Special Education Law Blog

Should Auld Afflictions Be Forgot… -- by Lori Miller Fox

Every year at about this time, I think about how my life appears to be different from the lives of most people.   For the first time in a long time, I’d like to focus on the similarities rather than the differences.  So I’ve come up with a list of New Year’s resolutions just like everybody else’s.  However, how I plan on achieving them may set me and Moms like me a bit apart.  Please glean from them what you will, and together we can change the world.

$100 Laptop Computers

Children require access to the information tools that are an integral part of both learning and our economy.  This is especially true for children with special needs.  Computers with the capacity for internet access are the obvious point of access for all of this wonderful information, educational resources, and vocational training and orientation. Among the many obstacles that have up to now impeded access to the internet are the cost of the technology and what I call the "geek factor” (discussed further below).  The cost factor is obvious.  Computers can be budget busters.  In a time when some students, such as in Washington D.C. (see post from 12/26/05) are going through half a year without books, no less computers, access to the internet  may appear a luxury for some.  The unfortunate reality, however, is that books AND access to the internet are equally essential.

Lack of IEP Implementation is Also an Outrage

In a recent Washington Post editorial, the D.C. school system was taken to task for its failure to deliver books to all students, even as late as December 2005.  The editorial described the school system as follows: "it is a warehouse for students and a pretty poor one at that."  The scope of this failure is certainly an outrage, and it is severe enough to get the attention of the mainstream media.

The rest of the story (which the editorial did not address) is that for special education students, such fundamental breakdowns in the system are all too commonplace.

Legal Points for FBAs and BIPs

While Illinois courts have refused to adopt specific legal requirements for FBAs and BIPs, there is guidance available from other states (as discussed below). Courts and hearing officers will definitely look at the sufficiency of the behavioral planning in determining whether a FAPE has been provided. The cases discussed below are illustrative cases from Illinois.

1. Illinois does not endorse a specific legal scheme for BIPS, but there are worthwhile legal guidance from other jurisdictions.  In the case Mason City Community School District, 38 IDELR 50 at 199-201 (2001), the review panel set out a four-part test to determine the sufficiency of a BIP under IDEA.  First, the BIP must be based upon assessment data; second, the BIP must be individualized to meet the child’s unique needs; third, the BIP must include positive behavioral change strategies; and fourth, the BIP must be consistently implemented and monitored.
2. Behavioral intervention is defined as an “[I]ntervention based upon the methods and empirical findings of behavioral science and designed to influence a child’s actions or behaviors positively.” 23 Ill.Adm. Code 226.75 (emphasis added).  Both Federal and State regulations implementing IDEA reflect this emphasis on the need for positive behavioral interventions as part of the child’s IEP.  See Appendix A interpreting the regulations in 34 C.F.R. part 300 question 26, which states that a person knowledgeable about positive behavioral interventions should be part of the IEP when a child’s behaviors impede his or her education.  Question 38 states emphatically that failure to appropriately address behaviors that impede a child’s education is a denial of FAPE. 34 C.F.R. part 300 question 38. See also 23 Ill. Adm Code 226.220(e), 226.230(b), 226. 750(b); and Bristol Township School District, 36 IDELR 145 at 626 (2002).
3. FAPE was denied to a child on the autism spectrum in Grayslake CCSD #46, 37 IDELR 239 (2002), because the FBA and BIP were insufficient and untimely, and the staff lacked the expertise to undertake the task and failed to contract for staff with more expertise in behavioral intervention.  Residential placement and significant compensatory education were ordered.
4. FBAs and BIPs are often critical in making a legally sufficient determination on placement. Oak Park and River Forest H.S. District #200, 34 IDELR 161 (2001).  A valid FBA/BIP was a needed prelude to moving a child to a more restrictive placement.  In Sandwich Community Unit School District No. 430, 35 IDELR 173 (2001), a BIP was needed to address a child’s truancy, rather than changing to a more restrictive placement.  In District No. 211 v. Michael R., 44 IDELR 36 (N.D. Ill. 2005), a valid FBA and BIP that had been revised and reconsidered over time were important elements in supporting the district’s determination to move the child to a more restrictive placement.

Guidelines and Observations Regarding Behavioral Intervention Plans ("BIPs")

Behavioral intervention plans ("BIPs") can be effective at supporting a child's education if properly done.  The purpose of a BIP is to address a child's behaviors that are interfering with the child's education in a positive and proactive manner.  Too often, however, BIPs are created in way that is not based upon good data, are not positive or proactive, and tend to be punitive in nature.  Some brief articles on positive behavioral interventions for various disabilities can be found on the About Special Education website.  These articles are a good starting point for designing better BIPs and understanding the process.

The following are my personal observations and thoughts on BIPs.  These points are based upon my work with many clients over a period of years and include ways that BIPs can be improved to better support students.

Guidelines and Observations Regarding Functional Behavioral Assessment ("FBA")

A Functional Behavioral Assessment ("FBA") is one of the most critical parts of an IEP for children who have behaviors that impede their education.   As a preliminary matter, this planning process involves a good understanding of what is meant by the term "behavior".   This term does not exclusively or even primarily mean acting out or violent conduct.   A behavior is anything that the child does that interferes with learning, from being inattentive to falling asleep or having full-blown tantrums.

The process begins with the FBA, which looks at the communicative intent of the behavior, or the functional aspect of the behavior.   The underlying assumption is that all people behave in a certain way to communicate wants, needs, desires or some other meaning (e.g. I am overwhelmed, I am upset etc.) .  FBAs take a holistic analysis of the child's environment, typically in school.   If well done, the FBA process will include the parents, it will be based on good data over a period of days and weeks, and it will be revisited over time to evaluate the validity of the hypothesis that grows out of the FBA.

There can be many pitfalls in the FBA process.   Too often, FBAs are done incorrectly, they are done too late, and they simply do not improve the outcomes for either the staff or student.  Below, I have recorded some of my personal observations about FBAs and some recommendations for improving this important part of the IEP process.

Toys That Work for Children With Special Needs

For most parents, the most feared words when it comes to toys is "some assembly required."   For parents of children with special needs, the struggles with toys go beyond plugging peg A into hole B.   There are all kinds of issues lurking, some more obvious than others.   Is the toy too loud and over stimulating for a child with sensory issues?   Is it still age appropriate to play with typical peers?   Is it sufficiently accessible for hands that lack normative dexterity?

A trip to Toys “R” Us for parents of special needs children can be daunting.    While fighting crowds and the stress of the holidays, you are left to make a judgment on the issues discussed above, among others.   For the faint hearted and stymied, there are always musical selections, but buying music can be rather ordinary.   It does not push the developmental envelope, nor does it require engagement with peers.   After all, toys are fun, but they also serious business when it comes to the emotional and social growth of a child.   Play has been shown to be an essential part of development.

At last, there is an answer for all of those parents, friends and family grappling with the toy dilemma.   Lek-o-tek, the toy lending library, which has it headquarters in Evanston, Illinois, has launched an interactive website to assist in the selection of toys for children with a variety of special needs.   The site is http://www.ableplay.org/.  The purpose of the site is to provide:   

[A] toy rating system and website that provides comprehensive information on toys for children with special needs so parents, special educators, therapist and others can make the best choices for the children in their lives with disabilities.

Maybe now with Ableplay, children with special needs and their families will have one less stressor this holiday season.

Home for the Holidaze -- by Lori Miller Fox

Every year, the onset of the holidays gets my mind wandering to a simpler place and time before children.   And I ask myself, when did life become so complicated?   When did special needs become so specialized?   Here are just a few warm childhood memories I’d like to share, some of which are my own and some which belong to Hallmark.

First Amendment Case Pending Before U.S. Supreme Court May Affect Teachers’ Ability to Advocate for Students

It happens with some degree of frequency that a teacher or therapist reveals “inside” information to parents or their attorney that is damaging to the school district’s interests.  In fact, I had a case where the speech therapist working at the school, from the school cooperative, testified extensively as to how the school was not properly implementing services for the child.  She was subsequently called in and reprimanded, but she held her ground and the case settled without further repercussions for her.  The question is, in the event she had been fired or demoted in some way, would she have a 1st amendment claim for speaking out at a hearing and to the parents?

G.R.I.N. and Get Ready for the Future

Tenacious rational optimism is the way I approach challenges related to my son’s disabilities and  my client-children's needs as well.  One of the wellsprings for my optimism comes from a set of technologies that I now have learned has an acronym: GRIN technologies--genetics, robotics, information technology and nanotechnology.  This set of technologies holds great potential for the future of all people, but especially for  individuals with special needs.  The tie-in  with education is obvious.   Our children need to be ready to access these GRIN technologies when they become available. Just as we do physical therapy to keep muscles conditioned for a child’s day-to-day functioning, long term, the child’s body needs to be physically ready to take advantage of future advances, whether medical or technological or a combination of both.  Without an appropriate education that consists of solid core skills, the child’s mind will not be ready to access that which is coming down the road.  There simply is no room for sentiments that suggest that there is no point in trying and reaching for more from out children’s education. The future is bright with possibilities if our children are prepared for it.