Tuesday, August 30, 2016

Breaking: Department of Justice Sues State of Georgia For Alleged Segregation of Students With Disabilities #Inclusion

The U.S. Department of Justice has filed a lawsuit  against the state of Georgia alleging that it unnecessarily segregates students with disabilities. The suit relates to how students with behavior-related disabilities get mental health and therapeutic educational services through the Georgia Network for Educational and Therapeutic Support Program  Justice alleges that these services weren't provided in accordance with the integration mandate of the Americans with Disabilities Act.

You can read the complaint here.

Monday, August 29, 2016

New 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

Saturday, August 27, 2016

Procedural Safeguards - The Series: Part III #SpEdProcedures

This is the third 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. Please be sure to tell me what you think about the series.

Today's post concerns parental consent.

Parental Consent
Where the parent does not provide consent for the initial evaluation, the school district may invoke procedural safeguards, such as mediation or a due process hearing, to pursue such evaluation. Section 614 (a)(1)(D)(ii)(I). If the parent refuses to consent to services for the child, however, the school district shall not provide special education and related services to the child and the district may not invoke mediation or the due process hearing system. Section 614 (a)(1)(D)(ii)(II). Where the parent refuses to consent to services or  fails to respond to a request to provide such services, the school district is relieved of the obligation to provide FAPE to the student and is not required to convene an IEP team meeting or to develop an IEP for the child. Section 614 (a)(1)(D)(ii)(III)(aa) and (bb).

OSEP has clarified that a school district must make reasonable efforts to obtain the informed parental consent for an initial evaluation and document these efforts in the same manner as documenting efforts to obtain parent participation in IEP team meetings. 71 Fed. Register No. 156 at page 46631 (August 14, 2006). A school district may, but is not required to, utilize the procedural safeguards to obtain parental consent for an evaluation although OSEP believes the override procedures should be used only in rare circumstances. 71 Fed. Register No. 156 at page 46632 (August 14, 2006).
The reasonable efforts required of a school district do not require the convening of an IEP team meeting, although a school district may convene an IEP team meeting in order to obtain informed consent. 71 Fed. Register No. 156 at page 46634 (August 14, 2006).
Where a child is home schooled or placed by his parents in a private school at their own expense, the school district may not use the procedural safeguards to attempt an override of lack of consent. 34 CFR Section 300.300(d)(4); 71 Fed. Register No. 156 at page 46635 (August 14, 2006).

REVOCATION OF CONSENT

The federal Office of Special Education Programs made several changes to the federal IDEA regulations effective on December 31, 2008. The most significant change involved parental revocation of consent. 34 C.F.R. Sections 300.300 and 300.9 were amended to provide that parents are now permitted to revoke in writing their consent for the continued provision of special education and related services after having received services. School districts are no longer able to use mediation or a due process hearing to seek to override or challenge the parents’ lack of consent. School districts will not be deemed to be in violation of the ACT for denial of FAPE where the parent has revoked consent to the continued provision of special education and related services

Where a parent revokes consent, mediation may not be used to ensure that the revocation of consent was informed. Letter to Gerl 59 IDELR 200 (OSEP 6/6/2012)
 Concerning the situation where a parent revokes consent and the student then gets disciplined, OSEP said the following in a June, 2009 Q & A document:
Question A-3: Do the discipline provisions apply if the child violates the school’s code of student conduct after a parent revokes consent for special education and related services under §300.300(b)?
Answer: No. Under §§ 300.9 and 300.300, parents are permitted to unilaterally withdraw their children from further receipt of special education and related services by revoking their consent for the continued provision of special education and related services to their children. When a parent revokes consent for special education and related services under §300.300(b), the parent has refused services as described in §300.534(c)(1)(ii); therefore, the public agency is not deemed to have knowledge that the child is a child with a disability and the child will be subject to the same disciplinary procedures and timelines applicable to general education students and not entitled to IDEA’s discipline protections. It is expected that parents will take into account the possible consequences under the discipline procedures before revoking consent for the provision of special education and related services. 73 Federal Register 73012-73013.

You can find the entire Q& A  document here

Thursday, August 25, 2016

Breaking: Feds Settle Suit Against South Carolina Department of Education re IDEA Funding #IDEA$

The U.S. Department of Education (Department) announced today that it has reached an agreement with the South Carolina Department of Education, settling the litigation involving the Department’s claim of South Carolina’s failure to maintain state financial support for special education and related services. This settlement will bolster the Department’s commitment to ensure compliance with the Individuals with Disabilities Education Act, maintain funding levels in South Carolina, and direct additional funds toward improving results for children with disabilities.
The federal Office of Special Education and Rehabilitative Services issued a proposed determination that South Carolina had a shortfall in fiscal support for special education and related services for state fiscal year 2010 of $51,336,578 and also noted potential shortfalls in fiscal years 2011, 2012 and 2013. SCDE requested a hearing regarding that proposed determination, and the issue was not resolved until this settlement.
Under IDEA's maintenance of effort provision, a state must make available at least the same amount of financial support for special education and related services for children with disabilities each year as it did in the prior year. The consequence for failing to maintain financial support is a mandatory reduction in a future year’s IDEA allocation by the amount of the shortfall.
Some provisions of the agreement include the following:
  • The Department has agreed not to reduce SCDE’s IDEA grant in any future year based on failure to maintain financial support in state fiscal years 2010, 2011, 2012 and 2013.
  • In return, SCDE has agreed to appropriate additional state funds, above the amount required to maintain financial support under the IDEA, for special education and related services in the amount of $51,336,578.
  • These funds will be used by SCDE and its local educational agencies to implement programs and initiatives focusing on increasing reading proficiency for children with disabilities.
  • The funds will be appropriated over a period of not more than three years, and must be expended within four years.
  • The additional state funds will not count in calculations used to determine how much the state must make available to meet the maintenance of financial support requirement in subsequent years.
You may review the entire settlement agreement here.

Monday, August 22, 2016

Weekly Question!

What questions about special education should we ask the major party candidates for President? #Education Politics

Thursday, August 18, 2016

Procedural Safeguards The Series - Part II #SpEdProcedures

This is the second 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.
 
Notice of Procedural Safeguards-
A copy of the procedural safeguards of the notice must be provided to the parents only one time per year, except that it must also be given upon initial referral or parental request for evaluation, upon the first occurrence of filing of a due process complaint, and upon request by a parent.  Section 615(d)(1)(A).  The regulations clarify that the notice must also be provided upon the parents’ filing of the first state complaint  and on the date on which the decision to take disciplinary action is made. 34 CFR Section 300.504(a); 71 Fed. Register No. 156 at page 46692 (August 14, 2006).  The regulations also make it clear that a parent will receive more than one copy of the notice of procedural safeguards if they also request an evaluation or file a state complaint or due process hearing or they request a copy.  34 CFR Section 300.504(a); 71 Fed. Register No. 156 at page 46692 (August 14, 2006).  The local educational agency may also place a copy of the procedural safeguards notice on their website if they have one. Section 615(d)(1)(B).  OSEP has noted that publishing the notice on its website does not relieve the LEA of the responsibility of offering the parent a printed copy of the notice unless the parent evidences a clear preference to obtain the information electronically 71 Fed. Register No. 156 at page 46693 (August 14, 2006).
The procedural safeguards notice must include a full explanation of procedural safeguards, written in the native language of the parents (unless clearly not feasible) and written in an easily understandable manner, relating to the following:
`(A) independent educational evaluation;
`(B) prior written notice;
`(C) parental consent;
`(D) access to educational records;
`(E) the opportunity to present and resolve complaints, including--
`(i) the time period in which to make a complaint;
`(ii) the opportunity for the agency to resolve the complaint; and
`(iii) the availability of mediation;
`(F) the child's placement during pendency of due process proceedings;
`(G) procedures for students who are subject to placement in an interim alternative educational setting;
`(H) requirements for unilateral placement by parents of children in private schools at public expense;
`(I) due process hearings, including requirements for disclosure of evaluation results and recommendations;
`(J) State-level appeals (if applicable in that State);
`(K) civil actions, including the time period in which to file such actions; and
`(L) attorneys' fees.
                            Section 615 (d)(2).
OSEP has published a model Notice of Procedural Safeguards in order to reduce confusion about what must be included in the notice.  71 Fed. Register No. 156 at page 46693 (August 14, 2006). The model notice is 44 pages long.   The model notice form is available on the website: Although OSEP frowns upon dual filings of state complaints and due process hearings for the same incident, the regulations clarify that the notice of procedural safeguards must explain both procedures and the differences between the two.  34 CFR Section 300.504(c); 71 Fed. Register No. 156 at page 46693 (August 14, 2006).  At a session I attended at a conference of ACRES ( the rural special education association) I learned that when put through software to determine the reading level necessary to read the model procedural safeguards, the researchers found a graduate school reading level was needed to comprehend these safeguards. So much for "easily understandable," no?
See also in general:  Questions and Answers on Procedural Safeguards and Due Process Procedures 52 IDELR 266 (OSERS 6/1/2009) and the NICHCY training module http://nichcy.org/laws/idea/legacy/module17.

Monday, August 15, 2016

Weekly Question!

What questions about special education should we ask the major party candidates for President? #Education Politics

Tuesday, August 9, 2016

BREAKING: GAO Report Finds That DOE Has Not Evaluated NCLB Waivers #GAO #ESEA

The Government Accountability Office has issued a report finding that the federal Department of Education  has not yet evaluated its process to review, approve, and monitor the flexibility waivers given to states under NCLB or incorporated any relevant lessons learned into its plans for implementing the December 2015 reauthorization of the ESEA.  As the Department begins to implement the new law, it has an opportunity to learn from its experiences with the Flexibility initiative and incorporate any applicable lessons learned. Absent such an evaluation, Education may miss opportunities to better oversee state implementation of the new law.

Of the 43 states with Flexibility waivers, the GAO identified 12 states that faced multiple significant challenges throughout the initiative, affecting their ability to fully implement their waivers: Alabama, Arizona, Florida, Louisiana, Massachusetts, Nevada, New Hampshire, Ohio, Oklahoma, Pennsylvania, South Dakota, and Texas. Many of these states were particularly challenged to develop systems for overseeing local school districts and schools. Specifically, during Part B monitoring, Education found that 8 of the 12 states the GAO  identified as facing multiple challenges did not meet expectations regarding systems for monitoring local implementation of their Flexibility waivers. According to Education officials, many states were not implementing monitoring activities consistent with their approved Flexibility waivers and the key Flexibility principles

You can review the Highlights of the report here. You can read the entire 30 page report here.

Monday, August 8, 2016

Weekly Question!

What questions about special education should we ask the major party candidates for President? #Education Politics

Thursday, August 4, 2016

Breaking: Feds Issue Guidance on Positive Behavior Supports for Students With Disabilities #Positive BehaviorSupports

The U.S. Department of Education’s Office of Special Education and Rehabilitative Services (OSERS) today issued guidance in the form of a Dear Colleague Letter (DCL) that emphasizes the requirement that schools provide positive behavioral supports to students with disabilities who need them. It also clarifies that the repeated use of disciplinary actions may suggest that children with disabilities may not be receiving appropriate behavioral interventions and supports. When schools fail to consider and provide for needed behavioral supports through the Individualized Education Program (IEP), it is likely to result in children not receiving the free appropriate public education to which they are entitled under federal law.

Data indicates students with disabilities are disciplined at far higher rates than their non-disabled peers. The DCL includes two resource documents to assist teachers and school leaders. The Department is providing supports to assist teachers with classroom management strategies and assist schools in implementing school wide behavioral efforts to create safe and effective environments where all students are given an opportunity to positively engage in their education.

You can read the Dear Colleague Letter here. A Summary for stakeholders is available here. The press release is available here.

Monday, August 1, 2016

Weekly Question!

What questions about special education should we ask the major party candidates for President? #Education Politics