Tag Archives: LEA

OCR Finds Policy Violates Section 504

On October 29, 2010, the U.S. Department of Education Office of Civil Rights issued an investigation finding regarding the use of temporary aides for special education. We are publishing it here in the hopes that the information can provide a constructive heads-up to other Local Education Agencies (“LEAs”) and empower parents facing similar situations.

The issue, in a nutshell, is the matter of LEAs creating policies that prohibit the application of a student’s unique needs to the development of an offer of a Free and Appropriate Public Education (“FAPE”).?In this case, the issue was the provision of aide services to children who require 1:1 aide support.

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Overly Accommodating Parents

Pursuing remedy to special education violations is an emotionally draining task for any parent.  It’s easy for some parents to go on the warpath, leaving nothing but scorched earth after everything is said and done, and that’s a terrible way to try and solve a problem of any kind.  It’s an incredibly harmful approach to use in a situation involving children, handicapped or not. Continue reading

Finding Solutions, Not Asserting Authority

This posting and podcast are directed at school district administrators, the people farthest removed from the classroom yet whose decisions can contribute to the achievement of appropriate educational outcomes or ruin lives. First, I want to acknowledge the tremendous responsibility that falls on the shoulders of the people who choose to undertake administrative positions. Getting the job done at all is a sometimes seemingly insurmountable challenge, and yet it still has to get done.

But, there are always those people who are seeking status rather than responsibility when they pursue high-ranking positions, and as a result, their decision-making isn’t always focused on the right things. On the rare occasion when it is focused on appropriate outcomes, it’s usually because they perceive these outcomes as beneficial to themselves in some way and are motivated purely by their own self-interests (or what they perceive to be their own self-interests). This isn’t unique to government. Look no further than former Governor Blagojevich of Illinois for proof of that.

While there are a lot of dedicated, responsible people working in public education administration, there is an unfortunately large number of people who look at school administration as nothing other than a career path. Those who are climbing ladders for their own reasons without care or consideration for the students they’re supposed to be serving are dangerous, particularly to children with special needs.

As we go through this current series of blog articles and podcasts, which identifies the sources of negative influence in the special education process so that they can be addressed and overcome, it’s necessary to shine a very bright light into the dark corners of school administrator malfeasance. This is a very serious cause of problems in the special education system and it is hardly rare.

To illustrate my point, I’ll share a couple of examples from my own experiences. My point here isn’t to call the bad guys out in a public venue. That’s actually already been done plenty enough by others. My point is to use their actions to illustrate a what I mean.

Our founder, Nyanza Cook, was inspired to create KPS4Parents based on her own experiences attempting to advocate for her eldest child who has special needs. He was misidentified as having mental retardation when he actually had a normal IQ but had a severe language impairment. For years he languished in special day classes for children with cognitive impairments and failed to receive grade-level instruction or speech-language services of any kind. In fact, the District had refused to assess his speech-language needs.

She and I met when she hired me as a freelance advocate to help her with his case. We ended up settling the matter in mediation and he finally ended up getting properly identified. She started KPS4Parents and brought me on board shortly thereafter. That was July 2003.

In November 2003, she made a written referral for special education assessment of her second child. He started out in school just fine but as he advanced from grade to grade, school became more and more of a struggle for him. In January 2004, once the assessments had been completed, an IEP meeting was held to go over the results as required by law. She and I attended the IEP meeting, as did a program coordinator from the District. This woman had been the same program coordinator involved with Nyanza’s older child. Not only had they involved the same program coordinator who had been responsible for her older son’s special education fiasco, they also involved the same school psychologist.

From the very beginning, the situation was contentious. As it turned out, he had multiple handicapping conditions; none of them were terribly severe individually, but all of them collectively together compounded into quite a situation. The District’s administration was resentful that Nyanza was back again asking for more, this time for another child. They were not only angry over the previous case for her eldest child, but they were particularly peeved that she had started KPS4Parents in response to their misconduct and made no bones about what had inspired her to start our organization.

They did everything they could to undermine the IEP process, treating most of her parent requests as though they were excessive demands though she never asked for anything that wasn’t based on the facts or evident need. Additionally, she was never hostile or hysterical in any of her son’s IEP meetings. She would respectfully disagree and put the district on notice as required by law regarding certain things, but she was never inappropriate.

In the end, the district spent tens, if not hundreds, of thousands of dollars fighting her tooth and nail over the basic elements of an IEP – assessment in all areas of suspected disability, measurable annual goals in all areas of need, services, and placement. They fought her over accommodations. They fought her over behavior assessment and intervention. They fought her over assistive technology.

Ultimately, it wasn’t worth it. She pulled him out of the district and enrolled him in another school. The administration was gunning for her the entire time, more than willing to harm her child in the process, just to show her who was in charge. It was one of the most unseemly situations I’ve ever seen. Sometimes parents have to make a judgment call as to whether to stick it out and force the issue to compel their school district to do the right thing or to protect their children from harassment and educational neglect by getting the hell out of Dodge.

There was no reason for her son to be caught up in such an acrimonious situation and even though the school site personnel didn’t actually buy into what the District’s administration was doing – they were appalled, actually – they couldn’t do a whole lot to stop it. They were given their marching orders from the head office and were put in a very awkward position.

Several times the principals – there were two wonderful ladies who were principals of his school during each of the two years that all of this went on – would deliberately take a course of action different from what they had been told by the District’s administration to do because what they had been ordered to do was just wrong. And, they caught a lot of grief from their superiors for handling things not exactly as they’d been ordered. They walked a fine line and Nyanza and I felt terrible about the positions they were put in and appreciated everything they did to try to minimize the negative impact on her son. They were beautiful people who cared about children and wanted their students to learn.

It became an entirely untenable situation, nonetheless. When Nyanza finally threw in the towel and moved her son to another school, we felt defeated in a way, but relieved in another because we knew where he was going to have a clean start without an administration that was already pissed off at his mother for something that had nothing directly to do with him. He would not be used as the administration’s vehicle for revenge against his mother.

In other situations I’ve been involved with, it’s been the school site administration that’s gotten its knickers in a knot. The familiar scenario is the parent who stops by to drop of a forgotten lunch box only to find something horrible going on in the classroom involving his/her child. I’m talking about children being locked in bathrooms during behavioral outbursts, given “sensory breaks” in trash bins, tied to their chairs to prevent elopement, or screamed at and manhandled by teachers or aides who have completely lost it.

The parents complain to the administration who immediately go on the defensive, though they promise to fix the problem. The parents decide that they’re going to conduct unscheduled drop-in visits just to keep an eye on the situation. But they show up for a drop-in and are told that, unlike the informal just-sign-in-and-go-to-the-classroom procedure they are used to, they are now required to schedule their visits in advance with the principal, can only have a total of 30 minutes of on-campus time a month, and must be accompanied by school site personnel at all times during their visits.

These could be the same parents who had been volunteering on campus for three hours a week and suddenly they’re told that it’s district policy to allow parents on campus for only 30 minutes total per month. And, they’re being told this just as a parent volunteer comes in for the fifth time that week to put in a couple of hours in the school library.

In many cases, it turns out that the strict visitation policy is actually the district’s policy. It’s just selectively enforced by school site administrators who see their campuses as their own little fiefdoms in which they can apply or ignore the rules according to their own personal preferences. However, I had one case in which it wasn’t the district’s policy at the time it was told to the parents; the principal/superintendent of the tiny, rural one-school district proposed the policy change to the board after she had already prohibited the parents access to the campus, where the visitation policy at the time had permitted drop-in visits.

This is the kind of game-playing that hurts kids and undermines the special education process. When administrators go on power-trips and become obsessed with showing everybody who is in charge, they’ve completely lost sight of why they were hired in the first place. They aren’t performing their mandated duties. They’re putting their public agencies at risk of costly litigation. But, most importantly, they’re failing to ensure that their students receive appropriate instruction, which is the whole reason why they are there.

The legitimate duties of a public education agency administrator are incredibly challenging. Yet, anyone who accepts the challenge is expected to take it on and figure out a way to make all the right things happen, not make excuses as to why the challenges can’t be met. If the challenges can’t be met, then we as a society need to reconsider devoting public resources to meeting them. The reality, however, is that the challenges can be met. There are innovators and brilliant problem-solvers in public education who set a shining example of how to overcome the obstacles to appropriate student outcomes, making it clear that, no matter how hard the job may be, there’s no legitimate excuse for not getting it done.

Click here to download the podcast version of this article.

Your Clients’ “Best Interests” – Why Students’ & LEAs’ Interests Can’t Possibly Conflict

Today’s article is targeted to attorneys who represent Local Education Agencies (“LEAs”). It’s particularly targeted to those attorneys who behave as though what is in their clients’ best interests are somehow at odds with the best interests of the special education students their clients are being paid to educate and that special education is an “us versus them” proposition.

First I want to acknowledge that life is hard for everyone. We’re all facing our own challenges.  Life is unique for every single person who walks this Earth and the way it is hard for one person is different from the way it hard for another.  We all owe each other compassion and understanding.

But, no one – and I mean No One – gets into Heaven by depriving children with disabilities the services they desperately need.  I don’t care what your baggage is.  Even if you go to church every Sunday and beg forgiveness, if you turn around and walk into an IEP meeting or due process hearing the next day doing everything you can to screw over a handicapped child and his family, you’re going to burn, burn, burn in Hell.  Forgiveness can only be given when your prayers for it are legitimate and your repentance is true.  The Almighty knows when you’re being insincere, even if the average hearing officer doesn’t.

It’s not exactly a secret that almost every single law firm that represents public schools does so for profit.  And, they get paid win or lose when cases go to hearing.  School districts are not represented by law firms on contingency.  They are represented under expensive annual contracts with additional hourly rates for time put in above and beyond what the annual contract includes. As much as school districts may desire to avoid litigation, the harsh reality is that their law firms make more money when cases go bad and litigation rears its ugly head. For that reason, many attorneys who represent LEAs have reputations as “billing machines,” stirring the pot and causing problems so they can bill for additional time to get their clients back out of hot water.  And, most special education directors are so clueless regarding their legal obligations that they don’t even realize they’re being taken for a ride.

KPS4Parents represented two brothers with autism a few years ago, both of whom had been placed at the same non-public school (“NPS”) by their LEA.  The NPS was a joke.  It was on the verge of being shut down by the California Department of Education (“CDE”) for not having proper special education teaching staff and otherwise being a hokey outfit.  Both the boys, although three years apart in age and nothing alike in terms of how each of them manifested their autism, were receiving the same curriculum.  Neither of their IEPs were actually being followed.  They were being warehoused all day, as were all the other students at the school.

KPS4Parents was hired by the parents and I was assigned as the advocate on both their cases.  In the course of working with the District to straighten things out, I requested on the parents’ behalf additional assessments, copies of their records, and amendments to their IEPs based on what little data we had to work off of at the time.  The District had proposed some new assessments prior to my requests and those assessments were pending at the time that my requests for additional assessments were made.

Long story short, the District blew the 60-day timeline for completing the assessments it had initially proposed, it blew the 15-day timeline for providing assessment plans for the assessments I’d requested on their behalf, and it failed to provide their student records within 5 days, as required by California law. The latter issue is legally interesting, and relevant to today’s article, because it was the District’s lawyer who caused the provision of the records to take over a month.

While the assessments being delayed were potentially more substantively harmful than the delay in providing the student records as requested, the timeline delays with respect to the assessments were caused by people within the District not having their act together.  No one was trying to do harm or screw around.  That isn’t to say that the violations didn’t result in substantive harm – they did.  But, the substantive harm from the assessment timeline violations were the fault of the District, not it’s attorney.

The records were delayed by the District’s attorney who wrote letters arguing that the authorizations signed by the parents giving KPS4Parents permission to request records on their behalf were suddenly invalid.  The standard KPS4Parents authorization can only be terminated in writing and has no expiration date.  It saves us the trouble of having to re-do them from one school year to the next when cases span across more than one school year.  Neither parent had submitted a written withdrawal of authorization and both parents were livid when they got the letter from the District’s lawyer indicating that the District was not going to give me their sons’ records as requested.

This went back and forth for over a month before I finally got the records.  By that time, the other timeline violations had also occurred. It had become apparent that the attorney representing the District had the special education director wrapped around her little finger and was manipulating the relationship for her own financial gain.

I filed compliance complaints alleging failures to abide by the three different timelines on behalf of both boys.  I offered to enter into a local resolution with the District if it would promise to create policies and procedures that would prevent timeline violations from occurring again in the future.  The CDE investigator informed me that the District, through their attorney, declined my offer of local resolution and had chosen, instead, to let the investigations proceed. In the end, CDE sustained six – count ’em, SIX – violations of the law against the District and ordered it to clean up its act.

Shortly thereafter, I sent a Public Records Act (“PRA”) request to the district’s governing board asking for copies of the attorney’s bill for the time she put in on the boys’ cases.  I wanted to know how much the taxpaying public had paid for this woman to get the District cited for six violations of the law.  Not counting her annual contract fee of $50,000, the District paid her about $600 to get it cited six times over – that’s about $100 per violation.  That may not seem like a lot of money in the grand scheme of things, but it was taxpayer dollars that were spent on this.  And this was just for these two boys.

And, what did that money buy the District?  A big, fat black eye.

The attorney was sacked before the end of the school year.  The special education director was asked to leave shortly thereafter, once it had become apparent that she had either gone along with the attorney’s misdeeds or was too clueless to realize that she had been played.  Frankly, the two of them had been up to no good for years. I think this situation was just the straw that finally broke the camel’s back.

My point in retelling this story is to illustrate what self-serving representation causes. It causes harm. Not just black eyes to school districts, but substantive harm to children with special needs.

The only legitimate outcome that appropriate representation should pursue is the assurance that the LEA being represented is abiding by the law and meeting its obligations.  There is no “us versus them” when LEAs are doing what they are supposed to be doing.  What is in the best interest of the LEA is its fulfillment of its mandated duties.

LEAs exist for only one reason – to educate children.  This includes children with special needs.  And, LEAs are not expected to reinvent the wheel.  Congress created the IDEA to give them a framework by which the education of children with special needs can be provided.  It is the obligation of attorneys representing LEAs to help the LEAs comply with these regulations and achieve appropriate student outcomes, not try to figure out ways for LEAs to weasel out of their obligations or otherwise exploit bad situations for the attorneys’ financial gain (much less at taxpayer expense).

If you are looking at a dispute from the perspective that your clients’ best interests are somehow something other than their students’ best interests, something with your way of thinking is terribly, terribly wrong.  What is in your clients’ best interest is to render a FAPE.  That’s what the law requires them to do.  The delivery of appropriate educations to their students is the reason why your clients exist and the only reason they have taxpayer dollars with which to pay you.

Properly representing your LEA clients should involve you making sure that their students eligible for special education and 504 Plans are getting the FAPEs to which they are entitled.  That’s legitimately protecting your client from getting into trouble. You shouldn’t be doing anything other than that.

Click here to download the podcast version of this article.

Understanding Who Is and Who Is Not Eligible for Special Education

Eligibility is a very confusing concept for most parents trying to negotiate their ways through the bureaucracy of special education. It’s an unfortunate reality that special education has to be regulated in order to make objective determinations as to whether students benefitted from their services or not, but the regulations create what is to some parents seemingly insurmountable barriers to entry.

 

This is further compounded by an industry-wide (and I am considering public education an industry, here) initiative to intervene before students are so far gone that they actually need special education. On the surface, this sounds like a good idea. If acted upon in good faith, it’s a great idea. Why wait until a child is so far behind that he/she may never catch up Why resort to labeling the child as “disabled” when what’s closer to the truth is that he/she was never taught the way he/she actually learns?

 

However, far too often, in the name of preventing an unnecessary referral for special education, strategies are attempted in the name of “regular education accommodations” and “Response to Intervention” that aren’t successful. In the end, it becomes apparent in these instances that these “strategies” were nothing more than bad faith delay tactics used in the hopes that the parents would reach the conclusion that their children were beyond help and simply give up.

 

After all, teaching children who are struggling to master certain concepts is really, really hard. It’s a lot easier simply to not. The employees of the education system get their paychecks either way. This is a deplorable situation for parents and educators who truly care, alike.  Good teachers are constantly fighting an uphill battle to do the right things.  After a while, it’s easy to burn out and give up, leaving behind all the people who are inclined to take the easy path and just not do much of anything.

 

That said, when it comes right down to it, who is really eligible for special education? It is a misconception that the presence of disability automatically qualifies a child for special education. It does not. A disability must be present in an eligible child, but that by itself is not enough.

 

There must be a negative educational impact caused by the disability – it must interfere with the child’s learning or participation at school to a significant enough degree that specialized instruction, modifications, accommodations, and possibly related services such as speech-language services and occupational therapy are necessary in order for the child to receive educational benefit.

 

For more than two decades, everyone has been carrying on about the abysmal standard established by Rowley. Or, more accurately, Rowley has been misrepresented by public schools as meaning they don’t have to do a whole lot. Amy Rowley was passing her classes without the sign language interpreter her parents wanted and could get around school just fine, in spite of her hearing loss.  That really doesn’t speak to the circumstances of a child with learning disabilities and ADHD who is reading three grade levels below his current grade.

 

There is another case, Mercer Island, in which the appellate decision declared that the Rowley standard of “some educational benefit” and “a basic floor of opportunity” is dead. Rowley was decided in 1982 in light of the predecessor of the Individuals with Disabilities Education Act (“IDEA”), the Education of Handicapped Children Act of 1975 (“EHA”). The EHA was meant simply to give children with disabilities access to the public schools. Prior to the EHA, at least a million children with disabilities were denied enrollment and there was often no programming to meet their educational needs even when they were permitted to attend school. They simply stayed home or spent pointless hours in regular classrooms with no supports waiting for the day when they could drop out.

 

In 1997, the EHA was replaced with the IDEA. With it came much stronger language about what kinds of outcomes are to be expected. I concur with the findings in Mercer Island for the very obvious reason that the purpose of any education system is to teach students what they need to know so they can take care of themselves as much as is reasonably possible when they grow up. That’s what benefits the children and their families the most. That’s what benefits society the most. (See our posting, “The Big Picture – Special Ed Issues Impact Everyone.)

 

The need for specialized instruction in order to receive educational benefit (setting aside for the moment how “educational benefit” is exactly defined) on the basis of a handicapping condition is what drives eligibility for special education. This could be something as relatively benign as an articulation disorder that prevents the student from speaking clearly enough to participate effectively in group learning activities with peers, read aloud in class, and/or effectively communicate personal needs or lack of understanding to instructors.  It could be something as severe as quadriplegia that prevents the student from independently navigating a school campus. There are a million ways to be disabled.

 

However, let’s say we have a child with quadriplegia who has mastered the use of his electric wheelchair and can get anywhere on campus he wants, is intellectually intact without any learning disabilities or emotional problems, and is able to hold his head upright and turn it sufficiently to follow instruction in the classroom. He grasps what the teacher is saying.  And, at most all he needs in his academic classes are accommodations, such as a set of books at home, a set of books at school, note-takers in class, access to a computer with dictation software on it, and assistance using his materials in the school setting in order to participate. Does this child require special education?

 

I’d argue that for a kid like this, PE is the only part of the curriculum he can’t participate in without specialized instruction and he would qualify on that basis alone, requiring Adaptive PE as his specialized instruction.  I’d also argue that for self-help needs such as eating and toileting, he would probably need a properly qualified 1:1 aide as a related service.

 

For a child with a disability that impacts his/her receipt of an education and/or participation at school, but who does not need specialized instruction, the solution is a 504 Plan. That’s another blog posting in and of itself. I’m not going to explain 504 right now.

 

The point I’m trying to make here, particularly to parents, is that special education really is meant for a specific group of kids.The federal regulations are found at 34 CFR 300.8.? Each state has its own additional language, as well. In California, for example, it’s 5 CCR 3030.

 

There are some parents who think that getting their child into special education will solve everything. That may not be so.  I’ve encountered parents who were simply looking for something to blame- a defect in their child – rather than their own incompetence as parents for their child’s problems.  Sometimes children are just responding to, or role modeling themselves after, the adults around them.

 

I’ve also encountered parents whose children did have mild problems that fell just short of qualifying them for special education. That’s the thing with the regulations. Somebody is invariably going to almost, but not quite, qualify for special education. The line has to be drawn somewhere. Those are the kids whose parents need to turn to Section 504 and learn as much about it as they can.

 

But, I’ve also encountered education agencies that didn’t want to admit that they had failed to conduct “child find” for years running, resulting in a failure to find a child eligible who should have been found eligible long ago, thereby denying the child a Free and Appropriate Public Education (“FAPE”). Because these agencies didn’t want to admit fault and were hoping to avoid being held responsible for providing compensatory education to these children, they lied and said these kids weren’t eligible at all and never had been.

 

A fair amount of litigation arises over eligibility issues. The important thing for parents to understand is that the regulations spell out who and who is not eligible for special education. You need to understand the rules before you go charging off on a mission. State law usually hones the federal law on this issue.

 

For example, if a clinical psychologist has given a child a DSM-IV diagnosis of dyslexia, that doesn’t mean the child will qualify for special education as having a learning disability, even though dyslexia is a type of learning disability; what matters is that there is a discrepancy between achievement and ability or the child has failed to respond to scientifically research-based interventions in the regular education setting because of the dyslexia, which is a processing disorder. On that basis, the child can qualify for special education as having a learning disability.

 

Educators need to appreciate that parents often don’t understand this subtle distinction and be kind and helpful to them as they try to navigate the system. Mocking them for not knowing this is simply inappropriate. Being compassionate to the needs of the student and the angst of the parents who are worried about their child’s academic performance is very appropriate.