Special Education Hearing Officer Qualifications - Part II

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In the first part of this series last week, I discussed the options that parties have when they have a dispute concerning the educational program, etc for a child with a disability. The options are numerous and sometimes confusing, so I encourage you to read that post before the others in this series. Today, I'm going to discuss the new (since 2005) mandatory qualifications for hearing officers. You can find a searchable version of the he IDEA statute and the federal regs at the U. S Department of Education "Building the Legacy" website, which also has a link on the lefthand side of this blog. In future posts I will explore my ideas regarding the training of special ed hearing officers and maybe their care and feeding. The final post in the series will include some thoughts on qualities that make a good hearing officer. As I said last week, please note that I have a number of potential biases here. First, I am a hearing officer and/or a mediator for four states. Second, I do a lot of special ed law consulting for states. Third, I have conducted hearing officer trainings at national conferences, at regional trainings and for a number of individual states. I have trained hearing officers from every state, and I love training hearing officers. I have definite opinions here and my business interests could color my thinking. So please bear that disclosure in mind.

Before the 2004 reauthorization changes took effect (on July 1, 2005), the only qualification for a due process hearing officer under the Individuals with Disabilities Education Act was that the hearing officer not be an employee of the State Education Department or the school district. (old) § 615 (f)(3); and that he not have a personal or professional interest that would conflict with objectivity, 34 C.F.R. Section 300.508(a)(2)(old regs). The reauthorization added three more qualifications for due process hearing officers. The following new qualities were required for a special ed hearing officer: the knowledge and ability to conduct hearings in accordance with standard legal practice; the knowledge and ability to write decisions in accordance with standard legal practice; knowledge of and ability to understand special education law. Section 615 (f)(3)(A)(ii)-(iv); 34 C.F.R. § 300.511(c).

So what is your opinion, are these qualifications enough to be a good hearing officer? Is more needed? On the other hand, would we be lucky to find a trial court judge on any given day who met these criteria? What do you say?

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Seclusion & Restraints: Big Decision by Ninth Circuit

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The United States Court of Appeals for the Ninth Circuit handed down a decision in the case of Payne v. Peninsula School District on March 18th. This case involves seclusion and restraints- the current hot button issue in special education law. The Court required exhaustion of administrative remedies, which means that the parents had to first file a due process hearing and get an administrative decision before filing in court. You can read the entire opinion and the dissent here.

I will agree that the court's reasoning is a little tricky, but the conclusion is solid. When an injury involves educational harm to a student with a disability, it makes sense that the provisions of IDEA providing a right to a due process hearing should be utilized first before turning to court. I think that given the white hot public awareness of the abuse of seclusion and restraints, these cases will be on the rise.

Special ed hearing officers should be prepared. Of course, the issue before the hearing officer will not be damages to redress any physical injuries. That is still the province of the courts in places where such damages are available. The hearing officer can only rule on whether there is a violation of IDEA, the special education statute, and what remedies are appropriate to redress the educational harm. But given the exhaustion of administrative remedies ruling of the Payne court, and numerous similar decisions by other courts, hearing officers should be prepared for lots of seclusion and restraints abuse types of cases in the near future.

My crystal ball has been wrong before, but I think this prediction will come true.

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Why Can't Johnny Read? NAEP Report Shows No Reading Progress

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The nation's report card, formally called the National Assessment of Educational Progress, for reading was released yesterday. The results are grim. The 2009 reading scores for eighth graders are one point higher (out of 500 points) than the scores for 2007 for eighth graders. For fourth graders the scores were exactly the same in 2009 as they were in 2007. Even more depressing is the fact that since the NAEP testing began in 1992, these scores of both fourth and eight graders have gone up four points each (remember this is 4 out of 500). A number of resources are available on the NAEP website. Starting at this map, you can check out your state profiles. You can compare data across states here. Here is the entire report.

OK, this is not really a special ed issue, except that all kids need to be able to read. So my question, and I don't think that this is out of place, is after all these years of reforms, and all the new peer-reviewed, data-driven, scientific based reading methodologies, why can't Johnny read?

Any theories?

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Special Education Hearing Officer Qualifications: Part I

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What makes a good special education hearing officer? It amazes me how widely people differ in their answers to this question.

This is the first in a series of posts on the topic of hearing officer qualifications. At the outset, please note that I have a number of potential biases here. First, I am a hearing officer and/or a mediator for four states. Second, I do a lot of special ed law consulting for states. Third, I have conducted hearing officer trainings at national conferences, at regional trainings and for a number of individual states. I have trained hearing officers from every state. I have definite opinions here and my business interests could color my thinking. So please bear that disclosure in mind.

Before we get to the notion of qualifications, though, let's back up and review what a "due process" hearing, as we call them in special education, really is. In special ed law, the party who disagrees, usually but not always the parent, has four options which may or may not be used in combination. States must make mediation available for such disputes. Since the 2004 amendments, mediation must be available at any point in the process. My view is that mediation is better suited to repairing the long-term relationship of the parties than the other options if the state properly trains, supports and compensates the mediators. The second option is a state complaint in which any entity (including an advocacy group or an out of state non-profit or a parent) can allege a violation of the Act. The state department of education personnel investigate the claim. These procedures vary widely and the quality of the investigations also varies. If a violation is found, the state may impose corrective actions, which now include the possibility of compensatory ed and reimbursement. (NOTE: state complaints are not specifically mentioned in IDEA. Although there are some references to "complaint" which could be construed as the state complaint procedures, this is not very clear.)

The third option is a due process hearing. This is an administrative hearing which closely resembles a trial in court, except that the rules of evidence are more relaxed and there is no jury. A due process hearing officer (it could be me) presides over the hearing, determines procedures, and eventually issues a decision. Encompassed within the due process hearing is the fourth option- the resolution session. When parents file a due process complaint, the school district must convene a resolution meeting within 15 days unless the parties waive the meeting in writing or agree to mediation instead. If the parties settle the dispute and sign an agreement, the agreement is binding except that either party may rescind the agreement within three business days. If the matter does not settle within 30 days, the case may proceed to hearing. As readers of this blog know, I have certain issues with the resolution session. So far, however, resolution sessions are reducing the number of hearings.

Under IDEA, a due process hearing may be requested with respect to any matter relating to the identification, evaluation or placement of the child or to the provision of a free and appropriate public education. IDEA § 615(b)(6).

Due process decisions, and in most jurisdictions, state complaint rulings, may be appealed to federal or state court. Most courts require parties to exhaust their administrative remedies by pursuing a due process hearing before filing a complaint in court, subject to certain exceptions. For more information on dispute resolution in special education see the CADRE website which is also listed as Special Education - Dispute Resolution under helpful links on the left side of the blog.

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OCR to Collect Statistical Data RE: Seclusion & Restraints as well as Discipline of Students With Disabilities

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The Office of Civil Rights, like OSEP a division of the Office of Special Education & Rehabilitative Services, of the federal Department of Education, has announced that it will begin collecting statistical data about more than just harassment. OCR will now determine the frequency of the use of seclusion and restraints as well as the use of discipline for all students. The data will be disaggregated (statistics-talk for broken down by race, ethnicity, sex, disability and limited English proficiency. Here is the official OCR press release. OCR also has developed a new website where the data may be reviewed.

The addition of seclusion and restraints is not surprising. This is the current hot button issue in special education law, as it should be. The horror stories recently exposed that lead to the new legislation were not acceptable. Look for more regulation in this area.

The part that surprised me is the inclusion of student discipline stats in this data collection. This is potentially a huge development. You may remember that last August, I ran a post about a study that concluded that kids with disabilities are singled out for corporal punishment. Could this be what prompted OCR to look at discipline statistics? If so, it could be a signal that the OCR leadership considers districts who punish kids with disabilities disproportionately to be guilty of a civil rights violation? This would be news.

What do you think should OCR study or pursue the alleged over-disciplining of kids with disabilities as well as the abuse of seclusion and restraints? Stay tuned this could get very interesting.

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How Does Obama's Blueprint for NCLB Affect Kids with Disabilities?

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The Obama Administration has released its blueprint for reauthorization of the Elementary and Secondary Education Act, better known as No Child left Behind. It is important to remember that this is just the start. Congress gets to beat the proposal like a pinata and then the President must sign it before it becomes law. Here is a Washington Post article on the President's education plan. This link will give you the entire 45 page blueprint if you'd like to read it yourself.

The proposal has a number of provisions that directly affect students with disabilities. The blueprint calls for more inclusion, that is a goal of educating as many children with disabilities in the general ed classroom as possible. The plan also calls for more accurate tests for special ed kids. Here is a summary of the blueprint by the Disability Scoop blog.

The influential Council for Exceptional Children has praised the inclusion aspects of the plan, but they criticize the lack of details. Here is their position.

So what do you think of the blueprint? I know we still have a way to go, but be ready to contact your congressional reps after you contemplate which tweaks we should make to NCLB.

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The Perils of The Internets: Boycott Canadian Internet Pharmacy?

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OK here is the downside of the new technologies: the Ning special education law group, which I founded in conjunction with this blog, has been overtaken by some jerks who sell drugs. They have posted a gazillion ads on the social network's discussion boards promoting the Canadian Internet Pharmacy.

I don't know why they have targeted our little group. Really how many special education law junkies are jonseing for a fix? But this appears to be one of the dangers of allowing anyone to join these social groups. I'm not sure if it is possible to stop the abuse. I really want these groups to be open to all and to permit free expression and exchange of ideas. But I hate that the Ning group has become a billboard for unregulated pharmaceuticals.

I have suspended the nearly 1,000 new "members" for spamming up the website, but that hardly seems like enough. Would you be up for a boycott of the offending Canadian Internet Pharmacy? Is anybody with me?

Speaking of the perils of the internet, our subscribers recently received a rerun. For some reason, every subscriber received in the middle of March another copy of Part VIII of my interview with Alexa Posny that was posted in mid-January. I do not think that I sent it, but then I do sometimes push the wrong button. I am sorry about any inconvenience.

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Report: Pittsburgh Schools Identifying Too Many Students as Eligible for Special Education

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A recent report commissioned by the Pittsburgh Public Schools concludes that it identifies too many students as eligible for special education. The report was conducted by evaluators of the Council of The Great City Schools, an association of very large school districts. A news article on the report by the Pittsburgh Post-Gazette is available here. You can read the entire report here.

The report authors noted that "...that too many teachers and staff members were using special education as an escape hatch when they did not know what else to do with students who were experiencing learning or behavioral problems..." The evaluators found that 19.2% of Pittsburgh students are identified as eligible for special education. This contrasts with a rate in the country as a whole of 12.1%.

One category of eligibility was noted in particular, emotional disturbance. 16.9% of Pittsburgh students were found eligible under this category. Nationwide the rate is 7.4%. Interestingly, nearly a third of the students referred for ED evaluations were from just seven schools.

It is interesting first of all that the Pittsburgh school board paid a lot of money to obtain this study. That has to be a good sign. Now that the problems are identified, the question is how they will be addressed.

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Seclusion & Restraints Bill Passes House of Representatives

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The seclusion and restraints bill, HR 4247, now known as the Keeping All Students Safe Act, passed the U. S. House of representatives by a vote of 262 - 153. Here is an account by the Policy Insider blog of the Council for Exceptional Children.

The bill now moves to the senate where it is sponsored by Senator Dodd and is called S.2860. The bill would make seclusion and restraints a last resort and would require training on the techniques and parental notification. There is also a competitive grant program established to encourage school-wide positive behavior supports. Here is a summary of the bill. Here is Sen. Dodd's description. This site has the full text of the bill.

Call or write your U.S. senators and tell them what you think of this bill. This official contact tool
of the U. S. senate may be useful in that regard.

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Poll Nearly Deadlocked: What Would You Change About IDEA?

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Our ongoing poll is turning out to be a tight race. The question is what should be changed about IDEA. Currently there is only a five vote difference between the top five choices. The poll is on the lefthand side of the blog. Be sure to make your voice heard. Vote!

Special education law is a cycle of ever-changing requirements. Reauthorization of IDEA is now overdue. For relative 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 understand that the economy and health care might push reauthorization to the back burner for 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 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 meaningful 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) Forest Grove (enrollment in public school as prerequisite to reimbursement for a private placement.)

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 plan 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. Heck, we even were granted a lenghty exclusive interview with the new Assistant Secretary of Education.

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.

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How Widespread is Discrimination Against Kids on the Basis of Disability?

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I understand that Arne Duncan, the Secretary of Education is going to announce today that the Office of Civil Rights in his Department is about to step up the heat in diminishing discrimination in the schools. At the foot of the Edmund Pettus Bridge in Selma, Alabama, the scene of one of the bloodiest battled in the Civil Rights Movement, Duncan was set to announce that OCR will intensify its efforts to bring enforcement actions against discrimination in schools based on race, gender and disability. Here is a news account from the New York Times. According to the Washington Post, Duncan has been vocal in criticizing OCR under the previous administration for being lax in such enforcement actions.


In terms of kids with disabilities- what do you think? How widespread is discrimination? Has OCR been somewhat lax in enforcing the law prohibiting discrimination against children with disabilities?

There has been a lot in the news lately concerning the misuse of seclusion and restraints, especially the incidents involving children with disabilities that led to the pending legislation. There has also been a lot of cases in the last few years involving bullying and harassment of school kids, including kids with disabilities. I believe that we are seeing the beginning of a merging of what I had previously felt were two hot button issues.

What are your thoughts?

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Should Private Schools Be Covered by the New Seclusion & Restraint Law?

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The Council For American Private Education, an umbrella group representing a large percentage of private schools in the United States, has written a letter to Congress asking that private schools be exempted from HR 4247, the new Preventing Harmful Restraint and Seclusion in Schools Act.In response, the group called the Alliance to Prevent Restraint and Aversive Intervention and Seclusion, an umbrella group of groups that advocate for parents and children with disabilities, issued their own letter to Congress opposing the CAPE letter. Here is an analysis of the controversy by the Disability Scoop blog.

We have run a number of posts about this issue. I believe that seclusion and restraints is the hot button issue of special education law for the current decade. For example, this is a prior post from this blog with a number of links to resources about the current house bill.

The Senate has not yet taken up this bill. Of course the Senate was recently held hostage by the Senator from Kentucky. (This dates me, but I remember Jim Bunning as a pitcher in the major leagues. It is unfortunate that he will now be remembered as the great enemy of the unemployed rather than the Hall of Fame hurler that impressed so many of us. ) In any event, the Senate is currently tied in knots on other issues. It may be a while before education issues surface there.

But in addition to the pending bipartisan House bill, a larger issue is whether IDEA reauthorization should deal more with behavior issues. IDEA currently only requires positive behavior supports after a proposed disciplinary change of placement is blocked by a finding that a manifestation of the child's disability. There is also a more general and somewhat vague section in the IEP development section that requires the IEP team to consider appropriate strategies if the student's behaviors impede the learning of the student or others. For citations, etc, see this previous post.

Many people think that these provisions need to be beefed up. What do you think?

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How much Does the Federal Government Spend on Special Education

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The Government Accountability Office has released a report on federal education spending. You can review the entire report here. Those of us who crunch numbers enjoy these sorts of reports.

Although it is difficult to decipher in parts because special ed funds get disbursed through different programs and the federal budget is a big mess. Nonetheless, these reports are instructive. The main special ed program, the grants to states, makes up about 19% of the total federal education spending. The total of this program for Fiscal Years 2006, 2007 and 2008 was 32.3 billion dollars. This is another one of those reports that special ed professionals should save a copy of. You never know when you may be requested to quote stats!

Any thoughts about these numbers? Do they sound about right? Take a look at the report for all education programs and what we spend on them.

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Seclusion and Restraints Study Released by Department of Education

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The United States Department of Education has released a study detailing the policies and laws of the individual states concerning the use of seclusion and restraints. You may read the entire study here. A summary of the report may be reviewed here.

More information about the history of the current hot button issue in special education law, including the shocking GAO report and the subsequent congressional hearings and the pending legislation on seclusion and restraints may be found on the Department's seclusion and restraints page.

The results vary dramatically by state, but many states have no laws regulating seclusion and restraints, while others have very little in terms of policy guidance. Here is an analysis by the disability scoop blog.

Be sure to review the information for your state. This controversy will not go away soon, and I don't think that it should.

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