Panel on Seclusion and Restraints at CEC Conference

Seal of the United States Senate.Image via Wikipedia
The CEC annual conference at the amazing National Harbor continues.  An excellent panel on the hot button issue of seclusion and restraints discussed the hot button issue.

We have frequently discussed seclusion and restraints here at the special education law blog.  It continues to be the most controversial topic in special education law.  In the last few years the topic has been is the news. After a series of exposes revealing the heart stopping sad stories of kids with disabilities who died as a result of these techniques.  The outcry was strong.

Congress held hearings.  A bill was introduced and passed the House of Representatives.  It is, however, stuck in the Senate.  The panel revealed that the sticking point in the Senate involves whether there should be a prohibition on allowing IEPs to prohibit seclusion and restraints.  Some parent groups want the prohibition.  The school districts seem to oppose it,  The stalemate is holding up the legislation.  When asked about compromise, none of the panelists had any ideas.
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Secretary Posny Speaks at CEC Conference

Alexa Posny speaks to audience members after t...Image by Medill DC via Flickr
The annual conference of the Council for Exceptional Children is underway.  I appreciate the good wishes I have received here at the beautiful National Harbor from a number of readers.

Alexa Posny, the Assistant Secretary of Education for Special Education and Rehabilitative Services,  spoke this morning.  I really admire Secretary  Posny.

She gave a list of six points she feels are important in the reauthorization of The Elementary and Secondary Education Act, the "general education" law.  The six fundamental concepts she outlined were:

  • ensuring that students are college or career ready. She described the critical  crossroads faced by students with disabilities at high school graduation. At this point, about 16% of students with disabilities complete post-secondary programs.
  • having the best teachers
  • meeting the needs of diverse learners (according to a recent poll students say that they learn best when doing hands on tasks, and next best by watching a hands on demonstration.  Last on the list was by receiving feedback from peers)
  • a complete education (including the fine arts; not just reading and math)
  • school as a safe and successful environment
  • fostering innovation and excellence( social and emotional as well as academic)(look for an increased role for positive behavior interventions and supports)

She also cited two other studies: of third graders who scored in the bottom 1/3 in reading, 63% of that group did not graduate from high school.  In other words, we lose kids if we don't have them reading at a fairly early age.

Another study Secretary Posny cited involved one of my pet projects- the role of poverty in education.  The 500 pound elephant in the room.  22% of children who have lived in poverty do not graduate from high school.  Only 6% of children who were never poor fail to graduate from high school.  We have to fix the problem of poverty or education reform is hopeless.  (The last point is mine- not the Assistant secretary's)

One other important point made by Secretary Posny in response to a question from the audience.was that the AYP calculation will be totally different in the reauthorized ESEA.  She predicted that an individual growth standard will be incorporated into the law.  The over reliance of NCLB upon tests will be reduced.
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Special Education Law 101 - Part I

Historic Route 101 California U.s.aImage by MR MARK BEK via Flickr
This is first of a multi-part series of posts on the basic nuts and bolts of special ed law. We will review the statute and regs, as well as the supreme court decisions and a few of the most important opinions of the circuit courts of appeal.  This is just an overview.  There is a LOT more!!!!!  

So we hope that you enjoy the introduction, but if you get into a problem, consult a lawyer, preferably one experienced in this complex area.

A.   Sources of Special Education Law

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.  Many state have adopted their own special education regulations.  

Court decisions that interpret the IDEA issued by the courts of your state, by the United States Supreme Court, and by the federal Circuit Court of Appeals and the federal District Courts that cover your state or District are binding.  Other court opinions and hearing officer decisions issued under the Act may be cited and used if you find their reasoning to be persuasive, but they are not binding precedent.  Similarly, opinions issued by the federal Department of Education interpreting the Act provide helpful guidance, but they are also not binding precedent.

Although the IDEA and the federal regulations, and corresponding state regulations and policies, and the relevant decisions interpreting them are by far the most important sources of special education law, other statutes do sometimes become involved.  The Rehabilitation Act of 1973, 29 U.S.C.  Section 794, et. seq., commonly referred to as “Section 504,” prohibits discrimination on the basis of disability in certain federally funded programs, including education.  The federal regulations that implement the statute are found at 34 C.F.R. Part 104.

Another statute that will impact upon special education law is the No Child Left Behind Act, 20 U.S.C. Section 6301, et. seq., hereafter sometimes referred to as “NCLB.”  The regulations implementing NCLB are located at 34 C.F.R. Part 200.

Finally, another law that pertains to educational records is the Family Educational Rights and Privacy Act, 20 U.S.C. Section 1232g, et. seq., hereafter sometimes referred to as “FERPA.”  The regulations implementing FERPA are found at 34 C.F.R. Part 99.

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Back To The Future: Special Education Law 101

Mile Marker 101Image via Wikipedia
Special education law is complicated stuff.  I have said here before that Special Ed Law is a lot closer to metaphysics than it is to contract law.   If you hate ambiguity, Special Ed Law may not be your thing. (I still think that there is a Foxworthy joke in there somewhere.)

Any way, in preparation for my presentation at the upcoming conference of the Council for Exceptional Children, at National Harbor, Maryland, and i know already that I will see some of you there, we will be updating on these pages, a previous series of posts on the nuts and bolts of special education law.

So please fasten your seat belts and ensure that your tray tables are in their upright positions... we are cleared for takeoff...unless the controller is asleep!  (Sorry... too easy...)  Get ready for a trip backs to the basics ... starting next week right here.
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Service Dogs

Miniature horse, Oakland Zoo. Chestnut with fl...Image via WikipediaIf I have a bias, one clearly is that I admire service dogs.

I will be doing a presentation about service dogs this summer.  I am asking for your help.  Not all service dog cases get reported in the special education law research services.  If you have had a recent case involving service dogs, please send the news article or decision to me.

The following is a recent post that I did on the new 504 regs concerning service animals:

If you read this blog, you know that I love service dogs.  Really I love almost all dogs, but the regal service dogs are beautiful animals and they really help many people with disabilities.

On September 15th the Department of Justice finalized new regulations concerning service animals under the Americans With Disabilities Act. These regulations take effect on March 15, 2011.  They pertain to Title II (governments, including schools) and Title III (public accommodations). Here is a summary by the Department of Justice.  Here is the printed version in the federal register (this works as a sleep aid as well.)  This is a highlight sheet of the changes to Title II.
Here is the definition of "service animal"
Service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the handler's disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal's presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition. 
And here is the new regulation under Title II:

§ 35.136 Service animals

  • (a) General. Generally, a public entity shall modify its policies, practices, or procedures to permit the use of a service animal by an individual with a disability.
  • (b) Exceptions. A public entity may ask an individual with a disability to remove a service animal from the premises if—
    • (1) The animal is out of control and the animal's handler does not take effective action to control it; or
    • (2) The animal is not housebroken.
  • (c) If an animal is properly excluded. If a public entity properly excludes a service animal under § 35.136(b), it shall give the individual with a disability the opportunity to participate in the service, program, or activity without having the service animal on the premises.
  • (d) Animal under handler's control. A service animal shall be under the control of its handler. A service animal shall have a harness, leash, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of a harness, leash, or other tether would interfere with the service animal's safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler's control (e.g., voice control, signals, or other effective means).
  • (e) Care or supervision. A public entity is not responsible for the care or supervision of a service animal.
  • (f) Inquiries. A public entity shall not ask about the nature or extent of a person's disability, but may make two inquiries to determine whether an animal qualifies as a service animal. A public entity may ask if the animal is required because of a disability and what work or task the animal has been trained to perform. A public entity shall not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal. Generally, a public entity may not make these inquiries about a service animal when it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability (e.g., the dog is observed guiding an individual who is blind or has low vision, pulling a person's wheelchair, or providing assistance with stability or balance to an individual with an observable mobility disability).
  • (g) Access to areas of a public entity. Individuals with disabilities shall be permitted to be accompanied by their service animals in all areas of a public entity's facilities where members of the public, participants in services, programs or activities, or invitees, as relevant, are allowed to go.
  • (h) Surcharges. A public entity shall not ask or require an individual with a disability to pay a surcharge, even if people accompanied by pets are required to pay fees, or to comply with other requirements generally not applicable to people without pets. If a public entity normally charges individuals for the damage they cause, an individual with a disability may be charged for damage caused by his or her service animal.
  • (i) Miniature horses.
    • (1) Reasonable modifications. A public entity shall make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability.
    • (2) Assessment factors. In determining whether reasonable modifications in policies, practices, or procedures can be made to allow a miniature horse into a specific facility, a public entity shall consider—
      • (i) The type, size, and weight of the miniature horse and whether the facility can accommodate these features;
      • (ii) Whether the handler has sufficient control of the miniature horse;
      • (iii) Whether the miniature horse is housebroken; and
      • (iv) Whether the miniature horse's presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.
    • (C) Other requirements. Paragraphs 35.136 (c) through (h) of this section, which apply to service animals, shall also apply to miniature horses.  

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Top Education Blog: This Blog Gets More Honors

awardsImage via Wikipedia

This blog continues to rack up the awards.  We have won some impressive honors. In 2008 we won first place in the education blog category of the Bloggers Choice Awards. We have won the prestigious Blog of the Day award.  In February of this year, we were listed on another list of top blogs:  The Fifty Best Blogs For Special Needs Teachers.  We are also listed on the blogrolls of a number of highly respected blogs.  And we are found on some amazing tweet lists and facebook pages.  

This week we were  named one of the Top Education Blogs by Blog Front. You can see our listing and those of the other top education blogs here.

We like the recognition; it is nice to be liked!

But the best thing about these awards is that they help us to get known.  The goal of this blog is to provide information and to make available resources about special education law and policy to any interested stakeholders.  Our regular readers include such diverse folks as: special education teachers, parents, special ed directors, lawyers for parents, principals, advocates, school psychologists, lawyers for school districts, general education teachers, law professors, dispute resolution coordinators, hearing officers, speech language pathologists, mediators, occupational therapists, assistive technology providers, hearing officers, state complaint investigators, advocacy group members, school disciplinarians, monitors, regulators, professors of education, students, adults with disabilities, paraprofessionals, other administrators, behavior specialists, my friends, other bloggers and an assortment of other folks.

These awards and honors help us reach new readers.  That is always good.  Thanks you for reading these posts and for taking the free subscriptions.  With our growing numbers comes increasing credibility.  Thanks everybody.
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The Visually Impaired Kid in the Outfield

Chicago: Wrigley Field - Outfield BleachersImage by wallyg via FlickrThis story involves a kid with a disability, but the lesson certainly transcends the kid and the disability.

I tend to give the credit for my support of the underdog to my mother, and as those of you who knew her are aware, she deserves much of it.  But in the last ten years or so, I have begun to appreciate many of the contributions that my father made to my development.

I have always known that he was solid.  He got up every morning and went off to work at the Peoples Gas Company.  Despite the title, it was a megacorporation.  He began there as a meter reader, dropping out of school in the sixth grade to work three jobs during the Depression, one of which involved bending springs with his bare hands to create mattresses.  As a meter reader, and I didn't get this until a few years before he died, he was responsible for either collecting the money owed or else shutting off the gas.  Tough job.

Anyway, at one point as a kid I wanted to play softball.  For those of you not from the Chicago Area, softball is different there.  The ball is 16 inches unlike the 12 inch ball used in the rest of the country.  One other important detail, you don't use baseball gloves.  Instead you catch this huge, hard ball with your bare hands. Anyway, I digress...

My Dad organized a league so that I could play.  Pretty cool, huh?  He was the coach of our team.  One of the rules he established was that anybody who came to the practices and followed the rules got to play in the games.  It seemed fair.  One of my teammates was a kid who we will call Johnny for purposes of this post.  Johnny had a visual impairment.  he had difficulty seeing even with corrective lenses.

We turned out to have a pretty good team. We made it all the way to the championship game.  We had a one run lead going into the final inning, and to my exasperation,  my dad put Johnny into right field for the final inning.  With the tying run on second base and two outs, the other team hit the ball near Johnny.  He didn't see it and we lost.

To say that I was furious would be an understatement.  I asked my dad why he did that.  He said that Johnny came to the practices and followed the rules, so he had to play him.  I said but we lost the Championship Game!  He said that it would not be fair if he didn't get to play.

I saw Johnny at school a few days later and he apologized for losing the game.  By then I had calmed down.  I told him that we were a team at that no one person loses or wins a game.  We did pretty well as a team to make it to the championship game.  He seemed to feel better.  I never forgot the lesson.

I guess that sports can be valuable for young people.  Particularly when the coach has integrity. 
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Facebook Special Ed Law Group on the Verge of 900 members

Facebook logoImage via Wikipedia

One of our projects here at the Special Education Law Blog is the companion special education law group on Facebook.  Check it out here.

The Facebook group is a fun place with plenty of robust debate.  It is also another great place to find resources for special ed stakeholders.   We have been pleasantly surprised how the group has grown.  We are now just four members short of 900!  We never thought that we would have that many members.  900 people are Jonseing for special ed law; that's incredible. 

So thank you to the Facebook 900 and thank you to the readers of this blog.  Please stay tuned for more special ed law and related resources.  Thanks guys.

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