Monday, March 31, 2008

Procedural Safeguards - Part III

As we continue the series on the IDEA procedural safeguards, other than the previously covered four methods of dispute resolution, it is important to remember the significance of these safeguards. From Rowley through Winkleman, the Supreme Court has referred to the IDEA procedural safeguards as extremely important to the fairness of the process, the great equalizer. Today we examine how the IDEA'04 changes and the latest federal regulations impact the requirement of parental consent.

Parental Consent
The provisions of IDEA’04 make it clear that where the parent does not provide consent for the initial evaluation, the school district may invoke procedural safeguards, such as mediation or a due process hearing, to pursue such evaluation. Section 614 (a)(1)(D)(ii)(I). If the parent refuses to consent to services for the child, however, the school district shall not provide special education and related services to the child and the district may not invoke mediation or the due process hearing system. Section 614 (a)(1)(D)(ii)(II). Where the parent refuses to consent to services or fails to respond to a request to provide such services, the school district is relieved of the obligation to provide FAPE to the student and is not required to convene an IEP team meeting or to develop an IEP for the child. Section 614 (a)(1)(D)(ii)(III)(aa) and (bb).
OSEP has clarified that a school district must make reasonable efforts to obtain the informed parental consent for an initial evaluation and document these efforts in the same manner as documenting efforts to obtain parent participation in IEP team meetings. 71 Fed. Register No. 156 at page 46631 (August 14, 2006). A school district may, but is not required to, utilize the procedural safeguards to obtain parental consent for an evaluation although OSEP believes the override procedures should be used only in rare circumstances. 71 Fed. Register No. 156 at page 46632 (August 14, 2006).
The reasonable efforts required of a school district do not require the convening of an IEP team meeting, although a school district may convene an IEP team meeting in order to obtain informed consent. 71 Fed. Register No. 156 at page 46634 (August 14, 2006).
OSEP will publish regulations in the future concerning whether a parent who previously consented to services may later withdraw their child from special education. 71 Fed. Register No. 156 at page 46633 (August 14, 2006).
Where a child is home schooled or placed by his parents in a private school at their own expense, the school district may not use the procedural safeguards to attempt an override of lack of consent. 34 CFR Section 300.300(d)(4); 71 Fed. Register No. 156 at page 46635 (August 14, 2006).

Thursday, March 27, 2008

Excusal of IEP Team Members under IDEA'04 Provision

I'm presenting a poster session at the conference of the Council for Exceptional Children in Boston next week. My topic is Will the Circle Be Unbroken: The Role of the Teacher in the IEP Team Meeting.

With all due apologies to the Carter family, the title hints at the new provision in IDEA'04 permitting IEP team members to skip an IEP team meeting. There are actually two provisions:

`(i) ATTENDANCE NOT NECESSARY- A member of the IEP Team shall not be required to attend an IEP meeting, in whole or in part, if the parent of a child with a disability and the local educational agency agree that the attendance of such member is not necessary because the member's area of the curriculum or related services is not being modified or discussed in the meeting.
`(ii) EXCUSAL- A member of the IEP Team may be excused from attending an IEP meeting, in whole or in part, when the meeting involves a modification to or discussion of the member's area of the curriculum or related services, if--
`(I) the parent and the local educational agency consent to the excusal; and
`(II) the member submits, in writing to the parent and the IEP Team, input into the development of the IEP prior to the meeting.
`(iii) WRITTEN AGREEMENT AND CONSENT REQUIRED- A parent's agreement under clause (i) and consent under clause (ii) shall be in writing.
IDEA, Section 614(d)(1)(C). See also, 34 CFR Section 300.321(e).

Thus, an IEP Team member is not required to attend an IEP Team meeting if the parent and the school district agree that the attendance of the Team member is not necessary because the member’s area of curriculum expertise or area of related services expertise is not being discussed or modified at the meeting. Section 614 (d)(1)(C)(i). Even where the Team member’s area of expertise is going to be discussed or modified at the meeting, an IEP Team member may be excused from attending an IEP Meeting if the parent and the school district consent to the excusal and the member submits written input into the development of the IEP to the parent and the IEP Team prior to the meeting. Section 614 (d)(1)(C)(ii) (I) and (II). In both cases the agreement or consent of the parent to the nonattendance or excusal must be documented in writing. Section 614 (d)(1)(C)(iii).

I worry that the provisions may undo the benefits of rich discussion by a multi-disciplinary team which underlie the concept of the team meeting. Also, I question how you know who isn't needed before the team discusses a topic.

There have not been many reported cases about the new provisions, and they seem to go off in every direction, which is about what you would expect for interpretations of brand new law. I'm wondering whether any readers have heard from actual IEP team members as to whether there has been abuse of these provisions. I have heard from the NEA that some teachers are reporting that they are not being allowed to attend meetings they want to attend. On the other hand, I have heard from the AASA that administrators are not reporting problems with the new provisions and that they are creating more flexibility with regard to scheduling.

So what have you heard about these new provisions. I won't quote you unless you ask me to do so. Thanks in advance for your thoughts.

Monday, March 17, 2008

Yes Rural SpEd is Different, Continued

This post continues my discussion of some of the thoughts that I had after consulting with some of my expert friends prior to a participating in a focused group discussion with Tracy Justesen, the new Secretary of OSERS, among others, about rural special education issues. By the way, I learned of the meeting with the Assistant Secretary after my first post about rural special education. The very informative meeting occurred last Thursday; everyone present really liked to talk! Here are my additional thoughts:

Rural schools are geographically isolated. Some remote schools may be 150 miles away from the nearest small town. There are some school districts where the Superintendent also fixes the boilers, serves as basketball coach and does much of the janitor work. Some places still do not have ready access to the internet. It is not uncommon for parents, students or district staff to have to travel up to 4 hours each way to get to medical facilities that can provide necessary supports.
Isolation causes numerous problems. School districts are far away from resources, including, mental health facilities, and even child care. Parents are somewhat less knowledgeable concerning options and rights because of their isolation from other parents. The opportunity for out of district placements are more limited even where they may be needed. Transportation becomes difficult to coordinate and often takes up a significant portion of the child’s day. Service personnel also spend numerous hours getting to point B. The cost, amount and duration of transportation are significant issues.
Concerning dispute resolution, isolation and distance also causes problems. Even where an SEA offers an innovative program, such as facilitated IEPs, the large distances make it difficult for the facilitator to travel to the location of the IEP team meeting.
A federal initiative increasing the use of technology to help combat the isolation and distance problems would be helpful.

Low number of due process hearings and complaints:
The GAO study a few years ago found that fully 80% of all due process hearings are filed in six states (California, New York, New Jersey, Pennsylvania, Maryland and Washington DC). These states coincidentally include many major urban and metropolitan areas. I do not think that anyone advocates more due process hearings, but this could possibly be a red flag and deserves some inquiry.
There are a number of possible explanations: People in rural areas are less litigious in general-- In some rural areas, the school is the heart of the community and taking on the school is seen by many as taking on the community. There is also an ethic in some areas that you shouldn't sue anybody. These factors would suggest that additional alternative dispute resolution (ADR) solutions should be explored: increased mediation and facilitated IEP meetings. Increased funding for OSEP funded CADRE which assists states with ADR methods and techniques, trains mediators and helps states develop IEP facilitation programs would be excellent.
Because of a scarcity of lawyers and especially lawyers conversant in special education law, coupled with geographic isolation, parents are generally less aware of their rights and their child’s rights. More training on parents’ rights and more CLE, perhaps sponsored by OSEP, in states with extensive rural areas, would be beneficial.
Data: most of us agree that data collection is good, but especially in dispute resolution, I question the data collected and its meaning. SPP/APR indicators 16 through 19 collect only data regarding timelines (for state complaints and due process hearings) and percentage of settlements (for resolution meetings and mediations.) It would be nice to see some demographic data for these dispute resolution methods. How many rural people are taking advantage of these procedural safeguards? Also since so much of rural America is poor, are the suspicions of many that only the wealthiest families take advantage of the dispute resolution methods valid? Wouldn’t it be valuable to learn exactly who is accessing the system of procedural safeguards that is so fundamental under IDEA?
Training: The training of hearing officers, mediators and state complaint investigators varies widely from state to state. In many states there are significant commitments to training. In others, especially the poorer states, despite the new qualifications for hearing officers in IDEA’04, there is minimal or almost no training. In most rural areas, hearing officers and mediators are contractors rather than employees and they receive only one to a few assignments per year. Special Education Law is an ever-growing and complex body of new law. It is difficult for these contractors to stay on top of this confusing body of law by themselves, particularly when they use it so infrequently. In smaller states, the complaint investigator may be whoever answers the phone at the SEA or at best a small number of people who are generally not attorneys but who must master the difficult field of SpEd law. It would be beneficial to the states if OSEP could provide support and assistance in the form of money for the support and, more importantly, the training of these dispute resolution contractors and staff.

Tuesday, March 11, 2008

Yes, Rural Special Education is Different

Since my recent post asking the question, we have had good comments on the topic by Mitchell Rubenstein and Spedvet. I later learned that I would have an opportunity on March 13th to participate in a focused group discussion including Tracy Justesen, the new Secretary of OSERS, about rural special education issues. What a great opportunity. Here are some of the thoughts that I had in preparing for the meeting after consulting with some of my expert friends; the remainder of my thoughts will be included in the next post:
Much of rural America is also poor America. We certainly all recognize that poverty exists in urban ghettos and barrios, but poverty also is prevalent in rural Appalachia, in the rural south, in the less populated areas of the West, on Indian reservations and in many other rural and remote areas of the country. This has multiple negative effects:
Children show up for school hungry. It is extremely difficult for these kids to learn.
A person who might want to be a SpEd teacher in a poor area for altruistic reasons can do so in many urban areas. A similarly motivated person who wants to become a SpEd teacher in a rural area generally cannot do so without requiring his/her family to live in a poor area. Because the teacher and his/her family must live close enough to get to school, in rural parts of the country, the family must live in the poverty area. The urban teacher, on the other hand, can live in a non-poor area of the metro area and commute to the ghetto.
Poor areas also have very low tax bases resulting in very small budgets for school districts. The fewer the students, the less the resources that are available. In the rural areas of states that do not have uniform teacher pay, teachers are not paid well. In one state that I am familiar with, there are approximately fifty districts that do not offer health insurance for teachers. Against this backdrop, imagine the difficulty in attracting skilled special educators, let alone, HQTs to these schools. In many of these areas, related services providers are in high demand and command high prices. Related services are often provided by contractors who drive or are flown in for a few hours per week. OSEP could help by assisting with solutions for small rural schools concerning how to recruit, train and retain good related services staff to be available on a full time basis.

IDEA and NCLB were written with large metropolitan areas in mind. The State Education Agencies of the very small states, most of which contain large rural areas, have exactly the same responsibilities as those of the states with huge populations. The one size fits all logic is flawed.
I understand that some SEAs have as few as four staff members. They often have a hard time recruiting staff. Frequently even the LEAs or local school districts pay more to their employees. These rural states often have a very difficult time meeting the IDEA’04 requirements, especially with regard to the collecting and reporting of the State Performance Plan (SPP) and Annual Performance Report requirements. I think that we all concede the importance of accountability, but trying to generalize the 20 SPP indicators to small rural schools is extremely difficult at best and takes a lot of time, resources and energy away from educating kids.
Similarly, the Highly Qualified Teacher requirements of NCLB cause serious problems in rural areas. There are some rural school districts where the school district employs only one special education teacher. This one teacher teaches preschool through 12th grade covering all subjects and serving all disabilities. Imagine what these teachers would have to do to meet the HQT requirements. It should be noted that these teachers often have general education degrees as a condition of licensing, so they have pretty good subject matter knowledge, although maybe not in all subjects, but they also have access to other general ed teaching staff for subject matter knowledge –if they need it. Smaller rural areas need some flexibility from OSEP in applying the HQT and similar requirements. In addition programs such as federal scholarships and loan forgiveness should be implemented.

Thursday, March 6, 2008

Procedural Safeguards - Part II

We continue the series on the IDEA procedural safeguards, other than the four methods of dispute resolution which have been discussed in a previous series. Today we begin to examine how the IDEA'04 changes and the latest federal regulations impact the notice of procedural safeguards required by the IDEA.

IDEA’04 makes some changes concerning when a copy of the procedural safeguards notice must be given to parents. A copy of the notice must now be provided to the parents only one time per year, except that it must also be given upon initial referral or parental request for evaluation, upon the first occurrence of filing of a due process complaint, and upon request by a parent. Section 615(d)(1)(A). The regulations clarify that the notice must also be provided upon the parents’ filing of the first state complaint and on the date on which the decision to take disciplinary action is made. 34 CFR Section 300.504(a); 71 Fed. Register No. 156 at page 46692 (August 14, 2006). The regulations also make it clear that a parent will receive more than one copy of the notice of procedural safeguards if they also request an evaluation or file a state complaint or due process hearing or they request a copy. 34 CFR Section 300.504(a); 71 Fed. Register No. 156 at page 46692 (August 14, 2006). The local educational agency may also place a copy of the procedural safeguards notice on their website if they have one. Section 615(d)(1)(B). OSEP has noted that publishing the notice on its website does not relieve the LEA of the responsibility of offering the parent a printed copy of the notice unless the parent evidences a clear preference to obtain the information electronically 71 Fed. Register No. 156 at page 46693 (August 14, 2006).

The procedural safeguards notice must include a full explanation of procedural safeguards, written in the native language of the parents (unless clearly not feasible) and written in an easily understandable manner, relating to the following:

`(A) independent educational evaluation;
`(B) prior written notice;
`(C) parental consent;
`(D) access to educational records;
`(E) the opportunity to present and resolve complaints, including--
`(i) the time period in which to make a complaint;
`(ii) the opportunity for the agency to resolve the complaint; and
`(iii) the availability of mediation;
`(F) the child's placement during pendency of due process proceedings;
`(G) procedures for students who are subject to placement in an interim alternative educational setting;
`(H) requirements for unilateral placement by parents of children in private schools at public expense;
`(I) due process hearings, including requirements for disclosure of evaluation results and recommendations;
`(J) State-level appeals (if applicable in that State);
`(K) civil actions, including the time period in which to file such actions; and
`(L) attorneys' fees.
Section 615 (d)(2).

OSEP has published a model Notice of Procedural Safeguards in order to reduce confusion about what must be included in the notice. 71 Fed. Register No. 156 at page 46693 (August 14, 2006). The model notice is 44 pages long. (So much for easily understandable language, etc.) The model notice form is available on the OSEP IDEA website:
Although OSEP frowns upon dual filings of state complaints and due process hearings for the same incident, the regulations clarify that the notice of procedural safeguards must explain both procedures and the differences between the two. 34 CFR Section 300.504(c); 71 Fed. Register No. 156 at page 46693 (August 14, 2006).