Special Education Law Blog

Alexa Posny Interview - Part IV

2009-12-30T13:20:00.001-05:00

My recent interview with Dr. Alexa Posny, the new Assistant Secretary of Education for OSERS (the Office of Special Education and Rehabilitative Services) covered a lot of ground. This is the fourth in a series of occasional posts concerning the interview over the next few weeks. "JG" indicates that I am speaking. "AP" indicates that Secretary Posny is speaking.

This post deals with whether IDEA should be changed in view of the revelations about abuse of seclusion and restraints, especially as used on children with disabilities:

JG: Let me give you a couple of specific issues and ask you whether or not you think they should be part of reauthorization. The one that's actually back in the news again this week is seclusion and restraints.

AP: That's correct.

JG: Congress has just offered a new law about that and not part IDEA, but do you think that and given all the things that were in the GAO report and that National Disability Rights Network report that maybe IDEA should beef up its sections on behavior-type issues?

AP: That's a tough one to respond to. You know, the revisions in the past and the versions of IDEA try to stay away from specifics, especially in terms of appropriate methods or methodologies or whatever. So, I'm not necessarily - - I can't give you a definitive answer, but I guess I would not be leaning towards that.

JG: Okay. Well, let me try it a different way. Do you think that maybe positive behavior support should get more play in IDEA somewhere? Because, basically, because behavior is only covered in IDEA as a vague reference in the IEP section and there's really nothing else except the part when there's a manifestation determination, it says there's no manifestation, which is very specific. But in terms of positive behavior supports, do you think we should merge that into IDEA somewhere?

AP: Well, again, often it's viewed as a specific methodology and you know, as a hearing officer, we don't even put that into IEPs.

JG: Right.

AP: So, we would have to stay away from looking at it and basically saying that we're supporting one particular methodology. So, will you see those exact words. My guess is probably not. But the information about training and providing professional development, about appropriate techniques, I mean, that kind of language, I'm sure. But again, it's been a term that's phrased because of response to intervention. Those words aren't even in there.

JG: Right.

AP: So, and it's very - - it's done intentionally.

JG: And some of us, as hearing officers, call that (methodology) the "M" word , you know (laughing) - -

AP: Um hmm.

JG: Because you're not supposed to say it or go near it. You know what I mean?

AP: That's correct.

JG: And it think that - - I understand what you're saying, but just the way that some kids with disabilities have been abused though, it's so horrible and it's just, you know - -

AP: Well, it's traumatic. I mean, no one wants to see that, but is the law to really - - you know, is IDEA the law to take that on? You know, I think that's the question more than anything else. IDEA has so much in it.

JG: Right.

AP: And believe me, I don't want any child to ever be hurt or abused or whatever. My first job was teaching emotionally disturbed middle school kids. So, believe me, I understand the behaviors their talking about, but there is, you know - - but to harm a child, oh, my gosh.

JG: Yeah. That's scary.

AP: Yeah, not at all.

JG: I haven't actually read the new legislation, yet. I just saw a release about it this morning. I don't think it assigns you any duties, does it, in terms of - -

AP: Well, no because it's really pertaining to all kids.

JG: Okay.

AP: It just so happens that students with disabilities tend to be probably the recipients of that more often because of their behavior, but it's for all.

JG: Okay.

AP: So, it would not be assigned specifically to us.

JG: Okay, and that's what I was assuming, but I thought you might already know because it - - if that course is proposed, it hasn't even made it through the committee yet.

AP: That's correct.

Alexa Posny Interview - Part III

2009-12-29T15:11:00.000-05:00

My recent interview with Dr. Alexa Posny, the new Assistant Secretary of Education for OSERS (the Office of Special Education and Rehabilitative Services) covered a lot of ground. This is the third of a series of occasional posts concerning the interview over the next few weeks. "JG" indicates that I am speaking. "AP" indicates that Secretary Posny is speaking.

The photo on the left shows that Dr. Posny was so new as Assistant Secretary that they still had the last guy's name on the directory. Believe me they will soon know that she has arrived. She is very impressive.

In this post, we discuss IDEA reauthorization:

JG: It is amazing, but it does get back to one point you made too. I think that IDEA, like no child left behind, has also been wildly successful. We sometimes forget. We get all stuck in the data and stuff and we forget. I just read a 1919 opinion by the Wisconsin Supreme Court called State Ex rel Beattie - - this was 1919, so it' must be taken in a historical perspective and that’s hard - - but the state supreme court actually approved of the exclusion of a child with cerebral palsy from public school based on the fact that he was nauseating to the teachers and the other students. So, we've come a long way.

AP: Yeah, well, we have. I always talk about that. And it's interesting that you bring up a case in Wisconsin because that's where I was born. But I tell people because people are saying, gee, you know, we just haven't done enough and said, no. I said, I think this has been downright phenomenal. In 35 years - - in a little over three decades - - what we have done has been absolutely remarkable. Absolutely every child with a disability has total and complete access, not only to an education, but to the highest quality and be held to the highest standards. I've gone to other countries. I've gone to Japan. I've gone to China. And first of all, I ask, where are they? You know, because you don't see them. Now, I had a chance to go and I got to see some, but we're talking about less than 1% of the population and I don't even like to think about where they are. But what we have done in that just that short period of time and I look at my son and he does not know what it's like to not be in school or anywhere else without kids with disabilities. That's one generation. In one generation, we have made a see a change.

JG: It is. It is remarkable.

AP. I do, but I still say, we're in our infancy.

JG: Yeah. Oh, yeah, and that's part of the thing too - - lawyers don't like special ed law because it changes frequently.

AP: Oh, all the time.

JG: And it's not like property where you can pretty much know or you have a set of facts, so you can pretty much determine and advise your client. You just can't do this in this area. You don't know what the hearing offer is going to do. They are crazy sometimes, I'm told. So, let me bring you to the reauthorization. First of all, do you know what kind of timeframe we're talking about for IDEA. I know congress is busy with a few other things right now.

AP: Well, they are. I mean, health care has to be coming through first and then, of course, ESEA. So, in terms of the timeframe, technically, IDEA is up next year, you know, for reauthorization. But I think timing is going to be everything. You know, we really do need to work on ESEA first because that is behind the time. So, I think it'll be after that. Can I give you a particular time period? I would say probably within the next couple of years, okay?

JG: Okay.

AP: Now, but there's a part of me saying that as we work on the reauthorization of ESEA, I'm hoping that we see parts of what we see in IDEA be put in ESEA. I'm hoping that we will begin to see some of the similarities, some of the areas that should be the same.

JG: Okay, and in terms of the climate, it doesn't seem to me that special ed is a particularly partisan type issue. In fact, we've seen Justice Ginsburg and Justice Scalia, for example, vote the same way on special ed Supreme Court cases. Is that your reading? Is that the political climate?

AP: Absolutely. It's always been my need to - - you know, when you think about it, how can it be partisan? I mean, we're talking about assisting any child with a disability. That is not a partisan issue, not at all.

JG: And, again, that is my reading of it. Once congress is done with it, of course, it's going to be time for a new federal regulations again. That's always fun.

AP: That's correct.

JG: Do you have any idea how long that will take or is that just too far down the road now to estimate?

AP: Well, no. You know, having been here when we did the regulatory part last time, when you really think about it, it really is almost like a four year process, okay? Because what happens, you know, we redo the law and then states have to redo their law. Meanwhile, we're working on the regulatory part, you know, and we redo that and then the states have to redo their regulations. So, it usually takes about four years to completely turn it around.

JG: Okay.

AP: So, I mean, that's - - and that's not bad. That's reasonable.

JG: Yeah.

AP: I know people think that it sounds extreme, but no, that's about right.

JG: But again, it part of that cycle though. Everything is changing at some point, then the law changes and the federal regs change, the state regs change, you get hearing officer decisions, you get court dates and then it's time to start all over again.

AP: Exactly right. There is another part of me saying, you know, we need to be thoughtful about it. So, we don't want to rush it either. We do want to do it the right way. The other thing is and often what we hear from states, especially having just come from a state, is we also need to give them time to redo or to put things in place to allow this to happen and if we give them a timeframe of saying, you have to have this all in place in a year, we're being unrealistic. So, I mean, it takes time to make these changes as well. So, it's realizing that and understanding that.

JG: Alright and that does sound reasonable to me, but there's other people out there that have different agendas. So, once again - -

AP: Yes.

Merry Christmas

2009-12-24T11:51:00.002-05:00

Tomorrow is the big day. We celebrate; we get presents; we spend time with family; we overdose on trytophan from the turkey... But most of all we give, and it is the giving that feels best.

Merry Christmas to all of our readers. Have a fantastic holiday.

Stockings Hung With Care

2009-12-22T12:09:00.001-05:00

I'm taking a break from the Special Education Law Blog this week as my family celebrates Christmas.

We will return next week with more posts from my interview with Dr. Alexa Posny, the new Assistant Secretary of Education for OSERS. We'll also have other updates on this ever-changing body of law. Please stay tuned for further details.

In the meantime, have a very merry Christmas. I hope that you have as much fun with your family this holiday season as I am having with my family. Hang those stockings with care!

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Alexa Posny Interview - Part II

2009-12-16T23:41:00.001-05:00

My recent interview with Dr. Alexa Posny, the new Assistant Secretary of Education for OSERS ( the Office of Special Education and Rehabilitative Services) covered a lot of ground. This is the second of a series of occasional posts concerning the interview over the next few weeks. NOTE: After today's post, this series will continue after the Christmas holiday. "JG" indicates that I am speaking. "AP" indicates that Secretary Posny is speaking.

Today's post concerns the mission and role of OSERS.

AP: Yes, and IDEA reauthorization is going to be coming up.

JG: Yeah, and I've got that on my list for you, believe me. Before we get to that though, in terms of the role of OSEP and the role of OSERS in general, in terms of what you do, how do you see the mission of your agency and the mission of OSEP within your agency?

AP: Okay, well, I'm sure you're very well familiar that OSEP and RSA, the Rehabilitative Services Administration and NIDRR, National Dissemination and Research arm of this, when I look at all of that, this is to serve infants, toddlers, youth and adults, in terms of for the K12 system, in terms of the academic and that part of the system, as well as leading them towards that career or their life in the future and which is where the VR comes into this. So, in terms of our mission, it's to make sure that any person with a disability is gainfully employed and has a great life, bottom line, and K12 is definitely a precursor to that and that's where OSEP plays the major role. You know, they do it and the Part C, of course, is 619 and then, of course, K12 and all the way through 21 or whatever, and that's then where RSA and the rest of it picks up afterwards, you know, to make sure that especially those adults with disabilities - - who have significant disabilities - - of course, are provided what they need. So, how does OSEP fit in there? If we don't have a good system that's leading into what they need to do in terms of follow up, then anything we do in terms of VR, they can't redo what might have been lost, if we don't provide what the children need long before they get out of the public school system. So, in OSEP - - since I know OSEP so well - - that's been great. The other thing is, one thing that I've talked about, as much as we talk about no child left behind, some areas of concern within that, I believe that students with disabilities made tremendous progress over the last however many years as a result of holding all of our kids to be accountable and to make sure that they all succeed. So, I just think we've seen tremendous strides. I really do.

JG: And I think you're right. In terms of your job, how much do you think special ed is going to play? You also have vocational rehab I like to call it because I'm old (laughing) and the research functions, of course. But special ed seems to be the big-ticket item on the plate. Is that true, you think?

AP: It's very true and it's not because I want to slight the other pieces, but when you think of how much IDEA - - I mean, you are very aware of the volumes of regulations and laws that we have and that plays a big part in it. Now, I'm not saying that WIA, the Workforce Incentive and the Rehab Act and so forth don't have those pieces, but when you think about what is included in IDEA, that's why it's such a huge aspect, but there's another part of it. We have to make sure that we are inclusive, so I need to be in all of the discussions on the reauthorization of ESEA, every piece. So, because it's more of that piece that impacts the rest of the U.S. Department of Education, that's OSEP plays such a big role. But I also need to help them understand how RSA and NiDRR also play a piece in this and that's another piece. I want to help that rise to the surface, to let them understand how it fits together.

JG: Okay.

AP: So, you know, I think it's been slighted.

JG: Okay, and I think many people feel that way, but on the other hand, as you said, there's just so much money and so much law involved in the special ed, for whatever reason. I mean, if you look through the case law on rehabilitation, there's just nothing there.

AP: But it's nothing in comparison to case law that we have. That's right.

JG: It's hard to actually literally keep up. I try to read all the cases in special ed, including many of the hearing officer opinions because I think that there's a lot of good discussion and new ideas there, but it's just hard to read them all. There's so many.

AP: Absolutely, and just think about it. We've only had the law for about 35 years.

Alexa Posny Interview - Part I

2009-12-14T12:02:00.008-05:00

My interview with Dr. Alexa Posny, the new Assistant Secretary of Education for OSERS ( the Office of Special Education and Rehabilitative Services) last week covered a lot of ground. This is the first of a series of occasional posts concerning the interview over the next few weeks. "JG" indicates that I am speaking. "AP" indicates that Secretary Posny is speaking.

Today's post concerns who should be the next Director of OSEP, the Office of Special Education Programs and when will we have somebody in that job.

JG: In terms of your old job, the director of OSEP, do we know when that job is likely to be filled?

AP: Well, it's going to depend. You know, I've been here all of four weeks. So, there's a part of me saying, I need to get the lay of the land.

JG: Right.

AP: And knowing that I was in that position, what I need to do is spend time to figure out what we need because I look at what may be my strengths and talents and maybe some areas that I may not have as much. So what do we need to basically compliment because we don't need the exact same thing. So, it's a matter of just taking a look at it. What can we use?

JG: And you've anticipated my next question. What would you be looking for? What do you - - again, you're new, but you've done that job before - - so, what are some of the kinds of qualities in a person you'd like to see, you think or maybe what you want out of the person doing that job?

AP: Well, it's probably easier to speak about the qualities of the person. The person has to be a little bit crazy. (laughing) And, you know, just knowing what the job is. And I say that with all the greatest humor and the greatest respect for everyone else, but it's coming at it - - it's looking for someone who, in my mind, is knowledgeable because I really think that makes a difference because you're dealing with a lot of different disability areas, as you're very familiar with, and you know, a child with autism is very different from a child who is learning disabled, which is very different from being deaf or hard of hearing and/or visually impaired. So, it's having some background in that because we deal with all of it. But there's another part too. I'm also looking for someone is dedicated to making sure that every child succeeds, regardless and that we're in an educational system and how can we make this system the best there is for every single child. You know, so there's that dedication and commitment that is paramount. But then I'm also looking for some other qualities too. You know, for me, it's that relentless focus and what is that focus of the person and how can we go after it when we know it's the best thing for kids. Another one is just keeping in mind - - well, basically being open minded because, you know, again, we're talking to a lot of different people. The other thing that I look for and whenever I've hired people to work with me is I said, I am not looking for a yes person. That is not what I need. I need people who are going to push back. To say, well, have you thought about this or what do you think about this or can give me some different ways because then we'll only do that much better and we'll think about it ahead of time. So, it may not be as specific, but it's those kinds of characteristics and qualities that I think really make a big difference and there's a big difference between what a person brings with him or her, in terms of those kinds of qualities, because knowledge can also be learned. So, does somebody have to be extremely knowledgeable? No, no because that kind of information can be learned. We all did it.

JG: That's true.

AP: Yeah, and every time the law changes, we have to do it again.

JG: That's true:

AP: Yes, and IDEA reauthorization is going to be coming up.

More on Seclusion and Restraint Legislation

2009-12-14T09:15:00.000-05:00

Image by Getty Images via Daylife

As we mentioned last week, the House of Representatives has introduced legislation to curb the abuses of seclusion and restraints. Here is an NPR report on the legislation. Here is a CNN opinion piece by Rep. George Miller (D. CA), the chairman of the powerful House Health, Education, Labor and Pensions Committee. and Cathy McMorris Rodgers (R- WA) who cosponsors the bipartisan legislation.

The legislation is the result of the schocking reports by the National Disability Rights Network and the Government Accountability Office as well as congressional hearings on the issue. Previous posts on this blog have presented these abuses of school kids, most of whom have disabilities.

Another issue here is whether the special education law, IDEA should be amended to include beefed up provisions on positive behavior interventions and supports as better tools for dealing with behavior issues for children with disabilities. At present, IDEA only requires functional behavior analysis or behavior intervention plans when a disciplinary change of placement is prevented by a finding that the misconduct was a manifestation of a child's disability. IDEA § 615 (k)(1)(F). The only reference to Positive Behavior Supports is the section on IEP development which requires in general that when the IEP team believes that the student's behavior impedes his own learning or the learning of other students, the team should then consider PBS or other strategies. IDEA § 614 (d)(3)(B)(1). Despite the paucity of references to PBS in the Act, OSEP does have a technical assistance center on Positive Behavioral Interventions and Supports.

What do you think? Should IDEA be beefed up on the technique of positive behavior supports?

My Big Interview Happens!

2009-12-11T08:25:00.000-05:00

Well it happened! I got to interview Dr. Alexa Posny, the new Assistant Secretary of Education for the Office of Special Education Programs and Rehabilitative Services at her office in Washington, DC. There is photographic proof on the right. --->

Dr. Posny was very personable and extremely knowledgeable. It was also very apparent that she really cares about children with disabilities. I believe that she will be a very good Assistant Secretary. She has a tough job, but I'm convinced that she will do it well.

The details of the interview will be printed over the coming weeks. The interview lasted nearly an hour and there is a lot of material. So I will be sure to fill in the details as we go along. Thank you Dr. Posny. And thank you readers of this blog for giving us the credibility to get this scoop!

Breaking News: Congress Introduces Bipartisan Seclusion & Restraint Legislation

2009-12-10T10:06:00.003-05:00

Image via Wikipedia

Yesterday the Committee on Health, Education, Labor & Pensions of the U S House of Representatives introduced new bipartisan legislation aimed at curbing the abuses of seclusion and restraints as behavior management techniques. The press release notes that the victims of the abuse of seclusion and restraint are often children with disabilities. The legislation is summarized here. Here is a video of the press conference by Chairman George Miller (D - CA).

The legislation was triggered by a study by the National Disability Rights Network which unveiled horror stories from every state. That study was followed by a similarly gruesome report by the Government Accountability Office and by Congressional hearings.

If adopted, the bill would require minimum standards for seclusion and restraint. It also requires each state to adopt procedures and systems for monitoring and enforcing the safety provisions. Before it becomes law, the bill must first pass the House and Senate and be signed by the President. If you have strong feelings about abuse and restraint, write to your representative and senators.

Nominate Somebody Special for the JoLeta Reynolds Award

2009-12-07T11:45:00.000-05:00

Image via Wikipedia

Do you know a special educator or administrator who does a great job? If so, you should consider nominating her or him for the JoLeta Reynolds Award. JoLeta was a policy analyst for the federal Department of Education. She essentially rewrote IDEA in 1997, and she had a big impact upon the 2006 regs. She is also one of my favorite people, and she has generously helped my special education consulting career in countless ways.

In her honor, an award has been established. You can nominate people for the award here. All nominations must be received by January 18, 2010.

My nominee for this award won last year. Dee Ann Wilson runs the mediation and due process hearing systems in Iowa and she is a pioneer in the facilitated IEP movement.. She also has a JoLeta sized heart when it comes to kids with disabilities. I have been lucky enough to work with her. Congratulations again Dee Ann. I can't wait to learn who will win this year.

If you know a great special education hero, nominate her for this award.

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Big Interview Next Week: I'm Really Excited

2009-12-04T14:59:00.014-05:00

Image via Wikipedia

OK, I'm officially excited. I get to interview Dr. Alexa Posny, the Assistant Secretary of Education for Special Education and Rehabilitative Services, for this blog next week. This is a big deal! And you made it possible by reading and subscribing to the special education law blog. Thanks guys.

Although I probably have more questions than I can use in the allotted time, I still welcome your ideas and thoughts about the interview. One cannot be too prepared can one? Please keep sending me your input and suggestions.

For some more background on the new Assistant Secretary who was formerly the Kansas Education Commissioner, I have included a couple new links. Here is the official biography of Alexa Posny. Here is a newspaper piece on the new Secretary by the Topeka Capital Journal.

My plan is to run the interview over a number of posts in the blog. It may take a while to get the posts together and published, but they will be here. So stay tuned for more.

Social Networks Gone Wrong: Bullying on Facebook

2009-12-02T10:39:00.001-05:00

Image by Ivan Walsh via Flickr

In a terrifying development, some middle school children in California organized a series of attacks on redheaded students at their school. Their organizing tool was Facebook. This is an example of the dark side of the social networking networks. Here is a news story from the Ventura County Star.

Now I know that redheads are not children with disabilities, but this was an example of bullying against a group of students. And as we have discussed in previous posts, bullying against kids with disabilities has caused numerous legal problems for school districts. So I find this topic to be relevant to this blog.

Apparently, the students misunderstood some episode of the television show South Park as a call for violence against "gingers." This speaks to the lack of intelligence, as well as the cruelty, of the students involved. But this illustrates the potential problems involved with the otherwise valuable social networking sites. I am a big advocate of the powers of Facebook and these other sites to spread information. Indeed, I am the administrator of the Facebook special education law group, and many related groups with links on the lefthand side of the blog.

But when people have bad motivations, these sites can be dangerous. I am aware of the legal pitfalls and the strong policy against censorship, but I think that these sites may need to police themselves to prevent these incidents in the future. What are your thoughts?

New Poll - What Would You Change About IDEA

2009-11-30T08:56:00.001-05:00

As many of you know, I am collecting your ideas for changes to the Individuals with Disabilities Education Act when it comes up for reauthorization by the Congress. To further celebrate this quest we have launched a new poll as to this question. As always, our polls are not meant to be scientific in nature. But they are fun, and they give us an idea of what our readers are thinking, so please exercise your opportunity to vote! The poll appears on the lefthand side of the blog.

Now you may notice that the topic of this post definitely relates to my upcoming interview of Dr. Alexa Posny, the new Assistant secretary of Education. Unfortunately though the poll will not finish before the interview so I won't be able to utilize the results at the big interview.

Image via Wikipedia

I have whittled down your suggestions concerning changes to IDEA to the most popular ten. Here are the choices:
- Raise the Bar for FAPE
- Give Expert Witness Fees to Prevailing Parents
- Expand Role/Mission of OSEP
- Restrict Comp Ed/Reimbursement as Remedies
- Place Burden of Persuasion on School Districts
- Increase Transition Rights
- Allow Arbitration and More Mediation
- Assess Children with Disabilities at Instructional Levels for AYP
- Expand and Encourage Response to Intervention
- Regulate Seclusion/Restraints

There have been other suggestions and possibilities, these were just the top ten. Other frequent suggestions have included: Make the resolution session meetings confidential; clarify the educational rights of non-custodial parents; prohibit parents from representing themselves in federal court; allow systemic or class action style due process complaints; adopt the principals recommendation for a standard of care for each disability category; require IEP implementation to be material before constituting a violation of the law; and throw out the whole system and start again.

Please tell me what other changes you would like to see. IDEA will eventually be reauthorized - lets get our list together. Given our high level of credibility, I feel that we are being listened to by those who will be making the changes.

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Happy Thanksgiving

2009-11-25T21:06:00.001-05:00

Please have a happy Thanksgiving. This is a time to count our blessings and to be thankful. It is one of my favorite holidays. As you may have noticed, I'm taking some time off from the blog this week to spend time with my family.

In the meantime, please keep thinking of ideas for my upcoming interview with Alexa Posny.

And enjoy the turkey.
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Breaking News: I Get to Interview the Assistant Secretary of Education Dr. Alexa Posny

2009-11-23T10:37:00.000-05:00

I am very pleased and honored to announce that I have been selected to interview the Assistant Secretary of Education for Special Education and Rehabilitative Services, Dr. Alexa Posny. My interview with the new OSERS Secretary in a couple weeks was made possible because of your support. The credibility of this blog is greatly enhanced by our large number of subscribers and the activity and participation by the members of the related special ed law groups on Facebook and the other social networking sites that we have created and nurtured. So thanks for supporting the blog. Please keep reading.

I already have more questions than time for the interview will permit, but I need your help. I'd like to include some questions from readers. So what would you ask the Secretary?

This interview is a big honor and a fantastic opportunity for me and for us. Thanks again for helping to make it possible.

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More on Standards of Care for Disability Categories- a Responsible Opposing Viewpoint

2009-11-18T13:53:00.008-05:00

We have some great readers. Hers is just one example: I ran a post a few days back on the recommendations for changes to IDEA by the National Association of Secondary School Principals. You can view that post here. They had some good ideas, I felt, but I took them to task on the idea of standards of care for each disability category. I still believe that I am correct, but I received an email suggesting that there is another side. The response was very thoughtful and well-reasoned, so I thought I would share it with you. As the comment shows, there may be more merit to the principals idea than I thought or at least they may have an argument. Here is the comment:

"Just a thought about your recent blog, I agree that standards of care for individual disability categories could defeat the individualized requirement of developing IEPs. It runs the risk of furthering categorizing kids into this disability or that, when we know that for most children, they do not necessarily fit into neat boxes.

However, I have long thought that the whole process of what is FAPE for my child to be extremely lacking in transparency. There is no consumer focused source of information that parents can access to know what are the best practices that my child's school should be using for my child's situation. ... I always give the example of what if their child was diagnosed with a medical issue that needed some type of intervention like surgery. The doctor is required to give me a full accounting of the condition, recommended interventions, risks and benefits of each intervention, reasons why an intervention is being recommended and access to a second opinion. Then, there are many reliable web resources to research the skills and previous mistakes an individual Dr. or hospital has made and information about the medical issue and treatment.

Contrast that with parents experience in the IEP process. A school generally tells a parent what they are going to provide, that they know best what to provide, they do not give information about other possible strategies and there is no evaluation available about the school's competency other than AYP data. Can you imagine a parent letting a surgeon take their child off to the operating room with as little information and such a weak informed consent process?

Creating standards of care might benefit schools by saying this is all you need to do and then you are off the hook. However, it could also raise the competency level of staff by saying this is approach is evidence-based and has been shown to work and you can give parents more to go on than just we think this is the right approach.

The down side is that we will get too tied to evidence-based practices and forget that education is not a science but also an art. Each human is different and responds with their own constellation of humanness to different strategies. Maybe standards of care could be established without becoming bureaucratic boxes. That might be just too much for such an industrial age system. I don't know."

Image via Wikipedia

So what do you think?

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Charter Schools & Special Education: Part II

2009-11-16T14:23:00.000-05:00

This is the second in a series of posts on charter schools inspired by the excellent, recent law review article by my friend professor Mark Weber. You can read the first post in this series here. Professor Weber's article may be found here.

The number of charter schools is clearly on the upswing. In fourteen communities mo

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re than one-fifth of all public school students attend a charter school. In three major urban areas, more than 30% of all public school kiddos are in charter schools: Detroit (32%); Washington DC (36%) and New Orleans leads the league with 57%. You can read all of the current statistics here .

For those of you who like research, there has been some research on charter schools, and of course a few controversies. This link will take you to a study by Caroline Hoxby and others about New York City's charter schools. This link will take you to a review critical of the methodology used in the Hoxby study. This link will take you to the national study by CREDO at Stanford University released in June which finds that the
the achievement levels at charter schools is about the same as that of students who do not attend charters. Are charter schools better than other schools?

Because it appears that charter schools are likely to be the next big thing, Professor Weber's article takes on added importance. One of the important principles that his article identifies involves procedural safeguards. If a special education student attends a non-private charter school, he and his parents are still entitled to all the procedural safeguards established by IDEA. This issue is near and dear to my heart inasmuch as I am a mediator and hearing officer and a consultant to states on dispute resolution systems. Procedural safeguards are an important part of the special education law, and how they are enforced in the charter school setting may make for some new law.

One difficult issue will involve who is the defendant. For the most part, IDEA places the responsibility upon local educational agencies (LEAs) to provide a free and appropriate public education to a child with a disability. This can become tricky with charter schools because sometimes they are themselves the LEA and sometimes the local school district is the LEA. So the charter school or the school district, or possibly both, can be the ones getting sued and providing the relief. Of course, if the charter school is a private school, procedural safeguards only come into play under limited circumstances (involving proportionate share and child find/evaluation), but that is way beyond the scope of today's topic.

So as with all changes, the legal knots will undoubtedly follow. Any ideas on other problems with these issues?

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Service Dog Wins Lawsuit; Illinois Court Rules

2009-11-14T11:40:00.007-05:00

A court in Douglas County, Illinois has ruled that Kaleb Drew, a first grader with autism can have his service dog attend classes with him. The final injunction was issued by the trial court last week. Here is the news story from radio station WGIL. Thanks to alert Facebook special education law group member Julie Kelley for the heads up.

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This should not be confused with the case in the Illinois appellate court. There the circuit court of Monroe county, Illinois issued an injunction permitting Carter Kalbfliesch to have his service dog with him in class. The appellate court affirmed. Here is a news story by Metro East News.

remember my prediction: service dogs are becoming a hot button issue in special education law. Please continue to keep me posted on these news items.

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Changes to IDEA - Principals Weigh In; What Changes Would You Make?

2009-11-12T14:54:00.001-05:00

It is time to begin thinking about what changes you would like to see in the special education laws. IDEA will be reauthorized soon. I know that Congress has been busy with a lot of other stuff, but it is eventually going to come up. In our great democracy, the laws should reflect the input of the people. Too often though, the special interests, who are organized and who have political action groups and paid lobbyists and big time financial contributions, are the only ones communicating with members of Congress and the Administration regarding changes they would like to see in the law. I'd like to change that pattern.

The readers of this blog are a diverse group of special education stakeholders. They include: special education teachers, regular education teachers, students who will become teachers, parents of kiddos with disabilities, special education directors, hearing officers, school administrators, advocacy group members, lawyers for school districts, lawyers for parents, children with disabilities, adults with disabilities, law professors, law students, related service providers (like school psychologists and speech/language pathologists), paraprofessionals (like aides), professors of special education, employees of the technical assistance network, feds (like OSEP staff), state education staff, mediators, ALJs, staff of policy makers, school district personnel, and policy wonks. (NOTE: every time I try to list the types of readers, I unfortunately forget some. I'm sorry if I omitted you; please let remind me if I did.)

My thought is that now that we have a large number of subscribers (thanks for that) and legions of folks joining the related social networking groups, we ought to compile our own list of changes we want to suggest for IDEA and present them to the Administration and the congressional committees. So what changes would you like to see? If you could make any changes in the special education laws, what would they be?

One group is already in high gear. On November 3, 2009, The National Association of Secondary School Principals issued their list of recommendations for changes to the main special education law, IDEA. You can read their entire report here. They recommend some good changes including assessing children with disabilities for AYP/NCLB purposes at their instructional level rather than at their grade level, earlier transition planning, expanded professional development, assistance with teacher recruitment and fully funding IDEA. One of their suggestions, though, troubles me some. The principals organization suggests that standards of care be developed for each disability category recognized under IDEA. This suggestion seems to imply that there should be a standard autism program or a standard hearing impairment program. The cate

Keyser's 1898 Bas Relief For State Nor..." style="border: medium none ; display: block;" width="180" height="240">Image by takomabibelot via Flickr

gory of disability under IDEA is only legally relevant for purposes of the eligibility determination. Once a student is eligible, the only question is what are the child's educational needs. That is the function of the IEP. See eg, 34 C.F.R. § 300.320. Indeed, IEP stands for individualized education program. To have standardized programs would defeat one of the key policies and themes underlying the Act.

So what changes would you make? I'm making a list!

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The Price of Justice: Backdoor Effects of the Recession on Special Education

2009-11-09T10:22:00.009-05:00

Maybe I wasn't looking in the right place. I was expecting that the severe downturn in the economy would cause a movement to permit school districts to argue that expense or cost should be a defense in special education cases. I even ran a poll in this blog to that effect. The result was a resounding no. But as many readers have suggested, perhaps the effects of the recession have been more subtle. Maybe they are silently creeping into the decision making process in ways that are difficult to observe, let alone quantify. Subtlety isn't really my thing, but I think that these effects are likely present.

I have just discovered another insidious effect of the bad economy. It involves a state due process system. I admit that I have a bias here. (By the way check out the new disclosure on the lefthand side of the blog!) As many of you know, I am a hearing officer and I train hearing officers. I don't think this invalidates my opinion, but disclosure is good.

The due process hearing system is extremely important. It is at the heart of the system of procedural safeguards established by IDEA to protect the rights of children with a disability. The importance of procedural safeguards has been recognized by the U. S. Supreme Court in Shaffer v. Weast 546 U.S. 49, 126 S.Ct. 528, 44 IDELR 150 (2005) as the mechanism that levels the playing field in view of the information advantages enjoyed by a school district.

Indeed, there is almost always no other trial in a special education dispute. The decision of a hearing officer is appealable to court (or in some states to a second tier review officer). The doctrine of exhaustion of administrative remedies, however, requires that for almost all special ed disputes, the matter must first be heard by a hearing officer, and that the final administrative decision determines the matter in the absence of an appeal.

As readers of this blog know, we have done many previous posts on the hearing system. (These are available through the search bar on the lefthand side of the blog.) Every state system is different. Two states have a three person panel conduct the hearing. Many states require that hearing officers be lawyers; some do not. Some states contract with hearing officers. Some use the ALJs of the central panel. Some have a special section of the ALJ panel for special education cases. The vast majority of stats provide high quality training for their hearing officers; some states are not so diligent in this regard. (Remember again my bias here.) The 2004 amendments to IDEA require new levels of competence and training for hearing officers. Apparently, Congress was concerned about the due process hearing system.

I just learned of a big economic effect upon the due process hearing system in the state of California. The due process hearings there are heard by Administrative Law Judges on the central panel. They have a good bunch of people. I was one of the trainers at their annual training last March, and I have met some of them at other conferences and meetings. But the California economy is in big trouble. State employees have been required to have the state budget balanced on their backs. This includes the special education ALJs.

Specifically the special education ALJs are furloughed (that's HR talk for laid off) the first three Fridays of the month. That's a 13.9% pay cut. This despite a work load. that remains t

Image by Getty Images via Daylife

he same I find this type of red tape bureaucratic nonsense to be offensive. Does the California government think that these changes do not affect the quality of justice? Do they care?

I understand that times are tough, but how can these "furloughs" be justified. The ALJs have to be highly trained in special education law and in the nuts and bolts of running an administrative hearing. It ain't easy; I've been there. Won't these drastic actions affect the quality of the California due process system? If the procedural safeguards like due process hearings are at the heart of the balance between school districts and parents, how can this cheapness serve any important public policy. As they say during the hearing, I OBJECT.

Poll Results In; We're Back in First Place

2009-11-07T10:29:00.006-05:00

As a part of the fun component of the special education law blog, we run a poll on the lefthand side of the blog. These are not scientific endeavors, and we do not pretend that the results resemble science in any way. Nonetheless, we think that they are fun. The most recent poll just ended. The question was: Given the recession, should cost/money be a defense in special education cases? Here are the results:

43 (62%) No, money is no excuse
17 (25%) Yes, school districts don't have money
7 (10%) Maybe, tough question

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2 ( 3%) I'm too poor to answer
0 ( 0%) No opinion

Thanks for voting. Pretty lopsided results. Case closed. (That's a joke, as readers of this blog know, no case is ever closed in special education law!)

In other breaking news, this blog is back in first place in the best education blog category for the 2009 Bloggers Choice Awards. The contest is very close, please vote for this blog. We were lucky enough to finish in first place in the best education blog category last year, and it would further boost our credibility if we can repeat. You will have to sign up and respond to an email, but we really appreciate your support. If you would like to vote for this blog, you can click on the Bloggers Choice Awards button on the left hand side of the blog or else follow this link. There are a bunch of other interesting blogs to check out on the Bloggers Choice Awards website, and they are organized by category.

Remember that you can now read this blog on your mobile phone. Of course, you miss all the polls and links and resources and really cool pictures of me, but you do get the posts. Just bookmark this website: http://www.xfruits.com/jimgerl/?id=79913

Don't forget to check out all of the other resources on the lefthand side of the blog. There are lots of links to other websites and blogs with a wealth of information about special ed and special ed law. For example, you can follow the news by reading the headlines of the smartbrief issued every weekday by the Council for Exceptional Children. (This is an example of a blog widget or blidget) You can also see what's happening in the education blog world by clicking on the blognetnews button. There are also links to the exciting special education law groups we have created on the social networking sites Facebook, Ning, LinkedIn and Plaxo.

Finally, if you haven't already done so, please take one of the free subscriptions to this blog that are available on the lefthand side of the blog. Numbers help achieve credibility in the blogosphere. We have a lot of great subscribers, but we always welcome more. Please spread the word. There are three ways to subscibe: by email (you have to respond to an email to activate it); through an RSS feed to an aggregator or reader (like Google Reader or Bloglines or Netvibes, etc); or if you have a blog or website, through a blidget (a blog widget that shows this blog's posts an/or headlines right inside your blog or website). Thanks you for reading.

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Teach Your Teachers Well: New Hot Topic -Teacher Education

2009-11-05T17:50:00.000-05:00

I know that a number of the readers of this blog are professors who teach future teachers. I know a bunch of them, and they are really good at what they do. They are enthusiastic and dedicated to their students and those children whom their students will be teaching. But the way we train teachers is suddenly in the news- big time. I suspect that the following comments don't pertain so much to the institutions where my friends work, but a national debate has begun and we need to discuss it here.

Secretary of Education Arne Duncan recently unleashed a firestorm when he suggested that the overall quality of teacher preparation programs in America is 'mediocre." Citing studies that over 60% of new teachers feel unprepared and his own discussions with teachers who feel that they did not receive enough practical classroom training and that they were not ready for behavior issues and dealing with poor children, Duncan stated his case. He called for revolutionary change in our methods of teacher preparation and stated that one million new teachers will be neede

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d in the next five years. Here is the New York Times story on Duncan's speech.

In a recent New York Times op-ed piece, Susan Engel, director of the teaching program at Williams College, took this point a step further. Here is the article. She suggests that teachers should be trained much like surgeons; working side by side with a very skilled mentor, getting plenty of feedback and taking on more and more responsibility as they improve as a teacher. She also suggests that student teachers and their mentors review videotapes of themselves in action to help them improve. She argues that student teachers should continue to study the subject that they will be teaching as well as education techniques; she strongly emphasizes the need for more training on the developmental needs of children. Finally she argues that school districts should be given the resources to hire new teachers in groups of seven to help develop more camaraderie.

These are some intriguing thoughts. I really like the surgeon-method idea. Teachers are important. Special education teachers are included within this group of important people. I think that one could easily make an argument that teachers, of general or special ed, are at least as important to our society and its future as surgeons. But if we train them like surgeons, shouldn't we also pay them like surgeons?

Also making recommendations for changes in teacher preparation and recruitment, as well as radical changes in teacher pay and evaluation methods, is the report issued Tuesday by the think tank called the Strategic Management of Human Capital. Scrolling down this link will lead you to the full report. I understand that the teacher unions fell that the committee that prepared their report ignored their input.

One of the problems that I have with the whole No Child Left Behind analysis is that it seems to blame the entire education problem on bad teachers. There are bad teachers; as a public school system product, I can say without equivocation that there are bad teachers. But really, there have always also been plenty of great teachers. I have a hard time believing that some bad teachers are the only thing wrong with the education system. Also the merit pay concept sounds like a good idea, but only if the evaluation system can be designed fairly- so that it truly identifies good teachers and not just the principal's pet or the popular kid!

What are your ideas on this topic? Do we need to make changes in the teacher preparation system? Are there other reasons that the education system is having problems?

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Charter Schools & Special Education: A New Article by Professor Weber Part I

2009-11-03T09:05:00.000-05:00

Have you ever wondered about how the special education laws apply to students in a charter school? We tend to think of charter schools as things existing outside of the educational system. Some tell me that they are a curse; others say that they are a panacea. I suspect that the jury is still out.

Image via Wikipedia

Back to the question of special education and the charter school, this is an area that gets people worked up sometimes. I'm going to cite an excellent law review article that might answer all your questions:

Weber, Mark C., Special Education from the (Damp) Ground Up: Children with Disabilities in a Charter School-Dependent Educational System (October 12, 2009). Loyola Journal of Public Interest Law, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1487667
You can get the article if you open an account on the SSRN here.

Now I have to admit that I have a bias here. (Hearing Officers always disclose their various potential biases. At least those hearing officers that I have trained do so!) Mark Weber is my friend. He is also one of the people who think about special education law issues, and I always enjoy reading his work.

Professor Weber goes into great detail in the article, and we will just scratch the surface here. I'm going to talk a little about charter schools in New Orleans in this post and a little about procedural safeguards in the next post, but I highly recommend that you read the whole article when you get a chance. It covers a lot of important issues.

New Orleans endured a great tragedy in 2005- Hurricane Katrina. The devastation and hardship was overwhelming. The response of the government was questionable. We all remember "Brownie;" don't we?

But one issue that has been less talked about is that Hurricane Katrina wiped out the New Orleans school system, or almost all of it. According to Professor Weber's article charter schools have been a key in the rebuilding of the school system. 49 charter schools now serve over one-half of the student population in New Orleans. That's a lot of charter school kids. The Recovery School District operates schools and oversees most of the charter schools.

Professor Weber argues that children with disabilities have largely been an afterthought in the rebuilding of the school system in new Orleans. He also discusses recent allegations that charter schools in New Orleans have steered away children with disabilities. If these allegations are true, the number of legal problems for the charter schools has risen dramatically. If charter schools are a part of the solution for education, clearly they must be able to educate children with disabilities as well as any other children.

So what is your opinion, are charter schools an effective option for children with disabilities? Are they improving our educational system? What principles should apply? What do you think?

Last Day to Vote on Our Poll; Tech Update

2009-10-31T09:31:00.003-04:00

This is the last day to vote on our poll. The current question is In this tough economy, should cost/expense be a defense in a special education case. No leads Yes 43 to 17 with 7 maybes and 2 too poor to vote. This is not a scientific poll. Nonetheless, be sure to make your voice heard. Vote today before the polls close.

The tech news is good. The most recent blog post was done by cellphone, and it was flawless. You can listen to my enunciation by clicking of the link to Jott. Unfortunately the corresponding Twitter mini-post got mangled. It was supposed to say "Musings of a special ed mediator. See Special Education Law Blog." Somehow musings became "uses" and law became "wall." But hey, as the public defender in My Cousin Vinny says, "I'm gettin' better!"

The post a few days back was done exclusively by email, and it was perfect. So both mobile options are working. This is great for me because I travel a lot.

Finally, the new mobile version of the blog is very successful. A number of readers have bookmarked the mobile website http://www.xfruits.com/jimgerl/?id=79913
on their web enabled mobile phones. They then can read the posts on their phones. They still need to subscribe, and that allows them to see the graphics and polls and links an

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d other resources that are not available on the scaled down version of the mobile website.

Our number of subscribers is at an all time high. Thank you and please keep spreading the word. The popularity of the blog helps our credibility in the blogosphere. Please keep reading.

The related special ed law groups on Facebook, Ning, LinkedIn and Plaxo continue to generate great discussions and interesting wall posts. The links to these groups are on the left hand side of the blog. Check them out when you get a chance.

Thanks again for reading this blog. I am very pleased that we can provide information, provoke thought, discuss policy choices and make resources available to all of the stakeholders who read the blog.

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Mediation feels better....

2009-10-29T15:31:00.001-04:00

Mediation feels better. I don't know about the participants but being a Mediator feels better than being a hearing officer.
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