Special Education Law Blog

COVID-19 Cannot be a Time of No Education for Students with Special Needs

It appears that this pandemic of COVID-19 is a time that lawmakers such as Senator Lamar Alexander and others are ready and willing to basically exempt school districts from their obligations under IDEA. At this time our students need more not less education and more creative solutions. Elearning will not be the answer for many students with a high emphasis on self teaching and self-initiative. I have rarely seen schools take creative approaches but now is the time for schools to be more creative and not take an "oh well" approach to special education. This time off from school, that will likely last until the end of the year, and perhaps beyond cannot just be dead time. Fortunately there is guidance that school's still must meet the needs of students with special needs. The following is a posting from COPAA, detailing school's obligations (see below) at this time and beyond. We will likely need to have many (and extended) conversations about compensatory education for the many missed educational opportunities. Do not be shy about emailing your case manager and special education director requesting more than ineffective elearning for your student.

 

Teaching Your Child to Read: Read 180, System 44 and Beyond

It is remarkable to me how many IEPs provide for reading programs that are not individualized to the student’s needs and do not produce meaningful results.  A one-size-fits all approach simply doesn’t work for students with reading disabilities.  What may be an otherwise perfectly acceptable reading curriculum often is inadequate to meet the individualized needs of a particular student.  More and more frequently I am finding myself attending IEP meetings for students who are repeatedly failing to meet their IEP goals and am confounded by the insistence of the IEP team to continue implementing a program or curriculum that is clearly not working for the student.  This posturing is denying the student access to FAPE, or a Free Appropriate Public Education.  In many instances, students with specific reading disorders, such as dyslexia, are slotted into a specific reading program for intervention that isn’t even designed to address their needs.  What is provided to the student is based on expediency, availability of programming in the district, and not the needs of the student.

"How to Get People to Like You" and Revisiting the Transition Plan

The Behavioral Analysis Program in the FBI’s Counterintelligence Division is responsible for the “thoughtful process of creating a positive interaction and possible relationship between two individuals, whether the goal is an interview, confession, or development of a confidential source.”  You may be asking, “Why am I reading about this in a special education blog?”  Because Robin Dreeke, who managed the FBI program for more than 25 years, has published a book entitled, “It’s Not All About ‘Me’:  The Top Ten Techniques for Building Quick Rapport with Anyone.”  In a nutshell, Mr. Dreeke is talking about the development of social skills, which is a critical piece of the special education puzzle for many of our students.  As we have discussed in previous blogs, social skills, or the lack thereof, is what trips up many of our students/children as they enter young adulthood.  Rick Lavoie, a social skills training expert, stated:  “Social skills deficits are the ultimate determining factor in the child’s future success, happiness, and acceptance.”  It’s not enough to be book smart in this world; you also need to have emotional intelligence and people savvy. 

Most of Mr. Dreeke’s suggestions, which are crystallized in a Time magazine article, may seem obvious to most of us.  Yet, they may not be to our loved ones with disabilities. Admittedly, most of Mr. Dreeke’s strategies are well beyond the scope of most of the client’s in my practice who are still dealing with communication basics:  vocal intonation, making eye contact, respecting personal space, etc.  But for students who are much higher functioning and capable of abstract thought and introspection, Mr. Dreeke is providing a blue print a la Dale Carnegie on how to make friends and generally succeed in life.  To quote the list provided by Time, Mr. Dreeke recommends:

1. The single most important thing is non-judgmental validation.  Seek someone else's thoughts and opinions without judging them.
2. Suspend your ego. Focus on them.
3. Really listen, don’t just wait to talk.  Ask them questions; don’t try to come up with stories to impress.
4. Ask people about what’s been challenging them.
5. Establishing a time constraint early in the conversation can put strangers at ease.
6. Smile, chin down, blade your body, palms up, open and upward non-verbals
7. If you think someone is trying to manipulate you, clarify goals.  Don’t be hostile or aggressive, but ask them to be straight about what they want.

These strategies are reminders of what many of our kids may need.  For some students, particularly those with autism spectrum disorders, the lack of social skills (as well as other functional living skills) can be deal breakers for them as they move into young adulthood.  As we have discussed elsewhere, many of these bright, young adults matriculate at colleges or in jobs and yet fail.  They simply don’t have complete skill sets to navigate independent living or post-secondary education. These points could be useful in thinking about and developing goals both in high school and in transition programming.

Emily Iland, an advocate and leader in the autism community, recommends going back to the transition plan for these higher functioning students.  Because they have been navigating high school on a college prep academic track, these students haven’t had room to address many of these communication and independent living skills and school districts may not even recognize that they are lacking.  Ms. Iland reminds us that these students don’t have to be handed their diplomas at 18; they can continue receiving services until they turn 21. 

It is during this transition period that perhaps many of Mr. Dreeke’s  recommendations can be integrated into solid transition goals that address pragmatic language deficits, including nonverbal body language, reciprocal speech, and initiating conversations as well as other functional and adaptive skills.  Keeping higher functioning 18-year-olds in high school may be a challenge—school districts are not used to not graduating 18-year-olds who have the requisite academic skills—and these higher functioning 18-year-olds, who legally are their own educational decision makers, may utterly balk at not graduating with their peers.  However, graduating from high school is a change in placement, and if appropriate can be challenged through due process and the accompanying stay put regulations.  It is possible that the student/family can demonstrate that the young adult is not ready for young adult life and needs additional transition services.   

I’m not necessarily recommending that every 18 year old with an ASD should continue into a transition program, but I am suggesting that families and school districts consider the student’s needs outside the academic curriculum.  The basis for this is of course, a strong and solid transition plan, which unfortunately receives very short shrift for the highest functioning special education students.  Mr. Dreeke’s recommendations for “How to Get People to Like You” simply reminds us of some of the skills our students will need as they transition into adulthood.

 

 

When Does an Assessment Test Become Obsolete?

The IDEA (Individuals with Disabilities Education Act) pretty carefully lays out the ground rules for a special education assessment.  Among the various regulations related to administering a case study evaluation are that assessments “are used for the purposes for which the assessments or measures are valid and reliable; are administered by trained and knowledgeable personnel; and are administered in accordance with any instructions provided by the producer of the assessments.”  We bring this up because the fifth edition of the Wechsler Intelligence Scale for Children (WISC), one of the mainstays of cognitive testing for children, was released this past fall.  So does the existence of a newer edition of such a standard battery render the previous edition of the WISC no longer valid?  It’s a good question, because not even professional psychological organizations appear to agree on at what point a previous edition of an exam becomes obsolete. Moreover, as a practice point, we have won cases based on the fact the district knowingly or carelessly made decisions based on outmoded test instruments.

Abuse of the Developmentally Delayed

A sad story came out of California in 2012 regarding developmentally delayed adults living in residential centers. Over a four-year period, 36 patients at California’s “board-and-care centers” for the developmentally disabled had claimed they had been raped by caretakers.  And yet, their reports were ignored by the Office of Protective Services--the state police force tasked with protecting residents of group homes--and were never referred to the local police for investigation. Officers failed to order even a single rape examination, which is critical for successful prosecution of alleged offenders.  At least one alleged offender was accused of later raping yet another patient.  Additionally, hundreds of cases of abuse and unexplained injuries among the state’s 1500 patients who live at the five developmental centers have been reported, but few arrests have been made. This report highlighted a particularly ugly truth:  individuals with disabilities, both children and adults, are at a far greater risk of physical or sexual abuse and neglect than are non-disabled persons.

Suicide Prevention Needs to be Part of a FAPE

My biggest fear as an attorney representing families of students with special needs is losing a student to suicide. To date I have not lost one. Currently, we are on the cusp of the long, dark months of winter, in which many suppose that the risk of suicide increases around the holiday season when persons who are isolated or without strong social support systems may be more vulnerable to attempting suicide.  Somewhat surprisingly, however, the risk for death by suicide increases not in the winter months but in the spring, according to the CDC.  For those of us who suffer from depression, the bright promise of spring and summer only serves to exacerbate symptoms.  And for those who suffer from this darkness, summer and springtime can be deadly.  And our youth are not immune to this troubling trend.

One District's Effort to Educate Parents on Unilateral Placements

It is always nice when district's go out of their way to educate parents on the need to provide a 10 day notice prior to making a unilateral placment see Download 2500_0001. What this notice neglects to inform parents is that the statute carves out certain exceptions to the need to give notice, such as, when the parent is illiterate,the school district "prevented the parent from providing notice" or providing the notice "would likely result in serious  emotional harm to the child." 20 USC section 1412(a)(10)(C)(iii)(III)(iv) [the good stuff is always in the fine print]. Nor does this notice inform parents that even if notice is given late, that there is a line of cases that allow for reimbursement after the 10 day notice period has run, or emphasizing that this provision is discretionary using the word "may" not "shall".  While I subscribe no ill-intent to this notice, I am sure that it would be used against a parent if they failed to comply with the exact terms, as expressed in the notice, even though it does not fully advise parents of all of their legal rights. Thanks school district (and their attorney who undoubtably drew this form up), but let the parents' attorneys do their job protecting and fully advising parents of their rights.

An Important Milestone in a Student's Life by Marilyn Green-Rebnord

Some years back, The Onion, a satirical publication, announced in a headline, “Miracle of Birth Occurs for 83 Billionth Time.” At our older son’s Bar Mitzvah, my husband used this article to explain that we perhaps take for granted the milestones our children reach.  We forget that each and every birth, and each and every event in that child’s life, is unique and special.  Each bris, each first communion, each first tooth, each first day of kindergarten are all miraculous.  We’ve somehow lost our wonder in the ordinariness of life.  And yet, how much greater is the miracle when it is a child who has been ill, or who has a disability, or whom for whatever reason there was doubt that he or she would reach a particular milestone?

This Year IS Next Year: Back to School Advice for Parents of Students with Special Needs

For many parents and students August means that thoughts turn to back-to-school sales on clothes and school supplies.  While those items are on the minds of parents of students with special needs, they often have much weightier things on their minds; how to make this school year experience significantly better and different than last year. At the annual review IEP at the end of last school year, schools often make promises that the issues from last year or the unmet goals will be accomplished, or progress will be made, next (school) year.  Well it is time to make good on those promises and representations, as this year IS next year.  Those promises need to have more meaning than the average New Year’s resolution.  Here are my thoughts on some things to consider, as an attorney who practices in the area of special education law, at the start of this new school year:

Anger Management Lesson for Your Next IEP Meeting

Humor is usually an area of the blog that I leave to my wife's column High Stakes Jesting, but the following just came across my desk and it struck me as quite funny and wanted to share it.  Under the heading of "Anger Management" a local school district just emailed the following lesson overview, which is excerpted below:

" Here is an example of how you might practice these steps with your child at home: You hear a shriek from the family room.  You find your child near tears because Henry, the family dog, just ran through your child's board game.  You say, "Remember to stop and think.  Ask yourself how your body feels.  I can tell that you're angry.  Calm down.  Remember what you said to yourself when you needed to calm down the other day?  Try saying those things again.  Now that you're calm, let's go through the problem-solving steps you learned to see if we can keep Henry from messing up your game the next time." ... At-home activity idea:  Write each of the calming-down methods on a small piece of paper.  Fold each piece and place all in a container.  Present your child with a pretend situation that may cause him to become angry (such as a sibling taking the last cookie). "

Most adults would find this lesson challenging and more than a little off-putting.  I am thinking of using this paragraph above, however, as a script at the next IEP when my advocacy gets the special education director's nostrils flaring.  "Now remember, that raising your voice at me did not help the last time we met and you got mad at me. You made really damaging admissions that we used against you at hearing and your attorney got mad at you too.  When you went home that night how did that make your body feel."  If this part of the script worked, I would go on to say "OK now that you are calm, you can readily see that no matter how much you scream and holler and bluster, this student is not literate at all and he/she is in high school. You see confession is not just good for the soul, your body feels better too."   Next time, we will use a hypothetical like controlling your anger when "the teacher tells the truth when he/she has been expressely been told to lie." My body feels better just thinking about it.