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As the year winds down to a close, it's time for reflection and resolutions. Be sure to get a designated driver, and chew the black-eyed peas carefully.
To all of our loyal readers, Happy New Year!
A fresh look at special education law-mostly in understandable English. Jim Gerl is a consultant for a state and local education agencies, he writes regulations and he speaks on special ed law topics. He has presented at many national and regional conferences, and he has trained, evaluated, coached and mentored hearing officers, mediators and complaint investigators from every state. He's also a due process hearing officer and mediator for a number of states. Contact email@example.com
Image by Paloetic via Flickr
JG: Let me give you a couple of specific issues and ask you whether or not you think they should be part of reauthorization. The one that's actually back in the news again this week is seclusion and restraints.
AP: That's correct.
JG: Congress has just offered a new law about that and not part IDEA, but do you think that and given all the things that were in the GAO report and that National Disability Rights Network report that maybe IDEA should beef up its sections on behavior-type issues?
AP: That's a tough one to respond to. You know, the revisions in the past and the versions of IDEA try to stay away from specifics, especially in terms of appropriate methods or methodologies or whatever. So, I'm not necessarily - - I can't give you a definitive answer, but I guess I would not be leaning towards that.
JG: Okay. Well, let me try it a different way. Do you think that maybe positive behavior support should get more play in IDEA somewhere? Because, basically, because behavior is only covered in IDEA as a vague reference in the IEP section and there's really nothing else except the part when there's a manifestation determination, it says there's no manifestation, which is very specific. But in terms of positive behavior supports, do you think we should merge that into IDEA somewhere?
AP: Well, again, often it's viewed as a specific methodology and you know, as a hearing officer, we don't even put that into IEPs.
AP: So, we would have to stay away from looking at it and basically saying that we're supporting one particular methodology. So, will you see those exact words. My guess is probably not. But the information about training and providing professional development, about appropriate techniques, I mean, that kind of language, I'm sure. But again, it's been a term that's phrased because of response to intervention. Those words aren't even in there.
AP: So, and it's very - - it's done intentionally.
JG: And some of us, as hearing officers, call that (methodology) the "M" word , you know (laughing) - -
AP: Um hmm.
JG: Because you're not supposed to say it or go near it. You know what I mean?
AP: That's correct.
JG: And it think that - - I understand what you're saying, but just the way that some kids with disabilities have been abused though, it's so horrible and it's just, you know - -
AP: Well, it's traumatic. I mean, no one wants to see that, but is the law to really - - you know, is IDEA the law to take that on? You know, I think that's the question more than anything else. IDEA has so much in it.
AP: And believe me, I don't want any child to ever be hurt or abused or whatever. My first job was teaching emotionally disturbed middle school kids. So, believe me, I understand the behaviors their talking about, but there is, you know - - but to harm a child, oh, my gosh.
JG: Yeah. That's scary.
AP: Yeah, not at all.
JG: I haven't actually read the new legislation, yet. I just saw a release about it this morning. I don't think it assigns you any duties, does it, in terms of - -
AP: Well, no because it's really pertaining to all kids.
AP: It just so happens that students with disabilities tend to be probably the recipients of that more often because of their behavior, but it's for all.
AP: So, it would not be assigned specifically to us.
JG: Okay, and that's what I was assuming, but I thought you might already know because it - - if that course is proposed, it hasn't even made it through the committee yet.
AP: That's correct.
JG: It is amazing, but it does get back to one point you made too. I think that IDEA, like no child left behind, has also been wildly successful. We sometimes forget. We get all stuck in the data and stuff and we forget. I just read a 1919 opinion by the Wisconsin Supreme Court called State Ex rel Beattie - - this was 1919, so it' must be taken in a historical perspective and that’s hard - - but the state supreme court actually approved of the exclusion of a child with cerebral palsy from public school based on the fact that he was nauseating to the teachers and the other students. So, we've come a long way.
AP: Yeah, well, we have. I always talk about that. And it's interesting that you bring up a case in Wisconsin because that's where I was born. But I tell people because people are saying, gee, you know, we just haven't done enough and said, no. I said, I think this has been downright phenomenal. In 35 years - - in a little over three decades - - what we have done has been absolutely remarkable. Absolutely every child with a disability has total and complete access, not only to an education, but to the highest quality and be held to the highest standards. I've gone to other countries. I've gone to Japan. I've gone to China. And first of all, I ask, where are they? You know, because you don't see them. Now, I had a chance to go and I got to see some, but we're talking about less than 1% of the population and I don't even like to think about where they are. But what we have done in that just that short period of time and I look at my son and he does not know what it's like to not be in school or anywhere else without kids with disabilities. That's one generation. In one generation, we have made a see a change.
JG: It is. It is remarkable.
AP. I do, but I still say, we're in our infancy.
JG: Yeah. Oh, yeah, and that's part of the thing too - - lawyers don't like special ed law because it changes frequently.
AP: Oh, all the time.
JG: And it's not like property where you can pretty much know or you have a set of facts, so you can pretty much determine and advise your client. You just can't do this in this area. You don't know what the hearing offer is going to do. They are crazy sometimes, I'm told. So, let me bring you to the reauthorization. First of all, do you know what kind of timeframe we're talking about for IDEA. I know congress is busy with a few other things right now.
AP: Well, they are. I mean, health care has to be coming through first and then, of course, ESEA. So, in terms of the timeframe, technically, IDEA is up next year, you know, for reauthorization. But I think timing is going to be everything. You know, we really do need to work on ESEA first because that is behind the time. So, I think it'll be after that. Can I give you a particular time period? I would say probably within the next couple of years, okay?
AP: Now, but there's a part of me saying that as we work on the reauthorization of ESEA, I'm hoping that we see parts of what we see in IDEA be put in ESEA. I'm hoping that we will begin to see some of the similarities, some of the areas that should be the same.
JG: Okay, and in terms of the climate, it doesn't seem to me that special ed is a particularly partisan type issue. In fact, we've seen Justice Ginsburg and Justice Scalia, for example, vote the same way on special ed Supreme Court cases. Is that your reading? Is that the political climate?
AP: Absolutely. It's always been my need to - - you know, when you think about it, how can it be partisan? I mean, we're talking about assisting any child with a disability. That is not a partisan issue, not at all.
JG: And, again, that is my reading of it. Once congress is done with it, of course, it's going to be time for a new federal regulations again. That's always fun.
AP: That's correct.
JG: Do you have any idea how long that will take or is that just too far down the road now to estimate?
AP: Well, no. You know, having been here when we did the regulatory part last time, when you really think about it, it really is almost like a four year process, okay? Because what happens, you know, we redo the law and then states have to redo their law. Meanwhile, we're working on the regulatory part, you know, and we redo that and then the states have to redo their regulations. So, it usually takes about four years to completely turn it around.
AP: So, I mean, that's - - and that's not bad. That's reasonable.
AP: I know people think that it sounds extreme, but no, that's about right.
JG: But again, it part of that cycle though. Everything is changing at some point, then the law changes and the federal regs change, the state regs change, you get hearing officer decisions, you get court dates and then it's time to start all over again.
AP: Exactly right. There is another part of me saying, you know, we need to be thoughtful about it. So, we don't want to rush it either. We do want to do it the right way. The other thing is and often what we hear from states, especially having just come from a state, is we also need to give them time to redo or to put things in place to allow this to happen and if we give them a timeframe of saying, you have to have this all in place in a year, we're being unrealistic. So, I mean, it takes time to make these changes as well. So, it's realizing that and understanding that.
JG: Alright and that does sound reasonable to me, but there's other people out there that have different agendas. So, once again - -
We will return next week with more posts from my interview with Dr. Alexa Posny, the new Assistant Secretary of Education for OSERS. We'll also have other updates on this ever-changing body of law. Please stay tuned for further details.
In the meantime, have a very merry Christmas. I hope that you have as much fun with your family this holiday season as I am having with my family. Hang those stockings with care!
Sent from my BlackBerry wireless device from U.S. Cellular
AP: Yes, and IDEA reauthorization is going to be coming up.
JG: Yeah, and I've got that on my list for you, believe me. Before we get to that though, in terms of the role of OSEP and the role of OSERS in general, in terms of what you do, how do you see the mission of your agency and the mission of OSEP within your agency?
AP: Okay, well, I'm sure you're very well familiar that OSEP and RSA, the Rehabilitative Services Administration and NIDRR, National Dissemination and Research arm of this, when I look at all of that, this is to serve infants, toddlers, youth and adults, in terms of for the K12 system, in terms of the academic and that part of the system, as well as leading them towards that career or their life in the future and which is where the VR comes into this. So, in terms of our mission, it's to make sure that any person with a disability is gainfully employed and has a great life, bottom line, and K12 is definitely a precursor to that and that's where OSEP plays the major role. You know, they do it and the Part C, of course, is 619 and then, of course, K12 and all the way through 21 or whatever, and that's then where RSA and the rest of it picks up afterwards, you know, to make sure that especially those adults with disabilities - - who have significant disabilities - - of course, are provided what they need. So, how does OSEP fit in there? If we don't have a good system that's leading into what they need to do in terms of follow up, then anything we do in terms of VR, they can't redo what might have been lost, if we don't provide what the children need long before they get out of the public school system. So, in OSEP - - since I know OSEP so well - - that's been great. The other thing is, one thing that I've talked about, as much as we talk about no child left behind, some areas of concern within that, I believe that students with disabilities made tremendous progress over the last however many years as a result of holding all of our kids to be accountable and to make sure that they all succeed. So, I just think we've seen tremendous strides. I really do.
JG: And I think you're right. In terms of your job, how much do you think special ed is going to play? You also have vocational rehab I like to call it because I'm old (laughing) and the research functions, of course. But special ed seems to be the big-ticket item on the plate. Is that true, you think?
AP: It's very true and it's not because I want to slight the other pieces, but when you think of how much IDEA - - I mean, you are very aware of the volumes of regulations and laws that we have and that plays a big part in it. Now, I'm not saying that WIA, the Workforce Incentive and the Rehab Act and so forth don't have those pieces, but when you think about what is included in IDEA, that's why it's such a huge aspect, but there's another part of it. We have to make sure that we are inclusive, so I need to be in all of the discussions on the reauthorization of ESEA, every piece. So, because it's more of that piece that impacts the rest of the U.S. Department of Education, that's OSEP plays such a big role. But I also need to help them understand how RSA and NiDRR also play a piece in this and that's another piece. I want to help that rise to the surface, to let them understand how it fits together.
AP: So, you know, I think it's been slighted.
JG: Okay, and I think many people feel that way, but on the other hand, as you said, there's just so much money and so much law involved in the special ed, for whatever reason. I mean, if you look through the case law on rehabilitation, there's just nothing there.
AP: But it's nothing in comparison to case law that we have. That's right.
JG: It's hard to actually literally keep up. I try to read all the cases in special ed, including many of the hearing officer opinions because I think that there's a lot of good discussion and new ideas there, but it's just hard to read them all. There's so many.
AP: Absolutely, and just think about it. We've only had the law for about 35 years.
JG: In terms of your old job, the director of OSEP, do we know when that job is likely to be filled?
AP: Well, it's going to depend. You know, I've been here all of four weeks. So, there's a part of me saying, I need to get the lay of the land.
AP: And knowing that I was in that position, what I need to do is spend time to figure out what we need because I look at what may be my strengths and talents and maybe some areas that I may not have as much. So what do we need to basically compliment because we don't need the exact same thing. So, it's a matter of just taking a look at it. What can we use?
JG: And you've anticipated my next question. What would you be looking for? What do you - - again, you're new, but you've done that job before - - so, what are some of the kinds of qualities in a person you'd like to see, you think or maybe what you want out of the person doing that job?
AP: Well, it's probably easier to speak about the qualities of the person. The person has to be a little bit crazy. (laughing) And, you know, just knowing what the job is. And I say that with all the greatest humor and the greatest respect for everyone else, but it's coming at it - - it's looking for someone who, in my mind, is knowledgeable because I really think that makes a difference because you're dealing with a lot of different disability areas, as you're very familiar with, and you know, a child with autism is very different from a child who is learning disabled, which is very different from being deaf or hard of hearing and/or visually impaired. So, it's having some background in that because we deal with all of it. But there's another part too. I'm also looking for someone is dedicated to making sure that every child succeeds, regardless and that we're in an educational system and how can we make this system the best there is for every single child. You know, so there's that dedication and commitment that is paramount. But then I'm also looking for some other qualities too. You know, for me, it's that relentless focus and what is that focus of the person and how can we go after it when we know it's the best thing for kids. Another one is just keeping in mind - - well, basically being open minded because, you know, again, we're talking to a lot of different people. The other thing that I look for and whenever I've hired people to work with me is I said, I am not looking for a yes person. That is not what I need. I need people who are going to push back. To say, well, have you thought about this or what do you think about this or can give me some different ways because then we'll only do that much better and we'll think about it ahead of time. So, it may not be as specific, but it's those kinds of characteristics and qualities that I think really make a big difference and there's a big difference between what a person brings with him or her, in terms of those kinds of qualities, because knowledge can also be learned. So, does somebody have to be extremely knowledgeable? No, no because that kind of information can be learned. We all did it.
JG: That's true.
AP: Yeah, and every time the law changes, we have to do it again.
JG: That's true:
AP: Yes, and IDEA reauthorization is going to be coming up.