Happy Memorial Day

Picture of graves decorated with flags at Arli...Image via Wikipedia

On this Memorial Day, 2010, we thank all those who have served our country. We have no shortage of heroes.

Those who were killed in service of our country, we salute you today. To those who were injured, today we urge our representatives to ensure that you get all the medical and other care you need.

Happy Memorial Day.

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Special Education Law 101 - Part II Revisited

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Beginning last week, I have been running a repeat series I wrote a few years ago on the basics of special education law, with a few updates as appropriate. This is part two.

Today's post is on the requirement of the least restrictive environment, which along with FAPE is one of the twin towers required by IDEA. People are often amazed when I tell them that the word "inclusion" is not contained in IDEA. Instead the requirement is that a child with a disability be educated in the "LRE." Sometimes our fascination with FAPE overshadows the LRE analysis, but it is one of the key components of the law.

Special Ed Law 101- Part II

The Requirement of LRE (least restrictive environment)

In addition to the requirement of FAPE, which was discussed in a previous post, the IDEA also requires that to the “…maximum extent appropriate, children with disabilities … are educated with children who are not disabled, and special classes, separate schooling or other removal of children with disabilities from the regular education environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. IDEA, § 612(a)(5). See, 34 C.F.R. §§ 300.114 to 300.119. This is known as "LRE."

The Supreme Court has not yet ruled on the issue of LRE, but a number of Circuit Courts of appeal have provided some guidance. For example, the Fifth Circuit has developed a two pronged analysis: the first question is whether the education of the student with a disability in the regular classroom, with the use of supplemental aids and services, can be satisfactorily achieved, and if it cannot, whether the school district has provided the student with interaction with non-disabled peers to the maximum extent appropriate. Daniel RR v. State Board of Education 874 F.2d 1036, 441 IDELR 433 (5th Cir. 1989). (See decisions in your circuit.)

The special education law, then, requires that a child with a disability be provided a FAPE (free and appropriate public education) and that it be provided in the LRE (least restrictive environment that is appropriate for the child). These are the key legal requirements of special education law.

Jim Gerl's 2010 Rockin' the Joint Tour

Ogden, Utah, in 1874.Image via Wikipedia

Last summer I had some fun on these pages describing what I called my IDEA Remedies Tour. I was doing presentations on the two major special education law remedies: Reimbursement for Unilateral Placements (at the annual ed Law Conference in Portland, Maine) and on Compensatory Education (at the U of Seattle HO Academy.)

Not being able to resist, I am again announcing my 2010 summer tour. If you read this blog and you will be in any of these places while I am there, please let me know or come by and say hello. I always enjoy meeting readers of the blog. These are only the conferences that are open to the public although in some instances, my presentation may not be open to the public. Please check the registration sites for more specifics.

The theme of this summer's presentations is a little less obvious. If anybody has a better idea, please post a comment. For now I am hoping that Aerosmith will not be upset that I am calling it my "2010 Rockin' the Joint Tour." (INSERT appropriate music here.)

I have made a semi-permanent gadget on the left-hand side of the blog which states where I will be and includes registration links where available. PLEASE NOTE: none of the state departments of education or other agencies or sponsors of these conferences in any way endorse this blog. My comments, here and elsewhere, are my own and should not be taken to represent the views of the sponsoring organizations or any other entity. (That was what we call a disclaimer; there is a purpose for lawyers.)

From July 27 - 29, 2010, I will be at the Wyoming Special Education Leadership Symposium in Lander, Wyoming. I will be part of a panel discussing least restrictive environment issues; I will give a paired presentation with the highly regarded Julie Weatherly ( a big honor for me) on educational benefit and I will be doing a solo session discussing dispute resolution options.

I will attend the Utah Institute on Special Education Law on August 2 - 3, 2010 at the Eccles Center in Ogden, Utah, and I will do a (non-public) hearing officer/mediator training the next day.

From August 30 - September 1, 2010, I will be at the Arizona Special Education Directors Institute in Litchfield Park, Arizona. I will do repeat presentations on the role of the non-attorney advocate in IEP team meetings and due process hearings.

I will for the sixth straight year be a part of the faculty at the National Association of Hearing Officials Annual Conference from September 26 - 29, 2010 in Music City, Nashville Tennessee. I will be presenting on the prehearing process and on ruling on objections.

So there it is, please stop and say hello if you will be nearby. Again the name challenge- if you have a better name for my tour than Rockin' the Joint, please leave a comment.

Lead Poisoning & Special Ed - Revisited

Contains LeadImage by The Rocketeer via Flickr

I recently ran a post about the outrageously high level of lead poisoning in the children in the Detroit public school system. I'm still alarmed. How are we pumping these kids so full of lead.

A couple of astute readers brought up the connection that lead poisoning is at least one cause of autism or autism symptoms in young children. The connection with special education law becomes somewhat clearer.

Here , for example, is a study published in 2005 that further develops the link between lead poisoning and autism. The results are frightening.

Anybody interested in waging a campaign to detoxify our kids? This is apparently a very serious issue. What are the levels of lead poisoning in the children in your community? Do you know?

I also wonder if the poverty issue is separate from or a part of this issue. Do poor kids eat and breathe more lead?

This is 2010. Can't we find a way to keep lead away from our kids? What are your thoughts?

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Censorship & The Blogosphere

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OK that's an interesting topic, but how could censorship be related to special education law or to this blog you ask? I know this may at first blush sound like a stretch, but wait.

Many of our readers work for governments- state agencies, school districts, and various others. One new reader just told me that she tried to subscribe to this blog, but her government computer refused to permit her to subscribe to us because it was a blog.

This type of government censorship truly upsets me. Not all blogs contain pornographic material! Some, we hope, provide information and resources that are difficult to find elsewhere. At this point in our history, a lot of important information is accessible only through blogs. To ban all government employees from subscribing to blogs is absurd.

The First Amendment could apply here. The concept underlying the free speech notion is that free-play in the marketplace of ideas leads to the truth. Government restrictions inherently frustrate this policy.

The extent to which our sources of news has changed became evident to me earlier this week. I was in a hotel watching one of the "morning news" programs. These used to be places to get a good dose of news. I watched while I was getting dressed and saw no news whatsoever. I saw a cooking segment and heard the "news anchors" talk to a gossip columnist about Brittany Spears and Lindsay Lohan. It is no wonder, people have turned to the internet for news- television is officially a wasteland.

Given the changes in how we as a society receive news, it is even more important that governments ease outdated computer censorship rules. If you read this blog and you work for a government- any kind of government- please try to take a free subscription to the blog (Click on the link on the lefthand side and then respond to the email to activate the subscription.) If you get a censorship block, please request that this site be officially authorized. (We're just not that controversial!) Also please tell me whether you have been blocked and what happens with the authorization process. My goals are to strike down ridicules censorship and to ensure that the information and resources we provide can be used by the maximum number of people.

Power to the bloggers! Bloggers of the world unite...! (OK I'm out of catchy slogans, but you get the idea!)

Special Education Law 101- Part I Revistied

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In a recent post, I mentioned that I wanted to rerun a previous series on the basics of special ed law, with a handful of updates . Here goes:

People often ask me what "FAPE" and "IEP" mean. This is a good question. At a conference I attended a few years ago, a success story former special education student told the group, "You all speak in alphabet soup." It is a tough habit to break, but the criticism is valid.

As a result I decided to post a series of Special Ed Law 101 articles to foster a better understanding of the key concepts.

Special Ed Law 101- Part I
The primary source of special education law is the federal Individuals with Disabilities Education Act, 20 U.S.C. Section 1400, et. seq., hereafter sometimes referred to as “IDEA.” (NOTE: many people refer to the sections of the act as beginning with section 600. Thus “Section 615” would be found at 20 U.S.C. Section 1415, etc.) The regulations promulgated by the United States Department of Education to implement the IDEA are found at 34 C.F.R. Part 300.

The basic requirement of the IDEA is that states must have in effect policies and procedures that ensure that children with a disability receive a free and appropriate public education, hereafter sometimes referred to as “FAPE.” IDEA, Section 612(a)(1).

The IDEA defines “child with a disability” as a child:
(i)with mental retardation, hearing impairments…, speech or language impairments, visual impairments…, serious emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and
(ii)who by reason thereof, needs special education and related services.
IDEA, Section 602(3)

The IDEA defines “FAPE” as:
special education and related services that:
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary school or secondary school education in the state involved; and
(D) are provided in conformity with the individualized education program required (…hereunder.).
IDEA, Section 602(9). See also 34 C.F.R. Sections 300.101 to 300.113.

The IDEA defines “special education” as:
Specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, including
(A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and
(B) instruction in physical education.
IDEA, Section 602(29).

The Supreme Court of the United States issued the seminal decision interpreting the provisions of the IDEA in the case of Board of Education of Hendrick Hudson v. Rowley 455 U.S. 175, 102 S.Ct. 3034, 553 IDELR 656 (1982). The facts of the case were that the student had a hearing impairment. The parents requested that the schools provide a sign language interpreter for all of the student’s academic classes. Although the child was performing better than the average child in her class and easily advancing from grade to grade, she was not performing consistent with her academic potential. Rowley, supra, 102 S.Ct at 3039-3040.

Holding that FAPE required a potential maximizing standard, the District Court ruled in favor of the student. The U. S. Court of Appeals for the Second Circuit affirmed. See, Rowley, 102 S.Ct. at 3040.

The Supreme Court reversed. Rowley, supra, 102 S.Ct at 3052. After a review of the legislative history of the Act and the cases leading to Congressional passage of the Act, the Supreme Court held that the Congress did not intend to impose a potential-maximizing standard, but rather, intended to open the door of education to disabled students by requiring a basic floor of opportunity. Rowley, supra, 102 S.Ct at 3043-3051.

The Supreme Court noted that the individualized educational program, hereafter sometimes referred to as the “IEP,” is the cornerstone of the Act’s requirement of FAPE. Rowley, supra, 102 S.Ct at 3038, 3049. The Court also notes with approval the many procedural safeguards imposed upon the schools by the Act. Rowley, supra, 102 S.Ct at 3050-3051. The Court also cautioned the lower courts (and by implication, due process hearing officers) that they are not to substitute their “…own notions of sound educational policy for those of the school authorities which they review.” Rowley, supra, 102 S.Ct at 3051.

The Supreme Court held that instead of requiring a potential maximizing standard, FAPE is satisfied where the education is sufficient to confer some educational benefit to the student with a disability. Rowley, supra, 102 S.Ct at 3048. Accordingly, the Court concludes that the IDEA requires “…access to specialized instruction and related services which are individually designed to provide educational benefit to the …” child with a disability. Rowley, supra, 102 S.Ct at 3048.

The Supreme Court instructed lower courts (and again by implication, due process hearing officers) that the inquiry in cases alleging denial of FAPE should be twofold: First, have the schools “…complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act’s procedures reasonably calculated to enable the child to receive educational benefits.” Rowley, supra, 102 S.Ct. at 3051.

That completes the first installment of Special Education Law 101. In the next installment we'll explain least restrictive environment, or "LRE."

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Lead Poisoning & Special Ed

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I hope that this is wrong:

A recent news article caught my eye. It said that students in Detroit's Public school system were recently tested for lead. The study concluded that overall, 58% of roughly 39,000 students tested -- 22,755 children -- had a history of lead poisoning. Worse yet, of the 39,199 students tested as young children, only 23 had no lead in their bodies.

The article mentioned that special education students had even higher levels of lead in their bodies. So this is a special education issue although it is much broader that just that. Here is a link to the Detroit free Press article.

Really, ... we still haven't figured this out yet? I have often wondered whether poverty doesn't have a big impact upon school performance. I guess that in addition to inadequate nutrition, an inadequate exposure to words, poor kids inhale or eat too much lead. In 2010, kids are going to school with toxic levels of lead!

Maybe Johnny can't read because he has too much lead in his system. This just makes my blood boil.

Am I overreacting? Isn't this a big deal?

De Ja Vu All Over Again: Special Ed Law 101 Revisited

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One of the questions I get a lot is how can I learn the basics of special ed law? Well it isn't easy. This is a complex body of law. And it keeps changing.

A couple of years back, we ran a five part series on the nuts and bolts of special education law. Really covering just the basics. That was a long time ago, and we have made a lot of new friends since then. So we will be repeating the series beginning next week. We may make a few updates, but the series will be essentially the same. It should provide a good grounding in this fascinating area of law.

These articles will be too rudimentary for some of you, but it doesn't hurt to review. These basic building blocks help to understand a lot of what we discuss here.

I'll be interested in your reactions to the series. I hope that it will be helpful to many of you. As always, we appreciate your feedback.

Poll Results In - RtI is the Winner

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Our most recent poll is finished. First a caution, our polls are not scientific measurements. They are one way we keep our finger on the pulse, but we do not pretend that we have a random sample of the country, or that our questions are bias-free or that a poll under the best conditions can be anything other than a good snapshot. That said, we do have some fun with these polls.

The question this time was: What Should Be Changed in IDEA? Here are the results:

1. Expand and Encourage Response to Intervention 43

2. Regulate Seclusion/Restraints 40

3. tie Raise the Bar for FAPE 36

3. tie Give Expert W Fees to Prevailing Parents 36

5. Assess Children with Disabilities at Instructional Levels for AYP 34

6. Place Burden of Persuasion on School Districts 33

7. tie Increase Transition Rights 27

7. tie Allow Arbitration and More Mediation 27

9. Restrict Comp Ed/Reimbursement as Remedies 19

10. Expand Role/Mission of OSEP 16

So you can see that it was very close. What thoughts do you have about the poll?

What changes would you like to see in IDEA? Any of those listed - or something not on the list? Remember I intend to forward your suggestions on to OSEP when the discussions about reauthorization heat up. So send me your ideas, and keep thinking about it.

Also what topic would you suggest for our next poll?
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Three Years Old and Never Been Dissed! Special Education Law Blog Turns 3

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Well this is our third birthday!

Hard to believe, no? We have been talking about special education law for three years on these pages, yet we have barely scratched the surface. So buckle your seat belts and put your trays in their upright and locked position because we are now really going to take off!

First of all- thank you to our regular readers. You are why we do this. Thanks. If you have not yet taken a free subscription, please do so. On the left-hand side of the blog we will set you up. Yo can arrange to get the posts delivered to your inbox as emails. Or you can subscribe to an RSS feed in a reader or feed aggregator. Finally, if you have a blog or website of your own, you can get a widget (=blog=widget). Some folks take all three subscriptions. They are always free.

Added to our legions of subscribers are the members of the Facebook, LinkedIn, Ning, Plaxo and Twitter special education law groups. The wildest is the Facebook group which now has 775 members. The discussion boards are lively and the discussion is spirited. Those of us in special ed would have it no other way.

There are tons of other resources on the lefthand side of the blog. There are other education blogs, searchable statute and regs, an info clearinghouse, a link to CADRE- the cool people who know answers to questions about dispute resolution and other links. We even have two blidgets, one with the CEC'c daily headlines and one on education news. Given the diverse nature of the stakeholders who follow us, we try to provide a variety of resources. One rule, is that we like an unbiased perspective. We don't feature groups that lean to one side or the other. Such groups do exist, but in keeping with my impartiality as a hearing officer and mediator, and as a state consultant, we don't link to them here. For similar reasons, I don't join advocacy groups on Facebook, but I will friend any member of the special ed law group who mentions that fact. (I just flashed to the South Park episode on Facebook!)

So thanks to all of you and please keep on reading. For those who feel so inclined, the traditional third anniversary gift is leather! (Just make sure that you will never appear before me as a litigant or lawyer or advocate first!)

Great to Renew Acquaintances

I'm just getting back from an excellent conference in Orlando on SpEd Law. I appreciate all the new friends who said that they enjoy this blog.

I also got to say hello to some great old friends. I love getting to spend some time with them. There are some great folks involved in this area of law. Thanks for accepting me.
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Posny Continues to Impress

I am at a conference on special education law as you now know. New OSERS Secretary Alexa Posny was here and she was very impressive. I am a bit biased because she granted this blog a big exclusive interview shortly after taking office. But her accessibility and willingness to answer questions is refreshing.

At this conference she gave a keynote address. She mentioned, for example, that as we approach the 35th anniversary of IDEA that we should review our successes as well as plan improvements for the future. For example, she pointed out that as of the latest statistics, 57% of special education students are in the general education classroom for more than 80% of the time. That is a lot of inclusion.

After the keynote, she held a question and answer session. She answered a lot of questions. I asked her about seclusion and restraints and the behavior provisions of IDEA. She stated that Positive Behavior Interventions and Supports was likely going to be developed a bit further in the reauthorization. In answers to other questions, she said that her dream is to merge the general education law, ESEA, and its funding with the special education law and its funding. She also indicated that a "growth model" approach was a likely change in the reauthorization of NCLB (or ESEA as it shall once again be called.) She also said that changes to the new regulations permitting parents to revoke consent for special education are not likely.

She also reiterated her support for using some special ed funds for early intervening services. Serving the very young is a definite priority for the new Assistant Secretary of Education.

She also wants to hear from you. She asked persons attending the conference to email her with ideas for reauthorization. This level of openness and transparency is unprecedented. I am pleased.

OSERS Secretary Posny Supports Positive Behavior Supports in IDEA Reauthorization

I am at a conference on special education legal issues. The new Assistant Secretary of Education for OSERS is here and she spent time answering questions of conference participants. Alexa Posny is pretty cool, and she is very open and transparent.

Regular readers will recall that Secretary Posny had previously generously permitted an exclusive interview to me for this blog. Many of our readers have enjoyed those interview posts.

Today, I asked Dr. Posny whether, given the current controversy regarding the abuse of seclusion and restraints, we should look at beefing up the behavior sections of IDEA as a result. Dr. Posny said that we should look at adding Positive Behavior Supports to the IEP development sections. She said that this would help kids with behavior issues.

Dr. Posny also pointed out the new legislation. She noted that the new law will protect both special ed and general ed students from seclusion and restraints.

NOTE: this entire post was done from my phone. The new technologies are pretty cool.

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