New Poll - What Would You Change About IDEA

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.

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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

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

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

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."

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So what do you think?

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Charter Schools & Special Education: Part II

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

Image by gothamschools via Flickr

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

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?

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

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.

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Poll Results In; We're Back in First Place

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

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

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?

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