Tag Archives: Parent advocacy

What Gives Parents the Right to Request a Team Meeting?

It is an article of faith in the special education community that parents have the legal right to request a Team meeting at any time, for any reason, and the school must comply. A search of the Internet reveals multiple trusted websites and state parent guides making this claim. The problem is that a careful examination of IDEA’s statutes and regulations doesn’t turn up anything that explicitly grants parents this right.

This is a concern, as parents have written us about schools ignoring their requests for Team meetings to discuss important issues. When this happens, what authority can parents cite to request a Team meeting and have the school comply? It is an unfortunate reality that parents need a firm legal footing to convince a reluctant school district of their child’s rights.

Some States Give Parents the Right in Certain Circumstances

Some states, such as Arizona and California, have laws that allow parents to request a meeting, but with certain restrictions.

In Arizona, a “parent or public education agency may request in writing a review of the IEP, and shall identify the basis for requesting review,” and the review has to take place within 45 school days of the receipt of the request (Arizona Administrative Code R7-2-401(G)(7)). Since most reasons to request a Team meeting probably have to do with an issue that is in, or should be added to, the IEP, this is a pretty broad mandate.

California tells parents: “you can request an IEP meeting whenever you think one is needed in order to review or change the program.” Once the parent makes a written request, the school has 30 school days to hold the meeting according to California Education Code Sections 56343(c) & 56343.5. This wording is even broader than Arizona’s, though it is likely that “program” is intended to refer to the IEP.

The Right is Not Mentioned in IDEA

However, searching the text of The Individuals with Disabilities Education Act of 2004 (IDEA), statutes 20 USC §1400 through 20 USC §1482, and regulations 34 CFR §300.1 through 34 CFR §300.818, reveals nothing that grants parents the right to request a Team meeting at any time and for any reason. While 20 USC §1414(d)(4)(A) “Review and Revision of IEP” goes over the reasons for calling a Team meeting, it doesn’t mention who can request the meeting. Section (III) comes the closest by stating that the Team should meet when the parents present “information about the child provided to, or by, the parents.” This hints at the right of parents to request a Team meeting but still doesn’t address it directly.

So, What Gives Parents the Right?

The answer to this question appears in The Federal Register, the official journal of the federal government. This document compiles government agency rules, proposed rules, and public notices. Rules initially published in The Federal Register are ultimately organized and codified into the Code of Federal Regulations (CFR), which are authorized by the statute law found in the United States Code (USC).

The Federal Register provides a place to query points of law and expand on the law’s meaning. This is typically done through sections of comments followed by discussion. It is in one of these sections that a parent’s right to request Team meetings is finally mentioned, specifically on page 46676, in volume 71, number 156, dated Monday, August 14, 2006, on the topic “Rules and Regulations.”

The comment and discussion halfway down the left-hand column is about parents having the the right to change their mind when excusing an IEP Team member from attending a meeting. The concern is that it might become apparent during a Team meeting that the absence of an excused member could inhibit the development of the IEP. This would make the IEP developed at the meeting incomplete at best and possibly even inadequate. The question being addressed is: would it be worthwhile to modify the regulations to expand a parent’s rights regarding excused Team members?

The discussion in answer to this question focuses on the fact that there is nothing in IDEA that prevents a Team from reconvening to continue developing or modifying the IEP, as long as it is done “in a timely manner.” Then comes the pertinent sentence: The parent can request an additional IEP Team meeting at any time and does not have to agree to excuse an IEP Team member. The discussion concludes with the statement that no changes are needed to the regulations, which means that the discussion is considered to be settled law.

Bingo!

In other words, government regulators believe IDEA, as it is currently written, gives parents the right to request a Team meeting “at any time,” and that the meeting must be convened “in a timely manner.” The discussion does not mention any restriction to this right. So, when a school tries to tell you that you can’t have more than one Team meeting a year, this gives you the legal authority to request additional meetings and the school must convene the meeting without undue delay.

What You Can Do If the School is Uncooperative

Of course, we parents know that schools don’t often understand their obligations under IDEA and that some have been known to try to prevent parents from exercising their rights. If the school tries to tell you you can’t request a Team meeting when you feel that one is necessary, we have these suggestions:

  • First, show your liaison or special education director the discussion in The Federal Register. Politely explain that the school has an obligation to hold a Team meeting at your request and without undue delay. Also know that only you have the right to excuse a Team member from attending the meeting. If the school is simply unaware of its obligation, this should work.
  • Otherwise, you can request mediation from your state department of education. Every state has mediators who will arrange a meeting at no charge to the parent to resolve issues between parents and schools. In our experience, mediators are honest brokers who do their best to observe the letter of the law. In fact, it is possible that once you explain the issue, it is likely that a simple phone call from the mediator to the school will resolve the issue.

Of course, nothing is ever certain, but we have found that the more informed you are, the better the chance you have to convince your child’s school to provide the appropriate education your child deserves and by right should have.

Judith Canty Graves and Carson Graves

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Is the School Following Your Child’s IEP?

The Individual Education Program (IEP) is the cornerstone of special education. It is a legal contract between the school district and parents that defines what specialized instruction, accommodations, and modifications are necessary for a child to receive the Free Appropriate Public Education (FAPE) required by law. Since each child in special education has unique needs, by definition the IEP must be individualized based on what objective testing reveals about a child’s disabilities and capabilities.

A new study, published in February of this year (2018) in the journal, Educational Evaluation and Policy Analysis has uncovered disturbing trends in the way that schools create and implement IEPs that appear to violate special education law. This study, titled (with typical academic brevity), “The Dynamic Interaction Between Institutional Pressures and Activity: An Examination of the Implementation of IEPs in Secondary Inclusive Settings,” states that its purpose is to “illuminate a dynamic interaction between institutional pressures and the activity of providing students with a special education.”

The study identified different approaches that two schools took in creating and implementing IEPs that circumvent the intention of the Individuals with Disabilities Education Act (IDEA). While this study was undertaken with the goal of influencing the anticipated congressional revision and reauthorization of IDEA and not as an indictment of special education in general, you may want to consider its implications for how your school implements your child’s IEP.

Two Ways to Ignore the Law

In one school, the study discovered that the IEPs for 10th and 11th grade students were written around the school’s existing curriculum for general education. The school would then follow the students’ IEPs, but without acknowledging that the services were simply based on getting the students to pass their general education courses and standardized tests. As a result, the students in special education did not receive the educational services and supports that their disability required. The study cites “institutional pressures” (no doubt including the school budget) as the reason, something the study’s authors point out is not the purpose of an IEP, much less special education.

The second school in the study wrote IEPs for each student that were individualized, but then mostly ignored them. Instead, the school relied on additional staff in the general education classroom as a way to provide more support for the special education students. In addition, these students attended a daily special education “study hall,” where they received more support. While the students in the second school had greater access to the special education curriculum than the first school, it was without the benefit of a program “designed to meet their unique needs,” the purpose of special education. [20 USC § 1400 (d)(1)(A)]

What Can We Learn From This?

It is important to remember that this study had a small sample size and is just the first of several planned studies with the goal of encouraging debate among educators and legislators on how to update special education law. Among future studies, the authors hope to focus on how to improve the creation and implementation of IEPs for special education students included in the general education classroom.

Still, we can extrapolate from this study that even after more than forty years of special education law and practice, there is a lot of uncertainty, and perhaps reluctance, on the part of schools to provide an appropriate education for students with disabilities. This is something that parents must understand and be prepared to deal with.

What You Can Do

Making sure schools are following the law is a responsibility that should not have to be left to parents. Still, the reality is that in addition to parenting a child with disabilities, you also have the job of being a watchdog over the school’s implementation of your child’s education.

Here are some suggestions to help you do that:

  1. Make sure that all services, accommodations, and modifications are clearly defined in the IEP. See our blog article: The Three Essential Parts of an IEP Goal for some tips.
  2. Create a special education “paper trail” by organizing all the paperwork and other communications with the school that relate to your child’s education. Include samples of your child’s work to illustrate any problems or successes. If you suspect problems, you can use your paper trail to provide evidence of your concerns.
  3. Start a parent journal that, among other things, records your impressions of how your child’s IEP is being implemented.
  4. Arrange a meeting with your child’s teacher to make sure the teacher has a copy of the IEP. Go over any sections that the teacher is responsible for implementing and make sure that you both understand them. Discuss possible ways that you can communicate with each other regarding issues or concerns that may come up. Note that teacher meetings are easier to arrange in elementary school than middle or high school.
  5. Request a Team meeting to discuss your concerns about how the IEP is being implemented. Commentary to the federal regulations makes it clear that “The parent can request an additional IEP Team meeting at any time.” Be prepared to persuade Team members of your point of view, as IDEA gives schools the ultimate authority over the content and implementation of the IEP.
  6. Contact your state’s Parent Training and Information center (PTI), which is a federally mandated organization to provide parents support and information on how to make the most of their child’s education. The staff at the center should be able to advise you on your rights under IDEA and suggest a course of action.
  7. Hire an attorney or advocate who can help you sort through the issues and provide guidance. If necessary, an attorney experienced in special education law can help you seek a due process hearing (similar to a trial) to enforce compliance with the law. Make sure this person is fully independent and does not have any conflicts of interest that may prevent this person fully supporting you and your child.

Judith Canty Graves and Carson Graves

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Athletics and IDEA

Recently, our local newspaper carried a front page story about a high school student on an IEP who was being told by the state’s high school athletic association that he couldn’t play in his school’s football games. According to the article, their rules said he had used up his eligibility to play because he was taking an additional year to graduate.

Extra Time to Graduate is Typical in Special Education

Needing additional time to complete school is typical for students in special education. In our book, we write about how our son’s school in Massachusetts tried to force him to graduate before he had earned enough credits to apply to a four-year college, and how we had to file for a hearing to prevent this from happening.

IDEA is very clear that schools must allow students on IEPs to participate in extracurricular activities “to the maximum extent appropriate to the child.” The student in question, Noah Britton, had been on the varsity football team the previous year and had played in scheduled games with other schools. There is no question that Noah has the right to continue to play football to the maximum extent appropriate for him.

Athletic Association Rules or IDEA?

The state athletic association, however, cited a rule that a student can’t continue to play varsity sports after eight semesters of high school enrollment. By taking an extra year to graduate, Noah would be in his ninth semester during the fall football season.

So, does the athletic association rule supersede federal law? We don’t think so, and the confusion is just one more example of why parents with children in special education need to be aware of their child’s rights or run the risk of their child losing out on an appropriate education.

Below, we have attached the letter we wrote to the Asheville Citizen-Times regarding the athletic association rules verses the legal requirements of IDEA.

Our Letter:

Dear Editor:

In reading your story about Noah Britton’s dispute with the North Carolina High School Athletic Association, it appears that the association is unaware of the provisions of the Individuals with Disabilities Education Act (IDEA), a federal law that protects the rights of students with identified disabilities to receive an appropriate public education up to age 21 or high school graduation, whichever comes first.

In particular, the association seems to be out of compliance with regulation 34 C.F.R. § 300.117, which states in part that “each public agency must ensure that each child with a disability participates with nondisabled children in the extracurricular services and activities to the maximum extent appropriate to the child.” A related regulation, 34 C.F.R. § 300.107(b) makes it clear that “extracurricular services” includes athletics. So yes, the IEP extends to sports, and always has. It is Noah’s right to continue to participate in the football program to the maximum extent appropriate for him.

It is also worth noting that IDEA requires schools to address the social and emotional development of students with disabilities, not just academics. Reading about how happy Noah was to play in an actual game is the definition of what this means. Too many students in special education are made to feel like second class citizens, and we applaud Asheville High School and coach David Burdette for what they have done for Noah.

From our lay reading of the law, it seems clear that Asheville High School is required to allow Noah full participation in the football team’s activities, including games, and that the North Carolina High School Athletic Association is attempting to violate federal law by preventing Noah’s participation.

We hope that the NCHSAA will reconsider its opposition without further delay. If not, we would like to point to Section 504 of the Rehabilitation Act of 1973, which was explicitly written to protect individuals with disabilities from discrimination. 29 U.S.C. § 794a(b) allows the “prevailing party” in a lawsuit over a violation of the statute to collect “a reasonable attorney’s fee” as part of the cost of remediation.

Judith and Carson Graves
co-authors Parents Have the Power to Make Special Education Work

A Postscript

We heard back from the newspaper a few days ago. Our letter was not printed because it contained too many words.

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Conflicts of Interest in Special Education: Part 2 – Outside Professionals

Parents are frequently unaware of possible conflicts of interest in special education. As we wrote in our previous blog article on conflicts of interest for school personnel, you must always try to be aware of the subtle, but real possibility that a school employee may act in the best interest of the school district first and put your child’s needs second.

But conflicts of interest are not limited to school personnel. Conflicts can also occur with the outside professionals you hire to perform evaluations, make recommendations for services, or advocate for your child. This sort of conflict is less understandable than with school employees, which is why you have to select outside professionals carefully.

What Sort of Conflicts Occur for Outside Professionals?

Conflicts of interest for professionals outside the school district occur when they have personal, professional, or financial ties to school administrators and employees. The fact that you are paying for a professional’s time does not always guarantee objective or appropriate advice or services.

Here are a few examples of the potential conflicts that a professional may have:

  • The professional might regularly get referrals from the school district for evaluations or services, such as counseling or occupational therapy. This person might not want to jeopardize future income from referrals by recommending that the district provide expensive services even when they are needed.
  • The professional may have developed relationships with certain teachers or administrators in the past. These relationships could influence how a professional writes an evaluation report or advocates for your child.
  • The professional might have a child in the same district, or even the same school, as your child. If that is the case, this person may not advocate strongly for your child out of fear that there might be consequences for their child.
  • We have even personally encountered a situation in which an outside professional was (unknown to us) seeking employment in our school district at the same time she was performing an evaluation of our son. This situation is unethical and casts a cloud over the professional’s objectivity.

Even if these kinds of conflicts seem unlikely, they do exist, which is why you need to carefully screen any outside professional you are considering.

How to Find the Right Professional

The first step in considering an outside professional is to determine what personal, financial, or professional ties this person might have with your school district. Establish that this person considers you and your child as their client. Ask direct and specific questions, because you need to know this information.

Questions you should ask include:

  • Does the professional receive any money, directly or indirectly, from your school district?
  • Does the professional expect to get future referrals from the district for their business?
  • Does the professional have children or other relatives in your school district?
  • Will the professional attend Team meetings and advocate for your child?
  • If the school has referred you to the professional or offers to pay for the professional’s services, ask if this person regards you and your child as their client and not the school.
  • If necessary, will the professional testify at a mediation or a hearing on behalf of your child?

The answers to these questions will reveal potential conflicts of interest. The last question in particular is a crucial one if you think you might have to go through mediation or a due process hearing to obtain an appropriate education for your child. If you are comfortable with the answers to your questions, then there is a good chance that the professional will be working in the best interests of your child and not be conflicted by other interests.

What You Can Do

Your goal is to be an educated consumer of the services that professionals offer when evaluating children and making recommendations for accommodations and proper educational placement. To help you achieve this, we recommend the following:

  • Review the code of ethics for any professionals you are considering. Organizations for lawyers, psychologists, and psychiatrists, for example, all require ethical behavior from their members, especially when it comes to acting in the best interests of their clients. Check to make sure that your outside professional is a member of an organization with such a code.
  • Check the license status of anyone you are considering. A professional who is licensed by the state has met higher standards than someone who is unlicensed. Most states have a Division of Professional Licensure website where you can search for an individual’s license status.
  • If your school offers to provide the services of an outside professional at no cost to you, consider such an offer carefully. This usually means that the organization offering this service (for example, counseling for parents and children), has a contract with the school and receives payment directly from the school. Their employees might be restrained in their recommendations so as to not lose this contract. If this makes you uncomfortable, consider using an organization that is financially independent from your school district.

As you can see, it requires time and effort to find a professional who is truly independent and has the freedom to write objective evaluation reports and advocate for appropriate services. But all this effort will be worth it to secure an appropriate education for your child.

This is an excerpt from Chapter 5 of our book, Parents Have the Power to Make Special Education Work.

Judith Canty Graves and Carson Graves

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Conflicts of Interest in Special Education: Part 1 – Schools

There is an aspect of special education that often goes unnoticed by parents. It can be subtle, but it is real. It is the possibility of a conflict between the needs of your child and the interests of the people working with your child.

Conflicts of interest can affect both school personnel and even outside professionals. Both groups can have relationships and financial ties that influence how they write evaluations, how they make recommendations for students, and how they interact with parents and other professionals. In this article we will analyze conflicts of interest for school employees.

Conflicts in the School

Conflicts of interest can occur in all aspects of life, but in special education where appropriate instruction for students with disabilities can be expensive, school personnel are often faced with a difficult situation. Do they advocate for a student who may need costly services, knowing that there may be personal consequences for their advocacy?

There are many examples of teachers who have lost their jobs or have been demoted after advocating for services and accommodations that the school administration did not want to provide. In one well-documented case, a Portland, Oregon, school district retaliated against and fired a teacher after she advocated for things like wheelchair ramps in the local high school.

This kind of conflict occurs primarily as a result of how special education services are funded. The people who approve services are frequently the same people who control the school budget or who are working for those who control the budget. If a potential service is too involved or costly, it is less likely that the school will provide it regardless of how beneficial it might be for a student. A school employee who goes against this unwritten rule is likely putting their job at risk.

It is important to note that we have encountered many school professionals who have a strong sense of professional responsibility and ethics. Unfortunately, they are not usually the ones who have the power to authorize services or accommodations that will cost the school money. The result is that employment security forces many school professionals to choose between what is best for them and what is best for the student.

These Conflicts are Systemic

In 1988, Galen Alessi, a psychologist and professor at Western Michigan University, conducted a survey of 50 school psychologists from around the country, each of whom had handled approximately 100 cases during the previous school year. That yielded 5,000 case studies. The goal was to determine the cause of learning and behavior problems in students.

The survey identified five probable causes of problems: faulty curriculum, ineffective management practices by the school administration, lack of parental support, and a student’s physical or psychological problems. All the school psychologists agreed that each of these could play a role in a student not learning properly or having behavior problems.

Yet, when the 5000 evaluations written by the psychologists were examined, every one concluded that the student’s physical and/or psychological problems were the primary cause of the students’ learning difficulties. Some also concluded that a lack of parental support or the home environment were contributing causes. None of the evaluations stated that the curriculum, teaching, or administrative practices were factors.

When asked about this, most of the psychologists in the study stated that school culture dictated that their conclusions be restricted to the student and family. Many said they could lose their jobs if they blamed school-related factors such as the curriculum or poor administrative practices.

Although this study focused on school psychologists, you should consider the implications when working with all school professionals. Bear in mind that the real client of any school employee working with your child is the school district, not you or your child.

What You Can Do

Most of the time it is difficult, if not impossible, to discover the existence of a conflict of interest affecting your child’s education. Learning to recognize conflicts when they exist and knowing how to effectively deal with them requires understanding your child’s legal rights and the pressures in the system that create the conflicts. Here are some ideas on how you can level the playing field:

  • Try to find ways to work cooperatively with school personnel, realize their limitations, and maybe together you can come up with a creative plan to help your child without ringing budgetary alarm bells.
  • Obtain a copy of your school district’s code of ethics and study it. Most districts post their code on the school website, or you can ask for a copy at the school office. While there are exceptions worth looking for, most codes don’t acknowledge the kinds of conflicts discussed in this article. At the least, however, it will show you what the school formally expects from its employees.
  • Check the certification of any school professional who works with your child. Some schools attempt to economize on their special education budgets by employing staff with interim certification or even no certification. This information is in the public domain. Most districts have websites where you can check this information, or you can ask at your school district office.
  • If you do suspect a conflict of interest, realize that you will probably not get honest and objective information regarding your child. The best remedy is to independently learn as much as you can about your child’s disability and what is necessary to obtain an appropriate education. Then you will be better able to ask pertinent and specific questions of school personnel to reveal the possible conflict and decide what action, such as filing for mediation or a due process hearing, is necessary.
  • Ultimately, the best use of your time and money may be to consult a professional who is outside of your school district to perform evaluations and make recommendations based on what your child truly needs.

The last suggestion is not foolproof, however. Our next blog article will cover potential conflicts of interest with outside professionals and how to find one who is truly independent of your school district.

You will find more information on this topic in Chapter 5: “Conflicts of Interest,” in our book, Parents Have the Power to Make Special Education Work.

Judith Canty Graves and Carson Graves

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Texas Update… Not So Great

This summer, we wrote about how the state of Texas placed a secret (and illegal) “cap” on how many of its students could receive special education services (Gatekeeping: Texas Style). We described how the Texas Education Agency (TEA) decided in 2004 to place an 8.5 percent limit on the number of students they would allow to receive special education services in the state. This limit had no scientific basis and was against the legal mandate of the Individuals with Disabilities Education Act (IDEA). Based on a national average of 13 percent of the student population being eligible for special education, this effectively denied almost 250,000 students in Texas an appropriate education over the 13 years that this policy was in effect. In May of 2017, after the practice came to light, the Texas state legislature banned it.

Now we have an update. According to the Houston Chronicle, whose outstanding series of investigative articles, “Denied, How Texas keeps tens of thousands of children out of special education” revealed the existence of this travesty, the number of students receiving special education services for the 2016-17 school year increased by approximately 14,000 compared to the previous school year. While the Chronicle describes this as “noteworthy,” it still only amounts to 8.9 percent of the Texas school population, an increase of just 0.4 percent. It’s hard to imagine that the parents of the over 143,000 students in Texas who should be receiving special education services, but are still being denied, consider this a “noteworthy” improvement.

Judith Canty Graves and Carson Graves

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Interpreting the Language of Special Education

Over the years we had many opportunities to read a variety of special education documents. There are all kinds: letters from the school district, progress reports, eligibility evaluations, three-year reevaluations, and of course, Individual Education Programs or IEPs, to name just a few. Parents can quickly become overwhelmed by all this paper, much of which contains confusing jargon and abbreviations that aren’t explained. We know, we encountered it all.

We have written previously about the importance of organizing special education documents in our articles, How to Create a Paper Trail, and How to Use a Paper Trail. In this article, however, we want to alert parents about a tendency for school professionals to use unnecessary and sometimes intentionally obscure language in communicating with parents.

This language can hide the truth about what your child is struggling with in special education. You need to learn how to recognize and interpret this language, which can have a direct effect on the programs and services your child receives.

Special Education “Filler,” a Swamp of Vague Descriptions

Sadly, school culture frequently encourages special education staff to use language in their documents and other communications that can hide the reality of your child’s educational experience. During our years in special education, many of our son’s evaluations and other reports were full of vague, but optimistic sounding descriptions, such as calling him a “hard worker,” or “motivated to learn.”

These reports would usually end with a statement like “He is a pleasure to have in class,” which made us feel good without questioning what these pleasant, but meaningless phrases meant. Ultimately, we realized that they just distracted us from fully understanding how much difficulty he was having in learning to read and write, and the fact that he was below grade level in certain areas.

Author and special education teacher, Jeffrey M. Hartman, in an article on the Edutopia website, Replacing Filler in Special Education Documents describes this problem. Hartman defines “filler” as vague language, meaningless anecdotes, and “thin and insubstantial praise,” that too often appear in special education documents. His point is that this kind of language, without objective data to support it, prevents parents and educators from adequately addressing a student’s academic, social, and emotional needs.

“Being Explicit is More Than a Best Practice”

Mr. Hartman writes that, “Being explicit is more than a best practice. Documents such as reevaluation reports and IEPs demand specific and detailed information.” Anecdotal statements such as “Student struggles with math,” and is a “hard worker,” do not indicate a student’s grade level or what skills a student needs to master, making it harder for IEP Teams to develop realistic and attainable goals that are supported by appropriate services.

The article makes the point that special education teachers wanting to praise their students is understandable for many reasons, not the least of which is that teachers are sensitive to the parents and want to give them “something positive that interrupts the stream of disappointing news about what their child can’t do.” Well intentioned or not, these positive statements can have a negative effect.

Effective Reports Contain Data

Honest evaluations with objective data are what guide IEP Teams to write goals and decide on services that allow a student to make measurable and meaningful progress. Effective IEP goals, for example, begin with detailed descriptions of a student’s Present Level of Performance. Filler does not provide this critical information. In our book, Parents Have the Power to Make Special Education Work, we document many examples of a direct correlation between vague descriptions of performance and ineffective goals.

Question Filler and Sugarcoated Language

The message is that you shouldn’t settle for filler in your child’s special education documents. Question language that appears to “sugarcoat” or obscure your child’s difficulties. While it may be well-intentioned on the part of school evaluators, not dealing directly with your child’s disability only serves to make the process of obtaining appropriate services more difficult and delays getting help for your child.

Getting appropriate and individualized instruction boils down to this: You need to make sure that your child’s special education documents contain specific and explicit language that tells the truth about your child’s special needs and what it will take to help your child make effective progress in school.

Judith Canty Graves and Carson Graves

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Gatekeeping: Texas Style

In a continuation of our series on special education gatekeeping (Withholding Needed Services and Response to Intervention), we have an amazing story to tell about how the state of Texas kept a quarter of a million children with disabilities from receiving an appropriate education. This story actually deserves its own category, as Texas has gone far beyond the more prosaic gatekeeping tactics we have written about in the past.

What Texas did was to place an arbitrary limit on the number of students for whom the state would provide special education services. Without any legal or other rational basis, a small group of unelected bureaucrats decided to cap the number of students it would enroll in special education at 8.5 percent of the total student population. This was despite the fact that the national average of students with qualifying disabilities is 13 percent. Given the total number of students in Texas schools since the cap was initiated, this amounts to approximately 250,000 students that the state prevented from receiving the special education services that they needed and to which they were entitled.

State Mandated Reductions in Special Education

In a blistering series of articles published in the Houston Chronicle, investigative reporter Brian M. Rosenthal details how the Texas Education Agency (TEA), working virtually in secret, decided that it would limit the number of students with disabilities it would serve under the federal Individuals with Disabilities Education Act (IDEA). This is a clear violation of the law, which states that services should be given based on need, and not on any other criteria.

Although the enrollment limit was couched in the language of a “suggestion,” local special education directors knew what was expected of them. School districts that enrolled more students in special education than the prescribed 8.5 percent were subject to a variety of penalties that ranged from reprimands and fines to having the district taken over and run by state regulators. One director quoted in the article, flatly stated, “TEA required us to do this, there was no wiggle room.

How it Happened

The story begins in 2004, when four members of the TEA decided to place an 8.5 percent benchmark on the number of students who could receive special education services in the state. At the time, special education enrollment in Texas was 12.1 percent of the total student population, close to the national average of 13 percent. One of the four TEA members actually admitted under questioning that the 8.5 percent figure was not supported either by law or any research.

In addition, the TEA did not consult the federal government, the Texas legislature, or even the State Board of Education in reaching its decision. It also never publicly announced or explained its decision. In fact, when asked by some school staff members, the TEA falsely told them that limiting special education enrollment was “federally mandated.” For most school districts, this policy meant purging the rolls of students already on IEPs and discouraging new students from entering special education.

The subterfuge had a very self-serving motive. The Chronicle article estimates that reducing the enrollment in special education saved the state “billions” of dollars. Unfortunately, the collateral damage was that hundreds of thousands of students who should have been eligible were denied special education services.

Texas Tactics

The tactics Texas schools used to enforce the 8.5 percent mandate are used in many other states to prevent eligible students from entering special education or receiving appropriate services. This is why parents need to be aware of the laws that protect their children from any school district that might try to use these tactics to avoid its obligation to provide an appropriate education.

In this and subsequent blog articles, we will review the gatekeeping tactics that the Houston Chronicle uncovered, beginning with the tactic of discouraging parents from seeking evaluations to determine special education eligibility. In later articles we will describe some of the other tactics used by Texas schools.

What Federal and Texas Laws Say

Under 20 U.S.C. § 1414 “Evaluations, Eligibility Determinations, Individualized Education Programs, and Educational Placements,” IDEA states that parents can request an evaluation in all areas of suspected disability to determine whether a child qualifies for special education. Parents can make this request at any time and the school must honor the request without placing any conditions on it.

The only requirement is that the request must be made in writing. Once the school receives a signed consent form from the parents, under federal law it has 60 days to perform all requested evaluations (Texas law specifies 45 school days). All evaluations are to be performed at no cost to the parents. The specific federal statute is: 20 U.S.C. § 1414(a)(1)(B). Texas special education law does not alter this requirement.

What Schools Told Parents Instead

Instead of following either state or federal law, the Chronicle reported that different Texas school districts told parents that:

  • they would have to pay for evaluations
  • there was a long waiting list
  • students could not be evaluated more than once every two years
  • there had to be at least three meetings with teachers before the school can perform an evaluation, or as a variation, a special committee must decide that an evaluation is warranted
  • a student’s IQ was too high for special education
  • dyslexia only qualified for section 504 services and not special education
  • there could be no referral to special education until the student tries Response to Intervention first
  • a private school would be better able to teach their child. (While this last point may be true, if a public school is unable to provide an appropriate education under IDEA, then the school district must pay for the outside placement.)

This is Why You Need to Know Your Rights

All these “tactics” used by Texas schools are contrary to the laws governing special education. Yet, most parents interviewed by the Houston Chronicle were unaware of the law’s requirements, and accepted the school’s explanations without question. This meant that their child never got evaluated for special education eligibility, or they endured long delays while their child fell further and further behind in academic and social skills. This is a tragic situation that can have long-lasting consequences. We wrote our book, Parents Have the Power to Make Special Education Work so that you can separate fact from fiction and to help you get your child the appropriate education he or she deserves.

Postscript

In May of 2017, the Texas state legislature passed a bill banning the practice of placing a cap on special education enrollment. This was 13 years after the Texas Education Agency began the practice.

Judith Canty Graves and Carson Graves

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Writing a Strong Vision Statement

The vision statement is one of the most important and overlooked parts of the IEP. This statement isn’t a required part of the IEP in the federal law IDEA, but it is required by many states. It’s important because it serves as a guide for developing special education services and goals that will help a student throughout the remaining school years, and ultimately, life after graduation.

What is a Vision Statement?

The vision statement is a collaborative description of what you and the rest of the IEP Team hope your child will be doing in the next one to five years. This description is a guide, not just for the current school year, but also for upcoming years, through graduation and beyond.

When everyone on the Team understands your child’s aspirations, they can write better goals to help achieve them. Many parents don’t understand the significance of this and write brief statements, such as they hope their son or daughter will graduate from high school. Even worse, school personnel might write the vision statement without input from the student or parents. But planning for your child’s future is critical and should start early. Don’t wait until high school to write a vision statement for your child.

How to Write a Vision Statement

Putting serious thought into what you want your child to achieve in the next one to five years is a valuable exercise, because it encourages thinking about the future. Many parents of children with special needs find it hard to think about the future since they are so focused on the present. Looking ahead to the next five years can seem impossible if you’re just trying to get through the week.

Yet, long-range planning is important for parents, because school personnel are primarily focused on short-term goals for the current school year. You are in the best position to consider long-range goals, since you know your child best and are the ones with the long-term commitment. Ask yourself: what are your future plans and goals for your child? What do you see your child accomplishing in the next five years?

If it is appropriate, have an older child discuss with you how he or she sees the future. Consider such things as community experiences, economic independence, acquiring a driver’s license, learning to take public transportation, living independently, further education, or job training. This information will help the Team understand your child’s interests and preferences.

Avoid Vague Vision Statements

Since a vision statement affects many aspects of the IEP, you want your input to be as specific as possible. To help your Team see the whole picture clearly, avoid vague statements such as these we have seen in actual IEPs:

The Team sees [student] having a smooth transition to high school. They would like her to gain the skills necessary to move on to college.

The Team hopes that [student] will successfully complete his goals and make progress both socially and academically.

These statements might sound good, but need specific descriptions of aspirations that are pertinent to your child. This is true even in elementary school, when your child is beginning to develop academic and social skills.

Write a Detailed Vision Statement

A vision statement can be longer than one or two sentences. Once you have a rough draft, be sure to discuss it with other Team members to create the final statement. It is important to have them give their input, because they may have ideas that you might not have considered. Keep in mind that a vision statement is a collaborative effort.

The following example illustrates how details can provide useful guidance for writing goals:

For grade three, we expect [student] to be reading and writing at grade level as measured by testing in the spring. We expect that he will receive the necessary support and specialized instruction to do this. We want him to achieve his potential academically so that he is at grade level every year through elementary school, with objective testing data to back this up.

A vision statement like this focuses your child’s IEP on results as confirmed by testing data, not just teacher observations or wishful thinking. This is an example of how your expectations, combined with an understanding of what the school should do, can improve your child’s chances of getting an appropriate education. You can read more about the importance of objective data for making educational decisions in our article: Levels of Performance and Your Child’s IEP.

How You Can Create Effective Vision Statements

  1. Begin thinking about your child’s future at an early age. You may only be considering the future one year at a time at this point, but even that is important. Realize that the vision statement will need to be updated each year as your child changes and reaches goals.
  2. The vision statement should inform schools of your expectations. Be sure to brainstorm with your Team about appropriate goals for your child and be realistic.
  3. Use independent testing, if possible, to confirm what your child is capable of. Don’t just rely on school testing for information.
  4. If your older child is ready, be sure to have a discussion with him or her about dreams and aspirations. It is important for parents and children to have dreams for the future and talk about what a child is most interested in. Have an older child write his or her own vision statement, if possible.
  5. The vision statement is closely linked to postgraduate transition planning. Be sure to include information about possible college, vocational school, employment, and independent living by the ninth grade IEP.

Judith Canty Graves and Carson Graves

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Avoid “Feel Good” Goals

In examining hundreds of IEP goals, we have noticed that too many just describe hoped-for outcomes and not measurable results. These goals tend to be vague statements of what the IEP Team would like the student to be rather than define a path toward a specific accomplishment. We call these “feel good” goals because they describe achievements that we all want for our children, but they don’t provide guidance as to how the child is going to get there.

Vague Goals vs. Specific Goals

Vague goals, like “[Student] will increase his homework production,” “demonstrate appropriate behavior in the classroom,” or “increase her study skill techniques,” don’t indicate how the goal will be measured (if it can be measured at all), who will assist the student in achieving the goal, or how anyone will even know if the goal has been reached.

Even though these goals may sound good, at the end of the year there will be no concrete evidence to indicate if they have been accomplished. There may even be the temptation to think that the goal has been partially or even fully met, when in fact the opposite might be true.

Goals Gone Wrong

The following are actual goals we have found in IEPs. Only the student’s name has been removed, replaced by [student], and in a few cases bad grammar has been corrected. Otherwise, they are verbatim.

[Student] will become more consistent in completing his required academic work.

[Student] will continue to maintain her independence in the high school setting.

[Student] will demonstrate skills in relaxing to reduce body and mental tension. (One of the benchmarks says that the student will “use sensory diet techniques for achieving body and thought relaxation.”)

[Student] will consistently exhibit responsible behavior in the areas of classroom participation and assignment completion.

[Student] will work to improve the thoroughness of his daily preparation.

While it is easy to see unintended humor in many of these goals, it is worth noting that in just about every case these statements describe what parents and students want from their special education experience. Instead of being goals, however, these statements only project the results of successfully achieving a goal. We have seen these kind of feel good statements appear in far too many IEPs masquerading as goals.

Unmeasurable “Progress”

Without providing any direction, it is almost impossible to determine when, or even if, these feel good goals can ever be achieved in a realistic fashion. The result is that they sometimes end up repeating year after year without any end in sight. This can lead to a lack of motivation, both on the part of the student, who doesn’t have any identifiable path to follow, and school personnel, who don’t have any way to measure progress.

One of our son’s goals for written language repeated word for word in every IEP from 3rd through 7th grades. We routinely got reports that he was making “tremendous progress,” “excellent progress,” or “outstanding progress” toward achieving this goal (these phrases seemed to appear in rotation), yet we never questioned the goal. In hindsight, we now see that this goal was too vague and unmeasurable to be achieved. In short, it was nothing but a feel good goal.

What Makes a Goal Measurable?

The opposite of a feel good goal is one that has the following characteristics:*

  1. It contains a method for measuring whether the goal has been achieved.
  2. The criteria for measuring progress are clearly defined in the goal and do not require any information other than what is contained in the description of the goal.
  3. The measurement can be validated by multiple observers. For example, if two different observers measure the progress of a goal using the criteria described in the goal, they would independently come to the same conclusion.
  4. It is possible to determine how much progress a student has made toward attaining the goal at any time, such as in a quarterly report.

Many of the IEP goals we have seen provide little of this information. Most are impossibly vague, contain no standards by which anyone could determine if the goal was ever achieved, and perversely, often place the responsibility for achieving the goal completely on the student.

What You Can Do

Remember that the IEP is created by a Team that includes you, the parent. Your voice is an important part in any discussion about your child’s goals. Use your voice by assisting the Team in developing goals that are measurable, time-limited, and specific about who is responsible for seeing that the goals are met.

  • Make sure that the current performance level for each goal accurately describes what your child is capable of doing. It should include the most recent testing data (including independent evaluation results) in that skill area, especially the grade level equivalent for your child’s current performance.
  • Have each goal specify valid ways of measuring your child’s progress. Include details for teachers and other service providers to notice and record in their observations.
  • Make sure that all goals are appropriately coordinated with the service delivery grid. The grid should allow ample time for every service. Also notice what type of professional will provide the service. If no one or just “sped staff” is listed, ask for more detail about that person’s role and qualifications. Pay attention to the location, start, and end dates of the service.
  • Have the information in the service delivery grid written into the description of the goal. The grid often appears pages after the goal in the IEP where it can be overlooked by both you and the service providers. The duplication serves to remind everyone that the most important part of a goal is achieving it.

Your participation in the IEP process is critical to ensure that all your child’s goals are realistic, measurable, and come with adequate services to achieve them. This is your child’s right in getting the appropriate education that the law guarantees.

Judith Canty Graves and Carson Graves

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* These four characteristics are adapted from Barbara Batemen’s and Cynthia Herr’s excellent book: Writing Measurable IEP Goals and Objectives.