Making Special Education Actually Work

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

Special Education Still Has to Be Individualized During Quarantine

 

 

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.

Special Education Timelines During Quarantine

 

Avoiding the spread of disease is obviously the most important consideration, these days, but life hasn't ground to a halt; it's just changed. Everyone is doing what they can, right now, to curtail the spread of disease so that we can all live our lives in peace, which doesn't mean stopping the living of lives while we ride this out.

 

The whole point of the measures we're all collectively taking as a planet right now is to preserve life, liberty, and the pursuit of happiness. However, with all of these sudden changes, there is a lot up in the air, right now, with respect to our students with disabilities who require services during extended breaks so as not to regress in their learning.

 

Even more concerning are our students with special needs that affect their behaviors who are cooped up at home with their parents, who are likely on the verge, already, without any behavioral support services. Those parents are at an increased risk of developing Post-Traumatic Stress Disorder (PTSD) from this whole shelter in place situation.

 

There are funny memes going around right now about parents trying to home-school their general education children and learning to appreciate their general education teachers, but nobody is making a meme about the mom of an autistic young woman who enjoys regular outings into the community as part of her special education program and is melting down on a regular basis, now, because she can't leave the house, go to school, hang out with friends, or visit her grandmother in a nursing home. These are the families that are already slipping into crisis while all the rest of us are riding this out and complaining about inconveniences.

 

For our students with developmental disabilities who require ongoing services in order to make reasonable strides towards a Free and Appropriate Public Education (FAPE), disruptions in services mean developmental stagnation and regression. That means the current school closures are particularly impactful.

 

Staying at home is important. If you can stay at home, you should. But, as millions of Americans figure out that they can actually still do their jobs, or at least a significant portion of their jobs, from home, and continue to work remotely, our society is finding a way to adapt on the fly to this situation in ways heretofore not possible because of our technology.

 

As awesome as that is for many private and public entities that are actively figuring this out, one area in which it has evidently not yet been figured out is special education services, or at least a triage solution for our kiddos who will regress, lose significant ground, and miss critical windows of developmental opportunity in the absence of ongoing special education services. Once again, our kids with the most demanding special needs are the last ones to get consideration by stakeholders in this situation.

 

I've been doing this long enough to know how the system tends to respond to certain things. There are predictable patterns in the behaviors of public education agency personnel in response to certain types of situational factors.

 

Sometimes, when the people in charge don't know what to do, you just have to give them suggestions about what they could do to get them jump-started. It's something similar to “Bystander Effect.”

 

In situations in which the Bystander Effect, occurs, if there are lots of people around when something horrible happens, everybody expects someone else to step up with a solution, so no one does anything. When there isn't anyone else to respond or just a few people, individuals are more likely to respond in the moment to a crisis.

 

Here, it appears that everyone is frozen in place waiting for someone else to do something when it comes to meeting the needs of our students with special needs during this current crisis. Rather than waiting for someone to step up and do something, I'm choosing to do what science says we should do when the Bystander Effect has gripped the crowd and everyone seems frozen in place – impose structure.

 

Imposing structure to overcome something like this isn't about telling people what to do so much as to signal their brains that the time of waiting for someone else to do something is over and they need to act, as well. Right now. Proposing a solution in a situation like this isn't about cramming a particular agenda down anyone's throat; it's about snapping people out of it so they stop looking at the car crash by the side of the road as they slowly drive by and actually stop their car to get out and help.

 

We can't ignore the needs of our students who are at risk of regression and loss of windows of developmental opportunity to learn because of factors beyond their control. These students are the least able to do anything about the deprivations they are experiencing at the moment. They are at our mercy and we can't afford to be bouncing off of each other like a bunch of hysterical ninnies in panic because we don't know what to do to help them. We do know what to do. Each child in this situation needs his/her respective village to get its act together and work in a coordinated fashion.

 

So, in the interest of imposing some structure onto the conversation and planning that now needs to happen, here's what I am proposing for our students who may need or who already receive special education, so as to prevent a denial of FAPE:

 

1. Pending Referrals & Assessments
   1. Child Find [34 CFR Sec. 300.111] – This one is going to be difficult because most public schools are terrible at child find, in general, and most parents don't even know about it.  
      1. Teachers identifying the kids who may need to be referred for special education assessment on the basis of suspected disability will be even more difficult under the current circumstances, depending on how school officials are providing instruction, if at all, during this time of sheltering in place.
      2. Parents may have increased cause for suspecting disabilities when they attempt to assist their children with their school work at home and discover their kids have challenges in processing certain types of information, but they aren't necessarily expert enough to recognize those challenges as evidence of suspected disability. Further, emotional trauma can cause a child to become eligible for special education under the Emotional Disturbance (ED) category. Parents may find it necessary to refer their children for special education evaluation if they perceive challenges with mastering certain types of concepts in their children while attempting to assist them at home with instruction and/or if their children experience emotional trauma that interferes with their access to education now or upon returning to school once it is safe to do so, again.
   2. Pending Referrals - None of the timelines applicable to referrals for special education assessments plans should be disrupted by the current state of affairs. The only thing that needs to happen in response to any referral is the provision of an assessment plan, pursuant to 34 CFR Sec. 300.9 and 300.300. This is a document-driven administrative process. This has no in-person requirements that would otherwise delay processing. Given that so many people in administrative positions are able to still do their jobs if given the proper tools, there is no physical barrier to carrying out the duties of this step of the process and, therefore, there should be no delay in the applicable timelines just because of the current shelter in place situation.
      1. If a referral was made in writing prior to a student's school shutting down, an assessment plan should still be provided to the parents within the mandated timeline. Erring by one to five business days may be understandably forgivable given the circumstances and may result in a procedural violation that nonetheless results in harmless error, so parents shouldn't be threatening lawsuits over something like this.
      2. If a referral is submitted in writing via a manner that is accessible by school personnel, such as via email or through a web portal, during this period of sheltering in place, the local education agency should still act on the referral within the applicable mandated timeline. As a purely document-driven administrative process, this isn't going to put human beings into physical contact with each other in way that holds up the timeline for the provision of an assessment plan. Parents who want to make such referrals can use our free form letter generator on our site.
   3. Pending Assessments – If a referral for assessment has already been made, an assessment plan has already been signed by a parent, and now the assessment timeline is ticking down, some public education agencies may declare that the timeline is disrupted by the break from instruction due to everyone staying home and sheltering in place. However, that's not entirely true. For example, the assessment timelines are disrupted under California law for regularly scheduled school breaks and vacations of five or more days, but this shelter in place business isn't regularly scheduled or a vacation.
      1. Understand that assessment, whether it's an initial evaluation or a re-evaluation, is considered a related service pursuant to 34 CFR Sec. 300.34. Both 34 CFR Sec. 300.103 and 300.323(c) make clear that a related service cannot be subjected to any unnecessary delays as a matter of legal procedure, as this would delay the provision of services according to an IEP, and, thus, deny a FAPE.
         1. Unnecessary delays include sitting around and freaking out instead of acting. If public education agency officials claim to be working on a solution and weeks go by, they're not working on a solution; they're freaking out and wasting everyone's time. The Texas Education Agency (TEA) has already set up mechanisms to keep its complaint and due process systems going; evidently it understands that each State is ultimately responsible for making sure its students get educated, even if their local education agencies waffle under the pressure. If State education agencies can keep their systems going by having their personnel work from home on these administrative duties, the schools they regulate have no excuse for not doing the same, and I suspect State officials will see it that way, too.
         2. Necessary delays would include taking measures in order to otherwise comply with the regulations under the current unique circumstances. If it takes a week or two to put the necessary resources into place, that's forgivable. Any longer than that without additional extenuating circumstances and all you've got is poor leadership within the agency creating unnecessary, and potentially actionable, delays.
      2. It is entirely possible to assess a student who is not medically fragile using the everyday preventative actions being recommended by the Centers for Disease Control (CDC).
         1. Most special education assessments require at least some standardized testing that is administered in a 1:1 testing situation. An assessor can arrange to conduct standardized assessments in a 1:1 testing location at a school site via prior arrangement without risking an entire classroom or exposing an assessor to either an entire classroom of potentially infected students or household of potentially infected family members of the student being assessed.
         2. Acceptable reasons for delays of any component of assessment in these instances can include illness within the student's family or that of the assessor that puts them at risk of exposing each other to COVID-19 and a shortage of other assessors to otherwise conduct the assessments or other unique circumstances that might otherwise make a substitute assessor educationally inappropriate, but the delay should not be greater than what the situation actually requires based on what is known at the time.
         3. Public education agencies may need to enlist the support of assessors in the local community to stay on top of assessments as much as possible, and States may need to waive non-public agency licensing requirements under the current circumstances just to make sure everybody who needs ongoing speech/language services, for example, actually gets it.
         4. Classroom observations are going to be the obvious problem for many assessments. Even if an assessor comes to observe a student who is sheltering in place at home, that will not be entirely representative of how that same student functions in a classroom under normal circumstances. It may make more sense to wait until the student returns to school, but the assessment timeline may be ticking down while the child re-acclimates to the school setting, which could include emotional factors that were not present before but which could continue and are, therefore, relevant to the assessment process. Consultations with teachers and parents regarding in-class performance before and after quarantine will become imperative to supply accurate information for the assessment report. Regardless of how a student functioned in the classroom before quarantine, going forward post-quarantine is going to look and feel different for everybody after all of this. Post-quarantine classroom observation data is probably going to be more useful than pre-quarantine classroom observation data.
         5. In an effort to achieve compliance to the degree possible, but with the understanding that some unavoidable delays in the assessment process can legitimately occur because of the current situation, I am strongly recommending to parents and public education officials that short-term individualized response-to-crisis assessment schedules be developed using available technologies to arrive at a plan for each student who is pending assessment so that parents know what to expect by when, school personnel know how to allocate assessment resources, and the process can be kept moving along in a relatively timely manner so that, by the time students return to school, if they need an IEP, the IEP team can have an appropriate one in place for them upon their return. Otherwise, the team can finalize the assessment process once the student returns to school so that IEP team decisions can then be made as intended.
         6. It may be necessary for parents to negotiate timeline extensions with their local education agencies as part of an individualized response-to-crisis assessment schedule, but I am strongly advising parents against agreeing to any such extensions without also including something in writing that describes exactly what is being delayed that necessitates such an extension. For example, if all of the standardized testing can be conducted prior to a student returning to school, but the IEP team agrees that a classroom observation shouldn't happen until two weeks after the student returns, then the team can agree to keep the assessment process open until the observations can be done, shortly after which the report can be finalized and the IEP team can convene to discuss the results. It may be appropriate for some students in situations like these to complete the evaluation report during this period of quarantine based on what is available so that an appropriate IEP offer is made to the student as soon as possible, with the understanding that classroom observation data will be collected once the student has settled back in and may be used to amend the IEP if it reveals something not already otherwise identified by all the other assessment data on record. So long as parents and schools document their arrangements to get through pending assessments during this situation and the parents give informed consent to any such alternative arrangements, parents will not be inclined to file lawsuits, nor will they have the evidence necessary to argue against delays to which they have, knowingly and with full understanding, consented. Taking these steps will reduce a lot of anxiety about loose ends and what comes next for everybody involved.
2. Pending IEP meetings – This stands to be one of the biggest procedural challenges simply because of all the IEP meetings that were already on calendar and subject to mandatory timelines at the time that everyone started sheltering in place, but it is still nonetheless one of the easiest situations to solve. 34 CFR Sec. 300.322(c) and Sec. 300.328 require that local education agencies facilitate meaningful parent participation in the IEP meeting process, even if that means using alternative means of participating other than attending meetings in person, such as telephone and video conferencing. While some delay as education agencies get their people set up with the technologies necessary to work this way from home might be within reason, this isn't something that should cause an IEP meeting scheduled for two weeks from now from not being held at its originally scheduled time without IEP team member agreement. It doesn't take that much technology to do a conference call and email the paperwork to meeting participants. The law already provides for accommodating the fact that parents and educators can't always meet in person to conduct IEP meetings, and those laws remain in force, right now.
3. IEP implementation – This is the grand-daddy of all special education issues facing families of students with special needs, right now. And, it's a hotbed for lawsuits if local education agencies don't respond appropriately to the situation.
   1. Online learning options – These options are being proposed for general education students and will work for many special education students, as well, at least in some areas of learning.
      1. Where it will usually not work is with students who have:
         1. Poor task initiation, task maintenance, and/or task completion
         2. Impaired executive functioning and/or attention
         3. Severely delayed communication skills
         4. Severely delayed cognitive development
         5. Vision loss or severe visual disabilities that prevent them from accessing what is on the screen (for students with these challenges who are also receiving speech/language services via a virtual model, it might still work so long as the therapist can see their mouths when they speak, depending on the nature of the therapy)
         6. The forms it can take include:
            1. Video conferencing with teachers and/or therapists
            2. Using online learning games and apps
            3. Conducting research
            4. Watching educational videos
      2. Direct in-home instruction – It may be necessary for teachers to provide home/hospital instruction to students at serious risk of regression on a 1:1 basis in their homes. The law already provides for this option, as well. If it is medically inadvisable for a child on an IEP to go to school, home/hospital is an appropriate placement option under normal circumstances. However, it's probably fair to say that a judge would not find the current times normal and that every special education student cannot be reasonably provided with in-home 1:1 instruction. This is going to be the area in which education agencies are most likely to get themselves into trouble. If there is any way for teaching staff to use the everyday preventative actions recommended by the CDC to provide 1:1 instruction to those students most at risk of regression, it should be done. Small group instruction of no more than 8 students is still achievable, even if done for fewer hours of the day than normal. One teacher could instruct two or three different groups of no more than 8 students for a couple of hours each day in rotation at a school site and manage to stave off regression and actually continue progress towards FAPE. Individual and small group therapies could also be provided while special education students are on campus, rotating students out so that there are never more than ten people in one place at a time.
      3. Transportation & Other Related Services – Some related services may become unnecessary during alternative teaching arrangements. For example, a student may not need a 1:1 behavior aide to receive 1:1 in-home instruction, but would totally need the aide at school while trying to participate among all the other students. Transportation may not be needed for students who are being served at home but would be needed for those who need to travel to a school site for any direct instruction and/or therapies that cannot be provided any other way. If alternative arrangements are made to serve special education students at risk of significantly regressing while sheltering in place, unusual but temporary transportation services may become necessary in order to implement such an alternative plan. Local education agencies cannot place the burden on parents to transport their children with special needs to school for alternative services during this time, particularly if parents have no way of transporting them. The whole point of special education transportation as a related service is to overcome that very obstacle. If special arrangements have to be made to prevent a student with an IEP from regressing during these current times, those arrangements will have to, by necessity, include an offer of transportation services if the parents cannot otherwise transport the student. Whether or not such related services are necessary really comes down to the individual needs of the child, as always. It's not like somebody bombed the bus lot; the vehicles are there and the drivers still need their jobs, so, as long as everyone follows proper sanitation and social distancing protocols, transportation services can be provided.

This is by no means a comprehensive plan. That's more than one advocate sitting at home on lock-down can develop. It will take State agencies working with their local education agencies to come up with a comprehensive plan. At this point, I have to believe that people are scrambling behind the scenes all over the place to come up with a plan, but the public is still waiting to hear what it is. The families I represent are sitting at home wondering what is going to happen over the next few months. All the information about the schools going around is general in nature and none of it is specific to their children with special education needs. 

 

To the extent that what I've shared can impose some structure on the dialog that needs to be happening right now between parents and special educators, my contribution, here, is food for thought. It's not my intent, here, to tell anybody what to do. My intent is to break the frozen stance of this quasi-Bystander Effect and stop waiting for someone else to say or do something. 

 

In a real Bystander Effect situation, if you're in a crowd and someone suddenly falls to the ground or otherwise experience harm that requires intervention, most people will freeze and look around to see if anybody else is going to do something. In those moments, people who understand what is really happening have to snap out of it and do something. 

 

The guidance that psychologists are given if we find ourselves in such a situation is to point at the person right in front of us and say, “You! Call 911!” then approach the person in trouble with appropriate caution and, if they are conscious, tell them help is on the way. There's something magically triggering about issue a command like that because, unless the person you just commanded to make the call has no phone, the call will be made. Suddenly, instead of frozen with uncertainty, that person has a job to do. There's an action he/she can take to make things move in the right direction.

 

Initially, until someone barks a command, everybody is either a deer in headlights or otherwise assumes someone else will take care of it and don't think they have a role to play. There's something about barking that initial command that gets everybody working together in unison and it usually doesn't take more than that. Humans just sometimes need an environmental cue before we know whether, when, and how to act. 

 

So, that's basically what I'm doing. Me barking “Call 911!” to someone standing on the other side of a fallen human body isn't me being bossy. The suggestions I've made in this post isn't me being bossy, either. This is my effort snap all the stakeholders and decision makers out of it so they aren't standing in a virtual crowd waiting for someone else to say or do something. It's now been said, public education system. So act.

Prior Written Notice Requirements When Denying Parent Requests in Special Education Matters

 

 

 

 

Prior Written Notice (PWN) pursuant to 34 CFR Sec. 300.503 gets a fair amount of general discussion among special education stake-holders, but, in today's post/podcast, I want to look at it more in-depth. Today's discussion looks more closely at the regulatory requirements and the types of special education contexts in which PWN becomes necessary.

 

I pulled a couple of examples from old case files that I can use to illustrate a number of points. These are old, closed cases from school districts where I currently have no active casework that happened years ago, but one of them involves bad players that I know are still out there.

 

The first one involved a student of an independent study charter school that had contracted with a third-party provider to deliver its special education and related services. Charter schools are often the worst at special education compliance, and online and independent study charters are usually the worst of the worst; for more information about that, see our prior post, "California Charter Schools & Special Education." This case was no exception.

 

To put this example PWN into context, first I have to explain what was going on at the time. Our autistic student with high cognition also had debilitating anxiety that, combined with his autistic perseverative thoughts, could spiral his behaviors out of control, requiring intensive Board Certified Behavior Analyst (BCBA) services.

 

This student also needed interventions to address his anxiety, for which the parents, through me as their advocate from our agency, had requested a referral for a mental health evaluation as part of the IEP process. At the time, what we were requesting was provided by the local County Behavioral Health (CBH) agency under contract with the local Special Education Local Plan Area (SELPA), of which the chartering school district was a member.

 

So, while we were requesting a referral to the local CBH, it was under the auspices of an IEP-related assessment for the determination of IEP goals and services. In response, the third party special education contractor, using the local SELPA's PWN form, replied with the following:

 

1. Description of action proposed or refused by district: In a letter dated [DATE] and received by the charter on [DATE] the parents requested the school refer [STUDENT] to [CBH]
2. Explanation of reason for proposal or refusal: Parents can make individual referrals themselves without the involvement of the school.

 

The PWN goes on to explain how parents can make their own community-based referral outside of the IEP process to the local CBH. In an effort to try and make it look like it was complying with the law by replying with official forms and filling in the blanks with words, what the charter's third-party contractor actually did was commit a substantive violation of a Free and Appropriate Public Education (FAPE).

 

First of all, the request was for an IEP-related mental health evaluation and possible IEP goals and services. Going through the community-based referral process does not tie any mental health services provided to IEP goals and the delivery of a FAPE. Regardless of what our student may have or have not received by way of community-based mental health supports, none of that alleviated the IEP team from the mandated responsibilities of assessing for and providing any needed special education-related mental health services.

 

Further, the charter's response on official SELPA forms was issued by its third-party contractor, which had no direct legal obligation to our student to offer and deliver a FAPE. The third-party contractor issued PWN on behalf of the charter, which was supposed to be acting on behalf of its chartering district, the latter of which being the entity that was actually legally responsible for FAPE but had no idea any of this was going on.

 

What this was really about was the charter's third-party contractor not wanting any other entities involved over which it couldn't exercise any kind of control. Because CBH would have been directly funded by SELPA and the State, the charter's third-party special education contractor couldn't lord payment over its head to control how it conducted itself like it did with its contracted teaching personnel and service providers.

 

If anything, it put the third-party contractor's questionable conduct in the path of scrutiny to have an outside agency like the local CBH get involved. The third-party contractor denied the referral and pushed it back onto the parents in order to prevent CBH from becoming part of this student's IEP and implementation teams. It was out of fear of accountability that the third-party contractor denied the referral and pushed it back onto the parents to pursue through community-based resources outside of the IEP process.

 

Measurable annual mental health IEP goals with the local CBH as the responsible provider would have likely meant CBH personnel in the home, where additional special education services of all kinds were needed but not being provided. Having CBH come on board to provide mental health services under this student's IEP would have created outside, impartial witnesses to all of the other special education violations going on with this student's case at the hands of the charter's third-party contractor.

 

Adding CBH to this student's IEP would have made the chartering district answerable for making sure the mental health goals were implemented as written, which would have required CBH to actually do its job, putting the third-party contractor's scam operation at risk of exposure. Needless to say, this case ultimately went to a lawyer who filed for due process, the matter settled, and I can't talk about what happened after that.

 

Prior to and at the time of settlement, this kid was in no way ready to enter the brick-and-mortar school setting, which is far less restrictive than being educated at home. This was one of those situations where the independent studies charter school kept insisting that the student's living room was the general education setting because that's how it was for all of their students, without regard for the fact that the only reason his living room was the Least Restrictive Environment (LRE) for him was because he couldn't handle a traditional classroom.

 

If this student had been enrolled in a traditional school district at the time, but still was receiving instruction at home, it would have been regarded as one of the most restrictive placement options possible. His in-home placement was light years from a general education classroom in a brick-and-mortar setting, which everybody knew he couldn't handle. It was a technicality that in-home instruction was the norm for independent studies charters, such as his. His situation wasn't about family educational choice; it was about individual educational need.

 

Educating him at home was an accommodation. His parents would have preferred to send him to school, in all honesty, but they made the choice to home-school because of his demanding special needs. He needed intensive autism and mental health services to get to the point where he was able to access the world outside his home with success.

 

The charter was effectively trying to turn him into a well-educated hermit, which often seems to be the case with students with these types of needs in independent study programs. Bringing the instruction to students who are challenged to function successfully outside of the home may seem to be prudent, but if it doesn't include related services meant to increase the student's independence and access to less restrictive learning environments, it's not a FAPE.

 

Preventing the provision of such services in order to avoid accountability is a despicable breach of ethics, as well as a monstrous denial of FAPE. First, in this case, the denial to refer for IEP-related mental health services as requested by the parents interfered with meaningful parent participation in the IEP process, in addition to violating procedure with respect to referrals for evaluations and reevaluations.

 

Secondly, it denied a FAPE because it meant the student's IEP was informed by insufficient assessment data. As a matter of FAPE, the student had a federally protected right to assessment in all areas of suspected disability and learning need. That right was denied when the charter's contractor chose to deny the mental health assessment referral and push the burden back onto the parents to pursue through community-based resources unrelated to the IEP process.

 

Further, the contractor's efforts to circumvent the IEP process not only undermined meaningful parent participation in the IEP process as promised by federal law, it also meant that the student's IEP was not reasonably calculated to render meaningful educational benefits in all areas of unique student need, which also denied a FAPE. As such, the student was being deprived of meaningful educational benefits in the areas of mental and emotional health, which was negatively impacting his behavior and, thus, access to education, which also denied a FAPE.

 

So, just on the basis of this misuse of an official PWN form, the charter's third-party contractor made the record of its efforts to circumvent the IEP process, indirectly on behalf of its charter school client's chartering district, thereby denying a FAPE in at least four different ways:

 

1. Denial of meaningful parent participation in the IEP process
2. Failure to assess in all areas of suspected disability
3. Failure to design IEPs that are reasonably calculated to render meaningful educational benefits in all areas of unique student need
4. Failure to deliver meaningful educational benefits in all areas of unique student need

 

The point I want to get across is that, just because you get a PWN on official paperwork, it doesn't mean the education agency has actually followed the law. It's not just the matter of complying with procedure by sending something out titled "Prior Written Notice." What is written in the notice matters, and is regulated by federal law.

 

In my second example, also from years ago, and also ultimately settled after the family brought in an attorney, the situation was different. Our student had lived with his parents in the attendance area of a school district near the Southern border of California. Shortly before I became involved, this child's mother had passed away, leaving his father alone to provide all of the in-home support his autistic son with demanding needs required while holding down a job as a traveling engineer.

 

As difficult as it was, the most sensible thing to do under the circumstances was for the student to live most of the week with his grandmother in another community far to the north in the San Joaquin Valley. The student's grandmother, his late mother's mother, was available to be a full-time primary caregiver and his uncle, his late mother's brother, was available to help with any kind of important decision-making, such as with IEPs and regional center services. The student's father shared his educational decision-making authority with his mother-in-law and brother-in-law so that they could take on these serious responsibilities.

 

In anticipation of the student moving to his grandmother's and becoming a student of the local school district, his uncle went to enroll him and shared with the District the student's IEP. The IEP from his incoming school district included a significant amount of Non-Public Agency (NPA) services that were provided during and outside of the school day because of the intensity of the student's needs.

 

These services were not typical for most IEPs, but IEPs are supposed to be individualized. Based on the evidence it had at the time, the IEP team at his previous school district had determined that these services were necessary based on his unique circumstances to provide him with a FAPE.

 

The receiving school district nearly had a fit when it saw this student's incoming IEP. It utilized every procedural tactic at its disposal to argue that it didn't have to implement the incoming IEP as written. That's one of the issues that was addressed by the settlement, so I can't talk about it, here, which is a bummer because the legal arguments around this issue were total fireworks.

 

The bigger point that almost got lost over the arguments over procedure, which was likely the District's intent by arguing over procedure, was what the student substantively required as a matter of FAPE. The receiving school district simply had no intention of paying for NPA services and insisted on stripping out all of the individualized supports described by the student's IEP, which had him placed in a general education setting with age-typical language and behavior models, and placing him in a Special Day Class (SDC) for students with autism.

 

This student was mainstreamed with a 1:1 NPA behavior aide to keep him involved in the instruction and facilitate his language, social, and classroom behavior skills development. The receiving school district proposed to put him in a full-time classroom filled with other students with needs like his own and no models of age-typical language and behavior. He was being successful in his previous placement with the configuration of services described by his IEP.

 

The receiving school district had never met the student, much less assessed him, and therefore had no educational or legal basis to place him in a more restrictive setting. Regardless of whether procedure required the receiving school district to implement the incoming IEP as written or not, it was still obligated to offer and provide a substantively appropriate FAPE. It had no data to inform its offer of services and placement, and certainly nothing that suggested his needs had changed such that a more restrictive placement was educationally necessary.

 

After articulating the request for the receiving school district to implement the incoming IEP as written, this was the District's response, crafted with the assistance of its attorney, as I understand it:

 

Description of the Action Proposed or Refused by the District

 

The [District] and [County Office of Education (COE)] are refusing to provide BCBA supervision of the BIP dated [Date]. The District and [COE] are denying the request for 1:1 instructional aide support to be provided by a NPA. The District and [COE] are also denying in home support, parent training, and direct speech and language services provided in the home. The District and [COE] continue to offer a [COE] operated special day classroom located at [Campus] as an interim placement for 30 days ...

 

Explanation Why the District Proposes or Refuses to Take Action

 

... you requested that [Student] be provided with a BCBA to oversee the BIP. The District and [COE] offered 60 minutes per month of consult behavior intervention services to address the implementation and training of the BIP ... to be provided by a [COE] program specialist with ... required training for Functional Behavioral Assessments (FBA) and BIP ... the District and [COE] feel that the program specialist would be able to implement the strategies and recommendations of the BIP.

 

... you requested that a NPA provide the direct 1:1 instructional aide services. At the meetings, you indicated that the NPA instructional aide is essential to the successful implementation of the current IEP. The District and [COE] recommend intensive individualized services daily ... Intensive individualized services are provided by [COE] instructional aides ... The District and [COE] feel that [COE's] trainings, in addition to the support and oversight provided by the program specialist, provide enough knowledge for [COE] to successfully support [Student] and fully implement the current IEP.

 

The District and [COE] are refusing to provide these additional services and continue to recommend 360 minutes per month of direct speech and language services and 30 minutes per month of consult speech and language services. Given that the in home services that are being requested are now embedded in the categorical program in a way that his prior placement in a non-categorical program did not provide, in home services are not needed.

 

So, that's a lot, but here again is an example of a school district complying with procedure by sending a PWN, but, in doing so, making the record regarding its substantive denials of a FAPE. As stated previously, the receiving school district had conducted absolutely no assessments that indicated that this student needed to be placed in an SDC instead of supported in general education with push-in supports. This was an LRE case.

 

Basically, what the receiving school district was doing was making a placement decision on the basis of what it was willing to spend rather than what was necessary to educate the student in the LRE. The only guidance it had as to what the student required was the incoming IEP. It had no idea whether what it was offering as a 30-day interim placement would completely derail this kid or not (which it would have).

 

The language that jumped out at me that really chapped my hide were the statements about what "the District and [COE] feel" is best in the absence of any evidence. Basically, this was the District and COE admitting to basing their decisions on opinions rather than the facts that the regulations require.

 

It's a violation of both the IDEA and Section 504 of the Rehabilitation Act to to change the type of placement a student with disabilities receives without first assessing to determine that student's current placement needs. Placement decisions are based on what is the LRE in which the services can be rendered such that the goals are met. There was no data demonstrating that an SDC placement was suddenly the LRE for our student, after he had been successfully placed in general education with push-in supports under the IEP he already had.

 

Like I said, this case was ultimately settled and it happened several years ago. But, these kinds of things continue to go on all the time. I'm only citing old cases, here, because I don't want to talk about anything currently being litigated or potentially litigated. The regulations for PWN have been the same for a long, long time, so there's not some recent change in the law that would make older cases irrelevant.

 

As a parent, if you get a PWN in the mail denying a request you've made, don't assume that the explanation you're being given is a good one. Just because it's on official letterhead or official form doesn't automatically make it proper.

 

Really, it all boils down to 34 CFR Sec. 300.503(b)(2), which requires any PWN to include, "An explanation of why the agency proposes or refuses to take the action." The explanation as to why a parent request is being denied better be a good one, or all the District accomplishes is using a procedural requirement to document its substantive denials of a FAPE on the record. If that's the case, it's evidence that parents can use in due process to achieve appropriate educational outcomes for their children with special needs.

IEP Goals Determine Services & Placement

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

California Charter Schools & Special Education

 

Every state has its own rules and regulations regarding charter school organization, configuration, and authorization. In California, charter schools are public schools that take Average Daily Attendance (ADA) dollars away from the school districts their students would otherwise attend. It is unlawful for charter schools in California to charge tuition to their students for this reason.

 

Like all other public schools in California, charters are obligated to abide by the same standards of compliance as any traditional local education agency (LEA) with respect to civil rights and special education law. While charters often like to think of themselves as "schools without rules," that really isn't true.

 

The truth is that some regulations are made easier for charter schools in California, while others are exactly the same as those that school districts are required to follow. The problem is that a lot of charter operators and their contracted vendors either don't know that, or they know it but don't care.

 

Understanding the charter rules for a single state, much less all states and territories, is confusing enough. Recognizing the abuse of those rules can be even harder for parents of students with special needs who require accommodations as a matter of civil rights, which can include an Individualized Education Program (IEP). In my experience, trying to enforce procedure in California's charter school universe usually ends in inter-agency political backstabbing and lawsuits.

 

To understand charter school compliance versus the climate of charter school politics in California, one needs examples. The one that most recently prompted my return to this issue was recently covered by The Camarillo Acorn in its February 7, 2020 article, "Online charter school faces laundry list of violations."

 

Online charter schools are even more challenged to comply with education law than brick-and-mortar charter schools. That said, for the chartering LEA in this particular case, Pleasant Valley School District (PVSD), to squawk about a lack of legal compliance on the part of the school to which it issued a charter, that being Peak Prep Pleasant Valley, is a grievous instance of the pot calling the kettle "black." 

 

I can imagine Peak Prep's violations must be pretty egregious for PVSD to make a fuss about them in the media, and there is truly a fuss to be made as you can see from the article. But, the reality is that the Doctrine of Unclean Hands, at least as I understand it as a lay person, may preclude PVSD from saying a whole lot, which is possibly why it's addressing this situation in the media rather than a courtroom. So basically, black pots throwing stones at black kettles in glass houses, to mix metaphors.

 

I've had four cases from my advocacy caseload in the last couple of school years that have required due process filings, and three of them have been in PVSD. I have an active caseload that averages 20 students throughout the State, mostly in Southern California, at any given time.  These are raw statistics; take them for what you will.  But, to think these amoral jamokes are concerned about anything with this charter situation other than going down with the ship is foolish.

 

Read the article and you'll see there isn't a single, solitary concern expressed by PVSD for the welfare of students, parents, and community members. The only sentiment expressed is on behalf of allegedly overworked and underpaid district administrators who don't have time to clean up messes made by their charters. Not that imposing on district personnel to do what a granted charter requires of the charter school's staff is okay, but I get the same arguments from PVSD in response to asking it to give a kid with disabilities a Free and Appropriate Public Education (FAPE). 

 

This district gets itself into enough trouble on its own. A visibly non-compliant charter that won't get its act together, for which the district is ultimately responsible as the chartering LEA, can only shine a stronger spotlight of scrutiny upon the chartering district. In California, the chartering LEA is ultimately responsible for the conduct of its chartered entities.

 

In special education in California, if you have to file a compliance complaint or due process request for a charter school student, you have to name the complaint against the chartering LEA, not the actual charter school. This is because the LEA is ultimately responsible for the charter school's procedural compliance with special education law and providing FAPE to its special education students, regardless of how the charter school configures its special education services.

 

In California, when it comes to special education, charters can either be "schools of the district" for the purposes of special education, in which case the chartering LEA delivers all special education, or charters can be "LEAs" for the purpose of special education and take care of it themselves. Even if they organize themselves as LEAs for the purposes of special education, there is supposed to be oversight by the chartering LEA to make sure its obligations are met, but I've never seen that happen proactively. It's always a knee-jerk fit of hysterics on the part of the chartering LEA that had no idea what the charter school people were doing until a complaint came over the transom.

 

Based on the sordid history of charters in California thus far, I'd think that any school board reviewing a charter application that claims to organize the school as an LEA for the purposes of special education would exercise ten times the scrutiny as it would if the charter application sought to remain a school of the district for special education purposes. In my experience, the charters organized as LEAs for special education are only organized that way to keep the eyes of their chartering LEA out of their business.

 

Organizing the charter as an LEA for the purposes of special education is, in my experience, an effort to reduce oversight, not increase compliance. I've heard more than one charter operator claim over the years that they didn't want to be taken down by a non-compliant school district's special education department, so they chose to do it themselves, but then they have fewer resources than their chartering LEAs and can't actually deliver.

 

These are the charters that tell parents to take their kids with special needs back to their districts of residence instead of ponying up the resources to actually deliver on functioning as an LEA for the purposes of special education. Nothing prevents a charter from going to its chartering LEA and saying, "We have a unique situation and need your help," to address unusually demanding special education services, such as full-time nursing support for a medically fragile student, for example, but I've never seen a charter organized as an LEA for special education purposes do anything of the sort.

 

When you as a parent are jumping ship to a charter school because your kid with special needs is already getting shafted by your district of residence, this really doesn't help you out. Parents changing schools to avoid having to litigate their children's special education cases often find themselves tumbling over the edge of the frying pan and falling into a blazing fire. It's usually a lateral move at best, and a downgrade at worst. See our previous post, "Parents Who 'School-Hop' Risk Making Things Worse," for more on that.

 

However, PVSD seems to be the one shining the light on Peak Prep, here, which in my experience, usually means there is a fair amount of misdirection going on. By acting as the accuser, PVSD is diverting eyes away from its initial decision to charter Peak Prep in the first place. The last thing any school district wants, including this one, is an official inquiry into how they conduct their business, so when a charter draws this kind of attention, it's usually not good for the LEA that issued the charter.

 

But, it's not like Peak Prep's organizers' questionable history was unknown or that the quality of the charter application wasn't apparent at the time it was made. To quote PVSD's superintendent, "... the cast of characters is not new by any stretch .... The same group has done this before. They should and do know better." I say the same thing to myself every time I help an attorney draft language for a due processing pleading against PVSD on behalf of a child with disabilities.

 

The District's hypocrisy, here, is absolutely wretch-worthy, for sure, but this whole public display over proper education agency conduct is critically informative, and voters should be paying close attention to it. While the PVSD/Peak Prep situation is just one more log on the blazing fire of charter school politics in California, it's also a loud message for voters in Camarillo who are looking at the school board and wondering what it thought it could gain for the local community by chartering an online charter school in the current charter climate. Based on the behaviors of other districts, chartering online schools is about generating charter fees from students in other communities, not improving the options for local families.

 

 

There are two directions in which this story takes my mind, both of which are relevant and equal in importance. First, there is the litigation of the charter school wars that played out in the Santa Clarita Valley a couple of years ago. But, also, there is a privately owned outfit based out of the San Diego area that claims to help charter schools comply with special education law. In my experience, that's not actually what they do. When we start getting into the history of this issue, you will see San Diego come back up again later in this discussion.

 

First, I have to point out what happened in the Santa Clarita Valley, citing the publicly available evidence, but also sharing some first-hand information. That matter involved Acton-Agua Dulce Unified School District (AADUSD) as the chartering LEA and Albert Einstein Academy for Letters, Arts, and Sciences (AEALAS) as the charter school, which has no website because it went out of business due to fiscal insolvency at the end of the 2017-18 school year.

 

During the period of the Santa Clarita Valley charter school debacle, one of the students on my caseload was an AEALAS student, and nothing in the articles I can find online will ever come close to describing the hell that student and his family went through. All of the articles online are about fiscal mismanagement, which aren't untrue, but none of them speak to the horrific special education violations that were going on. We had to involve an attorney who, over several years, had to file for due process against AADUSD for AEALAS's improper conduct on multiple occasions.

 

The Santa Clarita Valley story is revealing and opens up many lines of inquiry for voters of all stripes. These issues affect the lives of our children, families, communities, and public education officials throughout the State. One of the most informative articles I've seen on that whole mess is, "How a tiny California school district sparked calls for a charter crackdown," by CalMatters.org.

 

Rather than belabor all of it here, I encourage you to read the article. The infographic it includes is incredibly helpful. While it doesn't go into details about the special education issues per se, they aren't left ignored. The charter's inadequacies with respect to special education planning briefly identified in the article played out into absolute travesties in real life, before AEALAS ultimately closed down.

 

For example, none of the articles mention the AEALAS official who drank too much at his place of worship one night early during the school's first year, and basically told everyone there, most of whom were AEALAS charter school families, that our student's special education program was going to bankrupt the charter school and close its doors in the first year. This prompted the other charter parents from the same place of worship to send anonymous hate mail (signed with simply "Albert Einstein parents") to our student's family telling them they should pull out so his special education program wouldn't cost all their kids their charter school. So, way to go, religious people, for scapegoating a handicapped child to cover corrupt charter administrative fiscal mismanagement.

 

Clearly, no one had explained to the drunken administrator's constituents that categorical special education dollars can only be spent on special education costs, and none of that money could be spent on general education students in the first place. Our kid came with extra money above and beyond the ADA dollars that all students bring to a charter or LEA on a per-pupil basis, specifically to defray his special education costs.

 

What was really happening was that AEALAS was financially mismanaged from the start. That's why it couldn't get chartered by the six districts and two county offices of education to which it had applied before AADUSD granted it a charter. So they targeted a kid with costlier than normal special education needs, blamed the lack of funding on him, and sicced a pack of misinformed, emotionally underdeveloped adults on him and his family. It was an act of misdirection to make the charter's supporters think AEALAS was otherwise financially solvent all but for our student's special education program, when the evidence is pretty clear that it never was financially solvent at all.

 

Our anti-bullying efforts had to start with the adults at AEALAS, not the students. A non-public agency (NPA) bowed out early on and refused to do further business with AEALAS because the assistant principal at that time refused to abide by the scientifically designed behavior plan created for our student by the NPA, preferring instead to tackle him to the ground and scream in his face (our student was 7 at the time). He then attempted to treat the NPA's professional staffs in much the same way when they tried to get the charter to use positive behavioral intervention strategies, instead.

 

After the NPA's Board Certified Behavior Analysts (BCBAs) tried to explain the science of what they were trying to do, the assistant principal became verbally abusive of them and physically threatening. He scared the crap out of them, actually. They took the matter to their NPA's ethics committee, which wrote a letter withdrawing from service on the basis of AEALAS's ethics violations, of which the NPA refused to be a part. I've never seen anything like it before or since in my entire career.

 

The real issue was cost. An NPA-designed and -implemented behavior program isn't cheap, though it's a heck of a lot cheaper than a lawsuit, and the taxpayers had already funded it. AEALAS was just woefully fiscally mismanaged; it was all about playing games with taxpayer monies provided for the purpose of educating children - a point that keeps getting lost in all the inter-agency infighting that's going on.

 

Also helpful, and linked-to in the CalMatters.org article, is a report published by the California State Auditor in October 2017, in which the players in the Santa Clarita mess featured prominently, titled, "Charter Schools: Some School Districts Improperly Authorized and Inadequately Monitored Out‑of‑District Charter Schools." I mean, they don't even wait until the opening summary of their report; they call it all out in the title.

 

You would think that other school districts in the State would have taken better notice of these developments and the outcomes they've produced. Maybe, however, that's one compelling reason why PVSD is reacting so strongly, now. If so, I have to give PVSD some credit for dealing with the situation within less than a year of issuing the charter, even if it does add to the smarmy politics of the issue.

 

These things, among many others, need to be sorted in public education. Ideally, PVSD wouldn't have issued a charter to an outfit capable of performing this poorly in the first place, but second best is admitting your mistake before it's too far gone, which PVSD appears to be doing, now.

 

Secondly are my concerns about the bad things creeping out the San Diego area with respect to charter school non-compliance with special education law. These charter violations place chartering LEAs in violation, whether the LEAs realize it or not.

 

In the PVSD/Peak Prep matter, one of the players in the current matter from the charter school was previously employed by another charter school that was shut down last year following charges filed against the owners of its parent organization, A3 Education, for pocketing $50M in taxpayer funds by the San Diego district attorney's office. For more information on that, see "How an alleged charter school conspiracy netted $50 million."

 

And, here's where it gets super creepy/interesting, depending upon your point of view. If you look on the Peak Prep website, it opens up by telling you that enrollment is closed. I would imagine so, because another page on the site lists all of the schools shut down by the court-appointed Receiver following the A3 lawsuit.

 

Now, supposedly, Peak Prep has nothing to do with A3, which is the company busted in the $50M charter scam. But, the Peak Prep Pleasant Valley principal, Shalen Bishop, is listed as the principal of University Prep, which is one of the schools listed as closed on the Peak Prep site. It and the other schools listed are A3 schools.

 

So, if that case isn't related to Peak Prep, why is that information on their site? That creates a link between shenanigans in the San Diego area to what's happening in PVSD. This supports PVSD's superintendent's previously quoted statement about this particular "cast of characters" having done this before and knowing better.

 

But, it gets richer. Also in the San Diego area is a privately owned company called Special Education Assistance and Technical Support (SEATS). SEATS doesn't have a website. The closest thing I could find was the LinkedIn profile for the wife of the husband/wife team that own and operate SEATS. There are also some job listing sites that come up when you do a search for SEATS, indicating that the agency is looking to hire resource specialists and speech-language pathologists.

 

But applicants be warned, SEATS reportedly does not cover travel time or mileage to dispatch their special education staffs all over Kingdom Come to serve students in independent studies and online charters. Even if a school is virtual, if a special education student of such a school still needs 1:1 specialist support to participate in instruction, or otherwise needs specialist services in person, the law requires the school to meet the needs of the child, not expect the child to warp themselves to fit the charter school's pedagogy. The whole point of special education is to individualize the program to meet the unique needs of the student.

 

SEATS has a reputation for making special education service decisions on the basis of how much they are willing to spend rather than individual student need. They also have a reputation of short-paying their vendors and speaking to them disrespectfully in IEP meetings and/or screaming at them outside of the meetings if they dare to recommend anything SEATS hadn't already approved for expenditure in advance of the meeting.

 

Needless to say, none of SEATS's employees are in a union of any kind. It's also not a coincidence that the teachers' unions in California are backing current efforts in Sacramento to take on this whole charter mess. Most of the charters in California, virtual or otherwise, do not have unionized certificated personnel, which has contributed to high turnover rates and disclosures among professionals about what they have been experiencing.

 

In the course of developing this post, I spoke with a colleague still employed by a virtual charter and she's just waiting for the State to come after her employer. All of the virtual charters are apparently starting to freak out because of all the accountability that is now coming their way. While she needs a job, she is also morally outraged by what she sees on a daily basis.

 

The stress of working for this charter is affecting her health and she has no union to turn to, but she also recently had to take her local school district to due process on behalf of her own child with special needs and it's not like they're going to hire her to work for them, after that. I've received similar feedback regarding work-related stress from former contractors of SEATS over the years that mirror what my colleague at the virtual charter was expressing to me the other day.

 

SEATS alleges to help charter schools comply with the special education regulatory requirements, but I've seen them mostly help charter schools try to dodge the special education regulatory requirements. SEATS personnel have been alleged to tell families that the charter school they chose cannot support their children's special education needs because they don't offer "those" kinds of services, so the families need to go back to their regular school districts.

 

The owners of SEATS once emailed me while they were on a cruise to tell me that the charter school in the case we were discussing didn't have the money to pay for the services we were requesting. Forget that the charter was paying SEATS to make sure they were provided.

 

As best as I understand it, SEATS basically tells its charter school clients, "Give us your entire special education budget for the year, and we'll make sure you don't get in trouble." However, the owners pay themselves out of that money, they have multiple charter clients, and they go on a whole lot of trips and cruises while kids with disabilities go without special education services that SEATS is supposed to provide, but "can't" because their charter clients don't have the money to pay for them.

 

From what I've seen, it's not that SEATS is trying to keep charter schools from making mistakes; it's that SEATS is participating in and profiting from the same charter money scams that are going on all over the State to hide mistakes, if not outright corruption, from authorities. They simply occupy the special education niche within this whole shameful legislative disaster.

 

One of the other charter systems being scrutinized, now, is the Inspire chain of charter schools. I had a student on my caseload a year or two ago who was an Inspire student. His online/independent study program was chartered by none other than AADUSD. Inspire also has programs chartered in the San Diego area, where the A3 $50M matter was tried. Now Inspire is under scrutiny for, among other things, lack of transparency, and I'm not the least bit surprised.

 

Like most of my other special education students accessing in-home instruction through independent study and/or online instruction, my Inspire student's situation wasn't about school of choice. The brick-and-mortar setting wasn't accessible to this student because of his disabilities, making his living room the Least Restrictive Environment (LRE) in which he could receive and benefit from instruction. He had previously been in an independent study charter that used SEATS for special education and, when that didn't work out, they went to Inspire.

 

When things get so extreme that instruction in the home is the only way for a student to access education in a regular school district, you get a doctor's note stating that it's medically inadvisable for the student to attend a regular school and the IEP placement can be changed to home/hospital. The only placement more restrictive is a 24/7 residential facility with a school on its grounds. But, because every kid's living room is the general education classroom in an online or independent study program, it's not considered restrictive at all.

 

Because the general education "classroom" and special education "classroom" are the same thing in an online or independent study program, trying to write an IEP for a kid in such a program is generally a nightmare of technicalities and questions of procedure. Then there are the fights over where special education and related services will be provided.

 

Even though school districts will hire staffs to provide in-home services as needed to facilitate access to instruction, almost every online and independent study program I've ever encountered refuses to send anyone to the home for any special education purpose other than assessment, and even then, sometimes not. So, even if you've got a kid whose disabilities make it impossible to get them to participate in instruction and they need in-home BCBA support to overcome that behavioral challenge, most independent and online charters won't even think of sending over a BCBA or will only do it upon threat of complaints or litigation.

 

These online and independent study programs will try to get IEP services pushed out into the community rather than into the student's home, which mostly has to do with the insurance costs and the related liability of sending teachers and specialists into people's homes. They'll try to make the parents drive their kids to meet teachers and specialists in the community when these kids are only in home instruction because getting them out of the house is often so hard. One of my past clients would drive to the next town over with their kid to accommodate the fact that SEATS wouldn't pay their special education teacher mileage or time to drive to their community.

 

Instead of individualizing the instruction, online and independent study schools tend to use their pedagogy as their excuse for not tailoring the IEP to the individual student, as required by law. So, the bottom line to all of this is that parents of children with special needs in California need to think long and hard about whether a charter school is appropriate for those children, particularly an online or independent study charter.

 

It's not that charter schools, even the online and independent study ones, in theory, are a bad idea. It's that they are improperly regulated in California, so they are becoming something other than what they were intended to be. In no small part, this is because certain elements out there don't want their kids going to school with "those other kids," and are trying to twist the charter system into a system of segregation.

 

Whoever happens to be "other" relative to the parents practicing such bigotry and teaching it to their kids, with the help of the dysfunctional charter system for profit, depends on the parents. Sometimes it's racism. Sometimes it's religious extremism. Other times it's socio-economic classism. Sometimes it's people who don't want to be criminally prosecuted for not sending their kids to school and couldn't possibly care any less than they already do about education.

 

There are enough people out there who don't want to abide by public education's true intent and will try to twist the system to fit their ill-intentions to do obvious harm. Such has been the case with charter schools in California, which is finally prompting a louder call for more appropriate regulations. The concern for many is all kinds of vendors profiting from the existing dysfunctional system without delivering actual educational outcomes, which circles us around back to SEATS.

 

The situation with Peak Prep Pleasant Valley speaks to the running concerns I've had for years about how SEATS is funded. PVSD is asserting that Peak Prep violated the California Education Code and the State's labor laws by giving away its control of "hiring and termination decisions" to a third party contractor, called Educational Staffing Services (ESS). It is further asserting that Peak Prep "engaged in fiscal mismanagement" by giving over its administrative operations to yet another 3rd party contractor, Accel Schools, which is owned by the same guy who signed the contract between Peak Prep and ESS as ESS's CEO.

 

According to PVSD, Peak Prep gave Accel control of its funds and failed to complete requested financial documents. PVSD can't see how Peak Prep is using its funds because its operating budget is "obscured by a lump sum payment in exchange for the program services, all delivered by Accel." This is, to the best of my understanding, the same model as how SEATS gets funded.

 

Like Peak Prep giving its money to Accel in a lump sum, which then shows up in its budget as a single line item with no detail on how that money was spent, SEATS's clients are giving it lump sums that represent their entire special education budgets for the school year. I have to wonder just how many details they are sharing with their charters and how many of those details the charters are sharing with their chartering LEAs about where that money is going. I have reason to suspect that it's paying for cruises rather than special education services.

 

To be fair to vendors and contractors who serve charter schools in California, it's honest to say that the laws are a mess and even the most well-intended vendor is at risk of getting into trouble over finances just because of how poorly regulated charter schools are in California. Rabbi Mark Blazer, who spearheaded the failed AEALAS endeavor in the Santa Clarita Valley, was quick to point out "bad charter policy" in California, and he's not wrong that California's charter policies are bad.

 

It's just that most of the charters out there, in my experience, see the bad policies and weak regulations as exploitable opportunities for profit. The children and families horribly affected by their actions are just collateral damage, not the intended targets. Students are just a means to a financial end to these people. The harm done is all the same regardless of intent, and it's far-reaching.

 

A whole bunch of very crooked people have now stolen way too many taxpayer dollars in California that were invested by the public into education. California has created a charter school system that is more about moving money around, mostly into the pockets of the wrong people, than educating students. While Betsy De Vos may find that acceptable, most Californians - heck, most Americans - do not.

 

A system like this entices the least savory people on the planet to parasitically attach themselves to it wherever there is an exposed spot, such as the loophole-laden charter laws in California, and suck the system dry before it realizes how much it has hemorrhaged. The cases making it to media make that clear. The chief perpetrator in the $50M A3 scandal is an Australian national.

 

The unspeakable number of dollars spent on litigation, whether its families suing to get special education services or school districts suing each other over ADA dollars, takes funding out of the classroom and creates overworked and underpaid certificated personnel. This is a voter issue that isn't getting enough attention, but with the election coming up later this year, Californians will have the chance to hold the State and their local school boards accountable and elect or re-elect officials who will clean up these messes in a timely, responsible way.

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Positive Behavioral Interventions and Supports in Special Education

In memory of Cedric Napoleon

 

I wasn't going to write on this topic quite yet, but I'm working on a case right now that has me upset over public agency mismanagement and misconduct that has resulted in the physical abuse of our nonverbal student with severe special needs and God only knows how many other students within this public education agency. It reminded me of a lot of things, including our organization's founding and the protective purpose KPS4Parents has always served as student and family advocates.

 

I maintain my list of topics to write about as draft posts on the backend of our site, sometimes just as a title, sometimes with a brief description, as the ideas come to me and, when I go to write, I have them more or less organized in my head in the order I want to write them. But, sometimes, like now, something happens that makes one of the topics leap up to the top of the list.

 

I am currently providing paralegal support to an attorney on a case in which our student has gone for years without behavioral interventions in her IEPs after previous years of successfully benefitting from such IEP interventions. She has regressed to the point where she was behaviorally 10 years ago, before receiving any appropriate behavioral interventions at all.

 

The educational neglect in this case rises to the level of physical abuse. The school district's bumbling ineptitude at the expense of our student's welfare has been nothing short of galling. Our student is now sitting safely at home waiting for her case to be either adjudicated or settled but without the benefit of any instruction or related services until it's resolved.

 

Which takes me back to the founding of KPS4Parents and the event that was the last straw that compelled our founder, Nyanza Cook, to start KPS4Parents. In 2002, I was a lay advocate in private practice helping families of students with special needs, and Nyanza hired me to help her with her step-son's case, which is a story unto itself for another day. It's how we met and these were the early days. It was the context we were in at the time.

 

Nyanza hails from Killeen, Texas near Fort Hood, the largest U.S. Army base in the continental United States. While diversity has been tolerated, if not embraced, within the U.S. military in many instances, outside of the military base in the rural areas of Texas, diversity is not so much appreciated. Killeen Independent School District (KISD) has historically operated separate schools for students with "behavioral problems," most of whom have been African-American or Latino. The quality of special education in KISD has been historically abysmal, particularly for students of color, which is how it's misconduct led to our organization's founding.

 

In 2002, a young man named Cedric Napoleon was attending a Special Day Class (SDC) at one of KISD's special schools for students with "behavioral problems." Cedric was a foster child living with his foster mother, Toni Price. He had experienced severe trauma in early childhood, including deprivation of food for days that led to a food hoarding behavior and other behavioral challenges. He was in special education under the Emotional Disturbance (ED) category and his SDC was supposed to be configured specifically for students with ED issues.

 

Also in the classroom at the time was Nyanza's nephew. On one fateful day in March 2002, Cedric was suffocated to death by his classroom teacher during a prone restraint. He was not being violent towards others, trying to run out of the classroom, or hurting himself when she restrained him. He was being non-compliant and she took it as an affront to her authority. She pinned him face down on the floor out of hostile rage and when he said, "I can't breathe," she replied, "If you can speak, you can breathe." He expired shortly thereafter as Nyanza's nephew and his classmates watched on in horror.

 

That night, Nyanza got a hysterical phone call from family members gathered at her parents' house in Killeen. They knew she was talking about starting a special education advocacy organization and had been advocating for her step-son in California. They put her nephew on the phone with her and all he could say in a dazed voice was, "They killed him, Auntie. They killed him." He was terrified to return to school after that, and never did. His life has been one of despair and tragedy ever since.

 

The day Nyanza's nephew witnessed Cedric's murder in his classroom by his teacher, he was already there because he had his own ED issues. To add the trauma of witnessing Cedric's murder to his own pre-existing special education needs, in the place that was supposed to help him overcome his pre-existing special education needs and at the hands of the person who was supposed to help him, was just too much.

 

More than one life was destroyed that day. Cedric's classmates witnessed his murder in that ED SDC and were affected for life in ways that could only lead to more suffering for them. The District's students most vulnerable to trauma were severely traumatized by one of the most grotesque abuses of their trust possible. They witnessed their teacher kill a classmate for daring to defy her authority.

 

Nyanza called me that night as soon as she got off the phone with her family and told me what they had told her. She and I agreed that when teachers were murdering our babies in plain sight of our other babies (we have an it-takes-a-village mentality, which makes all babies our babies), we couldn't stand idly by. The death of Cedric Napoleon was the final straw that compelled Nyanza to go through with starting our organization, she asked for my help, I said "Yes!" without hesitation, and we had our paperwork in order by June of 2003.

 

In Cedric's case, to make matters worse, once his life had ended, so had his foster mother's legal authority to act on his behalf as a parent. She could not pursue justice for him because she lacked the legal authority and the foster care system did little to nothing about it. Cedric's killer was never tried for murder. She was never subject to any disciplinary action by the public education system in Texas.

 

On May 19, 2009, Toni Price finally got her chance to do something about what had happened to Cedric. The Education and Labor Committee of the U.S. House of Representatives was being presented with a report of the findings of an investigation the Committee had previously ordered to have done by the Government Accountability Office (GAO) regarding the use of seclusion and restraints in public schools. There had been a fairly recent similar study conducted of private schools that produced shocking and horrifying disclosures as bad as Cedric's or worse, and the Committee had wanted to know if these problems were also pervasive in our nation's public schools.

 

The GAO report started circulating among those in my professional circle online shortly after the hearings and ultimately found its way to me. I remember reading through it and getting to the section describing what happened to Cedric and going, "Wait a minute. I've heard this story before ... OMG! This is the kid from Nyanza's nephew's class!" I immediately forwarded the report to Nyanza and either called or texted her to follow up. At some point we ended up on the phone and she was flabbergasted to see Cedric's story spelled out in the report. It was the same student she had told me about back in 2002.

 

In the course of conducting its investigation, out of all of the cases of problems with seclusions and restraints that GAO examined, Cedric's stood out as particularly horrifying, in no small part due to the fact that his killer had never faced any serious consequences for killing him at the time of the investigation. The investigators searched for this teacher when their investigation revealed that she had faced no consequences and, shortly before the date of their presentation to the Committee, found that she had relocated to Virginia and was running an SDC on a public school campus that was only a 45-minute drive away from where the Committee was convening to hear the presentation of their report.

 

There was no effort to conceal the outrage that several Committee members expressed over the fact that this woman had not only killed an ED student in the ED SDC where she was supposed to be helping him get better, but that she faced no consequences and was able to get credentialed in at least one other state because the fact that she had killed a student didn't follow her on her record. They openly referred to Cedric's death as a murder.

 

The Committee's disgust is exposed during the hearing (click here for video of the full 2-hour hearing), and I share that disgust. It is disgusting; disgust is the only healthy response to what this woman did. Rep. Rob Andrews (1:22:22 - 1:28:16 of the hearing video), Rep. Lynn Woolsey (1:53:02 - 1:54:18 of the hearing video), and Rep. George Miller, Committee Chair (1:55:21 - 1:57:44 of the hearing video) had particularly candid things to say and there was bipartisan heartsickness over the whole thing.

 

The only reason Cedric's killer was found was because of the GAO's investigation. Had it not conducted it, a known killer would have been allowed to remain as a fox in a henhouse, circulating among the same types of individuals upon whom she had preyed before. Their parents had no idea they were sending their vulnerable children off to a child killer each school day. Even now, almost 11 years later, the thought still makes me shudder with horror.

 

The Committee's take on the situation was influenced in no small part by the testimony of various witnesses produced by the investigators in support of its findings. Among those asked to testify was Toni Price, Cedric's foster mother. Her testimony was compelling; even now, it still makes me cry.

 

Toni argued for a national, if not global, directory of teachers found guilty of child abuse for education agencies to use for screening teaching applicants, and she did so from the most informed position possible. She spoke as the primary caregiver of a child with mental health needs killed by the person entrusted to address them every day at school, but with no legal recourse to do anything about it, leaving advocating for that child and protecting others like him to no one. Only the fluke of a Congressional investigation at the right time on the right topic exposed what happened, and Toni took the opportunity to say what needed to be said.

 

Which brings me back to the topic of this post and podcast, which is the use of Positive Behavioral Interventions and Supports (PBIS) in special education. Subsequent to the May 2009 hearing, GAO began gathering additional information and the U.S. Department of Education began promulgating guidance and technical information regarding PBIS. In 2012, the U.S. Department of Education produced the Restraint and Seclusion Resource Document.

 

In February 2019, after 10 years of collecting data on the use of seclusion and restraints in our public schools, GAO produced another report and another hearing was held during which the last 10 years' worth of data collected and analyzed were presented to the Committee. Witnesses gave testimony, provided additional evidence, and answered questions. You now can look up the CRDC data for your own school district on the CRDC site.

 

Shortly thereafter, the U.S. Department of Education announced an initiative to address the inappropriate use of seclusions and restraints in our public schools. Just this last December, four members of the U.S. House of Representatives proposed a bill, HR 5325, referred to as the “Ending Punitive, Unfair, School-based Harm that is Overt and Unresponsive to Trauma Act of 2019” or the “Ending PUSHOUT Act of 2019," which seems like way too poor of a word choice for a name just to create an acronym, but the body of the bill still nonetheless prohibits seclusions and restraints and includes other regulations pertaining to behavioral interventions.

 

HR 5325 is still a bill pending before the Education and Labor Committee of the U.S. House of Representatives. It was introduced just last month, so obviously nothing has happened with it, yet. Congress has been a little busy lately and the last time the Committee tried to pass legislation to address seclusion and restraints in 2009, it passed in the House only to never see the light of day in the Senate. That's likely to happen again, now, with our current configuration of Congress, but the effort still needs to be made.

 

What GAO reported in the most recent hearing was that there wasn't enough data in, yet, regarding the efficacy of Education's efforts to promulgate PBIS technical information and guidance among the public schools or the degree to which the schools that availed themselves of it found it beneficial. In controlled research situations in which implementation fidelity was maintained, PBIS was proven to work, but how well public schools actually implement it with success in the absence of researcher oversight and fidelity checking remains to be seen.

 

What seems to be the case, and the whole reason this issue is before the House Education and Labor Committee, again, is that there is an obvious need for federal oversight and regulation, here. There is a lack of consistency from state to state as to how behavioral interventions are to be implemented in schools. Some states have regulations regarding seclusions and restraints in schools and others do not. Even those states that have laws in place don't provide for adequate enforcement of those laws.

 

The lack of built-in accountability has made it possible for horrible situations to happen. And, they continue to happen. The only way the public school system is held accountable in situations like these is when individual families take legal action. Hence, the case I'm now working on that has made these issues spring to life for me, once again, much to my deep disappointment.

 

Educator and support staff training, or a gross lack thereof, more specifically, is often at the heart of these cases. But, so is the lack of teacher accountability and the degree to which educators tend to cover up each other's tracks, even if it means a child dies in the process.

 

The fear of talking usually goes to fear of losing their jobs, fear of reprisals from their co-workers, fear of being held accountable for the actions of others, fear of getting in trouble for the same thing for which someone else is getting in trouble because they've done it, too, and has to come with a tremendous amount of internal conflict. Only sociopaths could smoothly walk that rocky landscape without being troubled by the experience.

 

The willingness of school administrators to let something as horrible as student traumatization, physical injury, and/or death by the hands of teaching staff and aides in the learning environment get swept under the rug and hope nobody notices, if not actively seek to conceal it, is repugnant. There is a lack of professional integrity in the public education system that can reach sickening proportions, and these cases are examples.

 

So, I really don't have an upbeat ending for this post and podcast. I'm pretty not okay with what I'm still seeing going on with respect to seclusion and restraints in public schools in California, which is supposed to be the most progressive state in the country. It's particularly bad in rural communities far away from specialists and adequate facilities, particularly when those communities are mostly made up of low-income households.

 

In some cases, like the one I'm working on now, the student has experienced nothing short of absolute barbarism. It shouldn't take people like me helping to hold the public education system accountable after the fact. The answer is prevention. In the absence of any guidance in the student's IEPs as to how to address her behaviors, she was repeatedly secluded and restrained by teachers and aides who didn't know what else to do.

 

This was all just up until a few weeks ago, which is why she's now safely at home but without any instruction or related services until her attorney, in collaboration with me as his paralegal and the experts we're bringing onto the team, can get this mess cleaned up. It just sickens my heart that after all the years that I've been doing this work - 29 years this coming June, mind you - this is where things are still at. In the most progressive state in the Union, we're still secluding and restraining non-verbal students who are struggling to communicate their wants and needs. It puts bile in the back of my throat.

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How Parents Can Help Promote the Application of Peer-Reviewed Research to Special Education

Image credit: Elco van Staveren

 

Special education is heavily regulated to protect the rights of eligible students to individualized educational planning, but complying with the regulations is easier said than done. The operational design of most public schools is over 150 years old and based on the mass production mentality of a factory, having been created during the Industrial Revolution. By contrast, the applicable special education laws were first passed in the 1970s, accounting for only the last 1/3rd of the current American public education system's history.

 

Trying to implement the individualized educational planning called for by special education law in an environment created for the purpose of mass instruction is like trying to build a custom piece of furniture on a moving assembly line. In the early days of special education, this meant removing students from the general education setting to special education classes, effectively choosing to build a custom piece of furniture in a specialized workshop rather than on the pre-existing assembly line.

 

The problem, however, is that pieces of furniture do not have civil rights. It's one thing to segregate inanimate objects according to how they are constructed. It's another thing to segregate human beings according to whether they need changes in how they are instructed due to disability.

 

Because special education students have legal protections against being segregated out of the general education setting simply for having a disability, integrating individualized educational planning into a mass instruction environment becomes that much more complicated for special education students who are educated with their general education peers for all or part of their school days. The complexities of individualizing educational programs for each student are seemingly infinite, given all of the relevant disability-specific considerations plus all of the ecological factors involved in each instructional setting.

 

However, science - specifically research conducted by educational psychologists and their colleagues - has been attempting to keep up with the demands created by various types of unique student needs, including disabilities of all kinds. While it all hasn't been figured out for every situation by any stretch of the imagination, there is still a wealth of information from education research that never makes its way into the classroom, much less into individual IEPs.

 

That's a problem because Title 34, Code of the Federal Regulations, Section 300.320(a)(4) mandates the application of peer-reviewed research to the design and delivery of special education on an individualized basis, unless it's not practicable to do so. No one has yet defined what "practicable" actually means, so it's still up for debate.

 

The history of how all this science ended up being codified within the implementing regulations of the Individuals with Disabilities Education Act (IDEA), has been summarized in our last blog post, "The Fundamental Flow of IEP Creation," so I won't repeat it here. You can review the impact of PARC v. Pennsylvania in that post to inform references to it, here.

 

The point is that the applicable science has always been written into any serious redress to the educational needs of students with disabilities after having been deprived educational benefits by the public school system. In PARC v. Pennsylvania, a psychologist with extensive experience working with children with intellectual disabilities and an attorney committed to representing the interests of children with intellectual disabilities were jointly appointed by the federal court to serve as special masters to oversee the implementation of appropriate interventions to students with intellectual disabilities in Pennsylvania's public schools as part of the settlement that was negotiated between the parties. The settlement included federal court oversight by way of the court-appointed special masters.

 

The historical foundations of the requirements for measurable annual goals in IEPs pursuant to 34 CFR Sec. 300.320(a)(2) and the application of the peer-reviewed research to the delivery of special education as mentioned previously can be traced directly back to PARC v. Pennsylvania. There has never been a time when the law did not expect the delivery of special education to be informed by anything other than evidence-based practices developed from the peer-reviewed research.

 

From the moment the first laws were created to provide special education to all eligible children in the United States, science was built into its design. Federal Supreme Court case law has established that Congress expected procedural compliance with the IDEA to all but guarantee compliance with the substantive requirements of the law when it authored and passed what is now the IDEA. Specifically, the case law states, "...the Act's emphasis on procedural safeguards demonstrates the legislative conviction that adequate compliance with prescribed procedures will in most cases assure much, if not all, of what Congress wished in the way of substantive content in an IEP." (Board of Educ. v. Rowley, 458 U.S. 176 (1982))

 

Congress intended for the applicable science to guide the special education process for a number of good reasons. First, using science means using what everybody can agree actually works under a given set of unique circumstances, to the degree such is known. There is evidence - proof - that under the explicit conditions that were tested, a particular method of intervention works or doesn't.

 

Because every special education student presents as a highly unique individual such that their learning needs do not conform to conventional instruction, they require highly individualized instruction that is tailored to each of them, respectively. There is no one-size-fits-all method of intervention proven to work in special education contexts. What is proven to work is writing up a unique program of instruction for each individual student. That is the evidence-based applicable science, that is the bottom line requirement of the applicable federal law, and this has been known and federally regulated since 1975.

 

This, therefore, begs the question as to why so much of special education is based on subjective opinions, ballpark estimations (often underestimations), and fad theories about learning rather than science. There's been a lot of research into why the research isn't being promulgated for use in public education and politics has a lot to do with it.

 

Applying the research means upgrading facilities, retraining teachers and their support staffs, buying new materials, and paying for more specialists. Further, it's often necessary to purchase all of the research materials necessary to inform any kind of evidence-based program design and hire someone who knows how to translate the research into a data-driven educational program. For highly paid top agency administrators who get compensated on the basis of how much money they don't spend rather than how many students they do get educated, applying the research means spending money, and that's no way to get a raise in that kind of institutional culture.

 

Another concern of many public education agencies is accountability. When using evidence-based practices in the delivery of special education, one can't ignore the body of research that supports that the data collection and analysis methods used in Applied Behavioral Analysis (ABA) are the most reliable methods of data collection and analysis used in any special education context (Drasgow, Yell, & Robinson, 2001; Kimball, 2002; Yell & Drasgow, 2000). The problem for some education agencies is that valid data collection means all their missteps will be captured by the data. If they aren't actually implementing the IEP as written, the data will reflect that, exposing the agency to legal consequences.

 

People often mistake ABA for a treatment for autism, but this is not the case. It is true that behavioral interventions using ABA can be effective at addressing behavioral challenges with students who have autism, as well as any other human beings with behavioral challenges, but it can also be used as an instructional methodology and as a tool to determine if learning has occurred and, if so, how much. That is, it is excellent at measuring progress towards a clearly defined outcome, such as a measurable annual IEP goal.

 

The Antecedent-Behavior-Consequence (ABC) data collection methods used in ABA naturally lend themselves to measuring progress towards IEP goals. This is how it works: a stimulus (Antecedent) is presented to which the student responds with a specific Behavior, which immediately results in an outcome (Consequence) that either increases the likelihood of of the behavior happening again (reinforcement) or it doesn't (absence of reinforcement or punishment).

 

Most people in special education are at least familiar somewhat with using this approach to dealing with inappropriate behaviors. You don't want to deliver a reinforcing consequence when an inappropriate behavior occurs. Instead, you want to reinforce a more appropriate replacement behavior that still meets the student's needs; the behavior was happening for a reason and you can't leave its function unaddressed or a new behavior will just develop around it. Treat the cause, not the symptom.

 

You only resort to punishing the undesired behavior when reinforcing the desired behavior is not sufficient at extinguishing the undesired behavior. Presenting reinforcement for doing what is expected and withholding reinforcement for doing what is not expected is usually a pretty powerful strategy for positive behavioral interventions.

 

When using ABC data collection and analysis on the fly during instruction, your thought process is a little different. When you're looking at whether a student is learning from the instruction you are providing, especially when working with students who have significant impairments that limit their expressive communication skills, sometimes it's the raise of an eyebrow, the turn of a head towards you with eye contact, or the smile or grin that tells you whether or not you're getting through. There is still an Antecedent (the delivery of your instruction and/or check for understanding), a learning Behavior (the student's response to your instruction and/or check for understanding, whether verbal or not), and a Consequence (praise for learning or encouragement for trying) that increases the likelihood that the student will remain engaged and continue to participate in the instruction.

 

When using ABA-based data collection methods to measure for IEP goals, so long as the goals are written as math word problems based purely on observable learning behaviors, it's pretty straight forward. Take for example this goal, which is purely made up for illustrative purposes: "By [due date], when given 10 calculation problems using multiplication of double digit numbers per trial, [Student] will calculate the 10 problems with at least 80% accuracy per trial in at least 9 of 10 consecutive trails within a semester, as measured by work samples."

 

This is easy. There are 10 problems per trial. The student needs to get at least 8 out of 10 problems right per trial (measure of accuracy) in at least 9 out of 10 consecutive trials (measure of consistency) within a semester (measure of time) in order to meet the goal. Nothing is left to guesswork. Everything is represented by an increment of measure.

 

What ruins a goal out of the gate is basing any part of it on internal thoughts and feelings experienced by the student. Never start a goal with language like, "... when feeling anxious or angry ..." or "... when presented with a non-preferred task ..." You can't trigger the onset of measurement based on something you can't observe. You only know what the student is thinking or feeling once they express it in some way.

 

There is no way to get in front of the student's expression of their thoughts or feelings to prompt their behavior in an appropriate direction because there is no way to know what the student is thinking or feeling before they act. Other people's thoughts and feelings, including those of special education students, cannot be observed or known by other people. No credential in special education imbues special education personnel with clairvoyance. By the time you know what the student is thinking or feeling, it's too late to influence how they act on those thoughts or feelings; you only know because they've already acted.

 

The same goes for preference. Preference cannot be observed and it can vary from day to day, or even moment to moment, for a lot of special education students. What is preferred at one time will often not be preferred at others. Eventually it is possible to have a good idea of what is not preferred by a student, but then confirmation bias can enter the picture and you see what you expect to see, not realizing you're prompting it according to your preconceived expectations.

 

What makes more sense is to write goals that do not target what are referred to in ABA as "private events," but rather to expected behaviors. For example, a common behavior targeted in the IEPs of students with challenging behaviors is work refusal, which is to say non-compliance with task demands. A teacher will assign a task and, if the student is non-compliant, they will either passively sit there and just not perform the task; do something else passive instead, like doodle or read a book; engage in distracting or disruptive behavior, like play on their phone or talk to their neighbors; or engage in outburst behaviors, possibly accompanied by leaving the room (eloping).

 

It's usually pretty easy to figure out if there is a pattern to the types of tasks assigned and when non-compliance occurs such that preference can seem easy to identify. But, trying to rely on that for the purpose of measurement is like trying build a house on shifting sands because someone's preferences can change so quickly.

 

The language that I see most commonly used in goals that work around the issue of private events reads more or less like this: "By [due date], when assigned a task, [Student] will either initiate the task, ask for help, or request a 2-minute break within 60 seconds of the task being assigned in at least 8 of 10 consecutive opportunities as measured by data collection."

 

This makes things easy. Regardless of whether the student has a personal preference or not for the task being assigned, they will either start the task, ask for help with the task, or take a short break and get it together before they come back to the task.

 

Some students have processing speed delays that interfere with their ability to get started right away. They need extra time to process the instructions so they understand what you want them to do. Sometimes that extra little break is all they need to get there independently. It just takes them a little longer to think it through and make sense of what you want from them before they know what to do and can start. Other students get emotionally overwhelmed and just need to go get a grip before they tackle the expectations being placed on them. Yet others take longer to stop one activity and transition to another one. That short little break can buy them the time they need to process the mental shift of set and orient themselves to the new demands being placed on them. Other times, students just don't understand the expectation being placed on them and need clarification.

 

In any event, if there's a problem, the goal provides a solution; otherwise, the student just needs to perform the task as assigned. Further, the language of this example goal can be modified for a student to provide for alternative acceptable responses and/or a different response time.

 

With respect to measurability, there is no guessing about what anybody is thinking or feeling in a goal formatted this way. Measurement is triggered by the delivery of a task demand (the assigned task) and is based on whether any of the described acceptable outcomes occur within 60 seconds. All of the elements of the goal are measurable.

 

Further, a goal written this way follows the ABC format of ABA. First an Antecedent is presented (the task demand), then one of three acceptable Behaviors (task initiation, request for help, request for break) occurs, then an appropriate Consequence (completion of the task, delivery of help, or receipt of a short break) is immediately forthcoming. Everything that needs to be measured can be observed. The observable criteria are easily represented in increments of measure. It's black-and-white without making any assumptions about a student's thoughts, feelings, or preferences.

 

So, having said all of this, how does this get us to the point of the article, which is how parents can successfully advocate for the application of the peer-reviewed research to the design and implementation of their children's IEPs? Well, first, I needed to be clear as to what I mean by applying the peer-reviewed research, hence everything I just got through explaining.

 

Parents first need to understand what they are asking for and how it impacts the design and implementation of their child's IEP. Further, any professionals reading this for the purpose of further developing their skill set may not have all the background information necessary to make sense of all of this, either.

 

A foundation first had to be laid. Having now done that, parents need to keep the information I've just shared in mind when participating in IEP meetings and reviewing IEP documents for appropriateness.

 

If you live in a consent state like California, I usually suggest signing only for attendance at the meeting and taking the document home for review before signing agreement to any of it. In California and other states, you can give partial consent to an IEP and the education agency has to implement the consented-to portions without delay while the non-consented-to portions remain subject to IEP team discussion and negotiation.

 

Anything that can't be resolved via the IEP process must go to due process for resolution, whether you are in a consent state or not. Just because you are not in a consent state doesn't mean that an education agency won't change the language of an IEP at your request. An IEP meeting would likely be called to discuss your concerns and, if you back them up with facts and logic, the education agency isn't going to have a good reason to say, "No." Not everyone is outlandishly unreasonable in special education; there are some definite bad apples, but they don't account for the entire barrel. Due process is your only resort if your efforts to resolve things at the IEP level are not met with success and your child is increasingly compromised because of the unresolved matters.

 

If you are unfortunate enough to have to rely on due process to see things resolved, the fact that your denied requests were supported by facts and logic will only help your case once you get in front of a hearing officer. Understanding the underlying arguments of what makes something legitimately measurable and the federal requirement that special education be delivered according to what science has already proven works makes you a far more informed IEP participant than at least some of the other people at the table.

 

As a parent, the more you can support your requests and arguments with peer-reviewed research, the better. Once you frame your requests according to the proven science and make it as black-and-white as possible, you eliminate all kinds of silly arguments. This means not only asking for goals that are truly measurable, though that goes a long way towards solving and preventing a lot of problems, but also understanding the nature of your child's disability(ies) and what the research says can be done to teach to learners with such needs.

 

Gathering the necessary research data to inform a request for a particular assessment, service, curriculum, methodology, technology, or placement requires accessing the peer-reviewed literature and understanding what it means. A lot of it is really dry and technical, as well as expensive. This isn't a burden parents should have to take on, but if it's one that they can take on, it will only help them become better advocates for their children. Google Scholar can be a good place to start.

 

In truth, it should be education agency personnel doing this research, but if parents want to see the science applied, they may have to push for it, themselves. Parents can also submit published research articles to their local education agencies that appear to apply to their children's educational needs and request that the approaches used on those articles be used as part of their children's special education programs, including being written into their children's IEPs. If the local education agency declines to honor any request, 34 CFR Sec. 300.503 obligates it to provide Prior Written Notice (PWN) explaining why to the parents.

 

Conversely, if the education agency proposes a particular approach and the parents are unsure about it, the parents can request an explanation of the peer-reviewed research that underpins the education agency's offer. Either it honors the request or it provides PWN explaining why it won't. If it's the latter, it better be one heck of a good explanation or it will only reveal that the education agency has no research-based explanation for its recommended course of action, giving the parents a good reason to dispute it.

 

If what you are asking for as the parent is backed up by facts, logic, legitimate measurement, and credible research that all directly apply to your child, and the education agency still says, "No," then you will either end up with no PWN because the agency doesn't want to put the denial in writing, which violates the law and only makes your case stronger in hearing, or you will end up with a PWN full of malarkey that won't stand up in due process. If what you are asking for makes total sense and the education agency won't do it or something else equally or more appropriate, the education agency will have some explaining to do in hearing.

 

So long as what you are asking for is necessary for your child to receive an appropriately ambitious amount of educational benefits (meaning as close to grade level or developmental norms as possible), there's not a lot of good reasons for a public education agency to turn down your request. It's illegal for the public education system to use fiscal considerations to determine what should be in a special education student's IEP.

 

Just be sure to submit all of your requests for changes to your child's IEP in writing. It is the education agency's receipt of your written request for changes that triggers the PWN requirement. In the instance of requesting assessments, many states allow for a public education agency to decline to conduct assessments for special education purposes upon parent request, but the agency must provide PWN when doing so. For more information on special education assessments, see our previous post, "The Basics of Special Education Assessments."

 

If it doesn't decline a parent's written request for assessment, the education agency must provide the parent with an assessment plan to sign that authorizes the agency to conduct the requested assessments. State law regulates the provision of assessment plans; in California, local education agencies have 15 calendar days to get an assessment plan to the parent, regardless of who made the referral for assessment. Submitting the request for assessment in writing is not only important for triggering the PWN requirement if the request is declined, it's also important in establishing when a state-mandated timeline starts counting down.

 

You as a parent can encourage the application of science in special education by insisting upon it. If you live in California or another consent state, you can use your authority to withhold your consent to anything that looks sketchy in an IEP being given to you for your signature. You can consent to instruction in the areas targeted by IEP goals but not to using the language of the goals for the purpose of measuring progress if they aren't actually written in a measurable way. You can consent to everything in an IEP except a change in placement. If you can't resolve all of the issues you have with an IEP this way, those left unresolved become due process issues.

 

Even if you are not in a consent state, you can still make the record in writing that you disagree with the sketchy portions of your child's IEP, explain why using math and science, and request appropriate changes. The local education agency will likely call an IEP meeting and change those things it's willing to change and give you PWN on those things it is not willing to change. The things left unresolved at that point are due process issues.

 

Understanding how to use math and science to solve everyday problems is a solid skill to have, but not everybody has it. It's a skill necessary to developing a sound IEP for any special education student. Parent education can be provided as a related service under a student's IEP if the purpose of the parent education is to help the parents understand their child's disability and/or to help them be equal participants of the IEP team. There is absolutely nothing wrong with parents asking to be trained on how to write measurable annual goals and the IEP process in general as part of parent training as a related service under their child's IEP. Parent training is specifically named as one of many possible related services that can be provided to a student with an IEP by 34 CFR Secs. 300.34(a) and 300.34(c)(8)(i)).

 

If you're distrustful of the quality of instruction you might get from parent training through your child's IEP, you may have to result to self-education by reading everything you can find about your child's disability, as much of the peer-reviewed research about instructing learners with the types of needs your child has as you can digest, and simplified reports of the research findings in trusted publications from credible sources. You may need to periodically consult with experts for hire, but what you invest in informing yourself you may save many times over by preventing yourself from getting duped.

 

The bottom line is that parents can protect their children's right to evidence-based special education planning and implementation the more they understand how to use measurement and evidence in the planning and implementation processes. By knowing what to look for, they know what request when they don't see it. Informed parents can monitor the situation for education agency compliance.

 

In those areas where parents have not yet mastered the knowledge necessary to know whether an approach is appropriate for their child or not, they are encouraged to ask questions like, "Can you explain to me how this fits my child?" and "How can we measure whether this works in a meaningful way?" By shifting the burden back onto the education agency to explain how and why its recommendations are supported by the peer-reviewed research and written in an appropriately measurable manner, parents rightly shift the burden of applying the science to the appropriate party.

 

Parents are not, and should not, be required to become experts in order to participate in the IEP process. But, for the sake of protecting their children's educational and civil rights, and their own rights to meaningful parent participation in the IEP process, it behooves parents to become as knowledgeable as possible. It's more difficult to get tricked or misled the more you know, and the more dry and technical you can keep things, the less hysterical drama you're likely to experience in dealing with your local education agency.

 

References:

 

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

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The Fundamental Flow of IEP Creation

Image credit: Justin Lincoln

 

Trying to piece together the actual special education process from the implementing federal regulations of the Individuals with Disabilities Education Act (IDEA) is a lot like trying to create origami from paper shredder cuttings. However, it's been done and, when laid out in proper order, the special education process totally makes sense.

 

When followed as intended, the special education regulations are a marriage of law and science. It is further assumed that procedural compliance with the regulations is likely to result in the provision of the Free and Appropriate Public Education (FAPE) promised to each special education student by the IDEA. The specific language comes from what is known in special education circles as "The Rowley Decision," which specifically states, "the Act's emphasis on procedural safeguards demonstrates the legislative conviction that adequate compliance with prescribed procedures will in most cases assure much, if not all, of what Congress wished in the way of substantive content in an IEP. "

 

In order to understand why the regulations require the things in special education they do, it helps to first understand the history of the language in the regulations. Prior to Congress enacting the Education for All Handicapped Children Act (EAHCA) in 1975, which ultimately became the IDEA during a later reauthorization, there were no laws that specifically promised any kind of education to children with special needs.

 

Prior to the EAHCA, children with disabilities were routinely denied enrollment into the public schools. In the beginning, it was an accomplishment just to get a public school to open its doors to a child with special needs, and there was nothing that made it mandatory to educate the child according to any particular standards once the doors had been opened.

 

Then, in 1971, disability advocates took the matter of the Pennsylvania Association for Retarded Citizens (PARC) vs. the Commonwealth of Pennsylvania to the U.S. District Court. The settlement and resulting consent decree produced much of the language that is now found in the implementing regulations of the IDEA, particularly with respect to FAPE and individualized educational program development.

 

In PARC v. Pennsylvania, a class of individuals who all had intellectual disabilities (IDs), which at the time were described as "mental retardation," were being denied access to public school on the basis of their diagnosed "mental retardation." They were either languishing without any education or receiving privately funded education at their parents' personal expense. PARC filed a class action lawsuit on behalf of itself and the child members of the class, sued for injunctive relief, settled with the Commonwealth of Pennsylvania, and obtained a consent decree overseen by the U.S. District Court, which it later enforced through the Courts to compel Pennsylvania to enroll children with IDs into its public schools and provide them with appropriate programs.

 

Quoting page 8 of the May 5, 1972 Opinion, Order and Injunction from PARC v. Pennsylvania, "The lengthy Consent Agreement concludes by stating that '[every] retarded person between the ages of six and twenty-one shall be provided access to a free public program of education and training appropriate to his capacities as soon as possible but in no event later than September 1, 1972 ...' To implement the agreed upon relief and assure that it would be extended to all members of this class, Dennis E. Haggerty, Esq., a distinguished member of the Pennsylvania Bar who has devoted much of his energy to the welfare of retarded children, and Dr. Herbert Goldstein, an eminent expert in the education of retarded children who is Professor and Director of the Curriculum Research and Development Center in Mental Retardation at the Ferkaus Graduate School of Humanities and Social Sciences, Yeshiva University, were appointed Masters at the expense of the Commonwealth ... Next, the Consent Agreement charges defendants with the duty within 30 days, to formulate and submit to the Masters a plan to locate, evaluate and give notice to all members of the plaintiff class ... Finally, and perhaps most importantly, the Agreement states that: 'The defendants shall formulate and submit to the Masters for their approval a plan to be effectuated by September 1, 1972, to commence or recommence a free public program of education and training for all mentally retarded persons . . . aged between four and twenty-one years as of the date of this Order, and for all mentally retarded persons of such ages hereafter. The plan shall specify the range of programs of education and training, there [sic] kind and number, necessary to provide an appropriate program of education and training to all mentally retarded children, where they shall be conducted, arrangements for their financing, and, if additional teachers are found to be necessary, the plan shall specify recruitment, hiring, and training arrangements.'" [emphasis added; internal citations omitted]

 

Here, we see the language of FAPE (34 CFR Sec. 300.17), the marriage of law and science in the creation of the program design, the precursor to the federal "child find" requirements (34 CFR Sec. 300.111), and language that effectively describes creating what amounts to an IEP. PARC v. Pennsylvania laid the foundation for what ultimately became the IDEA, which specifically mandates that the peer-reviewed research be applied to the delivery of special education to the degree it's practicable to do so (34 CFR Sec. 300.320(a)(4)).

 

The appointment of the masters in PARC v. Pennsylvania is important to note because it marks from the outset the need to combine the efforts of legal professionals and psychologists to come up with evidence-based approaches to special education instruction that conform with the regulations. While there have been many efforts over the years by those of a particular ilk within the public education system to minimize the science and place undue emphasis on legal maneuvering, they have never been successful at eliminating the science.

 

Now, we are seeing the courts rely more and more on the dry, neutral facts of science rather than the hysterical budget shielding that typically goes on in special education. As more and more people become more fluent with using math and science in everyday life, the public is increasingly expecting to see science rather than politics in the delivery of public instruction.

 

It has always been the intent of the applicable law to use the applicable science in the delivery of special education. The arguments for relying on facts and evidence in designing and implementing IEPs are too compelling to be overcome by cronyistic politics altogether. Politically speaking, the science has never carried as much weight in special education as it does now, which is tragic in that it's taken this long but it's also inevitable. The truth is the truth and no amount of political spinning changes what a child's unique learning needs actually are or what research has proven actually works.

 

So, that being the case, when we look at the logical flow of how an IEP is supposed to go together, it's important to understand how the law and science become inextricably intertwined as the IEP process goes forward. To start, a child cannot be found eligible for special education without first being assessed. Assessment determines if the child has a qualifying disability and, if so, what to do about it.

 

Competent special education assessment is a highly scientific process. People with special credentials and licenses are brought in to collect expert data, analyze it, and provide expert opinions to the IEP team as to why a child is struggling in school and what can be done about it. This process can become compromised by internal public education agency politics, however. See our previous blog post, "The Basics of Special Education Assessments," for more information about this step of the process.

 

In an ideal world, a child's initial assessment for special education is thorough and competent. It measures all of the student's unique learning needs and assesses in all areas of suspected disability. The data it produces is then used with input from teachers and parents to create an IEP, presuming the child is eligible for an IEP. This is where things can get really messy.

 

There are two ways things can go badly at this stage:

 

• The assessments were poorly done and now there isn't good data to inform the development of the IEP, or
• The assessment data is fine but the IEP offered to the student doesn't match what the assessment data says the student needs

 

Parents need to understand what is supposed to happen at this stage of the process or they can be quickly bamboozled by seasoned bureaucrats with their own agendas. The information gathered by the IEP team about the student's learning strengths and needs is supposed to result in measurable annual goals that describe what the IEP is supposed to make happen in each area of unique learning need.

 

Where things often break down is in translating all of the baseline data into measurable annual goals that target appropriate learning outcomes in every single area of unique learning need. That's a tall order. It's one thing to measure what already is, but it's another thing to use that data to project where things should be in a year.

 

IEP teams often struggle to identify all the areas in which goals are needed, much less write the goals they come up with in a measurable manner. In my experience, the average special education professional would fail the 4th grade under the Common Core if their IEP goal-writing skills were used to measure their abilities to apply math and science to solving everyday problems.

 

A lot of the guidance given to special education professionals during the 1980s and 1990s about IEP goal-writing was a bunch of preemptive legal defense hooey that was utterly devoid of any kind of valid science or math. These approaches provided teachers with formulas and supposed hacks that they usually didn't understand and usually used incorrectly in the field.

 

There was no sincere effort that I ever observed back in the day to teach special education professionals the technical nuts and bolts of goal-writing, and I still assert now that the training being done is grossly inadequate. A half-day workshop for continuing education units is usually about it for most special ed staffs, and most of what such a workshop instructs is usually garbage.

 

These are the workshops that taught teachers to write the measurement for every goal as "... with 80% accuracy in 4 out of 5 trials ..." even if it makes no sense. For example, it's highly inappropriate when used here: "By [annual due date], [Student] will cross the street safely with 80% accuracy in 4 out of 5 trials as measured by observation."

 

First, try to make the math work, which you can't. Then ask yourself what an 80% accuracy rate of crossing the street safely must look like, however it might be calculated, and whether it could possibly be educationally appropriate. It's supposed to be a free and appropriate public education and there's nothing appropriate about being run over in the street like a bug as a result of participating in publicly funded instruction.

 

My brief advice to school district administrators is to not let your attorneys develop your employee training for any aspect of special education that requires scientific rigor. And, unless you are qualified yourself in the applicable sciences, if you are an administrator, don't think of developing that training yourself, either. Use actual experts; don't be a chump.

 

Doing sound assessments only to toss the science and math out the window when it comes time to write the IEP makes no sense whatsoever. But, there is a political game that sometimes get played with parents in which public education agencies will deliver a decent assessment, but then offer a garbage IEP and act like the garbage IEP is what the data and law say the agency can do for the student. It's a lie.

 

In reality, the IEP is based on how much the education agency is willing to spend on the student, but the agency's administrators can't admit that, so they try to run a con on the parents in which they use valid assessment data to argue for a garbage IEP. They're effectively gaslighting the parents because the data doesn't support the IEP at all, but the parents are usually too confused to understand what is really happening and just let it go, thereby allowing the education agency to get away with shortchanging a kid.

 

The parents get an assessment report that describes their kid, but then they get offered an IEP that is weak relative to the kid's actual needs and they figure that's the most the schools must be able to do for them. In truth, their kid is getting robbed. If the IEP doesn't match the assessment data, something is really wrong. This can be particularly the case with IEP goals.

 

The data can make clear what the areas are in which goals are needed, but then only a few goals get put into the IEP by school personnel. This is a problem because the services that are offered to a special education student are supposed to be driven by what is necessary to meet the goals. If you don't have goals in each area of need, there's nothing to compel all of the services that are needed. Missing goals mean missing services. Schools that want to prevent spending on services can accomplish this by leaving goals out of IEPs.

 

Goals describe what the IEP is supposed to make happen. Services describe what it takes to meet the goals. This includes service frequency, duration, and location. For example, a student may receive 30 minutes per week of individual speech/language services to address their communication goals.

 

Accommodations are tools and strategies that make access to the grade-level content possible for a child with special needs. They are not the same things as modifications. Modifications actually change the learning expectations for the student to something less rigorous than the grade-level standards so that the instruction is accessible to the student.

 

For example, the accommodation of being able to dictate one's answers rather than write them down doesn't change the nature of the material being studied or the questions that have to be answered. The only thing that changes is how the response is produced, but a grade-level response is still expected.

 

In another example by contrast, a student with developmental delays may participate part of the time in general education math where students are calculating the hypotenuses of triangles, but the work is modified to cutting out different sized triangles for the student with developmental delays. In this example, the instruction has been scaffolded towards the grade-level expectations by modifying it to the student's level of learning.

 

Before one can understand what a hypotenuse is, one must first understand what a triangle is, so instruction on triangles in general lays a foundation for the eventual instruction of the calculation of hypotenuses. Scaffolding towards the grade level standards and developmental norms is a critical method used in special education as per the peer-reviewed research to adapt the instruction to learners who cannot perform at grade level because of their disabilities. There still has to be a way to measure their learning and push them as close to grade level as possible.

 

Once goals, services, and accommodations are identified, the IEP team then determines the student's educational placement. This is usually not a specific classroom or campus; it's the type of classroom and/or campus required. Placement is decided at the end of the process because it is impossible to know where is the best place to deliver the services and accommodations such that the goals are met if the goals haven't been written and services and accommodations haven't yet been determined.

 

In addition to these critical steps, an IEP can also include an Individualized Transition Plan (ITP), which is basically a plan within a plan that describes what will be done for a teenager or young adult with an IEP to prepare them for life after high school. Students exit special education either by graduating with a regular diploma or aging out, usually at age 21 or 22, The ITP is supposed to be the driving force of their IEPs from at least age 16 forward, though nothing prevents IEP teams from starting younger.

 

Another component that an IEP may include is some kind of Behavior Intervention Plan (BIP). They can go by a variety of names, but they're all basically the same thing, and usually loosely based on Applied Behavioral Analysis (ABA). This is another science that gets grossly watered down in special education, sometimes to the point of becoming ineffective if not harmful.

 

Good ABA is a wonderful thing, but there are way too many programs operating these days that are "ABA-based," meaning they aren't fully adhering to the science and only have borrowed those parts from it that they find most easy to use. They take a fluid science, try to turn it into something formulaic, and ruin the whole damn thing. It's right up there with crossing the street safely with 80% accuracy in 4 out of 5 trials.

 

To be clear, when I talk about ABA in this blog/podcast, I'm talking about the actual science, not some hokey fly-by-night scam trying to take advantage of the autism community. I have plenty of colleagues who operate completely legitimate, scientifically rigorous ABA programs that save and change lives for the better, and they are just as disgusted as I am by the charlatans ruining the good name of a credible science for the sake of making a buck off of autism. These charlatans who have corrupted the legitimate science are the ones with whom the autism community takes such issue when they complain about ABA.

 

There is no way to have a conversation about the IEP process and the degree to which science plays a role in it without discussing ABA. ABA is the most reliable method of data collection currently used in special education, even when not done that well. This is because the field is dominated with people teaching their students to cross the street safely with 80% accuracy in 4 out of 5 trials as measured by observation. Even shoddily done ABA-type data collection is usually better than that.

 

It's my argument that, if the science has to be applied to the degree it's practicable to do so, and ABA-type data collection is the most reliable, then IEP goals should be based on ABA-type data collection methods. If IEP goals were actually written according to scientific method like they were supposed to have been from the start, we would naturally default to ABA-type methods of data collection because that's the only thing that will work.

 

This becomes particularly important for IEPs with BIPs. Real ABA, not the half-baked version that is peddled by some agencies, should be used to develop measurable annual goals and any BIP in an IEP. This will allow for legitimate measurement of actual progress. Here, it's not exactly about the instructional approaches of ABA so much as how to accurately measure learning. By using ABA-based teaching and measuring approaches, it's a lot easier to tell if a student is actually learning anything or not, which is the whole point of measurable annual goals and measurable BIP criteria.

 

When you understand that there is a logical order to the sequence of the special education process that the law describes from what it has taken from science, the parts of an IEP start to make more sense. An IEP is not an arbitrary document. It's an enforceable contract that describes what a public education agency is supposed to do to tailor the instruction to a student with special needs. It includes what it includes for logical reasons.

 

Congress organized how IEPs are supposed to go together based on the advice of attorneys and psychologists who worked very hard to come with with a marriage of law and science that will work so long as the public education system pays equal attention to both the science and the law. There needs to be more training for professionals in the special education community as to the scientific origins of IEP design and the scientific rigor actually necessary to deliver special education according to Congress' intent.

 

Parents need to understand the importance of the science, as well. They are the most important members of any IEP team and if they don't understand what the data means, they can't give informed consent to anything.

 

Parent education is a related service that can be added to an IEP to help the parents understand their child's special needs as well as help them better participate in the IEP process (34 CFR Sec. 300.34(a)). If you feel as a parent like you don't have enough information to be an equal member of the IEP team, it's your right to request parent training as a related service so that your rights to meaningful parent participation in the IEP process and informed consent are honored.

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Parents Who "School-Hop" Risk Making Things Worse

Image credit: Alan Levine

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

References:

 

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

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