House Leaders Draft Proposed Changes for Reauthoritization of No Child Left Behind

The leadership of the House of Representatives has issued a memorandum outlining changes to be incorporated in the No Child Left Behind tentatively agreed to by the leaders of both parties. Please note that his document is only a draft. You can review the memorandum at http://edlabor.house.gov/bills/MillerMcKeonNCLBDiscussionDraftSummary.pdf

Among the many highlights are the following: permitting states to use growth models in calculating Adequate Yearly Progress; adoption of a maximum "n" size; funding to develop alternate assessments; permitting special education students who exit to continue to be counted in that subgroup for up to three years; maintaining the one percent cap (students with the most severe cognitive disabilities taking the alternate assessment) and two percent cap (students with disabilities taking modified assessments based on modified standards), but allowing certain districts with a high number of students with disabilities to obtain a wavier permitting up to a three percent cap; and a minimization of barriers access to statewide assessments for students with disabilities.

The Congress is inviting comment on this draft. If you have concerns about No Child Left Behind, you should let the House Education Committee hear from you.

Ontario Canada: Comparative Special Education Law

I have a couple of friends who work for the Ontario Ministry of Education. Canada has no national special education law; each province may adopt their own regulations.

Because of my background, I was most interested in dispute resolution mechanisms. In Ontario there is a special education Appeals Board, but school districts are not obliged to implement their decisions. Instead, most special education disputes are contested in the Ontario Human Rights Commission. A denial of FAPE essentially constitutes unlawful discrimination on the basis of handicap under the law there. There is also a major lawsuit pending involving preschool children with autism alleging handicap and age discrimination as well as violations of the Charter of Rights and Freedoms. For more information, see www.edu.gov.on.ca and www.ohrc.ca

This system is very different than our due process hearing (with embedded resolution session) system that we have adopted in the United States. I think that it is beneficial to learn how other countries do things. By reviewing other methods and options, we might find some things we like better. We may conclude that our system is better, or maybe we will see things we can add or subtract to improve the process. So far my study of the Ontario special education system is only just in the very beginning. As I learn more, I'll occasionally pass on information in this blog.

In the meantime I thank Michael and Sandy for taking the time to answer my questions.

New Stuff

I admit that I am new to blogging and that I am only gradually becoming hi-tech. (Oddly people who still say high-tech are predominantly low-tech!) Nonetheless, I have included some new bells and whistles on the blog. Please note that on the left side, there are now a number of buttons where you can vote that you like this blog. Those buttons can also lead you to other interesting blogs. Also, you can search this blog if you want to quickly find one of the archived posts or comments. If you would like to receive our posts by email or by rss feed, you can also subscribe using the links on the bottom of the left-hand column of the blog. Maybe next we will try music and videos- the challenge will be finding music or video relating to special education law!

Beware the Resolution Session- Part I

A brand new mandatory resolution session is added to the due process hearing process by IDEA’04. Section 615 (f)(1)(B). Within 15 days of receipt of a parent request for a due process hearing, the LEA must convene a meeting with the parents, a representative of the LEA with “decision making authority,” and relevant member(s) of the IEP team who have “specific knowledge of the facts identified in the complaint.” The LEA may not bring their lawyer unless the parent has a lawyer. The parties may avoid the resolution session only by waiving the meeting in writing or by participating in mediation. Section 615(f)(1)(B)(ii). ). If the parent/student’s lawyer does attend the resolution meeting, he will not be awarded attorney’s fees for his attendance if the parent is the prevailing party. Section 615(i)(3)(D)(iii). If the LEA has not resolved the complaint to the satisfaction of the parents within 30 days after receipt of the complaint, the hearing may occur and “all applicable timelines for a due process hearing” shall commence. Section 615(f)(1)(B)(ii). If the resolution session results in a written settlement agreement, the agreement is legally binding and enforceable in court, except that if either party suffers from “buyer’s remorse,” they may void the agreement within three business days after it is executed. Section 615(f)(1)(B)(iii) and (iv).
A portion of the conference committee report that discusses the resolution session states that these changes address “unscrupulous lawyers and an overly complex system” that has “led to an abundance of costly and unnecessary lawsuits.” The conference report goes on to explain that the resolution sessions are needed because “...(t)oo often, schools are unaware of parental complaints and concerns until an official complaint is filed and the legal process is already underway.” H.R. 1350 Conference Report, November 17, 2004.
A major issue that is likely to be raised in many due process hearings involves the admissibility of discussions at the resolution session in a subsequent due process hearing. Unlike the mediation section of the Act, which contains a specific guarantee of confidentiality for any discussions during a mediation session, Section 615 (e)(2)(G), there is no confidentiality protection for discussions that take place during a resolution session. I predict that many hearing officers will be faced with objections to testimony concerning what was said at a resolution session. Attorneys wanting to offer the testimony will likely argue that we must assume that Congress knows what it is doing and that Congress specifically restricted the admissibility of discussions only in mediation discussions. Lawyers wanting to exclude the testimony will probably argue that this was an oversight by Congress and that settlement talks should be protected. State law may supply the answer. Many states restrict the admissibility of settlement discussions as a matter of law or court decision to promote the policy of encouraging settlement. Those seeking to admit the testimony, however, will cite the Supremacy Clause, claiming that Congress knowingly omitted confidentiality protection. Unfortunately, the analysis of comments accompanying the new regulations does not provide any help. OSEP specifically rejected the request of several commenters to clarify whether discussions at resolution meetings are confidential because the Act is silent regarding confidentiality. 71 Fed. Register No. 156 at page 46704 (8/14/06). OSEP went on to say that although the parties could negotiate a confidentiality agreement as a part of their written resolution agreement, a state could not require the parties to a resolution meeting to keep the discussions confidential. 71 Fed. Register No. 156 at page 46704 (8/14/06)(emphasis not in original). Unfortunately, the problem is not likely to arise in situations where the resolution process results in an agreement. It is where the parties do not agree that the danger lies. After an unsuccessful resolution meeting, the danger exists that a party may offer testimony at a subsequent due process hearing concerning discussions, or worse yet, misunderstandings of discussions, that took place at a resolution meeting. The analysis by OSEP would seem to support the argument that discussions at resolution meetings generally are admissible in subsequent due process proceedings. The danger is that if discussions are not confidential, there is likely to be a chilling effect upon the parties’ willingness to speak freely, and thus upon resolution as well.
Although the caselaw is only beginning to trickle in, at least one state review officer has held that discussions at a resolution meeting are NOT confidential. See, Homer Central Sch Dist 106 LRP 65707 (SEA NY 10/27/6)(SRO affirms HO decision to admit discussions from a resolution meeting at a subsequent due process hearing. SRO concluded that discussions at a resolution meeting are not confidential as a matter of law.) Stay tuned for some interesting decisions.

Thanks Utah!

I recently had the pleasure of getting to spend a chunk of time in beautiful Ogden and Salt Lake City, Utah. I presented at the annual Utah Special Education Law Institute, and I conducted a training for hearing officers, mediators and facilitators for the state Office of Education. I also did some work on a pending due process in Utah in which I am serving as the hearing officer.
I want to thank the folks from the USOE who took such good care of me. The conference was very high quality and enjoyable. The training went well. Thanks to all.

By the way, the bloggers choice award voting is going very well. Last time I checked, this blog was No. 10 for best educational blog and No. 11 for best business blog. Please give us your vote today by registering at http://www.bloggerschoiceawards.com/ and then following up their email with your vote.

The "M" word Resurfaces

IDEA’04 imposes a new requirement that the special education and related services and supplementary aids and services to be provided to the child under an IEP must be based on “peer-reviewed research to the extent practicable.” Section 614 (d)(1)(A)(i)(IV). This change raises a number of questions and potential problems. The new phrase is not defined anywhere in the law. The phrase “peer-reviewed research” may have one meaning in academic communities, but lawyers will argue over what it means in the context of special education. In its analysis of comments to the new federal regulations, OSEP declined to define the phrase “peer-reviewed research.” 71 Fed. Reg. No. 156, at page 46664 (8/14/06). The phrase “to the extent practicable” is an odd choice for statutory language; it is rare for the Congress to impose a requirement, but qualify the requirement with what may be a built in excuse for noncompliance. OSEP also declined to define the phrase “to the extent practicable” although it noted that the phrase generally means that services and supports should be based upon peer-reviewed research to the extent that it is possible given the availability of peer-reviewed research. 71 Fed. Reg. No. 156, at page 46665 (8/14/06).
The United States Supreme Court has had a long-standing admonition to hearing officers and courts that they are not to substitute their notions of preferable educational methodology for those of school personnel. In Board of Educ., etc. v. Rowley 553, IDELR 656, 458 U.S. 175, 207-208 (1982), the Court set forth the “M” word prohibition as follows:

In assuring that the requirements of the Act have been met, courts must be careful to avoid imposing their view of preferable educational methods upon the States... The primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child's needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardian of the child. .. In the face of such a clear statutory directive, it seems highly unlikely that Congress intended courts to overturn a State's choice of appropriate educational theories in a proceeding conducted pursuant to § 1415(e)(2).30
We previously have cautioned that courts lack the "specialized knowledge and experience" necessary to resolve "persistent and difficult questions of educational policy." (Citation omitted) We think that Congress shared that view when it passed the Act. As already demonstrated, Congress' intention was not that the Act displace the primacy of States in the field of education, but that States receive funds to assist them in extending their educational systems to the handicapped. Therefore, once a court determines that the requirements of the Act have been met, questions of methodology are for resolution by the States.
Board of Educ., etc. v. Rowley, supra. (emphasis added)

The new statutory language, “peer-reviewed research to the extent practicable,” seems to be an invitation for hearing officers and courts to intrude into the previously forbidden arena of methodology. Parents are likely to argue that the student was denied FAPE because the methodology employed by the school in not based on peer-reviewed research. Some methodologies, like applied behavioral analysis, have a significant body of research. School officials who have chosen to ignore the provision may argue that peer-reviewed research is not practicable. A new cottage industry of expert witnesses in the field of what is not peer-reviewed research is likely to be born. OSEP has stated that a district is not required to provide the methodology with the greatest body of research in order to provide FAPE, and that there is no requirement that an IEP include specific instructional methodologies. 71 Fed. Reg. No. 156, at page 46665 (8/14/06). OSEP has not, however, provided much useful guidance. Hearing officers and courts will begin to rule upon such issues, and there will likely be a large number of cases. Districts and parents will need to become familiar with these rulings.