Wednesday, January 28, 2009

Blidgets, Test Posts, Facebook and Twitter - Part II

As you have probably gathered from recent posts, I am continuing to experiment with the new technology. The innovations continue to amaze me.

Twitter allows me to reduce my complex thoughts and analysis to soundbites of 140 characters or less. Thanks to cooperation in the blogosphere, I'm now able to make mini-posts which appear on the left-hand side of the blog. If you use Twitter, you can elect to follow my "tweets" there too.

Our new Facebook Special Education Law group is growing rapidly. There are now 60 members. The members are a variety of special ed folks, and there are two active discussion boards and a number of other blogs and other special education law related resources that members have shared. It is a pretty useful place if you're interested in special education issues. If you use Facebook, please check us out here.

The experimental posts have drawn quite a bit of interest. I am now able to create posts by talking into my cell phone and by email. The emphasis for now is on the experimental, but I really like the potential of these sites. If I am at a conference, I can much more quickly post an item for you readers. Also, if I'm stuck in a hearing or mediation or training, I can get a post done during a break. This is really amazing.

Many of you voted for this blog last year when we won first Place in the Best Education Blog category of the prestigious Bloggers Choice Awards. Thanks again. This year, we are in Fourth Place. There is a button on the lefthand side of the blog that will take you to the voting site. You have to register and respond to an email to be able to vote. Thanks again this year for your votes.

The poll on the lefthand side of the blog is also drawing some activity. The question, and I realize that the word scientific does not belong in any sentence describing this poll, is what qualities are most important for a special ed hearing officer. Fairness continues to lead, but knowledge of the law and training seem to be gaining on it!

I encourage everybody to subscribe to this blog. I'm pleased to announce that we now have over 300 subscribers. That's very impressive. Thank you to those who subscribe. If you have not yet done so, you can sign up (it's always free) on the lefthand side of the blog. You can receive posts by email or in a reader or aggregator as an RSS or atom feed. You can also get a widget, or blidget, of this blog and grab it for your own website or blog. The blidget can have just the post titles or the entire posts. Please encourage others involved in special education to subscribe, and thanks again for all of your support.

Monday, January 26, 2009

Supreme Court to Hear Special Ed Case: Tom F. Rides Again

The U. S. Supreme Court has accepted another special education case. The issue is whether a student must first be enrolled in a public school and be receiving special education services before the parents may be awarded reimbursement for a unilateral private placement. The case being appealed is Forrest Grove School District v. T.A. 523 F.3d 1078 (9th Cir. 2008).

The facts of the case are that the parents had asked to have the student evaluated. The school district evaluated the student and found that he was not eligible for special education. The parents enrolled the student in an expensive private school. Accordingly the student never received special education in the public school system. The district balked at paying the $65,000 bill. A due process hearing officer found for the parents. The U. S. District Court reversed. Then the Ninth Circuit Court of Appeals again reversed. Here is a news account of the case.

This may sound like deja vu all over again. The Tom F. case raised the same issue and was heard by the Supremes in 2007, but the court ducked the issue. In a rare 4 to 4 tie vote, with Justice Kennedy recusing himself and not participating in the argument or decision, the high court affirmed the lower court but because of the tie vote, the decision only has precedential for the second circuit. Board of Education v. Tom F. 522 U.S.____, 128 S.Ct. 1, 48 IDELR 239 (per curiam 2007).

As I have previously written, it would be nice if the Supreme Court would tackle a bigger issue. The Court has never addressed the concept of least restrictive environment, for example. Debates in the field of special education law rage over the current meaning of FAPE, whether eligibility standards are becoming excessively restrictive, the degree to which an IEP must be implemented, etc. I understand that the high court can't exactly pick its own issues, but I am always surprised by the tangential special education issues that fascinate the justices. Many of you apparently agree. In the very unscientific poll we ran on this blog concerning "Which Issue Next for US Supreme Court," that Tom F. issue came in tied for fourth with three other issues. In that poll, least restrictive environment was the issue that finished first for additional Supreme Court interpretation.

Nonetheless, any supreme court guidance is better than none! Here are links to previous posts on the Tom F decision in this blog:
July 24, 2007, October 11, 2007, and May 14, 2008.

Saturday, January 24, 2009

This Is A Test - Part II

This is another test.  This time I am writing this blog post by email.  This is amazing to me.

You may have also noticed that I have added on the lefthand side of the blog a Twitter feature.  This allows me to make mini-posts very quickly.  You can also sign up to receive my "tweets" or twitter posts independently.

I'm really enjoying the technology that I often have pretended to be afraid of.  These advances create opportunities.  Even though I anticipate that the big majority of my posts will still be made on my office computer or my laptop, these new features will still be useful.  For example, when I'm at a conference, which is often the case, I can be a mobile blogger.  This will get breaking news and reports of exciting ideas or fascinating presentations to the many readers of this blog faster.  The whole idea is to share information about special education law with those who read the blog and to stimulate discussion of related issues.

Until I get the hang of this, it might look a bit strange, but please bear with me,  I guess we are now officially SpEd Law 2.0!

Friday, January 23, 2009

This is a test. I am...

This is a test. I am writing this post by speaking into my cell phone more details later. listen

Powered by Jott

School Is Not Supposed to Hurt!

The National Disability Rights Network recently released a report of their study on restraint and seclusion of school children, many with disabilities. They chronicle a number of instances where children were injured or even killed by these techniques. You have to read it. Here is a link.

The federal Office of Special Education Programs, that oversees implementation of the special education law, has issued an opinion on this issue. OSEP ruled that while it encourages the use of positive behavioral interventions and supports to address behavior issues for students with disabilities, the Individuals With Disabilities Education Act does not prohibit the use of restraints or other aversive techniques for students with disabilities. Letter to Anonymous 50 IDELR 228 (OSEP 3/17/2008)

Professor Lloyd had an interesting post on this report. He says that there are times that a teacher must use restraint and seclusion, but that the teacher must be well trained and use the techniques correctly. Professor Lloyd shares my disgust, and the disgust of most reasonable people, at the examples spelled out in the report.

Also upset by the report was Congressman Miller, Chairman of the House Education Committee. He has scheduled hearings upon the topic of the report.

Have any of you who read this blog had problems with restraint or seclusion?

Tuesday, January 20, 2009

Special Education as Part of Economic Recovery

The economic stimulus package as passed by the House of Representatives includes an increase for special education funding. The Part B funds would increase by 13 Billion dollars over two years, more than doubling the federal outlay. The current federal expenditure is about 17% of the excess cost of special education. This proposed increase would raise that to an all time high of 27%. This is still way short of the long-promised 40%, but what a dramatic effect this should have on local school districts. Additionally, the funding for Part C (infants and toddlers) also more than doubles over two years. This would be a very god result for kids with disabilities.

The press release of the Appropriations Committee can be found
here. A good summary by the excellent policy department at the Council for Exceptional Children can be read here. This is just a house bill at this point, it still has to pass the house and the Senate and be signed by the President. What a big change though. This must have been approved by the incoming President. All signs are good here.

I'm glad that education is playing an important role in the recovery. The economy does not exist in a vacuum; there is a pretty clear relationship between education and our economic condition. More importantly for our readers, special education is being included. At a time when many school districts are strapped for cash, the press release of Appropriations notes that these additional funds will permit continuation of mandatory special ed programs without cutting other important areas of education. This is an important bill. Please write, call or email your House and Senate representatives and let them know how you feel about the increase in special education funding.

Thursday, January 15, 2009

Due Process Hearings: What Process is Due? Part IV

In the first three parts of this series, I discussed the dissatisfaction with the due process hearing system as the primary vehicle for resolving special education disputes, especially the adversary nature of the system and the expenses it causes the parties to incur. I looked at the constitutional due process requirements and wondered whether a more relaxed and less adversary dispute resolution mechanism with fewer evidentiary rules and less legalese might be better. I discussed as one alternative the "Inquisitorial" method. Then we discussed the concept of arbitration that was endorsed by the House and not the Senate in IDEA'04, and we examined one of the proposed arbitration systems. You can view the previous posts here:
Part I , Part II and Part III

As I have mentioned here, this is an area where I intend to encourage the Congress to make some changes. I'm still working out the kinks and the details of my proposed changes, and continue to welcome your input regarding potential changes to the special ed law. As always, I'd like to hear what you think.

Today I'm going to discuss a second arbitration model suggested by a colleague. Please note that I am sharing these models for informational purposes and to get the reactions of the readers of this blog. This second arbitration model has its roots in the European tribunal model. The tribunal, rather than the parties or the lawyers, is responsible for developing the record. Thus, the arbitrator would be the primary questioner of witnesses and would select documents for review. The arbitrator would exercise the inquisitorial function. Again the quality of the arbitrator must be uniformly high for the system to work. The arbitration process would be completely voluntary. The decision of the arbitrator would be final and not subject to further judicial or other review.

Under this arbitration model, lawyers would be banned unless both sides were represented. Lay advocates would be permitted for parents. The process would be informal and no permanent record of proceedings would be kept. The decision would state only the result and the relief required if any.

In the next installment in this series, we'll have some of my thoughts on how we might reduce the adversariness and expense of the due process hearing system. In the meantime, please let me know how you feel about these two arbitration model as well as the current due process system.

Monday, January 12, 2009

Odds & Ends: Polls, Subscriptions, Facebook & Awards

A few housekeeping matters and some new bells and whistles. First, please subscribe to this blog. In the blogosphere, there is power in numbers. Our subscribers come form many different sectors of the special education community, and we are always glad to greet new subscribers. You have several options all on the left hand side of the blog. You can subscribe by email, grab an RSS or atom feed for a reader or aggregator, or you may click on the orange box to obtain a widget which you may place on your own website. Please contact me if you have any problems subscribing.

Also, we run a number of polls deeper on the left hand side. The current question is: what qualities are most important for special ed hearing officers? Fairness currently has a big lead, but you can weigh in with your answer too. As always, we do not pretend that these polls are scientific or anything close to it, but they can be fun and do provide some valuable insights. Please vote early and often.

A brand new bell & whistle for those of you who use facebook. I have created a new special education law group on facebook. I don't really know what that means, but I feel certain that many of you do. In fact members are already joining. You can join the group by clicking on this link. I hope to hear from you there.

High on the left hand side of the blog you will see a note that this blog won first place in the Best Education Blog category in the 2008 Bloggers Choice Awards. I couldn't open the fancy brag badge that they sent me, but if you click on the note you can see a list of the winners. We are nominated again this year, and we are currently in fourth place. You can vote by clicking on the button a bit lower on the left hand side. You may have to register and respond to an email to be able to vote.

Finally, please continue to send me the changes you would like to see in the special education law. The response has been large, but I'd like to ensure that as many people as possible weigh in before we send our input to Congress. Please tell me what you think.

Thanks again, and please keep reading.

Friday, January 9, 2009

Due Process Hearings: What Process is Due? Part III

In previous posts in this series, I have discussed some of the dissatisfaction with the due process hearing system as the main way of resolving special education disputes. The major complaints involve the adversary nature of the system and the expenses it causes the parties to outlay. I examined the constitutional due process requirements and wondered whether a more relaxed and less adversary dispute resolution mechanism with fewer evidentiary rules and less legalese might be better. I discussed as one alternative the "Inquisitorial" method. You can view the previous posts here:
Part I and Part II

As you know from my last post, this is an area where I intend to encourage the Congress to make some changes. I'm still working out the kinks and the details of my proposed changes, and continue to welcome your input regarding potential changes to the special ed law. Before I get to fleshing out my proposals, however, I wanted to discuss some of the other proposals that are out there. Two of my esteemed colleagues have proposed forms of binding arbitration as the answer. In this post and the next in this series, I'll be discussing these ideas. As always, I'd like to hear what you think.

The first model involves submitting the dispute to an arbitrator selected by the parties and an agreement to be bound by the arbitrator's decision (usually called an award.) One of the keys is the arbitrator who is selected. The parties would have to research the neutral and perhaps talk to references before agreeing to the arbitrator.

Under this model, the parties could choose to have the arbitrator resolve future as well as current disputes between the parties. The arbitrator would have a significant level of power, and the information gathering process would be left to the discretion of the arbitrator. The arbitrator could simply talk with the student, parents and district employees, or observe the student at school or receive exhibits. The process would be flexible enough for the arbitrator to utilize mediation techniques at any time he felt appropriate. If a violation is found, a written decision with appropriate relief would be issued. The process would prohibit participation by lawyers at the dispute resolution sessions although the parties could consult by telephone with legal counsel. The parties would have to certify that they have consulted with a lawyer prior to entering into the agreement to arbitrate. Lay advocates would generally be permitted.

So what do you think of arbitration so far? Congress has considered this change although why they did not include it is a bit unclear. The House of Representatives version of IDEA'04 included a specific provision permitting binding arbitration as one method of dispute resolution. The Senate version did not. The Senate apparently prevailed as to this point in the conference committee because the final version of IDEA'04 removed the arbitration provision. So the current law does not even mention arbitration.

In the next installment in this series, we'll have more on the other arbitration proposal.

Wednesday, January 7, 2009

Let's Tell Congress: How Would You Change IDEA - Reauthorization Part I

Special education law is a cycle of ever-changing requirements. Guess what, reauthorization is due again in 2009. For newcomers, the cycle of special ed law is as follows: the law is passed by Congress, OSEP adopts regulations, the states adopt regulations, all of these are interpreted in hearing officer decisions and court opinions. Then just when we are starting to get comfortable (insert comfort joke here), Congress reauthorizes the law with many amendments, OSEP makes new regs ... This cycle is then repeats indefinitely.

I am aware that the whole "economy is crumbling" issue might push reauthorization back a while, but now is the time to start thinking about what changes we might welcome in the special education law. The good part of the "ever-changing" character of the law is that we can ask for changes just like the other players.

So I'm asking you - what would you change in IDEA? I know from the last couple posts that many of you have strong opinions on transition planning and related issues. What else should be changed? I am considering requesting a change in the adversary nature of due process hearings and will continue a previous series of posts on that issue to try to flesh out the alternatives a bit more. Do you agree these changes should be made?

How about the Rowley standard? Should the educational benefit = appropriate standard be changed? Would you have the Congress reverse the other recent high court decisions: Weast (burden of proof in a dp hearing); Murphy (expert witness fees awarded to prevailing parents); Winkleman (parents can represent themselves in federal court on dp hearing appeals).

How about the non-decision in Tom F.; should the Congress specify whether or not a child must attend public school before reimbursement for a unilateral placement is available, and if so for how long? Should attorney's fees be addressed?

How about Response to Intervention - is it working well as a means of identifying specific learning disabilities? Should it be expanded?

How about NCLB as it applies to kids with disabilities: do we like the accountability aspects? how about the high stakes test? What about the school sanctions provisions?

Do you think the role or mission of OSEP should change? What could it do better as the federal agency charged with enforcing the special ed law?

My goal here is to collect some of your responses and present them to Congress. Sure I've got some ideas, but why not flex our muscles. The readership of this blog is growing. I'm quite proud that many different kinds of special ed stakeholders are tuning in. We have won awards and recognition. If there is power in numbers, why not present some of our thoughts as a group? I'll try to be fair in any presentation I make and I'll try to separate out my opinions (and as you know they can be strong) from group opinions or from group lack of consensus. I think that this may be exciting. Please let me know how you would change the special ed laws.

Friday, January 2, 2009

Transition Hits a Nerve

My post earlier this week on transition issues really hit a nerve.

We received a few comments and a slew of emails on the topic. Most were from parents or their representatives. Although there was one example of a very good transition program, it was run by volunteers and maybe a non-profit. The sentiment of parents and their advocates was not very happy, and the intensity of the sentiment seemed very strong.

I have heard schools argue that they are not all purpose social service agencies. Their mission is education at the k-12 level, they contend, and they shouldn't be saddled with these other responsibilities. The problem with that argument is that it is too late. Schools already serve many public policy functions for kids beyond education. Schools have long served a health mission for their students. Immunization is a public health initiative and it is enforced by making it compulsory for school kids. Hunger among American children would be an epidemic but for the school lunch (and breakfast) programs. Schools have long served many non-educational functions.

There is a legitimate policy argument concerning whether we as a society want to add more duties to the school as super social service agency. Transition for special ed students may well be at the heart of this argument. This is one topic where both school districts and parents hit their congressional representatives hard. The intense pressure on the Congress probably explains more, for example, about the change in the statutory definition of transition from an "outcome" oriented process to a "results" oriented process than any legitimate public policy reason. I predict more changes in transition when the IDEA is reauthorized again, possibly even some that make sense.

In the meantime, please continue to share your thoughts on what is happening with transition. This seems to be a very important issue. What are schools doing well? What are schools doing poorly? What would help schools to do a better job? I appreciate your comments and I value your experience.