2016 Year In Review: Best Year Ever! #grandbabies #FlyTheW #WhereIsJG

OK - so this post does not relate to special education. Call it a point of personal privilege.

2016 was the best year ever. There are three reasons:

1. and 2. My daughter gave birth to identical twin boys, Franklin George Ball and James Casey Ball, on May 4th. The twins and mom are doing very well. See photo below (slightly dated-taken during the world series.) They are smart, beautiful, adorable and amazing!

3. The Chicago Cubs won the world series.

Have a happy new year!

Breaking: Feds Release New Guidance on §504, Seclusioin & Resrtaints, and Charter Schools

The U.S. Department of Education released three new sets of guidance today to assist the public in understanding how the Department interprets and enforces federal civil rights laws protecting the rights of students with disabilities. These guidance documents clarify the rights of students with disabilities and the responsibilities of educational institutions in ensuring that all students have the opportunity to learn.

The three new sets of documents include Parent and Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools  by OCR, and a Dear Colleague letter (DCL) and question and answer document on the use of restraint and seclusion in public schools and when such seclusion or restraion may violate §504 and the ADA; and jointly-issued Dear Colleague Letter and question and answer documents will help update educators, parents, students, and other stakeholders to better understand the rights of students with disabilities in public charter schools under Section 504 and IDEA (issued by both OCR and OSERS).

The Parent and Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools, issued by the Department’s Office for Civil Rights (OCR), provides a broad overview of Section 504 of the Rehabilitation Act of 1973 (Section 504). The guidance describes school districts’ nondiscrimination responsibilities, including obligations to provide educational services to students with disabilities, and outlines the steps parents can take to ensure that their children secure all of the services they are entitled to receive.

Among other things, the Section 504 Parent and Educator Resource Guide:

• Defines and provides examples to illustrate the meaning of key terms used in Section 504.
• Highlights requirements of Section 504 in the area of public elementary and secondary education, including provisions related to the identification, evaluation, and placement of students with disabilities, and procedures for handling disputes and disagreements between parents and school districts.

The second guidance package released by OCR addresses the circumstances under which use of restraint or seclusion can result in discrimination against students with disabilities, in violation of Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act (ADA). The Department’s May 15, 2012, Restraint and Seclusion: Resource Document suggested best practices to prevent the use of restraint or seclusion, recommending that school districts never use physical restraint or seclusion for disciplinary purposes and never use mechanical restraint, and that trained school officials use physical restraint or seclusion only if a child’s behavior poses imminent danger of serious physical harm to self or others. The DCL and question and answer document released today offer additional information about the legal limitations on use of restraint or seclusion to assist school districts in meeting their obligations to students with disabilities.

The third guidance package released today was developed by OCR and the Office of Special Education and Rehabilitative Services (OSERS). The jointly-issued Dear Colleague Letter and question and answer documents will help update educators, parents, students, and other stakeholders to better understand the rights of students with disabilities in public charter schools under Section 504 and IDEA. These documents provide information about how to provide equal opportunity in compliance with Section 504 in key areas such as charter school recruitment, application, admission, enrollment and disenrollment, accessibility of facilities and programs, and nonacademic and extracurricular activities. The documents are responsive to the U.S. Government Accountability Office’s 2012 report, Charter Schools: Additional Federal Attention Needed to Help Protect Access for Students with Disabilities, which included the recommendation that the Department issue updated guidance on the obligations of charter schools.

The Section 504 Charter guidance:

• Explains that charter school students with disabilities (and those seeking to attend) have the same rights under Section 504 and Title II of the ADA as other public school students with disabilities.
• Details the Section 504 right to nondiscrimination in recruitment, application, and admission to charter schools.
• Clarifies that during the admission process a charter school generally may not ask a prospective student if he or she has a disability.
• Reminds charter schools, other entities, and parents that charter school students with disabilities have the right to a free appropriate public education (FAPE) under Section 504.

The IDEA Charter guidance:

• Emphasizes that children with disabilities who attend charter schools and their parents retain all rights and protections under Part B of IDEA (such as FAPE) just as they would at other public schools.
• Provides that under IDEA a charter school may not unilaterally limit the services that must be provided a particular student with a disability.
• Reminds schools that the least restrictive environment provisions require that, to the maximum extent appropriate, students with disabilities attending public schools, including public charter schools, be educated with students who are nondisabled.
• Clarifies that students with disabilities attending charter schools retain all IDEA rights and protections included in the IDEA discipline procedures.

Weekly Question!

We are running a Series on Procedural Safeguards. Which of the procedural safeguards under IDEA are most effective in protecting the educational rights of children with disabilities? #SpEdProcedures

Merry Christmas

Merry Christmas to all our readers.

First some classic Christmas music:

Also here are some fun facts related to the season from our friends at the census bureau:

This festive season, or simply the holidays, is a time for gathering and celebrating with family and friends, gift giving, reflection and thanks. To commemorate this time of year, the U.S. Census Bureaupresents the following holiday-related facts and figures from its collection of statistics.          

Rush to the Stores

$23.8 billion

The estimated retail sales by the nation’s department stores (including leased departments) in December 2015. A decrease of $0.4 billion in retail sales from December of the previous year. Source: U.S. Census Bureau, Monthly Retail Trade Survey

www.census.gov/econ/currentdata/dbsearch?program=MRTS&startYear=2014&endYear=2015&categories=4521I&dataType=SM&geoLevel=US&notAdjusted=1&submit=GET+DATA&releaseScheduleId

Note: Leased departments are separately owned businesses operated as departments or concessions of other service establishments or of retail businesses, such as a separately owned shoeshine parlor in a barbershop, or a beauty shop in a department store. Also, retail sales and inventory estimates have not been adjusted to account for seasonal or pricing variations.

14.3%

The estimated percentage of total 2015 sales for department stores (including leased departments) in December. For bookstores, the estimated percentage was 12.4 percent. Source: U.S. Census Bureau, Monthly Retail Trade Survey

www.census.gov/econ/currentdata/dbsearch?program=MRTS&startYear=2015&endYear=2015&categories=4521I&dataType=SM&geoLevel=US&notAdjusted=1&submit=GET+DATA&releaseScheduleId

www.census.gov/econ/currentdata/dbsearch?program=MRTS&startYear=2015&endYear=2015&categories=451211&dataType=SM&geoLevel=US&notAdjusted=1&submit=GET+DATA&releaseScheduleId

23.7%

The estimated increase in the end-of-month inventories by our nation’s department stores (excluding leased departments) between August and November 2015. Source: U.S. Census Bureau, Monthly Retail Trade Survey

www.census.gov/econ/currentdata/dbsearch?program=MRTS&startYear=2010&endYear=2015&categories=4521E&dataType=IM&geoLevel=US&notAdjusted=1&submit=GET+DATA&releaseScheduleId

$55.7 billion

The estimated value of retail sales by electronic shopping and mail-order houses in December 2015 — the highest estimated total for any month last year. Source: U.S. Census Bureau, Monthly Retail Trade Survey

www.census.gov/econ/currentdata/dbsearch?program=MRTS&startYear=1992&endYear=2014&categories=4541&dataType=SM&geoLevel=US&notAdjusted=1&submit=GET+DATA

http://factfinder.census.gov/bkmk/table/1.0/en/BP/2013/00A1//naics~45411

$27.1 billion

The fourth quarter 2015 after-tax profits for all retail trade corporations with assets of $50.0 million and over, up from $18.3 billion in the third quarter of 2015. Source: U.S. Census Bureau, Quarterly Financial Report  

www.census.gov/econ/currentdata/dbsearch?program=QFR&startYear=2000&endYear=2016&categories=RET&dataType=115&geoLevel=US&notAdjusted=1&submit=GET+DATA&releaseScheduleId

Christmas Tree Decorations                       

$1.1 billion

The value of U.S. imports of Christmas tree ornaments from China between January and September 2016. Imports from China led the way with 92.0 percent of the total imports of Christmas tree ornaments. Source: U.S. Census Bureau, International Trade Statistics

www.census.gov/trade

https://usatrade.census.gov

$346.0 million

The value of U.S. imports of Christmas tree lights from China between January and September 2016. Christmas tree lights imported from China accounted for 87.0 percent of the total imports for that product.

Source: U.S. Census Bureau, International Trade Statistics

www.census.gov/trade

https://usatrade.census.gov

Where Toys Are Made

560

The number of locations nationwide that primarily produced dolls, toys and games in 2014, an increase of 15 locations from 2013 (545); they employed 6,215 workers in the pay period including March 12, a decrease of 323 employees from 2013 (6,538). California led the nation with 93 establishments. Source: U.S. Census Bureau, 2014 County Business Patterns

http://factfinder.census.gov/bkmk/table/1.0/en/BP/2014/00A1/0100000US|0100000US.04000/naics~33993

Holiday Names

Some names of places associated with the holiday season consist of a dozen places named Holly, including Mount Holly, N.C. (population 14,176), and Holly Springs, Miss. (7,610). There is Snowflake, Ariz. (5,666); Santa Claus, Ind. (2,474); North Pole, Alaska (2,189); Noel, Mo. (1,824); and — if you know about reindeer — Dasher, Ga. (963), and Rudolph, Wis. (432). There is also Unity, N.H. (1,603), and Peace, N.D. (28). Source: U.S. Census Bureau, Population Estimates

www.census.gov/popest/data/cities/totals/2015/SUB-EST2015-3.html

Procedural Safeguards - The Series Part IX #state complaint #dispute resolution

This is the ninth installment in a multi-part series on procedural safeguards under the federal special education law, the Individuals With Disabilities Education Act. I work a lot in this area, so it is near and dear to my heart. Despite the importance of procedural safeguards. however, many issues in this area are misunderstood. I hope that all of the different types of special education stakeholders who read this blog find the information in this series helpful. Be sure to tell me what you think about the series.

State Complaint Procedures

Each state education agency must maintain a state complaint procedure. 34 C.F.R. §§300.151-300.153. OSEP has stated that the state complaint system is required even though Congress has not specifically provided or addressed a state complaint system in the IDEA. 71 Fed. Register No. 156 at page 46606 (August 14, 2006).

Within one year of an alleged violation of the Act, any entity may file a state complaint. 34 C.F.R. §§300.151-300.153. A ruling is required within 60 days subject to extension for exceptional circumstances or an agreement to mediate. 34 C.F.R. §300.152. Only agreement, and not consent, is required to extend the 60 day time limit for processing complaints. 71 Fed. Register No. 156 at page 46604 (August 14, 2006). Here is an analysis by the Regional Resource Centers concerning how the exceptional circumstances exception should be applied. 

Any organization or individual, including one from another State, may file a signed written State complaint that meets the requirements in 34 CFR §300.153. 34 CFR §300.151(a).

The state complaint system may be used to address problems allegedly involving a group of students.  OSEP describes the state complaint system as an important tool for dealing with systemic issues.  Independent Sch Dist No 281 v Minnesota Dept of Educ 48 IDELR 222 (Minn Ct App 2007) See, Letter to Douglas 35 IDELR 278 (OSEP 4/19/1). 

Where a state complaint and a due process hearing are requested on the same topic, the complaint investigator must set aside the portion of the complaint being addressed by due process until the hearing officer issues a decision. 34 C.F.R. §300.152(c). 71 Fed. Register No. 156 at page 46606 (August 14, 2006). 

Where a state complaint investigator finds that IDEA has been violated, a corrective action is ordered. The relief that may be awarded includes compensatory education and reimbursement. 34 C.F.R. § 300.151(b). The purpose of this change to the federal regulations in 2006 was to make it clear that states have broad flexibility in awarding an appropriate remedy in resolving state complaints. 71 Fed. Register No. 156 at page 46602 (August 14, 2006). 

When a state has finished processing a state complaint, a party who disagrees with the result may file a due process hearing complaint on the same issue if the statute of limitations has not passed. 71 Fed. Register No. 156 at page 46607 (August 14, 2006).

Here is the OSEP Topic Brief on State Complaint Procedures; See also,  Memo to Chief Sch Officers Re Dispute Resolution Procedures Under Part B of IDEA 61 IDELR. 232 (OSEP 7/23/13) (Q and A document with a section on state complaints.)

Weekly Question!

We are running a Series on Procedural Safeguards. Which of the procedural safeguards under IDEA are most effective in protecting the educational rights of children with disabilities? #SpEdProcedures

Feds Announce New IDEA Regulations Concerning Disproportionality #disproportionality #discipline

The U.S. Department of Education yesterday announced new final regulations under Part B of the Individuals with Disabilities Education Act (IDEA), aimed at promoting equity by targeting widespread disparities in the treatment of students of color with disabilities. The regulations will address a number of issues related to significant disproportionality in the identification, placement, and discipline of students with disabilities based on race or ethnicity. The Department is also releasing a new Dear Colleague Letter addressing racial discrimination.

"Children with disabilities are often disproportionately and unfairly suspended and expelled from school and educated in classrooms separate from their peers," said U.S. Secretary of Education John B. King Jr. "Children of color with disabilities are overrepresented within the special education population, and the contrast in how frequently they are disciplined is even starker."

King added, "Today's new regulations and supporting documents provide the necessary guidance and support to school districts and build upon the work from public education advocates and local leaders who believe, like we do, that we need to address racial and ethnic disparities in special education. This important step forward is about ensuring the right services get to the right students in the right way."

Some of the highlights of the new regulations include:

A Standard Approach

The final regulations establish a standard approach that States must use in determining whether significant disproportionality based on race or ethnicity is occurring in the state and in its districts. In 2013, the Government Accountability Office (GAO) issued a report finding that, because states currently use a wide variety of methodologies for examining their districts, few states take action to address significant disproportionality; in fact, as the GAO found, only two to three percent of all districts nationwide are identified as having significant disproportionality, and some states' methodologies for identifying districts for disproportionality were constructed in such a way that the GAO found districts would likely never be identified. Accordingly, GAO recommended that the Department require that all states adopt a standard approach to identify racial and ethnic disparities. With these final regulations, all states will use the same methodology, which will allow for more accurate comparisons within and across states.

Focusing on Discipline

In addition to requiring a standard methodology, the regulations shine a spotlight on disparities in the discipline of students with disabilities on the basis of race or ethnicity by requiring states to examine districts for significant disproportionality in their disciplinary practices. Specifically, the regulations clarify that States must address significant disproportionality in the incidence, duration, and type of disciplinary actions, including suspensions and expulsions, using the same statutory remedies required to address significant disproportionality in the identification and placement of children with disabilities.

Addressing the Root Causes of Disproportionality

In order to eliminate the racial and ethnic disparities that are the focus of these regulations, districts must identify and address the root causes of significant disproportionality. Accordingly, the final regulations clarify requirements for the review and revision of policies, practices, and procedures when significant disproportionality is found. Districts will be required to identify and address the factors contributing to significant disproportionality as part of comprehensive, coordinated early intervening services (CEIS). In addition, new flexibilities in the use of CEIS will further help districts identified with large disparities in addressing the underlying causes of the disparity.

You can read an unofficial copy of the 521 pages of new regs here. A corresponding Dear Colleague Letter is available here.

Weekly Question!

We are running a Series on Procedural Safeguards. Which of the procedural safeguards under IDEA are most effective in protecting the educational rights of children with disabilities? #SpEdProcedures

Procedural Safeguards - The Series Part VIII #mediation

This is the eighth installment in a multi-part series on procedural safeguards under the federal special education law, the Individuals With Disabilities Education Act. I work a lot in this area, so it is near and dear to my heart. Despite the importance of procedural safeguards. however, many issues in this area are misunderstood. I hope that all of the different types of special education stakeholders who read this blog find the information in this series helpful. In this post we examine mediation.

Mediation

Mediation is a highly flexible way to resolve disagreements between school systems and parents of children with disabilities. An impartial person, called a mediator, helps parents and school district personnel to communicate more effectively and develop a written document that contains the details of their agreement. The mediator has been trained in effective mediation techniques.

Participation in mediation is completely voluntary; parents and school districts only have to participate if they choose to. The mediation process is also confidential; discussions cannot be used in any future due process hearing or court proceeding. 34 CFR § 300.506(b)(8); 71 Fed. Register No. 156 at pages 46695-96 (August 14, 2006).  JD by Davis v. Kanawha County Bd of Educ 571 F.3d 381, 52 IDELR 182 (4th Cir. 7/9/2009)

IDEA requires state education agencies to provide a mediation system at no cost to the parties; mediation is free for both parents and school districts. Mediation must be available at any point in the process, including disputes arising before a due process complaint has been filed. IDEA §615(e). 

A mediation agreement must state that mediation discussions are confidential and may not be used in a subsequent due process hearing or court proceeding. § 615(e)(2)(F)(i).

 IDEA specifically provides that mediation agreements are enforceable in court. § 615(e)(2)(F)(iii). OSEP has noted that nothing prevents parties to a mediation from agreeing to have the mediator facilitate an IEP team meeting. 71 Fed. Register No. 156 at page 46695 (August 14, 2006).

Mediators must be selected on a random, rotational or other impartial basis, and one such impartial basis would be agreement by the parties. 71 Fed. Register No. 156 at page 46695 (August 14, 2006). Because mediators are not selected by the parents, states are not required to provide a list of their mediators or their qualifications to the parents or the public in general. 71 Fed. Register No. 156 at page 46695 (August 14, 2006). 

ADDITIONAL RESOURCES for MEDIATORS: In addition to the general IDEA resources, mediators should frequently visit the CADRE website. The Consortium for Appropriate Dispute Resolution in Special Education is an OSEP funded group that encourages mediation, IEP facilitation and other means of special education dispute resolution that are less formal and legalistic than due process hearings. Their website is loaded with helpful articles, materials and other information; See also,  Memo to Chief Sch Officers Re Dispute Resolution Procedures Under Part B of IDEA 61 IDELR. 232 (OSEP 7/23/13) (Q and A document with a section on mediation.)

Supreme Court Oral Argument Scheduled in Special Ed Case #SCOTUS #Rowley Standard

The United States Supreme Court has scheduled oral argument for January 11, 2016 at 10:00 am for the special education case Endrew F. v. Douglas County Sch Dist, Case # 15-827. 

This case gets to the heart of special education law. Does FAPE require an IEP to be reasonably calculated to provide some educational benefit as the Supremes have previously said or does FAPE require an IEP that is designed to provide meaningful educational benefit. Or maybe the court will state that there is really no difference between the two standards. Remember that there are only eight justices as of now. If the decision is 4-4, it will have no precedential value.

You can read our previous posts about this case here, here, and here.  You can read the briefs of the parties and some of the briefs of amici at the case page on the SCOTUS blog

CADRE Webinar: Trends in Dispute Resolution #dispute resolution #due process complaint

CADRE offered a webinar today concerning special education dispute resolution under IDEA for the last eleven years. The following are some of the trends highlighted in the webinar.

Trends in the Use of Mandated IDEA Dispute Resolution Processes

 Written State Complaints and Complaint Reports Issued have remained relatively steady over the past 7 years. Activity is broad-based across states, as compared to Due Process Complaint activity. 

 Mediations Requested, Mediations Held, and Mediation Agreements have increased during the last 9 years, due to a nearly 20% increase in due process-related mediation. The national average mediation agreement rate is 69%. 

 Due Process Complaints filed continue to decline following a slight uptick in 2013-14 that was attributable to activity in 2 states. Overall, 7 states account for 80% of Due Process Complaints filed and 5 states account for 90% of Due Process Hearings Held. 

 Resolution Meetings Held and Resolution Meeting Agreements have both declined since 2006-07, with the agreement rate dropping to 19% in 2014-15 from a peak of 30% in 2009-10. 

 Most (about 85%) Due Process Complaints filed each year are withdrawn, dismissed, or resolved without a hearing (about 65%), or pending at the end of the school year (about 20%). 

Support for More Collaborative Dispute Resolution Approaches

 Based on CADRE’s examination of state practices, we believe that the use of collaborative approaches can lead to a decreased use of formal dispute resolution processes and may foster better school-family relationships. 

o Some states that offer facilitators for Resolution Meetings have agreement rates that are higher than the national average, reinforcing the belief that third party neutrals may improve the likelihood that potentially contentious meetings end in agreement. 

o Some states that offer facilitators for IEP meetings have experienced a decrease in the use of formal dispute resolution processes available under IDEA. 

 States continue to make investments in early conflict resolution activities that are not required by the IDEA, such as local capacity building, stakeholder training, ombudspersons, advisory opinions, stakeholder councils, and other innovative approaches. 

 43 states and D.C. currently provide IEP facilitation, or are developing or exploring its use: 

o 36 of these currently offer IEP facilitation statewide or are piloting programs in select school districts (compared to 9 in 2005, and 29 in 2015). 

Here is a one page summary of the findings by CADRE. The CADRE website also has the powerpoint used during the webinar.

Weekly Question!

We are running a Series on Procedural Safeguards. Which of the procedural safeguards under IDEA are most effective in protecting the educational rights of children with disabilities? #SpEdProcedures