Tag Archives: california

What’s All the Hubbub About California’s Special Ed Consent Decree?

There appears to be a lot of confusion and misunderstanding about the recent 9th Circuit Court of Appeals decision regarding the State of California and its poor enforcement of special education law. Today’s post seeks to provide clarity as to what the 9th Circuit determined and what it means for families of students with special needs in California.

While it is the function of the media to serve as an intermediary between sources of news and the public to sum things up in an unbiased manner, because our world is so full of fake news and biased reporting, these days, we believe the first place to start is to put the actual decision and related consent decree before you first so you can see the actual outcomes rather than just our interpretations of them, so here they are:

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California’s Regulations for Positive Behavioral Interventions

UPDATE:  Effective July 1, 2013, the Hughes Bill, which described the FAA procedures, was repealed and replaced with AB 86, which offers fewer legal protections to students with behavioral needs.  Click here for more information about this change in the law.  The material below now only applies to those students who were eligible for an FAA and possibly a PBIP prior to July 1, 2013. These students may currently have PBIPs in their IEPs, which remain in force until their IEPs are replaced at their next annual due date. Students with claims arising within the last two years from school agencies’ failures to comply with the Hughes Bill during the portion of the statutory period in which it was still in force may still bring claims regarding those failures, in which case, the material below is still applicable.


Click here to listen to the podcast version of this post.

As part of a series of articles regarding seclusion and restraint practices involving special education students across the nation, we’re starting out with a look at the regulations already on the books in California. We’re starting with these state-specific regulations because California is one of the few states to have regulations this specific and, as one of the most populous states in the nation, these laws impact a lot of kids. So, this information can potentially benefit a lot of students by helping their parents in their efforts to achieve appropriate behavioral interventions as well as help their educators understand their obligations, thereby preventing a lot of costly litigation that takes money away from actual instructional costs.

There is federal legislation pending to address this very issue. The lack of consistency among the states as to what constitutes a lawful restraint or seclusion varies so widely that what is regarded as child abuse in one state is considered perfectly acceptable in others.

Because California has such specific language in its regulations about one aspect of positive behavioral intervention, we wanted to examine these regulations more closely. Plus, I’ve been involved in a due process case in which an 8-year-old with autism was unwittingly provoked into an outburst by well-intended special ed staff with the whole thing culminating in a DARE officer who happened to be on campus handcuffing the boy in an effort to protect him from hurting himself. That whole incident involved both restraint and seclusion with disastrous results.

So, this issue is vivid in my mind right now after having met this sweet boy and his loving family, as well as in light of other work I’ve been doing recently that has also involved inappropriate behavioral interventions in public school settings in California as well as Texas. As advanced as humanity has become, we can still be a savage species when it comes to children, particularly those with disabilities.

The thing about California’s laws relative to the minimum requirements under the federal regulations is that California’s laws are specific to serious behavior problems, interpreted by most school districts to mean violent behaviors, where the federal regulations only specifically mandate behavioral assessment when a student is at risk of expulsion for behaviors that may be related to his/her disability. In both cases, that leaves a lot of latitude for things to get way out of control before a school district takes action, particularly in school districts that are reactionary to student needs once they’ve reached crisis proportions rather than proactive in preventing these kinds of problems from arising in the first place.

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Corrective Actions Ordered for Schools in California’s DJJ Facilities

On August 26, 2010, an investigation was opened by the California Department of Education (“CDE”) into allegations of procedural non-compliance that I made in my capacities as both a volunteer surrogate parent and advocate for KPS4Parents on behalf of two incarcerated youth at the Ventura Correctional Facility in Camarillo, CA. Both youth are eligible to receive special education and related services under the Individuals with Disabilities Education Act (“IDEA”).

You can download a PDF of the investigation findings by clicking here.  The personally identifying information of the students on whose behalf these complaints were filed has been redacted to preserve their confidentiality.

The nature of the complaint was that many, if not most, of the special education students attending Mary B. Perry High School, which is located within the facility, were compromised by systemic failures of the Department of Juvenile Justice (“DJJ”) and its internal public education system, the California Education Authority (“CEA”). The two students named individually in the complaint were compromised by these systemic violations and represented the class of students within the CEA who have been similarly compromised.

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California SLPs Sometimes Confuse Legal Requirements

Today’s posting will hopefully lay to rest a misunderstanding that seems to plague special education in California. I can only presume that, like many other “urban myths” that root themselves in special education lore, at some point in time, somebody somewhere in California conducted a training seminar on speech-language assessment and services within special education and miscommunicated something that has now led to speech-language specialists throughout the state making improper conclusions to the detriment of some children in need of speech-language services.

The problem is this: the distinction between who is found eligible for special education on the basis of a speech-language impairment (“SLI”) and who qualifies for speech-language services as a student already eligible for special education under any other category. Eligibility for special education as SLI is not required in order for a child otherwise eligible for special education to receive speech-language services in order to benefit from his/her IEP.

The critical piece of legislation, which gets erroneously cited in speech-language assessment reports all the time, is 5 CCR  3030(c). Title 5 of the California Code of Regulations Section 3030 describes all of the criteria for each of the eligibility categories under which a student may qualify for special education and related services. These categories include Specific Learning Disability (“SLD”), Other Health Impaired (“OHI”), Emotionally Disturbed (“ED”), and many others, including SLI. The critical thing to understand here is that the 3030s describe who can receive special education and on what basis, not what services they will get.

What ends up happening, though, is a child will be assessed for special education purposes and a speech-language assessment will be conducted. In the course of the overall assessment, even though the child is found eligible under some category other than SLI, because he did not score below the 7th percentile on two or more speech-language assessments, the speech-language specialist will determine that he doesn’t qualify for speech-language services according to 5 CCR   3030(c). It is a complete and utter misapplication of this Code, which deals strictly with eligibility under SLI and not what services an otherwise eligible child should receive.

A typical example of this would be a child who is eligible for special education pursuant to 5 CCR   3030(g) for autistic-like behaviors (in special education in California, a medical or psychological diagnosis cannot be made by the school psychologist, so this section of the code provides alternative language and defines the criteria by which a special education eligibility category can be identified for a child exhibiting the symptoms of autism), but who is relatively verbal. While his scores may hover just above the 7th percentile on the speech-language tests he was administered, they are still very low and his low language functioning compounds his other problems arising from the other needs arising from his handicapping condition.

In this example, anyone in their right mind can see that the child needs pragmatic (social) language intervention and help with idiomatic and figurative (non-literal) language. He doesn’t have any friends, he doesn’t get jokes, and he doesn’t understand clichs and colorful sayings, such as “Clear as mud.” This makes it difficult for him to participate in group projects with peers and understand the writings of Mark Twain. He needs goals that address these areas of need and speech-language services in order to benefit from his IEP.

No subsection of 5 CCR  3030 drives the selection of services that any child gets, only whether or not a particular child is eligible and, if so, under what category. The IDEA mandates that children who are eligible for special education, regardless of what category they qualify under, receive whatever supports and services are necessary in order to afford them a FAPE.

Specifically, the federal regulations found at 34 CFR  300.320(a)(2) state that IEPs must include for each child measurable annual goals, including academic and functional goals designed to meet the child’s needs that result from the child’s disability to enable the child to be involved in and make progress in the general education curriculum and meet each of the child’s other educational needs that results from the child’s disability.

An eligible child is a child who requires, as a result of one or more handicapping conditions, special education and related services in order to receive educational benefit. 34 CFR  300.39 “Related services” is described at 34 CFR  300.34. In none of this is there anything that suggests that the only way that an otherwise eligible child can receive speech-language services is if he is also found eligible as SLI.

In fact, 34 CFR  300.304(c)(6) states that, when evaluations are conducted for special education purposes, they must be “sufficiently comprehensive to identify all of the child’s special education and related services needs, whether or not commonly linked to the disability category in which the child has been classified.” Congress understood when it crafted the IDEA that you don’t individualize a child’s program by resorting to “cookie-cutter” strategies that are based on a kid’s eligibility category.

The IDEA is the skeleton of special education law. It establishes the basic framework and minimal standards. It is left to the states, if they want any federal special education dollars, to add the flesh to the bones by creating their own state-level legislation that explains how each state will implement the requirements of the IDEA. While states are free to add more obligations to their schools than what the IDEA requires, they are prohibited from reducing the protections offered to students and parents under the IDEA lest they sacrifice their funding.

What this means for speech-language services to special education students in California is that the IDEA basically says each eligible child must get whatever he/she needs in order to receive educational benefit, regardless of what type of services are required and regardless of the applicable eligibility categories. That’s the whole concept of individualizing a child’s education plan based on his/her unique educational needs.

There is nothing at the state-level that reduces this federal mandate, nor could there be unless California were to choose to go it alone to cover its special education costs and we all already know that California can’t pay its bills even with the federal funding it receives. It absolutely cannot afford to give up its federal special education funding.

We’re curious to know if there are any other state-level debacles involving misinterpretations of the law happening elsewhere. Readers are encouraged to post comments to this posting about such misinterpretations that may be occurring where they live.

Understanding Child Find & When SSTs are Not Appropriate

Update:

On January 4, 2013, a due process decision was issued in California that addresses “child find” and the use of SSTs, which you can read by clicking here. This case illustrates much of what is discussed below and provides good legal language that makes clear what “child find” is and what school districts’ obligations are to comply with the federal “child find” requirements.


Everyone involved in the special education process needs to fully comprehend what the federal “child find” requirements are, what that means for them and children who depend on them, and how they can best support a functioning “child find” system. In a nutshell, “child find” is the federal mandate requiring education agencies to actively seek out, identify, and serve all the children in their respective jurisdictions who are eligible for special education. The federal regulations can be found at Title 34, Code of Federal Regulations, Sections 300.111 and 300.131.

Legitimately, general education teachers are already over-burdened. They often have too many kids in their classes and not enough support from their administrations. But, that’s the nature of the job. I don’t like it and I’m more than happy to do what I can to improve the situation, but I certainly can’t fix the whole thing all by myself.

The problem I have with the “we already have to do so much” mentality that many teachers have is that they are compartmentalizing all of their various obligations to their students as though they are autonomous of each other and must be dealt with separately when many of them can actually be combined into one activity.

Children are incredibly complex organisms, their complexities markedly different from those of adults based on the fact that children are growing, where adults are aging. Neurologically, what’s going on in their brains is nothing short of breathtakingly incredible. To watch a child at play is enjoyable enough because children are beautiful, but appreciating the kinds of data that a child is taking in and wondering what he must be doing with it inside his head is both humbling and mesmerizing to me.

This is a mindset I think anyone going into a career as a K-12 educator needs to have. I think a great many people do have that mindset when they begin their careers, but over the years they get worn down and burned out by education agency internal politics, mindless bureaucracy, and parents complaining to them about negative outcomes resulting from or influenced by the agency’s internal politics and mindless bureaucracy.

Part of the petty politics that can come along with any organization is the decisions by top management to stay silent on a regulatory requirement so that the staff doesn’t incur the expenses that compliance would have otherwise entailed. In other words, they deliberately keep their people clueless to save money.

In my experience, this is what has largely happened with “child find” and general education teachers everywhere. They have never heard of “child find.” (Granted, in some places it goes by other names, such as “search and serve” or “seek and serve,” but even in those places where it’s called something else, it’s administration that calls it something else; the teachers still have no idea what it is, much less how to implement it. (The federal regulations actually use the language “child find” to refer to the process.)

If I were a classroom teacher and I realized that I was being deliberately kept ignorant of an obligation placed on me by federal law to the detriment of my students, I’d be pretty upset. I don’t know exactly what happens to people, but especially when they are just starting out in their careers and are still a little Pollyanna-ish about life but have absolutely no clout and are at the mercy of their employers’ whims as to whether they have a job or not, there has to be a fracturing of the soul at some point for some of those people when they realize that what they signed up for and what they wound up with are two very different things.

>For some people, that results in burn-out. Burned out people either stay and weigh the system down further with their defeated attitudes or they leave and go on to some other type of career. Other people manage to somehow rise above it and accomplish amazing things in spite of all the toxicity going on around them.

I realized a long time ago that I could best serve the situation by working outside of the system. I have all the respect in the world for the people who go to the front lines every day, make a positive impact on the lives of youngsters, and manage to come back at the end of the day still grounded and at peace.

Which is why this whole “child find” issue royally chaps my hide. Good teachers are being denied the tools and resources they need to educate their students. Apathetic teachers are being encouraged to remain apathetic. The public education system exists to educate children and yet educational services are being denied to children for fiscal reasons while administrative and legal costs soar out of control.

Many education agencies have subscribed to the “Student Study Team” model of addressing parent and teacher concerns about student performance, though there is nothing in the federal law that calls for Student Study Teams or SSTs. Most general education teachers from education agencies that utilize SSTs believe that only the SST can refer a child for special education assessment or that the proper response to a request by a parent for assessment of his or her child is to call an SST meeting.

The federal regulations governing the assessment process can be found at . You will note in neither the “child find” regulations cited above nor the assessment regulations cited here are there any references to SSTs.

SST meetings are not required by the special education assessment process called for by the IDEA. They are often just internal policies created by the education agency, not the law, though this varies from state to state.

SSTs can serve many legitimate purposes and I’m not bad-mouthing the SST concept per se. But, I do have a criticism of the practice of using SST meetings as a stall tactic or as an opportunity to try and talk a parent out of pursuing assessment. That sort of thing is only done in bad faith and has no place in our institutions of learning.

In California, it’s flat-out against the law. If a parent makes a written referral for assessment, the local education agency has 15 calendar days to get an assessment plan out to the parent. Period. Title 5, California Code of Regulations, Section 3021(a) requires local education agencies to honor all referrals for assessment, regardless of who they come from.

I went looking online to see how other states are doing things and stumbled across a very interesting publication put out by the Idaho Department of Education. Idaho Special Education Manual, 2007. I was fascinated by its description of its Problem-Solving Teams as part of its special education process. These are essentially SSTs being used as a pre-screening tool to make sure that special education referrals aren’t being made willy-nilly, but you can see from the description of the Problem-Solving Teams and their procedures how they could be used to delay the referral process when parents make referrals.

What I find troublesome about the way Idaho has worded things in this Manual (beginning on page 6), is that people might be erroneously led to believe that the Problem-Solving Team is the only way a special education referral can be made. That simply isn’t true under the federal regulations.

There was no language in the section devoted to referrals that described what to do in response to a parent referral. But, there is language that says parents can call a Problem-Solving Team meeting to discuss their concerns, which puts them through the paces of a potentially lengthy process before a referral for assessment is made (if it ever is) by the Team.

If I were a parent of a child with disabilities in Idaho, I would need a really compelling reason to go through the Problem-Solving Team process to achieve a referral if federal law permits me to simply write one up myself and bypass the Problem-Solving Team referral process altogether. My advice to parents in Idaho is to go ahead and make the referral and skip the whole Team thing if you’re already really sure that your child has a disability that impacts his/her education.

If you are a parent in Idaho, or anywhere else, making a referral for your child to be assessed for special education, just make sure you document when you made your referral so you can establish when exactly the Procedural Safeguards actually took effect. The date you put on the letter isn’t enough. You need proof of delivery.

If you’re a teacher, take it upon yourself to become familiar with “child find” and learn how you can best implement it in your classroom. Realize that children with hidden disabilities, like learning disabilities and emotional health problems, usually look “normal” and have average to above-average intelligence.

Just because they “look okay” doesn’t mean they aren’t eligible for special education. How are they functioning in the classroom? Are there certain things they just don’t get? Are their respective weaknesses so severe that it’s impacting their academic performance or how they interact with others in the school setting?

Try to put yourself in your student’s shoes. Where is the breakdown occurring and how do you think that makes your student feel? There are some helpful tips at LDOnline.org on how to recognize signs of a possible learning disability according to grade level.

The best thing any of us can do is continue to learn and grow so that we can equip ourselves with the knowledge and tools we need to make the special education process more effective and collaborative. When the “us-versus-them” mentality is gone and parents don’t have to maneuver around sordid education agency politics and manipulated policies to achieve appropriate services for their children, we’ll have made tremendous headway.