Tag Archives: IEP

Reconciling the Tragedy of Newtown, CT

Connecticut School ShootingThis is one of the most difficult posts I’ve ever had to write, but the challenges it presents to me are nothing compared to what the families of Adam Lanza and his shooting victims continue to suffer, as well as their communities. Maybe I’m feeling a touch of survivor’s guilt. Unlike the dead, I still have the ability to soldier on.

When I initially heard the news, it was over brunch with a colleague and our mutual client. My colleague saw the news on his smart phone and let out an audible, emotional gasp. When he told us what had happened, I didn’t feel anything at all; it was just information and wasn’t real to me, yet.

I was still trying to assimilate everything that had happened in the IEP meeting we’d all been in earlier that morning on the tail of a grueling week that had left me already emotionally exhausted. A mass murder on top of that was evidently more than what my nervous system could handle at the time. Since then, however, I’ve been following the news and the weight of the situation has sunk in quite deeply, now. I can’t read about the victims without tearing up.

An event like this hits me from every side because I have devoted my career to protecting children’s educational and civil rights. Among those is certainly the right to attend a safe learning environment that fosters their development and growth.

On the other hand, the evidence that has been publicized thus far reveals that Adam Lanza was disabled, possibly with a personality disorder, possibly with an autism spectrum disorder. The latter sounds more likely based on the descriptions given of him, though unless someone who has actually diagnosed him is permitted to disclose his confidential patient information, we’ll never really know.

What the reports from those who encountered Adam confirm was that he was socially awkward and withdrawn and that he evidently didn’t process physical pain the ways other people do, which put him at risk of unwittingly hurting himself during high-risk activities, such as soldering electronics. That sounds a lot like a sensory integration problem to me, which is not uncommon among those challenged by autism, along with the social skills deficits he was also reported to suffer.

Regardless of his diagnoses, it was clear to the outside observers who encountered him that he was impaired. And, while none of the lay people interviewed by the media thus far can point to anything that would have tipped them off that this atrocity was going to happen, we are not privy to what any therapists or others who interacted with him on a professional level may have had reason to fear from him.

Even if no one saw this coming, the fact that Adam remained socially impaired into adulthood reflects a lack of adequate intervention when he was younger, particularly given the peer-reviewed research regarding what works with children challenged by autism. The reports from those who encountered him in high school describe a young man who couldn’t relate to other people, would engage in elopement, and experienced meltdowns at school that “required” his mother to come to school and help calm him back down. The Associated Press described these latter experiences as “… crises only a mother could solve …” which reflects an utter failure with respect to school-based behavioral interventions and a gross lack of understanding regarding parental ability versus the mandated duties of the public education system.

I’ve lost count of the number of students I’ve represented whose schools have chosen to call parents away from their jobs in the middle of the day – and parents who have lost their jobs as a result – because it was less costly to the local education agencies to call the parents to come intervene than to staff these students’ programs with expert personnel. Unless the parent has a BCBA, the parent is not the person to call when behavioral problems occur and it is unethical and unlawful for school districts to shift that burden onto parents.

The special education advocate in me finds this outrageous and inexcusable. Just because no one necessarily saw Adam’s potential for murder when he was a public education student with special needs is no excuse for having failed to serve him when the opportunity presented itself to do so. When given the opportunity to prevent this from happening, nothing appropriately effective was done. The burden was shifted to his mother, who ultimately became his first murder victim. Clearly, this was not a crisis that only a non-expert, gun-collecting mother could solve.

While I’ve yet to see evidence that Adam was on an IEP while in public school, based on the descriptions given of him in the media by those who knew him at the time, if he wasn’t on an IEP, it was the world’s biggest child find violation. I have to believe he was on an IEP when he was a public school student.

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Applying ABA to Non-Compliant LEAs

Positive Reinforcer ChartApplied Behavioral Analysis (“ABA”) has been around for decades, now. As one of the few scientifically research-based methodologies for providing instruction to individuals with autism, it has become regarded as an autism intervention. But ABA is not an autism-specific intervention at all. It is one approach to behavior modification that can be used with pretty much anybody.

Pure ABA has taken some criticism, and not necessarily without cause. Some practitioners have been overly reliant on Discrete Trial Training (“DTT”) to the point of training kids to be little robots without learning to understand or value?why social norms apply to them. The use of response-costs are also used inappropriately by far to many practitioners, particularly those who don’t really understand ABA. Response-costs are basically aversive consequences that are meted out when the individual engages in undesirable behavior.

From a purely scientific standpoint, response-costs can be delivered in a manner that facilitates the learning of more adaptive behavior. In our public schools, however, it far too often gets twisted into a justification to punish a kid for manifesting symptoms at school. (Of course, this presumes that there is any ABA being used in the school setting at all.)

Punishment is already epidemic and positive behavioral interventions are woefully lacking in our public schools. ?The idea of response-costs are far too appealing to school district administrators just looking for an excuse to punish a kid for displaying poor judgment or reacting to environmental antecedents because of a handicapping condition as though the kid is displaying willful defiance or misconduct.

These people don’t need any more ammunition to do the wrong thing. They can take the response-cost concept of pure ABA out of context and resort to reactive strategies in a knee-jerk fashion without putting forth the necessary effort to prevent the maladaptive behaviors and teach appropriate replacement behaviors in the first place.

In California where positive behavioral interventions are very regulated, there is at least some legal recourse for students who have been inappropriately subjected to reactive strategies, including response-costs, but the systems of accountability are far, far from perfect and way too many school districts still get away with harming children in the name of behavioral intervention.

But, like I said, ABA (including response-costs, when appropriate)?can be used effectively with anyone. I kind of look at our advocacy as behavioral intervention where the intent is to change the behavior of education agencies engaging in harmful, non-compliant behavior.

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Federal Seclusion & Restraint Info

USDOE Offices in Washington, DCThe U.S. Department of Education (USDOE) has made information available regarding the use of seclusion and restraint in public school and public school-funded settings for the use of educators, policy makers, parents, and concerned citizens alike. Click here to see this content.

All of it is important for parents and educators of special education students. I’m going to summarize a few key points here because it is so important, but realize that the federal info linked to above is far more comprehensive and includes additional resources that educators and parents can use that I’m not duplicating here.

First, USDOE has identified 15 key principles that it believes schools and parents throughout the country should consider when it comes to seclusion and restraint. Those 15 key principles are as follows:

  1. Every effort should be made to prevent the need for the use of restraint and for the use of seclusion.
  2. Schools should never use mechanical restraints to restrict a child?s freedom of movement, and schools should never use a drug or medication to control behavior or restrict freedom of movement (except as authorized by a licensed physician or other qualified health professional).
  3. Physical restraint or seclusion should not be used except in situations where the child?s behavior poses imminent danger of serious physical harm to self or others and other interventions are ineffective and should be discontinued as soon as imminent danger?of serious physical harm to self or others has dissipated.
  4. Policies restricting the use of restraint and seclusion should apply to all children, not just children with disabilities.
  5. Any behavioral intervention must be consistent with the child?s rights to be treated with dignity and to be free from abuse.
  6. Restraint or seclusion should never be used as punishment or discipline (e.g., placing in seclusion for out-of-seat behavior), as a means of coercion or retaliation, or as a convenience.
  7. Restraint or seclusion should never be used in a manner that restricts a child?s breathing or harms the child.
  8. The use of restraint or seclusion, particularly when there is repeated use for an individual child, multiple uses within the same classroom, or multiple uses by the same individual, should trigger a review and, if appropriate, revision of strategies currently in place to address dangerous behavior; if positive behavioral strategies are not in place, staff should consider developing them.
  9. Behavioral strategies to address dangerous behavior that results in the use of restraint or seclusion should address the underlying cause or purpose of the dangerous behavior.
  10. Teachers and other personnel should be trained regularly on the appropriate use of effective alternatives to physical restraint and seclusion, such as positive behavioral interventions and supports and, only for cases involving imminent danger of serious physical harm, on the safe use of physical restraint and seclusion.
  11. Every instance in which restraint or seclusion is used should be carefully and continuously and visually monitored to ensure the appropriateness of its use and safety of the child, other children, teachers, and other personnel.
  12. Parents should be informed of the policies on restraint and seclusion at their child?s school or other educational setting, as well as applicable Federal, State, or local laws.
  13. Parents should be notified as soon as possible following each instance in which restraint or seclusion is used with their child.
  14. Policies regarding the use of restraint and seclusion should be reviewed regularly and updated as appropriate.
  15. Policies regarding the use of restraint and seclusion should provide that each incident involving the use of restraint or seclusion should be documented in writing and provide for the collection of specific data that would enable teachers, staff, and other personnel to understand and implement the preceding principles.

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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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20 Important Tips to Good Advocacy

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

I’ve recently had to come to the terms with the reality that’s there is only one me, there are only 24 hours in a day, and each lifetime is a unique thing that will never happen again once it has ended. I realized that I had made so many personal sacrifices to single-handedly pursue KPS4Parents’s mission with very little hands-on support (though tons of emotional support, the value of which I truly appreciate) because of our limited resources, that I was going to eventually put myself in harm’s way if things didn’t change.

This organization was never meant to be a “one-man band.” It started out with two of us; our founder, Nyanza Cook, and me. However, in 2006, Nyanza became ill and I took over her caseload. She remained ill and I took over the organization. She’s okay now and remains the chair of our board of directors.

In 2006, I had 40 kids on my caseload and several of their cases went to due process and on to federal court appeals after that. My daughter was in 5th grade and I was involved with Girl Scouts. I have no idea how I survived the 2006-07 school year. My pace was frenetic at the time, something I just can’t do anymore.

KPS4Parents is now undergoing a reorganization to account for the changes that have happened since we first opened our virtual doors in 2003. Next fiscal year (starting July 1, 2012) will begin our tenth year of operations, which is hard to believe.

The changes we’re making are necessary to adapt to the changing needs of our clients, blog followers, and the public education system as its evolution starts to finally build some momentum. It’s only a matter of time, now, until technology finally takes hold of public education the way it revolutionized large-scale business and industry 30 years ago.

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Science-Based Decision-Making in Special Ed

Last month, I wrote an article for Special Education Advisor, a blog operated by some folks located in Chatsworth, CA who are?dedicated to helping parents of children with special needs. You can see the article by clicking here.

The title of the article is “Tying the Science of Special Education to the Law.” Both science and law are fact-based disciplines (or are supposed to be), so this is a big issue for KPS4Parents, these days.?I’m not going to repeat the whole thing here. You can link to it to see what I wrote.

The point is that there is a huge disconnect between the science of special education and the law of special education. As KPS4Parents approaches its 10th year of operation, we are looking at how best to focus our efforts based on what we’ve learned so far and this seems to be the critical nexus where our attention should be focused.

Somebody scientific informed the development of the IDEA. Congress couldn’t have come up with language like “measurable annual goals” and “present levels of performance” without someone who understands the science of it all chipping in.

One of the issues we’re looking to combat on a systemic level is the watering down of the term “measurable” by the public education system. There is only one definition of “measurable” and it doesn’t include ballpark estimations framed as percentages of accuracy. Real percentages are calculated from measurable data. IEPs are required to be reasonably calculated to render meaningful educational benefit, which, again, means using reliable empiricism.

School districts try to argue that they are not bound by the same degree of rigor as scientific research, but the term “measurable” comes from the use of empirical methods ??la science. Hello!!!!!

It has always killed me that our public schools expect 3rd graders to produce science fair exhibits that include a hypothesis, methods (including for measurement), and results in a manner consistent with scientific method but the same school districts that teach this will do everything they can to exempt themselves from the same standards of accuracy when it comes to their duties to educate children with disabilities. Why specialists with advanced degrees think they are?held to a lower standard of technical accuracy than the average 3rd grader is beyond me.

In any event, this is going to be something to which I’ll be devoting a lot of attention. I’ll be doing a lot of research and posting my findings as I go along. I may also be assisting in the development of a legal treatise on the subject, which could be constructive in preventing and resolving special education legal disputes in which measurability is at issue.

If you have any background knowledge on how the scientific terminology of the IDEA ended up in the regulations, please share! You can post your feedback below.

Smiling Assassins, Lawless Renegades, and Pseudo-Psychologists

Smiling AssassinConnecticut special education attorney, Jennifer Laviano, posted some excellent content on her blog, titled, “Unseemly IEP Team Members,” in an effort to educate parents about some of the negative types of personalities they can encounter from their local school districts at IEP meetings. As Ms. Laviano states in her post, these descriptions do not account for all district personnel; just those who engage in inappropriate conduct.

Even though the personalities she describes only account for a handful of “bad guys,” the non-compliant and/or substantively inappropriate actions of one district employee is often enough to derail the best efforts being made by the ethical district members of the team. To make things worse, most parents don’t know enough about the science or the law of special education to always know when they’re getting shafted. This makes it important for parents to educate themselves.

I want to focus on three particular personality types that Ms. Laviano describes in her posting because I’ve encountered individuals such as these relatively recently and have had to deal with each in a particular manner. One thing to note is that it is possible for a single individual to fit more than one of these negative personality types.
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