignored my supervising attorney on that case and continued to take money from these child abusers for the table space each year after that. I'm not okay with that.

 

Given the poor instruction options available to me at the COPAA conferences, the presence of known child abusers at the conferences, and the overwhelming evidence I've observed that far too many people only attend it so they can drink to excess and cheat on their spouses for a week, I don't find the COPAA conferences worth the thousands of dollars in fees, hotel and travel costs, and lost billable time to be worth it. Plus, they hold it in the middle of the busiest time of the school year, which makes no sense at all. I've always got way too much work happening when the conferences are held to attend, anyway.

 

So, while I don't have a high opinion of the COPAA conferences, I have a very high opinion of the brilliant legal minds that write COPAA's amicus briefs and I've agreed with every one of them I've ever read 100%. Nothing is perfect and COPAA is a good resource for many. The actual work COPAA does, aside from its annual conferences, is stellar and I can look past the conferences for the sake of the bigger picture, which is legally protecting children with disabilities from educational and civil rights violations.

 

COPAA has taken on the U.S. Department of Education with bold, accurate words in legal proceedings that make my heart want to burst with pride in our profession. That's what matters to me about what COPAA does. That is, in my opinion, the most important thing COPAA does.

 

If you are looking for an attorney or advocate, the COPAA membership directory can be a good resource for many parents. Just know that there are a lot of other professionals out there who are really good at their jobs who are not members, there are members who aren't that good at their jobs, and there a non-members who haven't signed up because they're crooked and don't want to get caught by those of us who are doing this work for the right reasons. Like everything else in life, it's a mixed bag.

 

Being on the COPAA membership directory doesn't automatically mean someone is good and not being on it doesn't mean someone is bad. It's just a list of people who work in this field and pay membership fees to COPAA, but it's the only national directory of advocates and attorneys that I know of and it's foolish to not regard it as a valuable resource. Just take it for what it is and don't think that hiring a COPAA member automatically means you don't have to put much thought into it.

 

As I stated before, the membership directory page includes links to COPAA's guidelines for finding a qualified attorney or advocate, which is pretty sound advice. Regardless of whether an advocate or attorney is a COPAA member or not, COPAA's guidance as to how to vet attorneys and advocates is still good.

 

If you are the parent of a child with special needs who is not receiving a FAPE while in quarantine and your LEA is providing alternative learning options to its general education students, as of the time of this writing, there are no waivers of any part of the IDEA and it is still fully in force. This isn't about kicking your LEA while it's down; this is about protecting your child from being kicked by his/her LEA while your child is down. LEAs have millions apiece of taxpayer dollars intended to pay for the education of our children and that damn sure better be what it's spent on, regardless of the situation.

 

Students who were already being denied a FAPE before the pandemic are now further compromised. How this is going to play out in litigation remains to be seen. If the rule of law is followed, there are no exceptions to providing a FAPE right now. Any FAPE violations that were already going on before quarantine have not been made better by it and families in those situations very likely need to consult with a qualified special education attorney sooner rather than later, if they haven't already.

 

This is a difficult time for everyone, but the true measure of a society's health is how well it takes care of its most vulnerable members during times of crisis. While some fascist LEA administrators may see this as an opportunity to finally carry out their bigoted agendas and terminate special education like they've been wanting to since 1975, those of us who still prefer democracy to fascism have to stand up and enforce the laws that have been part of the fabric of our country for the last 45 years.

 

As soon as one civil rights law falls, all the rest of them fall, the tenuous thread that our democracy is holding onto right now will snap, and we will find ourselves suddenly living in a real oligarchic regime. The moment it becomes okay to violate the civil and educational rights of children with disabilities, it will become okay to violate everyone else's rights, too. Every protected class – women, minorities, LGBTQ+ individuals, low-income families, single-parent households, etc. – will lose rights one by one thereafter until no one has freedom anymore, except the wealthy oligarchs.

 

While I am focused on the individual needs of the children and families involved, I can't help but appreciate the over-arching ramifications for democracy at large. We protect everyone's rights, or we protect no one's. True democracy means everyone is equal, including special education students.

 

And, regardless of whether IDEA waivers get approved, no one is contemplating waivers of Section 504 of the Rehabilitation Act or the Americans with Disabilities Act (ADA). If the IDEA is no longer enforceable, those laws still are and Betsy DeVos has no control over them. So, if she manages to get IDEA waivers passed by Congress, families will still have recourse under 504 and the ADA, which can have harsher ramifications than the IDEA on LEAs.

 

The IDEA diminishes “equal access to education” but expects no expense to be spared in the pursuit of that watered down version of equal access; the ADA says “equal access” must be 100% equal, unless it creates an undue burden on the responsible party, which it has to prove. We've not had civil rights litigation under 504 or the ADA since either of them passed that sets a precedent for what we're dealing with right now, but I can promise you that what special education students are getting at home during quarantine doesn't come close to equal access to education as that being given to their non-disabled peers.

 

These are uncharted waters and only time will tell how this is going to play out, but it's up to those of us who do this work and the families we serve to do everything we can to protect our children with special needs. Please contact your Senators and Representatives, tell them that no IDEA waivers should be granted, and let's all keep the pressure on until we have an answer. In the meantime, nothing has changed and the law is still enforceable, so we need to enforce it.

 

While many courts have moved to a work-from-home model (I recently watched a federal court trial in which Google was accused of aiding and abetting the Taliban that allowed me to see into the homes of three federal court judges and the Plaintiffs' attorney), some state special education hearing offices have closed down, ceased operations except to issue continuances and stays, and are accruing a backlog during quarantine that is going to explode with new cases from all the FAPE claims arising from school district misconduct currently going on. Parents may need to use this time to find an attorney, start organizing their evidence, and file to preserve their timelines, even if they aren't going to get in front of a judge right away.

 

For families that were already facing due process before the quarantine, if their states are operating their complaints and due process hearings according to a work-from-home model, which Texas is doing, then there should be some kind of mitigation in place to prevent that huge of a backlog. If three federal court judges on a panel can hold a trial to determine if Google was complicit in the Taliban's use of its technologies to engage in acts of terrorism from their homes, special education due process cases can be tried the same way.

 

If you have a due process case that was pending before the quarantine, then you've likely already been communicating with your attorney about what is going on. If you haven't, yet, do it now. You need your attorney looking into what due process mechanisms remain intact in your state and what the procedures currently are. Any competent attorney will have already done this, but may be so overwhelmed by the sudden explosion of casework that is starting to happen that they haven't had a chance to talk with you about it, yet. Don't overwhelm them by stalker dialing ever 5 minutes, but do reach out and make an appointment to discuss how all of this impacts your case.

 

There is never a good time to participate in litigation. For most parents, "litigation" and "good time" generally don't go together. But, this is definitely a worse time to be pursuing due process in a system that was already glutted with cases. The sooner you act, the better.

Special Education Still Has to Be Individualized During Quarantine

Special Education Still Has to Be Individualized During Quarantine

April 1, 2020

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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