My recent interview with Dr. Alexa Posny, the new Assistant Secretary of Education for OSERS (the
Office of Special Education and Rehabilitative Services) covered a lot of ground. This is the next to the last in a series of occasional posts concerning the interview over the period of a few weeks. "JG" indicates that I am speaking. "AP" indicates that Secretary Posny is speaking.
In this post, Dr. Posny talks about revocation of consent for special education and the importance of communication:
JG: The other thing that came up a lot when I told people who I know - - and many of the people I know are dispute resolution coordinators, I'll confess that - - but had to do with the new regulations, the relatively new regulations, on revocation of consent. There's a lot of bad feeling about that for a lot of reasons. One is that there are allegations in some states that parents are switching the switch on and off a lot. There doesn't seem to be anything in either the regulations or the statute that stop a parent from doing it as much as they want. The other thing is, I guess, the argument that I've heard is that the - - who is the beneficiary, really, of special education? Is it the child or the parent? And if it really is the child, should the parent even have the right to do that? Once they have already - - not in the beginning - - I think everybody agrees, in the beginning, a parent can say no, but once they get in to special ed, can they turn it off.
AP: Well, okay, and you know, you're a lawyer - -
JG: Yes.
AP: Okay, and since when does the parent not have the right to do what he or she wants with his or her child? Does that bother me? Well, of course, it does, but yet, I'm a parent as well. I should be able to call the shots, and if I say no, the answer should be no. And I think that's why this came about. I mean, it is clearly - - shouldn't the parent have the right to say, no, I don't want this anymore? Now, will it cause some concern? Oh, absolutely. And was this heartbreaking? Of course, it was because there's a part of me saying - - you know because I think about neglect.
JG: Right.
AP: And when does this cross the line and turn into neglect or abuse or whatever? And that's a hard line to call, but that's where having been a special ed director and a special ed teacher and all of that that's where having established a relationship with a parent, I'm here to tell you, I would use that and I would never give up. I mean, I would go to that parent and just say, you know, this is it. I've had a lot of those tough conversations. I remember being with a parent and I wrote a minority opinion on an IEP because I was recommending that this child, this severely learning disabled child, go into more of a segregated classroom and I said, I honestly think he needs it. And this was in high school. I said, I just don't think he's going to get the benefit without it and very seldom do I push towards that and the parent disagreed.
JG: Wow.
AP: And she said, no. She said, I want him to be mainstreamed and she said, well - - and she said, I'm going to tell him that he better do well or I'm going to threaten to put him in there. And I said, don't. And I knew this parent very well and I said, don't do that because I said, if you ever find out you need to, I said, he's not going to want to go. He's going to view it as punishment and I talked to her and I said, I really believe this, a year later, and she put her child in the other program. But I want to be able to - - that's the same way, and if we have these relationships with these parents, we should be able to have these conversations and be able to help them through this.
JG: Right. And too often, when I see them as a hearing officer, the relationship has been so badly destroyed. My main problem with that new regulation is that it does not allow mediation as an option, and I don't understand that - -
AP: I know.
JG: - - because I can understand not allowing a due process hearing to override because the idea is that the parent is going to be acting in the child's best interest, as you said, and we do have to use that as the model because that's that law, basically. But if a school district thinks that continued special education and related services would help a child, why can't they call in a mediator and try to mediate the dispute over consent? the current federal regulations prohibit mediation in these situations and I feel that ir should be changed.
AP: Okay, no, it's a good thought.
JG: Yeah.
AP: It is.
JG: But that regulation does not even allow for mediation, which is - - that's - - and again, I'm an advocate of mediation. I think it's - - having seen hearings and mediation, I really think mediation is much better.
AP: I do too and my whole life is basically been spent in special ed because I even did special ed when I worked with the Title I Technical Assistant Centers. I have never been involved in a due process hearing and someone said, well, you must have given them everything. I said, absolutely not. I worked in the Shawnee Mission School District - - extremely wealthy - - and I said, absolutely not and the parents knew it. I couldn't. We didn't have that kind of money. So, I mean, there are ways to work together.
JG: Right.
AP: Absolutely. And I know darn well that in every job I've had as a special ed director, you spend 95% of your time with about 5% of the parents, but it's time well spent.
JG: Right. And I think you're right. And I think that the relationship issues are very important. It's interesting to me, doing hearings both in many places, the different - -
AP: Oh, what a difference.
JG: - - different ends of the scale. And again, some of it, I think, is communication. Some of it is - - I've done some work with ACRES, the rural special education group - -
AP: Yes.
JG: - - and many of the professors involved with that group think that there just aren't enough lawyers in some parts of the country that will represent people. Now, in some parts of the country, like Philadelphia and other urban areas, there are maybe too many.
AP: I agree. Yeah, I know. In Kansas, we're lucky if we had eight or nine due process hearings a year.
JG: And I don't think the goal is to have a lot of due process hearings, but at the same time, I think that sometimes that at the same time that the system is over legalized, it's also under legalized in certain parts of the country and I just - -
AP: Yes.
JG: In many rural areas just to bring a due process hearing is sort of like suing the school, which is sort of like suing the community.
AP: Yes. And that's very true in rural areas.
JG: Right.
AP: Yes, very much so.
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