Saturday, February 28, 2009

Poll Results; New Poll; Subscribers Up; Facebook; Twitter; Ning

The number of subscribers to this blog is rapidly growing. The subscription is absolutely free and you can subscribe by email or through an RSS feed in a reader, or if you have your own blog or website, you can grab a widget (or "blidget.") Just click on the corresponding area on the left hand side of the blog. Thank you to all of our subscribers; the number of subscribers helps with credibility in the blogosphere. We have a very diverse group of special ed stakeholders reading this blog. I have heard from parents, teachers, related service providers, school district administrators, lawyers for both sides, state DOE staff, law professors, special ed professors, advocates, group representatives, and adults with disabilities who have been through the IEP process. Thanks everybody, please keep reading and please continue to spread the word.

The special education law blog poll has just ended. Remember these are not intended to be read as scientific or anything approaching scientific; but they are fun, and they do show what our readers are thinking. The current question was what is the most important trait for a special education hearing officer. The winner was Knowledge of the Law with 20 votes, upsetting the long time leader Fairness, which came in second, just one vote behind. Next was Training with 13 votes, closely followed by Common Sense with 12 tallies. The bottom three spots were held by Conscience with 8 votes; Experience 7 votes and Firmness with 6 votes. Frankly, I think that firmness should demand a recount, but that's just my opinion.

The next poll will deal with the upcoming supreme court case dealing with whether a student must receive special ed in a public school before his parents may claim reimbursement of a unilateral placement.

Our new Facebook special education law group continues to be popular. On February 19th I did a post celebrating the groups 100th member. As of this morning, just nine days later, the group now has 142 members. Please check out the group and join the fun at this link.

For those who use Ning, please checkout the brand new Ning special education law group. You can check it out through this link. My tech savvy friends are going to have to help me figure out how or why to use this group.

Concerning the twitter link to this blog, you can see my mini-posts or tweets on the twitter feed on the left hand side of the blog. I'll explain the test anxiety tweet in an upcoming post. I mad that tweet with my cellphone. This new technology is just amazing! Also, for twitter users, please take a look at the new twitter special education law group via this link.

Thursday, February 26, 2009

Latest Federal Regulations - Parental Consent: Part I

The federal Office of Special Education Programs made several changes to the federal IDEA regulations effective on December 31, 2008. I dont know about you, but I'm always suspicious of changes made by a federal agency when an administration has one f
oot out of the door.

Anyway, the analysis of comments to the proposed regulations by OSEP is available online at this link. Among the changes were the following:

Parental Consent

34 C.F.R. Sections 300.300 and 300.9 were amended to provide that parents are now permitted to revoke in writing their consent for the continued provision of special education and related services after having received services. School districts are no longer able to use mediation or a due process hearing to seek to override or challenge the parents' lack of consent. School districts will not be deemed to be in violation of the ACT for denial of FAPE where the parent has revoked consent to the continued provision of special education and related services. First I'm going to quote some of OSEP's analysis. remember that comments by an agency are entitled to "some deference," but not the force and effect of law as a regulation would get.

In response to comments that the IEP Team and not the parents should make such decisions, OSEP said:

Discussion: We agree with the commenters that the IEP Team (defined in § 300.23, which includes the child's parents) plays an important role in the special education decision-making process. For example, through the development, review and revision of the child's IEP, the IEP Team determines how to make FAPE available to a child with a disability. However, the IEP Team does not have the authority to consent to the provision of special education and related services to a child. That authority is given exclusively to the parent under section 614(a)(1)(D)(i)(II) of the Act. The Secretary strongly believes that a parent also has the authority to revoke that consent, thereby ending the provision of special education and related services to their child. Allowing parents to revoke consent for the continued provision of special education and related services at any time is consistent with the IDEA's emphasis on the role of parents in protecting their child's rights and the Department's goal of enhancing parent involvement and choice in their child's education. We expect that after a parent revokes consent for the continued provision of special education and related services, the parent will continue to work with the child's school to support the child in the general education curriculum. Parents of nondisabled children serve as partners in their children's education in the same manner as parents of children with disabilities. We agree that an IEP Team meeting should be convened if any member of the IEP Team, including a parent, believes the child is not progressing. Section 300.324(b)(1)(i) and (ii)(A) requires each public agency to review a child's IEP periodically, but not less than annually, and revise the IEP as appropriate to address any lack of expected progress. However, the review of a child's IEP by the IEP Team does not replace a parent's right to revoke consent for the continued provision of special education and related services to his or her child.Concerning the comment that revoking consent should be treated differently than refusing to provide initial consent because the parent is seeking to terminate special education services that are presently provided, thus seeking to change the status quo and the comment expressing concern about revoking consent for a child whose current placement is in a residential setting, we appreciate that there are differences between consent for special education and related services and revocation of such consent. However, at their core, both issues entail a parent's decision of whether a child will receive special education and related services. Thus, section 614(a)(1)(D)(i)(II) and (ii)(II) of the Act,which provides a parent unilateral authority to refuse special education and related services, informs our decision on the related issue of revocation of consent for the continued provision of special education and related services.

73 Fed Register No. 231 at page 73009 (12/1/2008).

We'll continue with more OSEP analysis in a future post. What do you think of this change so far?


Tuesday, February 24, 2009

Interview with Top Federal Education Official - What Would You Ask?

I just requested an interview with Education Secretary Duncan or one of his assistant secretaries. What do you think - will I get an interview?

I suspect that it is a long shot. Although I'm very pleased that this blog has a rapidly growing number of subscribers and readers, it is still a relatively small fish in the large world of the news media.

But let's dream for a minute here. (I'm a Chicago Cubs fan, I have to be optimistic!) Suppose that I do get the interview, I have a good idea of many of the questions I would ask. A partial list of questions is at the end of this post, but I need your help. What would you ask the top brass at the federal Department of Education if you had a chance? Please let me know what questions you would like to have answered. If I am lucky enough to get an interview, I will include some of your questions during the interview.

Here are the questions on the top of my mind:
1. What changes are you likely to propose or support when IDEA is reauthorized.

2. In 1982, the U. S. Supreme Court decided the case of Board of Education of Hendrick Hudson Bd. of Ed. v. Rowley 455 U.S. 175, 102 S.Ct. 3034, 553 IDELR 656 (1982). In that seminal case, the high court set the standard for the majority of special education cases by defining what a school district must do in order to provide a free and appropriate public education ("FAPE). The standard is that an IEP must provide some meaningful educational benefit. Should the Rowley standard be changed?

3. Will you propose or support any legislative changes to reverse or modify the decisions by the Supreme Court in recent cases, including Schaffer v. Weast 546 U.S. 49, 126 S.Ct. 528, 44 IDELR 150 (2005)(burden of persuasion on party challenging IEP); Arlington Cent. Sch. Dist Bd. of Educ v. Murphy 548 U.S. 291, 126 S.Ct. 2455, 45 IDELR 267 (6/16/06)(expert witness fess not available to prevailing party in IDEA hearing); or Winkelman by Winkelman v. Parma City Sch. Dist 550 U.S.____, 127 S.Ct 1994, 47 IDELR 281 (5/21/2007) (Parents may proceed without attorney in federal court on IDEA appeal).

4. Would you propose or support any changes in the provisions regarding the awarding of attorney's fees in special education cases?

5. What are your feelings about the Response to Intervention evaluation process? Should it be expanded beyond eligibility for specific learning disabilities?

6. Concerning NCLB, what are your thoughts concerning the principles of accountability, high stakes testing and school sanctions? Would you propose or support any changes to the exceptions for students with severe cognitive disabilities or other students with disabilities for purposes of assessment?

7. What should be the role of the Office of Special Education of the federal Department of Education in interpreting and in enforcing the special education laws?

Saturday, February 21, 2009

What Should Be the Federal Role in Education?

The American Recovery and Reinvestment Act raises new questions about the role of the federal government in education. For many years, it has been axiomatic, at least among people who are running for office, that education policy decisions should be left to local school boards. Of course over the years this has become less and less true.The stimulus package, however, may cause the demise of the localization of education policy.

The first big involvement of the federal government in school was the compulsory attendance rule. I believe, and I know many who agree, that this nation became a superpower when it forced compulsory education in the 1950s. So much potential was completely untapped when so many kids were not being educated.

Special education was another huge involvement in educational policy. It is illuminating to read the legislative history of the federal special education law, first called the EHA and now called IDEA. Eight million kids with disabilities were not being appropriately educated. before Congress acted. My favorite example of how far we have come is a 1919 decision by the Wisconsin Supreme Court which upholds the exclusion of a student with cerebral palsy from public school because his condition and ailment produced "... a depressing and nauseating effect upon the teachers and school children." Once again, I feel strongly that federal action was necessary.

Other federal involvements include the nutrition programs, which provide the only food some kids get, and the widely acclaimed Head Start program. A more recent, and more controversial involvement is the No Child Left Behind Act. We have certainly not yet reached consensus on NCLB. A recent poll showed roughly one-quarter of the country fits into each of the four categories: repeal it, keep it with major changes, keep it with minor changes, and keep it as it is. Now that is a lack of consensus.

The stimulus law has a lot of money for education. Previous posts have focused primarily upon the special education funding, which I think is great. But the law also contains a five billion dollar fund for education reform. This is somewhat bigger than the sixteen million dollar discretionary fund that previous education secretaries have had. Secretary Duncan plans to use the federal government as a reform agent. This could well cause changes in special education as we know it. Here is a news article.

How do you feel about the role of the federal government in education?

Thursday, February 19, 2009

Facebook Special Ed Law Group - Over 100 Members Strong; Other Tech Stuff

Well the new Facebook Special Education Law group that I mentioned a few weeks ago is already over 100 members. If you use Facebook and are interested in the topics we talk about on this blog, please join us. There are some very interesting interchanges on the discussion board and on the wall. Also there are a number of resources contained in the links section. It's a pretty good resource.

As I continue my bold adventures with technology, my soundbite-sized tweets on twitter appear on the left-hand side of this blog. I continue to need practice in using a small number of words. I have also found new ways to post to this blog through email and even by talking into my cellphone. I'm going to save those for conference developments and breaking news when I'm not at my desktop or laptop.

Another minor change: a few people have asked me lately how much a subscription to this blog costs. There is no charge, all subscriptions are free. In fact it helps the credibility of the blog if more people subscribe, so please do so. I have made it clear on the left-hand side of the blog that subscriptions are free.

We remain stuck in fourth place in the Bloggers Choice Awards Education Blog category. Please help us out with a vote by clicking on the button on the left-hand side of the blog. You will have t register and confirm your registration by clicking on an email in order to vote. As many of you know, this blog won first place for best education blog in the 2008 version of the Bloggers Choice Awards. I made a homemade brag badge at the top of the left-hand side of the blog, and if you click on it you'll see a list of all 2008 winners.

One final left side note, the poll concerning the most important trait for a special ed hearing officer only has nine days left to vote. Fairness continues to lead, but knowledge of the law and training continue to gain ground. Common sense is the dark horse. I recognize that these polls are not scientific, but they are fun so we do them. As Governor Blagojevich might say, vote early and often.

Tuesday, February 17, 2009

How the Court System Works 101

It was pointed out to me recently that lawyers often forget that many people don't really know how the different layers of the court system fit together. A more cynical friend says that lawyers get paid because they speak a foreign language nobody else understands. This post is a summary - crash course in how a special education dispute works its way through the court system.

The first step is usually a due process hearing. Most courts require litigants to exhaust their administrative remedies. This means that if you have the option of an administrative hearing, like a due process hearing, you generally must go through the hearing process before filing in a court. NOTE: There are other options, such as mediation, which may be agreed to at any time whether a due process hearing has been requested or not. The hearing, however, is usually the first step. A due process hearing resembles a trial- witnesses testify under oath and exhibits are admitted, but the hearing procedures are a little more relaxed than those of a court.

Most states have a one-tier system and the decision of the hearing officer is the final agency decision. (If the state has a two-tiered system, the hearing officer's decision can be appealed to the second tier hearing officer or state review officer.)

The hearing officer decision can be appealed to court. The appeal can be to state court, but it usually is to federal court. The first level court in the federal system is the U S District Court. This court can accept additional evidence, but usually they consider the administrative record compiled before the hearing officer. (The due process hearing is very important.) The court will usually accept the hearing officer's findings of fact unless there is a pretty good reason not to do so. The judge will, however, apply his own interpretation of the law to the facts.

The decision of the District Court can be appealed to the federal circuit courts of appeal. Each state is in a federal circuit. I am in the Fourth Circuit. New York is in the Second Circuit. California is in the Ninth Circuit. The circuit courts usually only consider legal and not factual issues.

A party can then ask the U S Supreme Court to accept a decision by a circuit court of appeal. The high court does not have to accept such cases, but may do so if the Justices decide to do so.

Decisions by the Supreme Court and the circuit court for your area and your U S District court as well as any decisions by your state high court or appellate court are binding precedent. Decisions by hearing officers or courts not covering your area may be used a helpful and persuasive reasoning, but they are not binding.

Although legal citations may look confusing they are useful. Even if you don't know how to look up a citation, if you type the citation or the names of the parties into a good search engine, you can often find news articles or other websites that provide more information.

Welcome to the world of legal research! Although I still believe that everybody should have their own attorney, I hope that this crash course was helpful.

Friday, February 13, 2009

Breaking News: Final Details: Special Ed Funds in the Stimulus Package

The stimulus bill has passed the Congress and awaits the President's signature. Here's a
news account. The final education funding in the American Recovery and Reinvestment Act includes 12.2 billion dollars for special education. This includes $11.3 Billion for direct aid, $400M for preschool programs and $500M for Part C infant and toddler programs. Christina Samuels' blog has the details including a 496 page downloadable breakdown of the education spending in the bill. For further details concerning education spending,the education Commission of the States has a short summary.

6 Kids, 3 with Disabilities and 8 More on the Way

This is not directly special education law, but I think that the topic is certainly in the ballpark., and i think that we need to talk about it. Nadya Suleman of California recently gave birth to octuplets. That is already a story, but it turns out that she already had six kids. (I'm trying hard not to make a joke here about whether they live in a shoe, but I digress.)

The mother has a new website. Is there anybody left who does not have a website? Any way to get the mom's viewpoint, check out her website.

What troubles some is that the mom's first six kids include one with autism, one with ADHD and one with speech delays and maybe "tiny characteristics of autism..." Here is a link to the NBC interview in which she disclosed the three kids with disabilities.

My question is: how will the three kids with disabilities be affected by eight new siblings? Many people who I respect think that the mom is crazy and that the children with disabilities will suffer. Others whom I also respect, say she is being victimized and that with the money she will make from pay pal and her television appearances, all will live quite well.

What do you folks think?

Tuesday, February 10, 2009

Breaking News: Senate Passes Economic Stimulus

Today the Senate passed the American recovery and Reinvestment Act. The vote was 61 - 37, with three Republicans voting for the bill. One Senator did not vote.

The differences in the bill must now be hammered out by a conference committee with representatives of both chambers participating. Be cause neither chamber cut the large increase in special education funding, that funding should remain intact.

Here is a news article. This link shows how all Senators voted.

Monday, February 9, 2009

Breaking News: Sentae Education Cuts Do Not Affect Special Ed

The Senate has passed an amendment cutting some $40 Million of the education funding from the economic stimulus package, but none of the cuts were in special education funding. Here is a chart showing what has and has not been cut. Although the Senate adopted the amendment, it still has to vote on the whole American Recovery and reinvestment Act. The vote is scheduled for Tuesday.

Because the two chambers will have passed different versions of the bill, a conference committee, with members from both chambers, will be appointed to work out the differences. additional press accounts are here and here. The Conference Committee product will be the final bill, and it will be sent to the President.

Wednesday, February 4, 2009

Eligibility for SpecialEducation - Part III

In a previous series, I discussed the recent explosion of cases on eligibility. I relied heavily upon an analysis by Professor Mark Weber. I liked his point about the misapplication of the Rowley standard (which was designed for measuring the adequacy of services) to the eligibility issue. But in reviewing the previous posts, I realized that I never finished this discussion. So here goes.

According to Section 602(8) of the IDEA, to be eligible for special education, a child must both have an enumerated disability and " reason thereof, need... special education..." In Hood v. Encinitas Union School District 486 F.3d 1099, 47 IDELR 213 (9th Cir. 4/9/7), the Ninth Circuit Court of Appeals held that the Rowley "some benefit" standard should be used in determining the second prong of the eligibility standard. Professor Weber points out that the Rowley standard applies only to whether services are appropriate. The analysis of whether a disability causes a child to need special education should be a much lower bar. Using the elevated standard, the Court held that a child with specific learning disabilities who made good grades but who had difficulty completing assignments, staying organized and submitting assignments to be not eligible.

Two other sections of the federal regulations provide further support for this argument. 34 CFR Section 300.306(c) outlines the procedure for determining eligibility and requires the eligibility team to consider a variety of sources before deciding whether a child is eligible.

Also the child find requirement is spelled out at 34 CFR section 300.111(c). This regulation provides that the child find requirement includes..."children who are suspected of being a child with a disability ... and in need of special education, even though they are advancing from grade to grade ..."

These two regulatory provisions would seem to suggest hat the standard for eligibility should be lower than the Hood court set it. It will be interesting to see how the future eligibility caselaw develops.

You can find Professor Weber's entire law review article "The IDEA Eligibility Mess," at this link:

You can view Part II of the series on eligibility here.

Monday, February 2, 2009

House Passes Stimulus Package: Contact Your Senator Now

The Economic Stimulus bill sponsored by President Obama passed the House of Representatives last week by a vote of 244 - 188. No Republicans and ten Democrats voted against the bill. Here is a news account. The American Recovery and Reinvestment Act now heads to the Senate. The Senate committee has voted the bill out and the full Senate is likely to vote early this week. Here is another news account.

Secretary of Education Arne Duncan says that the IDEA, the special ed law, has been grossly underfunded for years. "This is righting a historical injustice, a historical wrong," Duncan said. "These have been desperately underfunded, in some cases for decades." The bill raises IDEA funding from $10.9 Billion in 2008 to $16.9 Billion in 2009 and 17.9 Billion in 2010. Here is another news link. As some commenters on this website have pointed out more money does not always translate into better, but too little money has a very bad impact on kids with disabilities. I favor this bill. Its passage doesn't mean that we are done; we must watch how the funds are spent. But if the bill does not pass, the impending budget cuts at the federal, state and local levels could have very bad consequences.

The website of the
Council for Exceptional Children has further analysis and a chart comparing the House and Senate bills as well as a tool for contacting your representatives and senators. All persons who are interested in special education should immediately contact their U. S. Senators. Regardless of how you feel, please let them know. The U. S. Senate website has a handy page for contacting your senators. Democracy is pretty cool.