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Understanding Who’s Responsible for FAPE with NPS Placements

I had an experience today at an IEP meeting for a student we represent that made me realize that there is some confusion out there amongst parents and educators about who (or what entity) is responsible for which aspects of a student’s IEP when the student has been placed in a non-public school (“NPS”) placement. This posting addresses this area of confusion and will hopefully make sense of the situation.

In our client’s situation, her IEP calls for certain things that are currently being provided by her NPS placement, which is not as restrictive of a setting as other NPS placements in the Greater Los Angeles Area, but is more restrictive than a public school setting. For her, it’s the Least Restrictive Environment (“LRE”) relative to her needs.

To say that this certain NPS conglomerate is politically attached at the hip to Los Angeles Unified School District (“LAUSD”) is a gross understatement. It was this incestuousness that made understanding who was responsible for what so confusing to the parents, the NPS teaching staff, and the District rep present at the IEP meeting – though the District rep finally understood what I was trying to make clear. The problem was that even though she finally got what I was saying, she had no authority to do anything about it.

The District-level deal making – which the NPS’ administrator didn’t seem to have a problem discussing with great candor – had occurred with far higher-ranking District personnel than the poor school psychologist sent to our IEP meeting on behalf of LAUSD. Without going into the gritty details (which is only going to make me mad all over again), I want to focus on the technical considerations. Hopefully by doing so, I can prevent other IEP teams from struggling over these same issues.

The problem was that our student has experienced a medical condition that she will now have for the rest of her life. Now, due to this condition, she can no longer take the medications that were addressing some of the learning issues that arise from the handicapping conditions that make her eligible for special education. This has changed her special education needs and has resulted in a new need for which some tweaking of her IEP was required. She needed additional accommodations and modifications to address homework completion issues and potentially some type of service to assist her with getting her homework done.

The NPS currently offers an after-school homework club, but even though it is an NPS serving students on IEPs at public expense, it was charging the parents a fee for her participation in the after-school homework club. This flies in the face of the definition of a Free Appropriate Public Education (“FAPE”).

34 CFR Section 300.17 defines a FAPE as being special education and related services that are provided at public expense and without charge to the parents, among other things, hence the use of the word “Free” in “Free Appropriate Public Education”. The imposition of a charge in order for our client to receive educational benefit amounted to a denial of a FAPE.

However, the NPS administrator was quite verbose during the IEP meeting (which we audio recorded as per parents’ rights) about how her NPS and the District had worked it out so that the after-school homework club would never be placed on students IEPs and was only offered as an “extra-curricular activity” such as music or sports teams rather than as a related service. I’m not going to belabor the point of just how non-compliant that is, but suffice it to say that a whole due process case could be built around that issue alone.

The NPS and the District had reached an agreement to refuse to put something on students’ IEPs even if it was educationally necessary. Presumably this was because the District didn’t want to have to pay for the service and was attempting to pass the expense on to the families of students attending the NPS. And, this NPS gets the bulk of its business from LAUSD. Rather than stand its ground and refuse to participate in unlawful activity, it hopped right into bed with a school district that has been under a Consent Decree from the Federal Courts since the 1980s for failing to implement compliant special education programs as a willing accomplice.

The parents were upset with the NPS, which heavily markets itself as being a heavy-hitter in the area of non-public schools for children with special needs. However, as disgusting as the NPS’ policy is, it’s not the NPS that bears the burden of providing its students with a FAPE. That burden is borne by the students’ individual school districts. In this case, the school district responsible for our client’s receipt of a FAPE was LAUSD.

The problem is that LAUSD and this NPS have gotten into bed with each other to develop a “take-it-or-leave-it” package deal. If a student requires anything beyond what the NPS offers, even if it’s just a supplemental related service, their collective answer is to suggest that the student be placed at a different NPS.

So the NPS administrator suggested that our client, who is finally having a good school year in every regard except certain aspects of homework completion, should be uprooted and taken away from her friends and familiar learning environment so she could get supplemental support with homework, which is outrageous to say the least. It certainly wasn’t an offer of a FAPE (failing on the “Appropriate” of “Free Appropriate Public Education”). The LAUSD rep started to go down this path with her until we said, “Wait a minute!” They were throwing out the baby with the bath water.

The real answer was for LAUSD to push in some kind of additional support in addition to the NPS placement and make it part of the student’s IEP. But, as I said, the rep that LAUSD sent in did not have the authority to do any such thing. We would actually have to file for due process to effect such a change to our client’s IEP; in any other school district, the same change would have been achieved within 15 minutes via a few emails and an administrative amendment that didn’t even require an IEP meeting.

We ended up informally agreeing that the parents wouldn’t be charged for the after-school homework club by the NPS as well as adding accommodations and modifications to the IEP and making some changes in the student’s related services to better support her needs. But, we couldn’t get the District to agree to put anything in the IEP that obligated it to pay for the support that had already proven to work, that being the after-school homework club. The NPS simply informally agreed (though it was captured on the audio recording) to eat the $15 per session fee.

This is less than desirable because, should the NPS shut down its after-school homework club, there is nothing to obligate the District or the NPS to continue supporting this area of need in our client’s IEP. We would have to come back to the table to come up with another idea, the NPS would again suggest that our client change schools in order to receive this one relatively simple service, and we’d probably end up having to file for due process just to get some kind of after-school homework support added to her IEP, which is ridiculous. That’s a tremendous waste of taxpayer resources to fight something that is so commonly provided pretty much everywhere else without even a hint of acrimony.

The point I want to make here is that parents should not be running to their children’s NPSs asking for things that are the burdens of their school districts to provide. NPS personnel should not be telling parents “Your child can’t have that service because we don’t provide it. You’ll just have to change schools.” What goes into an IEP is an IEP team decision and school districts should be sending representatives to all its IEP meetings who are empowered to actually facilitate a compliant IEP team meeting in which the team members – not some smarmy back-room dealings between the District’s upper administration and non-public entities sucking up and willing to aid an abet in the denial of a FAPE in exchange for a large block of business – determine the content of students’ IEPs as required by law.

Click here for the podcast version of this article.

Services that Address IEP Behavior Goals

Once a special education student with behavioral issues receives an appropriate assessment of his/her behavior, and appropriate IEP goals are written to address the student’s behavioral needs, the IEP team has to determine what services and supports are necessary to see those goals achieved.  The types of services and supports a child requires in order to achieve his/her IEP goals can influence placement decisions, which is why placement is the last decision that should be made by the IEP team.

It is necessary to first know what services and supports will be required in order to determine what the Least Restrictive Environment (“LRE”) is for each particular special education student and, as we’ve stated before, the LRE is relative to the unique needs of each individual child.  What is the LRE for one student is not necessarily the LRE for another.  Placement must be in the least restrictive environment necessary in order for the services and supports to be provided such that the goals can be achieved, which varies from student to student.  That means that the selection of services, including the frequency, duration, and times of day they are provided, is a very critical step in the IEP process and it comes into play fairly late in the game.

To recap the process (as described in our prior postings in the “Techically Speaking” category), the IEP process begins with assessment.  The data yielded by the assessment is supposed to inform the IEP team of the student’s Present Levels of Performance (sometimes referred to as “PLOPs”).  Based on what is understood about the student’s Present Levels, the IEP team then must write measurable annual goals that describe in objective, empirical terms what outcomes the IEP is attempting to achieve – what specifically it is trying to teach the student to do.  Once that is known, the next step is the selection of services and supports.

There are a number of tools to address behavioral goals that can be used.  One of the most powerful tools is a Behavior Support Plan (“BSP”) or Positive Behavior Support Plan (“PBSP”).  Once a functional analysis of a student’s behavior has been conducted, the next step is supposed to be the creation of a BSP/PBSP unless?the analysis reveals that the behaviors do not significantly impact the child’s participation in his/her education.

A properly written BSP/PBSP is a thing of gold, but it’s no good to anyone if not everyone implements it the way it is written.  Behavior is a touchy thing.  When you have a child who realizes that the same behavior is met with different outcomes depending on who that child is with, what you often produce is a manipulative child who learns how to push peoples’ buttons.  When behavior is met with the same outcome regardless of who the child is with, the child gets a consistent message about certain behaviors.  For that reason, it is imperative that anyone working with a special education student who exhibits problematic behaviors follow the BSP/PBSP to the letter as best as he/she possibly can.

A BSP/PBSP starts out by describing the problem behavior so people know what they’re looking for. Identifying the function that the behavior serves (i.e. to avoid math problems, to avoid writing, to gain access to more preferred items or activities, etc.) allows people know what need the child is trying to meet and, therefore, the types of responses they should have to the behaviors.  The BSP/PBSP should then describe what responses to give to each type of problematic situation if the behavior manifests, but, more importantly, it should describe what replacement behavior will be taught to the child so that he/she has a more appropriate way of seeing his/her needs met without engaging in the problematic behavior.

It’s not enough to tell a kid to stop doing something.  You have to tell them what is appropriate for them to do instead.  If you’re trying to drive a nail with a banana peel, you’re just going to make a mess.  But, if all somebody does is tell you to stop slinging that useless banana peel at the nail and fails to give you a hammer and show you how to use it, you’re still going to be stuck with a nail that hasn’t been driven.  What you were attempting to accomplish remains unachieved.

Children need to be taught things.  They can’t be expected to somehow magically know things or figure things out as well as more experienced adults.  Children with certain types of disabilities have a harder time picking up what seems obvious to most people, requiring explicit instruction on more basic concepts.  A BSP/PBSP describes what fundamental concepts are being taught, or refers to the behavioral goals which describe what concepts are being targeted, so that the child acquires the reasoning skills necessary to handle situations more successfully.

I’m a fan of Diana Browning Wright’s work. She’s done trainings in California and I have students whom I represent whose PBSPs are written up on Diana’s forms.  They’re very well organized and make total sense.

Another tool that some schools try to use is a “Behavior Contract.”  I’m not a huge fan of these at all.  A “Behavior Contract” is something usually used in general education in which a student makes a written commitment to follow school rules.  It utterly fails to identify what need the student was attempting to meet by engaging in the inappropriate behavior and only speaks to what the child will do; there is nothing that describes what the adult school site personnel will do to assist the student in dealing with whatever is provoking his/her inappropriate behaviors so that they don’t present problems for the student anymore.

Instead, the child is stripped of whatever coping strategies he/she had, even if they were poor ones, and left with nothing he/she can do at all.  This creates a great sense of powerlessness, which can turn on its heel in an instant and lead to more escalated behaviors meant to regain whatever power the child feels he/she has lost.

I’ve seen it happen too many times.  What was meant to stop a problem behavior only served to reinforce it and is particularly horrible to deal with among children with issues involving anxiety, paranoia, and/or Oppositional Defiant Disorder.  Their handicapping conditions magnify, sometimes exponentially, their reactions to having their actual needs ignored and left with no way to see them met, while everyone else is focusing on what they inappropriately did in an effort to see those needs met.

A good BSP/PBSP should also include a description of what consequences and reinforcers should be used to encourage the use of the appropriate replacement behavior and discourage the use of the inappropriate behavior.  By consequences, I do not mean punishment. A consequence is anything that results from an occurrence or event.

In the realm of positive behavioral intervention, a consequence is any outcome that discourages a behavior from reoccurring.  This is often the intent of punishment, but punishment is an artificial consequence that the child may associate with something other than his/her own inappropriate behavior, such as the person who is punishing him/her.

Consequences should fit the behavior and they work best if they are natural, inadvertent outcomes of doing the wrong thing.? In my example above, the natural consequence of trying to drive a nail with a banana skin is a gooey mess and a nail that still hasn’t been driven.  That by itself is enough to discourage me from ever trying to drive a nail with a banana skin again.  It clearly didn’t work.

But, associating consequences with one’s own behavior is actually more subtle and difficult than it sounds.  For children with relatively inexperienced, growing (and, thus, continually changing) minds, it’s even harder.  For children with certain types of special needs, it can often be agonizingly difficult.  The connections have to be taught.  So, the consequences to inappropriate behaviors and reinforcers of appropriate behaviors should be delivered as soon after the behaviors have manifested as possible, particularly when first starting out with a new behavior program.  Over time, the reinforcers can be faded.  The idea is that the use of the appropriate behavior will become intrinsically rewarding because it yields success without drama and the need to artificially reinforce will disappear.

The use of appropriate data collection tools is critical. Data collection should be naturally built into the behavior goals and BSP/PBSP. It’s the only way to track progress and measure the degree to which the replacement behavior is taking over for the problematic behavior. Therefore, data sheets have to be created right away at the beginning so that data collection can begin as soon as the school site personnel start implementing the goals.

Parent training is also a really valuable piece to a successful behavioral intervention program.  Just as it is imperative that the child be met with the same response to his/her behavior by all of the staff working with the child, it is equally important that he/she is met with the same response at home.

I’ve seen some of the best school-based behavior strategies in the world completely unravel because no one thought to explain to the parents how the behaviors were being responded to at school.  The child would go home to a completely different set of expectations and responses to problematic behaviors and an entire school day’s worth of intervention might as well have never happened.  The next day, the school site staff would be starting all over again.

By training the parents on the behavioral strategies being used at school, particularly if they can collect at least some data on what they are doing, makes them more involved, gives them greater understanding of what the school site team is trying to do, makes them partners in the process rather than outside observers, makes them more comfortable about how their child’s behavior is being handled by the school site staff, and creates much needed consistency that will help make the intervention successful.

Do you have any other suggestions regarding behavioral supports and services that can be made part of a student’s IEP? Post your comment with your suggestions below.

KPS4Parents Interviewed by LRP

I was recently approached by John Haughey, writer and editor for LRP Publications, for our input regarding a due process decision arising from a case in Chicago. For those of you unfamiliar with LRP, it is the publication powerhouse that supplies information regarding special education law, policy, and practices to public education agencies and the attorneys who represent them.

LRP maintains, through its website http://www.specialedconnection.com/, the most comprehensive database of special education due process decisions from around the country, as well as state and federal appeal cases. With a subscription rate for full access at around $2500 per year, only the well-financed generally have access to this otherwise difficult to access public information.

Even so, many attorneys who represent students with special needs and their families will choke down this subscription fee for access to case decisions that provide appropriate authorities for their own work. Other products of LRP Publications are reviews of special education decisions and articles that discuss the subtle or not so subtle nuances of special education law.

Which brings me to the Chicago case about which Mr. Haughey, who is a very nice man, asked to interview me. KPS4Parents very much appreciates the opportunity to lend perspective from the child and parent side of the issue to LRP’s work. For many who work with families of children with disabilities, and who are leery of LRP because of its strong affiliation with the public education agencies and their attorneys, we hope you appreciate that LRP was actively reaching out to hear the child and family side of the issue.

While the way our comments were reported doesn’t provide the full context in which what was quoted was said, we stand behind what Mr. Haughey wrote of our input. Unfortunately, because this article is copyrighted by LRP Publications and you have to be a subscriber to their site to see it, we can’t give you access to the whole thing. However, LRP was kind enough to agree to let us audio record my interview with Mr. Haughey and we were given consent to quote Mr. Haughey’s quotation of me from his article.

The Chicago case was one in which a special education student was awarded compensatory education in the form of placement in a private school for children with learning disabilities at public expense after his school district was found to have denied a free and appropriate public education, or FAPE, to him. In this case, it seems, the school district had placed so much of an emphasis on placing this student in the least restrictive environment, or LRE, that it had failed to consider whether he could actually receive educational benefit in a general education setting.

I was one of several people from around the country interviewed for Mr. Haughey’s article. Also interviewed were a public school principal in Wisconsin and a special education attorney in New Hampshire. While I had the benefit of reading the decision issued by the Illinois Hearing Officer, I did not have access to the transcript of the hearing or the evidence, so I have to take the decision at face value. That said, I know from personal experience that hearing officers are extremely challenged to get all the fact exactly right, so I was still left with some unanswered questions after reading the decision.

It was an interesting read, nonetheless, and what I want to focus on here is the case as represented by the hearing decision. I offer our sincere respect to the family involved in this case, particularly considering that the case reflected in the decision is probably not exactly reflective of the case the family attempted to have tried. I also offer our most emphatic support of the student in this case because it was this young man’s life about which this case resolved. He is the one who will have to live with the consequences of what this case did and did not yield on his behalf. So, to the extent that I’m about to talk about this case as though the decision is 100% reflective of the facts, and I’m about to use it as a generic example for the benefit of others, please do know that we very much understand that this was really about one boy and his right to learn to read, write, and do math and very much appreciate that this family stuck its neck out in an effort to effect change.

The decision in the case at issue here reflected a number of shortcomings that the LRP article, which was brief, did not go into. One of the issues was that the assessment data fell far short of the mark and this young man’s IEP teams were without the data necessary to make informed decisions regarding what was or was not a legitimate offer of a FAPE based on his unique learning needs. So, there was this first undermining of the process that ultimately made it impossible for the rest of the process to be properly executed.

The decision doesn’t specifically speak to whether the parents’ participation was meaningful in the IEP process, but I would argue that an IEP meeting denies meaningful parental participation if the information necessary – that is, data that explains what the student’s needs are – is not made available to the parents so that they can make informed decisions. Likewise, most parents are clueless regarding what data is necessary and how that data should be used. They are left to trust the judgment of school officials who may or may not understand their obligations under the law to special education students.

What was implied by this decision was that the school officials believed it was more important to place a child with an above-average IQ in the general education setting regardless of what his actual learning needs were than to examine the full continuum of placement. The decision suggests, and LRP’s article comes right out and asserts, that there was an emphasis placed on the LRE requirements more so than on what constituted a legitimate offer of a FAPE. I have to question this interpretation to a certain degree. That’s not exactly what I got out of reading this decision.

Yes, it’s true that, according to the decision, the District asserted that it only offered placement in the general education setting because it perceived that setting to be the LRE and that the student didn’t require a more restrictive placement. That may have actually been true.? Where the District may have fallen down was not necessarily?where the services were being provided but whether the proper services were being provided at all. The decision doesn’t address this consideration.

If you go back and look at our blog posts of the past and read the articles regarding the IEP process, you quickly come to understand – if you didn’t already know this – that services and placement are the last things discussed by the IEP team. What drives the selection of services and placement is the goals. The goals describe your intended outcomes of intervention and services and placement are the vehicles by which the goals are meant to be achieved. To the extent that the child can receive services such that his goals can be achieved in the general education setting, placement in the general education setting with non-disabled peers should occur.

In the Chicago case, it was not clear from the decision that there was any examination of what services could have been provided in the general education setting that could have seen the child benefit from his education. The decision reflects that only accommodations and modifications were made in the general education setting, not that services were pushed in or provided as supplemental supports.

Now, that said, this had apparently been going on for a while. As a result, the student had failed to receive educational benefit for years. By the time his case got to hearing, he was due compensatory education to make up for the years of lost educational opportunity and, at that point, the only real way to provide him with that kind of remedial support was to put him in a very restrictive setting, that being a private school for children with learning disabilities.

There very well may have been a time when placement in general education with appropriate supports and services would have rendered educational benefit and prevented all of this from ever happening. But, we’ll never know. The decision doesn’t speak to what would have been a FAPE for him in the past. It only speaks to the harm done by the District’s inappropriate offers of only accommodations and modifications in the general education setting for this student and the fact that compensatory education is now due to the student as a result of that harm.

This brings me to the next consideration: the use of the term “LRE.” As we’ve stated in blog articles before, the LRE?- the least restrictive environment – is the setting in which the student can receive educational benefit with the most exposure to typical peers and the typical school experience as possible. It’s relative to the student’s unique needs. This was the aspect on which I was quoted by Mr. Haughey in his article for LRP Publications.

Mr. Haughey wrote that I said, “LRE is relative — relative to the needs of the child,” which is true. Mr. Haughey went on to write: “Zachry advises parents to ask these questions in determining if the general ed placement is appropriate for their child: ‘Is it going to achieve the outcome you are looking for Are we leveling the playing field, or are we putting him on a completely different playing field?'” ?This advice actually was intended for the entire IEP team, not just parents.

Mr. Haughey also wrote that I said that parental pressure often can allow institutional bias for mainstreaming to go unchallenged, but did not include the context in which my statement to that effect was actually couched. This is something I want to clarify before my words are used to fuel the anti-parent bias that already pervades the public school community, and which some attorneys who represent public education agencies actually exploit for their own financial gain.

It is true, and I’ve written in our blog on this before, that most parents really do not understand the special education process. That’s one of the reasons we publish our blog in the first place. It’s also true that far too many professionals in special education really do not understand the special education process, either, which is another huge reason we publish our blog.

People on both the school and the parent sides tend to put placement before everything else, treating special education as a place rather than a service, even though placement is only one aspect of a special education student’s program and the last thing the IEP team should consider. So, again, we have this case out of Chicago and the attention that LRP is giving it that both focus on the placement more than anything else and I can’t help but wonder about the message this is sending to the folks in the public education community. Does this reinforce the false notion that placement is the only really important thing to talk about and that present levels of performance and goals are just procedural fluff?

It is also true that there are a great many parents out there who, in the process that parents follow in coming to terms with being told that their children have handicapping conditions, are in a stage of denial and, in their ignorance, think of special education as a place rather than a service to help their children learn. These parents view special education as a label – a “Scarlet Letter” – that will brand their children as though it is somehow advertised who and who is not on an IEP.

That isn’t to say that there aren’t insensitive clods in the public education system who have no sense of student confidentiality, but for the most part, public school employees do not go around blabbing students’ personal business to the other kids. Generally speaking, kids with learning disabilities and other “hidden” handicaps blend in with everyone else and no one knows they’re on IEPs unless they tell their peers themselves.

So, the parental fear of the child being labeled is often a rather irrational one. But, it’s also a natural stage of the process that every parent goes through. Sometimes it’s a fleeting moment before the parent moves to the next stage towards acceptance and proactive involvement, but sometimes parents get hung up at this stage for a while – or even indefinitely.

Like the stages of grief, how long a particular person spends at each stage of the process depends on that person’s individual growth and development as a human being. It’s unfair and inaccurate for school personnel to presume that all parents are in denial. Most parents of children with special needs experience at some point a great deal of relief of finally understanding what is going on with their child so they can start constructively coming up with a game plan. They get past the denial at some point.

But, while parents are in that denial phase, they are often resistant to the application of the term “special education” to their children, particularly if they are in denial at the time that their children are found eligible for special education services. They envision the proverbial “retard room” from their childhood educational experiences and can take any identification of eligibility for special education as a condemnation of their children’s potential. This is truly unfortunate. Within this context, it is true that parental pressure often can allow institutional bias for mainstreaming to go unchallenged, as Mr. Haughey reported.

Sometimes, however, it is the student’s bias that’s the problem, which Mr. Haughey and I discussed during the interview, as well. Sometimes the student doesn’t want to be placed in a more restrictive setting out of embarrassment, but is also embarrassed in the general education setting by not being able to keep up with peers. In a situation like this, you’re damned if you do and damned if you don’t. That’s a really hard problem to overcome and usually comes down to the parents telling the student, “Look, this is the way this is going to go down and you’re just going to have to deal with it,” regardless of what the placement determination turns out to be.

In other instances though, and from what I could gather from reading the Decision in the Chicago case such was the situation there, the parents don’t really care so much about where services are provided so long as their kids get the help they need. The Chicago case seemed to me to be about a family asking for help for their son and not getting it, and the denials for help by the District being based on an inappropriate application of the LRE requirements.

Truthfully, what I suspect but would need evidence to know for sure, is that the District probably didn’t want to pay for the intensive remedial services this student needed and used the LRE as an excuse to deny them. Otherwise, no one at the District had a clue about what LRE really means and requires. Special education noncompliance tends to arise out of ignorance, petty politicking, or a combination of both. As with any due process case, we’ll never really know all of the truth about this situation, but we appreciate the opportunity to examine it and hope that my analysis provokes thought on the part of others to make the special education system better.